upon the preliminary examination of the jurors as to their qualifications to serve as such in the case, that several of them were residents of Silver Bow county, that county having been created and formed out of Deer Lodge county after the jurors had been drawn and summoned for the then pending term of the district court for the county of Deer Lodge. Thereupon the court ordered that the panel of jurors be filled, under and by virtue of a provision of the statute which provides that if, for any reason, the panel of trial jurors shall not be full at the opening of the court, or at any time during the term, the clerk shall, under the direction of the court, draw from the box furnished by the county commissioners, as provided by law, so many additional names as the court shall direct to fill such panel, who shall be summoned in the same manner as the others, and, if necessary, jurors may continue to be drawn and summoned from time to time until the panel shall be filled. Laws Twelfth Sess. 58. Thereupon the defendant challenged the entire jury, upon the ground that he had the right to have a full panel drawn, as provided by law, from Deer Lodge county, and had the right to elect from the old panel. The objection was properly overruled.

The defendant was provided with a jury in the manner required by the law, and he had no cause to complain. It is wholly immaterial for what reason the panel became exhausted before the jury is full. Whenever that event occurs the court is clothed with authority to provide a competent jury. After the jury had been formed, and pending the trial, the plaintiff asked and obtained leave to amend his complaint, and thereupon a jury was waived, and the cause was tried to the court by consent of the parties. This action of the parties would have cured any defect in the formation of the jury, if there had been any, and renders the bill of exceptions as to the manner in which the jury was obtained, sham and frivolous. The defendant, however, demurred to the amended complaint filed by the plaintiff, for the reason that the same is ambiguous and uncertain, for that said amended complaint does not name the person who commenced the original action, and shows that it is not the same plaintiff. The original complaint is not contained in the record. The amended complaint was filed upon leave of court, and appears to be in proper form. There is nothing to show that there had been any change of plaintiffs; on the contrary, the amended complaint shows that the plaintiff in the amended complaint is the same person that filed the original complaint. There is nothing contained in the record to authorize or justify the demurrer, and it was undoubtedly interposed for the purpose of delay. This appeal seems to have been taken for the same purpose, and the case is clearly within the twenty-third rule of court, which provides that in any case, if the court is satisfied from the record that the appeal was taken for delay, such damages shall be awarded as may under the circumstances be proper, and as shall tend to prevent the taking of appeals for delay. Sup. Ct. Rules, No. 23.

The judgment is affirmed; and it is ordered and adjudged that the plaintiff recover from the defendant the sum of $100 damages hereby awarded under rule 23 of this court.

(5 Mont. 458)

PLATNER V. BOARD OF COM'RS OF MADISON CO.

Filed February 2, 1885.

APPEAL-SHERIFF-CLAIM FOR COMPENSATION FOR FURNISHING JAILER.

Where, upon an appeal from a judgment and order of the district court dismissing the appeal of a sheriff from an order of the board of commissioners of a county rejecting a claim of the sheriff for furnishing a jailer at a certain rate per day, there is nothing in the findings to show that the sheriff was absent or disabled during any of the period for which he has charged for the services of a jailer, or that the jailer so employed ever had the legal custody of the jail of the county or of any prisoners therein, the appeal is held to be properly dismissed.

Appeal from First district, Madison county.

James E. Callaway, for appellant.

Wm. H. Hunt, Atty. Gen., for respondent.

WADE, C. J. This is an appeal from a judgment and order of the district court, dismissing the appeal of the sheriff of Madison county, the appellant herein, from an order of the board of commissioners of said county, rejecting the claim of said sheriff for the sum of $2,012.50 for furnishing a jailer for said county from the twentieth day of December, 1880, to the fifth day of March, 1883, at the rate of $2.50 per day. On the trial the court found the following facts: (1) That the appellant has been the sheriff of the county of Madison, territory of Montana, during the times hereinafter mentioned, and is now such officer. (2) That the appellant, as such sheriff, furnished a jailer for said county of Madison from the twentieth day of December, 1880, to the fourth day of December, 1882, inclusive, and paid him therefor at the rate of $2.50 per day. (3) That the appellant, as such sheriff, furnished a jailer for said county of Madison from the fifth day of December, 1882, to the fifth day of March, 1883, inclusive, and paid him therefor at the rate of $2.50 per day. (4) That the amount so paid by the appellant to said jailer was reasonable, and that the services of said jailer were performed in and about the common jail of said county of Madison, and that said jailer was also a deputy-sheriff of said county. (5) That the appellant duly presented his claim for said amounts so paid by him for said jailer to the board of county commissioners of said county of Madison, the respondent, and the same was rejected, and payment of the same or any part thereof was refused. (6) That the appellant thereafter duly appealed from said action of said respondent to said court.

Upon these facts the court found, as a conclusion of law, that the claim of appellant for the payment of the services of said jailer was not a legal demand, there being no statute authorizing the board of commissioners to pay the same, and thereupon ordered and adjudged that the said sheriff's appeal be dismissed. The statutes of the territory having to do with the question involved herein are as follows:

Section 357, Rev. St. 482, provides that no amount shall be allowed by the board of county commissioners, unless the same be made

out in separate items and the nature of each item stated; nor unless the same be verified by affidavit, showing that the amount is just and wholly unpaid, and if the amount be for official services for which no specified fees are fixed by law, the time actually and necessarily devoted to such service shall be stated; but nothing in the section contained shall prevent such board from disallowing any amount, in whole or in part, when so rendered and certified.

Section 748 provides as follows:

"The sheriff shall have the custody of the jail in his county and of the prisoners therein, and shall keep the same personally or by his deputy, for whose debts he shall be responsible, and shall furnish, at the expense of the proper county, all necessary sustenance, bedding, clothing, fuel, and medical attendance for the prisoners committed to his custody."

Section 749:

"The sheriff may appoint a jailer, who, in the absence or disability of the sheriff, shall have the custody of the jail and the prisoners."

Section 1, Laws Thirteenth Sess. 107, 108, provides as follows: "The sheriff shall have a jailer and as many guards as the county commis sioners may deem necessary, who shall receive such compensation as the county commissioners may allow."

The findings of fact do not show that the services of a jailer were necessary for the care and custody of the jail or the prisoners therein, if any such there were, which does not appear. This is a claim for official services for which no specified fees are fixed by the law; and in such a case the necessity for the services must be made to appear. It would not be lawful for the commissioners or court to allow claims for such services until it was clearly shown that such services were actually necessary, and that they were legally performed in the discharge of official duty.

For all that appears in the findings there may not have been a prisoner in the jail for the entire period for which the sheriff claims pay for his jailer, and if there were no prisoners, and there was no necessity for employing a jailer, then there could be no lawful claim against the county for the services of a jailer in such a case. The compensation of a jailer must depend upon the necessity there is for his being employed as such. He cannot receive pay as jailer if he has no duties to perform. It is the duty of the sheriff to appoint a jailer; but if he has no prisoners in custody, and no services for him to perform as such, he may discharge him, and should do so. In order to give the jailer authority to have the custody of the jail and the prisoners, he must be a deputy-sheriff, but he cannot receive pay as a deputy-sheriff and as jailer of an empty jail at the same time. Section 749 provides just when and under what circumstances the jailer may have the custody of the jail and the premises, viz., “in the absence or disability of the sheriff." If the sheriff is not absent or disabled, he has no authority to put the jail and prisoners into the custody of the jailer. The law seems to require the sheriff to appoint a jailer, so that in cases of the

necessary absence or disability of the sheriff there may be an officer legally competent to take charge of the jail and the prisoners therein, and for services so rendered the jailer would be entitled to reasonable compensation. There is nothing in the findings to show that the sheriff was absent or disabled during any of the period for which he has charged for the services of a jailer, or that the jailer so employed ever had the legal custody of the jail of the county, or of any prisoners therein.

Judgment and order affirmed.

(5 Mont. 463)

STEINHART and others v. FYHRIE and others.
Filed February 1, 1885.

1. PARTNERSHIP-ASSIGNMENT BY ONE PARTNER OF PARTNERSHIP PROPERTY. An assignment made by one member of a partnership firm of the property, real and personal, of the partnership in favor of a creditor or creditors of the firm, without the authority of his copartner, is void; and such property, in the hands of the assignee to whom it has been assigned, cannot be considered and treated as a trust for any purpose whatsoever.

2. SAME-COMPLAINT-AUTHORITY OF COPARTNER MUST AFFIRMATIVELY APPEAR

-DEMURRER.

If the assignment is so made with the authority or consent of the copartner, it must affirmatively appear in the complaint of the plaintiff, or the failure to give such authority or consent satisfactorily explained; otherwise the complaint will be open to general demurrer.

3. SAME-ATTACHING CREDITORS-PRIORITY.

Among attaching creditors the first in point of time is the first in point of right, and is entitled to the preference.

Appeal from Third district, Lewis and Clarke county.

Chumasero & Chadwick and E. W. & J. K. Toole, for appellants. Sanders & Cullen, for respondents.

COBURN, J. This is an appeal by the plaintiffs from the judgment of the district court, sustaining a demurrer to the following complaint:

"The plaintiffs complain against the defendants and allege That on the thirteenth day of November, 1883, the said William Steinhart, Israel Steinhart, Charles Adler, and William Scholle commenced their action in this court against the said Sewell Davis, and Jeremiah Shinnick, of Townsend, in Meagher county, in said territory, by filing a complaint and causing a summons to be served against them, and an attachment against the property of said defendants in said suit, which was directed to the sheriff of said Meagher county for service; which said attachment was, on the thirteenth day of November, 1883, duly levied by said sheriff upon a certain stock of goods, wares, and merchandise which, at that date, was in the possession of William D. Cameron, the sheriff of said Meagher county, and claimed to be held by him (said sheriff) under and by virtue of a certain attachment in his hands, in favor of the defendants, L. C. Fyhrie and Henry and Christopher Burfiend, and against the said Davis & Shinnick, and which said property is hereinafter particularly described, as will appear by the attachments of the said W. & I. Steinhart & Co., and return of said sheriff thereon indorsed, a copy of which is hereunto attached and marked Exhibit A, and made a part hereof; and said sheriff also levied the said attachment upon the following described real prop

erty, to-wit: Lots numbered eleven and twelve, in block number forty-three, in the town of Townsend, in said county of Meagher, Montana territory, and which had also been previously levied upon and attached by said L. C. Fyhrie & Co. That the clain of said William & I. Steinhart was for a bill of goods sold and delivered by them to said Davis & Shinnick, amounting to the sum of thirteen hundred and seventeen and 25-100 dollars, which goods were sold to said Davis & Shinnick under the following circumstances: The said Davis & Shinnick sent an order to said W. & I. Steinhart & Co. for a bill of goods, etc., which they desired to purchase on credit. That said W. & I. Steinhart & Co., on the twenty-seventh day of August, 1883, upon the receipt of said order, wrote a letter to said Davis & Shinnick, asking for a statement of their affairs, which was furnished to them by said Davis & Shinnick by mail, inclosing the letter,-a copy of which is hereunto attached, marked Exhibit B, and made a part hereof. That on the twelfth day of September, 1883, L. C. Fyhrie and one of the defendants above named, and a member of the firm of L. C. Fyhrie & Co., sent to the plaintiffs a telegraphic dispatch, bearing date on that day, at said Townsend, where the said Davis & Shinnick were then doing and carrying on business, and which was on the following day received by said W. & I. Steinhart & Co., and of which a copy is hereunto annexed and marked Exhibit C, and made a part hereof. That the said W. & I. Steinhart & Co., relying upon all of the above statements, and induced thereby, did send to Davis & Shinnick the said goods, wares, and merchandise, which were received by said Davis & Shinnick some time in the latter part of September or the first of October, 1883, at Townsend aforesaid. That such proceedings were afterwards had in the action of said W. & I. Steinhart & Co. against said Davis & Shinnick, that on the day of December, 1883, at the November term of this court, that judgment was duly rendered in favor of said Steinhart & Co., against said Davis & Shinnick, for the sum of thirteen hundred and seventeen and 25-100 dollars damages, and thirteen and 95-100 dollars costs of suit. That on the fourteenth day of December, 1883, an execution was duly issued on said judgment and sent to the sheriff of said Meagher county for service, which, as plaintiffs are informed and believed, was, on the day of December, 1883, levied by said sheriff of said Meagher county on the same property, real and personal, which had been so previously levied on under and by virtue of the said attachment above herein mentioned. That the said judgment and execution yet remain wholly due and unpaid, and wholly unsatisfied.

"Plaintiffs further allege that on the ninth day of November, 1883, the said Reinhold Kleinschmidt and Carl Kleinschmidt and Louis Hillebrecht commenced an action against the said Sewell Davis, and Jeremiah Shinnick, in this court, by filing a complaint against said Davis & Shinnick upon a certain claim or demand due from said Davis & Shinnick, and on the same day caused a summons to be issue.l thereon, and an attachment against all of the goods, chattels, and personal property of said Davis & Shinnick liable to execution or attachment, which said attachment was in the usual form, and was directed to and placed in the hands of the sheriff of Meagher county, aforesaid, for service; and the same was afterwards, and on the said ninth day of November, 1883, duly levied by said sheriff upon the same stock of goods, wares, and merchandise, which at that time was so in possession of said sheriff, under an attachment in favor of said L. C. Fyhrie & Company, as above herein is set forth; and said attachment was also levied upon the said real estate above herein described, and which had also been previously attached and levied on under the said attachment of L. C. Fyhrie & Co. That afterwards, to-wit, on the day of, 1883, at the November term of this court, judgment was duly entered in said action in favor of the said Kleinschmidt Bros. & Co. against the said Davis & Sh'nnick, for the sum of nine hundred and seventy-six and 67-100 dollars, besides costs, which said