ERRONEOUS OR VOIDABLE EXECUTION CANNOT BE COLLATERALLY ATTACKED: Phillips v. Coffee, 63 Am. Dec. 387; and the citations of the principal case in Ellis v. Jones, 51 Mo. 186; Thompson v. North Missouri R. R. Co., 51 Id. 190; Briggs v. Ewart, 51 Id. 245; Bray v. McCleery, 55 Id. 140; Newmark v. Chapman, 53 Cal. 559.

EXECUTION WHICH IS VOIDABLE MERELY MAY BE AMENDED: McCormick ▼. Wheelock, 85 Am. Dec. 388, and note 396.

ROBERT V. ADAMS.

[88 CALIFORNIA, 383.]

STALLION IS NOT EXEMPT FROM EXECUTION WHEN KEPT FOR SERVICE OF MARES only, and not used as a work-horse.

EXEMPTION FROM EXECUTION OF OXEN, HORSES, OR MULES BELONGING TO FARMER is intended to apply to such animals only as are suitable and intended for ordinary work conducted on a farm.

ACTION to recover possession of certain horses levied upon and taken from plaintiff's possession under execution. The opinion states the facts.

Peckham and Payne, and Moore, Laine, and Silent, for the appellants.

J. A. Yoell and Andrew Craig, for the respondents.

By Court, CROCKETT, J. The only point in this appeal which we deem it necessary to discuss is whether or not, under the third subdivision of section 219 of the Practice Act, a stallion, not used as a work-horse on a farm, but kept for the service of mares, is exempt from execution.

The subdivision in question exempts from execution “the farming utensils and implements of husbandry of the judgment debtor; also two oxen, or two horses, or two mules, and their harness, four cows, one cart or wagon, and food for such oxen, horses, cows, or mules for one month." The act does not, in express terms, make this exemption applicable only to such judgment debtors as were engaged in the business of farming at the date of levy; but it is obvious that such was its intention, and we so held in Brusie v. Griffith, 34 Cal. 305 [91 Am. Dec. 695]. That this is the correct interpretation of the act, we entertain no doubt whatever.

Nor does the said third subdivision expressly specify that the oxen, horses, or mules must be work oxen, horses, or mules. The language is general,-" two oxen, two horses, or two mules, and their harness." But we are satisfied, from a consideration

of the whole scope and spirit of the act exempting property from execution, that the exemption in this subdivision was intended to apply only to oxen, horses, or mules suitable and intended for the ordinary work conducted on a farm. By the first and second subdivisions, there is exempted certain household furniture, wearing apparel, and provisions for a month for the use of the family. This exemption is for the benefit of all classes of judgment debtors, whatsoever may be their vocations, because these articles are essential to all families. But the next succeeding four subdivisions were intended to exempt such articles as were used by the judgment debtor in earning a support for himself and family in his particular vocation. Hence the third subdivision exempts the farming implements of a farmer, and two horses, oxen, or mules, with their harness, four cows, and a cart or wagon, and all seed-grain or vegetables provided for the purpose of planting or sowing at any time within the ensuing six months, not exceeding in value two hundred dollars. This exemption is to enable the judgment debtor to earn a support by farming, and secures to him the means appropriate to that end. The fourth subdivision exempts the tools or implements of a mechanic or artisan, "necessary to carry on his trade"; the instruments and chest of a surgeon, physician, surveyor, or dentist, "necessary to the exercise of their profession, with their scientific and professional libraries"; the law library of an attorney, and libraries of ministers of the gospel. The fifth subdivision exempts the cabin of a miner, and his sluices, pipes, windlass, and other "appliances necessary for carrying on any kind of mining operations," including two horses, mules, or oxen, and food for the same for one month, "when necessary to be used for any whim, windlass, derrick, car, pump, or hoisting gear." The sixth subdivision exempts two oxen, horses, or mules, and their harness, and one cart or wagon, "by the use of which a cartman, huckster, peddler, teamster, or other laborer habitually earns his living."

From this summary of the act, it is entirely plain that its purpose was to secure to the judgment debtor the means to prosecute his vocation, and thus earn a support for himself and family. In securing to a farmer two oxen, horses, or mules, with their harness, a wagon or cart, his farming implements, and his seed-grain or vegetables for planting, the legislature intended, by this exemption, to enable him to prosecute his business of farming, in the ordinary sense of

that term; and the oxen, horses, or mules which are reserved to him must be such as are suitable and intended for that use. If a contrary construction of this provision were to prevail, a farmer in failing circumstances might invest his whole estate in two valuable stallions or race-horses, worth ten thousand or twenty thousand dollars each, with no intention whatever to use them for farming purposes; and by claiming them as exempt from execution, might defraud his creditors, under color of law, to a large amount. The benevolent design of the statute might thus be perverted to purposes of the grossest fraud.

Judgment affirmed.

EXEMPTION OF HORSES FROM EXECUTION: See the note to Rockwell v. Hubbell's Adm'r, 45 Am. Dec. 254, 255; and see Brusic v. Griffith, 91 Am. Dec. 695, where the section of the California statute under question in the prin cipal case is construed.

SMITH V. WALKER.

[38 CALIFORNIA, 385.]

REFEREE HAS NO POWER TO REVIEW ACTION OF COURT UPON ORDER OF REFERENCE, deciding the principles upon which an account should be taken and settled; his duty is to take the account in pursuance of the principles thus settled.

ERRORS OCCURRING IN DETERMINING PRINCIPLES UPON WHICH ACCOUNT SHOULD BE TAKEN cannot be reviewed by the appellate court, on an application for a new trial, on the ground that the referee adopted and applied those principles in the adjustment of the accounts, but can only be corrected in a direct proceeding for that purpose.

SURVIVING MEMBER OF PARTNERSHIP OWNING REAL PROPERTY IS TRUSTED for the purpose of winding up the affairs of the firm, and must account and pay over to the administrator of the deceased partner the value and profits of the use and occupation thereof. SURVIVING PARTNER MUST ACCOUNT AND PAY OVER TO ADMINISTRATOR O DECEASED PARTNER all the profits of the realty and personalty of the firm which rightfully belong to the estate, although he has purchased the interest of the heirs, or the community interest of the surviving wife of the deceased partner; it is for the probate court to distribute the estate to the parties entitled.

ACTION by the administrator of Wall, against Smith, the surviving partner of the firm of Smith and Wall, for an account of profits. The opinion states the facts.

Sharpstein and Hastings, for the appellant.

Clark, Carpentier, and Leveston, for the respondent.

By Court, SAWYER, C. J. The issues in the case on the complaint and cross-complaint of defendant, Walker, were tried by the court, and the court found, among other things, that plaintiff and one John Wall were partners in the business of farming, under the firm name of Smith and Wall, until the death of the latter. "4. That at the time of the said Wall's death, said Wall and the said plaintiff were tenants in common of a tract of land in Alameda County, of 161.40 acres, and were as partners the owners of said land and a large amount of personal property.. . . 10. That the plaintiff has been in the possession, and had the exclusive use of the 161.40 acres of land mentioned in the complaint, and in the fourth finding of fact, and of all and singular the entire property, real and personal, belonging to the said copartnership of Smith and Wall, since the death of said Wall, and has taken the rents, issues, and profits thereof; that the partnership business had never been settled, nor any account rendered by the surviving partner to the legal representatives of Wall; that defendant, Walker, is the legal representative of Wall, entitled to the possession of his estate, and to have the accounting demanded of plaintiff in his cross-complaint, and the payment of such sums of money as should be found due from the plaintiff as surviving partner to the estate. It was adjudged accordingly, and referred to S. F. Reynolds to take testimony, state the account, and report to the court. In pursuance of the interlocutory judgment, the referee took testimony, stated the account, and reported the sum of $4,890.85 due from Smith to the estate. Plaintiff moved for a new trial of the matters tried by the referee. The court found an error in one item, and required the amount of this item to be remitted by defendant, Walker, which condition being accepted, and the amount remitted, the motion was denied, and plaintiff appeals from the order denying a new trial.” The first point made is, that the referee erred in charging the plaintiff, Smith, with the rents and use of the 161.40 acres of land owned by Smith and Wall, on the ground that one tenant in common is not liable to account to his co-tenant. But the court had already settled the character in which this land was held. It was not for the referee to review the action of the court. His duty was to take the account in pursuance of the principles already settled. If there was any error in these particulars, it occurred in the finding of the court, and no new trial of the issues upon the pleadings had been asked. The court, as we have seen in the fourth finding, found that the

plaintiff and Wall "were as partners owners of said land"; and in the tenth finding, that plaintiff had been "in the possession and had the exclusive use of the 161.40 acres of land mentioned in complaint, and the fourth finding of fact, and all and singular, the entire property, real and personal, belonging to the said copartnership of Smith and Wall, since the death of said Wall, and has taken the rents, issues, and profits thereof." This settled the facts on this point for the purposes of the accounting, and there was nothing left for the referee but to ascertain what the value of the "rents and use" was. Under this finding, the plaintiff stood in the same relation to the realty that he did to the personalty of the firm. He was something more than a mere tenant in common as to both. He was in possession of the whole property of the firm, real and personal, as partnership property, by virtue of his right as surviving partner under section 198 of the Probate Act. He was a trustee for the purposes of winding up the affairs of the firm, and accountable for the profits of the realty, as well as the personalty, or the value of the use and occupation.

It does not fall within the principle of the cases cited with reference to mere tenancies in common. Besides, no question was made upon the correctness of the findings of the court. No new trial was moved for, or question raised, as to the second point. There is no inconsistency between the finding of the court and referee. The court held the action of Mrs. Cochran "utterly null and void," so far as it assumed to affect "heirs and creditors" only. But so far as there was a contract between the plaintiff and Mrs. Cochran, affecting her own individual rights, we see no reason why it is not valid. And so far as the conveyance is concerned, such was the character of the contract. Upon an examination of all the papers executed by the parties plaintiff and Cochran and wife, at that time, it is evident that both Mrs. Cochran and plaintiff only supposed that she had conveyed her own individual interest in the property. She nowhere purports to contract as administratrix. She contracts in her individual character only. In the contract designated "Exhibit A," she contracts individually, and not as administratrix. So, also, in contract designated "Exhibit C," where she recites that she had granted, bargained, and sold "all the right, title, and interest of said Lucy H. Cochran, as the surviving widow of John Wall, deceased, in and to certain lands and premises, consisting of 161.40 acres of land," etc., not as administratrix.

AM. DEC. VOL. XCIX-27