OPINION ON THE MERITS.
Scott, J.This was an action brought by appellants against the sheriff of Chehalis county and his bondsmen, for failure to proceed under certain executions issued upon judgments in favor of plaintiffs against J. D. Mace and Harvey C. Minkler, who were partners doing business under the firm name of J. D. Mace & Go.
It appears that on the 30th day of September, 1884, I. K. Dawson commenced suit against said J. D. Mace individually, and therein on said date attached certain property belonging to said firm. Subsequently the plaintiffs herein commenced suit against the firm and obtained the judgments upon which said executions were issued. It appears that writs of attachment were first issued in said actions and were levied upon the same property seized in the suit begun by Dawson, but were subsequent thereto, and also by the sheriff’s return it appears that such levies for plaintiffs were made subject to the seizure for Dawson. Judgment was rendered in the suit brought by Dawson against J. D. Mace, and execution issued therein and levied upon the property previously attached, but before a sale the plaintiffs obtained judgments in their actions and had executions issued to the sheriff. The sheriff sold the goods under the prior execution, and Dawson received the proceeds thereof, whereupon plaintiffs brought this action upon his official bond, claiming said goods should have been sold under their writs for their benefit.
As one of his defences thereto, the sheriff alleged that he demanded an indemnifying bond of plaintiffs, which they *96refused to give, and also that tbe plaintiffs were bound to tender bim bis fees for serving tbeir writs, although' be made no demand tberefor, and as they did not do so be claimed tbe action could not be maintained against him. See code, § 2772.
Tbe court in effect instructed tbe jury that it was incumbent on plaintiffs to tender tbe sheriff his fees in tbe first instance regardless of a demand, and § 2772 would seem to bear no other interpretation; but we bold it should be construed in connection with § 2099 of tbe code upon the same subject-matter. We see no reason why § 2099 should not have equal force with tbe section first cited; either statute literally interpreted conflicts with tbe other, and as some violence must be done to tbe language of one of them, we must give force to that construction which accords with good sense and justice. Therefore, we bold that the instruction was erroneous and that it was not necessary to tender tbe sheriff bis fees without any demand from bim tberefor.
But are plaintiffs in a position to take advantage of this error; were they injured thereby? Dawson bad a prior levy upon tbe property. It is true bis attachment and execution were only against one member of tbe firm, and tbe sheriff seized and sold tbe firm’s goods thereunder. In such a case tbe sheriff would ordinarily be justified in selling only tbe interest of the defendant partner therein, not the entire property. But there is nothing to show that tbe partner who was not a defendant in tbe Dawson suit objected in any way to tbe sheriff’s action, and for aught that appears, both members of tbe firm may have consented that the partnership property be taken by tbe sheriff to satisfy tbe individual debt. In such a case, in tbe absence of any fraud, tbe property might have become divested of its partnership character by virtue of the levy. It was incumbent on plaintiffs, if they desired to assert a superior claim to tbe firm’s property over Dawson, to have taken *97some steps to have their rights as against him adjudicated. They could not impose upon the sheriff the burden of deciding upon the legality of their respective claims. They did not apply to the court in any manner to have the Dawson levy set aside or to have their debt first paid out of the partnership property, and we must hold that their ease against the sheriff and his bondsmen, after giving the most liberal intendments to their pleadings and the testimony, was insufficient to support a verdict, had they obtained one, and, consequently, that they were not prejudiced by the erroneous instruction.
The judgment of the court below is therefore affirmed.
Dunbar, J., concurs.