and also that of McIntyre. The sheriff testified, in part, as follows:

"I made a sale of the ore on the platform and also that in the shed. I do not think that Mr. Lawrence was present. I do not think that it was physically possible for me to make a delivery of the ore at the time of the sale. I would have had to get a team and horse. I might have done it in time. The weight of the ore in the shed was about 40 tons. The sale took place at Keddie, near the depot. . . . Mr. Nutting was there at the time. He was there as attorney for the plaintiffs. No demand was made by him for actual delivery. I made the sale. The money was turned over. We came back to town, and I gave him a certificate of sale. Mr. Nutting was present at that time, and Mr. Dickey. At that time there was no objection made, nor any demand for actual delivery. That property is not in my possession at the present time. I have not had control nor possession of the property since the sale. . . . I do not think that he [L. P. McIntyre] ever delivered it over to the purchasers, because Lawrence had a claim against it, and would not let it go. Lawrence never gave me any written claim. . . I do not know what became of the ore in Lawrence's shed. I did not have anything to do with it after I sold it. I discharged McIntyre at the time of the sale." The sheriff further testified that, while in the first instance Lawrence claimed that he had a lien on the ore in his shed for services performed in hauling said ore from the mine, he later notified the sheriff to remove it from the shed, as he was in need of the use of the shed for other purposes and did not want the ore to be kept therein any longer. This conversation (said the sheriff) occurred a short time prior to the sale under the execution. At that time Lawrence said nothing about claiming a lien on the ore. The reason the sheriff gave for not removing the ore from Lawrence's shed was that a Mr. Nutting, who was also an attorney for the plaintiffs, advised him to do nothing in that regard "until I heard from him."

L. P. McIntyre, the deputy sheriff, who was made keeper of the attached property by the defendant sheriff, testified: "I was put in charge of the ore. I was in charge of it from the day of the attachment until the day of the sale. That was from somewhere in the latter part of July until the first part of January, or the latter part of December. I was there at

the time of the sale. Mr. Dickey, Mr. Braden, and Mr. Nutting were there. There was no demand made by Mr. Dickey or Mr. Nutting on Mr. Braden that manual delivery be made of the ore in Lawrence's shed. I never heard them make any demand for any such thing. . . . I considered I was discharged from custody when the sale of the ore was made. I did not regard it as the proper thing to deliver the ore to the purchasers. I would not deliver that ore to anyone."

It appears that the plaintiffs, neither at the time of the sale nor when the sheriff delivered to them the certificate of sale, demanded of that officer manual delivery of the ore. Indeed, it is clear from the evidence that they were perfectly satisfied with the situation after the sheriff's certificate was delivered to them until the time when Lawrence refused to permit them to take or remove the portion of the ore purchased by them which was at all times, from the date of the levying of the writ of attachment, situated in his (Lawrence's) shed.

The foregoing embraces a statement of the facts sufficient for the purposes of the decision of the points presented.

The contention of the appellants is that it was the duty of the sheriff to deliver the ore to them by manual tradition, while the respondents maintain that the property sold is of a character which rendered manual delivery thereof impossible or, at least, impracticable, and that, therefore, the mere execution and delivery by the sheriff to the appellants of a certificate of sale was as far as that officer could go, or, in fact, that could practicably be done by him with personal property of the nature of that which was the subject of the sale.

Section 698 of the Code of Civil Procedure requires an officer making a sale of personal property under an execution, where the same is capable of manual delivery, to deliver such property to the purchaser upon the payment of the purchase money by the latter. If desired, the officer must also execute and deliver to the purchaser a certificate of sale. Where, however, personal property so sold is not capable of manual delivery, the officer making the sale is, by the terms of section 699 of the same code, required only to execute and deliver to the purchaser, upon payment of the purchase money by the latter, a certificate of sale. In either case, the certificate so executed and delivered conveys all the right the debtor had in such property on the day the execution or attachment was levied.

1. It has been held that where personal property levied upon by attachment is of such a ponderable character as that its actual possession cannot be taken and its removal for that purpose effected by the officer levying the writ without injury to such property or great expense, the taking of actual possession by the officer or its removal to effectuate such possession may be dispensed with. It has frequently been held that "with regard to heavy and unmanageable articles there seems to be no necessity for an actual handling to constitute an attachment.' (See cases and other authorities cited in footnote of Hollister v. Goodale, 21 Am. Dec. 680.) For further illustration, it has been held, under statutes similar to our own, that a stack of grain may be levied upon by going to it and making a formal levy, and forbidding the defendant from touching it. (Gallagher v. Bishop, 15 Wis. 276.) Again, a similar levy upon hewn stones (Hemmenway v. Wheeler, 14 Pick. (Mass.) 408, [25 Am. Dec. 411]; Polley v. Lenox Iron Works, 4 Allen (Mass.), 329); on iron ore (Mills v. Camp, 14 Conn. 219, [36 Am. Dec. 488]); and on mill logs (Bicknell v. Trickey, 34 Me. 273), has been upheld as sufficient.

In the case at bar, the validity of the seizure by attachment is not challenged. Nor is it questioned that the sheriff, upon levying the writ of attachment, took legal possession of the ore and continued in such possession to the time of the sale of the property under the writ of execution. Indeed, the appellants themselves insist throughout their whole argument that the sheriff took and had such possession. But, as has been observed, they say that upon the sale being made to them under the writ of execution, it was the legal duty of the sheriff to have made an actual physical delivery of the ore into their possession. We believe the property so sold to them was of a character that manual delivery thereof could not conveniently and without great expense be made by the sheriff. That officer could not, nor was it expected of him to attempt so impracticable and, indeed, so preposterous an act, to deliver the ore to the plaintiffs piece by piece. The most he could have done would have been to have loaded the ore on a wagon or truck and by such means have hauled or caused it to be hauled and so delivered to some place or point designated by the plaintiffs. He was not asked by the plaintiffs to do this, nor do we think he was required to do it, for, as stated, it would obviously have involved great expense to do so, thus

adding to the costs and so creating an additional burden which ultimately would fall on the shoulders of the debtor. Having made the sale to the plaintiffs and delivered to them the certificate of sale, the latter thereby acquired all the right the debtor had in the ore. They knew where the ore was situated and it was up to them to take possession of it. As to the claim that Lawrence made to a lien on the ore in his shed, it is to be remarked that the plaintiffs were at all times, from the time the writ of attachment was levied on the ore, aware of said claim. With such knowledge they accepted the certificate of sale without then making a demand on the sheriff for a manual delivery to them of the ore, and only made such demand after Lawrence had refused to deliver to them the ore that was in his shed at the time of the levy. [1] Obviously, it was not incumbent on the sheriff as a legal duty to settle any disputes which might after the sale and the delivery by him to the plaintiffs of the certificate of sale arise between. plaintiffs and third parties as to the right to the possession of the property. [2] But however this all may be, it is, as above declared, clear to our minds that the property is of that character and of such bulk in quantity that it was not capable of manual delivery, and that the sheriff, in the sale thereof under the execution sale, did all that the statute required of him by making symbolical delivery thereof to the plaintiffs. Indeed, we can conceive of no case where section 699 of the Code of Civil Procedure would be more applicable than it is to the facts of this case.

[3] 2. The proposition that Lawrence was the custodian of the ore situated in his shed as the appointee and agent of the sheriff is not supported either by the evidence or the findings. McIntyre, the deputy sheriff, was by the sheriff placed in charge of all the ore seized by the latter under the writ of attachment and remained in the capacity of keeper of the property until it was sold to satisfy the judgment against Adams. rence was allowed to remain there, but it was at all times in the legal custody of the sheriff through his keeper. There is word of testimony that Lawrence acted or was ever authorized to act as custodian of the ore for the sheriff.

not a

The

It is true that the ore attached in the shed of Law

Case of Aigeltinger v. Whelan, 133 Cal. 110, [65 Pac.

125], cited by appellants, in its facts bears no resemblance to this case. There the sheriff levied an attachment upon certain

personal property, and placed the same in a warehouse in charge of a keeper. Nearly two years later judgment was given in favor of the defendants and against the plaintiff in the action in which the writ of attachment was issued. Thereupon one of the defendants demanded of the sheriff that he return the property taken by him under the attachment, but the sheriff answered that he did not have the property, but that he had stored it in a warehouse and that the warehouseman had sold it for storage. The sheriff made no claim of lien on the property for any costs, charges, or keeper's fees. All these facts were proved at the trial, and it was held by the supreme court, in sustaining the judgment of the court below against. the sheriff, that the latter, being charged with the duty of safely keeping the seized property and restoring the same to the defendant on his recovering judgment (Code Civ. Proc., secs. 540, 553), violated the duty so enjoined upon him by allowing the property to be sold or so disposed of. Thus it will readily be perceived that that case has no pertinent application to the facts of the instant case.

Our conclusion is that the plaintiffs have failed to make out a case against the sheriff, and the judgment is accordingly affirmed.

Buck, P. J., pro tem., and Burnett, J., concurred..

[Crim. No. 843. First Appellate District, Division One.-March 23, 1919.]

THE PEOPLE, Respondent, v. SAMUEL M. PREWETT, Appellant.

[1] CRIMINAL LAW-LIMITATION OF ARGUMENT-DISCRETION.-Under the circumstances in this case, the action of the trial court in limiting the argument of the defendant's counsel to the jury was no abuse of discretion.

[2] ID.-INSTRUCTIONS-PENALTIES-ERROR.-In a prosecution for murder, the giving of instructions relating to punishment for murder in the first degree, for murder in the second degree, and for manslaughter, also relating to indeterminate sentences, although not to be commended, does not constitute prejudicial error where the