party, who must commence anew from the beginning and go over the same preliminary grounds again."

It will be observed that the court by its decree has eliminated from our consideration in this case any question of contempt, so far as the act of the defendant is concerned, in entering upon the land and re-erecting a house thereupon, and has confined by its decree and order the act of contempt to the declination of defendant to make and execute a relinquishment and deliver the same to the plaintiff. In the light of the decisions of the land-office department we are well satisfied that such a relinquishment so obtained by the direct decree of the court would not be recognized by the government. It does not come within the rule of any case cited by defendant in error. Here we have a statute conferring upon an individual who prosecutes a successful contest the right to enter the land involved. It is declared by all the authorities that this right so acquired is simply a personal right, a preference right, if we may so term it, which that individual and that individual only can utilize. He has no right of transfer. He is not compelled to waive it, and until he does voluntarily waive it it would seem from the above decision that there is no power in any of the courts to compel him to waive or relinquish it. It is true that as it appears from the complaint the plaintiff relied upon the agreement, but it is equally true that he should have taken cognizance of the statute at the time of entering into the agreement and should have informed himself as to the proper mode and method of procedure whereby he could have acquired the title to the land in question. The right so conferred by statute is a right to enter upon and acquire a title to the public domain, a right which, if the party after successfully contesting does not exercise within thirty days, he waives. A personal right he can legally relinquish to the government and to the government only. This being true, how can it be said that a court, where the government is not a party to the proceeding, where the party in whose interests a relinquishment should operate is not instituting the pro

ceedings, acquires jurisdiction to compel a performance of an act that in no sense could be made to operate to the benefit of the party seeking a decree?

This is a

Let us reason a little concerning this matter. special statute conferring a special privilege, which privilege accrues providing the party initiates a contest, pays the fees necessary to the prosecution of the contest and successfully prosecutes the contest; a privilege to enter upon the public domain which by reason of the successful contest has again become public land and subject to entry; a right which is clearly a personal right; a right which the department by its decisions has determined cannot be transferred; a right which cannot be relinquished in the interests of any third party. In other words, it is a prosecution initiated by an individual, prosecuted by the consent of the government for which the government agrees that the party successfully contesting shall acquire a certain privilege. It goes no further. It has never sanctioned in any decision that we have been able to find, the right of an individual to relinquish a claim which had accrued to him under the laws of the United States, for the benefit of any individual; on the contrary it has continuously held that by such a relinquishment the United States acquires the right to classify the land relinquished as a part of the public domain and open it to any and all bona fide claimants.

The complaint in this case alleges that this was an agreement between the plaintiff and the defendant whereby the defendant, upon certain conditions being performed by the plaintiff, was to initiate and prosecute a contest, and that, when that contest was successfully prosecuted and she had acquired the right to enter upon the land under the statute, then she would simply waive that right or relinquish the same to the government of the United States and permit the plaintiff to enter upon and acquire the title to the same. It is but an indirect way of saying that she could by that agreement relinquish her right of entry to plaintiff himself; and certainly it appears from the record in this case that the

court has gone thus far by its decree in conformity with the prayer of the complaint, by decreeing that the defendant must execute the relinquishment and deliver the same to the plaintiff, who, when it may suit his convenience, will file the same in the local land-office, and thereupon initiate a homestead right by filing, in his own name or that of another person, upon the land in question. It requires a remarkable stretch of the imagination, and a most extraordinary liberality of the construction of the statute in question, and a wide departure from the universally accepted ruling of the department, to admit that such a contract and such a decree could be enforced and upheld.

Counsel for defendant in error insisted that all that was required of the plaintiff in error was, that having successfully contested the homestead entry of Bernard Lafler, she should do nothing. But she did do something. She went on and made an entry. True it was in violation of her agreement, yet it was an entry made by virtue of a statute conferring upon her the personal privilege of so doing. A privilege that she could not transfer, a privilege that she could not sell, a privilege that she could not agree to sell, and after having so entered the land the court by its decree in this case says you must make that relinquishment, you must deliver it to the plaintiff, you must keep off the land and surrender what improvements, or practically surrender what improvements and what rights have accrued to you by virtue of the land laws of the United States. We are satisfied that the court had no jurisdiction to enter the decree, and that the complaint does not state facts sufficient to constitute a cause of action.

It is true there is no express prohibition of alienation of this preference, right or privilege, yet we are satisfied that the court should refuse to enforce such a contract, not from any regard to the defendant in this case, but from motives of public policy, and whether the contract be absolutely void or not, it is so clearly against the will and policy of the gov

ernment that a court of equity ought not to attempt to enforce it.

The judgment and decree of the court below must be reversed, and the cause remanded with directions to dismiss the complaint and discharge the defendant.

Reversed.

JOHN SAVARD, APPELLANT, v. J. C. HERBERT, APPELLEE.

1. WHEN PLAINTIFF MAY TESTIFY THOUGH ADVERSE PARTY DEFENDS AS TRUSTEE.-The plaintiff entered into a contract to perform certain services for a partnership firm composed of two persons, both of whom were present on the occasion, whereby it was agreed that he was to receive a certain compensation. He subsequently brought suit for the compensation, but before trial one of the partners died. This event did not render the plaintiff incompetent to testify to the making of the contract, under the statute, although the other partner defended the action for himself, and as trustee of the heirs at law and of the administratrix of the estate of the deceased partner.

2. LIABILITY FOR DEBTS OF A COPARTNERSHIP.-A partnership firm, and not the estate of a deceased partner, is primarily responsible for the debts of the partnership; and while a surviving partner is entitled to defend suits brought against the firm, he is not entitled to defend in the character of trustee of the heirs at law, or trustee of the administrator of the estate of the deceased partner.

Appeal from District Court of Arapahoe County.

Mr. HENRY C. CHARPIOT and Mr. W. M. MAGUIRE, for appellant.

Mr. E. W. WAYBRIGHT, for appellee.

RICHMOND, P. J. This action was instituted by J. C. Herbert, plaintiff below, against Joseph Roy and John Savard, copartners as Roy & Savard. Prior to the rendition of

1 445 25c 238

judgment Joseph Roy died and John Savard defended the suit for himself, and as trustee of the heirs at law, and of the administratrix of the estate of Joseph Roy. The complaint alleges that on May 22, 1889, plaintiff made a contract with the defendants Roy & Savard, to act as their agent in the sale of stone, for which he was to receive as his compensation ten per cent of the proceeds of all stone sold or procured to be sold by him south of Castle Rock in the state of Colorado. Plaintiff asks for judgment in the sum of $450.

Answer was filed, admitting the copartnership and the employment of the plaintiff by the defendant, and specifically denying each and every other allegation in the complaint. And further alleges that there was a settlement of accounts between the parties, at which time there was found due to plaintiff the sum of $54.33, which sum was paid to the attorney of plaintiff, and accepted in full satisfaction of all claims and demands against the defendants.

The cause was tried to a jury, and resulted in a judgment in favor of plaintiff for the sum of $203.18. Motion for a new trial was overruled and judgment entered upon the verdict. To reverse which judgment this appeal is prosecuted.

During the trial of the cause the plaintiff was permitted to testify to the contract entered into between him and the firm when both members of the firm were present. It is contended that this testimony was inadmissible, for the reason that John Savard was defending not only as the surviving partner of the firm of Roy & Savard, but also as trustee of the heirs at law and the administratrix of the estate of said Joseph Roy, and consequently any testimony relative to conversations tending to establish a contract wherein Roy was a party was inadmissible under the provisions of the statute.

The sections of the statute referred to read as follows:— Section 3641, Gen. Stats., p. 1060: "That no party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as