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the said De Graaf and Wilkins from the office and position of trustees under said mortgage and deed of trust, and constituted and appointed the plaintiffs, Louis H. Meyer and George A. Lowe, to be and act as trustees under the said mortgage or deed of trust in the place and stead of De Graaf and Wilkins, removed as aforesaid, to take and hold the estate and trusts thereby created, declared or conferred, upon the like terms and conditions, and subject to the same rights and powers, duties and obligations as by said deed of trust or mortgage were conferred upon the persons named as trustees, and in all things to fully execute its trusts.

It also appears by the record, that pursuant to the judgment in this case the plaintiffs Meyer and Lowe, trustees, on the 12th day of June, 1882, sold all the property in this cause decreed to be sold, for the sum of two hundred and fifty thousand dollars, which was paid partly in cash and the remainder in bonds and coupons, pursuant to the decree of said court.

On the 18th day of September, 1882, Lewis M. Price comes into court by his attorneys and files a paper which in the record is called a petition, although it contains no prayer for relief, or any order or decree or judgment of the court, in which he states that he is the duly appointed and acting receiver of the Pacific National Bank of Boston, and that as such receiver he is the legal custodian and possessor of the property of said bank. That among the assets of said bank are ninety-nine first mortgage bonds of the Utah and Pleasant Valley Railway Company, of the denomination of $1,000 each, dated September 14, 1878, a part of the series of bonds described in, and secured by the deed of trust or mortgage, for the foreclosure of which this suit is brought.

That De Graaf and Wilkins, the original trustees named in the mortgage or deed of trust, were, on the 31st day of August, 1881, without notice and without cause, removed from said trust by Sparkman, who at the time claimed to be the owner and holder of a majority of the bonds, and on the same day he appointed and constituted the plaintiffs Meyer and Lowe to thereafter be and act as trustees under said mortgage or deed of trust, in the place and stead of De Graaf and Wilkins, theretofore removed.

He further alleges that Sparkman, in June and August, 1881, recorded judgments against the Utah and Pleasant Valley Railway Company, in two suits, particularly described, for the aggregate sum of $153,037.40; that in November, 1881, Sparkman brought suit against the defendant Utah and Pleasant Valley Railway Company, upon these judgments, and against Thomas C. Platt, as the holder of the legal title to certain coal lands belonging to the defendants, and in said mortgage and deed of trust theretofore conveyed to trustees as part security for said bonds; and by said lastnamed suit sought to have said coal lands sold and the proceeds thereof applied to satisfying the judgments last mentioned; that judgment by default was rendered, and plaintiff Lowe was by the court appointed receiver of the coal lands and property, with order

No. 14-7.

to sell the same, who, on the 11th day of July, 1882, sold said coal lands for $40,000, which was applied in part satisfaction of the Sparkman judgments.

Price further alleges that no defense was made to the bill of foreclosure, but default was made and judgment and decree was taken in accordance with the prayer of the complaint.

That on the twelfth day of June, 1882, in pursuance of said decree, said railroad property and coal lands were sold to Sparkman for the sum of $250,000, and that said property was purchased by Sparkman for and on behalf of the Denver and Rio Grande Railroad Company, which is now and ever since has been in the possession of same, using and operating it, and applying the proceeds thereof to its own use.

That George A. Lowe on the thirty-first day of August, 1881, at the time he was appointed trustee under said mortgage or trust deed, was, and ever since has been, and is now a stockholder, vicepresident and director in the Denver and Rio Grande Railway Company, and its most active promoter in Utah. That the price paid for the railway franchise, property and coal lands was grossly inadequate, and that said property is worth at least double that sum, which was well known to Lowe and Sparkman and the Denver and Rio Grande railway company at the time of sale.

Price further alleges on his information and belief that the said plaintiffs have not proceeded in the execution of their trust in such a manner as to be most advantageous to the holders of said bonds, but on the contrary avers that for the purpose of advancing the interests of themselves, the said Sparkman and the Denver and Rio Grande Western Railway Company, they have conspired and colluded with said Sparkman and the officers and agents of said railway company, and the plaintiffs herein, to deplete the property of the said defendant, covered by the said mortgage, by subjecting a portion thereof, to wit, the coal lands aforesaid, to the payment of the said judgments in favor of Sparkman, in fraud of the rights of this petitioner, as such receiver, and the other holders of the said bonds not included in said scheme." That this petitioner resides in Boston, in the state of Massachusetts, and had no knowledge or information of the institution of this action until after the sale of the said property had taken place. And he further says that in case a resale is ordered he will bid or cause to be bidden for the said property the sum of $500,000. He further says that he is informed and believes and alleges the truth to be that John Sharp, of Salt Lake City, in said territory, is willing to and will in the event of a resale bid the sum last aforesaid for said property.

Upon this paper called a petition, the records and papers on file in this action, the report of sale, the papers on file in, and the records of the court in the cases of Sparkman v. Utah and Pleasant Valley Railway Company and Thomas C. Platt, a motion was made. in behalf of said Lewis M. Price, receiver, etc., to vacate and set aside the sale of the property of the defendant made by the plaintiffs,

Meyer and Lowe, on the twelfth day of June, 1882, which motion was overruled, and the sale was confirmed by the court, on motion of the plaintiffs, per which order and decision of the court, Price appealed to this court.

The counsel for appellant, with much severity, criticise the displacement of said De Graaf and Wilkins, the original trustees named in the deed of trust, and the appointment of Meyer and Lowe in their place and stead. But the court in its decree specifically decrees "that the plaintiffs, Lewis H. Meyer and George A. Lowe, since the thirty-first day of August, 1881, have been and still are, the lawfully constituted trustees of said deed of trust, and vested as such trustees and upon the trusts therein mentioned, with the title to the properties, rights and franchises described in said deed of trust, and as such trustees are also vested with all the rights and powers granted to, and subject to the duties imposed on the original trustees and their successors, by said deed of trust."

In light of this extract from the decree or judgment, it is clear that the fault in this request, if any there be, inheres in the decree of the court, and not in the sale under such decree.

Counsel also criticise the transactions of the trustees in regard to the coal lands, claiming that it was their duty to see that the coal lands actually acquired by the defendant, as well as the net profits arising from working them, should be applied according to the terms of the mortgage. But it will be seen by examination of the notice and report of sale under the decree in this cause, that the sale was made in all respects pursuant to said decree; and that all the interest of the defendants in the coal lands was so sold, and therefore if any fault was committed as to this particular property, it inhered in the decree of the court, and not in the sale. It is true that by the decree of the court in the case of Sparkman v. The Pleasant Valley Railroad Company et al., the court rendered judgment against the railroad company for the sale of its interest in the coal lands. But if this decree was wrong (upon which we express no opinion) the wrong was in the judgment of the court, and not in making a sale under it. We think that neither that nor any of the other matters complained of by the appellant as to any decree of the court, could be remedied by a motion to set aside the sale made under and in pursuance of the decree of foreclosure, which is final until annulled or reversed: Bullard v. Greene, 10 Mich. 268; Crawford v. Fuller, 35 Mich. 57. We are therefore not required to examine any question growing out of the decisions of the court, other than the order of the court overruling the motion to vacate and set aside the sale for errors committed in executing the decree.

Errors in the decree, or committed by the court anterior to it, are all matters which were duly considered by the court, and a motion to set aside a sale made under the decree is not a correct way of reviewing the proceedings of the court, as there is no claim that the judgment and decree is invalid.

The district court having decided that Meyer and Lowe were trustees of the mortgage, they are to be regarded as such in all proceedings upon the motion; they are the legal representatives of all the bondholders, no one of whom is permitted by motion to interfere with the proceedings of the court. In Shaw v. Railroad Company, 100 U. S., C. J. Waite, in the opinion of the court, said: "The trustee of a railroad mortgage represents the bondholders in all legal proceedings carried on by him affecting his trust, to which they are not actual parties, and whatever binds him, if he acts in good faith, binds them." If the trustees combined with others to defraud the bondholders, or any of them, or if they did not act in the good faith required of them, a remedy might, doubtless, be had in a suit properly brought for that purpose, making all persons interested parties by proving the fraud in a trial on issues correctly framed; but a mere motion to vacate and set aside a sale, by a person not a party to the record, is an improper and inadequate mode of trying such important matters as are involved in these proceedings: Ward v. Clark, 6 Wis. 509.

We are of the opinion that the order of the district court, in overruling the motion to vacate and set aside the sale, and in sustaining the motion to confirm the sale should be, and is, affirmed. HUNTER, C. J., and EMERSON, J., concurred.

PEOPLE v. HILL.

Filed February 22, 1884.

APPEAL FROM ORDER SUSTAINING A DEMURRER TO AN INDICTMENT.-An appeal lies o the part of the prosecution from an order sustaining a demurrer to an indictment when it is further ordered that the defendant be held in custody to await the action of the next grand jury.

ERRONEOUS REFERENCE IN STATUTE.-Subd. 2 of sec. 192 of the criminal practice act, providing that a defendant may demur to an indictment when it fails to comply with the requirements of sec. 152, will be construed as referring to sec. 151 when it is manifest that such was the legislative intent, and that the reference to sec. 152 was evidently a mistake. A DEMURRER TO AN INDICTMENT IS SUFFICIENT that states that the same does not substantially conform to the requirements of sec. 151 of the criminal practice act, and under such allegation specifies that two of the essentials mentioned in sec. 151, to wit, certainty as to the offense charged and the particular circumstances, are wanting.

INDICTMENT FOR EMBEZZLEMENT BY A BAILEE.-The sufficiency of an indictment is to be tested by the requirements of the criminal practice act, and not by the rules of the common law. Under such act an indictment for embezzlement by a bailee is sufficient, which charges that the defendant, on a day and at a place certain, "having been intrusted as bailee by one Hill with two certificates of deposit of money in a certain bank, to wit, one for the sum of five thousand dollars and the other for the sum of four thousand dollars, both payable to the order of and both being the property of said Hill, did collect and receive thereon and therefor from said bank, and as bailee, was by said bank and said Hill intrusted to carry and convey from said bank to said Hill money to the amount and value of nine thousand dollars, proceeds of said two certificates; and said defendant being so as aforesaid intrusted as bailee with said certificates and said money to said amount of nine thousand dollars, the property of said Hill, afterward on, etc., at, etc., did fraudulently and feloniously convert the same and the proceeds thereof to his own use, contrary," etc. Such indictment does not charge more than one offense, and need not specify the nature of the bailment.

DISCHARGE OF PRISONER-RESUBMISSION TO GRAND JURY-APPEAL.-Neither an order refusing to discharge a prisoner, after an order sustaining his demurrer to the indictment, nor an order resubmitting his case to the grand jury, are appealable.

RESUBMISSION TO GRAND JURY, CONSTRUCTION OF SECTION AUTHORIZING.-Sec. 197 of the criminal practice act authorizing a resubmission of the case "to the same or the next grand jury," after a demurrer to an indictment has been sustained, does not limit such resubmission to the same grand jury that found the indictment, nor to the one immediately succeeding. Such resubmission may be made to the first grand jury that meets after the demurrer is allowed, although one or more grand juries have met and been discharged between then and the time when the indictment was found.

APPEAL from certain orders of the third district court. The opinion states the facts.

Zera Snow and Arthur Brown, for the people.

Sutherland & McBride, for the defendant.

EMERSON, J. The defendant was arraigned in the third district court upon an indictment for embezzlement, the charging part of which is as follows: The said Alexander S. Hill, on the eighth day of March, A. D. eighteen hundred and eighty-three, at the county of Salt Lake, in said territory of Utah, having been intrusted as bailee by one Lucy J. Hill with two certificates of deposit of money in the Deseret National Bank, to wit, one for the sum of five thousand dollars and the other for the sum of four thousand dollars, both payable to the order of, and both being the property of, said Lucy J. Hill, did collect and receive thereon and therefor, from said bank, and as bailee was, by said bank and said Lucy J. Hill, intrusted to carry and convey from said bank to said Lucy J. Hill, within said. county, money to the amount and value of nine thousand dollars, proceeds of said two certificates, an exact description of which is to the jury unknown; and said Alexander S. Hill being so, as aforesaid, intrusted as bailee with said certificates and said money, to said amount of $9,000, the property of said Lucy J. Hill, afterwards, on the 12th day of March, 1883, at said county of Salt Lake, fraudulently and feloniously did convert the same, and the proceeds thereof, to his own use, contrary, etc.

To this indictment the defendant interposed a demurrer, upon the following grounds: first, on the ground that said indictment does not substantially conform to the requirements of secs. 150 and 151 of the code of procedure in criminal cases, as to the offense charged and the particular circumstances; second, that more than one offense is charged in the said indictment.

The demurrer was sustained, to which ruling the prosecution excepted. Thereupon the counsel for the defendant moved for an order discharging the defendant from custody, and the prosecution moved "for an order of resubmission to the grand jury, as provided by statute." The defendant's motion was denied and that of the prosecution granted, whereupon the following order was entered: "And it is further ordered and adjudged by the court that the case be resubmitted to the grand jury of this court, at the next sitting thereof, for further consideration and action by such grand jury, and that in the mean time the said Alexander S. Hill be and remain in the custody of the United States marshal." To all of which the defendant duly excepted.

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