Volume 12 — Utah Reports

Hon. S. A. Merritt, Judge. Action by tbe Brigham Young Trust Company against Henry Wagener for rent. From a judgment for plaintiff, und from an order overruling bis motion for a new’ trial, defendant appeals. This case turns upon the doctrine of equitable estoppel or estoppel in pais arising from conduct and from election. On the 1st day of May,' 1892, defendant was in default in the payment of rent in the sum of $480.

Hon. James A. Miner, Judge. Action by the Ogden State Bank against William Barker and others to set aside a certain voluntary conveyance as fraudulent. From a judgment - for plaintiff and from an order overruling their motion for a new trial, defendants appeal. .

Hon. James A. Miner, Judge. Action by the Ogden State Bank against William Barker and others to set aside a voluntary conveyance as being in fraud of plaintiff, and also to set aside a mortgage made by Barker and others to defendant Brough. From a judgment refusing to set aside the mortgage, plaintiff appeals.

Hon. H. W. Smith, Judge. Action by James Chapman against the Southern Pacific -Company, a corporation, for personal injuries caused by defendant’s negligence. From a judgment for plaintiff, -defendant appeals.

Appeal irom tbe District Court of the Fourth Judicial Dtstrict.- Hon. H. W. Smith, Judge. Action by A. E. Barnes against M. D. Cox for the possession of certain lands and for damages for unlawful •detainer. From a judgment for plaintiff, defendant appeals. The complaint need not allege that plaintiff is entitled to tbe possession of the premises, although such an allegation can be gathered from the complaint.

' Hon. H. W. Smith, Judge. Action by Philip T. Cook against the Bullion-Beck & Champion Mining Company for personal injuries caused by defendant’s negligence. From a judgment for plaintiff, defendant appeals. Does tbe evidence disclose any -negligence on tbe part of tbe company? Was Cook guilty of- contributory negligence?

<p>1. Appeal. — Sufficiency of Cohplant. — Waiver of Objections.— Objection to the sufficiency of a complaint may be raised for the first time on appeal to the Supreme Court.</p> <p>2. Id. — Id.—Id.—-The complaint alleged that defendant represented to plaintiff that he was agent of the Probate Oourt for the collection of fees and expenses for procuring deeds'to certain lots in Bountiful Townsite; that the amount required was $42 per lot; that plaintiff was entitled to deeds for four lots and paid defendant §168; that defendant paid the Probate Court §20, returned to plaintiff §18 and retained $120, which he refuses to return. Held, that the complaint did not state facts ' sufficient to constitute a cause of action, inasmuch as there is no allegation that the price of the lots was the only expense involved and necessarily incurred, nor that defendant was entitled to no compensation for his services, nor that he failed to procure and deliver deeds as he had contracted to do, nor any other facts showing an improper or wrongful disposition or appropriation of the balance of the money defendant had received, nor that plaintiff is entitled to recover the same.</p> <p>•'3. Pleading-. — Presumptions Against Pleader. — A pleader is presumed to state his case as strongly as, the facts will permit, and his case must be construed strongly against him. No intendments or presumptions can be indulged to help out a defective pleading.</p> <p>4. Charge to Jury. — Applicability to Issue. — Reversible Error. — An instruction not responsive to any issue in the case, is reversible error, in that, it is calculated to mislead the jury and cause them improperly to consider, in making up their verdict, an issue not in the case.</p>

Hon. H. W. Smith, Judge. Action by Sarah E. Ohipman, an infant, by John I. Ohipman, her guardian ad litem, against the Union Pacific Railway Company and 'the Utah Northern & Oregon Short-Line Railway Company. From a judgment for plaintiff, ■defendants appeal.

Hon. H. W. Smith, Judge. B. H. Jones was appointed both general and special administrator of the estate of Louis H. Jones, deceased. From the orders of appointment and various other orders, Ricy H. Jones appeals to the district court. Afterwards Ricy H. Jones and Ricy D. Jones were appointed special administrators of the same estate, and B. H. Jones appealed to the district court. Each filed motions to dismiss the appeal of the other.

■. Appeal from tbe District Court of the Fourth Judicial District. Hon. H. W. Smith, Judge. Action.by Frank L. Thirkfield against the Mountain View Cemetery Association for damages for wilful trespass.

Hon. James A. Miner, Judge.- Action by the First National Bank of Hailey, Idaho, against H. D. and J. S. Lewis, as executors of the estate of J. S. Lewis, deceased, and others, on a judgment obtained in Idaho. There was a judgment for plaintiff, and, from an order granting a new trial, it appeals. It will be seen that the judgment 'which was vacated by the order granting a new trial, was a judgment against the defendants personally, and is not a judgment against the estate.

Hon. S. A. Merritt, Judge. Action by Joseph Krantz against the Eio Grande Western Eaihvay Company for damages for a wilful and malicious assault committed by defendant’s servants. The court withdrew the issues from the jury upon the first count and directed a verdict for defendant. From a judgment entered upon the verdict and from the order overruling plaintiff’s motion for a new trial, he appeals. Affirmed.

Hon. H. W. Smith, Judge. Action' by the United States of America against Lewis A. Scott Elliot for unlawfully enclosing public lands. From a judgment for defendant in conformity with the decision and direction of the Supreme Court on a former appeal (7 Utah, 389) plaintiff appeals. In this cause the findings show that the land of which the defendant is accused of enclosing contrary to the fencing law, is situated upon a school section.

Hon. H. W. Smith, Judge. Mandamus by Sarab E. Anderson to compel Charles D. Tyree, deputy registrar of voters, to register petitioner as a legal voter for the November, 1895,… Held: would have no right or power to officer the new state by officers of its choice by providing the qualifications of voters for those officers. To admit the right of Congress to do this, and to force npon the new-state such officers, would be at once a violation of the rights of the state.

Hon. H. W. Smith, Judge. Action by the First National Bank of Nephi, a corporation, against Charles Foote and W. A. C. Bryan, appellants,… Held: That it mattered not how the knowledge is obtained by the officer of the bank, whether while acting as agent of the bank or in any other capacity; the bank is still chargeable with the knowledge; and on page 293, the court, by inference, holds that even in a case where the cashier obtained a note for his own benefit, if he should…

Hon. George W. Bartch, Judge. Action in claim and delivery by Thomas L. Leedom, Charles L. Leedom, Samuel Thomas and James W. Lynd, co-partners, etc., against the Earls Furniture and Carpet Company, a corporation, and I. A. Benton, United States marshal for Utah territory.

Hon. George W- Bartch, Judge. Elmer E. Eitohie was convicted of criminal libel and' fined $100 and costs. From the judgment and order overruling his motion for a new trial he appeals. The indictment contains no allegations by way of inducement of the circumstances surrounding the publication of the libel, and emplo3unent of McGurrin, or any other extrinsic facts to indicate or give meaning to the several phrases contained in the circular.

Hon. H. W. Smith, Judge. Action by Ferdinand Jnngk and F. J. Fabian against. D. S. Reed and G. W. Cropper, as principals, and L. Holbrook and S. M. Duggins, sureties, on certain promissory notes. On a former appeal, 9 Utah, 49, a judgment, for defendants was reversed, and a second trial resulted in a judgment for plaintiffs as against the principals, but. against plaintiffs as to the sureties. From an order denying plaintiffs' motion for a new trial, they appeal.

<p>Appeal from the District Court of the First Judicial' District. Hon. H. W. Smith, Judge.</p> <p>Action by W. P. Noble Mercantile Company, a corporation, against Mount Pleasant Equitable Co-operative Institution, Peter Matson, Assignee, Mount Pleasant Commercial & Savings Bank and George Christensen, to set aside a deed of assignment. Arthur Parsons intervener. From the decree rendered, plaintiff and intervener appeal.</p> <p>Appellants rest their appeal on five contentions, which will be considered in their order.</p> <p>First — Can an insolvent corporation assign with preferences?</p> <p>Appellant’s contention that it cannot is based on the so-called “ trust fund ” view of the property and capital stock of a corporation. And to support that contention the trust must be considered a true trust as distinguished from a trust sub modo. When the American “ trust fund ” doctrine was originated by Judge Story in 1824 it was first adopted by federal courts, and it was many years before it found substantial lodgment- in the state courts. 'When it did, however, some state courts, misled by the term trust, ignored the limitations placed on the doctrine by the federal courts, and assuming it a true trust held every creditor of an insolvent corporation an equitable owner in the assets of the debtor. In this way the debtor, being turned into a trustee, could not prefer one cestui que trust to another. This is a striking example of the danger of using a broad term to express an idea which is not commensurate with the term.</p> <p>The Supreme Court of the -United States, while adhering to the “trust fund” doctrine as it was originally declared, has frequently taken pains to define its limits. In Wabash é O. Ry. Co. v. Ham, 114 IJ. S 594, tbe court, speaking by Mr. Justice Gray, say: “'The property of a corporation is doubtless a trust fund for the payment of its debts, in the sense that when the corporation is lawfully dissolved and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts ptaid out of the corporate property before any distribution thereof among the stockholders. It is also true in the case of a corporation, as in that of a natural person, that any conveyance of property of a debtor, without authority of law, and in fraud of existing creditors, is void as against them.”</p> <p>In Peters v. Bain, 133 TJ. S. 691, the court says: “ Undoubtedly unpaid subscriptions to stock are assets and have frequently been treated by courts of equity as if impressed with a trust sub modo, in the sense that neither the stockholders nor the corporation can misappropriate such subscriptions so far as creditors are concerned.”</p> <p>But the question as to the nature of this trust, seems to have been directly raised in Fogg v. Blair, 133 U. S. 534. In that case it appeared that the St. Louis & Keokuk Bailroad Co., being indebted among other persons to Fogg, transferred all of its property to the St. Paul, Hannibal & Keokuk Bailroad Co., the new company agreeing among other things to assume, pay and satisfy all of the debts of the vendor. Thereafter ■ the new company executed to Blair a deed of trust of all of its property, including the property so received from the old company, to secure bondholders. Fogg, claiming that the property of the old company was held in trust for its creditors, that this trust followed it into the hands of the new company and that the trustee of the bondholders took with notice, brought suit to enforce his claim on the property so transferred and sought priority over the deed of trust. And this contention would have been unanswerable if it were, a true trust.</p> <p>The court said on page 538:</p> <p>“The property of a railroad company is not held under any such trust to apply it to the payment of its debts as to restrict its use for any other lawful purpose it matters not how meritorious the demand of the creditor may be. He must obtain a lien upon the property of the company, or security in some other form, or he will have to take his chances with all other creditors to obtain payment in the ordinary course of legal proceedings for the collection of debts.”</p> <p>And on page 540 the court said:</p> <p>“There is no evidence in the record before us that the parties who took the bonds issued by the St. Louis, Hannibal & Keokuk Kailroad Company had any notice, actual or constructive, of the demand of the complainant. But if they had it would not have affected their rights. That demand was not then reduced to judgment and created no lien upon the property of* the company, nor any restriction upon the company's right to use it for any lawful purpose.”</p> <p>And on page 541 with reference to the “trust fund” doctrine, the court said:</p> <p>“That doctrine only means that the property must first be appropriated to the payment of the debts of the company before any portion of it can be distributed to the stockholders; it does not mean that the property is so affected by the indebtedness of the company that it cannot be sold, transferred or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of being appropriated to pay that indebtedness. Such a doctrine has no existence.” See, also, Hollins v. Goal Go., 150 U. S. 381.</p> <p>If this doctrine only means, as stated by the court, that the property of the corporation must be appropriated to satisfy its creditors before it can be distributed to its stockholders; it needs no new principle of law to arrive at that result. It is true as to an individual as well as a corporation that the creditors have the first claim on the assets and that no disposition of such assets for the benefit of .an insolvent debtor at the expense of- his creditors-is permitted. But as to such debtor it is also held that in the absence of statutory restrictions he can lawfully pay one creditor to the exclusion of another, provided his property is exhausted in paying the one. That one creditor may attach his property by process of law and exhaust it all to the exclusion of the other; and that the debtor may do voluntarily what the law does for him involuntarily, namely, assign his property with preferences.</p> <p>In doing this he uses his property for a lawful purpose. The corporation doing- the same thing uses its property for a like lawful purpose and does not impinge on the “trust fund'” doctrine, because it does not stipulate for any advantage to its stockholders until its creditors are paid in full. And this is the current of authority. In appellant’s brief, Morawitz is quoted as to what he thinks the law ought to be. But the same text writer states that-the law is as claimed by respondents.</p> <p>In section 802 he says:</p> <p>“In the absence of a- statutory prohibition, a corporation has the same power of making preferences among its-creditors, in the distribution of its assets, as an individual ” 2 Mor. on Corp., § 802; see, also, Cook on Stock,' etc., § 691.</p> <p>The opinion of the Supreme Court of the United States is clearly shown in commenting on the case of Rouse v. Merchants’ Bank, 46 Ohio St. 493 (a case much relied on by the appellants).</p> <p>The court, by Mr. Justice G-ray, said:</p> <p>“In the recent case of Rouse v. Merchants’ Bank, 46 Ohio, 493, that court, upon a similar state of facts, adjudged that mortgages made by a trading corporation after it had become insolvent, and had ceased to do business, to prefer some of its creditors, were invalid and ineffectual against its creditors generally, without regard to the question whether the mortgages were or were not parts of the same transaction as an assignment under the statute.</p> <p>: That decision it is true, proceeded in part upon a theory that the property of an insolvent corporation is a trust fund for its creditors in a wider and more general sense than could be maintained upon general principles of equity jurisprudence.” Smith Purifier Co. v. McGroarty, 136 TJ. S. 241.</p> <p>The ruling of the trial court on this proposition is supported by the current of authority. Could v. By. Co., 52 Fed. 682; Allis v. Jones, 45 Fed. 148; Covert v. Rogers, 38 Mich. 363; Coats v. Donnell, 94 N. Y. 168-178, 2 Kent’s Com. 315 note; In re File Co. v. Banking Co., L. R. 6 Ch. Ap. 83; Whitewell v. Warner, 20 Yt. 426; Wilkinson v. Bauerle, 41 N. J. Eq. 635; Paper Co. v. Robbins, 151 Ill. 588; Ap. Keystone Watch Go., 161 Pa. St. 17; Worthen v. Griffith, 59 Ark. 562; Duncombe v. Ry. Co., 84 N. Y. 190 (88 N. Y. 1); Harts v. Brown, 77 Ill. 226; Buell v. Buckingham, 16 la. 284; Garrett v. Plow Go., 70 la. 697; Smith v. Skeary, 47 Conn. 47; Batik v. ’ Whittle, 78 Ya. 737; Ashhurst’s Appeal, 60 Pa. St. 314; Sargent v. Webster, 13 Mete. (Mass.) 497; Hollins v. Goal Co., 150 U. S. 381; Warren v. Bank, 149 Ill. 9.</p> <p>Indeed, the appellants do not seem to be in a position to raise the question. The intervenor -is proceeding on the theory that his writ of attachment gave him a lien on the property of the insolvent corporation to the exclusion of other creditors and is asking this court to decree him a first preferred creditor by process of law, while contending that the corporation could not voluntarily. do what the law would do for it. Walker v. Miller, 59 Fed. R. 869.</p> <p>Second — Can an insolvent corporation in making an assignment prefer its directors?</p> <p>■ We are at a disadvantage in discussing this proposition, because tbe trial court held it against us and for that reason vacated the preferences in favor of Strom and Eosenlof. And it is, therefore, not important to our case that such a power should be upheld. . But as it has been sustained by many recént authorities we think it proper to cite them to the court. The principle on which all of these cases rest was laid down by Judge Dillon in Buell v. Buckingham, 16 la. 284 (85 Am. Dec. 521.) In that case the corporation conveyed substantially all of its property to its president in payment of a debt due him and in consideration of the assumption by him of some other debts due from the' corporation. A creditor, the payment of whose claim had not been assumed, brought suit attacking the transfer on appellant’s theory in this case. The court upheld the transfer, saying:</p> <p>“Being an officer in the corporation did not deprive Buell of the right to enter into competition with other creditors, and run a race of vigilance with them, availing himself in the contest of his superior knowledge, and of the advantages of his position to obtain security for or payment of his debt. He has an advantage, it is true, but it is one which results from his position, and which is known to every person who deals with and extends credit to a corporation. This is one of the causes which has operated to bring corporate companies into discredit and may constitute a good legislative reason for giving priority to outside creditors. But the legislature must furnish the remedy.”</p> <p>To the same effect is Judge Taft’s opinion, concurred in by Mr. Justice Jackson in Brown v. Furniture Co., 16 U. S. -App. 221. See, also, Worthen v. Griffith, 59 Ark. 562; Garrett v. Plow Co., 70 la. 697; Warfield v. Canning Co., 72 la. 666.</p> <p>The decisions quoted by appellants from the Supreme Court of the United States are readily distinguishable by their special circumstances. As stated by Judge Taft in Brown v. Furniture Co., supra, with reference to these same decisions and on this same point:</p> <p>. “All the decisions of the Supreme Court of the United States relied on and referred to as sustaining the view that the bona fide debt of a director of a corporation may not be paid in preference to the debt of some other creditor are cases where the directors were guilty of fraud in procuring the payment of their own debts by the fraudulent wasting of the assets to accomplish the preference.”</p> <p>IMrd — Is the preference in favor of the bank void because the directors endorsed the note held by the bank?</p> <p>On this point no authorities are quoted in appellants’ brief, but it is simply assumed that the preference of the bank was in legal effect a preference of the directors. The trial court held otherwise and the special circumstances of this case are material to the consideration of the question.</p> <p>The bank held a note for $5,000, executed by the insolvent corporation, endorsed by its directors, who were accommodation endorsers simply, and secured by a mortgage on the real estate of the insolvent corporation. Appellants have abandoned their contention that this mortgage was invalid. On the trial the evidence showed that the mortgaged real estate at the time of the assignment was worth between $6,000 and $7,000, and there was no opposing testimony (Abst. pp. 16-18). The bank, having ample security, would have no object in waiting until the entire assets were turned into money in order to get a dividend, as an unpreferred creditor, but if not preferred would naturally foreclose its mortgage and eat up the surplus of security by costs and attorneys’ fees, and such surplus would thus be lost to the general creditors. It was this condition which confronted the directors and their action, it must be admitted, was for the best interests of the general creditors. If the right to prefer the bank is denied it must follow:</p> <p>(a) That a creditor of the corporation, whose debt is endorsed by a director thereof, is at a disadvantage, in respect to other creditors, in dealing with the corporation. He can not run a race of diligence with them, but must always be in the last class and without any fault or fraud on his part.</p> <p>(5) That the directors of a corporation who have loaned their credit to the corporation for the purpose of paying creditors, in making an assignment for the benefit of creditors cannot consider the best interests of the corporation and the creditors and so. arrange the preferences as to save costs and release assets, but in all cases must relegate to the last class the creditor holding their endorsements; although it be apparent that the property held as security by such creditor is more than sufficient to pay the debt and will certainly relieve them from any liability on their endorsements.</p> <p>Such results seem opposed to both public policy and adjudged cases.</p> <p>In the case of County Court v. By. Co., 35 Fed. K. 161-167 the court said:</p> <p>“Another point made by plaintiffs is that certain members of the board of directors of the Grafton & Greenbriar Company were personally interested in the action that was taken by the board on the 7th of April, 1887, for the reason that they were guarantors of some indebtedness of the Grafton & Greenbriar Company to some of its creditors other than the Baltimore & Ohio Company. The evidence shows that the Grafton & Greenbrier Company, being hard pressed, and having little or no credit, was compelled to negotiate loans for the further prosecution of its work and to relieve it from present embarrassment. To secure the loans desired it became necessary for some of the directors to become guarantors of the company for these loans otherwise it would have been unable to negotiate them. It is not an uncommon thing that the directors of an important improvement are compelled to lend their personal responsibility to a company in .order to give it credit and secure means to carry on its operations. Many improvements would languish and die if this action upon the part of the directors was held by the courts of the country tó be illegal, and to render them incompetent to act in that capacity. In this case the directors were not" primarily liable. The ■company had already exhausted its credit, and they only became guarantors to the creditors to the extent that money was borrowed upon their personal responsibility. And in the language of the supreme court of New York in the case of Duncomb v. Railroad Go., 88 N. Y. 9: ‘They were under no personal obligation originally, in contracting ■the debt, and no reason is shown why they were not justified in placing the company in a position to pay its indebtedness and to relieve it from its embarrassment.’ Certainly there can be nothing wrong in a director securing ¡a demand of this character against his company, but it •does not appear that these directors did anything that other directors, who had no interest except the welfare of the •company at stake, did not unite with them in.” See, also, Weihl v. Atlanta, etc., Mfg. Go., 37 Am. and Eng. Corp. •Cas. 693. Duncomb v. Railroad Co., 88 N. Y. 9; Gould y. Ry. Go., 52 Feb. R. 680.</p> <p>Fourth — Assuming that the preference to Strom was invalid, does it avoid the entire assignment?</p> <p>The creditors were divided into three classes. The bank •came first, the prime object being to save the assets from waste. In the second class came all others who had loaned money to the corporation for the purpose of paying its merchandise creditors. In the third class were all merchandise creditors.</p> <p>Strom happened to fall in the second class; he had .loaned money to the corporation. It will be perceived that he was not selected as an object of favor, he was simply placed in that class in which he belonged in accordance with the general scheme of the assignment. This would surely not be actual fraud, for the evil intent essential to such fraud, is wanting. But if his relationship to the ■corporation was such that the law, for fear of fraud and because of the opportunity to commit fraud, forbids the preference, it is a constructive fraud as distinguished from .an actual fraud. La Belle Iron Worhs v. Hill, 22 Fed. Rep. 195-196; 1 Bigelow on Fraud, 10; Buell v. Buckingham, 85 Am. Dec. 519.</p> <p>That such a fraud does not avoid the entire assignment-has been settled by the supreme court of the United States. Peters v. Bam, 133 U. S. 688; Denny v. Bennettr 128 U. S. 496; 22 Wend. 482; 30 Kans. 353; Burrill on. Assignments, 444-5.</p> <p>Fifth — Does the preference to Eosenlof, it being in effect a preference to Strom, avoid the entire assignment?'</p> <p>It is strenuously urged by appellant that as the company owed nothing to Eosenlof, an attempt to prefer him was fraud in fact and avoided the assignment.</p> <p>As to this contention it is necessary to examine the-findings of fact (see finding 4, Abst. pp. 26-27). It-appears that the company_ applied to Eosenlof for a loan of $500. Eosenlof refused to loan to the company, but-agreed to loan to Strom. Strom had no desire to borrow the money, but to accommodate the company executed his-note to Eosenlof, turned the money over to the company and received the company’s note - therefor. The company always considered that it owed the money to Eosenlof (Abst. p. 24) and there was substantial evidence to support the finding of the court “That in truth and in fact-said $500 was due to John E. Strom and not to Neils Eosenlof, but that the said corporation and the said board of directors considered the same as a debt due Eosenlof in said class number two, without any intent to defraud any person whomsoever, or deceive any one, but with the-intent to describe said debt in such a manner as to distinguish it.” (Abst., p. 27.)</p> <p>It will be perceived that the company did not undertake-to swell the true amount of its debts by adding a fictitious-one, but simply described a Iona fide debt as due to Eosen-lof, when in fact it was due to Strom.</p> <p>An almost identical case was before the supreme court, of the United States in Davis v. Schwartz, 155 U. S. 643_4-5. In that case the German American Bank took from Schwartz, a failing debtor, a mortgage to secure a sum in excess of his debt to the bank. The excess was to secure a note to the president of. the bank and one to its cashier, which were stated in the mortgage to have been assigned to the bank. These notes had not in fact been so assigned, nor were they then owned by the bank. The notes afterwards became the property of the bank. The mortgage was attacked for fraud and the court say, on page 644:</p> <p>“ Of both of these notes it' üiay be said that whether they were actually owned by the bank or not, there is nothing to indicate that they were not just debts of John H. Schwartz. _ It would also seem that McConn’s inclusion of these notes in the mortgage to the bank was made in good faith, supposing that he had the right to cover them by the same security he was taking in favor of the bank. While the fact .that a mortgage is given for a larger amount than is due, is doubtless a suspicious circumstance, raising a presumption of fraud, and may under certain circumstances, avoid the whole mortgage, it will only have this effect when given wilfully, in connivance with the mortgagee, and with an actual design to impose upon and defraud the general creditors.”</p> <p>“In all such cases the question of good faith is one of fact, and a mere error of judgment will not be imputed, as a fraud. The fact that the debt so included was a tona fide debt, and that the act of the mortgagee in so including it was subsequently affirmed by the creditors interested, will be strong evidence that. no actual fraud was intended.”</p> <p>And the court therefore sustained the mortgage.</p> <p>So in the case at bar, the debt was an actual Iona -fide debt. It became a question of fact whether or not the manner of its description was intended as a fraud. The-trial court has found on sufficient evidence that it was not-so intended. And there would seem no reason for vacating this finding, nor if it stands to avoid the entire instrument because of an innocent misdescription. We submit that justice will be subserved by an affirmance of the judgment.</p>

<p>1. CRIMINAL Libel. — Publication Libelous Per Se. — Report op Judicial Proceeding — Malice.—In a prosecution for criminal libel against a newspaper publishing company and the editor of a paper owned by it for publishing an article libelous per so, which referred to the record in a criminal case, to support certain defamatory statements, the defendants put a court stenographer upon the witness stand and asked him to read from his stenographic notes the testimony given at the trial referred to iu the article, in order to show that the article was a “fair and true report” of the evidence produced at the trial and for the purpose of rebutting malice. To this testimony •the court sustained an objection. Bold, error, since 2 Comp. Laws 1888, § 4495 provides that no editor is liable to any prosecution for a fair report of any judicial proceeding, except upon proof of malice, which shall not be implied from the mere fact of publication.</p> <p>2. Id. — Id.—Evidence.—In a prosecution for criminal libel on a candidate for public office, the evidence upon which the publication was made is admissible to rebut malice. King, J., dissenting.</p> <p>3. Id. — Id.—Candidate for Public Office. — Public and Private Criticism. — Good Paith — Reasonable or Probable Cause. — A candidate for public office is amenable to public or private criticism, made in good faitb and based upon reasonable or probable cause, and when he becomes such he is regarded in law as putting his character in issue in respect to his qualifications and fitness for the office for which he is a candidate, since the community has a right to know the character, habits, mental and moral qualifications of its public servants.</p> <p>4. Id — Id.—Comment of Judge. — Charge to Jury — Province of Court and Jury. — In a prosecution for criminal libel, during the proceedings of the trial the court said: “Now, then, the defendants in this case are charged with publishing certain matters with respect to a citizen of this town, which is libel. It is libelous by its terms, and charges not only crimes but charges maters which are intended to mate a man infamous and ridiculous in the eyes of the community.” To which the defendants took exception. And in the charge to the jury the ■court said: “If the matter is false and not shown to be true, there can be no justification for it. There is none in a case of this character.” Held, error, since the court in effect, by its declarations in the presence of the jury and in the charge to them, determined that the defendants were guilty, which was an invasion of the province of the jury, who were the sole judges of guilt or innocence.</p>

Hon. H. W. Smith, Judge. Mandamus by the board of education of the' city of Ogden against Moroni F. Brown, as assessor, and Frank B. Hurlbut, as collector of Weber county. From a judgment for defendants, plaintiff appeals.

Appeal irom the District Court of the Third Judicial District. • Hon. S. A. Merritt, Judge. In the matter of the estate of Osean A. Amy, deceased. Petition of Jennie Amy, wife of the deceased, for the distribution of the entire estate to her. Royal D. Amy and others, half brothers and sisters of deceased, pray for distribution of the estate to them.

<p>Attachment and Gabnishment. — Pbiob Levs'. — Liability oe Obeiceb. — Plaintiff on bringing suit against the owner of certain personal property, sued out a writ of attachment and placed the same in the hands of defendant herein, as United States marshal, who garnished a certain railroad company, which answered that it had certain personal property belonging to the defendant in its possession, but claimed a prior lien for freight, demurrage and storage, which writ and answer of the railroad company, the marshal duly returned into court. The railroad afterwards sold sufficient of the property to pay its claim and held the balance which was sufficient to pay plaintiff’s demand. Before plaintiff obtained judgment, however, the defendant herein, as marshal, levied an execution issued at the suit of another creditor against the owner upon the same property and took the same into his possession, and afterwards sold it and applied the proceeds in satisfaction of the judgment therein. The plaintiff afterwards obtained judgment and issued execution and placed the same in the hands of the marshal and instructed him to levy the same upon the property previously garnished in the hands of the railroad company, which the marshal refused to do-, and returned the execution ■milla bona, thereupon the plaintiff sued the marshal for failure to do his official duty. Held,, that the marshal was not liable for the value of the property sold, since his duty ended upon returning the writ into court, the garnishee not having delivered over the property to him under the writ:</p>

Hon. Harvey W. Smith, Judge. Action by D. P. Tarpey against John Sharp, James ■Sharp, and William G-. Sharp, executors of the last will and testament of John Sharp, deceased, on a supersedeas bond to recover the valueof the rents and profits of certain premises pending error in the Supreme Court of the United States. From a judgment for plaintiff, defendants, appeal.

Original application by Lewis P. Kelsey for a writ of habeas corpus. In our opinion, but two questions are presented for consideration: First — Was the judgment or decision of the court requiring the defendant in the case of Kelsey ,v. Kelsey to pay temporary alimony, suit money and counsel fees, appealable immediately by said defendant.

Hon. Samuel A. Merritt* Judge. ' Proceedings supplementary to execution by Wallace, Smuin & Company, a corporation, and of the Symns Utah Grocer Company, a corporation, against F. J. McLaughlin and O. C. Lockhart. From judgments in favor of the plaintiffs in each case, defendants appeal. The judgments appealed from are entirely void. The order for examination and all the subsequent proceedings are yoid. These proceedings are taken under section 3455, second volume, Comp.

<p>Appeal fboji Pbobate Coubt. — Release of S'tjbeties on Admin-istbatok’s Bond. — Undebtaking on Appeal. — Tbe Supreme Court Rule 24 (9 Utah 521), providing that on appeal from a probate court to a district court by an administrator, who has given official bonds, there need be no additional undertaking, does not apply to a case where the sureties on an administrator’s bond have been discharged before the taking of the appeal.</p>

Hon. George W. Bartch, Judge. Action for libel by Amos Fenstermaker against the Tribune Publishing Company. From a judgment for defendant, plaintiff appeals. The complaint averred that plaintiff was one of the persons defamed, and alleged the extraneous circumstances, showing that the plaintiff was referred to, and averred that the publication was concerning the plaintiff. Not one of these circumstances or- allegations was denied.

Hon. William H. King, Judge. Action by J. C. Armstrong and others against Ogden City and othórs to enjoin the levying of a special assessment for street improvements, and for other relief. From a judgment for plaintiffs, defendants appeal. The allegations of the complaint do not bring this case within any of the recognized exceptions to the rule that equity will not grant relief in this class of cases by way of injunction to restrain the collection of a tax.

District. Hon. H. E. Henderson, Judge. An action begun in the court of a justice of the peace by N. C. Flygare against Thomas Maloney in unlawful detainer to recover possession of certain premises. Defendant filed his verified answer setting up an alleged affirmative defense, and that the action involved title to real estate, and moved the justice to certify the cause to the district court.