performance of that duty it would be responsible to the party injured by reason of such failure, but not in the form of action resorted to in this case. This is an action to recover a deposit of $2,000, with interest, alleged to have been deposited in defendant's bank for the use and benefit of plaintiff. The evidence shows that no such deposit was ever made, and that the plaintiff is not the real party interested in the alleged deposit. A recovery by plaintiff would not bar an action by Chapman, the real party in interest. It is evident that the plaintiff, at the time the draft was made good, and the letters of September 30th and October 15th were written, did not consider the defendant in any way liable, but the idea of holding it was an afterthought. It is ordered that the judgment of the court below be affirmed, with costs.

BARTCH, C. J., and MINER, J., concur.

(21 Utah 429)

WARREN et al. v. ROBISON et al. (Supreme Court of Utah. April 27, 1900.) APPEAL REMITTITUR MANDATE REMITTITUR NOT IN BILL OF EXCEPTIONS-JUDICIAL NOTICE OF RECORDS OF APPELLATE COURT -NONSUIT IN EQUITY-REVERSAL-TRIAL DE NOVO-JUDGMENT ON MANDATE-SECOND APPEAL CONSTRUCTIVE FRAUD - DISCHARGE IN BANKRUPTCY-SURVIVAL OF ACTION.

1. From the fact that a trial court set aside its former judgment, and proceeded to again try a cause, in which a new trial has been ordered by the supreme court, it is manifest that the trial court considered the remittitur of the supreme court.

2. In order that an appellate court may determine whether or not a lower court proceeded in accordance with the mandate of the appellate court on a former appeal, it is not necessary that the remittitur should be contained in the bill of exceptions; the appellate

court will take notice of its own records and files.

3. Where a judgment of nonsuit, entered by a court of equity, is ordered set aside by the appellate court, and the cause is remanded, with directions to the court below to proceed in accordance with the opinion, and neither the opinion nor the mandate requires a trial de ΠΟΝΟ to be granted, the effect is to place the case in the same position in the court below as it was in at the time when the progress of the trial was interrupted by the motion for the nonsuit, and the court may resume the trial, and proceed therewith in the same manner as it would have done if no judgment of nonsuit had been entered.

4. Where an appeal is taken from a judgment of an inferior court entered under a mandate of the appellate court, the latter tribunal will construe its own mandate in connection with its opinion, to determine whether the inferior court proceeded in accordance therewith.

5. Where an action is against a defendant for misappropriation or misuse of a trust fund and breach of duty, occasioned through neglect while he was acting in a fiduciary capacity, the allegations, if established, show at least constructive fraud, and the case falls within the exception contained in section 17 of the bankruptcy act (30 Stat. 550), and a discharge in bankruptcy will not release the defendant in such an action. Such an action

also survives, under section 3916, Rev. St. 1898, against the executors of a party defendant at a former trial, who has since died. (Syllabus by the Court.)

Appeal from district court, Weber county; W. M. McCarty, Judge.

Action by Eliza Warren and others against Theodore Robison and others. Judgment for defendants, and plaintiffs appeal. Reversed.

M. D. Lessenger, A. J. Weber, and A. E. Farr, for appellants. L. R. Rogers, T. D. Johnson, R. H. Whipple, and Richards & Allison, for respondents.

BARTCH, C. J. This action was originally brought by the plaintiffs, as stockholders of defendant Citizens' Bank, in behalf of themselves and all other stockholders, creditors, and others similarly situated against the defendants for an accounting, and for damages alleged to have been occasioned by reason of negligence in the management of the bank by its directors and officers. At the trial, after the plaintiffs rested, the court, on motion of defendants, granted a nonsuit. Thereupon the plaintiffs appealed. This court, on appeal, affirmed the judgment of nonsuit as to all of the defendants except Brough, Spencer, Murphy, Kuhn, Wells, Schramm, and Corey, and as to them held that a prima facie case had been made out, and ordered the lower court to proceed in accordance with the opinion of the appellate court. After the remittitur was sent down, defendant Corey filed an amended answer, alleging, in substance, that the cause of action stated against him in the complaint was merged in a judgment rendered November, 1894, and that he had been discharged from the debts set forth in plaintiffs' complaint in bankruptcy proceedings. To this plea the plaintiffs filed a demurrer, which was overruled. They then filed a reply to the answer, and also filed a supplemental complaint alleging the death of defendant S. S. Schramm, who had died since the former trial, and the presentation of their claim to his executors, and the rejection thereof by them. Thereafter the case was again called for trial, but before proceeding the court, on motion of counsel for defendants, dismissed the action as to the executors of the estate of S. S. Schramm, upon the ground that the cause of action stated in the complaint did not survive against such executors. The trial was then proceeded with against the other defendants, who had been held prima facie liable by the appellate court, and counsel for the plaintiffs submitted the records of the former trial, as follows: "May it please the court, all of the records in this case are before the court. We submit them as the records of this court, being all of the evidence extended by the stenographer from his notes in the original hearing, upon which the supreme court has decided that the plaintiffs have made a prima facie case." With this the plaintiffs rested their case, and thereupon counsel for the defend

the ground that the plaintiffs had offered no evidence to sustain the allegations of the complaint. The court held that the cause must be tried de novo, and upon counsel for plaintiff's declining to place their witnesses upon the stand, and again offer their testimony by examination as upon the original trial, sustained the motion for a nonsuit, and dismissed the action. The plaintiffs then prosecuted this appeal.

The main question presented is whether the court erred in construing the opinion and remittitur of the supreme court as requiring a new trial, and consequently as requiring the plaintiffs to again introduce all their evidence in the same manner as at the first trial of the cause. The appellants insist that the mandate of this court did not require a reproduction of all their evidence verbally, as on the former trial; that the evidence formerly introduced had been held to have made out a prima facie case as to the defendants now being proceeded against; and that all the original evidence introduced upon the former trial, and upon which the supreme court had passed, being in the records submitted by them to the court, the same judge sitting to again hear the case, and they having rested their case upon that evidence, the court, under a proper construction of the remittitur, should have required the defendants to proceed with their defense the same as though no nonsuit had been granted. The respondents maintain that the court properly insisted upon a trial de novo, and that the question concerning the proper construction of the remittitur from this court cannot be considered on this appeal, for the reason, as they claim, that the remittitur was not presented to the court below, and is not incorporated into the bill of exceptions settled in this case. As to whether or not the remittitur was formally presented to the court below, we have no means of ascertaining, nor do we regard such presentation, or lack of it, material to this decision. From the fact that the court set aside its former judgment, and proceeded to again try the cause, it is manifest that it considered the remittitur, however it may have come before it.

Nor are we prevented from ascertaining and determining whether the court below proceeded in accordance with our mandate, because the remittitur is not contained in the bill of exceptions. The remittitur consists of a copy of the judgment entered in the records of this court, and, where there is a reversal, also a copy of the opinion filed by us. The original in each case, therefore, remains in our own court, and it would, indeed, be an anomalous state of affairs if, under the circumstances of this case, we could not take notice of our own records and files. But, if there were any question about this, the motion to amend the transcript, by adding thereto the remittitur, made and submitted under rule 5 of this court, would, in justice, have to prevail, and

fore, to determine the question whether the court below properly interpreted the opinion and judgment of this court, we feel entirely free to resort to that opinion, a copy of which was attached to, and formed a part of, the remittitur, to ascertain the nature of the decision and what it required. That portion of it which is material here reads as follows: "We do not herein assume to determine the ultimate rights of the plaintiffs. Whether or not they will finally be able to recover for any of the transactions complained of will perhaps depend largely upon the question whether or not they themselves have been guilty of such acts and conduct, respecting these transactions and the management of the bank, as will prevent a recovery by them. We simply hold that the plaintiffs have established a prima facie case against the defendants Brough, Spencer, Murphy Kuhn, Wells, Schramm, and Corey, and as to them the judgment of the court must be set aside, costs to abide the result of the action. As to defendants Robison, Maguire, Beeman, Perkins, and Armstrong, the judgment of nonsuit is affirmed, with costs against the plaintiffs. The case must, therefore, be remanded to the court below, with directions to proceed in accordance herewith. It is so ordered." Such, after reference to the rules of law which must govern the case, and a review and discussion of the evidence, is the concluding paragraph. This contains a clear and express holding that the evidence of the plaintiffs "established a prima facie case against the defendants Brough, Spencer, Murphy, Wells, Schramm, Kuhn, Wells, and Corey," and the order is that as to those defendants the judgment of nonsuit must be set aside, and the cause remanded to the court below, with directions to proceed in accordance with the opinion.

It will be noticed that the case was not "reversed and remanded," but simply "remanded," with directions to "proceed"; that is, sent back to the court below to proceed, the same as if no judgment of nonsuit had been entered, according to the rules of law announced in the opinion as governing the case. In other words, after the judgment of nonsuit was set aside, the case stood as it did before that judgment had been entered, except that the defendants as to whom the judgment was affirmed were no longer parties interested. There is nothing in the opinion nor in the judgment entered in the records of this court, nor in the remittitur, which required a trial de novo. Nor does the record on appeal show any good reason for the ordering of such a trial by the lower court. The case was tried before a court sitting as a court of equity without a jury. The same judge who presided at the former trial, and heard the evidence and observed the witnesses, was again presiding. That same evidence was before him in record form, although, it must be confessed, very

inartistically submitted, as appears from the abstract herein. The court of last resort had reviewed and discussed the evidence, and held it sufficient to establish a prima facie case as to the defendants who were still interested parties to the suit. There was no change of material issues, and it appears the plaintiffs had no other or different evidence to offer, and were willing to rest their case on that introduced at the previous trial. Nor is there anything to show that the defendants would have been injured or their rights jeopardized if the court, upon the plaintiffs having submitted their evidence in record form and rested, had proceeded with the trial from the point where it was interrupted by the motion for nonsuit. On the contrary, it is manifest that the testimony of the plaintiffs, being very voluminous, could not have been introduced, by the re-examination of witnesses, without great expense to the litigants. Under these circumstances, and without an express direction in the mandate to do so, the ordering a trial de novo, and the requiring of the evidence, which had already been held sufficient to establish a prima facie case, to be again introduced by examination of the witnesses, was unnecessary and unauthorized. Where a judgment of nonsuit, entered by a court of equity, is ordered to be set aside by the appellate court, and the cause is remanded, with directions to the court below to proceed in accordance with the opinion, and neither the opinion nor the mandate requires a trial de novo to be granted, the effect is to place the case in the same position in the court below as it was in at the time when the progress of the trial was interrupted by the motion for the nonsuit, and the court may resume the trial, and proceed therewith in the same manner as it would have done if no judgment of nonsuit had been entered. In Hawkins v. Railway Co., 39 C. C. A. 538, 39 Fed. 322, as appears from the syllabus, it was held: "When a decree is reversed, and the mandate does not direct the entry of any particular decree, but only that further proceeding be had not inconsistent with the opinion of the appellate court, the effect is to put the case in the same position in the court below as it no decree had ever been entered, and the court has the same authority to permit amendments of the pleadings to enlarge the issues, and admit further proofs, as it had before the entry of the decree." Nelson v. Hubbard, 13 Ark. 253; Woolman v. Garringer, 3 Mont. 405; Commissioners v. Carey, 1 Ohio St. 463; West v. Brashear, 14 Pet. 51, 10 L. Ed. 350; Supervisors v. Kennicott, 94 T. S. 498, 24 L. Ed. 260; In re Sanford Fork & Tool Co., 160 U. S. 247, 16 Sup. Ct. 291, 40 L. Ed. 414; Ex parte Sibbald, 12 Pet. 488, 9 L. Ed. 1167. And, where an appeal is taken from a judgment of an inferior court entered under a mandate of the appellate court, the latter tribunal will construe its own mandate in connection with its opinion,

to determine whether the inferior court proceeded in accordance therewith. Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. 611, 37 L. Ed. 432; In re Sanford Fork & Tool Co., supra. We are of the opinion that the court erred in ordering a trial de novo, under the circumstances of this case.

We are also of the opinion that the demurrer to the amended answer of W. W. Corey was improperly overruled. This suit was brought against him for the misappropriation or misuse of a trust fund and breach of duty, occasioned through neglect while he was acting in a fiduciary capacity. The facts set up in the complaint, if established by competent proof, show a condition of, at least, constructive fraud. A breach of duty by a person acting in a fiduciary capacity is "constructive fraud." Story, Eq. Jur. §§ 258, 259, 307, 308, 311; Cooley, Torts, p. 607; Baker v. Humphrey, 101 U. S. 494, 502, 25 L. Ed. 1065.

**

This case, as to Corey, therefore, falls within the exception contained in section 17 of the bankruptcy act (30 Stat. 550), which, so far as material here, reads: "A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer or in any fiduciary capacity." Corey having been charged, in the complaint, with a breach of duty by a negli gent management of the affairs of the bank, of which he was a director and officer, and a consequent loss to the institution, his discharge in bankruptcy constituted no bar to this action, which had been previously brought against him, and therefore the demurrer ought to have been sustained. Likewise, although a judgment had previously been entered against him for a debt which he owed the bank, he was still liable for any breach of duty or negligent management of the affairs of the bank of which he may have been guilty, while a director or officer of the institution, if such breach of duty resulted in injury to his trust. So, we are of the opinion that this action survived against the executors of S. S. Schramm, he having been a defendant at the former trial, but having since died. He and others were directors of the bank, and acted in a fiduciary capacity. The complaint charges that, while so acting, the deceased was negligent and inattentive to duty, and that, in consequence thereof, loss resulted to the bank; that is, funds and property of the institution, through his carelessness and inattention to his duties, were permitted to be wasted and lost. In such case the action survives, and may be maintained against the executors, under section 3916, Rev. St. 1898. It has been held likewise in California under a statute like ours. Fox V. Mining Co., 108 Cal. 478, 41 Pac. 328; Coleman v. Woodworth, 28 Cal. 567. The judgment must be reversed, with costs, and the cause remanded, with directions to the court

below to proceed in accordance with this and our former opinion herein. It is so ordered.

BASKIN, J., and HIGGINS, District Judge,

concur.

proper were given, substantially, and the charge as a whole was as favorable to the appellants as the law of the case warranted. The judgment is affirmed.

SMITH et al. v. BUCKMAN et al.

(Supreme Court of Washington.

APPEAL-CONFLICT

1900.)

March 30,

OF EVIDENCE-DISTURBING VERDICT-IMPROPER TESTIMONY— STRIKING OUT CURED ERROR.

1. Where there is a substantial conflict in the testimony, the appellate court will not disturb the verdict.

2. Where that part of the evidence to which exceptions might be allowed was stricken out on defendant's motion, and the jury instructed to disregard it, the error was cured.

Appeal from superior court, Clarke county; H. S. Elliott, Judge.

Action by Elizabeth Smith and another against T. Buckman and another. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Coovert & Stapleton and James P. Stapleton, for appellants. W. W. McCredie, for respondents.

PER CURIAM. This is an action in ejectment brought by the respondents, who were plaintiffs below, against the appellants, to recover a parcel of land, containing about six acres, which the respondents allege is a part of the donation land claim of John Dodd and H. E. Dodd, of which they are the owners by reason of certain mesne conveyances from the original donators to themselves. Answering the complaint, the ap. pellants denied ownership in the respondents, and pleaded affirmatively matter constituting an estoppel, and adverse possession during the period of statute of limitations. The verdict of the jury was in favor of the respondents.

The principal contention is over the question whether the evidence is sufficient to justify the verdict. We have carefully examined the record, and find that there was a substantial conflict in the testimony on all of the issues made. In such cases this court will not disturb the verdict of the jury. Pronger v. Bank, 20 Wash. 618, 56 Pac. 391.

Exceptions were taken to the admission of certain evidence, and to the refusal of the court to give certain requested instructions to the jury. That part of the evidence to which exception might properly lie was stricken out by the court on motion of the appellants, and the jury were instructed to disregard it. If it was error originally to admit the testimony, the error was cured by the action of the court in striking it out. The charge of the court was full and clear, and covered the entire law of the case. Such of the requested instructions as were

PHELAN v. SMITH, Treasurer. (Supreme Court of Washington. April 24, 1900.)

INJUNCTION-SALE OF PERSONAL PROPERTY FOR TAXES-LEGAL REMEDY INADEQUATETAXATION-WHEN LIEN ATTACHES.

1. An action for injunction will lie to restrain a county treasurer from removing and selling for delinquent taxes counters and shelving which have been purchased by plaintiff from the tax delinquent for value, without notice of any lien for taxes thereon, and affixed to plaintiff's building, and which it is alleged cannot be removed without destroying plaintiff's business and causing him great and irreparable damage, which cannot be compensated or estimated in

money.

2. Under 1 Ballinger's Ann. Codes & St. § 1740, providing that taxes assessed upon personal property shall be a lien upon all of the real and personal property of the person assessed, from and after the first Monday of February next succeeding the date of the levy of such taxes, personal property which has been transferred by the owner prior to the first Monday in February next succeeding the levy is not subject to the lien of such taxes.

Appeal from superior court, Spokane county; Leander H. Prather, Judge.

Action by M. J. Phelan, doing business as the Spokane Tea & Coffee Company, against A. L. Smith, treasurer of the county of Spokane, Wash., to enjoin the sale of certain personal property for taxes. From a judgment for plaintiff, defendant appeals. Affirmed.

James Z. Moore, Miles Poindexter, and Horace Kimball, for appellant. Danson & Huneke, for respondent.

DUNBAR, J. This is an equitable action to enjoin the treasurer of Spokane county from selling certain personal property in the hands of the respondent for the satisfaction of personal property taxes levied thereon while the property was in the hands of a former owner. The complaint alleges: "First. That, at all times in this complaint mentioned, M. J. Phelan was, and now is, doing a general tea, coffee, and spice business at Spokane, Washington, under the firm name and style of Spokane Tea & Coffee Company. Second. That during the year 1898, and until the sale of said property as hereinafter alleged, one Harry C. Adams was the owner of a stock of groceries, counters, shelving, and fixtures, which said property was situate in Spokane county, state of Washington, and then in possession of said Adams. Third. That, to wit, prior to the 2d day of June, 1898, the assessor of said county assessed said property as the property of said Adams for said year. Fourth. That on the 24 day of June, 1898, said Harry C. Adams was indebted to the Boothe-Powell Company, of Spokane county, Washington, a corporation organized

under the laws of said state, in the sum of $1,912.66, and on said day said Boothe-Powell Company commenced an action against said Harry C. Adams in this court (No. 12,961) for the purpose of recovering judgment against said Adams for said sum, and caused an attachment to issue in said cause against said Adams, and to be levied upon the property hereinbefore described. Fifth. That thereafter, to wit, on June 27, 1898, said BoothePowell Company obtained a judgment in said court against said defendant for the sum of $1,921.86, together with $- - costs and disbursements, which said judgment was duly given, rendered, and made after due personal service had been made upon said defendant, and said attachment was by said court duly sustained upon the ground that said defendant has assigned, secreted, and disposed of his property with the intent to hinder, delay, and defraud his creditors, and that said defendant was about to assign. secrete, and dispose of his property to hinder, delay, and defraud his creditors, and that he was guilty of fraud in contracting the debt and incurring the obligation for which said action was brought; and said court upon said grounds sustained said judgment, and ordered and directed said property to be sold by the sheriff of said county under said attachment for the purpose of satisfying said claim and judgment against said defendant. Sixth. That in pursuance of said order and judgment of said court, and after due notice had been given as by law provided, said sheriff of said county. to wit, on the day of June, 1898, sold all of said property under said attachment, and the money derived therefrom was applied to the satisfaction of said judgment in pursuance of said order of court. Seventh.

That thereafter plaintiff herein purchased a portion of said counters, shelving, and fixtures, paying therefor a reasonable and fair value thereof, without notice of any claim of any tax lien thereon, and ever since has been the absolute owner and in possession thereof. Eighth. That, to wit, on the 19th day of June, 1899, said defendant, as said treasurer, seized all of said counters, shelving, and fixtures which were then in possession of said plaintiff as aforesaid, on account of delinquent personal taxes now claimed to be due said county from said Harry C. Adams for the year 1898, which were assessed as aforesaid by said county assessor to satisfy the sum of $63.74, $2.40 interest, and $2.15 costs, amounting to the total sum of $68.29, and which is by said treasurer claimed to be due from said Adams for personal taxes as aforesaid; and said treasurer has advertised said property for sale on the 1st day of July, 1899, at 2 o'clock p. m. of said day, and is proceeding and is about to sell said property as aforesaid, and, unless prevented from so doing by this court, will wrongfully and without right sell the same as aforesaid. Ninth. That the value of the property so seized by said treasurer is the sum of $300; that said property is

now in the store of plaintiff, affixed to said building, and used in carrying on plaintiff's said business, and that to take the same or any part thereof, or to remove the same or any part thereof, or to sell the same or any part thereof, will have the effect to ruin and destroy the business of this plaintiff, and deprive him of said property, and thereby cause this plaintiff great and irreparable damage, which cannot be compensated or estimated in money. Tenth. That this plaintiff is without remedy at law, and has no remedy except in a court of equity, and that unless said defendant be by this court restrained from taking possession, selling, or in any way meddling with said property, this plaintiff will be without remedy, and wrongfully deprived of his said property, and will suffer great and irreparable damage as aforesaid."

Passing some minor technical objections to the form of the complaint, which we think are not meritorious, the appellant's first contention is that the complaint does not state facts sufficient to constitute a cause of action, for the reason that equity will not interfere in such case by injunction, but will leave the party to his rights, if he have any, under the law. Without going into an analysis of the cases on this proposition, we think, under modern authority, the facts stated in the complaint bring it within equitable jurisdiction. Incompleteness and inadequacy of the legal remedy are what determine the right to the equitable remedy of injunction, and we do not think, conceding the allegation of the complaint to be true, that respondent could obtain complete and adequate relief by law. Nor would any good purpose be subserved by allowing this property to be wrested from the possession of the respondent, and relegating him to an action for damages, or by compelling him to pay the taxes as a basis of a suit for damages. This court has passed upon that question in Andrews v. King Co., 1 Wash. St. 46, 23 Pac. 409, and Benn v. Chehalis Co., 11 Wash. 134, 39 Pac. 365. It is true that those cases embraced real-estate taxation, but the principle is exactly the same, and the interference with the powers of the government in the collection of its revenue is the same. This point was also raised by the county in its brief in Mills v. Thurston Co., 16 Wash. 378, 47 Pac. 759; and, while not noticed in the opinion, this court tacitly acknowledged the jurisdiction, by deciding the case upon the merits.

The important proposition in this case, however, and the one it is desirable should be settled, is involved in appellant's second main contention,-that the plaintiff is not entitled to relief in any manner whatever, for the reason that the taxes sought to be enforced are a lien upon the property levied upon. We cannot agree with the construction placed upon the statute by the appellant, nor do we think that the opinion in the case of Mills v. Thurston Co.. supi., aids it. In that case we simply held that the property