clause, "next succeeding grand jury," in section 196 to the nearest word that might be an antecedent. The relative may be referred to such antecedent as will give the clause a sensible and reasonable construction. 10 Mees. & W. 728.

The judgment of the court below in sustaining the demurrer is reversed, and the cause is remanded to the Third district court, with directions to that court to overrule the demurrer and allow the defendant to plead to the indictment. The order of the court below in refusing to discharge the defendant is affirmed.

Twiss, J., concurs.

HUNTER, C. J., dissents from the judgment of reversal and concurs in the judgment affirming the order of the court below.

(3 Utah, 315)

RASMUSSEN and another v. MCKNIGHT and another.

Filed February 13, 1884.

A party conveyed land to a husband and took a mortgage back from him for part of the purchase money. The grantee drew the papers, and when they were recorded it was found that the conveyance ran to the wife. The grantor brought suit and alleged that the fraud was accomplished by a false reading of the deed, or by an alteration in the name of the grantee, before recording. Held, that the facts stated in the complaint constitute a fraud; that under the circumstances the statement of how the fraud was accomplished is necessarily in the alternative, and that the complaint is not bad for that reason.

Appeal from the Third district court.

Arthur Brown, for appellants.

James McKnight, for respondents.

EMERSON, J. The only question raised on this appeal is, does the complaint state facts sufficient to constitute a cause of action? It alleges, in substance, that the plaintiff Rasmussen, being the owner of certain premises in Salt Lake City, and described in the complaint, entered into a contract with the defendant James McKnight to sell and deed to him the premises for the sum of $470, McKnight to pay $100 in cash and execute a mortgage back to secure the balance; that the defendant named, pretending to be a lawyer, draughted said papers, and, when completed, read them to the plaintiff named, as in pursuance of the contract, viz., a deed to McKnight and a mortgage back from him to the plaintiff named, and he signed the

deed under that belief. "That since that time the plaintiff Rasmus. sen has discovered that the said deed, as it appears upon record, runs in the name of the wife of the said James McKnight, as grantee, towit, the said Mary Ann McKnight; that the said plaintiff Rasmussen does not know whether the said McKnight obtained the said deed in his wife's name by misreading the same to plaintiff Rasmussen, or by obliterating his name and putting in hers; and does allege that, by whatever means it was done, it was done fraudulently and for the purpose of robbing and wronging the said plaintiff Rasmussen." then alleges a deed of one-half the land and one-half the cause of action to the plaintiff Brown; that plaintiff Rasmussen, previous to the discovery of the fraud, commenced an action against James McKnight alone to foreclose the mortgage; that afterwards a decree was obtained and the property sold to plaintiff Rasmussen for less than the face of the mortgage debt, and he obtained a deed therefor, conveying all the interest of James McKnight; "that the said Mary Ann McKnight received the said conveyance without any consideration moving from her; that she is a party to, and cognizant of, the said frauds herein alleged." And then the prayer for relief.

The defendants demurred upon various grounds, but none except the one mentioned, viz., "that the complaint does not state facts sufficient to constitute a cause of action," was argued or called to our attention; we shall therefore treat the others as abandoned. On the ground of demurrer stated, the complaint is assailed principally because the facts constituting the fraud are not more specifically stated. The plaintiff Rasmussen states all that he knows about the transaction, and that a fraud was perpetrated on him in one of two ways, by which he was led to believe that he was conveying the land to James McKnight and not to his wife, or he certainly would not have taken a mortgage from James McKnight to secure the unpaid purchase money, for if he intended to, or knew that he was deeding the property to Mrs. McKnight, the mortgage from the husband was no security at all. If it was accomplished in either of the methods he mentions, the statement he makes are the facts constituting the fraud. Statement of facts which the court can see, do, in fact, constitute a fraud. The plaintiff's statement of how it was accomplished, must necessarily, and under the circumstances, be in the alternative, and the complaint is not bad for that reason. The complaint alleges that the defendant Mary Ann McKnight was a party to and cognizant of the fraud. She is a proper party, and the complaint states a cause of action against her. She would be a proper and necessary party even if she knew nothing about the fraud. Under the circumstances alleged in the complaint, aside from the allegation of her knowledge of and participation in the fraud, she is the holder of the naked legal title which the plaintiffs seek to have subjected to their equities. "Equity will relieve by canceling the fraudulent apparent transfer, and by compelling a reconveyance or reassignment, even

as against the holder who is innocent of wrong." 2, Pom. Eq. § 913. The judgment of the court below is reversed, with costs, and the cause is remanded to the Third district court, with directions to the court to overrule the demurrer.

Where the offense charged is a felony, and the defendant remains a fugitive from justice, he has no right to be heard upon any appeal in his behalf in this court. Moreover, the orders of the lower court forfeiting the bail money on the non-appearance of the defendant, (though his counsel was present and wished to demur to the indictment,) and refusing to hear a motion to discharge the forfeiture, the defendant still being at large, are not appealable, and can only be reviewed on an appeal from a final judgment.

Appeal from the Third district court.

The defendant was indicted in the court below for burglary. When arraigned he pleaded not guilty, and his bail was fixed at $1,000, which sum he deposited with the clerk in lieu of bail, in accordance with the provisions of section of the criminal practice act, and was thereupon discharged from actual custody.. At a subsequent term of the court the case was set for trial on a certain day, and, when the case was reached for trial on that day, the defendant did not appear in person, but was represented by the attorney who had appeared with and for him at the time of the arraignment. When the case was called for trial, the defendant not appearing, the prosecution moved for a forfeiture of the money deposited in lieu of bail. The attorney who had before appeared for the defendant at this time objected to the defendant's being called, or any proceedings being taken to declare the deposit forfeited, "on the ground that the indictment in said cause did not set forth any public offense against the laws of the territory of Utah," and requested the privilege of being heard on the sufficiency of said indictment. The district attorney objected to the appearance of said attorney and to his right to be heard as requested, on the ground that the defendant had no right to appear by attorney or counsel, and that his attorney had no right to be heard in the case. The court so decided, and thereupon the defendant was called, and not appearing, an order of forfeiture was entered; to all of which the attorney for defendant excepted. Afterwards, but during the same term, and without any personal appearance on the part of the defendant, and without his surrendering himself in any way to the custody of any officer, his counsel moved the court to discharge the order of forfeiture upon the same grounds substantially on which he had sought to resist the entry of the order. The hearing upon this latter

motion was postponed from time to time and finally came on to be heard during the April term of the court, at which time the district attorney objected to the hearing of the motion, on the ground that the defendant was at large, and could not be heard in an application to discharge the forfeiture unless personally present, and in support of his objection presented a certificate of the United States marshal showing that the defendant was still at large, a fugitive from justice. The court received the certificate and refused to entertain said motion, to which counsel for defendant excepted. Afterwards the court ordered the clerk to pay over said deposit of money to the territorial treasurer, as directed by section 411 of the criminal practice act.

Zera Snow, for the People.

Arthur Brown, for defendant.

EMERSON, J. This appeal, prosecuted on the part of the defendant by his counsel, is from the order of the court forfeiting the money deposited in lieu of bail upon the default of the defendant in not appearing when the case was called for trial, and from the ruling of the court in refusing to entertain the motion to discharge the order of forfeiture, made by his counsel, while the defendant was still at large, a fugitive from justice, and without his having in any manner surrendered himself to the jurisdiction of the court subsequent to the order of forfeiture, and no excuse whatever being offered for his failure to appear at the trial, and also from the order of the court directing the clerk to pay over the money deposited to the territorial treasurer. When the cause was called for argument, the assistant district attorney (Zera Snow, Esq.) moved the court to dismiss the appeal on the ground that the defendant was still at large, a fugitive from justice. This fact is made to appear by the certificate of the United States marshal, nor is it denied by the counsel who prosecutes this appeal for the defendant; and upon the further ground that the orders themselves are not appealable. The appeal should be dismissed on both grounds. The offense charged is a felony, and so long as defendant remains a fugitive from justice he has no right to be heard upon any appeal in his behalf in this court. People v. Redings, 55 Cal. 290, where many cases are reviewed, all holding the same way. Certainly, this defendant has no right to be heard while he refuses to submit himself to the jurisdiction of the court upon any matters connected with the proceedings appealed from. The orders are not appealable. They were but steps in the criminal proceedings commenced by the filing of the indictment, and, if reviewable at all, could only be so on an appeal from a final judgment. People v. Clarke, 42 Cal. 622.

The appeal is dismissed.

(3 Utah, 292)

ZION'S CO-OPERATIVE MERCANTILE INSTITUTION v. HOLLIster.

Filed June 23, 1873.

Where the language of a statute is so obscure as to cause doubt as to the liability of an instrument to taxation, the construction is in favor of the exemption, as a tax cannot be imposed without clear and express words for that purpose.

The printed orders of a mercantile firm, to "pay to D. O. Calder or bearer five dollars in merchandise, at retail," are not "notes" in the sense the word is used in the United States statute, and are not liable to taxation.

J. L. Rawlins, for plaintiff and respondent.

P. T. Van Zile, for defendant and appellant.

TWISS, J. The plaintiff in its complaint alleges that it is, and was at the time therein mentioned, a corporation organized and existing under the laws of this territory, solely for the purpose of carrying on mercantile business; that the defendant at and during the same time was and is the acting collector of internal revenue for the United States; that in 1876 the plaintiff made certain mercantile orders of the denomination of one, two, and five dollars, which were used in paying its employes, who were willing to take their pay in merchandise, and also as a means of convenience in exchange for produce, which it was agreed should be paid for in merchandise, and that they were not made or used or paid or circulated for any other purpose whatever; that upon the twenty-fifth day of July, 1878, the United States commissioner of internal revenue set down and assessed against the plaintiff a special tax of 10 per centum, amounting to $10,000, as a tax upon notes alleged to have been used by plaintiff for circulation and paid out by it for and during the two months ending on the thirtieth day of November, 1876, and between the thirtieth day of November, 1876, and the first day of June, 1878; that the list containing said assessment was, by said commissioner of internal revenue, placed in the hands of the defendant as such collector; that the defendant, on the seventh day of August, 1878, as such collector, demanded of the plaintiff the payment of the aforesaid tax, assessed as aforesaid, and threatened that, unless payment of the same was made, he, the defendant, as such collector, would seize upon and sell sufficient of plaintiff's property to pay said tax; that, while defendant was so threatening to sell and about to sell the property of plaintiff, the plaintiff, under protest, and with notice then and there given by it to the defendant that the said tax was erroneous and illegal, and that suit by the plaintiff would be commenced against the defendant to recover the same, and to prevent the seizure and sale of plaintiff's property as threatened by the defendant, paid to the defendant the amount of said taxes, the sum of $10,000; that on the twenty-fifth day of September, 1879, the plaintiff in due form of law made its