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view to indictments for the offenses named in that section, will have proved suicidal, and resulted in destroying all opportunity to find or try such indictments. We are not referred to any statutory provision, in any act of congress, or any act of the territory, which forbids the use of an open venire when the 200 names are exhausted. The argument is that the provisions of section 5 of the act of 1882 cover the entire subject of obtaining jurors, and do not allow of any supplementary measures; and that such measures cannot be resorted to unless affirmative statute authority, directed to the very point, is to be found.
The supreme court of Utah, in its opinion affirming the judgment in the present case, did not refer to any statute of congress, or of the territory, directly authorizing the open venire, but rested the power to issue it on the fact that such power was inherent in the court, and was not forbidden by any statute in force in Utah; and held that it followed as an incident to the authority and duty of the district court to hold its sessions and try by jury indictments for crimes. We concur in this view, so far as the resort to the open venire after the exhaustion of the 200 names is concerned.
The fourth section of the act of 1874 prescribes the rule to be observed, to the extent in which it prescribes any rule. It proceeds on the view that the jury-list of 200 names will be sufficient for ordinary purposes, or, as it expresses it, for "the regular grand and petit juries for the term;" and it provides what shall be done so long as there are any names left in the box. But it is silent as to what shall take place when the names are all exhausted. It does not forbid the ordinary and well-known resort to an open venire. Moreover, section 5 of the act of 1882, in regard to prosecutions like the present one, prescribes what shall be a sufficient cause of challenge to a person "drawn or summoned as a juryman or talesman," and what questions may be put to “any person appearing or offered as a juror or talesman;" thus recognizing a "talesman" as distinct from a "juryman" or a "juror. The persons drawn from the box of 200 names are "jurors," and are so defined and called in section 4 of the act of 1874. Congress, therefore, in using the word "talesman,” had reference to a person not drawn from such box. The word "talesman" is not satisfied by referring it to the additional jurors which section 4 of the act of 1874 says may and shall be drawn from the box, if they "shall be necessary," during the term. They are not talesmen, in any proper sense, but are as much regular jurors as those first drawn from that box.
The principle which authorized the action of the court in obtaining petit jurors, in this case, after the statutory measures had been exhausted, is sanctioned by authority. Bac. Abr. "Juries," C; 1 Chit. Crim. Law, 518; 2 Hale, P. C. 265, 266; Ū. S. v. Hill, 1 Brock. 156; Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. 326; Straughan v. State, 16 Ark. 37, 43; Wilburn v. State, 21 Ark. 198, 201; Gibson v. Com. 2 Va. Cas. 111, 121; Shaffer v. State, 1 How. (Miss.) 238, 241; Woodsides v. State, 2 How. (Miss.) 655, 659; State v. Harris, (Sup. Ct. Iowa, Sept. 1884,) 20 N. W. Rep. 439; S. C. 17 Chi. Leg. N. 58. By section 1868 of the Revised Statutes, the district courts of the territory have common-law jurisdiction, and, under section 1874 of the Revised Statutes, and section 1061 of the Compiled Laws of Utah, of 1876, those courts have original jurisdiction, in criminal cases. By section 217 of the Criminal Procedure Act of Utah, of February 22, 1878, all issues of fact in criminal cases must be tried by jury, and by section 7 the defendant in a criminal action is entitled to a speedy trial. A venire to summon jurors is a writ necessary to the exercise of the jurisdiction of the court, and agreeable to the principles and usages of law, where it is not forbidden or excluded, and where the affirmative provisions of law have, so far as they extend, been first observed. In U. S. v. Hill, (before cited,) Chief Justice MARSHALL, speaking of the law as it then existed, says: "It has been justly observed that no act of congress directs grand juries, or defines their pow
ers. By what authority, then, are they summoned, and whence do they derive their powers? The answer is that the laws of the United States have, erected courts which are invested with criminal jurisdiction. This jurisdiction they are bound to exercise, and it can only be exercised through the instrumentality of grand juries. They are, therefore, given by a necessary and indispensable implication. But how far is this implication necessary and indispensable? The answer is obvious. Its necessity is co-extensive with that jurisdiction to which it is essential."
(114 U. S. 464)
The cases to which we are referred by the plaintiff in error were cases where express statute provisions had been disregarded or violated. If, in this case, an open venire had been issued before the 200 names were exhausted, a different question would have been presented.
The record shows no error, and the judgment is affirmed.
CAVENDER v. CAVENDER.1
(April 20, 1885.)
1. PLEADING-Demurrer-COMPLAINT-OBJECTION AS TO MATTERS NOT WITHIN KNOWL
EDGE OF COURT.
A defendant cannot, by a demurrer, object to a bill in that it does not sufficiently set forth the nature of a trust imposed by a will; for the court cannot assume that any of the provisions of the will relating to the subject-matter of the trust were omitted from the bill.
ANSWER-ADMISSIONS BY DEFENDANT ESTOPPEL.
A defendant to a bill in equity, who states in his answer, under oath, the provisions of a writing which is presumed to be in his possession, cannot complain that the court acted upon his admission.
3. TRUSTEES-NEGLECT OF DUTY-MISMANAGEMENT OF PROPERTY-CAUSE OF REMOVAL. Neglect of duty and mismanagement of trust property, if proved, are sufficient grounds for the action of a court of equity in decreeing the removal of a trustee. 4. SAME-NEGLECT TO INVEST MONEY-BREACH OF TRUST.
Neglect to invest money in his hands is a breach of trust in a trustee, and is ground sufficient for his removal.
Appeal from the Circuit Court of the United States for the Eastern District of Missouri.
Robert S. Cavender, the appellee, was the plaintiff in the circuit court. stated his case in the blll of complaint substantially as follows: John Cavender, deceased, by his last will and testament, dated May 6, 1858, and probated in the probate court of the city-then county-of St. Louis, and state of Missouri, February 4, 1862, made and constituted the defendant, John S., Cavender, executor of his estate, and, after payment of debts, as therein mentioned, bequeathed one-half of the remainder of his estate to John S. Cavender, aforesaid, as trustee, to hold the same in trust for the use and benefit of the plaintiff during the term of his natural life, and by said will directed him to invest the same in real or personal securities, and to pay over the rents, profits, issues, and incomes thereof to the plaintiff semi-annually, at the end of every half year, during his life-time. The probate court, by its order and decree made on October 5, 1878, found in the hands of the defendant, as such executor, the sum of $17,169.49 belonging to the trust estate, and directed him to pay over the same to himself as trustee; and afterwards, on December 3, 1878, the defendant executed his bond as trustee, with sureties, in the penalty of $25,000, conditioned for the faithful execution of his trust. On April 22, 1879, John S. Cavender, trustee, filed in the probate court his written receipt, whereby he acknowledged that he had received from John S. Cavender, executor, the sum of $17,169.49, and thereupon prayed for his dis
1 S. C. 8 Fed. Rep. 641.
charge as executor of the said estate, which, on the same day, the court granted.
The bill then averred that if the said sum of $17,169.49 had thereafter been properly invested by the trustee, as by the terms of the will it became his duty to invest the same, it would have fairly yielded an annual income of 6 per cent., which was, by the terms of the will, payable semi-annually. It further alleged that, by the obligations assumed by John S. Cavender as trustee of the plaintiff under the will, it became his duty to set apart and invest in safe and permanent securities said trust fund so acknowledged to have been received by him, in order that it might remain intact, and yield a regular and certain income to the plaintiff from year to year. But the bill averred that Cavender had been guilty of a gross breach of his trust; that he had never set apart or invested any sum whatever in securities of any description, or in property or assets of any sort, as a trust fund for the benefit of plaintiff, or deposited in bank or elsewhere any sum of money to the credit of the trust estate, but, on the contrary, had converted to his own use and dissipated the whole of the trust estate, and all the assets and money belonging thereto, except certain lands in the state of Illinois, and that the income for the first six months from the trust funds was due, had been demanded, and was unpaid at the commencement of the suit. The bill further averred that there were large tracts of land in the state of Illinois belonging to the estate of John Cavender, the proceeds and income of which were, under his will, a part of the trust estate; that the profits of said lands and the proceeds of their sale would probably be large, which John S. Cavender would be likely to convert to his own use.
The prayer of the bill was that Cavender might be removed from his office of trustee, and a proper person appointed in his stead, to whom he might be ordered to pay over the said sum of $17,169.49, with the interest due thereon. A demurrer was filed to the bill and overruled by the court. Thereupon Cavender answered, admitting that "John Cavender, deceased, by his last will and testament, dated and probated as specified in the bill, did constitute the defendant executor of his estate, and bequeathed one-half the residue of his estate, after the payment of debts, to the defendant as trustee, to hold said moiety in trust for the use and benefit of complainant during complainant's natural life, to be invested in real or personal securities, and the income thereof only to be paid over to the complainant semi-annually during his life-time;" but averring that by the terms of said will, after the lapse successively of the life-estate of complainant and Charlotte M., his wife, in the trust property aforesaid, such property would descend to defendant and his heirs, in feesimple, forever, discharged of the trust aforesaid.
The answer also admitted "that the probate court of the city of St. Louis, by its judgment of October 5, 1878, found to be due and ordered to be paid by this defendant, as executor, to this defendant, as trustee, the sum of $17,169.49, and that thereafter the defendant made and executed his bond as such trustee with good and sufficient sureties, whereby he bound himself to the state of Missouri, to the use of all persons beneficially interested, in the penal sum of twenty-five thousand dollars, and conditioned for the faithful performance by this defendant as such trustee of the trust created by the provisions of said will as aforesaid;" but denied "that on the twenty-second day of April, 1879, as alleged in said bill, he filed as such trustee in said probate court his written receipt, whereby he acknowledged to have received from himself as executor the said sum of $17,169.49, and was thereafter, on April 30, 1879, granted his discharge as executor by said probate court," and averred the fact to be that he had “never received as trustee, at the date of said alleged receipt or at any other time, from himself as executor, aforesaid, or from any source, the sum of seventeen thousand one hundred and sixty-nine dollars and forty-nine cents, or any other sum whatsoever, on account of said
trust estate," and denied that any income had accrued in his hands from said trust estate to which the plaintiff was entitled, and admitted that no part of such income had ever been paid to the plaintiff.
The answer admitted that Cavender held the lands referred to in the bill, and that their proceeds and income should be set aside for the benefit of said trust estate, but denied that he would be likely to convert and absorb the same, and denied that he had mismanaged the trust estate. The plaintiff filed the general replication to the answer, and, upon the final hearing, besides the admissions of the answer, offered the following evidence:
First. A certified copy of the original receipt of the defendant, on file in the probate court of the city of St. Louis, which was in the words and figures following:
"IN THE PROBATE COURT, CITY OF ST. Louis.
"In the Matter of the Estate of John Cavender, Deceased. "ST. LOUIS, April 22, 1879. "I, John S. Cavender, trustee of Robert S. Cavender and others, under the last will and testament of John Cavender, deceased, acknowledge that I have received from John S. Cavender, executor of said deceased, the sum of seventeen thousand one hundred and sixty-nine and 40-100 dollars, ordered to be paid to me by said probate court. Entered of record in the records of said court on the fifth day of October, 1878.
"JOHN S. CAVENDER, Trustee."
Second. A certified copy of a paper writing, on file in the same probate court, signed by W. G. Eliot, George Partridge, E. S. Rouse, and John S. Cavender, entitled In the Matter of the Estate of John Cavender, Deceased, and dated St. Louis, April 23, 1879, in which it was recited that John S. Cavender, executor of the last will of John Cavender, deceased, had, on October 5, 1878, been ordered by the said probate court to pay over to himself, as trustee of Robert S. Cavender, under the last will of John Cavender, the sum of $17,169.49, and after such order the said John S. Cavender, trustee, as principal, and the said Eliot, Partridge, and Rouse, as sureties, executed and filed their bond, dated December 3, 1878, in the penalty of $25,000, conditioned for the faithful execution of his trust by said trustee, and that said John S. Cavender had given to himself, as said executor, his receipt, dated April 22, 1879, for the sum of $17,169.49, and, on the strength of said receipt as a voucher, was about to apply to the said probate court for his discharge as such executor. The writing then proceeded as follows:
"Now we, William G. Eliot, George Partridge, and Edward S. Rouse, acknowledge, as such sureties, that said John S. Cavender has, in law, received, and is now bound, as such trustee, for said sum of seventeen thousand one hundred and sixty-nine and 49-100 dollars, as for cash actually received, and that the said bond is still in full force, and binding upon the undersigned, to all intents and purposes, in contemplation of law, touching the custody of said fund, as for cash actually received, and the execution of said trust concerning the same. And John S. Cavender, on his own part, as trustee and principal in said bond, admits the full and binding force of the above admission."
Third. A certified copy of the order of the probate court discharging John S. Cavender as executor of the estate of John Cavender, deceased, which was dated April 30, 1879, and was based on the ground that John S. Cavender had filed a receipt, signed by himself as trustee, acknowledging the receipt from himself, as executor, of the sum of $17,169.49, and was as follows:
*"ESTATE OF JOHN CAVENDER.
"Now comes John S. Cavender, executor, and files the receipt dated April 22, 1879, given by John S. Cavender, trustee of Robert S. Cavender and Car
oline M. Cavender, to said executor, for seventeen thousand one hundred and sixty-nine 49-100 dollars, ordered by this court, October 5, 1878, to be paid by said executor to said trustee, and it appearing to the court that on the inth day of December, 1878, said trustee filed his bond as trustee in the St. Louis circuit court, conditioned for the faithful execution of the trust vested in him under the will of said John Cavender, deceased, with William G. Eliot, George Partridge, and Edward S. Rouse as sureties; and said trustee, with said sureties, having, on the twenty-third day of April, 1879, filed in this court their written admission that said trustee has in law received and is bound for said sum of seventeen thousand one hundred and sixty-nine 49-100 dollars, as for cash actually received, and that said bond is in full force as to the custody of said sum as for cash actually received, and for the execution of the trust touching the same; and said executor, asking for his discharge on the strength of said receipt and admission, and said Robert S. and Caroline M. Cavender, having by counsel, T. A. Post, appeared to said motion for discharge, and submitting the same on their part without argument or objection; now, therefore, in view of the premises, the court being in possession of the evidence, and having fully considered the same, doth order that said John S. Cavender be, and he is hereby, finally discharged as such executor."
All the foregoing evidence was received by the court without objection by the defendant.
Fourth. The deposition of J. S. Fullerton, who testified that money could be safely lent on real estate security in the city of St. Louis, in 1878 and part of 1879, at 7 per cent. per annum, and in the latter part of 1879, and since that year, at 6 per cent. per annum net.
Fifth. The deposition of John S. Cavender, the defendant, who stated that he was the trustee of Robert S. Cavender, but had made no investments for him, and that he had placed no money to the benefit of the trust fund in securities of any sort, or in bank, and had set aside no annuities for the benefit of Robert S. Cavender or the trust estate.
No proofs were offered for the defendant, and the court, upon the evidence above recited, made a decree removing John S. Cavender as trustee and appointing John M. Glover in his stead, and directing Cavender, upon demand, to pay over to Glover, trustee, the said sum of $17,169.49, and such sums of money as had been received and collected by Cavender from sales of land or otherwise since April 30, 1879, belonging to the trust fund.
From this decree John S. Cavender has brought the present appeal.
Lucien Eaton and Henry Hitchcock, for appellant. Wm. A. McKenney, for appellee.
WOODS, J. The first contention of the plaintiff in error is that the demurrer to the bill should have been sustained, because the nature of the trust was not therein so sufficiently set forth as to form the foundation of a decree on the part of a court of equity. Whether the trust was fully and accurately set forth could not be known until the filing of the answer or the taking of the proofs. When the dumurrer was heard, from all that then appeared, the exact provisions of the will of the testator raising the trust, and all the terms and conditions of the trust, were stated in the bill. It could not then be known whether or not there was anything more to state. What was stated showed the creation of a trust estate, the appointment of a trustee, the designation of a cestui que trust, and specific directions to the trustee in respect to his duties. The court could not assume that any of the provisions of the will relating to the subject-matter of the trust were omitted from the bill, and what was stated was sufficient, if correctly stated, to enable the court to act intelligently. The demurrer was, therefore, properly overruled. But the defendant refused to stand on his demurrer and answered the bill. Having,