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to be his lien as authority for it. It cannot be assumed that the payment was made as that of a mere volunteer, or as that of one meddling with something in which he knew he had no interest. The evidence shows that the payment was made in the honest belief that appellant held a valid lien upon the land, and he was only seeking to prevent the paramount lien of the taxes from destroying the value of what he believed to be his own lien against the lands. The decision in Brier v. Bank, supra, had not been rendered at that time; and, as far as any judicial interpretation of the statute relating to the continuation of judgment liens pending the year in which a revival must be had was concerned, it may be said to have been an open question at that time. In Fiacre v. Chapman, 32 N. J. Eq. 463, a second mortgagee redeemed from certain tax sales which the complaint alleged were invalid, and this was not denied; but in an action to foreclose the first mortgage, to which the second mortgagee was a party, he sought to recover what he had paid. The court, at pages 464 and 465 of the opinion, says: "But, while the defendant has not established a paramount title under the sales (indeed, he claims none, but only a lien), he has shown that he has paid, by way of redemption, taxes assessed upon the property, and which, under the charter, were a prior lien to the complainant's mortgage, and for nonpayment whereof the property might have been sold, and under a sale a title superior to the complainant's mortgage given. **But it is urged on behalf of the complainant that, though the taxes were a lien on the land paramount to the first mortgage, yet the lien is discharged by the payment. If it be conceded that the lien was discharged by the payments, that will not deprive Mr. Mitchell of his right of reimbursement for the payments out of the property in advance of the lien of the complainant's mortgage. They were in no sense voluntary. It is proved that he made them, relying on the lien for his indemnity. He, indeed, was not compelled to make them by any duty he owed the complainant; but in order to relieve the property from the paramount lien of the taxes, and protect it for himself against the consequences thereof, he was constrained to make them. Having thus preserved the property to the complainant as well as himself, he is entitled to equitable subrogation.

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In Merrill v. Tobin, 82 Iowa, 529, 48 N. W. 1044, the plaintiff entered certain lands, through an agent, upon county land warrants, and received from the United States a patent therefor. The land was not fenced, and was wild, unbroken, and uncultivated prairie. The plaintiff's title was defeated in the action by the defendants showing possession in themselves; the acts of posses

sion being such as the cutting of hay and stacking. it upon the land, and such other acts of dominion over it as it was susceptible of in its wild state. For 18 years the plaintiff paid the taxes upon the land, and during all that time was a nonresident of the state, and did not visit the land, and had no knowledge of any adverse claim thereto or of any one being in possession thereof until at the end of that time, when he immediately commenced an action to quiet his title thereto. It was held that the plaintiff was justified in the payment of the taxes on the land, since the evidence showed that such payment was made in good faith. It was also held that, since the present owners of the land acquired title thereto with full knowledge of the facts relating to the payment of the taxes thereon by the plaintiff, the plaintiff was entitled to have the taxes so paid established as a lien upon the land. To the same effect are the following Iowa cases: Goodnow v. Moulton, 51 Iowa, 555, 2 N. W. 395; Goodnow v. Litchfield, 63 Iowa, 275, 19 N. W. 226; Thompson v. Savage, 47 Iowa, 522. See, also, Schaefer v. Causey, 8 Mo. App. 142. In Parks v. Watson (C. C.) 20 Fed. 764, it is held that the state has a lien upon all lands until all taxes are paid, and that, when taxes are paid by others than the owner of the land, the state must be considered as transferring its lien to such party, and the only way that equity should relieve the owner from the burden of such lien is by payment. Thus, it is the tendency of the courts to see that those who have in good faith advanced the money to pay public taxes are protected. This is equitable and just. No one is injured thereby. The tax lien is paramount, and payment of the taxes inures to the benefit of both the owner and lienholder. So in this case the taxes paid by appellant inured to the benefit of respondent as mortgagee. It would be unconscionable that respondent should reap the benefit of such payment without making any compensation therefor. It must therefore be held that appellant is entitled to have the amount of taxes he paid, with interest thereon from date of payment, decreed to be a lien upon the lands for which payment was made, and such lien shall be superior to the mortgage lien of respondent. In all other particulars the judgment of the lower court is affirmed, and the cause is remanded, with instructions to the lower court to modify the decree as herein indicated, and provide that the proceeds of sale under the decree shall be applied-First, to the payment of appellant's lien for taxes; and, second, to the payment of respondent's mortgage lien

REAVIS, C. J., and FULLERTON, ANDERS, DUNBAR, and MOUNT, JJ., concur.

LESLIE v. STATE. (Supreme Court of Wyoming. July 26, 1901.) FORGERY-EVIDENCE-INFORMATION-SUFFICIENCY-INSTRUCTIONS.

1. Rev. St. 1899, § 5128, declares that forgery consists, among other things, of falsely making or publishing any order or warrant for the payment of money, or power to receive money, with intent to prejudice or defraud any one. Held, that an indictment charging that defendant did publish and pass as true a false, forged, and counterfeit writing, knowing the same to be false and forged, with intent to prejudice and defraud one S., setting out the writing, which recited that accused was authorized to collect for a certain newspaper, was sufficient, as against a motion in arrest of judgment.

2. Under Rev. St. 1899, § 5346, declaring that the defendant in a criminal case may be examined as a witness if he so elect, but that he shall not be required to testify, and that if he so elect he may make a statement to the jury without being sworn, but failure to make a statement shall not create any presumption against him, "nor shall any reference be made to, nor any comment be made upon, such neglect or refusal," when accused neither testified, nor made any statement, it was not error to refuse to charge that the defendant was not required to testify, and that the jury could not presume anything against him because of such failure.

3. Where, on a prosecution for forgery, there was evidence that accused had endeavored to collect money from one S., a subscriber for a newspaper, and that he exhibited to him a false writing purporting to be executed by the manager of the newspaper, and authorizing accused to collect for the paper, it was proper to instruct that to utter and publish an instrument is to declare, by words or actions, that the same is genuine, and that if the instrument was false, and defendant knew it, and he published the same with intent to defraud S., there should be a verdict of guilty.

Error to district court, Sweetwater county; David H. Craig, Judge.

J. H. Leslie was convicted of forgery, and he brings error. Affirmed.

E. E. Enterline, for plaintiff in error. J. A. Van Orsdel and Taliaferro & Watts, for the State.

KNIGHT, J. Appellant was convicted of forgery, and given three years in the penitentiary, under a statutory provision of Wyoming (Rev. St. 1899) particularly intended, it would seem, to cover a multitude of sins, which is as follows:

"Sec. 5128. Every person who shall falsely make, alter, forge or counterfeit any record or other authentic matter of a public nature, or any charter, letters-patent, deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, covenant, United States treasury note or United States bond, bank bill or note, post note, check or draft, bill of exchange, contract, promissory note, due bill for the payment of money or property, receipt for property or money, power of attorney, any auditor's warrant for the payment of money at the treasury, county order or any accountable receipt, or any order or warrant or request for the payment of money or the delivery of goods or 65 P.-54

chattels of any kind, or for the delivery of any instrument of writing or acquittance, release or receipt for money or goods, or any acquittance, release or discharge for any debt, account, action, suit, demand, or other thing real or personal, or any transfer or assurance of money, moneys, stock, goods, chattels or other property whatever, or any letter of attorney or other power to receive money, or to receive or transfer stock or annuities, or to let, lease, dispose of, alien or convey any goods or chattels, lands or tenements or other estate real or personal, or any acceptance or indorsement of any bill of exchange, promissory note, draft or order, or assignment of any bond, writing obligatory, promissory note for money or other property, or shall counterfeit or forge the seal or handwriting of another, with intent to damage or defraud any person or persons, body politic or corporate, whether the said person or persons, body politic or corporate reside in or belong to this state or not; or shall utter, publish, pass or attempt to pass as true and genuine, or cause to be uttered, published, passed, or attempted to be passed, as true and genuine, any of the above named false, altered, forged or counterfeited matters as above specified and described (knowing the same to be false, altered, forged or counterfeited). with intent to prejudice, damage or defraud any person or persons, body politic or corporate, whether the said person or persons, body politic or corporate, reside in this state or not, shall be deemed guilty of forgery, and upon conviction thereof shall be punished by confinement in the penitentiary for a term not more than fourteen years."

The evidence in this case shows that the plaintiff in error on March 31, 1900, appeared at the place of business of one Charles Swanson, in the city of Rock Springs, Sweetwater county, Wyo., and continues as follows: "I was home to dinner. When I come back from dinner this gentleman over there come in, and asked me if I was Mr. Swanson. I says, 'Yes;' and he told me that he was writing up the town and taking up subscriptions for the Denver News, and he didn't have the list of subscribers. He said he left them up in the hotel, but he showed me a couple of them blue receipts, and he said also that the price is a little cheaper now; he said reduced rates. So I told him I got the paper. I was paid up a short time ago, but he told me if I renew the subscription it would be a little cheaper. And he told me that he had changed territory with Caldwell. Caldwell is the man that travels through Wyoming and collects for the Denver News, and he told me he got Nebraska, and Leslie told me he got Wyoming, and he told me that Mr. Campbell, the business manager of the News, was an uncle of his. He shows me a paper that he was authorized to collect for the Denver News. So I told him to come around a little later, I was short of small change. I telegraphed to the Denver News

He went in. I heard a window

business manager as to whether it is forgery
or not. (Defendant, by counsel, excepts to
the statement of the court made in the pres-
ence of the jury.)" Exhibit A reads as fol-
lows: "Established 1859. The Leading Pa-
per of the West.
Denver, Colorado.
Sunday. By mail:

Rocky Mountain News, Daily and Weekly; also Daily $7.50, weekly $1.00, per year. Denver, Colorado, March 1st, 1900. This is to certify that this Mr. J. H. Leslie, of New Orleans, La., is our authorized representative of the Rocky Mountain News; has full authority to make collections, receive payment for subscriptions and advertisements. C. R. Campbell, Business Mngr." The defense offered no evidence. During the giving of the evidence for the prosecution numerous objections were made to the testimony, and the record shows that the trial court was more than generous to the defendant, as, for instance, witness Swanson was asked: "Q. Did he represent that he was the agent of the Rocky Mountain News? A. Yes. (Objection was made as being incompetent. irrelevant, and immaterial. The court struck it out as leading.)" The foregoing recital serves to show that the facts in evidence conduced to establish the guilt of the accused, and further than this we are not authorized to examine the testimony, being confined exclusively, under the express language of the law, to a review of errors of law appearing of record, and then only when they are such as to affect the substantial rights of the accused.

to find out if he was authorized to collect. I got an answer: 'We have no such agent in Wyoming. Mr. Leslie is a fraud.'" Then follows evidence of the arrest, and he continues: "We went up to the city hall. Mr. Morton [the officer who had made the arrest] asked him by what authority he go around | and collect for the Denver News, so he pulls out the same paper he showed me, and shows Morton, with the business manager's signature in Denver." Witness identified paper Exhibit A. A. G. Morton testified that he was a deputy sheriff, and gave the following evidence: "Went up to the room. Knocked at the door. Told him who I was; that I had a warrant for him, and asked him to come outside. He said he would as soon as he was dressed. It was just about the head of the stairs. I sat down on the stairway to wait for him. I looked up in a couple of minutes. I sat there about that long. I see a gentleman standing at the head of the stairs. I asked him if he was Mr. Leslie. He said, 'No.' He asked me if I wished to see him. I said, 'Yes.' He said he would call him. go open. I went to the door, and told him to come out. He came out. I took him over to the city hall. I asked him what authority he had to represent the Rocky Mountain News. He showed me the letter of authority there. [Exhibit A.] He took that paper out of his pocket; handed it to me; says, "That is my authority.' I asked him who gave him that authority. He says, 'Mr. Campbell gave it to me.' Q. Did he say what business Mr. Campbell's was? A. I asked him. He says he was business manager of the Rocky Mountain News." C. R. Campbell testified as follows: That he was business manager of the Rocky Mountain News at the time, and also on March 31, 1900; that he had never seen J. H. Leslie (defendant below) before, that he was aware of; that the Rocky Mountain News was published in Denver. He was shown the letter identified by former witnesses (Exhibit A). Testified that the signature was not his; that he never gave the letter to J. H. Leslie; that he did not know whose signature it was; that the instrument was not true and genuine; and that defendant was no relation of his, that he was aware of. During the examination of this witness, and at about this point, the following incident occurred, upon which error is claimed: "Q. Did you, as business manager of the Rocky Mountain News, ever authorize the defendant, J. H. Leslie, to make collections, receive payment, or receive subscriptions or advertisements, for the paper? A. No, sir. (Ob--which said writing on paper was and is jected to by counsel on behalf of the defendant, as being incompetent, irrelevant, and immaterial. No allegation in this indictment that he is business manager of the Rocky Mountain News. Objection overruled. Defendant, by counsel, excepts.) By the Court: It is a matter for the jury to pass on as to his representing having authority from the

By a motion in arrest of judgment, the appellant first raises the sufficiency of the information. This instrument is as follows: "Comes now John H. Chiles, county and prosecuting attorney of the county of Sweetwater, in the state of Wyoming, and in the name and by the authority of the state of Wyoming informs the court, and gives the court to understand, that J. H. Leslie, late of the county aforesaid, on the 31st day of March. A. D. 1900, at and in the county aforesaid, having in his hands and possession then and there a writing on paper of the tenor following: 'Established 1859. Rocky Mountain News. The Leading Paper of the West. Daily and Weekly; also Sunday. Denver, Colorado. By mail: Daily $7.50, weekly 1.00, per year. Denver, Colorado, March 1st, 1900. This is to certify that this Mr. J. H. Leslie, of New Orleans, La., is our authorized representative of the Rocky Mountain News; has full authority to make collections, receive payment for subscriptions and advertisements. C. R. Campbell, Business Manager,'

false, forged, and counterfeited, did then and there, well knowing the same to be false, forged, and counterfeited, unlawfully and feloniously utter, publish, and pass the same to Charles Swanson as true and genuine, with the intent to prejudice and defraud the said Charles Swanson, contrary to the form of the statute in such case made and provid

ed, and against the peace and dignity of the state of Wyoming."

In order that we may keep in mind the office of a motion in arrest of judgment, we quote from section 845, Abb. Tr. Brief, Cr.: "A motion to arrest judgment must be founded on some fundamental defect in the indictment. [Citing a number of authorities.] The defect must appear from the record itself. Evidence extrinsic to the record cannot be received, even though such evidence was given on the trial. [Authorities cited.]" It is urged that it was contended by the prosecution in the district court that the instrument set forth in the information was a letter of attorney or other power to receive money, and that such contention is illogical; that it does not authorize the defendant to receive any particular sum of money from Mr. Swanson, nor does it show for whom any collections are to be made; that it could not be considered the instrument of, or one executed by, the Rocky Mountain News, nor does it appear whose instrument it is; that the instrument did not have the capacity to injure or defraud, and it is not the subject of forgery, and, if an instrument does not show on its face that any one can be defrauded, extrinsic facts must be averred to show its fraudulent tendency; that, if it be urged that the instrument set forth in the information purports to be executed by the Rocky Mountain News, then it does not appear that the Rocky Mountain News is a corporation, nor does it show that said instrument was executed by an agent or officer of any corporation; that the information can only be sustained by indulging in the most violent presumption. Upon this contention a case in point is that of Harding v. State, 54 Ind. 359, from which we quote: "The first, and, indeed, the only, serious objection urged by appellant's counsel to the second count of the indictment is that the instrument of writing, called a 'promissory note,' and set out in the indictment, is not a promissory note, within the meaning of the law, on which an indictment for the forgery of a promissory note could be predicated. * * * In our opinion, in the case at bar the instrument of writing for the alleged forgery of which the appellant was indicted was correctly described in the second count of the indictment as a promissory note. But if we were in error holding, as we do, that the instrument of writing set out in the indictment was properly described therein as a promissory note, a contrary decision would be of no benefit to the appellant. The argument of appellant's counsel is this: It appears upon the face of the indictment that the instrument forged was not a promissory note, and therefore his conclusion is the indictment was insufficient, and ought to have been quashed. But, from our standpoint, the argument is unsound and illogical. In our view of the case, appellant was indicted for forging a certain instrument.

We look to the copy of the

instrument, and not to the name which may be given to the instrument, to determine whether or not the instrument appears on its face to be of such a character that a forgery could be predicated thereon." This authority is in point only as to the contention of counsel, as the instrument set out in the information is not designated therein as a letter of attorney or other power to receive money. The information in this case charges directly and certainly that Leslie did publish, utter, and pass, as true and genuine, a false, forged, and counterfeit writing, on paper, knowing the same to be false, forged, and counterfeited, with intent to prejudice and defraud one Charles Swanson. Under the provisions of section 5128, supra, the information charges a violation of law, and the uncontradicted evidence above set out sustains the charge.

Our former Chief Justice Groesbeck, in Santolini v. State, 6 Wyo. 110, 42 Pac. 746, has so thoroughly discussed this section 5128 (then section 924, Rev. St. 1887), and the cases being so similar, several authorities presented being the same, that we will not leave any proposition made that was not abandoned at the time of the argument of this case, if we leave the errors of law complained of at this point, as well as the question of the variance between the initials of Campbell as set out in the information and proven on the trial. The claim made, that the language of the court, supra, to which exception was taken, was prejudicial error, may also be disposed of in the same way. As to the error claimed by reason of the refusal of the court to give certain instructions requested by defendant, many of them are disposed of already in this opinion. The first one (No. 12), while instructions somewhat similar are not new to the criminal practice of the state, upon reflection would seem unreasonable, in view of the fact that, if not particularly requested by defendant, and given by the court of its own motion, or at the request of the prosecution, it would clearly have been in violation of a provision of statute. It is as follows: "No. 12. You are instructed that the defendant is not required to testify, and the jury have no right to presume anything against him because he has failed to testify." It might be urged that this instruction would bear the interpretation that, in addition to the legal presumption of innocence until guilt appears from the evidence beyond a reasonable doubt, if the defendant fail to testify, an additional presumption accrues to him; but, if this requested instruction were less broad, it would be subject to considerable objection. Our statute upon this subject differs from those of other states, and from counsel's reading or quoting of it, and is as follows:

"Sec. 5346. The defendant in all criminal cases, in all the courts in this state. may be sworn and examined as a witness, if he so elect, but shall not be required to testify in

any case. If the defendant so elect, he may make a statement to the jury without being sworn, but the neglect or refusal to make a statement shall not create any presumption against him, nor shall any reference be made to, nor shall any comment be made upon, such neglect or refusal."

Counsel overlooked the words, "nor shall any reference be made to." The court did instruct the jury, at the request of the defendant, as follows: "The jury are instructed that the law presumes the defendant innocent in this case, and not guilty as charged in the information, and the presumption should continue and prevail in the minds of the jury until they are satisfied by the evidence beyond all reasonable doubt of the guilt of the defendant; and, acting on this presumption, the jury should acquit the defendant, unless constrained to find him guilty by the evidence, convincing them of such guilt beyond all reasonable doubt." The language used by the court during the trial to which exception was taken is complained of as an incorrect definition of forgery, but it could not have been prejudicial as claimed, when the instructions given by the court are considered. After instructing the jury as to the statute under which the defendant is be

ing prosecuted, the court gave the following

instructions: "To utter and publish an instrument is to declare or assert, directly or indirectly, by words or actions, that such instrument is true and genuine, and it is immaterial whether the same be accepted or not." "The court instructs the jury that if they believe from the evidence, beyond reasonable doubt, that the instrument set forth in the information is a false or forged instrument; that the defendant knew the same to be false or forged; and that he uttered or published the same to Charles Swanson, with intent to prejudice, damage, or defraud the said Swanson,-then you will find the defendant guilty as charged in the information." There were 11 instructions given the jury that were requested by defendant, and 8 refused. Of the latter, three were peremptory instructions to the jury to find the defendant not guilty, and the remaining ones, if followed by the jury, would have precluded a verdict of guilty under the evidence in this case. The case demanded no further instructions than those given. Judgment affirmed.

POTTER, C. J., and CORN, J., concur.

DE CLARK v. BELL.

(Supreme Court of Wyoming. July 26, 1901.) CONVERSION-DEMAND-GARNISHMENT-VOID

PROCEEDINGS EVIDENCE.

1. A demand on a person in possession of notes transferred to secure a debt by the owner of the notes, with a tender of the amount of the debt, or the return of the property, and a refusal, held prima facie evidence of conversion.

2. Defendant held certain notes as collateral for a debt owing by the owner of the notes, and surrendered them to a justice in garnishment proceedings against such owner at a time when the principal debt had not been paid, nor any tender made. After such notes had been paid by the maker, and surrendered to him, and payment of the principal debt had been made out of the proceeds, the owner of the notes made a tender of the debt, and demand for the return of such notes. Held, that defendant was not liable for conversion of the same on refusal to return them

Error to district court, Sheridan county; David H. Craig, Judge.

Action for conversion by F. A. De Clark against J. B. Bell. From a judgment in faAfvor of defendant, plaintiff brings error. firmed.

J. F. Hoop, for plaintiff in error. E. E. Lonabaugh and J. C. Baird, for defendant in error.

POTTER, C. J. This is an action for the recovery of damages for the alleged conversion of three promissory notes. February 5, 1898, the plaintiff became indebted to defendant upon a note for $300, due three months after date. To secure that indebtedness, plaintiff delivered to defendant as collateral security three promissory notes for $100 each, given by one W. P. Waters to plaintiff, dated August 12, 1897, and due, respectively, "on or before" 33 months, 3 years, and 39 months after date. The petition, after alleging the agreement of defendant to return the collateral notes upon payment of the principal debt, charges that, prior to the commencement of the suit, plaintiff tendered the balance remaining due and unpaid upon the principal debt, and demanded the return of said collateral notes, but that defendant refused to return them, and had unlawfully and wrongfully converted the same to his own use, to plaintiff's damage in the sum of $350.64. It is also alleged that at the time of the conversion, which is charged to have occurred December 5, 1898, the plaintiff was the owner and entitled to the immediate possession of the notes. Although neither the pleadings nor the evidence fixed the date of the tender and demand, it is reasonably to be inferred that it occurred some time after December 5, 1898, and probably a short time previous to April 19, 1899, the date when the suit was instituted. The reason why the 5th day of December, 1898, was mentioned as the date of the alleged conversion becomes apparent upon consideration of the answer and testimony on behalf of defendant; for on or about that date the acts of defendant occurred that are deemed to constitute the alleged conversion. The testimony of the plaintiff showed no positive act of conversion, nor did it show whether or not the defendant had parted with the possession of the notes, but plaintiff's case was confined to proof of the tender, demand, refusal to surrender, and value of the notes; the value being fixed at the

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