cree of the court, could be remedied by a motion to set aside the sale

made under and in pursuance of the decree of foreclosure, which is final until annulled or reversed. Bullard v. Greene, 10 Mich. 268; Crawford v. Tuller, 35 Mich. 57. We are therefore not required to examine any question growing out of the decisions of the court, other than the order of the court overruling the motion to vacate and set aside the sale for errors committed in executing the decree. Errors in the decree, or committed by the court anterior to it, are all matters which were duly considered by the court, and a motion to set aside a sale made under the decree is not a correct way of reviewing the proceedings of the court, as there is no claim that the judgment and decree is invalid. The district court, having decided that Meyer and Lowe were trustees of the mortgage, they are to be regarded as such in all proceedings upon this motion. They are the legal representatives of all the bondholders, no one of whom is permitted by motion to interfere with the proceedings of the court.

In Shaw v. Railroad Co. 100 U. S. 611, WAITE, C. J., in the opinion of the court, said:

"The trustee of a railroad mortgage represents the bondholders in all legal proceedings carried on by him affecting his trust to which they are not actual parties, and whatever binds him, if he acts in good faith, binds them."

If the trustees combined with others to defraud the bondholders, or any of them, or if they did not act in the good faith required of them, a remedy might doubtless be had in a suit properly brought for that purpose, making all persons interested parties, by proving the fraud in a trial on issues correctly framed; but a mere motion to vacate and set aside a sale by a person not a party to the record is an improper and inadequate mode of trying such important matters as are involved in these proceedings. Ward v. Clark, 6 Wis. 509.

We are of the opinion that the order of the district court in overruling the motion to vacate and set aside the sale, and in sustaining the motion to confirm the sale, should be, and it is, affirmed.

HUNTER, C. J., and EMERSON, J., concur.

* (1 Ariz. 490)

SUPREME COURT OF ARIZONA.

DAWSON V. LAIL.

January Term, 1884.

Where several promissory notes all bear the same dates of issue and of matu rity, and are payable to the same party, are sued upon as one cause of action, judgment rendered thereupon will not be disturbed because a separate statement upon each note is not made.

No motion to retax costs being made in the court below, the question cannot be raised for the first time in this court.

Appeal from Yavapai district court, Hon. C. G. W. FRENCH, Judge, presiding.

PINNEY, J. This was an action brought on five several bills of exchange executed by the appellant, all bearing the same date, and all due and payable at the same time, and all made payable to the respondent or his order, and each for the same amount. The complaint states but one cause of action. A demurrer was interposed on the ground that more than one cause of action being declared upon, the complaint should separately state the same. The demurrer was overruled, an answer filed, the cause tried, and judgment entered in favor of respondent.

It is claimed that the court below erred in overruling the demurrer. Counsel insist that where a complaint sets up more than one cause of action, each count must contain all the facts necessary to constitute a cause of action. Section 64 of chapter 48 of the Compiled Laws provides that the plaintiff may unite several causes of action in the same complaint, when they all arise out of contracts, express or implied, etc., when the causes of action so united shall all belong to one class, affect the same parties, tried at the same place, and be separately stated.

It is claimed that several bills of exchange are several causes of action, and should be separately stated. In Van Namee v. Peoble, 9 How. Pr. 198, it is held that each promissory note is a distinct and complete cause of action in itself, and must be stated in a separate count. The complaint in that case sets forth three promissory notes of different dates and amounts; and while we are of the opinion that the better practice would be to make a separate statement on each note or bill, still, in a case like the one at bar, where the bills all bear the same date, and are made payable to the same party and at the same time, we do not feel inclined to disturb the judgment because a separate statement is not made. A protest of each of the bills were made

by the respondent, for which costs were allowed in the sum of $12.50, and it is urged that no protest of an inland bill of exchange is necessary unless prescribed by local law. Conceding this to be the law, there was no motion made in the court below to retax costs, and that question cannot be raised for the first time in this court. Judgment affirmed.

SHELDON, J., concurred.

(65 Cal. 100)

SUPREME COURT OF CALIFORNIA.

PEOPLE V. MAJORS. (No. 10,900.)

Filed March 13, 1884.

The Penal Code gives no right of appeal from an order denying a motion in arrest of judgment, nor from a judgment upon a plea of former conviction. A motion for a new trial is not authorized until after all the issues of fact have been tried, and hence there can be no appeal from an order denying such a motion.

Department 1.

The Attorney General, for respondent.

J. B. Lamar, for appellant.

BY THE COURT. To an information filed August 27, 1883, charging the defendant with the murder of one Archibald McIntyre, in Santa Clara county, on the eleventh of March, 1883, defendant, without a plea of not guilty, pleaded a former judgment of conviction of the same offense. Upon the plea so interposed a trial was had and a verdict rendered for the people. Defendant then moved in arrest of judgment, and also made a motion for a new trial, both of which motions were denied by the court, and thereupon judgment was given against him on the plea. He appeals from the judgment, from the order denying his motion in arrest of judgment, and also from the order refusing him a new trial. It is clear that there is no authority for the appeal from the judgment, nor for that from the order denying the motion in arrest of judgment. Sections 1237 and 1259 of the Penal Code read:

"Sec. 1237. An appeal may be taken by the defendant (1) from a final judgment of conviction; (2) from an order denying a motion. for a new trial; (3) from an order made after judgment, affecting the substantial rights of the party.'

"Sec. 1259. Upon an appeal taken by the defendant from a judgment, the court may review any intermediate order or ruling involving the merits, or which may have affected the judgment."

Section 1237 does not give an appeal from an order denying a motion in arrest of judgment. The appeal from the order is therefore without authority, and must be dismissed. So, too, with respect to the appeal from the judgment upon the plea of former conviction. It is obvious that such a judgment is not "a final judgment of conviction." It only determines that the defendant has not been previously convicted of the offense of which he now stands charged, leavv.3, no.4-26

ing the question of his conviction or acquittal open, to be determined after a trial. With respect to the appeal from the order denying defendant a new trial, the statute does not contemplate a motion for a new trial until all the issues of fact have been tried. And inasmuch as the law did not authorize the motion for a new trial made by the appellant in the court below, it results that there can be no appeal from the order denying such a motion.

Appeals dismissed.

(65 Cal. 191)

PEOPLE V. FORSYTHE. (No. 10,927.)

Filed March 13, 1884.

Where evidence tends to prove a homicide excusable, it raises a conflict for the jury to determine, subject to the power of the court to grant a new trial. We cannot, then, on the ground of want of evidence to justify the verdict, disturb the order denying a motion for a new trial.

The reading of the decisions of this court to a jury is not commended, but not held to be error.

In bank.

The Attorney General, for respondent.

Buck & McQuaid, for appellant.

SHARPSTEIN, J. Although the defendant pleaded not guilty to the charge of murder, he did not attempt on the trial to controvert the fact that he actually killed the deceased. He endeavored then to prove that the homicide was committed in self-defense, and justifiable. He now claims that this was so clearly proven as to justify this court in reversing the judgment on the ground that the verdict of the jury, which was, guilty of manslaughter, was not justified by the evidence. One witness testified to having seen the defendant approach deceased from behind and strike him on the head with a club. Another, who was near the scene of the homicide, testified that he heard a noise which sounded to him like a blow; that he looked in the direction from which the noise came and saw the deceased falling. Two other witnesses testified that they, too, heard the blow and saw the deceased fall, and that they heard the defendant say that he intended to kill the deceased. These witnesses testify to having been within a few feet of the scene of the homicide when it was committed. Another witness-a physician-testified that he was requested by defendant to examine the deccased and ascertain how badly he was hurt, and that he, witness, at that time asked defendant why he had done it, and that the latter replied, "Damn him, he sassed me." The