demand is good, notwithstanding the statute; and when successfully pleaded is a bar to the remedy. It does not otherwise regulate or affect the debt. The expiration of the time, which enables the debtor to plead the statute as a defense to an action to recover a debt, does not operate as payment or extinguishment. The debt survives, although the debtor is enabled, if he so elects, to plead the statute and thereby defend an action brought thereon: Grant v. Burr, 54 Cal. 298. There is no intention expressed in the resolutions of relying upon the statute as defense to any indebtedness of the defendant, and Scott and Holbrook were not invested with any express discretion or authority with reference to the statute of limitations as a defense to any demand against the defendant. They were "directed to make and deliver to the several stockholders who have loaned money to this company, and for the liabilities of this company, the notes of this company for such loans and liabilities." A debt within the statutory law is a good consideration for a new promise, although made by an agent, if within the scope of his power. 'An acknowledgment made by an agent in respect to demands relating to concerns within the scope of his authority, is binding upon his principal:" Angell on Lim. 261. It is to me quite clear that the inclusion of these items in the notes was not an unauthorized act, and therefore the value of the note, because the statute might have been successfully pleaded, to an action upon them, had one been commenced, is not thereby impaired. For these reasons, sanctioned by many authorities, I am of the opinion that the court erred in instructing the jury that, "if the jury find that any of the items entering into the amount of the note in this case were barred by the statute of limitations in force in Michigan at the date of this note, the amount at which they were figured in the note should be deducted therefrom, as not being a legal liability under the resolution offered." This instruction is erroneous in another respect. Instructions should be precise and certain to a particular intent, and the law applied to facts in evidence clearly expressed. Telling the jury that if they should find that any of the items included in the note were barred by the statute, the amount of such items should be deducted therefrom, is not an intelligible statement of the law applicable to the particular facts in evidence. Reference to the statute, although it may have been copied in hæc verba into the pleadings of the case, is not informing them what facts are necessary to bring the debt or demand within the statutory bar: Thompson on Charging the Jury, sec. 67. The record presents a large number of assignments of error, but the foregoing is sufficient in principle, if correctly applied to the facts of the case, to determine all the material questions raised or argued by counsel. The judgment of the district court is reversed, and the case remanded for a new trial. EMERSON, J., Concurred, and HUNTER, C. J., dissented. DEE v. HYLAND ET AL. Filed August 24, 1883. CONVERSION OF HORSE-STATUTE OF LIMITATIONS.-Where a horse is wrongfully converted from its owner and afterward sold to a bona-fide purchaser, who uses it in an open and notorious manner, without attempting to conceal it, the statute of limitations commences to run in favor of such purchaser and against the owner from the time of the purchase, and not from the time when the owner discovers the whereabouts of the horse. APPEAL from a judgment of the district court, entered in favor of the defendants. The opinion states the facts. N. Tanner and Hoge & Jonasson, for the appellant. TWISS, J. This is an action for the recovery of the possession of a horse alleged to be the property of the plaintiff, with a prayer for judgment against the defendant for the possession of the horse, in case possession can be had; but if possession thereof could not be had, then, in such case, for the value of the horse. Among other defences, the statute of limitations was pleaded. A trial by jury was waived, and the case tried by the court. Evidence was properly admitted at the trial, upon which the court found the following facts: "The plaintiff purchased the horse in question in 1873, and used him until May, 1877, then put him out to pasture. The horse disappeared in June, 1877. Plaintiff spent several days with others in looking for him, and notified the sheriff of Weber county of his loss, and desired him to keep watch for him, and also notified his friends among ranchers and cattlemen. The plaintiff never saw the horse again until he saw him in the possession of the defendants in Ogden on the twenty-eighth or twenty-ninth day of September, 1881, at which time he demanded possession of the horse, and upon their refusal, commenced this action." The defendants bought the horse of Parsons in March, 1878, and have used him on their ranch in Box Elder county ever since, just as they used their own horses. There has been no effort on their part to conceal the horse, neither has he been concealed, but their possession has been open and notorious. Parsons, of whom the defendants purchased, bought the horse of Kimball and Richardson prior to the tenth day of September, 1877, and Parsons' possession had also been open and notorious: and finds, as a conclusion of law, that the statute of limitations pleaded by the defendant had run against the claim of the plaintiff and that he is not entitled to recover the horse in this form of action, and that the defendants are entitled to the return of the horse, and in case return cannot be had, a judgment for its value. This case is to be distinguished from those in which the action is based upon a fraud committed by the defendant upon the plaintiff, who, by reason of the fraudulent or wrongful conduct of the defendant, never discovers the fraud, and has no knowledge of a right of action until after the period of limitation has passed, like First Massachusetts Turnpike Corp. v. Field, 3 Mass. 201; Bailey v. Glover et al., 21 Wall. 342; Atlantic National Bank v. Harris, 118 Mass. 143. In these and similar cases the plaintiff, by reason of the concealment on the part of the defendant, did not know of the injury or fraud committed until after the expiration of the statutory limitation; and the question as to the application of the statute was between the wrongdoer upon one side and the injured party on the other. It would seem in such cases that justice and a sense of common honesty ought to prevent a person. from using this statute as a means of successfully practicing a fraud upon his victim, unconscious of the wrong perpetrated upon and concealed from him. In the case at bar the plaintiff knew he had lost possession of his horse, but did not know whether it was dead or alive; and if alive, whether it had strayed or been stolen, or where it was, or who, if any one, had possession of it. While this was the state of facts as to the plaintiff, the defendants and their vendors purchased, held and used the horse in good faith, making no effort to conceal it, either from the plaintiff or any other person; their possession had been notorious more than three years before the plaintiff knew who had the horse, or made a demand for its possession. Which of these parties, plaintiff or defendant, both innocent and without fault, must be the loser? It is not claimed that the horse was impounded and sold as an estray under the statute; the conclusion is, therefore, inevitable, that some person, after the horse was turned out to pasture by the plaintiff in June, 1877, wrongfully converted it to his own use before it was sold to Kimball and Richardson in the following September, and although the horse was honestly purchased by the defendants and their vendors, yet the possession and use of it by them was a wrong upon, and in violation of the rights of, the plaintiff, from the time they respectively received it, for which he had a remedy by action at law, for an unlawful conversion to their use: Gilmore v. Newton, 9 Allen, 171; Truds v. Anderson, 10 Mich. 357. Does the fact that the plaintiff did not know who had the horse, nor where it was, affect the rights of either party to this action, as to the statute of limitations pleaded as a bar? The statute contains no exception exempting plaintiffs who are ignorant of the facts necessary to give them a right of action from its limitations, and there is none implied by law, unless that ignorance is occasioned by some improper conduct of the defendant: Smith v. Newly, 13 Mo. 159. Where there is no proof of fraud on the part of the defendant, the general rule is that the time of limitation runs from the time of the commission of the wrongful act, or the right of action accrues, and not from the time of the knowledge of the act by the plaintiff, there being no proof of any wrongful conduct on the part of the defendant, by means of which that knowledge is concealed from the plaintiff: Addison on Torts, 1164; Jordan v. Jordan, 4 Green, 175; Thomas v. White, 3 Littell, 177. Wells v. Halpin, 59 Mo. 92, was an action in the nature of replevin, and the only defense relied on was the statute of limitations. The court, quoting from Foley v. Jones, 52 Mo. 64, says: "It may be conceded that the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned by some improper conduct on the part of the defendant," and then proceeds as follows: "This is now the uniform construction and no reason is perceived warranting a departure from it." The same doctrine is maintained in Wood on Limitations, 382, and numerous authorities are cited in its support. The judgment of the district court is affirmed. MEYER ET AL., Trustees, Etc., v. UTAH AND PLEASANT VALLEY RAILWAY COMPANY. Filed January 17, 1884, FORECLOSURE SALE, HOW ATTACHED FOR FRAUD.-A sale by the trustees of a railroad mortgage, under a decree of foreclosure, and in strict compliance with the terms thereof, will not be set aside on motion of a bondholder not a party to the record. If the trustees combine with others to defraud the bondholders, or any of them, or if they did not act in good faith, relief may be had in a suit properly brought for that purpose, in which all the persons interested are joined as parties. APPEAL from an order refusing to vacate and set aside a foreclosure sale. The opinion states the facts. Williams & Young, for the appellant, Price. Bennett & Harkness, for the respondents. TWISS, J. This suit is brought in the first district court by Louis H. Meyer and George A. Lowe, trustees, to foreclose a mortgage or trust deed given by the defendant upon its railroad and other property to secure the payment of a series of nine hundred bonds of one thousand dollars each, issued and negotiated by the defendant, and on the twenty-first day of February, 1882, judgment and decree was rendered foreclosing the mortgage upon the corporate franchises of the defendant, upon its railroad running from Provo city to the coal fields in Pleasant valley, in this territory, upon all of its rolling stock and equipments, and upon all its lands, hereditaments and appurtenances, including the interest of defendant in all coal lands and coal veins, and all buildings, offices, trucks and fixtures of every nature, and used in connection with said coal mine, owned by or in trust for the defendant, in townships twelve and thirteen, south of range seven east, in said territory of Utah, and formerly in San Pete, but now in Emery county. The plaintiffs Meyer and Lowe were by the said decree declared to be the lawfully constituted trustees of said deed of trust, and as such, and upon the trusts therein mentioned, vested with the title to the properties, rights and franchises described in said deed of trust, and were authorized to sell the same. It also appears by the record that in an action then pending in said court, wherein William M. Sparkman was plaintiff, and the Utah and Pleasant Valley Railway and Thomas C. Platt were defendants, a judgment was rendered by the court, on the twenty-fourth day of April, 1882, decreeing that the east half of the southeast quarter of section eight, and the west half of the northwest quarter of section thirty-three, and the west half of the southwest quarter of section twenty-eight, and the southeast quarter of the northwest quarter, and lot No. five, and the south half of the northeast quarter of section six, all in township thirteen, south of range seven, east of Salt Lake meridian, containing 466.48 acres, more or less, be sold by a receiver, and that the plaintiff, Lowe, was appointed such receiver for that purpose; that the avails of such sale be applied in payment of such judgment; and further adjudging that the sale so made shall transfer and be a bar upon the defendant, the Utah and Pleasant Valley Railway Company, as to all right, title, interest, use, beneficial interest and right of possession of said company in and to the premises so sold; and also transfer and be a bar upon the defendant, Thomas C. Platt, as to all the right, title and interest acquired by him, or which he has or holds in trust or otherwise by or under the deeds to him from Goss and Cochrane. It also further appears by the record that the sale so decreed was made by the said receiver on the eleventh day of July, 1882, for the sum of $40,000 to William M. Sparkman, he being the highest bidder, and that being the highest sum that was bid for the same; that he made payment for the same by paying cash to the amount of $135.25; that the balance thereof, $39,864.75, was credited on a judgment in favor of said Sparkman against said railway company, pursuant to the directions of said decree. The record further shows that the mortgage or deed of trust to foreclose which this suit is brought, prescribes "that the said trustees, or either of them, may be removed by instrument of writing under the hands and seals of a majority in interest of the outstanding bonds secured hereby. * That in case at any time hereafter, either of the said trustees, or any future trustee hereafter appointed, shall die, or resign, or be removed as herein provided, or by a court of competent jurisdiction, or become mentally incapacitated to execute the trust, a majority in amount of the holders of the then outstanding bonds issued hereunder, shall have the right and power by instrument in writing, under their hands and seals, to appoint a new trustee to fill such vacancy." That on the thirty-first day of August, 1881, William Sparkman, being the owner and holder of four hundred and eighty-two bonds, amounting in the aggregate to $482,000, exclusive of interest, and constituting a majority in number and interest of all the bonds, secured by the mortgage or deed of trust, removed * |