Opinion of the Court--Beatty, J.

the district court has granted a motion for a new trial before settling the statement, and before the motion has been submitted, it is proper to move in the district court to vacate the order; and if that motion is denied, though the ruling of the district court must be reversed on appeal, the cause will be remanded "for further proceedings for the orderly determination of the motion for a new trial."

If the motion in this case was decided before it was submitted, or what is equivalent to the same thing, if it was decided without complying with the conditions upon which it was submitted, it was prematurely decided, and the inadvertence of the judge ought not to prejudice the moving party. Now what were the conditions upon which the motion was submitted? There were no express conditions, but there were conditions clearly implied. The engrossed statement was sent from Eureka to Austin, and submitted to the district judge at the same time that the motion was submitted. It was clearly his duty to attach the proper certificate to the statement before he decided the motion, and it must have been the understanding on both sides that he would do so. The submission was therefore a conditional submission, a submission upon the understanding that the statement should be settled before the decision of the motion.

But the district judge, through inadvertence, decided the motion first, and before the defendants discovered and had time to remedy the inadvertence, the plaintiff took and perfected his appeal, and now claims that he has by that means forever deprived the respondents of any opportunity of having their motion decided upon its merits. We think, that if the facts are as suggested, he is mistaken in that view. We must undoubtedly reverse the order of the district court, but we only reverse that order. If there is nevertheless a motion for a new trial regularly pending, and if that motion has never been decided in accordance with the terms of its submission, there is nothing to prevent the district judge from now settling and certifying the statement and then deciding the motion upon its merits.

The order appealed from is reversed and the cause remanded.

Opinion of the Court-Hawley, C. J.

[No. 808.]

WILLIAM ARRINGTON AND M. B. BARTLETT, PLAINTIFFS, v. F. R. WITTENBERG, DEFENDANT.

FORECLOSURE OF MECHANICS' LIEN-SECTION 345 OF PRACTICE ACT CONSTRUED. -In construing section 345 (1 Comp. L. 1406): Held, that there is nothing in the section that requires an undertaking,' in an action to foreclose a mechanics' lien, to secure the money part of the judgment in order to stay the order directing the sale of the property.

IDEM.—The only provision for a covenant in the undertaking to pay any deficiency arising upon the sale applies solely to cases in which the judgment is for the sale of mortgaged premises.

ORIGINAL Motion in Supreme Court for leave to issue an order of sale.

The facts are stated in the opinion.
Crittenden Thornton, for the Motion.

G. W. Baker, against the Motion.

By the Court, HAWLEY, C. J.:

The plaintiff obtained a judgment and decree of foreclosure of a mechanic's lien and an order of sale of certain real estate.

The decree recites a money judgment, and after directing a sale of the premises to satisfy said judgment, provides for the docketing of a judgment against defendant, for any balance that may be due to plaintiffs after the proceeds of said sale have been properly applied.

The defendant gave notice of an appeal to this court from said judgment and decree, and filed two undertakings on appeal. One being in the sum of three hundred dollars, conditioned to "pay all damages and costs which may be awarded" against the appellant, as required by section 341 of the civil practice act (1 Comp. L. 1402.) The other, in the sum of one thousand dollars (being the amount fixed by the judge of the district court, who rendered the judgment), conditioned "that during the possession of said property by said appellant, he will not commit, nor suffer to be committed, any waste thereon, during the time he is so in pos

Opinion of the Court-Hawley, C. J.

session; and that we will pay to said Wm. Arrington and M. B. Bartlett, all damages which they may suffer by reason of the commission of any waste upon said premises during the time said appellant is in possession of the same." Upon this state of facts, the plaintiffs move this court for leave to issue an order of sale of the premises described in the decree of foreclosure and sale. Said motion is based upon the ground that said undertakings are insufficient in law to stay the execution and order of sale, for two reasons: First. Because "there is not any covenant or undertaking to pay the personal judgment.' Second. Because "there is not any covenant or undertaking to pay any deficiency which may ensue upon a sale of the said premises."

We think the whole question rests exclusively upon the construction to be given to section 345 of the practice act, and, in our judgment, but one interpretation can be given to it. It reads as follows: "If the judgment or order appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two or more sureties, to the effect that, during the possession of such property by the appellant, he will not commit, nor suffer to be committed, any waste thereon, and that, if the judgment be affirmed, he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or order made, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment for a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. In all other cases, not herein before mentioned, the amount of the undertaking to stay the execution of the judgment or order, shall be fixed by the court or judge thereof." (1 Comp. L. 1406.)

The motion is not for leave to issue execution upon the money judgment. In fact, no appeal was taken from that part of the judgment; but only from that part which estab

Points decided.

lishes a lien upon the property of defendant, and hence the only question for our decision is whether, under the provisions of the section above quoted, the undertakings are sufficient to stay the issuance of the order of sale. There is nothing in the section that requires an undertaking to secure the money part of the judgment, in order to stay the order directing a sale of the property. The only provision for a covenant in the undertaking to pay any deficiency arising upon the sale, applies solely to cases in which the judgment is for the sale of mortgaged premises. The statute in this respect clearly discriminates in favor of giving this security only "when the judgment is for the sale of mortgaged premises." No other liens are mentioned. The maxim expressio unius est exclusio alterius applies.

If the legislature had intended that mechanics' or other liens should be governed, in this respect, by the same rule as mortgages, it would have been so stated. The supreme court of California has given to a statute identical with the section quoted the same interpretation. (Englund v. Lewis, 25 Cal. 353.) The fact that section 248 of our practice act contains the words "or lien," in providing for actions for the foreclosure of mortgages, does not, in any manner, change or affect the interpretation to be given to section 345, upon which alone the points raised as to the sufficiency of the undertakings to stay the issuance of the order of sale, must be determined. We are of opinion that the undertaking to stay waste complies with the provisions of the statute, and is sufficient to stay the issuance of the order of sale. The motion is denied.

[No. 807.]

Ex PARTE W. C. RICORD.

EMBEZZLEMENT-SECTION 2380 COMPILED LAWS CONSTRUED. -In construing section 2380 of the compiled laws: Held, that money received by a clerk who is intrusted by his employer with bills to collect, in the ordinary course of his business as a clerk, is money intrusted to him by his employer. IDEM.-Petitioner was an assistant of the agent of the Central Pacific R. R. Co., and had been held out to the public by the agent as having authority

Argument for Petitioner.

to collect bills, and was enabled, by reason of the trust reposed in him by the company, to collect the company's money and discharge its debtors from their obligations to the company: Held, that although he had no general authority to collect all bills due the company he was, under the circumstances, intrusted by the company with the money which he collected.

IDEM. It does not lie in the mouth of petitioner to deny that he had the authority which he claimed in order to collect the money, and which the confidence reposed in him by his employer enabled him to claim with success. COMMITMENTS FOR EMBEZZLEMENT AND OBTAINING MONEY UNDER FALSE PRETENSES.-Where petitioner was held by the sheriff under a commitment of a justice of the peace for embezzlement, and while so held was taken before the district judge upon habeas corpus and the district judge, after hearing further testimony, made an order committing him to the custody of the sheriff for the offense of obtaining money under false pretenses: Held, that the order of the district judge did not, ipso facto, discharge petitioner from further custody under the warrant for embezzlement.

IDEM-SUPREME COURT HAS AUTHORITY TO ISSUE COMMITMENT.

Where a

petitioner is brought before the supreme court upon a writ of habeas corpus, the court is authorized, if after examining the case it should be of opinion that petitioner was guilty of an offense other than that held, to issue a new commitment.

INDICTMENT FOR EMBEZZLEMENT. A clerk may commit more than one embezzlement of his employer's money, and if he does he may be separately indicted for each separate offense.

IDEM-BURDEN OF PROOF.-If the money from different parties was all collected before any portion of it was converted, then petitioner committed but one offense; but the burden of establishing this fact is upon petitioner.

HABEAS CORPUS before the Supreme Court.

The facts are stated in the opinion.

Harvey S. Brown, M. S. Bonnifield, T. W. W. Davies and J. R. Kittrell, Attorney-General, for the State.

Robert M. Clarke, for Petitioner.

I. In holding Ricord to answer for the crime of "obtaining money under false pretenses" in the habeas corpus proceeding, Judge Bonnifield discharged him of the crime of "embezzlement."

Upon the same facts it is not possible that Ricord could be guilty of "obtaining money under false pretenses" and "embezzlement;" because "embezzlement" involves the