"4. That William G. Greene and Edward Austin are properly made an intervening party in this action, and, as such intervening defendants, are entitled to a judgment that the plaintiff, Thomas Venard, take nothing as against them, or either of them, in this action, and that said Venard is not entitled to a decree to enforce his said lien, or to foreclose the same against the said mining property, or to any part thereof, and a judgment for their costs expended by them in the intervening suit.

"5. That the plaintiff, Venard, is not entitled to judgment against the defendant, the Old Hickory Mining and Smelting Company, for his wages, or for a decree, as prayed for in the complaint.

"6. That the defendant, the Old Hickory Mining and Smelting Company, are entitled to judgment against the plaintiff, Venard, for its costs in this action."

The conclusions of law are not supported by the findings of fact, but are directly contrary thereto.

The appellant was entitled to a judgment against the respondents for the amount of his wages, which the court finds due and unpaid, and I can preceive no reason why he was not entitled to a decree foreclosing his lien, and for an order of sale as against the intervenors.

His lien antedated that of the judgment upon which their right was founded, and he has done nothing to forfeit it, waive or postpone it.

It can make no difference with his rights as against the respondents or intervenors, that his co-plaintiff had obtained a judgment on his claim, and a foreclosure of his lien.

The record shows that the property will more than satisfy both liens, so that there will be no question about apportioning the proceeds of the sale.

The purchasers, at the execution sale, who are the intervenors here, must be held to have purchased the property subject to the prior lien of the appellant.

The judgment is reversed, and the case remanded.

ZANE, C. J., concurred.

TWISS, J., dissented.

A motion for a rehearing having been made, the following opinion was rendered.

POWERS, J.:

The intervenors, Austin and Greene, move this court for a rehearing, for the reason, as claimed, that the court did not give mature consideration to certain points involved. At the time the case was argued only one of the three members of the court, as now constituted, was then upon the bench. The case was argued at the January term, and the opinion was filed March 21, 1885.

There is nothing in the petition for rehearing that convinces us that the court did not fully consider all the questions in the case. On the contrary, an examination. of the opinion, which was prepared by Emerson, J., discloses that the court actually considered the very matters which we are now asked to review. Such being the case, this court will not presume that due consideration was not given. Moreover, the petition for rehearing fails to convince us that this court has committed any

error.

To justify a rehearing, a strong case must be made. We must be convinced either that the court failed to duly consider some material point in the case, or that it erred in its conclusions, or that some matter has been discovered which was unknown at the time.

In this case, the showing made is not sufficient to justify us in rehearing the cause. The application must be denied.

ZANE, C. J., and BOREMAN, J., concurred.

LINUS M. PRICE, Receiver, APPELLANT, v. THE UTAH AND PLEASANT VALLEY RAILWAY COMPANY, LOUIS H. MEYER AND GEORGE A. LOWE, as Trustees; WILLIAM M. SPACKMAN, THE RIO GRANDE WESTERN CONSTRUCTION COMPANY, THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, THE DENVER AND RIO GRANDE RAILWAY COMPANY AND THE PLEASANT VALLEY COAL COMPANY, RESPONDENTS.

PLEADING-FRAUD. The complaint set out in the case held to contain allegations of fraud sufficiently specific, and to state facts sufficient to constitute a cause of action.

APPEAL from a judgment of the district court of the first district.

The complaint referred to in the opinion is as follows: "Now comes the said plaintiff, Linus M. Price, and alleges and shows to the court:

"That prior to, and on the 20th day of May, A. D. 1882, The Pacific National Bank of Boston was a national banking association, organized and being a body corporate under the banking laws of the United States by the said name of The Pacific National Bank of Boston,' and was located at, and doing business in, the city of Boston, county of Suffolk, and state of Massachusetts. That on the said 20th day of May, 1882, the said banking association was insolvent, and unable to pay its just and legal debts, and afterwards, on the 22nd day of May aforesaid, the comptroller of the currency of the United States, viz: John Jay Knox, who was then the incumbent of said office of comptroller of the currency, became and was satisfied that the said banking association was insolvent as aforesaid, and that it continued so to be insolvent, and un

able to pay its said debts, on said 22nd day of May, 1882; and therefore the said comptroller, by his order and appointment, bearing date, and made at the city of Washington, in the District of Columbia, on the day last aforesaid, in pursuance of the power and authority vested in. him by law and under the provisions of Section one (1) of an act of Congress entitled 'An act authorizing the appointment of receivers of national banks and for other purposes,' approved June 30th, 1876, did appoint the said plaintiff, Linus M. Price, receiver of the said The Pacific. National Bank of Boston,' with all the powers, duties and responsibilities given to or imposed upon a receiver under the provisions of the statutes of the United States authorizing the appointment thereof in such case. That said plaintiff thereupon gave the bond and security required of him as such receiver by the said comptroller of the currency, and afterwards, to-wit: on or about the 25th day of May, 1882, the said plaintiff, as such receiver, took possession of all and singular the property and assets of said banking association, and proceeded to act, and has ever since, and does still, act as such receiver, in pursuance of said appointment and authority.

"That among the assets of said bank, and in the possession and custody of the plaintiff, as such receiver, are ninety-nine (99) bonds of the defendant, the Utah and Pleasant Valley Railway Company, of one thousand ($1,000) dollars each, hereinafter more particularly described.

"Plaintiff further alleges: That the said defendants, the Utah and Pleasant Valley Railway Company, and the Denver and Rio Grande Western Railway Company, are each a railroad corporation created and existing under the laws of Utah territory; and that the defendants, the Rio Grande Western Construction Company, and the Denver and Rio Grande Railway Company, are corporations existing under and by virtue of the laws of the state of Colorado, and are doing business in the said Territory of Utah.

"That the said defendant, the Utah and Pleasant Valley Railway Company, was so created and organized prior to

the 14th day of September, 1878, and for the purpose as defined in its articles of incorporation of constructing, maintaining, owning and operating a line of railroad, beginning at Provo city, in Utah county, in said territory, and extending thence in a southeasterly direction by the way of Spanish Fork canyon to the 'coal fields in Pleasant Valley, in Sanpete county, in said territory,' a distance of sixty miles.

"And the plaintiff further shows that the said The Utah and Pleasant Valley Railway Company, on the said 14th day of September, 1878, being lawfully authorized to borrow such sum or sums of money as might be necessary to construct, complete and equip its said railroad, did make, and thereafter issue and negotiate, a series of nine hundred (900) of its corporate bonds of one thousand ($1,000) dollars each, bearing date the said 14th day of September, and made payable to the bearer, at the agency of the said railway company, in the city of New York, on the first day of November, 1903, and were to bear interest from date at seven per cent. per annum, payable semiannually, on May 1st and November 1st, at the said agency. That the whole of said series of bonds had, prior to the 1st day of January, 1881, been sold by said company, and were then held by divers persons who had purchased the same in good faith, and for a valuable consideration. And plaintiff further avers that the said ninety-nine (99) bonds so held by him are a part of, and belong to, the said series of nine hundred (900) bonds so made, issued and negotiated by the said defendant, the Utah and Pleasant Valley Railway Company.

"The plaintiff further alleges that the said defendant, on said day, for the purpose of securing the payment of all the said bonds, principal and interest, according to the tenor and effect thereof, did make, execute and deliver to Henry P. DeGraaf and Theodore Wilkins, both of the city and state of New York, as trustees, a certain mortgage, or deed of trust, bearing date the said 14th day of September, 1878, whereby the said defendant railway company conveyed to the said trustees, for the purpose aforesaid, its said railway line, then in process of construction,