"case made," which is a model of brevity and clearness, and reflects great credit upon the able counsel who prepared it. The case has also been very ably presented to this court by counsel on both sides. The amount involved in this controversy seems to be small and trifling, but the principles involved are supposed to be of vital importarce, and counsel for plaintiff in error, defendant below, says that the decision of the case involves the possible liability for not only many dollars, but many hundreds of thousands of dollars. We have, therefore, given the case a very careful consideration.

The record of the case, as presented to this court, shows that on October 4, 1883, David Atchison filed his petition in the district court of Leavenworth County, Kansas, in which petition he alleged, among other things, that he was then and had been for more than five years, the legal and equitable owner of a certain piece of land, describing it, situated in Platt County, State of Missouri, and being on what is commonly known as "Leavenworth Island;" that the defendant, George McGonigle, did, on or about March 1, 1883, unlawfully and wrongfully enter upon said premises and dig sand thereon, and remove, take and carry away, to the city of Leavenworth, and convert and appropriate the same to his own use, to-wit: 200,000 bushels, of the value of one cent per bushel, to the damage of the plaintiff in the sum of $2,000, and prayed judgment for the sum of $2,000 and costs. To this petition the defendant answered, the answer being a general denial. Upon the issues as thus made the cause came on for frial before the court and a jury; whereupon the defendant objected to the introduction of any testimony, upon the ground that the petition did not state facts sufficient to constitute a cause of action of which the district court had jurisdiction. This objection was overruled by the court and the trial proceeded, and resulted in a verdict for the plaintiff of $1.00. The defendant moved for a new trial, upon the ground of error of law occurring at the trial and duly excepted to, which motion was overruled and the defendant excepted. Judgment was then rendered in favor of the plaintiff and against the defendant for $1.00 and costs, to which judgment the defendant excepted and now brings the case to this court for review. Counsel for plaintiff in error, defendant below, states in his brief that the question involved in this case is as follows: "Is this a local or transitory action? Is it trespass quare clausum fregit or trespass de bonis asportatis?" We think the question may be more properly stated as follows: Do the facts of this case show a cause of action that is transitory or one that is purely local? Or, in other words, do the facts of this case show a cause of action in the nature of trespass de bonis asportatis or trover, on the one side, or trespass quare clausum fregit, on the other side? If the facts show a cause of action in the nature of trespass de bonis asportatis, or trover, then the action is certainly

transitory; but if they show only a cause of action in the uature of trespass quare clausum fregit, then the action is admittedly local. The distinction between transitory and local actions, both at common law and under the Code, is generally and substantially as follows: If the cause of action is one that might have arisen anywhere, then it is transitory; but if it is one that could only have arisen in one place, then it is local. Hence, actions for injuries to real estate are generally local, and can be brought only where the real estate is situated; while actions for injuries to persons or to personal property, or relating thereto, are generally transitory, and may be brought in any county where the wrongdoer may be found. These propositions we suppose are conceded. But the real contention between the parties to this action is whether the real and substantial grievance set forth by the plaintiff as the foundation for his action is one which related merely to real estate or one which may be considered as fairly relating to personal property. The petition states wrongs relating both to real estate and to personal property. It states that the defendant unlawfully and wrongfully entered upon the plaintiff's premises, in Missouri, and dug sand thereon. This of course was a wrong relating to real estate only; but the petition also states that after the sand was severed from the real estate, the defendant then removed the same to Leavenworth City, Kansas, and there converted and appropriated the same to his own use; and these last mentioned wrongs certainly related to personal property only; for as soon as the sand was severed from the real estate it became personal property. This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law writers. Besides, the plaintiff in this case, after alleging the above mentioned wrongs, then asks for damages only for the wronful conversion of the sand, which was personal property, and does not ask for damages for injuries done to his real estate. He seems to waive all the wrongs and injuries done with reference to his real estate and to his possession thereof, provided the digging and the removal of the sand was any injury to either, and sues only for the value of the sand which was converted. We think it is true, as is claimed by the defendant, that the petition states facts sufficient to constitute a cause of action in the nature of trespass quare clausum fregit; but it also states facts suflicient to constitute a cause of action in the nature of trespass de bonis asportatis, and of trover; and we think the plaintiff may recover upon either of these latter causes of action, for they are unquestionably transitory, although it must be conceded that he cannot recover upon the former cause of action; for it is admittedly local in its character, and because the plaintiff has brought his action in a jurisdiction foreign to the one where this local cause of action arose. But as the plaintiff asks no relief pertaining specially to the local cause of ac

tion, but only such as may be given upon the facts of the transitory cause of action we think he may recover. All the old forms of action are abolished in Kansas. We now have no action of trespass quare clausum fregit nor of trespass de bonis asportatis, nor of trover; but only one form of action, called a civil action. Civil Code, § 10. And under such form of action all civil actions must be prosecuted; and all that is necessary in order to state a good cause of action under this form is to state the facts of the case in ordinary and concise language without repetition. Civii Code. § 87. And when the plaintiff has stated the facts of his case, he will be entitled to recover thereon just what such facts will authorize. Fitzpatrick v. Gebhart, 7 Kas. 42; Kunz v. Ward, 28 Kas. 132. We now look to the substance of things and not merely to forms and frictions. If the facts stated by the plaintiff would authorize a recovery under any of the old forms of action, he will still be entitled to recover, provided he proves the facts. If the facts stated would authorize one of two or more kinds of relief, he may then elect as to which kind of relief he will obtain; and the prayer of his petition will generally indicate his election. And if one kind of relief is beyond the jurisdiction of the court, and the other within such jurisdiction, the plaintiff may elect to receive that kind of relief which is within the jurisdiction of the court. We think the plaintiff may maintain his present action as an action in the nature of trespass de bonis asportatis, or trover. When the sand was severed from the real estate it became personal property; but the title to the same was not changed or transferred. It still remained in the plaintiff. He still owned the sand and had the right to follow it and reclaim it, into whatever jurisdiction it might be taken. He could recover it in an action of replevin (Richardson v. York, 14 Me. 216; Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574); or he could maintain an action in the nature of trespass de bonis asportatis, for damages for its unlawful removal (Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 232); or he could maintain an action in the nature of trover, for damages for its conversion, if it were in fact converted; (Tyson v. McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; Riley v. Boston W. P. Co., 65 Mass. (11 Cush.) 11; Nelson v. Burt, 15 Mass. 204; Forsythe v. Wells, 41 Pa. St. 291: Wright v. Guier, 9 Watts (Pa.), 172; Mooers v. Wait, 3 Wend. (N. Y.); 104) or he could maintain an action in the nature of assumpsit, for damages for money had and received, if the trespasser sold the property and received money therefor. Powell v. Rees, 7 Ad. & El. (Eng.) 426: Whidden v. Seelye, 40 Me. 255; Halleck v. Mixer, 16 Cal. 574. See, also, in this connection, the case of Fanson v. Linsley, 20 Kas. 235. In all cases of wrong, the tort, or a portion thereof, may be waived by the party injured, and he may recover on the remaining portion of the tort or on an

implied contract, provided the remaining facts will authorize such a recovery.

Mr. Waterman, in his work on Trespass, uses the following language: "Sec. 1,102. Although as standing trees are part of the inheritance, and the severing them from it is deemed an injury to the freehold, for which trespass quare clausum fregit is the appropriate remedy, yet the party may waive that ground of recovery, and claim the value of the timber only thus severed and carried away. In the one case the entering and breaking of the close is the gist of the action; in the other, the taking and carrying away of the property. In the latter case the action is transitory, and not local." See, also, Nelson v. Burt, 15 Mass 204; Halleck v. Mixer, 16 Cal. 574.

The plaintiff in error, defendant below, has cited a large number of authorities, but under our code of practice and procedure they hardly apply to the facts of this case. Those nearest applicable are the following: Am. Un. Tel. Co. v. Middleton, 80 N. Y. 408; Frost v. Duncan, 19 Barb. (N. Y.) 560; Howe v. Willson, 1 Denio (N. Y.), 181; Sturgis v. Warren, 11 Vt. 433; Baker v. Howell, 6 Serg. & R. (Pa.) 476; Powell v. Smith, 2 Watts (Pa.) 126; Uttendorffer v. Saegers, 50 Cal. 496. The case of the Telegraph Company v. Middleton, ante, was where the defendant committed a trespass by cutting down telegraph poles in a highway and throwing them in the ditches and on the fences on the sides of the highway, and leaving them there. There was no asportation from the premises, no conversion, and no intended asportation or conversion; and the court held that the action was therefore trespass quare clausum fregit, and not trover, and that the action was therefore local in its character, and not transitory. The case of Frost v. Duncan, ante, was not decided by a court of last resort; and the main question decided was that two causes of action were improperly joined in one count. Besides, in that case, the defendants were in the actual possession of the land, claiming the same as their own under a deed. The next four cases were not decided under any reformed code of procedure, and we do not think that the seventh and last case cited conflicts with the views that we have expressed. The fact that the question of title to real estate was incidentally raised in this case makes no difference. See the cases heretofore cited, and especially Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574. The plaintiff was in possession, claiming to own the property, while the defendant was a mere wrongdoer, with no claim of interest in the land.

We have so far considered this case as though it made no difference whether the sand was severed from the real estate and carried away by one act or by two or more; nor do we think that it can make any difference. Under any circumstances, the sand remains the property of the owner of the land until he chooses to abandon the same. We suppose that if the sand were severed from the

real estate by one act, and then carried away by another, this proposition would not be questioned, and probably it will not be questioned even if the sand was severed and carried away by a single act; and if the sand remains the property of the owner of the real estate, and we think it does, there can be no good reason why he should not be entitled to all the remedies for its recovery, or for loss or damages for its injury, or detention or conversion, which he might have with respect to any other personal property.

The judgment of the court below will be affirmed.

NOTE.-1. Local and Transitory Actions.-Generally actions are transitory, because the wrong being personal, redress may be sought wherever the wrong-doer may be found. Wrongs that are local form an exception, and these must be brought, not only in the country, but in the very county where committed. Cooley Torts, 471. The test usually employed for determining whether local or transitory, is the one mentioned above in McGonigle v. Atchison. See also Mason v. Warner, 31 Mo. 508; Cooley Torts, 471. If the subject of the complaint is the conversion of certain property, it will not render the action local merely because incidentally a trespass upon realty was committed. For though trespass will lie for the injury done to the realty by cutting and removing trees, ores, etc., (Austin v. Huntsville, 72 Mo. 535; Hewitt v. Harvey, 46 Mo. 369); yet, trover will lie for the value of that carried away and converted: Atlantic etc. R. R. v. Freeman, 61 Mo. 81; Jones v. Hoar, 5 Pick. 290; and the subject of the action being transitory may be sued on anywhere: Cooley Torts, 471. See further as to distinction: Mastyn v. Fabrigas Cowp. 161; Rafail v. Verelst, 2 H. Bl. 1058; also as to act done in one State injuring realty in another. See Rundle v. Canal Co., 1 Wall. Jr. 275; Worster v. Lake Co., 25 N. H. 525.

2. Tort Waived-Assumpsit - Survival.-Although the Code has abolished forms of action, the distinction between those torts which may, and those which may not, be redressed in actions of implied assumpsit, continues to be important: in respect of the measure of recovery, the survival of the action after death of party, in respect of assignment, and of limitation.

"It is a principle well settled that a promise is not to be implied against or without the consent of the person to be charged by it: Whiting v. Sullivan, 7 Mass. 107. And where one is implied, it is because the party intended it should be, or because natural justice plainly requires it in consideration of some benefit received." Webster v. Drinkwater, 5 Greenl. 319; s. c., 17 Am. Dec. 239 and note. Hence it is that the right to waive a tort and sue in assumpsit exists only in a few cases which form exceptions to the general rule. In no case will assumpsit lie unless some gain has accrued to the wrong doer from which the implied promise will arise; and then only to the extent of the gain. Cooley Torts 95. Hambly v. Trott Adm. Cowp. 371. Where personal property has been tortiously taken, no implied promise will arise to pay its value, unless the wrongdoer sells, consumes or otherwise disposes of it. As long as it remains in his possession in specie, implied assumpsit cannot be brought by waiving the tort. Watson v. Stever, 25 Mich. 386; Birkshire v. Wolcott, 2 Allen, 227; Pike v. Wright,29 Ala. 332; Tolan v. Hodgeboom, 38 Mich. 624; Randolph Iron Co. v. Elliott, 34 N. J. L. 184; Woodbury v. Woodbury, 47 N. H. 11 Balch v. Patten, 45 Me. 41; Moses v. Arnold, 43 Iowa, 187; Henry v. Marvin, 3 E. D. Smith, 71; Kidder v.

Lowler,'44 Vt. 303. See contra Gordon v. Bruner, 49 Mo. 570; Tightmeyer v. Mongold, 20 Kans. 90; Hallack v. Mixer, 16 Cal. 574; Fratt v. Clark, 12 Cal. 89; Berly v. Taylor, 5 Hill, 583; Barker v. Cory, 15 Oh. 9.

Some authorities hold that nothing short of a sale by wrong-doer will give right to sue in assumpsit. See array of authorities cited by Cooley, Torts, p. 94. The reason the right does not extend to all acts amounting to conversion is not merely on account of pleadings and proof, but to protect substantial rights of defendant from loss by a fiction. See Bennett v. Francis, 2 B. & P. 550: Young v. Marshall, 8 Bing. 43; Webster v. Drinkwater, 17 Am. Dec. 239 and note. Where the property has been converted into money's or money's worth assumpsit will lie: Bradley v. Brennan, 25 Minn. 210; Isaacs v. Hermann, 49 Miss. 449; Knapp v. Hobbs, 50 N. H. 476: Osburn v. Bell, 5 Denio, 370; Fanson v. Lindsley, 20 Kans. 235; Lamine v. Dorrell, 2 Ld. Raym. 1216; Cushman v. Jewell, 7 Hun. 525.

Where the property has been absolutely used, and its form or character changed, assumpsit will lie. Abbott v. Blossom, 66 Barb. 353; Cummings v. Vorn, 3 Hill, 282. And so also where it has been accidentally destroyed while in his possession. Hallack v. Mixer, 16 Cal. 574; Cooper v. Berry, 21 Geo. 526; Randolph Iron Co. v. Elliott, 34 N. Y. 184. So also money wrong. fully received. Note to O'Conley v. City Natchez, 40 Am. Dec. p. 87; Shaw v. Coffin, 58 Me. 258; Elwell v. Martin, 32 Vt. 217; Boston v. Dana, 1 Gray, 83; Munger v. Hess, 28 Barb. 75. So also profits received by wrong-doer from injury to real estate can be recovered. in assumpsit. O'Conley v. City Natchez, supra, citing 4 Ph. Ev. C. & H.'s ed., 220, note 347. Where the chattel has been used the value of the use may be recovered in assumpsit. Fanson v. Linsley, 20 Kans. 238. See, also, instances given in Hambley v. Trott, Cowp. 371. Wrongfully pasturing cows on plaintiff's lands, assumpsit will lie. Welsh v. Bogg, 12 Mich. 42; Norden v. Jones, 33 Wis. 600. Contra, see Stearns v Dillingham, 22 Vt. 624; Moon v. Harvey, 50 Vt. 297; distinguish Tightmeyer v. Mongold, 20 Kans. 90. But an action for use and occupation will not lie against a trespasser; the relation of landlord and tenant is necessary. Edmonson v. Kite, 43 Mo. 176; Cohen v. Kyler, 27 Mo. 122; O'Fallon v. Boismenne, 3 Mo. 405. The value of the time of a slave may be recovered in assumpsit. Jones v. Buzzard, 1 Hemp. 240; Stockett v. Watkins Adm., 2 Gill. & J. 326; Ford v. Caldwell, 3 Hill (S. C.), 248. Wherever the tort may be converted into contract the claim may be used as statutory setoff. Norden v. Jones, 33 Wis. 600; Gordon v. Bruner, 49 Mo. 570. But it should be borne in mind that by waiving the tort, the recovery in assumpsit cannot be for the reasonable value of the chattel taken, but only for the value of the benefit or amount received; this is the limitation imposed by the form of the action. Rand v. Nesmith, 61 Me. 111; Pearsall v. Chapin, 44 Pa. St. 9; Brewer v. Sparrow, 7 B. & C. 310; Bennett v. Francis, 2 Bos. & P. 550; King v. Leith, T. R. 144. The use or sale by wrongdoer must be proved as a substantive fact. Centre Turnpike Co. v. Smith, 12 Vt. 212.

An exception also is sometimes said to exist in favor of such actions against executors, etc., of deceased wrongdoers (note to Webster v. Drink water, supra), in order to save the remedy from extinguishment by death, and Humbly v. Trott, Cowp. 371, is cited as authority. But a careful reading of the case will show the reverse. The declaration alleged a conversion by the deceased; and it is clear from the remarks of the judges that had it appeared with certainty that the chattel remained in specie and had come into the hands of the administrator he would be liable for conversion for non-feasance, but under such circumstances assumpsit would lie at

all. The court, while holding that a simple tort does not survive, regarded the allegation of conversion by deceased as indicating a receipt of value by sale or disposal by him; this would give a right to charge his estate in assumpsit. See Bennett v. Francis, supra. The maxim of the common law is actio personalis moritur cum persona. From a misconception of this principle it was at one time doubted whether assumpsit would lie either for or against executors or administrators, but it is now clearly settled that it will. But it was not until the statutes of 4 Edw. 3, c. 7, and 31 Edw. 3, c. 11, that any right of action was given to the representatives of deceased person for torts done in the lifetime of deceased to his personal property. These statutes did not extend to actions against executors or administrators; neither did they extend to injuries done to person or real property. Hence the remedy died with the person. But the statute of 3 & 4 Wm. 4, c. 42, gave an action to executors for injuries done to deceased's real property in his lifetime, and also gave a remedy in trespass or case against his personal representative for deceased's torts in respect to real and personal property. But no right of action for injuries to person survived until Lord Campbell's Act, 9 & 10, Vic. c. 93. See on this subject: Broom Leg. Max. 904; 1 Wms. Saund. 216, note. It appears from an article published in 12 Cent. L. J. 464, that a trespass resulting in death of the injured party did exist at common law in favor of certain persons of blood, or to whom deceased was civilly bound. See Sullivan v. Union Pac. R., 3 Dillon, 334, to same effect. See also 5 South L. R. (N. S.) 325.

In some of the States the statute of 3 & 4 Wm. 4, has not been re-enacted, and in those States the distinction between those torts which can be converted into contract liabilities and those which cannot is highly important. In Missouri the matter seems to be covered by secs. 96 and 97 Rev. Stat. Mo. 1879. See Baker Adm. v. Crandall, 78 Mo. 584.

1. NEGLIGENCE. [Real Property.] — Liability of Property-Owner for Injury from Defective Coal Hole in Sidewalk.-A lot-owner who negligently constructs a coal-hole in the sidewalk on a street in a city, whereby a party using such sidewalk is injured, is liable for the injury thus caused. [In the opinion of the court by Beck, C. J., it is said: "The first objection to the judgment discussed by defendant's counsel is based upon the position that, if plaintiff has any remedy for the injury she sustained, it should be pursued against the city, which is alone liable. Counsel, to support this objection, rely upon City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352; s. C., 5 N. W. Rep. 503. In our opinion the distinction between that case and this is obvious. In that case the injury for which recovery was sought, resulted from

the dangerous and defective condition of the sidewalk itself, the construction and repair of which the city, under authority assumed by ordinance, was empowered to require, in this the alleged injuries were caused, not by a defective sidewalk, but by a defective scuttle and cover, which were constructed for the private use of defendant, either with or without the authority of the city. If constructed and maintained without authority of the city, the scuttle and cover constituted a nuisance, and defendant is liable for all injuries resulting therefrom; if constructed and maintained with such authority, defendant is liable, in the absence of the care in their construction and repair required by law. See Dill. Mun. Corp. §§ 699, 1032, 1034; Com. v. Boston, 97 Mass. 555; Congreve v. Morgan, 18 N. Y. 84; and cases cited in City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352 (357); S. C., 5 N. W. Rep. 503. It will be observed that the petition bases the claim for recovery both on the ground the scuttle and cover were made and maintained without authority, and that they were negligently constructed. We need not inquire whether the city may be liable as well as defendant, It is sufficient for the purpose of this case to hold that defendant is liable for injuries received by plaintiff, caused by defective construction of the scuttle and cover, and that the rule of City of Keokuk v. Independent Dist. of Keokuk does not apply to the facts of this case. It may be said, in reply to the argument of defendant's counsel upon this point, that the case is that of the unauthorized or negligent use of a sidewalk, and that the cover of the scuttle cannot be regarded, as claimed by counsel, as only a part of the sidewalk. The negligent or unauthorized use of a part of the sidewalk as a cover for the scuttle rendered defendant liable for the injuries, just as he would have been liable in case he had, in a like manner, used, for his own private benefit, a part of the sidewalk for any other purpose."] Calder v. Smalley, S. C. Iowa, June 2, 1885; 23 N. W. Repr. 638.

2. NUISANCE. [Bawdy House.]-Damages-Pleading Action by Adjacent Property-Owner for Damages for-Defense of License under Municipal Ordinance-Loss of Rents as Damages-Pleading the Ordinance.-A bawdy house is a public nuisance (per se). But how far such a nuisance is made legal by a local municipal license is another question. In a suit for damages caused by renting property for such purposes, an ordinance of the municipality licensing such houses is admissible as showing the character of the act complained of. Though such houses may be licensed, and may be, therefore, not nuisances per se, the business may be carried on, by indecent exposure, etc., in such a way as to become a nuisance. Whether damage accrued to adjoining property holders or not from the renting of a house for such purposes then becomes a question for the jury. Loss of rent a proper element of such damages. Where a defense is based upon a city ordinance, the ordinance should be pleaded. Givens v. Van Studdiford, S. C. Mo., June 8, 1885.

3. PARTIES. [Corporation-Stockholder.]-Stockholder not Permitted to Defend unless Corporation Refuses.-A corporation, and not its stockholders, is the legal owner of the corporate property. It must, therefore, defend suits brought against it in its corporate name, and a stockholder will not be permitted to do so unless it refuses, although he may own a majority of the shares. [In

.

the opinion of the court by Johnson, Pres., it is said: "It is well settled that, from the very nature of a private business corporation, or indeed of any corporation, the stockholders are not the private and joint owners of its property. The corporation is the real though artificial person substituted for the natural persons, who procured its creation and have pecuniary interests in it, in which all its property is invested, and by which it is controlled, managed and disposed of. It must purchase, hold, grant, sell and convey the corporate property and do business, sue and be sued, plead and be impleaded for corporate purposes by its corporate name. The corporation must transact its business in a certain way, and by its regularly appointed officers and agents, whose acts are those of the corporation, only as they are within the powers and purposes of the corporation. Button v. Hoffman, 18 Wis. 606; Gray v. Portland Bank, 3 Mass. 365. This court by Snyder, J., in Moore v. Schoppart, 22 W. Va. 291, said: "The entire management of a corporation rests in the hands of its officers and agents. Within the scope of its charter a majority of the stockholders is supreme, and their acts are binding upon the whole. Redress for an injury to a corporation should be obtained, if possible, by the corporation itself through its regularly appointed agents; and it is only when the corporation is disabled from proceeding on its own behalf by reason of the misconduct or failure of its officers and agents to discharge their duties, that the stockholders may themselves proceed in chancery for the protection of their equitable rights.' If, in a cause like this, the corporation refused to appear and defend itself against the claim, a stockholder might under the discretion of the court be permitted to do so. Bronson v. LaCrosse R. Co., 2 Wall. 302; Dodge v. Woolsey, 18 How. 331. A conveyance of all the capital stock of a corporation to a purchaser gives to such purchaser only an equitable interest in the property to carry on business under the act of incorporation and in the corporate name, and the corporation is still the legal owner of the same. Wilde v. Jenkins, 4 Paige, 481. In Winona, etc. R. Co. v. St. Paul, etc. R. Co., 23 Minn. 359, which was brought to restrain the defendant from applying for or receiving from the Governor of the State any deed or conveyance of certain lands described in the complaint and praying, that the plaintiff might be adjudged to be the owner of the lands, it was held, that it was "no defense to such an action,that another party has become the owner of the sole beneficial interest in the rights, property and immunities of the corporation; and an averment of that character in the answer may properly be stricken out on motion as immaterial and irrelevant."] Park v. Petroleum Co., 25 W. Va., 108 (adv. sheets).

4. PAYMENT. [Check.] Payment by Banker's Check, Afterwards Dishonored is no Payment.To pay for a bill of goods, the buyer sent to the seller a check, drawn by one bank upon another, indorsed by the buyer to whose order the check was payable, and the seller on receiving it, sent back to the buyer a receipt acknowledging payment of the bill. At the time of sending the check by the buyer, and the receipt by the seller, it was supposed by the buyer and seller that it was good, but in fact there were no funds of the drawer in the hands of the drawee subject to the payment of the check at the time it was drawn or afterwards. Held, that in an action on an account for goods sold and delivered, a plea of payment cannot be

maintained on the facts above stated. Fleig v. Sleet, S. C. Ohio, March 10, 1885; 13 Weekly Law Bull. 327.

5. PRACTICE. [Bill of Exceptions.]-Good when Signed at a Subsequent Term without Continuance. Where the trial court holds a motion for new trial under advisement for several terms, without regularly continuing the cause from term to term. All matters of exception are considered as still being in the breast of the judge, and no bill of exceptions need be filed until the motion is finally determined. Givens v. Van Studdiford. S. C. Mo., June 8, 1885.

6. RES ADJUDICATA. [Corporation - InjunctionQuo Warranto.]-Decree in Favor of Corporation in Suit for Injunction, tohen Conclusive in its Favor in Subsequent Proceedings by Quo Warranto. -Where the attorney general, on behalf of the people, filed an information in chancery against two railway companies, to restrain such companies from building and operating their road within a city, etc., alleging various grounds for the relief sought, which bill, on a hearing after answer, was dismissed, the court in its decree finding in favor of the rights claimed by the railway companies, it was held, that such decree was conclusive upon the people on an application in behalf of the people to file an information in the nature of a quo warranto, seeking to call in question the right of one of the same companies to exercise the same franchises and perform the same acts as were attempted to be enjoined in the prior suit. In the opinion of the court by Mr. Justice Scholfield it is said: ["Had affirmative relief been granted on the information, it undoubtedly might have been on any one of the specific grounds alleged in the information, and thus have confined the question actually decided, to that one specific ground; but the court having denied all relief, it must follow that each specific ground alleged in the information was considered and held insufficient. This, of course, assumes, in limine, that the court had jurisdiction of the subject matter as well as of the parties, for this, in all cases, is essential to a valid adjudication. On that point we entertain no doubt. The general doctrine that a cause of forfeiture cannot be taken advantage of or enforced against a corporation, collaterally or incidentally, or in any other mode than by a direct proceeding for that purpose, against the corporation, is conceded. But the present case is different. Here, the objection to the corporate existence of the respondent, if good at all, shows an absolute death of it on the day of the adoption of the present Constitution, and not merely the existence, from and after that date, of cause of forfeiture, and in such cases injunction will lie to enjoin threatened acts by those assuming to act in behalf and in the name of the dead corporation. Casey v. R. Co., 5 Iowa, 357; In re B., W. & N. B. R. Co., 72 N. Y. 245; Brooklyn Steam Trans. Co. v. Brooklyn, 78 Id. 524; C., L. and B. Co. v. Commonwealth, 100 Pa. St. 438; Coal Co. v. R. Co., 4 G. & J. 1; Greely v. Smith, 3 Story, 657; R. Co. v. R. Co., 36 Conn. 196; R. Co. v. R. Co., 45 Cal. 365. And the doctrine has been frequently recognized and enforced by this court, that where a valid corporation assumes to exercise licenses or powers by virtue of invalid ordinances of a municipal corporation, or in excess of authority legally conferred upon it, a court of equity, upon a proper showing, has jurisdiction to interfere and restrain it. There being jurisdiction, and the court having, in order to arrive at the decision evidenced by its decree, to