deemed as a good subsisting lease, and the conveyance by the plaintiff's lessor during the pendency of the suit could only operate upon his reversionary interest, and consequently could not extinguish the prior lease. The existence of such a lease is a fiction; but it is upheld for the purposes of justice, and there is no pretense that it works any injustice in this case. See also Jackson v. Bell 19 Johns. 169; Jackson v. Leggett 7 Wend. 377; Hubbard v Trustees 2 J. J. Marsh. 81.

The rule for invalidating a conveyance in case the grantor is not in possession, and the premises are held adversely by some one other than the grantee, is not in force in Texas (Lee v. Salinas 15 Texas 495) nor in Ohio (Lessee of Hall v. Ashby and Craven 9 Ohio [Ham.] 96), and it is not in force here. Comp. Laws, § 4209. The Supreme Court of Texas held on full consideration, in the case cited, that conveyance by the plaintiff pendente lite was not an interruption of the suit, and in Lessee of Dawson v. Porter, the Supreme Court of Ohio decided that a deed by the lessor of the plaintiff, made after suit was brought, was not evidence to defeat recovery by the plaintiff (2 Ohio [Ham.] 304), and the ruling was subsequently approved in McChesney's Lessee v. Wainwright 5 Ohio (Ham.) 452.

Our statute has substantially superseded the old action of ejectment with its fictions and wearisome forms (8 6208, 6209), and has given under the same name a much broader and more potent remedy. As marked out by the Legislature it has the effectiveness of a real action. It is a proceeding to try titles as well as to determine who has the right of possession. It is made applicable to cases where formerly a writ of right was the appointed remedy, and it is the only action for the determination of titles to land.

The common law made it a general rule that the judgment in a real action should be rendered upon the title as it was at the date of the writ (Hooper v. Bridgewater 102 Mass. 512), and according to the statute the question on the trial in our ejectment is, whether the plaintiff had a right to recover at the time of the commencement of the suit (§ 6206), and the

right of possession to be established is referred to the same time. § 6226.

The verdict must in all cases specify the estate or right belonging to the plaintiff, whether it be in fee or for life or otherwise (§ 6231, subd. 7), and in case the plaintiff's estate expires after the commencement of the suit and before trial, he is still entitled to judgment for his damages. § 6232. In providing for the termination of the plaintiff's right or title the transfer of it is not intended. This clause contemplates those cases where terms and rights expire or come to an end and not to cases where the right or title is simply passed from one to another. The provision had its origin in New York where the law was against a transfer.

The judgment is made operative upon the title as against the defeated party and all others claiming from, through or under him by title accruing after the commencement of such action, unless in case of a new trial. § 6238, 6239. It relates, therefore, to the commencement of the action. An alienation by the defendant after the commencement of the suit, if he was in possession, or in receipt of the profits, is not allowed to bar or delay proceedings. § 6392.

In view of the nature of the action as it exists here, and considering the force and bearing of the provisions specially referred to, it seems impossible to carry out the statute, and at the same time construe the plaintiff's conveyance pendente lite as a bar to the further prosecution of the suit. It is possible that eventualities may disclose embarrassments which are not so evident now. But, be that as it may, the meaning of the action, as we find it, is too strong for the plea, and the judgment must be affirmed with costs. The case will take the usual direction to enable the company to sue for a new trial under the statute, and to allow such other proceedings to be had as may be proper in the court below.

The other Justices concurred.

LUTHER BEECHER V. JOHN DACEY, SR.

"Orders" in payment for labor-Accommodation paper-Payment in paper. A mercantile firm delivered goods to the laborers of a mining corporation upon orders drawn in the following form: "[Date and number]. Due John Dacey, Sr., for labor, from the Marquette & Pacific Rolling Mill Company, four dollars, in goods, at the store of E. H. Mead & Co. $4.00. W. W. Wheaton, Treasurer, by C. S. W. Rice:” and on delivery of goods to the amount so called for, the firm stamped each order “paid." It was apparently understood that the firm should receive and honor the orders of the corporation, and that the latter should settle with it every month and pay the amount of the orders taken by it. The firm became insolvent and had among its assets a large number of these orders, on which suits were brought as for labor debts, and for the use of the persons to whom the orders were drawn, against one of the stockholders of the corporation. Held, that these actions would not lie; that the orders could not be treated as having been merely assigned to the firm by those in whose favor they were drawn; and that the use of the words "for labor" in the orders was simply to indicate the nature of the service for which they were given, and not to keep them alive as against stockholders.

A corporation organized for mining purposes would have no authority to issue accommodation paper and deliver it to strangers.

Where a corporation gives its paper to a firm which holds orders issued by it, payable in goods, and there is no evidence that the paper was given or received in payment of the orders, the transfer of the paper must be held to be no payment.

Paper given to be applied upon a debt cannot be considered as accommodation paper.

Error to Marquette. Submitted October 20 and 21, 1880. Decided January 5, 1881.

ASSUMPSIT. Defendant brings error. Reversed.

Atkinson & Atkinson, J. P. Whittemore, F. A. Baker and H. M. Cheever for plaintiff in error. The receipt of goods upon the labor certificates in this case discharged the claim for labor (Shepard v. Cross 33 Mich. 96), and the certificates were mere requests to deliver goods on the credit of the corporation which gave them (Morse on Banking, 30;

Mandeville v. Union Bank 9 Cr. 9; Thatcher v. Bank 5 Sandf. 121; Griffin v. Rice 1 Hilt. 184), and not due-bills of the corporation: Vance v. Bloomer 20 Wend. 199; Lobdell v. Hopkins 5 Cow. 516.

Griffin & Dickinson for defendant in error.

MARSTON, C. J. This is a test case, as a number of similar cases in all essentials await the result in this. Considering the character and importance of the questions raised, and the amount involved, the case becomes one of more than ordinary importance, and demands careful consideration.

The discussion in this court was able and exhaustive, and although quite a number of interesting questions were presented, yet in our opinion the case must ultimately be disposed of upon the legal construction of the labor certificates, so-called, that were issued, in view of the undisputed fact that Mead & Co. delivered goods thereon to the holders thereof. To pass by this question at the present time, or leave the proper construction of the certificates a matter of doubt or uncertainty, would be but to prolong needless litigation at great expense to all parties; and this should be avoided, especially where the case must inevitably reach a stage where the question could no longer be evaded.

The legal effect of the certificates, construed in the light of certain indisputable facts, must determine the respective rights of these parties.

The plaintiff below, John Dacey, Sr., was employed by and performed services as a laborer for the Marquette & Pacific Rolling Mill Company, a corporation, during the years 1876-7. Certain certificates were regularly issued to him, from time to time, all of which were in the following form, except as to the number, date, and amount.

"No. 4585.

MARQUETTE, Dec. 14, 1876. "Due John Dacey, Sr., for labor, from the Marquette & Pacific Rolling Mill Company, four dollars, in goods, at the store of E. H. Mead & Co. "$4.

W. W. WHEATON, Treasurer.

"By C. S. W. RICE."

Wheaton was treasurer and general agent of the corporation from the spring of 1873 up to December, 1877. The firm of Mead & Co. was organized in June, 1876, and was composed of E. H. Mead, and John Scudder, who was secretary of the Rolling Mill Company, as general partners, and Mrs. W. W. Wheaton as a special partner.

Certificates of the same form as the above were given other laborers of the corporation, to an amount aggregating upwards of eighty thousand dollars, which Mead & Co. received and delivered goods on to the full value thereof. The firm of Mead & Co. ceased to do business in August, 1878, at which time they made a general assignment for the benefit of their creditors; and certificates then in the possession of Mead & Co. to the amount of some fifty thousand dollars, passed in some way under the control of their creditors, and this action is brought for their use and benefit. In this action it is sought to hold Beecher, one of the stockholders of the corporation, liable as for a labor debt.

The firm of Mead & Co. did not at any time have any goods or funds on hand, or at their store, belonging to the Rolling Mill Company, and it was claimed on the trial, and Mead, Scudder and Wheaton so testified, that no agreement existed or was ever entered into between Mead & Co. and the Rolling Mill Company, under which the firm was to pay these certificates in goods or otherwise. It was shown that the Rolling Mill Company had no credit for goods or commercial credit in Marquette, where Mead and Co's. store was located, but that it was heavily in debt, which was well known to Mead & Co. That Mead & Co. advanced Dacey goods on the strength of his labor debt, or claim for labor against the corporation, knowing that the corporation stockholders were legally liable therefor and pecuniarily responsible.

These certificates were from time to time presented at the store of Mead & Co. by the holders thereof, and usually goods to the full amount thereof delivered thereon; if not, a store due-bill for the difference would be given the person presenting the certificate, which would be redeemed in goods