complaint of a private party, such action may be brought by such private party, upon his own relation, in the name of the people of the state." Demurrer to the complaint sustained. Judgment for defendant, and plaintiff appeals.

W. T. Hughes, for the appellant.

R. H. Gilmore and C. C. Post, for the appellees.

HAYT, J. It is averred in the complaint that the district attorney of the proper district refused to bring the suit upon application, and therefore plaintiff claims the right to maintain the action as relator by virtue of the provisions of section 315 of the Civil Code, although it does not appear that he has any other or different interest in the result than such as he may have in common with all other citizens of the state. If the defendant corporation has violated the law, either by doing some forbidden act, or by neglecting to do some act enjoined upon it, it is not every person who may call it to account for such violation. As a general rule, prosecutions for wrongs done to the public must be instituted by the state through its properly authorized agents, while the individual can only sue for injuries peculiarly affecting him; and the provision of the code permitting an action in the nature of a quo warranto to be brought by a purely private party, upon the neglect or refusal of the district attorney to bring such action, must be construed with reference to this general rule. In considering the nature of the interest necessary to entitle a private party to become a relator, in a case coming before the court while Mansfield was lord chief justice, it was said: "There is no individual among those who apply to the court at present who says, 'My franchise is hurt.'—'Who are you? What concern have you with the corporation ?'--'Only one of the king's subjects; I have no concern.'-'What do you come for?'-'To dissolve the corporation and to disturb its peace.'-'Then what is to be taken advantage of here ?'-'A mere blunder.' There are many circumstances in this case why the court should not interfere by granting an information": King v. Stacey, 1 Term Rep. 3.

The language quoted was used in reference to the statute of 9 Anne, chapter 20, relating to informations in the nature of a quo warranto, under which it was expressly provided that the information might be exhibited by the proper officer "at the relation of any person or persons desiring to sue or prosecute

the same": See appendix to High on Extraordinary Legal Remedies, 585. The same view is taken in Pennsylvania under a statute containing a similar provision in reference to the relator as that quoted from the English statute. In Commonwealth v. Philadelphia etc. R'y Co., 20 Pa. St. 518, the court said: "A stranger who has no interest in a corporation except that which is common to every citizen cannot demand a judgment of ouster in a writ of quo warranto. . . . . No mere stranger should be permitted to demand the forfeiture of a charter granted by the commonwealth where the state herself does not demand it. She has a right to waive the forfeiture; and it is her interest, in many cases, to do so."

It will be noted that the provision in reference to the person who may act as relator is as broad in the English statute as in our own. In fact, the statute of this and other states relating to actions for the usurpation of an office or franchise are generally modifications of this statute of Anne; and the universal rule of decisions in all cases in which the action has been brought for the purpose of dissolving a corporation has been, that the relator, to maintain the action, must have some interest beyond that common to every citizen; and further than this we are not concerned in this case: High on Extraordinary Legal Remedies, sec. 654; Murphy v. Farmers' Bank, 20 Pa. St. 415; State v. Smith, 32 Ind. 213; State v. Stein, 13 Neb. 530.

It was said in the oral argument that Frank S. Byers, the relator, is the owner of one of the banks upon which the bridge rests, and that the defendant had appropriated the same without compensating him therefor, and that this ownership entitles the said Byers to prosecute the action as relator. There are two conclusive answers to this argument: 1. It does not sufficiently appear from the complaint that he is such owner; 2. If it did so appear, and also that the defendants took possession of said bank unlawfully, they would, under such circumstances, be trespassers, and liable in damages for the injury. The public, however, would be in no way concerned with the controversy; and, as we have seen, this is a sufficient reason for denying the extraordinary remedy by quo warranto: People v. Hillside etc. Turnp. Co., 2 Johns. 190.

The complaint failing to show any interest in the controversy in Frank S. Byers, the relator, other than such as pertains to every citizen, the trial court properly sustained the demurrer, and the judgment is accordingly affirmed.

QUO WARRANTO.

PROCEEDINGS, WHEN, HOW, AND BY WHOM INSTITUTED to declare a forfeiture of the franchise of a corporation: See note to State v. Atchison etc. R'y Co., 8 Am. St. Rep. 179–202.

QUO WARRANTO. A petition for an information in the nature of a quo warranto, calling upon the defendants to show by what right they exercised the franchise of using a public bridge as their private property, and erecting gates and charging tolls for crossing, stated a good case when it alleged that the court of ordinary of the county had established a public road running from a church to the bridge in question, and had, on the same day, estab lished another public road from the opposite side of the bridge to the county site, and that these roads had been opened, worked, and traveled ever since as public roads; and that the relators, together with other citizens, had built the bridge by private subscription, and it had been used as a public bridge until the defendants put up their gates and charged tolls; and that defendants had no chartered rights thereto, but were usurpers of the rights, privileges, and franchises of owners of public bridges: Whelchel v. State ex rel. Wiley, 76 Ga. 644.

OMAHA AND GRANT SMELTING AND REFINING COMPANY V. TABOR.

[13 COLORADO, 41.]

WITNESS MAY BE IMPEACHED, UPON CROSS-EXAMINATION, by showing that his acts or declarations on previous occasions were at variance with his testimony as given at the trial.

AGENCY OF WITNESS CANNOT BE ESTABLISHED by his own declarations. TRESPASS- EVIDENCE OF TITLE IN THIRD PERSON NOT ADMISSIBLE. — In

trespass for the conversion of ore from a mine, defendant, not pleading justification, cannot defend by showing title in a third person. MINES - LICENSE TO ONE IS NOT LICENSE TO OTHERS. — Where a party knowing that persons have, under an order of court, entered on a mining claim conflicting with his, and are taking his ore, his consent that another shall join them is not a license to the others to take the ore. PARTY CALLING WITNESS IS NOT PRECLUDED FROM SHOWING THE TRUTH of any particular fact by any other competent testimony.

-

CO-TENANCY. — AUTHORITY OF TENANT IN COMMON IN MINE cannot be extended to cover acts of others that he cannot legally do himself; and his consent or license to others to enter and extract ore can only extend to the interest owned by him in the common property.

DEEDS. PAROL EVIDENCE IS INADMISSIBLE TO SHOW an agreement that possession under a deed is to be retained by the vendor until the purchase price is paid, under Colorado General Statutes, chapter 18, section 9, providing that conveyances of real estate duly executed and delivered carry with them the right to immediate possession, unless a future day for possession is therein specified.

MINES AND MINING - SALE BY GOVERNMENT OF MINERAL LANDS REVOKES FORMER LICENSE. Subsequent sale of mineral land by the government, and the issue by it of a receiver's receipt for the purchase price, revokes a mere license from the government under which a party had formerly entered, and such licensee cannot set up his former possession as adverse to the grantee.

PURCHASER FROM TRESPASSER, WHEN GUILTY OF CONVERSION. The purchaser of ore taken from a mine by a trespasser is equally guilty with the latter of conversion, whether ignorant or informed of the true ownership.

MEASURE OF DAMAGES FOR CONVERSION OF ORE by a purchaser from a trespasser is the value of the ore sold, together with a sum equal to legal interest thereon from the time of conversion, less the reasonable and proper cost of raising it from the mine after it was broken, and hauling from the mine to the purchaser's place of business.

TROVER by Tabor, Moffatt, Du Bois, Blaine, and Chaffee against the Omaha and Grant Smelting and Refining Company. Plaintiffs alleged the ownership and possession of a mine known as the Maid of Erin lode, and as survey lot No. 568, and mineral entry No. 384, from January 1, 1882, to October 11, 1883; that between July 3 and August 31, 1883, one Ovens, one Wight, and others, wrongfully entered upon such property, and took out a large amount of valuable ore, and sold it to defendants, who converted it to their own use. Defendants, answering, deny all the allegations of the complaint, except that they have not paid plaintiffs for the ore, which they admit; and for further defense they allege that, at the time of the alleged wrongful entry and taking of such ore, several persons, named Wight, Joslin, Bullock, Park, and Rucker, were the owners and in possession of the Vanderbilt mine, which conflicted with and embracel part of the Maid of Erin mine; that, at the time mentioned in the complaint, undetermined litigation was in progress concerning the conflicting territory and between the parties; that the owners of the Vanderbilt mine were taking ore therefrom, and from the part in conflict with the Maid of Erin mine; that these facts being unknown to defendants, they purchased the ore as ore from the Vanderbilt mine, in the regular course of business, and that, long after such purchase, they were informed that the ore was taken from the ground in dispute. Plaintiffs, replying, denied that Wight and others were the owners of any part of the Vanderbilt mine in conflict with the Maid of Erin mine, or that any part of the former conflicted with the latter; and alleged that, prior to the date mentioned as that of the conversion, the government had sold to plaintiffs the Maid of Erin mine, and had given a receiver's receipt for the purchase-money; that Wight and others unlawfully went into a portion of the premises while plaintiffs were in possession, and mined and carried away the ore mentioned in defendants' answer; that the entry of Wight and others was through a

shaft on the Big Chief mine, not owned by either party to this suit or to the controversy; and that from such shaft they worked over the boundary and into plaintiffs' mine; and denied that the defendants did not know that Wight and others were taking the ore purchased from plaintiffs' mine. Verdict and judgment for plaintiffs. Defendants assign various errors to the admission and rejection of evidence, to the ruling of the court in giving and refusing instructions asked, and to a refusal to grant a new trial.

Patterson and Thomas, for the appellants.

Wolcott and Vaile, J. B. Bissell, and L. C. Rockwell, for the appellees.

REED, C. The first fifteen and the eighteenth errors assigned are to the ruling of the court on the cross-examination of plaintiffs' witness O. H. Harker.

Counsel, in their argument for appellants, say: "The defendants sought to show, by cross-examination of the plaintiffs' witnesses, that, at the time of the commission of the trespasses complained of, the Maid of Erin mine was owned by the Henriett Mining and Smelting Company and J. B. Du Bois, and that the original trespassers were enjoined, at the suit of these parties, by proper proceedings instituted for that purpose, but they were not permitted to do so." It appears that counsel for appellants (defendants below), upon the trial, attempted, on cross-examination of the witness, to show that the plaintiff Du Bois owned one half of the Maid of Erin property, and the Henriett company the other half, and that the other plaintiffs were not the owners, by showing that the witness had so stated, in a legal document signed and verified by him as manager and agent, in some former proceeding concerning the property, in which case an injunction was issued to restrain a trespass upon the Maid of Erin claim upon the complaint so signed and verified; but the court would not permit it to be done. An examination of the questions asked the witness, which the court did not permit him to answer, will show that none of the testimony sought went to any issue in the case, was not directed to anything in his direct testimony, and was not legitimate cross-examination. Many of the questions were in regard to facts that could only have been proved by production of records or documents. Some of the questions were in regard to suits at law, and proceedings where there is nothing in the record to show he in any way participated, or of