was designed to furnish a convenient. means of administering the assets of a dissolved corporation, and that the assets contemplated by the statute were of the same character as a court of equity habitually preserves to the creditors and stockholders of a dissolved corporation, or such as pass to an assignee in bankruptcy or insolvency, or to a receiver, or such as survive to the personal representative of a deceased person, and that while the statutory trustees of a dissolved corporation might sue and be sued in the name thereof, or in their own names, such suits were expressly confined to property rights, and to rights arising out of contract, expressed or implied. Being of the opinion, on the whole, that, upon the admitted facts, the corporation had been dissolved, and that the cause of action sued on had been extinguished thereby, this respondent gave judgment accordingly, and entered an order overruling the demurrer to the plea; and further being of the opinion that the defense had been seasonably presented, and that all the questions involved in said plea had been left open by the mandate of your honors, this respondent also overruled the motion to strike the said plea from the record. Upon consideration of the demurrer to the replication setting up an assignment of the cause of action, the respondent was of the opinion that this cause of action was not assignable, and also that an assignee could not, after the dissolution of a corporation, continue to maintain in its name a suit on a cause of action which did not pass to its statutory trustees, and which they could not have maintained an action upon, and this respondent gave judgment in accordance with this view, and entered an order sustaining the demurrer to the replication setting up the assignment of the cause of action. That, at the time of entering the orders mentioned, the Circuit Court gave the plaintiff leave to file additional pleadings as it might be advised, and that subsequently, on the 25th day of July, 1903, the plaintiff filed two replications to said plea, and that the defendants demurred to one of said replications, and moved to strike the other, and that said demurrer and motion were submitted by the parties to the Circuit Court for decision on or about December 6, 1903, and that action thereon has been delayed pending the decision by your honors of the petition for mandamus. "(2) This respondent further shows unto your honors that on April 22, 1903, an execution issued out of the Circuit Court, on the mandate of the Circuit Court of Appeals, for the costs of prosecuting the writ of error in this action, and was delivered to the marshal to be levied. That on June 22, 1903, the defendants filed a petition in the Circuit Court praying that an order might be entered staying the enforcement of said execution, a copy of which petition is hereunto attached, marked exhibit 'C' and it is prayed that the same may be taken and read as part of this return; that, upon consideration of the said petition, this respondent was of the opinion that such a state of circumstances existed as entitled the defendants to a temporary stay of execution, and that irreparable injury might be suffered by the defendants from the collection of the execution, while plaintiff's rights could be fully protected by the exaction of security, and that the respondent accordingly entered an order on June 27, 1903, staying the enforcement of the execution until the first day of the next term of the court (December term, 1903), upon condition that the Atlantic Lumber Company gave bond in the sum of $2,000 to abide the final order of the court, and that the respondent embodied his reasons for granting that order therein, a copy of which is hereunto attached as Exhibit D, and it is prayed that the same may be read as part hereof. "The above narrative recites the circumstances under which the orders complained of were entered, and this respondent's reasons for making said orders, and respondent submits the same to your honors for your consideration, and judgment whether or not a writ of mandamus should issue. And now, having fully answered, this respondent prays to be hence dismissed." To the return petitioners demur and reply as follows: "Come now the said petitioners, by Bisbee & Bedell, their attorneys, and demur to the several parts of the respondent's return to the rule to show cause, hereinafter stated, upon the following grounds: "First. Said return admits the truth of every material fact stated in the petition, and alleges no material facts in the first five pages thereof sufficient to defeat the petitioners' right to a mandamus to compel a new trial. "Second. So much of said return as attempts to state what this court decided on a writ of error is immaterial, because this court knows best what it decided. "Third. So much of said return as sets up certain proceedings by the officers of the state of New Jersey under certain statutes thereof, even though they were effective to dissolve the corporation petitioner, constitute no reason for abating the suit: (a) Because the statutes of said state specified in the said return expressly continued the existence of the corporation for all purposes of prosecuting and defending all suits by or against it; (b) and because, under those statutes, it was the duty of the said corporation 'to sue for and recover' all debts and property thereof (sections 53, 54, and 55), and the claims and choses in action declared on in the said action are the property of said company; (c) and because the question of what choses in action survive the death of a natural person has no application in the case; (d) because the claim for damages to property, business, and credit of the corporation declared on in the action was assignable under the laws of Florida, where said assignment was executed. "Fourth. The said respondent had no power or jurisdiction to allow the said plea in abatement to be filed. "And petitioners demur to so much of said return as is contained in the sixth page thereof, stating respondent's reasons for staying the execution of this court, upon the following grounds: "First. The said respondent had no power or jurisdiction to entertain said petition for such stay, nor to stay said execution. "Second. Upon the facts averred in the said petition, and especially the facts showing an attorney's lien on the judgment of this court, upon which the execution issued for all the costs and disbursements which were paid by the said attorney, for which said judgment was rendered, and for his services in said action, defeats and precludes, both in law and equity, any right of set-off set up in return, in Exhibits C and D thereof. "Third. Because the said assignment, not denied by any pleading in the said action, nor by the said return, which assignment was made over eighteen months before judgment versus the Fidelity & Deposit Company on the claims so assigned was in part recovered, and four years before the alleged assignment by the Atlantic Lumber Company to the said Fidelity Company of the alleged judgment versus the Bucki Company, defeats any such set-off, and no consideration was paid for the said assignment. "Fourth. Because the said respondent utterly ignored the rights of the said attorney and the said assignee, whereas it was his duty to protect them. "Fifth. Because the torts and unlawful acts of the Atlantic Lumber Company in improperly suing out the said attachments caused the very damage to and the diminution of the estate of the Bucki Company for which said judgment versus the Fidelity Company was recovered, and neither the said Atlantic Lumber Company, nor its said assignee, have any standing in law or equity to take those damages, to pay, by way of set-off or otherwise, the said judgment of this court versus the Atlantic Lumber Company, to the exclusion of the attorney and creditor of the Bucki Company whose services and disbursements obtained the said judgment. "Sixth. Because the Atlantic Lumber Company cannot take advantage of its own torts and unlawful acts, or raise any equity thereon for a set-off, even against the said Bucki Company. "Seventh. Because the Atlantic Lumber Company never executed the said attachment bonds, and was not an obligor thereon, and the relation of principal and surety upon the bonds between the said company and the said Fidelity Company never existed, as will appear from the inspection thereof in the records of the said action in his court. "Eighth. And for other reasons appearing from the face of the said return of respondent. "And these petitioners, replying to so much of the said return, on page 5 thereof, as sets up two replications to the said plea in abatement not disposed of by the said Circuit Court, say that there were three replications, and that they raised the same questions of law in another form of pleading, which had previously been decided adversely to the plaintiff; that demurrers were filed to two of the said replications, and a motion to strike the other was filed, and that, since the said respondent's return was served upon your petitioners, the said respondent has sustained the said demurrer and the said motion; and that thereby all pleadings to the said plea in abatement have been disposed adversely to petitioners. And your petitioners aver that stay of execution on the judgment versus the Bucki Company, referred to on page 13 of the respondent's return, was ordered in July, 1898, about eighteen months before the recovery of the judgment versus the Fidelity Company, and consequently the statement in said return, on page 13 thereof, that 'the enforcement of such execution has now been stayed for upwards of six years because the L. Bucki & Son Lumber Company did recover a judgment against the Fidelity & Deposit Company of Maryland as surety on the bond of the Atlantic Lumber Company,' is obviously incorrect. Said stay of execution was made on the ground that the Bucki Company had pending against the Atlantic Company sundry suits, claiming large damages." Horatio Bisbee and Geo. C. Bedell, for petitioners. Before PARDEE, MCCORMICK, and SHELBY, Circuit Judges. PARDEE, Circuit Judge. Conceding the regularity and validity of the proceedings in the state of New Jersey under Pub. Laws April 21, 1896, c. 187 (P. L. 1896, p. 319), as set forth in the quasi plea in abatement, still we think said plea comes too late, and is bad in substance. It is not a plea to the merits, but sets up facts which were in existence long before the trial of the action on the merits in the Circuit Court. The Atlantic Lumber Company was charged with knowledge of such facts, and admits actual knowledge before hearing on error in this court. To allow the plea now is to put the Atlantic Lumber Company in the attitude of successfully experimenting with the court. Section 53 of the Pamphlet Laws of New Jersey of 1896 (P. L. p. 295) is as follows: "All corporations, whether they expire by their own limitation or be an nulled by the Legislature or otherwise dissolved, shall be continued bodies corporate for the purpose of prosecuting and defending suits by or against them, and of enabling them to settle and close their affairs, to dispose of and convey their property and to divide their capital, but not for the purpose of continuing the business for which they were established." The word "suits" is a very comprehensive term, and includes all actions at law, ex contractu and ex delicto, and all actions in equity. See Weston v. Charleston, 2 Pet. 449, 7 L. Ed. 481; Bouv. Law Dict. verbo "Suits." This section 53, therefore, in terms, fully provides for the continuation of suits by or against the dissolved corporation, notwithstanding the dissolution, and such is the construction of the New Jersey courts. Grey v. Newark Plankroad Co., 65 N. J. Law, 603, 48 Atl. 557. See American Surety Company v. Great White Spirit Company, 58 N. J. Eq. 526, 43 Atl. 579. The same construction has been given in the Fourth Circuit in Boyd v. Hankinson et al., 92 Fed. 49. 34 C. C. A. 197. The sections succeeding section 53, Pamphlet Laws aforesaid-54 to 60-do not, in our opinion, in any wise limit the scope of section 53, but, in line therewith, relate to proceedings to be had in the matter of winding up dissolved corporations. It is suggested that, as the New Jersey proceedings dissolved the corporation, the present suit must abate, notwithstanding section 53, because it is a personal action for malicious prosecution, and therefore cannot survive dissolution. The first answer to this is that the New Jersey proceedings did not dissolve the corporation, quoad the prosecution of suits, and that statute is controlling in the matter. See sections 53, 59, New Jersey Laws, supra. The second answer is that this suit is not one of those actions for personal injuries which, under section 989 of the Revised Statutes of Florida, of 1892, die with the person. While, in a general way, it would be called an action for malicious prosecution, it is really an action to recover damages for trespass upon property; or, as otherwise stated, it is an action to recover damages to the estate, business, and credit of the Bucki & Son Lumber Company. The distinction is recognized by the Supreme Court of Florida in Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 South. 10, and we think sound reason requires the holding that where the damages from a tort are to the estate of the plaintiff, as distinguished from damages to the person, the right of action survives. For authorities on the subject, see 25 Ency. Pl. & Pr. p. 328. The order of the Circuit Court staying the execution issued under the judgment of this court for costs appears to be based upon the following state of facts: The Atlantic Lumber Company had recovered a judgment in the Circuit Court, afterwards affirmed by this court, against the Bucki & Son Lumber Company. Subsequently the Bucki & Son Lumber Company obtained a judgment in the Circuit Court, rendered on mandate from this court, against the Fidelity & Deposit Company of Maryland, growing out of matters wherein the Fidelity Company was a surety for the Atlantic Lumber Company. Thereupon the Atlantic Lumber Company assigned its judgment against the Bucki & Son Lumber Company to the Fidelity Company to be used as a partial set-off, and proceedings to compel such set-off were instituted, and are still pending. Now the Atlantic Lumber Company claims that the execution issued against itself under the mandate of this court in the instant case, and in favor of the Bucki & Son Lumber Company, should be stayed to await the event-the success or failure of the Fidelity Company to obtain the set-off above referred to with the view that, if the Fidelity Company fails to establish its right to set off the judgment in favor of the Atlantic Lumber Company and against the Bucki & Son Lumber Company against the judgment in favor of the Bucki & Son Lumber Company against itself, then a reassignment of the judgment obtained by the Atlantic Lumber Company against the Bucki & Son Lumber Company will enable the Atlantic Lumber Company to plead the same as a set-off against the judgment and execution for costs rendered under our mandate in the instant case. On this state of facts, it seems that the order staying the execution was improvident. The Fidelity Company is no party to the present suit, the Atlantic Lumber Company owns no judgment against the Bucki & Son Lumber Company, and is not entitled to have execution against itself stayed to await a possibility that it may some time have a judgment which it may be able to plead as a set-off. This seems to dispose of the order staying execution, but there is a further answer: Prior to the obtaining of judgment in the instant case against the Atlantic Lumber Company, the Bucki & Son Lumber Company had assigned the cause of action to petitioner H. Bisbee, who, at the time judgment was rendered, was the owner of the same. It seems to be reasonably well settled that "an assignment of a demand before the entry of judgment upon it gives to the assignee a superior equity to that of a party claiming a right to set off a judgment previously recovered against the assignor, and prevents the right of set-off from accruing, since there can be no right of set-off under judgments until both exist." 25 Ency. Law, p. 618, note 5. We do not think that the Atlantic Lumber Company is in any position to question the assignment to Bisbee. It appears to have been in consideration of professional services rendered and to be rendered, and for moneys, costs, and expenses of litigation advanced. Outside of the assignment, Bisbee, as attorney recovering the judgment, has a lien on the same, not to be divested by any set-off of judgment recovered on prior independent transaction. Carter v. Bennett, 6 Fla. 214, 258, 259; Carter v. Davis, 8 Fla. 183. See In re Paschall, 10 Wall. 483, 496, 19 L. Ed. 992; Central Railroad & Banking Co. of Georgia v. Pettus, 113 U. S. 117, 127, 5 Sup. Ct. 387, 28 L. Ed. 915. From what we have said, it follows that in our opinion the quasi plea in abatement should not have been permitted filed, and, if filed, should have been promptly overruled, and that the order staying the execution for costs, as directed in our mandate, should not have been granted. It was granted without authority, and upon an insufficient case. And that brings us to what we think is the real question, to wit, what, if any, relief can be granted petitioner in the present proceedings? There is no question that the rulings upon the plea and the order staying execution directly tended to hinder and delay, if not entirely defeat, the execution of our mandate. It may be admitted that, if the Circuit Court had finally ruled adversely to petitioner upon either the plea or the right to a stay of execution, the petitioner could have prosecuted a writ of error; and it may be that, if relief should be denied petitioner in the present proceedings, eventually a ruling will be had upon those questions in the Circuit Court, and from such ruling, if adverse, he can prosecute a writ of error. But the case shows that the Circuit Court has not finally ruled on either proposition, and that a ruling at any day certain is not to be expected; and to compel petitioner to await such indefinite ruling, and then possibly be driven to a writ of error, will cause irreparable injury to petitioner. In regard to the ruling staying the execution issued under the mandate of this court, we think that, in accordance with the undisputed authorities, a mandamus may issue, and that being the case, and as the full record of the proceedings upon the alleged plea are now before us, and nothing but delay and injury can result from driving petitioner to await a ruling thereon and then sue out a writ of error, we are disposed to deal with the case on the whole record as though properly before us upon a writ of error. We think such ruling is supported by sound reason. To deny relief at this time, with the full record before us, with a view that |