Bruen, 1 How. 169; People v. Tazewell Co. 22 Ill. 151; City of Pekin v. Reynolds, 31 Ill. 531; Prellyman v. Tazewell Co. 19 Ill. 406; Sherlock v. Winnetka, 68 Ill. 535.

County Bonds-Nebraska.

DAVENPORT v. DODGE CO., U. S. Sup. Ct., Oct. Term, 1881. circuit court of the United States for the district of Nebraska.

Error to the

The decision

in this case was rendered in the supreme court of the United States on March 20, 1882. Mr. Chief Justice Waite delivered the opinion of the court reversing the judgment of the circuit court.

A precinct is a mere subdivision of a county, and not a separate political entity, and bonds issued by authority of a vote of the precinct for public purposes must be issued in the name of the county of which the precinct forms a part; and suit on such bonds must be against the county, the judgment to be paid by a tax levied only on the taxable property of the precinct. A suit to obtain such a judgment is maintainable, although the state statute authorizing the issue of the bonds provides the special remedy by mandamus for their enforcement; yet inasmuch as a suit to obtain judgment on bonds or coupons is part of the necessary machinery of the federal courts in enforcing the writ of mandamus, which is in the nature of an execution, it will not be issued until judgment is obtained.

W. H. Munger and E. Wakely, for plaintiff in error.
William Marshall, for defendant in error.

Cases cited in opinion: State v. Dodge Co. 10 Neb. 20; Cass Co. v. Johnston, 95 U. S. 360; County Com'rs v. Chandler, 96 U. S. 205; Greene Co. v. Daniel, 102 U. S. 195; Graham v. Norton, 15 Wall. 427; Bath Co. v. Amy, 13 Wall. 244.

Bonds in Aid of Railroads—Liability of Town.

AMERICAN LIFE INS. Co. v. TOWN OF BRUCE, U. S. Sup. Ct., Oct. Term, 1881. Error to the circuit court of the United States for the northern district of Illinois. The decision of the supreme court of the United States was rendered in this case on April 24, 1882. Mr. Justice Harlan delivered the opinion of the court reversing the judgment of the circuit court.

Where a statute authorizes a town to make a subscription in aid of a railroad, to be paid in bonds of the town, subject to the conditions that the road be so constructed as to pass through the town, and that a depot be located and maintained in the town, it cannot, after the bonds have been signed, sealed, and delivered by its constituted authorities to the railroad company, and have passed into the hands of bona fide holders for value, escape liability by showing that the conditions, or some of them, imposed by popular vote have not been complied with upon the part of the railroad company, even though the statute authorizing their issue especially provides that they shall not be valid till such conditions are complied with.

Henry Hazlehurst, Isaac Hazlehurst, and G. L. Fort, for plaintiff in error. Phelps & W. Hallet Phelps, for defendant in error.

Cases cited in the opinion: Town of Eagle v. Kohn, 84 Ill. 292, distinguished; Brooklyn v. Insurance Co. 99 U. S. 370, followed.

JOHNSON V. JOHNSON.

(Circuit Court, S. D. New York. June 20, 1882.)

1. REMOVAL OF CAUSE-TIME OF APPLICATION.

Under the act of 1875 the first term during which the cause might have been tried means the first term when the cause is legally triable, not a subsequent term to which it may have been legally postponed by agreement, or by order of the court, and it has no reference to the presence or absence of witnesses, or the crowded state of the docket.

2. SAME-PREJUDICE AND LOCAL-INFLUENCE ACT.

It is only where a suit is removed on account of prejudice or local influence, under subdivision 3, § 639, Rev. St., which is not repealed by the act of 1875, that a removal may be had at any time before the final hearing.

3. SAME

DIVORCE-REMAND ON MOTION OF COURT.

An action for divorce a vinculo and for alimony, removed from the state court, may be remanded by this court of its own motion on suggestion of the party removing, on the ground of want of jurisdiction in this court over actions of that character.

Robertson, Harman & Cuppia, for plaintiff.
Joseph J. Marrin, for defendant.

BROWN, D. J. The papers show that this cause was at issue and duly noticed for trial and placed upon the calendar of the state court for trial in October, 1881, and that it was on the day calendar and called at several terms prior to the June term, when it was removed to this court.

When a cause is removed on account of the citizenship of the parties, it must, under the act of 1875, be removed at the first term. during which the cause might have been tried in the state court. This means the first term when the cause was legally triable, not a subsequent term to which it may have been legally postponed by agreement or by order of the court; and it has no reference to the presence or absence of witnesses, or to the crowded state of the docket. Ames v. Colorado, 4 Dill. 263; Sough v. Hatch, 16 Blatchf. 233. The practice is perfectly settled in this circuit and elsewhere. Whitehouse v. The Continental, 2 FED. REP. 498; Murray v. Holden, Id. 740; Cramer v. Mack, 12 FED. REP. 803. It is only where a suit is removed on account of prejudice or local influence, under subdivision 3 of section 639, which is not repealed by the act of 1875, that removal may be had at any time before the final hearing. Sims v. Sims, 17 Blatchf. 369; Whitehouse v. The Continental, supra. There has been no order or adjudication of the state court adjudging that v.13,no.5-13

this cause could not have been tried before the June term, as in McLean v. St. Paul, 17 Blatchf. 363, 365; and the facts would not warrant any such adjudication.

The cause must be remanded because not removed at the first term when it might have been tried.

In another suit between the same parties for divorce a vinculo and alimony, removed to this court by the defendant, who afterwards asked that the cause be remanded, the plaintiff objected that the defendant could not make such an application.

BROWN, D. J. Upon the authority of Barber v. Barber, 21 How. 582, 584, I think this cause must be remanded by the court of its own motion as not properly within the jurisdiction of the United States courts.

June 27, 1882.

WATSON V. EVERS and others.

(Circuit Court, S. D. Mississippi. May Term, 1882.)

1. JURISDICTION-NECESSARY PARTIES-CITIZENSHIP.

Where the contract sued on was entered into between plaintiff and defendants, one of whom was a citizen of the same state with plaintiff, and the other a citizen of a foreign country, and both defendants are not only necessary but indispensable parties to the controversy, as shown from the face of the bill, this court is without jurisdiction.

2. SAME-CASE STATED.

Where the bill charged that complainant was induced by false and fraudulent representations of defendant, a citizen of Great Britain, and another party, a citizen of the same state with the complainant, to enter into contracts with defendant, and a contract with defendant and such third party, and that by false and fraudulent representations of both defendant and such third party he was induced to advance money pursuant to said contracts for the purchase of lands to be owned and held by them in common, held, that as to the contracts made with defendant alone, such third party was not a necessary party to the suit; but as to the contract entered into by all three, and which contract was recited in the bill for relief, such third party was not only a necessary, but an indispensable party to the suit, and that, being a citizen of the same state with complainant, this court has no jurisdiction to grant the relief sought.

HILL, D. J. The questions now presented for decision arise upon defendants' motion to dismiss the bill and their demurrer thereto, which will be considered together.

The bill in substance states that complainant and defendant Baldwin are both citizens and residents of Chicago, Illinois; that defendant Evers is a subject of Queen Victoria, and resident of England;

that in the fall of 1881 Evers and Baldwin were together in Chicago, and there met complainant, who was introduced by Baldwin to Evers; that Evers and Baldwin, combining and conniving together, represented to complainant that Evers resided in London, England, and was a partner in a firm of large British capitalists, and that Evers was their representative in America, and controlled, or could control, a large and very advantageous enterprise in Mississippi lands, and jointly and separately proposed and urged an agreement between Evers and complainant to purchase from the levee commissioners of Mississippi about 640,000 acres of land situated in different counties in this state; that the lands were well timbered and valuable, and could be purchased at 20 cents per acre; that complainant, confiding in the truth of these statements, entered into a written agreement with Evers, signed by complainant and by Baldwin, in Evers' name, as agent for Evers, dated October 10, 1881. The substance of this agreement, which is exhibited with and made a part of this bill, is that the lands were to be purchased at 20 cents per acre; that they should be sold; the cost and expenses were to be repaid to those who had advanced them; then complainant and Evers wero to account to Baldwin for the one-fourth of the balance of the lands, or their proceeds, and divide the residue between them.

1

The bill charges various other fraudulent and false representations made by Baldwin and Evers, which induced Watson to enter into another written agreement, dated October 25, 1881, which recited that Evers had purchased 663,785 acres of land, and that Evers had bargained and sold to Watson an undivided half interest therein, at 20 cents per acre-payable, $10,000 down, the balance to be paid when the deed should be executed, which was to be done before the tenth of November thereafter; that at the time the last agreement was entered into, Baldwin and Evers falsely and fraudulently represented to Watson that Evers had before that time purchased said lands, and had paid for the same out of his own resources at 20 cents per acre. The bill further alleges that Watson, relying upon these statements as true, and that 706,360 acres of land had been so purchased, and the further statement that Evers had before that time paid fees to commissioners to the amount of $3,531.80, and for recording deeds the sum of $1,600, aggregating the sum of $146,403.60; that the one-half of this sum, Watson's share, amounted to $73,201.90,that Watson, relying on the truth of all these statements, paid to Evers said sum, and took his receipt therefor, which is exhibited with the bill.

The bill further avers that the sum so paid by Watson to Evers is every cent that has ever been paid for said lands in any way, and that Ever's statements as to his having paid anything for said lands out of his own resources are wholly false and untrue; and that Evers, out of the money so paid to him, and with levee bonds and coupons, purchased at a large discount, at 10 cents per acre, and paid therefor out of the money so received; that Evers purchased the lands described in the schedule thereof filed with the bill, at the price of 10 cents per acre; that the sum paid therefor amounted to $48,454.22— $4,837.98 being in money, and the remainder in levee bonds and coupons; that although Evers has obtained the legal title to said lands, he now refuses to convey to Watson the title to the one moiety, as provided for in either of the agreements stated.

The bill further alleges that after said purchase was made and the title obtained, Baldwin falsely represented to Watson that he controlled certain state lands or internal-improvement lands lying within the same boundaries, estimated at 150,000 acres; that the same were exempt from taxation; with other false and fraudulent representations in relation to such lands and the price at which they could be purchased, which were made to induce Watson to enter into another agreement in regard to the lands embraced in the former agreements; whereupon another written agreement was entered into between Watson and Evers, and to which Baldwin became a party, and signed by each of them, dated December 1, 1881. This agreement recites. that Watson, Evers, and Baldwin were then interested in 706,000 acres of land then purchased and paid for, and the title held in Evers' name. The agreement provides in substance that Baldwin should procure these internal-improvement or state lands,-not less than 150,000 acres; that a joint-stock company or corporation should be formed, and that the stock or shares therein should be equally divided between Baldwin, Evers, and Watson; that all the lands before that time purchased and held as stated should, with that purchased by Baldwin, be conveyed to said company, and held and disposed of by said company as the property thereof.

The bill alleges that Baldwin never did purchase any lands whatever, and that his statements in relation thereto were false, and designed to deceive and defraud Watson, and to induce him to enter into the last agreement.

The bill further alleges that Evers, with a portion of the money. so fraudulently procured from Watson, purchased other lands situate within this state, amounting to some 12,000 acres.