ration and writ of replevin, being the same identical property described in the aforesaid transcript of record, and for his costs in said action, as by the record and proceedings thereof still remaining in said Circuit Court of Cook county more fully appear, which said judgment is in full force, and unreversed and unsatisfied, and this the defendant is ready to verify by the record. Wherefore the said defendant prays judgment if the court here will take jurisdiction and cognizance of the action aforesaid."

The plaintiffs below filed a demurrer to this plea, and afterward, on November 21, 1878, the demurrer was argued. The minutes of the court state its judgment upon the demurrer as follows:

"Now come the plaintiffs by Henry Crawford, Esq., their attorney, and the defendant by Edwin Walker, Esq., his attorney, and now comes on to be heard the demurrer of the plaintiffs to the plea to the jurisdiction herein, and after hearing the arguments of counsel the court sustains the demurrer, to which ruling of the court the defendant by his counsel excepts, and the defendant failing to make further answer herein, and electing to abide by his said plea, it is thereupon considered by the court that the plaintiffs have and retain possession of the goods and chattels described in the writ issued in this court," etc.

This judgment the plaintiff in error seeks to reverse in this court. The following are his assignments of

error:

That the Circuit Court erred:

1. In overruling the motion made by the plaintiff in error on June 26, 1878, to dismiss the said cause.

2. In sustaining the demurrer to the special plea filed by the plaintiff in error on November 12, 1878. 3. In rendering judgment against the plaintiff in error upon the demurrer.

4. The court had no jurisdiction over the subjectmatter of the action.

The Circuit Court of Cook county and the Circuit Court of the United States both claimed jurisdiction of the case and both rendered final judgments therein, the State court in favor of the plaintiff in error and the United States court in favor of the defendants in error.

Most of the points raised upon the record will be solved by a settlement of the question, which court had jurisdiction of the case when said final judgments were rendered.

The jurisdiction was, of course, originally in the State court. It is unnecessary to decide whether the State court rightfully or wrongfully denied the first two petitions of the defendants in error for the removal of the cause. The petition for its removal, filed July 6, 1877, contained every averment required by law. It was filed at the proper time, and it was accompanied by a bond with good and sufficient surety, conditioned according to the statute.

According to the terms of the act of Congress it was the duty of the State court "to accept said petition and bond and proceed no further in said suit." Sec. 3, act of March 3, 1875, 18 Stat. 471.

Notwithstanding the refusal of the State court to make an order for the removal of the cause, the defendants in error filed in the United States Circuit Court, within the time prescribed by the statute, a transcript of the record of the State court. This invested the United States court with full and complete jurisdiction of the case, for in the language of the statute just referred to, "the said copy being entered as aforesaid in said Circuit Court of the United States, the cause should then proceed in the same manner as if it had been originally commenced in said Circuit Court."

If the case is a reasonable one and the statute for the removal of the cause has been complied with, no order of the State court for the removal of the cause is necessary to confer jurisdiction on the United States court,

and no refusal of such an order by the State court can prevent the jurisdiction from attaching. Insurance Company v. Dunn, 19 Wall. 214.

It is therefore clear that when the defendant below filed, on July 27, 1877, in the United States Circuit Court, a transcript of the record of the State court, the former acquired and the latter lost jurisdiction of the case.

The contention of the plaintiff in error seems to be, that an action of replevin, where the sheriff of a State court is the defendant, is not removable, because the sheriff, an officer of the State court, being in possession of the property, the subject-matter of the controversy, the Federal court is without legal authority or power by writs, process, or orders to wrest its possession from him.

There is no support either in the act of Congress for the removal of causes, nor in any case adjudged by this court, for this position. The act of Congress makes no exception of causes where the subject-matter of the controversy is in possession of the State court. Under the Constitution and laws of the United States a citizen of the United States, party to a suit in a State court, which falls within the terms of the statute for the removal of causes, has the right to have it removed to and heard by a United States court.

The cases of Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 id. 450, and Buck v. Colbath, 3 Wall. 334, relied on by the plaintiff in error, are not in point. Those cases decide that property held by an officer of one court by virtue of process issued in a cause pending therein cannot be taken from his possession by the officer of another court of concurrent jurisdiction, upon process issued in another case pending in the latter court.

But here there is but one case. It is brought in the State court. It falls within the terms of the act of Congress for the removal of causes. When the prerequisities for removal have been performed, the paramount law of the land says that the case shall be removed, and the case and the res both go to the Federal court. The fact that the State court, while the case was pending in it, had possession of the subject-matter of the controversy, cannot prevent the removal, and when the removal is accomplished, the State court is left without any case, authority or process by which it can retain possession of the res. The suit and the subject-matter of the suit are both transferred to the Federal court by the same act of removal, or when a bond for the delivery of the property has been taken, as in this case, the bond as the representative of the property is transferred with the suit. There is no interference with the rightful jurisdiction of the State court, and no wresting from its possession of property which it has the right to retain.

If the contention of the plaintiff in error is that the State court, having seized property by virtue of a fieri facias issued on a judgment rendered by it, the Federal court cannot take such property from its possession by writ of replevin, or in other words, that the replevin suit which was sought to be removed in this case could not have been originally brought in the Federal court, the answer is, that upon the question of removal, it is entirely immaterial whether or not the suit, as an original action, could have been maintained in the Federal court. In short, no provision of the State law, no peculiarity in the nature of the litigation which would forbid the United States court from entertaining original jurisdiction, could prevent the removal, provided the case fell within the terms of the statute for the removal of causes. Railway Company v. Whitten, 13 Wall. 270, Insurance Company v. Morse, 20 id. 445; Gaines v. Fuentes, 92 U. S. 10; Boom Co. v. Patterson, 98 id. 403.

The United States court having acquired jurisdiction, and the State court lost it by the proper removal

of the cause, has the State court been reinvested with jurisdiction by the facts stated in the plea to the jurisdiction filed by the defendant below, namely, that long after the removal of the cause to the United States court, the plaintiffs below filed their replication in the State 'court, and prosecuted their action therein to a final hearing. In other words, is the plea to the juris- | diction of the United States court, filed by the defendaut below on November 12, 1878, a good plea?

It has been expressly held by this court that when a case has been properly removed from a State into a United States court and the State court still goes on to adjudicate the case, against the resistance of the party at whose instance the removal was made, such action on its part is a usurpation, and the fact that such a party has, after the removal, contested the suit does not, after judgment against him, constitute a waiver on his part of the question of the jurisdiction of the State court to try the case. Insurance Company v. Dunn, 19 Wall. 214; and Removal cases, 100 U. S. 457; and Railroad Company v. State of Mississipi, decided at the present term.

These cases are directly in point. In the action of replevin the defendant, if he succeeds, recovers in effect the same judgment against the plaintiff as the plaintiff, in case he succeeds, recovers against the defendant. So that the plaintiffs below, in contesting the suit in the State court after its removal, were seeking to protect themselves against a judgment in favor of the defendant for the return of the property in controversy, a judgment which was in fact entered against them.

Our conclusion, therefore, is that by the proceedings for the removal of this case jurisdiction over it was transferred to the United States Circuit Court, and the filing by the plaintiffs below of a replication in the State court, after such removal, and the prosecution of the action to a final hearing in that court, did not reinvest the State court with jurisdiction of the cause, nor did it amount to a waiver of any rights resulting to the plaintiffs below from the removal.

This conclusion is strengthened by the fact that the plaintiffs below constantly insisted, as the record shows, upon the jurisdiction of the United States court over the case, and even while the case was on final trial in the State court, procured the entry of an order in the United States court to the effect that, upon the filing of the transcript of the record of the State court in the United States court, the latter court acquired exclusive jurisdiction over the case.

After the filing in the United States Circuit Court on July 27, 1877, of the record of the proceedings in the State court, the latter lost all jurisdiction over the case, and being without jurisdiction, its subsequent proceedings and judgment were not, as some of the State courts have ruled, simply erroneous, but absolutely void. Gordon v. Longest, 13 Pet. 97; Insurance Company v. Dunn, 19 Wall. 214; Virginia v. Rives, 100 U. S. 313.

It only remains to consider the contention of the plaintiff in error that the court below should not have entered judgment against him after sustaining the demurrer to his plea to the jurisdiction filed November 12, 1878, because there was still remaining his plea to the merits filed July 6, 1877, before the case was removed from the State court. The facts disclosed by the record make it clear that there is no solid ground for this assignment to stand on.

The plea of November 12, 1878, was a plea to the jurisdiction. The defendant below was allowed to file it on special leave asked by him and given by the court. The asking of leave to plead to the jurisdiction was in effect a withdrawal of the plea to the merits, for after a plea in bar the defendant cannot plead to the jurisdiction of the court; for by pleading in bar he submits to the jurisdiction. 1 Chitty on

Pleadings, 440, 441; Palmer v. Evertson, 2 Con. 417; Co. Litt. 303; Com. Dig., Abatement, C.; Bacon's Abridg., Abatement, A.

The plea in bar being in effect withdrawn by the plea to the jurisdiction, when the demurrer to the latter was sustained the defendant below was left without plea.

If the defendant had so desired, the judgment of the court would have been respondeat ouster. But he elected, as the record shows, to stand by his demurrer and declined to make any further answer. There was nothing then left for the court to do but to pronounce judgment against him, which was done.

There was no error in this. The suggestion that there should have been a trial upon the plea in bar appears to have been an afterthought.

There is no error in the record or the judgment of the Circuit Court. The judgment must therefore be affirmed.

MANDAMUS AGAINST MUNICIPAL OFFICER NOT ABATED BY RESIGNATION.

UNITED STATES SUPREME COURT, APRIL 18, 1881.

THOMPSON V. UNITED STATES EX REL. CAMBRIA

IRON CO.

Proceedings in mandamus against a municipal officer to compel the performance of an official duty do not abate by the expiration of the office of the defendant, when there is a continuing duty irrespective of the incumbent, and the proceedings are undertaken to enforce an obligation of the corporation or municipality to which the office is attached.

N error to the Circuit Court of the United States

I for the Western District of Michigan. The opinion

states the case.

BRADLEY, J. This case arises upon a petition for a mandamus to compel Thompson, the township clerk of the township of Lincoln, in the county of Berrien, State of Michigan, to make and deliver to the supervisor of the township a certified copy of a judgment recovered against it by the Cambria Iron Company, the petitioners, in order to its being placed upon the taxroll for collection and payment. The questions arising are much the same as those disposed of in the case of Edwards v. United States,23 Alb. L. J. 391. The petition states that the Cambria Iron Company recovered judgment against the township of Lincoln, in the Circuit Court of the United States, on the 29th of May, 1876, for the sum of $6,273.32, besides costs, and caused to be delivered a certified copy thereof to Thompson, the township clerk, with a request to certify it to the supervisor, to be raised by tax on the township; but that Thompson declared that he would not do it, and pretended that there was no supervisor; that one Mitchell Spillman, who had been supervisor, had resigned; and that if there were any supervisor, still he would not do it; that he himself had resigned, and was not clerk of the township; that the supervisor and himself had both resigned for the express purpose of defeating the collection of petitioner's judgment, and other similar claims. The petition charges that the said supervisor and clerk have fraudulently combined to cheat and defraud the petitioners by falsely pretending to resign, whereas they actually continue to discharge the duties of their offices-setting forth various facts corroborative of the charge.

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The court below having granted a rule to show cause why a mandamus as prayed for should not issue, the defendant filed an answer to the petition admitting that a judgment had been entered against the township, as stated in the petition, but averring that it was not a valid judgment, because, as the answer alleged,

the court never obtained jurisdiction; that no service was ever had of process in the cause upon the supervisor of the township; that Alonzo D. Brown, upon whom service was made, was not at the time supervisor; and that although one Clapp, an attorney, appeared for the township, he was never employed by the township; that the defendant was, it is true, duly elected clerk of the township in April, 1876, but that he resigned his office before the certified copy of the judgment was served upon him, by filing in the office of clerk [that is, his own office] and depositing with the files of the township a written resignation addressed to the township board; and that he has not acted as clerk since. He admits that he refused to certify the judgment, but did so because he was not clerk, and because there was no supervisor, Spillman, who had been supervisor, having resigned. This answer was demurred to, but the demurrer was overruled and the cause came on for trial. The jury rendered a special verdict, as follows:

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First. That on the 23d day of November, 1875, Alonzo Brown, upon whom the declaration was served in the original case of The Cambria Iron Company v. The Township of Lincoln, was supervisor of said township of Lincoln, and was such supervisor at the time the declaration in said cause was served upon him as such supervisor by the marshal.

"Second. That George S. Clapp, who entered his appearance as attorney for the defendant in said cause and appeared and pleaded therein for said township of Lincoln, was duly authorized by said defendant to appear and plead for it in said cause.

Third. That the respondent, John F. B. Thompson, was, at the time of the service of the order to show cause in this why a mandamus should not issue against him, clerk of the said township of Lincoln, and still is such clerk, and has not resigned the said office.

"Fourth. That Mitchell Spillman was, at the time the said order to show cause was served, the supervisor of said township, and still holds the said office, aud held the said office on October 1st, A. D. 1876."

The questions raised on the trial were, as in the previous case of Edwards, whether the tender of a resignation by a supervisor or clerk of a township, by filing the same with the clerk, was valid and effectual as a resignation, so as to discharge the officer of his official character, without an acceptance by the township board, or an appointment to fill the vacancy. Such a resignation was relied on to show that Brown, on whom process in the original action was served, was not supervisor, and that Spillman was not supervisor, and the defendant was not clerk when the present proceedings were commenced. As we have fully discussed this question in the previous case, it is not necessary to say any thing further on the subject. The ruling of the court below was in conformity with our decision in that case. This also disposes of the question of the appearance of Clapp, the attorney in the original action, he having been employed by Brown, the supervisor.

Another question raised at the trial was whether the petitioner might show the motive and intent with which the supervisor and clerk attempted to resign, with a view to show that it was done for the purpose of defrauding the petitioners, and avoiding to do those acts which were necessary to the collection of his judgment. The court allowed evidence to be given on the subject, and to this the defendant excepted. We do not see why the evidence was not admissible for the purpose of showing that the attempted resignation was simulated and fraudulent. But it is not necessary to decide this point, since the admission of the testimony did not injure the defendant, because the attempted resignations were not completed by the acceptance of the township committee.

Another point raised was that it appeared by the

township book, offered in evidence, that the township board did appoint a successor to the defendant as township clerk on the 4th day of November, 1876, after the cause was at issue. On motion of the petitioner's counsel this evidence was stricken out, for the reason that such fact having arisen since the return was made, it was not competent under the issue framed thereon. It does not appear that this matter was in any way brought to the notice of the court, or sought to be put in issue, until the evidence was offered during the trial. In addition to this, the evidence was not conclusive. It did not show that the attempted appointment was effectual. Had the point been properly put at issue the whole matter could have been known. We think the court was justified in striking out the evidence. As a matter of defense, whether in abatement or in bar, it should have been set up by a plea puis darrein continuance, or its equivalent. It could not be given in evidence under any of the issues in the cause. Jackson v. Rich, 7 Johns. 191; Jackson v. McCall, 3 Cow. 79.

But we cannot accede to the proposition that proceedings in mandamus abate by expiration of office of the defendant where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held by very high authority. People v. Champion, 16 Johns. 61; People v. Collins, 19 Wend. 56; High on Extr. Rem., § 38. We have had before us many cases in which the writ has, without objection, been directed to the corporation itself, instead of the officers individually; and yet in case of disobedience to the peremptory mandamus, there is no doubt that the officers by whose delinquency it was incurred would have been liable to attachment for contempt. The proceedings may be commenced with one set of officers and terminate with another, the latter being bound by the judgment. Bd. Commissioners v. Knox Co., 24 How. 376; Supervisors v. United States, 4 Wall. 435; Von Hoffman v. Quincy, id. 535; Benbow v. Iowa City, 7 id. 313; Butz v. City of Muscatine, 8 id. 575; Mayor v. Lord, 9 id. 409; Commissioners v. Sellew, 99 U. S. 626; and many

others.

And so, if we regard the suostance and not the mere form of things, a proceeding like the present, instituted against a township clerk, as a step in the enforcement of a township duty to levy the amount of a judgment against it, ought not to abate by the expiration of the particular clerk's term of office, but ought to proceed to final judgment, so as to compel his successor in office to do the duty required of him in order to obtain satisfaction from the township. The whole proceeding is really and in substance a proceeding against the township, as much as if it were named, and is in the nature and place of an execution. If the resignation of the officer should involve an abatement, we would always have the unseemly spectacle of constant resignations and reappointments to avoid the effect of the suit. Where the proceeding is in substance, as it is here, a proceeding against the corporation itself, there is no sense nor reason in allowing it to abate by the change of individuals in the office. The writ might be directed to the township clerk by his official designation, and will not be deprived of its efficacy by inserting his individual name. The remarks of Mr. Justice Cowen, in People v. Collins, 19 Wend. 68, are very pertinent to the case, and seem to us sound. That was a mandamus to commissioners of highways who were elected annually; and it was objected that their term would expire before the proceedings could be brought to a conclusion. Justice Cowen said: "The obligation sought to be enforced devolves on no particular set of commissioners, and no right is in question which will expire with the year. The duty is perpetual upon the present

the benefit of a third person, the latter may maintain an action on each promise. Garnsey v. Rogers, 47 N. Y. 232. It is upon this last ground, it is said, the cases in this State are based. Ross v. Kennison, 38 Iowa, 396. There are dicta in Garnsey v. Rogers, it is said, indicating the contract is irrevocable unless the mortgagee assents to the revocation. No such question, however, was in the case.

The question under consideration arose in Simpson v. Brown, 6 Hun, 251, and it was there held in substance the contract could not be released by the mortgagor. This case on appeal (68 N. Y. 355) was reversed on several grounds, among which was that the mortgagor could release the indemnity before it had been assigned to the mortgagee, or came into his hands. To the same effect is Stevens v. Casbacker, 8 Hun, 116. It has also been held, when one person makes a promise to another for the benefit of a third person, the person to whom the promise is made may execute a valid release of such promise before it has been accepted by the latter. Dunham v. Bischoff, 47 Ind. 211; Kelly v. Roberts, 40 N. Y. 432.

It the case at bar the contract primarily was made to indemnify the mortgagor, Warner. It may be the plaintiff was entitled to the benefits of the contract, but this depended upon the question whether he desired to avail himself thereof. He could not be forced to do so. Now, before he had knowledge any such contract was in existence, the parties who made it agreed upon a valuable consideration to release the obligation thereby assumed. Having the power to enter into such contract, it would seem to follow they could enter into another whereby the former ceased to be of any force or effect, unless in the mean time the person for whose benefit it was made, in some manner has indicated he accepts the contract, or it can be implied he did so. By so doing he acquires the rights and assumes the burdens incident thereto.

It is said the court below based its ruling on something that is said in Corbet v. Waterman, 11 Iowa, 86. The question in that case was not in the one before us, and we have great doubt whether there is any thing said by way of argument which has any material bearing on the case at bar. The appellee suggests that the answer shows the real estate was conveyed by Warner to the defendant, and that the latter has never reconveyed it; therefore it is said the legal title is still vested in him. This may be true, but it is clear from the answer that the defendant has no beneficial inter

est in the real estate. At most, he holds the naked legal title in trust. Conceding a consideration was necessary to support the release as against the plaintiff, the answer shows there was such consideration independent of and in addition to the delivery of the deed. Upon the ground herein indicated the demurrer should have been overruled. Reversed.

The plaintiff was the owner of a house in Manchester, and the defendants are the corporation of Manchester. During a violent storm of rain, thunder, and lightning a sewer burst under a cellar which communicated with the lower rooms of the plaintiff's house. The rooms were flooded and the outer wall blown out into the river Irwell, which flowed past the walls of the house. The fall of the wall brought down the whole of the house, which fell into the river.

The action was brought against the corporation for damages, which were agreed upon between the parties in the course of the trial.

At the trial the principal question of fact put before the jury was whether the bursting of the sewer was caused by a flash of lightning or by the force of the water, and the jury found that it was caused by the water and not by the lightning.

At the request of the learned counsel the learned judge put to the jury the following questions, and received the following answers: 1. Was the destruction of the house caused by the bursting of the sewer? Yes. 2. Was the bursting of the sewer caused by defects in the original construction of the sewer? Yes. 3. Was the bursting of the sewer caused by the omission of the defendants to take reasonable means to discover it? Yes. 4. Was the ignorance of the corporation as to the existence of any defect in the sewer due to any omission on their part to take reasonable means to discover it? Yes. 5. Was the bursting of the sewer caused by the lightning? No; i. e., would it have happened if there had been no lightning? Yes.

Upon these findings the learned judge left the parties to move for judgment, and they did so accordingly on the 26th March, 1881, when the case was fully argued.

By 11 Geo. iv, chap. xlvii, § 58, power was given to the Manchester,Improvement Commissioners to make main sewers, etc., and to use, widen, and enlarge private sewers for the purpose of communication, and also to continue sewers through inclosed lands.

By 6 Vict., chap. xvii, § 3, the powers of commissioners were transferred to the corporation of Manchester. By section 4 the powers of the corporation are to be executed by the town council; and by section 5 the property of the commissioners was vested in the corporation.

By 14 and 15 Vict., chap. cxix, § 36, it was enacted: "That it shall be lawful for the council from time to time, and at all times hereafter, to cause such and so many common sewers and drains as they may think sufficient and necessary to be constructed in, along, or across any of the streets within the borough, and also to cause any of the common sewers or drains which now are or hereafter shall be within the borough to be enlarged, repaired or cleansed when and so often as they shall deem proper; and in case it shall be found necessary, for making or completing any such common sewers or drains, it shall be lawful for the council to carry the same into or through any inclosed lands or grounds lying within the borough, and also to make use of any private sewers or drains for the purpose of forming a communication between any public sewer, drains or water-courses, and in case any such private sewer or drain shall not be sufficient for the purposes aforesaid, to widen and enlarge the same."

C. Russell, Q. C. (with him Leresche), for the plaintiff.

Sir John Holker, Q. C., and Heywood. for the defendants.

STEPHEN, J., after stating the facts of the case as given above, continued: It will be convenient in the first place to state the position of the corporation in relation to the sewers. In 1830 an act (11 Geo. iv, chap. xlvii) was passed by which it was enacted that it should