HUGHES '11. ELSHER.
cited at the bar, that such is not the effect of any plea when it is filed simultaneously with the others. I am unable to distinguish this case from True v. Huntoon, 54: N. H. 121, which decides that point. Motion to set aside pleas denied.
HUGHES 'V. ELSHER.
(Circuit Court, D. New Hampshir8.
December 28, 1880.)
m ABATEMENT-MOTION FOB NEW TRIAL PENDING IN STATli COURT.-PlaintiJI brougbt an action in tbe circuit court for tbe district of New Hampshire breach of covenant contained in a deed purporting to convey certain land. The defendant pleaded in abatement a bill of complaint and motion for a new trial of actions, founded upon a part of the purChase-money notes, then pending in the state court. Held, that the plea in abatement was bad.-fED.
Covenant. Plea in Aba.tement. W. H. Dodge and Mr. Copeland, for plaidiff. Thomas J. Smith, for defendant. LowELL, C. J. In tlds action of covenant broken, the plaintiff, Patrick Hughes, of Dover, New Hampshire, declares that the defenda.nt, Martha Elsher, of Jersey City, New Jersey, in October, 1870, in consideration of $3,500, paid her by the plaintiff, made and delivered to him a deed, executed by her as guardian of her minor children, purporting to convey to him certain land in Dover, and covenanted that she had complied with the requirements of the statute in relation to sales by.guardians, whereas she had failed to follow the statute in certain particulars, by reason of which omissions the plain· tiff acquired no title to the lands. The defendant pleads that the plaintiff has brougb,t a bill of complaint and motion for new trial against her in the supreme court of New Hampshire, a copy of which is made part of the plea, in which the plaintiff sets out that he agreed with the defendant to pay her the sum of $10,000 for the brewery of her late husband in Dover, consisting of the land
in question and certain personal property; that he received from her the deed mentioned in the declaration, and a deed of her dower estate, and there is a clear implication that he received a suitable transfer of the chattels and personalty; that he paid about one-third of the purchase money in cash, and gave her six notes for the remainder, three of which he paid at maturity, and the other three have been sued by the defendant, and judgment recovered against him and satIsfied by levies upon his property; that since the recovery of the judgments he had learned the invalidity of the defendant's deed, and now asks for a new trial of the three actions in which these judgments were recovered. The pendency of the bill is pleaded in abatement.' The plaintiff makes three objections to the plea, all of which must (1) It does not appear there is an action pending elsewhere. The bill of the plaintiff is an application to the equitable jurisdiction of the supreme court of New Hampshire to enable him to maintain one. To test the soundness of this position, it is only necessary to suppose that I should abate this writ, and then the supreme court of New Hampshire should refuse the petition for a new trial. (2) A de. fence to an action upon the notes, though it may rely upon the same breaches of covenant as are sued upon in the action, would not, even within the same jurisdiction, be So ground of abatement. It would be a reason for requiring the plaintiff to elect between his defence and his action. (3) That the pendency of an action in a state court within this circuit is not ground for abating one in this court, is entirely settled by authority. Wadleigh v. Veazie, 3 Summer, 165; White v. Whitman, 1 Curtis, 494; Lyman v. B1'own, 9 Curtis, 559; Lo. ring v. J!arsh, 2 Cliff. 311. Plea. overruled.
BLAIR II. WEST POINT PRECINCT.
WEST POINT PRECINOT.
(otrlJuit Court, D. Nebraska. January, 1881.)
PRECINCT Bmma-LIABILITY OF PRECINCT-STATUTE OF NEBRASKA.-
A statute of the state of Nebraska provided, inter alia, that" any precinct, in any organized county in this state, shall have the priv,ilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act, and in such case the [county] commissioners shall issue special bonds for such precinct, and a tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain & statement showing the special nature of such bonds." Held, that a precinct issuing bonds under the terms of this statute was not thereby impliedly created a body corporate in order to insure the collection of the cou· pons attached to such bonds. Jordon v. CaBS County, 3 Dillon, 185.
2. SAME-NoTICE-REFERENCE TO
that the mere fact that the bonds did not show upon their face that they were issued on behalf of the precinct was immaterial, when l!uchfact appeared in the statute referred to upon. the face of the bonds. that such bonds, when issued by the proper officers of the county. were, in legal effect, bonds of the county, although voted by the inhabitants of the precinct, and to be paid by a tax to be levied upon the property within the precinct.
3. SAME-LIABILITY OF CoUNTY-STATUTE OF NEBRASKA.-Held,further,
SAME-COLLECTION OF COUPONa-MANDAMUS.-Held,
further, in an action on the coupons attached to such bonds, that suit should be brought against the county, and that the judgment, when recovered, should be enforced by mandamus against the officers of the county, commanding them to levy and collect upon .the property'within the bounds of the precinct the sum required for the payment of the judgment.-[ED.
On Demurrer to Amended Petition. This suit is brought upon coupons attached to certain bonds executed by the board of county commissioners of the , county of Cuming on behalf of the West Point precinct, for the pnrpose, it is alleged, "of aiding the West Point Manufacturing Company in improving the water-power in the Elk· horn river for the purpose of propelling public grist-mills, and other works of internal improvements of a public nature, in said West Point precinct."