Opinion of the Court.

second, of that due to Dorsey E. W. Carter. From this decree Mrs. Burr appealed to the general term.. Pending that appeal the property was sold under the decree of the court in special term to Dorsey E. W. Carter for $8,990. This sale was confirmed in special term, with the consent of all the parties, on the 26th of November, 1878.

The appeal of Mrs. Burr came on for hearing at the general term, and on the 23d of December, 1880, a decree was entered reversing the decree of the special term so far as it ordered the payment of the proceeds of the sale to Dorsey E. W. Carter, after satisfying the amount due on the note held by Nathaniel Carusi, in preference to Mrs. Burr, and directing that Mrs. Burr, be "admitted to participate to the amount of $2,748.47 in the fund" arising from the sale to Dorsey E. W. Carter. The court further found that, after the decree at special term, the fund in court had been distributed, and that Dorsey E. W. Carter had received the money which of right belonged to Mrs. Burr. It therefore ordered Carter to pay the amount belonging to Mrs. Burr, with interest from the date of the decree. From this decree in favor of Mrs. Burr, Carter took the present appeal. None of the parties to the suit are parties to the appeal except Mrs. Burr, as administratrix of the estate of her deceased husband, and Dorsey E. W. Carter.

As the case comes to us, the only question to be determined is whether what was done by John E. Carter and Terry, when Terry got possession of the note now held by Mrs. Burr, was a payment of the note by Daniels to Carter through Terry as the agent of Daniels, or a sale and transfer of the note by Carter to Terry. As to some of the facts connected with this transaction there is a great conflict of testimony, but in respect to those which are to our minds controlling, there is but little, if any, dispute.

As between Terry and Daniels, it is clear the note was not paid. By the express terms of their agreement Terry was to "take up" the note from Carter and hold it until he was paid either by the "Eight-hour Law" and "Twenty per cent." cases, or otherwise. If not paid in three years the security could be enforced. The real point of difference is as to the

Opinion of the Court.

understanding which Carter had of the transaction. Did he take the money supposing the note was thereby paid and cancelled, or did he transfer the note to Terry to be held by him until paid by Daniels? Upon full consideration of the evidence we think it was the intention of Carter to transfer the note. He got his money from or through Terry, and not from Daniels, the maker of the note. He had been pressing Daniels for payment, but without success. The note remained at the bank, where it had been deposited for collection, until within two days of the time when, under the arrangement between Terry and Daniels, it was to be taken up by Terry. Carter then went and got it into his own possession. When Terry came to take it up he had not money enough to pay for it in full. He paid what he had, which reduced the amount required to just the sum Burr had agreed to loan him. When this payment was made Carter gave him the note indorsed in blank, without cancellation in whole or in part, on the understanding that if Carter called in a short time at the bank he would get the remaining $3,000. He did so call and got his money. Under these circumstances we do not doubt that Carter at the time fully understood the arrangement which had been made between Terry and Daniels, and took the money from Terry with the knowledge that Terry was to hold it until paid to him by Daniels. From the fact, too, that he gave the note to Terry, indorsed in blank and uncancelled, before the $3,000 was paid, we are satisfied he must have known that Terry was expecting to raise the money upon the note itself in order to meet the balance which was due to him. The established facts on this branch of the case are entirely inconsistent with the idea that the note was understood by any of the parties to have been cancelled by the payment which Terry made, or caused to be made, to Carter, and it nowhere appears from anything in the case that Carter either demanded or received any release or postponement of the lien which pertained to this note.

We do not understand that any question of distribution as between the appellant and appellee arises upon the record. The special term gave Carusi, the holder of the third note, a

Opinion of the Court.

priority over Dorsey E. W. Carter on account of the peculiar circumstances under which Carusi bought his note from John E. Carter. That question is not brought up by this appeal, as neither Carusi nor his representatives have been made parties. As to the distribution between Dorsey E. W. Carter and Mrs. Burr, the counsel for the appellant admits in his brief that the pro rata rule was followed by the general term, and no preference given to Mrs. Burr as the holder of the note first falling due. This certainly is all that Carter can ask. The decree at the general term is

Affirmed.

GREGORY & Others v. HARTLEY & Another.

IN ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

Submitted December 9, 1884.-Decided March 16, 1885.

It is again decided that the words "term at which said cause could be first tried and before the trial thereof," act of March 3, 1875, ch. 137, § 3, 18 Stat. 471, mean the first term at which the cause is in law triable: i. e. in which it would stand for trial, if the parties had taken the usual steps as to pleadings and other preparations. Babbitt v. Clark, 103 U. S. 606, and Pullman Palace Car Co. v. Speck, ante, 87, re-affirmed.

It is again decided that there cannot be a removal of a cause under that act after hearing on demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 472, and Scharf v. Levy, 112 U. S. 711. affirmed.

This was a motion to dismiss. The facts which make the case are stated in the opinion of the court.

Mr. W. J. Lamb and Mr. E. E. Brown for the motion.

Mr. Charles O. Wheadon, opposing.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court. This is a writ of error to reverse a judgment of the Supreme Court of Nebraska on the single ground that the Supreme Court decided that the District Court of Lancaster County had jurisdiction to proceed with the suit after a petition for the re

Opinion of the Court.

moval thereof to the Circuit Court of the United States had been made and filed in the District Court. The transcript, which has been returned with the writ, is evidently very imperfect, and it purports to contain only a part of the record below. It is not authenticated by the clerk as a full transcript, and it shows on its face that much which is important to a correct understanding of the case has been omitted. From what has been returned, however, it sufficiently appears that the suit was originally brought in the District Court of Lancaster County by Milo F. Kellogg against Luke Lavender, James E. Phillpot, John S. Gregory, E. Mary Gregory, Thomas J. Cantlon, R. F. Parshall, and perhaps some others, to enforce the specific performance of a contract in writing entered into on the 30th of July, 1872, between the plaintiff Kellogg and the defendant Lavender for the sale by Lavender to Kellogg of certain lots in Lincoln, Nebraska. The price to be paid was $2,500. Of this amount $500 was paid in hand, and for the remaining $2,000 Kellogg executed two notes of $1,000 each, payable to the order of Lavender, one on the first day of May, 1873, and the other on the first day of May, 1874, with interest at the rate of twelve per cent. per annum. At what time the suit was begun nowhere appears, but an amended petition was filed on the 22d of November, 1879, making Joseph W. Hartley, Reuben R. Tingley, and many others parties. To this petition Hartley filed an answer and cross-petition on the 2d of December, 1879, Tingley an answer on the 1st of December, 1879, and Parshall an answer and cross-petition at some time before May 17, 1880. The answer and cross-petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross-petition of Parshall are not copied into the transcript. On the 17th of May, 1880, the two Gregorys, Lavender, Cantlon and Phillpot filed demurrers to the answers and cross-petitions of Hartley and Parshall, and to the answer of Tingley, on the ground that they did not state facts sufficient to constitute a cause of action or a defence.

Opinion of the Court.

These demurrers were heard and overruled by the court on the 17th of August, 1880, and thirty days given the demurring defendants to answer.

At the time of the filing of the amended petition the legal title to the property was in E. Mary Gregory, the wife of J. S. Gregory, Lavender having conveyed it to Phillpot and Cantlon after he made his contract with Kellogg, and they having afterwards sold and conveyed it to Mrs. Gregory. On the 28th of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the 22d of September, 1880, Mrs. Gregory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the 27th of September, 1880, Lavender, Phillpot and Cantlon filed their answer to the cross-petition of Hartley. On the 5th of November, 1880, leave was given Parshall and Tingley to file amended answers in forty days, and, on the 13th of December, 1880, Parshall did file his answer and cross-petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross-petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the 3d of March, 1881, Lavender, Phillpot, Cantlon and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross-petition of Parshall. On the 23d of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in thirty days. Mrs. Gregory did file her amended answer to the cross-petition of Hartley on the 17th of April, 1882, and, on the 15th of June thereafter, the Gregorys, Lavender, Cantlon, Phillpot and Kellogg presented their petition for the removal of the cause to the Circuit Court of the United States. That petition, so far as it is material to the question now under consideration, is as follows:

"Your petitioners now show to this court that the plaintiff herein, Milo F. Kellogg, is a citizen of the State of Missouri; defendant Thos. J. Cantlon is a citizen of the State of Colorado;