Page:Federal Reporter, 1st Series, Volume 1.djvu/470

 462 FEDERAL REPORTER. �ehat the issue was not a triable issue, after the reversai, until the defendant had notice that the plaintiff desired the issue to be reinstated as a triable issue. This is a different pro- vision from that of the Code of New York. �The intent of the act of 1875 is plainly to require prompt action on the part of a party desiring to remove a cause. Under the act of September 24, 1798, § 12, (lU. S. St. at Large, 79,) as embodied in section 639 of the Eevised Statutes, it -was neeessary to apply for the removal at the time of entering an appearance in the state court. Under the acts of July 27, 1866, and March 2, 1867, (14 U. S. St. at Large, 306, 658,) as embodied in the same section of the Eevised Statutes, th"e application could be made at any time before the trial or final hearing of the suit. Under the act of 1875 the application must be made, not only before the trial of the cause, but before or at the term at which it "could be first tried." �In Knowlton v. Congress e Empire Spring Co. 13 Blatch. Circuit Court Eep. 170, the plaintiff removed the cause, and the defendants moved to remand it. It was held that where 'either party could notice the cause for trial at a term, that term must be considered the term at which the cause could be first tried. �In Stough v. Hatch, 8 Eeporter, 7, the cause was noticed for trial by the plaintiff, and placed on the calendar, but not tried, both parties having consented that it go off for the term, The defendant then removed it, and the plaintiff moved to remand it, The motion was granted, on the ground that the term in question was the term at which the cause could be first tried, and that the want of preparation of the parties, and their consent, could not affeet the question. A practically mutual consent not to put a cause on the calen- dar would seem to amount to the same thing as a consent to have a cause go over the term. �In Gurnee v, The County of Brunsivick, 1 Hughes, 270, 271, Chief Justice Waite says, in reference to the statute in ques- tion : "A cause cannot be tried until in some f orm an issue bas been made up for trial. The pleadings or statements ��� �