Page:Federal Reporter, 1st Series, Volume 10.djvu/318

 'aOa FEDEEAL EEPORTEBi �bond given under the act of congress, and the transeript haa now been presented to this court, and the court is again called upon to determine whether the cause is properly removable. �There is no other objection except that the application was not in time, and we may at present consider the question as if the applica- tion were made only under the act of 1875, the third section of which declares that it must be made "before or at the terni at which the cause could be first tried, and before the trial thereof." The only difference between the application now and when the cause was before this court on the former application, is that in the sec- ond petition which was fiied in the state court Croueh says that the cause could not previously have been tried or heard in the circuit court of Cook.county. Why it could not have been heard or tried he does not state, and the question for the court to determine is whether, upon this statement, wheti connected with the other facts disclosed in the record, it can be presumed that the application was made in time under the act of congress; and, I think, it cannot be so presumed, and that the case is not essentially changed from the position which it occupied at the former hearing before this court. It is no further changed than by the above allegation npon the face of the petition, and the court cannot assume that constitutes a sufficient reason why the application was not made befor'e. If we consider it^ as perhaps we cannot — an application made on the twentieth day 6f October, 1881, and not on the twenty-fifth day of January, 1882, I am of the same opinion that I was on the former occasion, that it does not affirmatively appear upon this record, or even by the peti- tion, that the case could not have been heard and tried before the application was made on the twentieth of October; and, of course, for a much stronger reason, before it was made on the twenty-fifth of January of this year. Suppose there must be an issue made up in the case, and the cause is in a condition in which it cannot be heard and tried on account of pressure of business, if the return term bas arrived, and the pleadings aire filed according to the rules and prac- tices of the court, it is not competent for a party to lie by and allow a term to elapse, and then make his application and say that he is in time. I take it that the true construction of the statute is that if the case is in a condition where it can be tried in conformit'y vsith the law and the practice of the court, then an application after that term in which it is in, that condition comes too late. Now, it may be that there was a pressure of business, so that the court could not very well try the case. But if that were so, and there were other cases having ��� �