Page:Federal Reporter, 1st Series, Volume 2.djvu/506

 WBITBH0TI8E V. OONTINENTAIi FIBB INS. 00. 499 �to te filed "before or at the term at which such cause could bo first tried." The causes here involved, -were not at issue, nor had any step been taken to put them at issue, when the peti- tion was filed. In that condition tbey could not be tried. The citation from "Buskin's Indiana Practice" — "We understmid that Justice Davis, when sitting in circuit for the district of In- diana, held that the application for removal must be made at the first term atwhich the cause could h&put atissiie" — istoo uncertain to be regarded as authority. Much more important are the cases of Scott et al., Trustees, v. Clinton e Spring- field R. Co. 8 Chicago Legal News, 210, (6 Bissell, 629,) and Michigan R. Co. v. Andes Insurance Co. 9 Chicago Legal News, 34, in which it was held that, inasmuch as the cause cannot be tried, until the issues are made up, the application is in time if it corne before the pleadings are completed, or the next term foUowing their completion. In the valuable note to Tay- lor V. Rockefellow, Am. Law Eeg. (N. S.) vol. 18, No. 5, p. 813, the same judgment is expressed by the intelligent author. �This construction is consistent with the spirit of the stat- ute, as well as with its terms. The object in limiting the time for application is to guard against loss of opportunityfor trial, from delay in making it. Where, as here, it is made before any step bas been taken towards forming an issue, no such losB can resuit. �But these applications are within the terms of the act of 1867, providing for causes in which local influence or preju- dice is likely to defeat the ends of justice, Eev. St. § 639; Dillon on "Eemoval of Causes," 22, 23, 25, as well as that of 1875; and they might, therefore, have been made at "any time before trial or final hearing." Insurance Co. v. Dunn, 19 Wall. 214 ; Vawnever v. Bryant, 21 Wall. 41. There bas been no express repeal of this provision of the statute of 1867, and there does not seem to be any by implication, Dillon on "Kemoval of Causes," 25; Cook v. Ford et al. 16 Am. Law Eeg. (N. S.) 417; Zinc Co. v. Trotter, 17 Am. Law Eeg. (N. S.) 376. Eegarding it as in force, ail question respecting the defendant's right to trial here is removed. �The other matters objeeted to are immaterial. ' : ■ ����