Page:Federal Reporter, 1st Series, Volume 2.djvu/748

 MURRAY V. HOLDBN. 741 �Comîngo e Slover, for plaintiff. �Kames e Ess, Tichenor e Warner, Gage e Laad and Brum- back, Ferry e Black, for defendants. �McCeary, C. J. The statute of 1875 requires that the petition in the state court for removal shall be filed "before or at the term at which such cause could be first tried, and before the trial thereof." This language has been frequently construed by the circuit courts of the United States, but, un- fortunately, these courts do net agree as to its meaning. It ia impossible to harmonize the conflicting decisions on the sub- ject. In this circuit, according to Judge Dillon's sfcatement in bis work on "Kemoval of Causes," the term referred to is "the term at which, under the legislation of the state, and the rules of practice pursuant thereto, the cause is first tria- ble — i. e., subject to be tried on its merits — not neeessarily the term when, owing to press of business or arrearages, it may be first reached in its order for actual trial." �I think the practice in this circuit has been uniformly in accordance with the rule here stated, and it must be jegarded as well settled. I am disposed to adhere to it, not only be- eause it is the rule heretofore adopted and foUowed, but also because I eonsider it a correct exposition of the statute. One of the objects of the act of 1875 was to prevent the abuses which had been practiced under the acts of 1866 and 1867, which allowed a removal at any time before the final hearing. It was evidently the purpose of congress to fix an earlier and a definite time, which would not permit the litigant to experi- ment in the state court until satisfied that he would fail there, and then change his forum. In ail the states there is, by law or rule, a trial term — i. e., a term at whick a cause may for the first time be called for trial. In practice but few con- tested cases are tried at the first trial term, and it often hap- pens that controversies arise upon questions of pleading — so that, as in this case, no issues of fact are joined at that term. It is, nevertheless, the term at which, within the meaning of the law, such cases could first be tried, and, therefore, is tha term at or before which the petition for removal must be filed. The statute does not contemplate any delay for the ����