Page:Federal Reporter, 1st Series, Volume 3.djvu/554

 TAN ALIiBN V. A., 0. at P. B. 00. 5e7 �tution, or a law of the United States, wherever its correct decision depends on the construction of either." And "the rule applies with equal force where the plaintiff claims a right, and where the defendant claims protection by virtue of one or the other. " Id. 379. Mayor v. Cooper, 6 Wall. 247, 253. In Tennessee v. Davis, 100 U. S. 257, the supreme court say : "Cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted." Id. 264. It seems to be settled by these decisions that a case arises under the constitution or laws of the United States whenever, upon the whole record, there is a controversy involving the construction of either. �2. Was the application for removal made in time ? The statute requires that the removal shall be applied for before or at the term at which said cause could be first tried, and before the trial thereof. 18 St. 471. �The question here is whether, according to the practice in such cases under the law of Kansas, the case was triàble at the October term, 1879. The appeal bond was filed on the first day of that term, and the case was then dodceted for trial. At that time both parties applied for and obtained leave to file pleadings. If the effect of the order to file plead- ings was to make the May term, 1880, the trial term, then the application was in time. It is held by the supreme court of Kansas that it is the better practice, in cases of this char- acter, for the appellant to file a petition on taking his appeal. E. R. Go. V. Orr, 8 Kan. 419. It was in accordance with this rule that the state court ordered that the plaintiff have leave to file his petition on or before January 1, 1880, and that the defendant have leavô to file its answer or demurrer on or before March 1, 1880, and that plaintiff reply on or before April 1, 1880. See transcript. I am of the opinion that the effect of this order was to make the May term, 1880, the term at which the case could first be tried. The appeal was taken by filing an appeal bond, but it was necessary, before a trial could be had, that an issue be joined, and for ����