Page:Federal Reporter, 1st Series, Volume 8.djvu/212

 198 FEDBRAIi REPORTEB, �Under these circumstances, wbat was the term of the supreme court of New Hampshire at which this cause could first have been tried ? The decided cases may be thua stated : If, at any term, the cause is at issue upon its merits, or would have been at issue but for the negligence of the party petitioning for the removal, and by the law and practice of the state is presently triable, that is the latest term for removal, although the parties or the court may not be ready, and may have a perfectly valid excuse for not trying the case at that term, such as illness, absence of witnesses, a crowded docket, etc. See Gumee v. Brunswick, 1 Hughes, 270, 277; Stough v. Hatch, 17 Blatchf. 233; Forrest v.Keeler, H. 432; Fidton v. Golden, 8 Eep. 517; Ames V. Colorado Cent. R. Ce. 4 Dill. 260; Atlee v. Potter, H. 559; Murray v. Holden, 10 Bep. 162; Blackwell v. Braun, 1 Fbd. Eep. 351. �On the other hand, if a case is not at issue without fault on the part of the petitioner for removal, or if, by the law and practice of the state, the second term iS the trial term, then the petitition may be filed at the term at which the issues are made up, or at such trial term, as the case may be. Scott v. Clinton B. Co. 6 Bish. 529; War- ner V. Penn. B. Co. 13 Blatehf. 231; Hunter v. Royal Ins. Co. 3 Hughes, 234; McCullov,gh v. Sterling Farniture Co. 4 Dill. 563; Palmer V. Call, Id. 566; Whitehouse v. Cent. Ins. Co. 2 Fed. Rep, 498; Van Allen V. Atehison, etc., B. Co. 3 Fed. Eep. 545. �" If the local law makes the first term after the suit is brought an appear- ance term merely, and declares that the second term is the one at which the cause may be brought to trial, then the latter is the term at or before which the petition for removal must be filed." Per McCreary, J., in Murray v. Hol- den, 10 Eep. 162. �These decisions lean to the side of strictness, and in favor of the utmost diligence, and go very far in that direction. I do not agree that the absence of evidence might not be enough to prove that the case could not be tried at a certain term. For instance, it is usual in patent causes in equity, where the evidence is all taken in writing, to order the plaintiff to put in his case within a certain time, and the defendant to finish his case at a certain other time, and the plaintiff to take his rebutting testimony within a third time. It is impossi- ble, in my judgment, to admit that such a case could be tried before the expiration of the latest of those periods. The decisions, therefore, must be taken to mean that, if the cause could, in ordinary course, be tried, but for what I have called an accident, or beeause the par- ties do not choose to try it, the time for removal bas come. Can the first term fairly be called the trial term, in all contested causes in New ��� �