Page:Federal Reporter, 1st Series, Volume 9.djvu/450

 M^TEB V. NOBTON. 435 �t,be cause is pending, the cause could have been made ready and tried during a term, that is the term which the act indioates as "the term at which said cause could be firsi tried," Gurnee v. County of Bruns- tvick, 1 Hughes, 270 ; Forrest v. Forrest Home, 1 Fbd. Kbp. 459 ; Black- welly.Braun, Id. 351; Murray y. Holdeii, 2 Fbd. Eep. 740; Amesv. Colorado Cent. R. Co. 4 Dill. 260. �The supreme court, in Babbitt v. Clark, 103 U. S. 60G, has, Ithink, authoritatively construed the languag.e, in the third section of the act of 1875, as meaning that the petition for removal must be filed and motion made "at the first term in which the cause is in law triable." The court say, through the chief justice: �" ihe act 0^ congress, 1875, does not provide for the removal of a cause at the flrst terra at which a trial can be had on the issues, as flnally settled by leave of court or otherwise, but at the first term at which the cause, as a cause, could be tried. * * * Under the acts of 1866 and 1867 it was sufli- cient to move at any time before actual trial, while under that of 1875 the election must be made at the flrst term in which the cause is in law triable." Page 612. �The Louisville chancery court has no terms, but is, in theory at least, always open for the trial of causes. Section 771, Code. It is the custom, and has been from the establishment of the court, for the court to take a summer vacation, commencing in July and run- ning untn the latter part of September of each year. The agreement of facts filed shows that the court took the usual vacation, which continued until September 23, 1881. If the time of the summer vacation be counted, the issues could have been made, and the time for taking proof, which is 30 days, would have expired before and in time to have placed this cause on the trial docket, which was called September 23, 1881. I am inclined to the opinion, however, that the time of vacation should not be counted in estimating the time when the issues should have been made up, because, by the practice of the Louisville chancery court, the summer vacation is intended as a vacation for the bar as well as the court. I need not, however, decide this point, as I think this objection is not available.for another reason. �The language of the act of 1875 does not, in terms, apply to courts. like the Louisville chancery court, which have no stated terms and are always open for the transaction of business. We should, ■ however, apply the act to all courts if possible. We cannot apply the letter of the act, but should its spirit. In those courts that have stated terms a petition and motion for removal is in time af ft-^y ��� �