Page:Federal Reporter, 1st Series, Volume 9.djvu/452

MBIEB V. NOBTON. 437 �determine that litigation and enter a judgment, which will, for that court and in that proceeding, be a final determination of the rights of the parties to the issue or issues, whether those issues be issues of fact or of law, or both law and faet. �The demurrer, in this case, admitted the allegations of the answer and cross-petition, and the court decided that the stock subscriptions did not pasa under the mortgage, and dismissed Morton & Calhoun ont of court, and gave judgment for costs against them. This was a judgment which determined their rights, and, if unreversed, would have fore ver barred their rights as against the parties to that suit. �Blackstone defines a trial to be "the examination of the matter of fact in issue in a cause. " This is the meaning of "trial" at common law, but is too narrow a meaning to apply to "trial" as used in the act of 1875. �In U. S. T. Curtis, 4 Mason, 232, Judge Story, in a criminal case, decides that "trial," in section 29 of the act of 1790, meant where the jury was sworn, and that the trial did not commence when the prisoner was first arraigned to answer the indictment. That distin- guished jurist, in that opinion, uses the language : �" The reasons that lead us to this conclusion are — First, that this Is the natural exposition of the intent and object of the enactment; and, secondly, that it is the legal and technical meaning of tho word 'trial' in the sense of the common law. It is admitted that the legislature may use technical words in an untechnical sense, and when from the context this is ascertained, it is the duty of the court to construe the words according to the legislative intent. It is equally its duty to follow such intent, when the legislative uses untech- nical words in a technical sense. In each case, indeed, the duty of the court is the same, — to carxy into efEect the objeot of the legislature, so far as it is expressed, and to give a suitable exposition of the terms according to the fair import of the langvage." �It would not be proper to confine the word "trial," as used in the third section of the act of 1875, to trials as understood at common law, beoause it applies to "any suit of a civil nature at law or in equity," and because there are manysuits in which no issues of fact are made, and yet the righ^^s of the parties are ascertained and finally determined by the court. Indeed, there are issues of fact in suits which do not determine the cause or the rights of .the parties, even in the courts in which they are decided. �Judge Dillon, in his book on the Eemoval of Causes, § 65, says: �"It has been held, under the act of March 3, 1875, that the application fot removal must be made before the trial on its merits, or on a question whiek resulte in aflnaljtulgtnent or decree, commence»," ��� �