Page:Federal Reporter, 1st Series, Volume 1.djvu/360

352 FBDERAL REPORTER. �not ready. Thej desired testimony. Bat it is not the con- dition of the proof in a cause that determines the right of removal, but the condition of the pleadings; whan the cause is at issue it can be tried. �The absence in an equity suit of an outstanding commission does not settle the question whether or not the cause can be tried, any more than the absence of a witness in a suit at law would determine whether it was triable or not. To discover that an equity cause is ready for trial it is not necessary to find that it was ever set for hearing. The cause must be triable before it can be set for hearing. How long before it was heard it might bave been heard depends upon the dili- gence of counsel. �The words of the statute, "at the term at which said cause could be first tried," it might be coutended, should be con- strued to mean either the term at which the issues were made up; or the term at which the judge was present and had an opportunity to hear the case; or the term at which the en- gagements of counsel allowed them to attend; or the term at which ail the requisite witnesses could be procured or their depositions taken; but it has been found that the only rea- sonable construction to be put upon these words of the statute is the first term at which the pleadings were in condition for trial ; that is to say, when the issues were made up. �We think this cause could have been tried at the term when the replication was filed, February 24, 1876, and must adhere to the ruling in the case of Gurnee v. The Coimty of Brunswick, 1 Hughes, 270, and will direct the case to be remanded. ��� �