Page:Federal Reporter, 1st Series, Volume 1.djvu/471

FOfiBËàl V. EDWIN FOBBESX HOME. 463 �necessary to make the issue are regulated by the practice in' the court where the trial is to be had. As soon as the issue is made up the cause is ready for trial. The parties and the court may not be ready, but the cause is. The first term, therefore, at which a case can be tried is the first term at ■which there is an issue for trial. An application for removal, to be in time, must be made before or at this term." �In Ames v. Colorado Central R. Co. 4 Dillon, 260, 263, it is said that the term referred to in the act of 1875 "appears to be that at which the cause may be heard or tried on the merits, according to the practice of the court, without refer- ence to the special circumstances of the case, as whether the parties are ready for trial, and the like." In Fulton v. Golden, 9 Central Law Journal, 286, it was held that a removal was too late, where an equity cause being at issue, on answer and replication, and the practice allowing either party to notice it and bring it to hearing, and where under the prac- tice the testimony could have been taken, and the cause noticed for hearing in eight months from the issue, neither party had moved in it, and eight terms had elapsed before the petition for removal was filed. �Although the plaintiff in the present case did not notice the case for trial at an earlier term, the defendant could have done so. The plaintiff had a right to regard the defendant as having waived his right to remove the cause, when, in the absence of any stay, the defendant did not remove the cause before or at the first term at which the cause, being at issue and triable on the merita, the defendant might have noticed it for trial. The proper construction of the statute is such as to make it necessary to hold that the removal in this case was too late. �Points are raised by the plaintiff as to the value of the land sued for, and as to whether the petition for removal, not being framed to remove the whole suit, is of any avail under the act of 1875, and as to whether the petition makes out a case for removal under the aots of 1875, and as to whether the suit is not removable, in whole or in part, on the petition of ��� �