Page:Federal Reporter, 1st Series, Volume 8.djvu/211

WHEKLBE ». LIVERPOOL, LONDON <fc GLOBE INS. 00. 197 �and copies of the pieadings hare been duly entered here. The plaintiff mores to remand the cause on the ground that the petition was flled too late. Held, that under the act of 1875, (18 St. 471, i 3,) requiring the petition to be flled be- fore or at the term in which the cause could flrst be tned, the petition in this case was flled in time, as it was flled at the flrst regular trial term. 2. Samb. �It seems that if the notice were an ordinary one, or the setting do wn for trial of a cause which is ready, the decision would have been diflierent. �LowBLL, C. J. This action at la w Was brought in the supreme court of New Hampshire, by a citizen of that state, against a foreign corporation, and was entered at the April term, 1880. At the next term, in October, a petition and bond were presented and filed by the defendant to remove the cause to this court, and copies of the pieadings have been duly entered here. The plaintiff moves to re- mand the cause, on the ground that the petition was filed too late, and an able judge of the state court so ruled. A conflict of opinion upon this subject would be very unfortunate, and I have given the case careful attention, not without the hope that I might agree with the ruling. The act of 1875 (18 St. 471, § 3,) requires the petition to be filed before or at the term at which the cause could first be tried. The question is whether the cause could have been tried at the April term of the supreme court. A rule of that court provides that the defendant shall be entitled to a continuance at the first term, upon satisfying the court by affidavit that he bas probable ground of defence, and that he intends, in good faith, to try the case, unless the plaintiff bas, 30 days before the beginning of the term, given to the defendant notice in writing to be prepared for trial. �The plaintiff bas the right to a continuance at the first term unless the defendant bas given him a similar notice. As the law requires service of process upon a natural person of only 14 days, and upon a corporation of only 28 days, defendants rarely have an opportunity to give such a notice, and, in praetice, plaintiffs rarely give it, and contested cases are seldom tried at the first term. And I understand that the pieadings are not expected to be completed in time for trial at the first term, because 90 days are given for filing special pleas, and the trial term rarely lasts as long as that. �In this cause the defendant bas a defence, and intends, in good faith, to try the cause. He was not asked to file an affidavit, and filed none. It is not usual to require one. Neither party gave the notice of trial 30 days before the beginning of the term. Neither party, therefore, could have insisted upon a trial at the first term, and the cause was silently oc atinued as contested cases usual'y are. ��� �