Page:Federal Reporter, 1st Series, Volume 8.djvu/680

666 FBDBBAL EBPORTER. �two provisions serve, in my judgment, to illustrat© the whole doc- trine of mandatory and directory statutes. Jt does not, on the one hand, seem to me, at least, that cong^-ess thought it very important, except for tlje prderly and prompt dispatch of business, that the transcript should bq fiied on the iirst day of the term of this court; and, on the : otherj it does seem impoi'tant and necessary to fix some stage of thel proceedings in the state court after which there should be no removal. T^txia provision is prohibitory as to time, and negative in the very nature of the object the legislature has in view. The other is affirmative only; and where this is the case, the courts ■will not add the words "and not a,fter" by implication, Ryan v. Van- landingham; 7 Ind. 417, 424. But even this clause of the statute, under the influence of the principle that enlarges the remedy, has been, by construction, extended so as to include cases not within its letter. Removal Cases, 100 U. S. 457, 473; Nat. Bank v. Wheeler, 13 Blatchf. 318, �The authoiity of adjudicated cases is so conflieting that a ruling either way on this ground of the motion to remain would find support, and I have, therefore, endeavored to get at the governing principle, quite independently of the cases more or less closely allied to the one we have in hand. Considering that the clause we are construing has been in all the acts from 1789 to the present time, there are remarkably few cases on the point to be found in the re- ports. The only expression of the supreme court is found in the Removal Cases, 100 U. S. 457, at p. 475. By fault of the elerk of the state court the removing party did not file the transcript on the first day, but did on the second, and the court bverruled the objec- tion, saying: �"While the act of congress requires seeurity that the transcript shall be flled on the first day, it nowhere appears that the circuit court is to be deprived of its jurisdiction if by accident the party is delayed uiitil a later day in the term. If the circuit court, for good cause shown, accepta the transfer after the day, and during the term, its jurisdiction will, as a general rule, be complete and the reinoval properly eliected." �This seems to leave the question to the discretion of this court to either accept or decline jurisdiction; but, of course, that discretion is to be regulated by the rules of law applicable to the proper construc- tion of the statute and correct practice under it. In the cases already cited it will appear that there is much more latitude allowed where the delay is caused by the act of an officiai than where it is caused by the act of the party himself. 2 Am. L. Beg. (N. S.) 409, ��� �