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satisfaction of the court below, or to us. has no ground for complaint, for the court In Walmesley 7. Booth. 2 Atkyns, 27, offered to so treat it by allowing him in the Lord Hardwicke says: There is a strong amount of fifty dollars for his services, which alliance between an attorney and his client, he declined, preferring to stand on what he and a great obligation upon the attorney to regarded as an assignment the court could take care of his client's interest; and the not disregard. The court needed no further court will relieve a client against the extor- proof on the subject, and no request was tion of an attorney." In that case the client made to allow more. The order of the court was plaintiff asking relief, and as he con- must be affirmed.-59 Maryland. sented that the bond should be regarded as security for what was actually due, the court said he would allow it to be so. In Newman 7. Payne, 2 Ves. Jr., 200, the chancellor lays down the same rule, and adverts to the fact that in Walmesley 7. Booth, the bond was allowed to stand as security for the actual amount due, only because the plaintiff consented to it.

UNITED STATES SUPREME COURT.

OPINION FILED JANUARY 5, 1885. Pullman Palace Car Company, George M. Pullman, Luther H. Pierce, Huntington W. Jackson and David B. Lyman, Appellants, 7. Robert John Speck, James Dunn, by Simon Straus, his next friend, Bridget Connelly, and Patrick Connelly. Appeal from the Circuit Court of the United States for the Northern District of Illinois. REMOVAL OF SUIT—ACT OF 1875-WHEN PE

TITION FOR REMOVAL MUST BE FILED.

Mr. Justice Miller delivered the opinion of

the court.

This is an appeal from an order of the Circuit Court for the Northern District of Illinois, remanding to the State court a case which had been removed from that court

All the authorities concur in that the highest degree of fairness and of good faith is required from an attorney toward his client, and all his dealings will be closely scrutinized, and no contract between them will be upheld where any undue consequences result to the attorney. Weeks on Attorneysat-Law. 441, 450, and 451; Story, Eq. Ju.... §§ 312a, 312, 312c, and authorities there collated; and Kerr on Fraud and Mistake, 151, 161, 163, 168. The attorney is supposed to have an ascendancy over the client, because of his relation to him, and can easily impose on his credulity; therefore, transactions which would be open to no objection where no such relation exists, will be held into the Circuit Court. invalid as against a client. It is a rule of The removal was prayed for in the petipublic policy. Gray, et al., 7. Emmons, et tion on the ground that the controversy was al., 7 Mich., 533; Brown 7. Bulkley, 1 Me between aliens and citizens of the State of Carter Chy., 14 N. J., 451. In the last Illinois, and one of the points argued becited case the learned Chancellor Green fore us is that other parties to the suit, said, when a security is taken by an attorney with interests opposed to that of the appelfrom a client as compensation for his services, lants, at whose instance the removal was the presumption is that it is unfair, and the made, are citizens also of Illinois, and for onus of proving it fair is on the attorney. that reason the suit was not removable. In that the court held that the transfer would not be wholly set aside, but would be held as security for what was actually the attor ney's due. Conceding without so deciding, that in this case the appellant was entitled to have the assignment to him so treated, he

But we do not pass on this point, because we are of opinion that the application for removal came too late.

The act of March 3, 1875, under which this removal was asked, requires of the party seeking it that "he or they make and file a

petition in such suit, in such State court, be- before us, while superseding by its general fore or at the term at which such cause provisions nearly all the removal statutes, could be first tried, and before the trial prescribes a rule which is neither so strinthereof for the removal of such suit into the Circuit Court."

gent as the act of 1789, nor so lax as those of 1866 and 1867. While the party who has a case for removal is not put to his election to exercise or abandon the right to remove at the moment of entering his appearance, he is not permitted unreasonably to delay

Under the act of 1789, $12, U. S. S. 79. the right of removal could only be exercised by a defendant in a court of a state of which he was not a citizen, and he was required to make his application for the removal at the this election during all the period incident to time of entering his appearance.

the preparation of the case, until both parThe reasons for this were obviously that ties find themselves in condition to go to the plaintiff, who had selected the state court trial at law, or are ready for a hearing in as his forum, should not be permitted to chancery. The later act clearly requires change it after calling his adversary there more diligence in making the election than and that the defendant, who had a right of this. If it had intended to enact that the removal, and failed to exercise it at the earli- removing party had until the case was ready est period possible, should be presumed to for trial on both sides or was fully at issue, have acquiesced in the forum chosen by the or was noticed or set down for trial, it would plaintiff. The law remained in this condi- have been easy to have indicated this in tion until an act of congress of July 27, words. The language, however, which was 1866, authorized an alien, or citizens of a adopted, means a very different thing. It is state other than that in which the suit is not the time when the case stands ready for brought, to remove the cause, though there trial on the calendar, but the term at which be other defendants who are citizens of that it could be first tried. Not the term at state, when there can be a final determina- which the party can no longer delay a trial, tion of the controversy, so far as he is con- but the term at which it could be first tried. cerned, without the presence of the other These words have no meaning, if they do not defendants. In this class of cases the peti- mean the first term after the commencement tion for removal could be filed at any time of the suit at which a trial was in order was before the trial or final hearing of the cause: a thing which the urging or pursuing party 14 U. S. S. 306. An act to amend this act, had a right to look for, and to put his adverapproved March 2, 1867, authorized either sary to showing if he desired a continuance. plaintiff or defendant in a state court, when In the language of this court, "the election they were citizens of different states, to re- must be made at the first term at which the move the suit, on account of prejudice or cause is in law triable." Babbitt 7. Clark, local influence, into the Circuit Court of the 103 U. S. R. 606. In other words, at that United States, if he filed in the state court term in which according to the rules of proan affidavit of the existence of this cause of cedure of the court, whether they be statutoremoval, at any time before the final hearing ry or rules of the court's adoption, the cause or trial of the suit. These latter acts do not would stand for trial if the parties had taken speak of terms of the courts, or of the ap- the usual steps as to pleading and other preppearance of the moving party, but using the arations. This term at which the case could word hearing and trial in their appropriate be first tried is to be ascertained by these sense of a hearing in chancery and a trial at rules, and not by the manner in which the law, permit the removal at any time before parties have complied with them, or have the hearing or the trial is begun: Removal been excused for non-compliance by the cases, 100 U. S. R. 457. court or by stipulation among themselves.

The act of 1875, which governs the case

On this point the language of McCrary,

circuit judge, in Murray 7. Holden, 1 Mc Crary's, R. 341 is very pertinent :

"One of the objects," he says, "of the act of 1875, was to prevent the abuses which had been practiced under the acts of 1865 and 1867, which allowed a removal at any time before the final hearing. It was evidently the pupose of congress to fix an earlier definite time which would not permit the litigant to experiment in the state court until satisfied he would fail there, and then change forum In all the states there is by law or rule, term-i. e., a term at which a cause

may for the first time be called for a trial. In practice but few contested cases are tried at the first trial term, and it often happens that controversies arise upon questions of pleading, so that no issues of fact are joined at that term. It is nevertheless

It thus appears that, including the appearance term at which the case might have been tried if appellant had answered according to rule instead of obtaining an extension of thirty days by order of the court, there were five terms of the court at which the motion would have been made for removal in which no action was made. We see no reason why this

case was not triable at any of those terms according to the due course of proceedings in such cases. The only reason why it was not so tried, was the time beyond that of the usual course prescribed by rule, which was obtained by order or the court or by agreement of the parties; the case was certainly triable at the January term, after the answers were in, for it could have been tried on bill and answer, or the plaintiff have been forced to file replication, which could have been

done instanter.

The decree of the Circuit Court remand

the term at which, within the meaning of ing the case to the State court is affirmed.

the law, such cases could be first tried, and therefore is the term at or before which the petition for removal must be filed."

The case of Babbitt 7. Clark, supra in this court, is also a point. The court there says: "The act of congress does not provide for the removal of a cause at the first term at which a trial can be on the issues as finally settled by leave of the court or other wise, but at the first term at which the cause, as a cause, could be tried."

Under this construction of the statute, which is undoubtedly sound, there is no difficulty in deciding this case. While it is a chancery cause, the same principles must govern it, though it may require a little more care in determinging when it could be first tried.

H. W. Jackson, for appellaat.
Rosenthal & Pence, for appellee.

A PARTY Owning a storehouse and contents which he had insured, becoming insolvent, suffers judgment to be entered against him in the United States Court, on which execution is issued and the property is seized in execution by the marshall. While thus in the custody of the marshall the property is destroyed by fire. The policy containing the usual clause of forfeiture in case of alienation does the seizure by the marshail and the change of possession work a forfeiture of the policy? Where an insurance was effected upon a vessel and a clause in the policy provided that it should be void upon assignment or upon a change of commissioners it It appears by a stipulation in the case that was held that seizure by the sheriff at the the first Monday in every month in the be- suit of a creditor did not work a forfeiture. ginning of a new term of the Superior Court Marigney 7. House Mutual Ins., Co., 13 Ann of Cook county. from which this suit was re- La. 338; Phoenix Ins., Co. 7. Lawrehce, 4 moved. It also appears that the suit was Merc. Ky. 9; see 6 Warton, Pennsylvania brought to the September term, 1883 of that 483. In Strong 7. Mfrs. Ins. Company, court, and the defendants, who were the re10 Pick (Mass) 40 it is held, that a sale of moving party and are also appellants real estate by foreclosure of a mortgage did here, obtained an extension of time by order not work a forfeiture of a policy under like of the court, for thirty days from September covenants, as long as the mortgagor had the 20th, to answer the original bill, and like right of redemption, see also Clark 7. V. N. time was granted to the defendants in a cross- E. M. Fire Ins. Co., Cush, (Mass) 342. bill to answer that. This time was extended the policy contain a clause which provides afterwards in both cases, by agreement of that in case the property be seized in execucounsel until January 11, 1884, and on that tion, or by due process of law the possession day they were filed. The application for this is changed the policy shall become void removal was made in the February term, we know of no reason why such a covenant 1884. should not be sustained.

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