applies to common-law cases, and "hearing" to suits in equity. (Insurance Co. v. Dunn, 19 Wall. 214; Crane v. Reeder, 28 Mitch. 357; Miller v. Finn, 1 Neb. 254; Ackerly v. Vilas, 24 Wis. 165.) By "trial or final hearing is meant a trial or hearing on the merits (Insurance Co. v. Dunn, 19 Wall. 214); an examination of the facts in issue. (Vannevar v. Bryant, 21 Wall. 41; S. C., 106 Mass. 189.) Under the act of 1866 the right is not limited to the time when suit was commenced (Johnson v. Monell, 1 Woolw. 390; and see Insurance Co. v. Pechner, 95 U. S. 183); and where none of the defendants are citizens of the State where sued, and are served at different times, or at dif. ferent times enter an appearance, they may at different times respectively make application. (Shelby v. Hoffman, 7 Ohio St. 453; Ward v. Arredondo, 1 Paine, 370; Fiske v. Union Pac. R. Co., 8 Blatchf. 248.) So where a landlord intervenes, his application is in time if made on the day after he becomes defendant, providing the cause had not been previously at issue. (Greene v. Klinger, 10 Cent. L. J. 47; 10 Fed. Rep. 689.) If before the pleadings are completed, it is in time. (Whitehouse v. Continental Insurance Co., 37 Leg. Int. 225.) The petition may be made at any time before the trial or hearing (Vannevar v. Bryant, 21 Wall. 43; S. C., 106 Mass. 180; Cox v. East Tenn. V. & G. R. Co., 62 Ga. 163; Ely v. North P. R. Co., 7 Week. Notes, 145; S. C., 36 Leg. Int. 164); and before final hearing or trial means before final judgment in the court of original jurisdiction. (Yulee v. Vose, 99 U. S. 539; Brice v. Somers, 1 Flippin, 574.) An application under the Acts of 1866 and 1867 must be made before trial or hearing, notwithstanding an amendment of the declaration on which issue was not joined at the time the petition was filed. (Adaras Express Co. v. Trego, 35 Md. 47; see Lewis v. Smythe, 2 Woods, 117.) The action must be actually pending for trial (Vannevar v. Bryant, 21 Wall. 41); and though it need not be removed at the appearance term, it must be at the term when it stands for trial. (Cox v. East Tenn. V. & G. R. Co., 62 Ga. 163.) It cannot be removed after the jury is sworn (Adams Express Co. v. Trego, 35 Md. 47), nor after argument and submission of the case. (Waggener v. Cheek, 2 Dill. 560.) If after hearing the case has

DESTY REMOVALS.-32.

(Jifkins

been referred to a master, it cannot be removed. v. Sweetger, 13 Chic. L. N. 103. A petition for removal cannot be filed after a notion for new trial has been overruled (Fasnacht v. Frank, 23 Wall. 416); but submission to a jury under the act is not a "final hearing.' When there has been a partial disagreement as to the verdict (Osborn v. Osborn, 5 Fed. Rep. 389), and if the jury disagree, the case may be removed (Hall v. Ricketts, 9 Bush, 366; Burson v. Nat. Park Bank, 10 Ind. 173; Clarke v. Delaware & H. Can. Co., 11 R. I. 36; contra, Galpin v. Critchlow, 112 Mass. 339; Chandler v. Coe, 56 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 216); and if a new trial has been granted, the case may be removed (Minnett v. M. & St. P. R. Co., 3 Dill. 460; Kellogg v. Hughes, 3 Dill. 357; contra, Akerly v. Vilas, 24 Wis. 165; Chandler v. Coe, 56 N. H. 184; Continental Ins. Co. v. Kasey, 27 Gratt. 216; Hall v. Ricketts, 9 Bush, 366); but otherwise if it has not been granted. (Vannevar v. Bryant, 21 Wall. 41; Bryant v. Rich, 106 Mass. 180. If the court has wholly set aside the verdict and granted a new trial, or if the Supreme Court has remanded the cause and granted a trial de novo, it is in the same position as before the first trial or hearing (Stevenson v. Wilson, 19 Wall. 572; Vannevar v. Bryant, 21 Wall. 41; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; Minnett v. Milwaukee & St. P. R. Co., 3 Dill. 460; denying Galpin v. Critchlow, 112 Mass. 339; see also Sims v. Sims, 17 Blatchf. 369; Dart v. McKinney, 9 Blatchf. 359; Johnson v. Monell, 1 Woolw. 390; Barber v. St. Louis etc. R. Co., 43 Iowa, 323; Rathbone Oil Tract Co. v. Rauch, W. Va. 79); but a right to the second trial must be perfected before a demand for the transfer can be made. (Vannevar v. Bryant, 21 Wall. 41.) A removal is authorized before final judgment, but not after appeal from such judgment (Stevenson v. Williams, 19 Wall. 572; Vannevar v. Bryant, 21 Wall. 41; Waggener v. Cheek, 2 Dill. 560; Kellogg v. Hughes, 3 Dill. 357; Dart v. McKinney, 9 Blatchf. 359; Brice v. Somers, 1 Flippin, 574); nor can the motion be made in the appellate court pending appeal (Beery v. Irick, 22 Gratt. 487; Williams v. Williams, 24 La. An. 55; Stevenson v. Williams, 19 Wall. 572; Waggener v. Cheek, 2 Dill. 560; Miller v. Finn, 1 Neb. 254;

McKinley v. Chicago & N. W. R. Co.; 14 Iowa, 314; but see Douglas v. Caldwell, 65 N. C. 248; contra, Sneed v. Brownlow, 4 Cold. 253); but it may be removed if only a preliminary question is decided. (Douglas v. Caldwell, 65 N. C. 248.) "Where the decree of a court below was reversed, and cause remanded with directions to dismiss the suit, the party has no remedy (Boggs v. Willard, 3 Biss. 256; S. C., 70 Ill. 315); but where a new trial is ordered, a removal may be had (Hoadley v. San Francisco, 3 Sawy. 553; Dart v. McKinney, 9 Blatchf. 359; Knowlton v. Congress & Empire S. Co., 13 Blatchf. 170; Dart v. Walker, 34 How. Pr. 29; contra, Crane v. Reeder, 28 Mich. 527); and there is no need of new pleadings if the case is in a proper shape for trial (Dart v. McKinney, 9 Blatchf. 359); but after the second term it is too late. (Gibson v. Johnson, 1 Peters C. C. 44.) So plaintiff would have the right to dismiss his suit and commence in the Federal court. (Hazard v. Chicago, B. & P. R. Co., 4 Biss. 453.) Although defendant is entitled to a new trial, yet if the judgment remains in force he cannot remove (Whittier v. Hartford F. Ins. Co., 55 N. H. 141); and so if the appellate court enters judgment instead of remanding the cause. (Jifkins v. Sweetser, 13 Chic. L. N. 103. See p. 894.)

At or before the first term.-The Act of 1875 requires the petition to be made and filed at the first term at which the cause could be tried on its merits, and before the trial thereof (American Bible Society v. Grove, 101 U. S. 610; Ames v. Colorado Cent. R. Co., 4 Dill. 260; McLean v. Chicago & St. P. R. Co., 16 Blatchf. 319; Fulton v. Golden, 20 Alb. Law J. 229; Murray v. Holden, 2 Fed. Rep. 740; Huddy v. Havens, 5 Cent. L. J. 66; Taylor v. Rockefeller, 7 Cent. Law J. 349; Danville Banking & T. Co. v. Parks, 88 Ill. 170; Knowlton v. Congress & E. Spring Co., 13 Blatchf. 170; N. Y. W. & S. Co. v. Loomis, 122 Mass. 431; Inhab. of School Dist. v. Etna Ins. Co., 66 Me. 370); even if the cause could not be reached for trial. (Barber v. St. Louis etc. R. Co., 43 Iowa, 223.) The first term at which the case can be tried is the term at which there is an issue for trial (Myer v. Construction Co., 100

U. S. 474; Scott v. Clinton & S. R. Co., 6 Biss. 529; Gurnee v. Brunswick, 1 Hughes, 270; Green v. Klinger, 10 Cent. L. J. 47; Whitehouse v. Continental Ins. Co., 37 Leg. Int. 225; Phoenix Life Ins. Co. v. Saettel, 33 Ohio St. 278); and after the expiration of such term an application is too late. (Traders' Bank v. Tallmadge, 9 Fed. Rep. 363.) The term, "at which a cause could be first tried," means when the issues are first made up (Scott v. Clinton & S. R. Co., 6 Biss. 529; Murray v. Holden, 2 Fed. Rep. 740); that is, the term at which either party may demand a trial. (Rabbit v. Clark, 2 Morr. Trans. 606.) It is not necessary that it should be at the first term that it could be put at issue, but at any time before pleadings are completed, or at the first term following. (Whitehouse v. Contin. F. Ins. Co., 2 Fed. Rep. 598.) It is the evident intention of the Act of March 3, 1875, section three, that if, under the local law and practice, a case could have been tried at a stated term, a removal cannot be had after the lapse of that term. (Gurnee v. Brunswick, 1 Hughes, 370; Danville Banking & T. Co. v. Parks, 88 Ill. 170; Carswell v. Schley, 59 Ga. 17; Cole v. La Chambre, 31 La. An. 41; New York W. & S. Co. v. Loomis, 122 Mass. 431; Inhab. of School Dist. v. Ætna Ins. Co., 66 Me. 370; Watt v. White, 46 Tex. 338; Aldrich v. Crouch, 10 Fed. Rep. 305; 11 Biss. 180.) So if the case was at issue and could have been tried, but was continued over the term by consent of parties, it is then too late (Scott v. Clinton & S. R. Co., 6 Biss. 529; Stough v. Hatch, 16 Blatchf. 233), unless the State law did not require it to be tried at the appearance term. (Palmer v. Call, 4 Dill. 566.) But the entry of appearance must be general and unconditional (McCullough v. Sterling S. F. Co., 4 Dill. 563), at or before the term at which, by the law of the State and rules of practice, the cause should first regularly stand for trial (Phoenix Life Ins. Co. v. Saettel, 33 Ohio St. 278); and the time cannot be extended by the circuit court, where, in point of fact, the issues are not made up at the first term. (Atlee v. Potter, 4 Dill. 559.) The Code of Iowa, which provides that law actions "shall be tried at the first term after legal and timely service has been made," limits the time for application for removal of law actions (Atlee v. Potter, 4 Dill. 559;

McCullough v. Sterling School F. Co., 4 Dill. 563); while equity suits may be removed to the circuit court at the second term, at least where there is no rule of court requiring such suits to be tried at the appearance term. (Palmer v. Call, 4 Dill. 566.) In an equity cause the limitation is to the first term at which the cause can, on due notice, be regularly set down for hearing, and before its hearing (Warner v. Sisson, 28 N. J. Eq. 117); and under the code this includes foreclosures of mortgages. (Palmer v. Call, 4 Dill. 566.) A chancery case cannot be tried till the issues are made up, and if there is no delay on the part of the applicant, the application is in time if made before the lapse of the term at which it could have been tried. (Scott v. Clinton & S. R. Co., 6 Biss. 529; see Michigan C. R. Co. v. Andes Ins. Co., 9 Chic. L. N. 34.) It is not necessarily the first term of the court wherein the action is entered, but the term when, after pleadings are made up, it could be first tried under the rules of practice. (Meyer v. Norton, 9 Fed. Rep. 433; Wheeler v. Liverpool L. Ins. Co., 13 The Reporter, 563.) The application is seasonable if made at the trial term next after the term at which the cause is at issue, if it be the term at which it could first be tried. (Wheeler v. Liverpool Life Ins. Co., 13 The Reporter, 418.) Where terms of court were held every month, and a rule of court provided that at any time within ten days of the commencement of a term the case might be placed on the calendar, an application made the second month after the case was placed on the calendar is too late. (Kerting v. Am. Oleographic Co., 10 Fed. Rep. U. S. 17.) If the term at which the cause could be first tried is one which occurs during the time a trial is stayed by order of the court, it is not such a term as is meant by the statute. (Warner v. Pa. R. Co., 13 Blatchf. 231; see Bright v. Milwaukee etc. R. Co., 1 Abb. N. C. 14; Forrest v. Edwin Forrest House, 1 Fed. Rep. 489; 17 Blatchf. 532.) A party who proceeds to trial without applying for a transfer cannot remove at a subsequent term, although a new trial may have been granted. It is otherwise under the Acts of 1866, 1867. (Young v. Andes Ins. Co., 3 Cent. L. J. 719.) It must affirmatively appear on the record, or by farto in the petition, that the case could