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Opinion of the Court.

tions from the court, found the amount due on the note, "subject to the judgment of the court on the demurrer to the evidence," and were discharged. Afterwards, on the 10th of January, 1878, the bank moved for leave to amend its declaration so as to show that it was a corporation created by the laws of the State of Kentucky, "and existing in said state of Kentucky." This motion was denied, and the bank then moved for leave "to withdraw its joinder to the defendants' demurrer to the plaintiff's evidence," and that the verdict be set aside and a new trial granted. While these motions were pending undisposed of, the bank filed its petition for the removal of the suit to the District Court of the United States sitting at Charleston, on the ground that the plaintiff was a Kentucky corporation and the defendants were citizens of West Virginia. Objection was made by the defendants, on the 4th of November, 1879, to the entry of the case in the District Court, but this objection was overruled, and the cause docketed by order of the court November 17, 1880. Thereupon the demurrer to the evidence was argued and submitted to the court.

On the 6th of December, 1880, there was filed in this court a petition by the defendant Thayer, sworn to September 13, 1880, for a rule on the district judge to show cause why a mandamus should not issue requiring him to remand the suit. In this petition it did not appear that the court had taken any action in the matter, and it was denied because no application had been made for an order to remand. In the opinion it was said: "We cannot doubt that if such an application is made it will be promptly granted if the facts are as they are stated here. The petition for removal was not filed in the state court until after both trial and verdict, when the law requires it should be filed before or at the term at which the cause could be first tried, and before the trial thereof." Afterwards, May 7, 1883, a motion to remand was made by Thayer and at once granted by the court. To review that order this writ of error was brought.

In the Removal Cases, 100 U. S. 457, which were decided December 15, 1879, it was held that a petition for removal

Opinion of the Court.

under the act of 1875 to be in time must be "presented to the court before the trial is in good faith entered upon," and we there said, p. 473: "There may be exceptions to this rule; but we think it clear that Congress did not intend, by the expression 'before trial,' to allow a party to experiment on his case in the state court, and, if he met with unexpected difficulties, stop the proceedings and take his suit to another tribunal. But, to bar the right of removal, it must appear that the trial had actually begun and was in progress in the orderly course of proceeding when the application was made. No mere attempt of one party to put himself on record as having begun the trial is enough. The case must be actually on trial by the court, all the parties acting in good faith, before the right of removal is gone." This rule was recognized and followed in Jifkins v. Sweetzer, 102 U. S. 177, 179, and Alley v. Nott, 111 U. S. 472, and must now be considered as settled. Clearly, therefore, this application for removal came too late. When it was filed, the trial had not only begun, but it had progressed far enough to get a verdict of a jury, subject only to the decision of the court on the questions presented by the demurrer to the evidence.

In this connection it is proper to say that the ruling in the Removal Cases was not probably known to the district judge when his order to docket the cause was made, because the volume of our reports in which those cases are found was not published and generally distributed until a very considerable time after our adjournment for the term in May, 1880. The court did not actually proceed in the case after it was docketed, further than to take it on the submission of the demurrer to the evidence made at that time, and the order to remand was granted as soon as a motion to that effect was made by the bank.

The order remanding the case is affirmed.

Opinion of the Court.

GRANT v. PHOENIX LIFE INSURANCE COMPANY.

GRANT and Another v. SAME.

ORIGINAL MOTION IN TWO CAUSES PENDING IN THIS COURT ON APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

Submitted January 17, 1887. - Decided January 31, 1887.

In a suit for foreclosing a mortgage, it appearing that a receiver has been appointed of the mortgaged premises, and that the mortgagor, appellant, is unable to pay the cost of printing the record on appeal, and that there are rents and profits in the receiver's hands collected during the pendency of the suit, the court orders the receiver to pay to the clerk the sum estimated to be necessary to complete the cost of printing the record.

THE following motion was filed in these cases:

"The above appellant [Grant] moves the honorable the Justices of the Supreme Court of the United States, that Brainard H. Warner the receiver, appointed by the Supreme Court of the District of Columbia in Equity Cause 4291, be directed to turn over to the Clerk of this Honorable Court out of the rents and profits in his hands the amount of $5500, for costs accruing or to accrue, in the hearing of the cause, and for counsel fees as set forth in the petition, for the following

reasons:

"First. Because the rents and profits are not mortgaged to the appellee, and said appellee has no right nor just claims to the fund in the hands of the said Warner.

"Second. Because the Supreme Court of the District of Columbia in General Term, has once finally decided that said rents and profits belong to the appellant, and discharged a receiver for that reason, and turned over the property and funds to the appellant by the decree of said court.

"Third. Because at the time of the appointment of said Warner, the cause stood precisely as it stood on February 12, 1878, when the court discharged the former receiver, and because appellant was refused a hearing by the court below

Opinion of the Court.

on said appointment which was made by an interlocutory order and not being continued in the final decree of June 16, 1883, said appointment was superseded thereby.

"Fourth. Because the appellee has delayed the cause for many years by violating the rules and practices of the court, and thereby has caused the destruction of the property and loss of the rents and profits.

"Fifth. Because without receiving the amount prayed for in his petition, appellant will not be able to properly present his case to your Honorable Court, and will thus be prevented from obtaining the right and justice to which he is entitled.

"Sixth. Because of many other manifest reasons appearing of record and set forth in the petition."

Leave was granted to both sides to file briefs.

Mr. H. W. Blair for the motion.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

We find that the cost of printing the record in No. 165 has been

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which the appellant represents himself as unable to pay, and the printer will not allow the requisite number of the printed copies to be delivered for use at the hearing until his claim is satisfied. The money in the hands of the receiver has been collected from the rents of the mortgaged property during the pendency of the suit. We, therefore, direct that there be paid by the receiver to the clerk of this court the sum of $1275, to be by him used in payment of the amount now due for printing the record, and the amount of his own taxable fees in the

Opinion of the Court.

case, not already paid by the appellant. A copy of this order may be certified to the court below so that it may be carried into effect by an appropriate order of that court upon the receiver.

The motion papers now on file do not show that the matters involved in the appeal in No. 1201 are of a character to make it proper to direct that the clerk's costs and the expense of printing the record in that case be paid by the receiver. Except as to the payment of clerk's fees and printer's charges in No. 165 as above, the motions are overruled.

Motion granted in part and denied in part as to first suit; and denied as to second.

WINCHESTER v. HEISKELL.

ERROR TO THE SUPREME COURT OF TENNESSEE.

Submitted January 25, 1887.- Decided January 31, 1887.

The court restates what was decided in Winchester v. Heiskell, 119 U. S. 450, and, on petition for rehearing, adheres to it.

THIS was a petition for a rehearing in the case decided in 119 U. S. 450-453.

Mr. B. M. Estes for the petitioner.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

This petition is denied, but inasmuch as the petitioners think that the points on which they relied for a reversal of the judgment were not clearly understood, we will restate what was decided.

1. We held that, as the suit of Townsend v. Jones was pending when Townsend filed his petition in bankruptcy, and when he made his assignment to Winchester, the assignee, Winches

VOL. CXX-18

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