THE CONTINENTAL FIRlll INs. Co.FIRE
SAMB v. THE COM.
INs. Co. INs. Co.
SAME v. THE MANHATTAN
(Circuit Court, E. D. Penn8ylvania. May 18,1880.)
RDMOVALoll' CAUSES-TIME OF REMOVAL-AcT OF CONGREss.-Underthe act of March 3, 1875, it is not necesssry that the cause should be removed from the state court at the first term at which it could be put at issue, but it may be removed at any time before the pleadings are completed, or at the first term following their completion. SAME-REMOVAL FOR LOCAL INFLUENCE OR PREJUDicE.-The provisions of the act of 1867, (Rev. St. § 639,) for the removal of causes from the state courts, on the ground of local influence or prejudice, are not repealed by the act of 1875. '
These were rules to ·remand causes to the state court. The record showed that the above suits were commenced in the court of common pleas of Schuylkill county, Pennsylvania, on September 5,1874. Defendants appeared by counsel, but no declaration was filed, or any further proceedings taken, until November 17, 1879, when defendants filed petitions for the removal of the causes to the United States cir. cuit court. The petitions set forth that the matters in dispute in each case exceeded $500; that the controversy was between citizens of different states, the plaintiff being a citizen of Pennsylvania, and the defendants being corporationa organized under the laws of New York, and having their principal offices in the city of New York; and that petitioners believed that, from prejudice and local influence, justice 'could not be obtained in the state court. The petitions were ac· companied wtth the usual bonds to remove the record to the United States court, and the record was filed in the circuit court at the first term after the filing of the petitions. Hon. J. B. Reilly, for plaintiff. G. R. d; S. H. Kaercher and E. D. Smith, for defendants. BUTLER, D. J. The rules taken must be dismissed. The act of March 3, 1875, section 3, requires the petition for removal
.Prepared by .!<'rank P. PritChard, Esq" of the Philadelphia Bar.
WBITBHOUSB tl. CONTINENTAL FIRlII INS. CO.
to be filed "before or at the term at which such cause could be first tried." The causes here involved, were not at issue, nor had any step been taken to put them at issue, when the petition was filed. In that condition they could not be tried. The citation from "Buskin's Indiana Practice"-"We understand that Justice Davis, when sitting in circuit for the district of Indiana, held that the application for removal must be made at the first term at which the cause could be put at issue" -is too uncertain to be regarded as authority. Much more important are the cases of Scott et al., Trustees, v. Olinton Springfield R. 00. 8 Chicago Legal News, 210, (6 Bissell, 529,) and Michigan R. 00. v. Andes Insurance 00.9 Chicago Legal News, 34, in which it was held that, inasmuch as the cause cannot be tried, until the issues are made up, the application is in time if it come before the pleadings are completed, or the next term following their completion. In the valuable note to Taylor v. Rockefellow, Am. Law Reg. (N. S.)vol.18, No.5, p. 313, the same judgment is expressed by the intelligent author. This construction is consistent with the spirit of the statute, as well as with its terms. The object in limiting the time for application is to guard against loss of opportunity for trial, from delay in making it. Where, as here, it is made before any step has been taken towards forming an issue, no such loss can result. But these applications are within the terms of the act of 1867, providing for causes in which local influence or prejudice is likely to defeat the ends of justice, Rev. St. § 689; Dillon on "Removal of Causes," 22, 23, 25, as well as that of 1875; and they might, therefore, have been made at "any time befOre trial or final hearing." Insumnce 00. v. Dunn, 19 Wall. 214; Vanne'l!"er v. Bryant, 21 Wall. 41. There has been no express repeal of this provision of the statute of 1867, and there does not seem to be any by implication. Dillon on "Removal of Causes," 25; Oook v. Ford et al. 16 Am. Law Reg. (N. S.) 417; Zinc 00. v. Trotter, 17 Am. Law Reg. (N. S.) 376. Regarding it as in force, all question respecting the defendant's right to trial here is removed. The other matters, o}Jjected. to are immaterial.
BURGESS V. SOUTHBRIDGE; SAVINGS BANK
(Circuit Court, D. Massachusetts.
May 7, 1880.)
INTEREST ON DEBT AFTER DUE -
PAID BY MORTGAGEE-ALLOWANCES TO MOl\TGAGEE.
In Equity. LOWELL, C. J. 'l'be Southbridge Savings Bank, holding a. first mortgage upon the premises which are in controversy here, were made defendants, perhaps without necessity, but were made so, in this suit, and in several others, in which Thomas Burgess is plaintiff. The controversy appears to be between the plaintiff and Mrs. Tyler, holding a second mortgage, which the plaintiff says should be postponed to his, which is, in order of time, the third. By consent of parties a decree was entered for a sale of the land by the savings bank, and for payment into court of the proceeds of sale, beyond what is due them on their mortgage. The account has been rendered, and two or three questions are raised upon certain charges made by the bank against the proceeds. . The debt bears 7 per cent. interest by the agreement of the parties, and the first question is whether, after a default, the mortgagees are to charge that rate or only 6 per cent. Even if I am not positively bound by the decisions in Massachusetts I ought to follow them in a case of this kind, unless they appear to me decidedly unsound. I understand those decis_ ions to be that the rate of interest agreed between the parties for the forbearance of money is, in general, understood to mean that the rate shall so continue until paym.ent, or until judgment, and therefore is the true rule of damages under the statute of Massachusetts, which fixes the rate of 6 per cent. only when the parties have failed to agree on some other. Brannon v. Hursell, 116 Mass. 63. It is not worth while to examine into the niceties of the cases on this subject, because it is plain that both parties understood that this debt was to bear 7 per cent. interest. It