Preston v. Insurance Co. , 58 N.H. 76 ( 1877 )

I. Under the act of March 3, 1875, the petition for removal must be filed "before or at the term at which said cause could be first tried, and before the trial thereof." The act was made applicable to pending suits, and this case was subject to its provisions at the September term. It evidently was one of the objects of the act to provide a remedy for the evil of the tardy removal of suits under the former law. After keeping a suit in the state court as many terms as possible, and putting the plaintiff to costly preparation, the defendant could, at the last moment before trial, retreat into the federal court for the purpose of completing the exhaustion of his opponent, and defeating justice by intolerable expense and delay. If the same, course is now open to him at any time before he can, in fact, be forced to trial, the evil remains substantially unabated. A case cannot, in fact, be tried at a term at which it is continued on a motion grounded on the absence of a witness, or any other impediment held by the court to be cause for a continuance.

The act of 1875, construed reasonably in suppression of the mischief at which the alteration of the former law is aimed, requires the petition to be filed before or at the term at which the cause can, in contemplation of law, be first tried, — the first term at which the parties, being in court, or being legally bound to be there, are not prevented, by the law of procedure, from going to trial. Each party then has a reasonable opportunity to remove the cause before employing all the means of delay of which he may be able to avail himself in the state court. Considering the defect of the former law, and the manifest remedial purpose of the act of 1875, we think it was not the duty of the court, in this case, to accept the petition after the September term at which, so far as the state of the cause depended upon the law, it could have been tried. The exception is overruled.

II. The replication of waiver is bad, because it does not set forth facts that constitute a waiver.

III. The replication of fraud is bad, because it is in substance, a bill in equity, asking for the reformation of the written contract on which the suit is brought. A court of law may construe and enforce the instrument as it stands, or may set it aside altogether if there be adequate cause; but it cannot compel an alteration of it to be made, nor annul a part of it and enforce the rest. Adams Eq. 168; Prescott v. Hawkins, 12 N.H. 19; Butler v. Hildreth, 5 Met. 49, 51.

Demurrer sustained.

STANLEY, J., did not sit.