tion in a court of the United States is conclusively presumed, for the
purposes of the litigation, to be one by or against citizens of the State
creating the corporation. It is not sufficient that the association may
be described as a quasi corporation or as a new artificial person."
The rule does not embrace a new artificial person that is not a corpo-
ration. Great Southern Fire Proof Hotel Company v. Jones, 449.
1. Murphy was tried in a state court of Massachusetts on an indictment
charging him with embezzlement; was convicted; and was sentenced
to imprisonment for a term, one day of which was to be in solitary con-
finement, and the rest at hard labor. He remained in confinement for
nearly three years, and then sued out a writ of error, and the judg-
ment was reversed on the ground that the sentence was unconstitu-
tional. The case was then remanded to the court below to have him
resentenced, which was done. Before imposing the new sentence the
court said that as he had already suffered one term of solitary confine-
ment, the court would not impose another, if a written waiver by the
prisoner of the provision therefor were filed. He declined to file such
a waiver, and the sentence was accordingly imposed. Upon his taking
steps to have the sentence set aside, held that his contention in that
respect was unavailing. Murphy v. Massachusetts, 155.
2. Three policemen in South Dakota attempted, under verbal orders, to ar-
rest another policeman for an alleged violation of law, when no charge
had been formally made against him, and no warrant had issued for
his arrest. Those attempting to make the arrest carried arms, and
when he refused to go, they tried to oblige him to do so by force. He
fired and killed one of them. He was arrested, tried for murder and
convicted. The court charged the jury: "The deceased, John Kills
Back, had been ordered to arrest the defendant; hence he had a right
to go and make the attempt to arrest the defendant. The defendant
had no right to resist him. It is claimed on the part of the defendant
that he made no resistance, and he was willing to go with the officer
in the morning. I charge you, of course, that the officer, John Kills
Back, had a right to determine for himself when this man should go
to the agency with him. . . In this connection, I desire to say to
you, gentlemen of the jury, that the deceased, being an officer of the
law, had a right to be armed, and for the purpose of arresting the de-
fendant he would have had the right to show his revolver. He would
have had the right to use only so much force as was necessary to take
his prisoner, and the fact that he was using no more force than was
necessary to take his prisoner would not be sufficient justification for
the defendant to shoot him and kill him. The defendant would only
be justified in killing the deceased when you should find that the cir-
cumstances showed that the deceased had so far forgot his duties as
an officer and had gone beyond the force necessary to arrest the defend-
ant, and was about to kill him or to infiict great bodily injury upon
him, which was not necessary for the purpose of making the arrest."
Held, that the court clearly erred in charging that the policemen had
VOL. CLXXVII-45
the right to arrest the plaintiff in error and to use such force as was
necessary to accomplish the arrest, and that the plaintiff in error had
no right to resist it. John Bad Elk v. United States, 529.
3. At common law, if a party resisted arrest by an officer without warrant,
and who had no right to arrest him, and if, in the course of that re-
sistance the officer was killed, the offence of the party resisting arrest
would be reduced from what would have been murder, if the officer
had had the right to arrest, to manslaughter. Ib.
1. A suit in equity is commenced by filing a bill of complaint; and this
general rule prevails also by statute in Illinois. Farmers' Loan &
Trust Co. v. Lake Street Elevated Railroad Co., 51.
2. As between the immediate parties in a proceeding in rem jurisdiction
attaches when the bill is filed and the process has issued, and when
that process is duly served, in accordance with the rules of practice of
the court. Ib.
3. The possession of the res in case of conflict of jurisdiction vests the
court which has first acquired jurisdiction with power to hear and de-
termine all controversies relating thereto, and, for the time being, dis-
ables other courts of coördinate jurisdiction from exercising a like
power. Ib.
4. This rule is not restricted, in its application, to cases where property
has been actually seized under judicial process before a second suit
is instituted in another court, but it applies as well where suits are
brought to enforce liens against specific property, to marshal assets,
administer trusts, liquidate insolvent estates, and in suits of a similar
nature, and it is applicable to the present case. Ib.
See CONSTITUTIONAL LAW, 8, 9;
CONTRACT, 8.
1. This was an action brought in the Circuit Court of the United States
for the District of New Jersey against a railway company, for an alleged
injury to the plaintiff, caused by the neglect of the railway company
while the plaintiff was a passenger on one of its cars. Held that the
court had the legal right or power, under the statute of New Jersey
and the United States Revised Statutes, to order a surgical examina-
tion of the plaintiff. Camden & Suburban Railway Co. v. Stetson, 172.
EXECUTOR AND ADMINISTRATOR.
See ADMINISTRATOR OF PERSONAL PROPERTY.
The statute of June 13, 1848, c. 448, "to meet war expenditures, and for
other purposes," does not forbid an express company, upon which is
imposed the duty of paying a tax upon express matter, from requiring
the shipper to furnish the stamp, or the means of paying for it. Amer-
ican Express Company v. Michigan, 404.
The act of the legislature of Virginia of March 5, 1840, providing that "it
shall not be lawful for the court of any county to grant leave to estab-
lish a ferry over any watercourse within one half mile, in a direct line,
of any other ferry legally established over the same watercourse," was
one of general legislation, and subject to repeal by the general assem-
bly, and did not tie the hands of the legislature, or prevent it from au-
thorizing another ferry within a half mile whenever in its judgment it
saw fit.
Williams v. Wingo, 601.
It is well settled that this court will not proceed to adjudication where
there is no subject-matter upon which the judgment of the court can
operate; and although the application in this case has not reached that
stage, still as it is obvious that before a return to the writ can be made,
or any other action can be taken, the restraint of which the petitioner
complains would have terminated, the court feels constrained to de-
cline to grant leave to file the petition for a writ of habeas corpus and
certiorari; but, in arriving at this conclusion, it is not to be understood
as intimating, in any degree, an opinion on the question of jurisdiction,
or the other questions pressed on its attention. Ex parte Baez, 378.
This court, in view of the finding of the court below as to the influence of
the dam placed by the Mesa Company upon the flow of water in the
canal of the Consolidated Company, is concluded as to the question of
fact; and an injunction will not issue to enforce a right that is doubt-
ful, or to restrain an act, the injurious consequences of which are
doubtful; the dam built by the Mesa Company although it had the
effect of raising the flow of water in its canal so as to destroy the
water power obtained by the Consolidated Company through the con-
struction of its canal, was not an infringement of the rights secured
to the Consolidated Company under the contract set forth in the
statement of the case. Consolidated Canal Company v. Mesa Canal
Co., 296.
By the rules of the beneficial or insurance branch of the Supreme Lodge,
Knights of Pythias, persons holding certificates of endowment or in-
surance were required to make their monthly payments to the secretary
of the subordinate section before the tenth day of each month; and it
was made the duty of the secretary to forward such monthly payments
at once to the Board of Control. If such dues were not received by
the Board of Control on or before the last day of the month, all mem-
bers of the section stood suspended and their certificates forfeited, with
the right to regain their privileges if the amounts were paid within
thirty days after the suspension of the section; provided, no deaths
had occurred in the meantime. There was a further provision that the
section should be responsible to the Board of Control for all moneys
collected, and that the officers of the section should be regarded as the
agents of the members, and not of the Board of Control. The insured
made his payments promptly, but the Secretary of the section delayed
the remittance to the Board of Control until the last day of the month,
so that such remittance was not received until the fourth day of the
following month. The insured in the meantime died. Held: That
the Supreme Lodge having undertaken to control the secretary of the
section by holding the section responsible for moneys collected, and
requiring him to render an account and remit each month, a matter
over which the insured had no control, he was thereby made the
agent of the Supreme Lodge, and that the provision that he should be
regarded as the agent of the insured was nugatory, and that the in-
sured having made his payments promptly, his beneficiary was enti-
tled to recover. Knights of Pythias v. Withers, 260.
A United States Collector of Internal Revenue was adjudged by a court of
limited jurisdiction in Kentucky to be in contempt because he refused,
while giving his deposition in a case pending in the state court, to file
copies of certain reports made by distillers, and which reports were in
his custody as a subordinate officer of the Treasury Department. He
based his refusal upon a regulation of that Department which provided:
"All records in the offices of collectors of internal revenue or of any of
their deputies are in their custody and control for purposes relating to
the collection of the revenues of the United States only. They have
no control of them and no discretion with regard to permitting the use
of them for any other purpose." This regulation was made by the Sec-
retary of the Treasury under the authority conferred upon him by sec-
tion 161 of the Revised Statutes of the United States, which authorized
that officer, as the head of an Executive Department of the Government,
"to prescribe regulations, not inconsistent with law, for the govern-
ment of his department, the conduct of its officers and clerks, the dis-
tribution and performance of its business, and the custody, use and
preservation of the records, papers and property appertaining to it."
The Collector having been arrested under the order of the state au-
thorities, sued out a writ of habeas corpus before the District Court of
the United States for the Kentucky District. Held: (1) That the case
was properly brought directly from the District Court to this court as
one involving the construction or application of the Constitution of the
United States; (2) As the petitioner was an officer in the revenue ser-
vice of the United States whose presence at his post of duty was im-
portant to the public interests, and whose detention in prison by the
state authorities might have interfered with the regular and orderly
course of the business of the Department to which he belonged, it was
proper for the District Court to consider the questions raised by the
writ of habeas corpus and to discharge the petitioner if held in viola-
tion of the Constitution and laws of the United States; (3) The regu-
lation adopted by the Secretary of the Treasury was authorized by sec-
tion 161 of the Revised Statutes, and that section was consistent with
the Constitution of the United States. To invest the Secretary with
authority to prescribe regulations not inconsistent with law for the
conduct of the business of his Department and to provide for the cus-
tody, use and preservation of the records, papers and property apper-
taining to it, was a means appropriate and plainly adapted to the suc-
cessful administration of the affairs of his Department; and it was
competent for him to forbid his subordinates to allow the use of offi-
cial papers in their custody except for the purpose of aiding the collec-
tion of the revenues of the United States; (4) in determining whether
the regulation in question was valid, the court proceeded upon the
ground that it was not to be deemed invalid unless it was plainly and
palpably against law. Boske v. Comingore, 460.
When leave to intervene in an equity case is asked and refused, the order
denying leave is not regarded as a final determination of the merits of
the claim on which the intervention is based, but leaves the petitioner
at full liberty to assert his rights in any other appropriate form of pro-
ceeding. The action of the court below, in denying the petition to
intervene, was an exercise of purely discretionary power, and was not
final in its character. Credits Commutation Co. v. United States, 311.
See MUNICIPAL CORPORATION, 1.
A. JURISDICTION OF THE SUPREME COURT.
1. When a defendant has, by his own action, reduced the judgment against
him by a voluntary settlement and payment below the amount which
is necessary in order to give this court jurisdiction to review it, the
real matter in dispute is only the balance still remaining due on the
judgment, and the right of review in this court is taken away. Thorp
v. Bonnifield, 15.
2. The court, being satisfied that the amount in dispute in this case is less
than the amount required by statute to give it jurisdiction, orders the
writ dismissed for want of jurisdiction. Ib.
3. In the light of the various orders of the court below, this court holds
that a rehearing was not granted in this case, but that the motion for
rehearing was permitted to be argued, and as that was heard before
four of the judges of the court, and there was an equal division, it was
denied; and, as the judgment of reversal was not a final judgment, the
appeal must be dismissed. Carmichael v. Eberle, 63.
4. The Federal character of a suit must appear in the plaintiff's own state-
ment of his claim, and where a defence has been interposed, the reply
to which brings out matters of a Federal nature, those matters thus
brought out by the plaintiff do not form a part of his cause of action.
Houston and Texas Central Railroad Co. v. Texas, 66.
5. The plaintiff in error was county clerk of Oklahoma County, Oklahoma
Territory. The Territorial board of equalization increased the valua-
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