bearing over from this, as though he was com- | upon sudden impulse, without previous preping over right direct to where I was standing aration to take life. Whenever that exists in the door, and Peter Carbo, the first I seen we have malice, and nothing else, unless it of him, was right in front of that store, and is a case where a man prepares himself for when they began to talk Peter Carbo advanced self-defense, and then, in order to exonerate right out that way, and when he got up in himself from that killing, he must execute three or four paces of him Gourko stopped. that preparation where the law gives him a Q. They met right there? A. Yes, sir; when right to do it, and in a defensive way; he they got together Peter was talking, and I may prepare himself for self-defense, but if don't know whether this man was saying he kills when there is no case of self-defense, anything or not. Q. They were saying some such act of previous preparation becomes thing in their own language which you did criminal in its character because of his subnot understand? A. Yes, sir; that boy was sequent act, and it becomes attached to that standing still when Peter was advancing, and act. It does not necessarily import especial he was standing still when the first shot was malevolence toward the individual slain, but fired. Q. The first shot was fired over his also includes the case of a generally depraved, head? A. Yes, sir." There was evidence, wicked, and malicious spirit ; a heart regardon behalf of the government, tending to show less of social duty, and a mind deliberately that just before the killing Carbo was in bent on mischief. It imports pre- [190 the saloon referred to watching a game of meditation." To this part of the charge the billiards; that while he was there Gourko defendant duly excepted. came to the door, and opened a conversation The defendant asked the court to instruct with Carbo which indicated that he was the jury "that preparation in the heat of indignant at the language the latter had blood may be followed by manslaughter as previously used towards him and did not in- well as under a certain state of case it may tend to rest quietly under the insults that be followed by murder or self-defense." The had been put upon him; that the parties | court refused to give this instruction withquickly, and as if by mutual agreement, left out modification, and to that action of the the saloon to "settle" the dispute between court the defendant excepted. The court them; that in a moment or two after they got modified the proposition embodied in this on the outside the killing occurred; and that instruction by saying to the jury: "If a Carbo, at the time he was shot, was facing party prepares to defend himself in a case Gourko, with one hand across his bosom, where he could defend himself, he has a right under the lapel of his coat, and the other to do that; but if he prepares himself as I behind or across his back. There was evi-have already told you, and then executes a dence tending to show that the deceased was often seen, when, not quarreling, with his hands in that position. The third shot fired by defendant took effect, and resulted in the instant death of Carbo. It was clearly proved that he was unarmed at the time he was shot. The evidence disclosed other circumstances, 189] but those above *stated are the principal facts, and are suflicient for the purpose of presenting the grounds upon which the defendant seeks a reversal of the judgment. No counsel for plaintiff in error. deadly purpose by killing under circum stances where he would have no right to kill, where there was an absence from the case of the right of self-defense or an absence of the mitigating conduct that I have given to you that would reduce the grade of the crime to manslaughter, then the fact of his previously preparing himself shows deliberation for a deadly criminal purpose, and there could not be manslaughter under such conditions as that. He may prepare himself, as I have already told you, to defend himself in a proper way; but because he has prepared him Mr. Holmes Conrad, Assistant Atty. self to act upon the defensive, if he after Gen., for defendant in error. Mr. Justice Harlan delivered the opinion of the court: and malice aforethought." wards abandons that purpose and kills, if he has no right to kill in the absence of facts that would give him the right to defend. then the fact of previous preparation becomes The court below made a long charge in evidence of deliberation, evidence of design reference to the principles of law which it As I have already told you, manslaughter conceived to be applicable to murder, man- cannot spring out of a state of case where a slaughter, and self-defense. Among other man prepares himself to kill wrongfully, things, the court said to the jury: A man when he prepares himself to take human life has a deliberate intent to kill in the absence when he has no right to do it. That is evi of a right to kill under the law of self-de-dence of malice aforethought, and it is the fense, and in the absence of that which would distinguishing line between manslaughter mitigate the offense to manslaughter. He cannot have a deliberate intent to kill and then say that his offense was only man slaughter, because the fact that he had an intent to kill implies that he deliberated over that purpose, that he prepared himself for it, and, as you will learn further on, where de liberation, premeditation upon a purpose to slay, where previous preparation to execute that purpose exists, there is banished from the case that condition known as man slaughter, because that grows into existence We are of opinion that the part of the charge to which the defendant took excep tion, as well as what the court said in modification of the instruction asked by the defendant, were wanting in the clearness that was requisite in order that the jury might not misapprehend the principles of law by which they were to be controlled. Assuming, for the purposes of the present inquiry, that the defendant was not en [191 titled to an acquittal as having acted in self defense, the vital question was as to the effect to be given to the fact that he armed himself with a deadly weapon after the angry meeting with Carbo in the vicinity of the postoffice. EDWARD G. HANRICK, Appt., v. NICHOLAS HANRICK ET AL. NICHOLAS HANRICK ET AL., Appts., V. EDWARD G. HANRICK ET AL WILLIAM BRADY ET AL., Appts., v. If he armed himself for the purpose of pur suing his adversary, or with the intention of putting himself in the way of his adversary, so as to obtain an opportunity to kill him, then he was guilty of murder. But if, in view of what occurred near the postoffice, the defendant had reasonable grounds to believe, and in fact believed, that the deceased intended to take his life, or to inflict upon him great bodily harm, and, so believing, armed himself solely for necessary self-defense in the event of his being pursued and attacked, and if the circumstances occurring Act of March 3, 1887-removal of suit-costs. on the occasion of the meeting at or near the saloon were such as, by themselves, made a case of manslaughter, then the defendant's arming himself, after the difficulty near the postolice, did not have, in itself, the effect to convert his crime into that of murder. Stated in another form: Although the defendant may not have been justified on the occasion and under the particular circumstances of the difficulty at the billiard saloon in believing that the taking of his adversary's life was, then and there, necessary to save his own life or to protect himself from serious bodily harm; nevertheless, the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully so armed himself for purposes simply of self defense, and if, independently of the fact of arming himself, the case, tested by what occurred on the occasion of the killing, was one of manslaughter only. EDWARD G. HANRICK ET AL (See S. C. Reporters' ed. 192 198.) against him for costs in that court and to remand it to the state court. APPEALS from a decree of the Circuit of the United States for the Northern District of Texas, for the partition of land in an action brought in the state court, by The court, in effect, said-or the jury may, Nicholas Hanrick et al., against Edward G. not unreasonably, have understood the court Hanrick et al., which suit was removed from as declaring that preparation, by arming, the state court to said circuit court, on the apalthough for self-defense only, could not be plication of William Brady, one of the defendfollowed, in any case, by manslaughter, if ants. Reversed, with costs of the appeals the killing, after such arming, was not, in against Brady and case remanded to the cirfact, in necessary self-defense. Such we un-cuit court, with directions to render judgment derstand to be the meaning of the charge. In our opinion the court erred in so charging the jury. If the accused was justified in the eye 192] of the law in arming himself for *selfdefense, and if without seeking but on meeting, his adversary, or a subsequent occasion, killed him, not in necessary self-defense, then his crime was that of manslaughter or murder, as the circumstances, on the occasion of the killing, made it the one or the other. If guilty of manslaughter, looking alone at those circumstances, he could not be found guilty of murder by reason of his having previously armed himself solely for self-defense. The judgment is reversed and the cause remanded for a new trial. Statement by Mr. Justice Gray: This was an action, brought December 17, 1878, in the district court of Falls county in the state of Texas, to recover two undivided thirds of land in that county, of which Edward Hanrick, a citizen of that state, was seized at the time of his death in 1865, NOTE. As to removal of causes, under Act of 1875; citizenship, see note to Meyer v. Delaware R. Const. Co. 25: 593. As to removal by one of two or more defendants; separable controversies, see note to Sloane v. Anderson, 29: 899. As to removal of causes to United States courts for local prejudice, see note to Gaines v. Fuentes, 23: 524, and to Jefferson v. Driver, 29: 897. As to removal of causes from state to Federal courts where United States Constitution, Act of Congress, or treaty comes in question, see note to Little York Gold Wash. & W. Co. v. Keyes, 24: 656. As to civil rights; removal of causes; when denied see note to Civil Rights Cases, 27: 835. As to removal of actions against officers; Rev. Stat $645, see note to Davis v. South Carolina, 27 574. 153 U.S. U. S., Book 38. 43 685 the state; and adjudging that the cause be removed from the state court to the circuit court. 193]intestate and without issue. His heirs, at the time when this suit was brought, were his sister Elizabeth; Nicholas Hanrick and others, the children of his deceased brother The pleadings were then, by order of the James; and Edward G. Hanrick, the only circuit court, reformed according to the son of another deceased brother. The plain-equity rules of the court; and, after further tiffs were Elizabeth and the children of proceedings and hearings, it was decreed that James, and were some of them citizens of the parties were entitled to undivided interthe state of New York, and the others sub-ests in the land as follows: The plaintiffs, jects of the United Kingdom of Great Britain and Ireland and residents of Ireland. The defendants were Edward G. Hanrick, a citizen of Texas, residing in the northern district of Texas, who contended that the plain tiffs had no title, because both Elizabeth and James were aliens; and Philip O'Brien and wife, residents of the state of Massachusetts and citizens of the United States, to whom some of the plaintiffs had conveyed their interests by a deed absolute in form, but alleged to be in trust for the grantors. two ninths; the defendant Edward G. Hanrick, two ninths; the defendants Brady and O'Brien and wife, two ninths; and the defendant Gurley, one third. A final decree of partition was entered accordingly, from which appeals were taken to this court by the plaintiffs, by the defendant Hanrick, and by the defendants Brady and O'Brien and wife. Messrs. W. Hallett Phillips and L. W. Mr. Justice Gray delivered the opinion of the court: The petition, which stated the above facts, was afterwards amended by joining as defendants William Brady, a citizen of New York; John B. Sargent, a citizen of Massachusetts; and Wharton Branch and Edward The first question to be decided is whether J. Gurley, citizens of Texas. Brady, Sargent the circuit court of the United States lawfully and Branch severally claimed interests in the acquired and retained jurisdiction of the case. lands under conveyances from the defendants The determination of this question really O'Brien and wife; and Gurley claimed an *depends upon the construction and ef- [195 undivided third of the land under a deed fect of the Act of March 3, 1887, chap. 373, from Edward G. Hanrick pursuant to a con- as corrected by the Act of August 13, 1888, tract made by Edward Hanrick in his life-chap. 866; but will be aided by referring to time. The amended petition prayed for a the earlier acts of Congress and to the conpartition of the whole land, having due re-struction of those acts by this court. gard to any valid conveyances of interests The Judiciary Act of September 24, 1789, therein, and to other equitable considera- chap. 20, § 12, authorized "a suit" comtions. menced in any state court "by a citizen of On June 15, 1887, Brady, relying on sec- the state in which the suit is brought against tion 639 of the Revised Statutes, and the acts a citizen of another state" to be removed by of March 3, 1875, chap. 137, and March 3, the defendant into the circuit court of the 1887, chap. 373, filed in the state court a peti- United States upon a petition filed in the tion, supported by his affidavit, for the re-state court. 1 Stat. at L. 79. Under that moval of the suit into the circuit court of the statute, it was held to be essential to the juUnited States, on the ground that there was risdiction of the circuit court that all the in the cause a controversy between himself, defendants should be citizens of a different a citizen of New York, and the defendants state from any of the plaintiffs. Strawbridge Edward G. Hanrick, Branch and Gurley, v. Curtiss, 7 U. S. 3 Cranch, 267 [2: 435]; citizens of Texas and that by reason of prej- Susquehanna & W. V. R. & Coal Co. v. udice and local influence, created by said Blatchford, 78 U. S. 11 Wall. 172 [20: 179]; Henrick, Brady could not obtain justice in Barney v. Latham, 103 U. S. 205, 209 [26 : the courts of the state. Thereupon the state 514, 516]. court ordered the case to be removed as prayed for. 194] *On November 21, 1887, the defendants Hanrick and Gurley moved the circuit court to remand the case to the state court, because there was no controversy between the defendant Brady and the plaintiffs; because Brady was a citizen of the same state as some of the plaintiffs; because all the defendants were not citizens of a different state from the plaintiffs; because there was no separable controversy between Brady and any other party to the suit; and for other reasons. On November 23, 1887, the circuit court, against the exception of the defendants Hanrick and Gurley, made an order denying their motion to remand the case to the state court; reciting that it had been made to ap pear to the court that from prejudice and focal influence the defendant Brady would not be able to obtain justice in the courts of The earliest Act of Congress for the removal of causes on the specific ground of prejudice and local influence was the Act of March 2, 1867, chap. 196, by which "where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state," the suit might be removed into the circuit court of the United States by "such citizen of another state, whether he be plaintiff or defendant," upon filing a petition and affidavit in the state court. 14 Stat. at L. 558. Under that Act, it was held, after able arguments and full consideration, that the phrase "a suit in which there is controversy between a citizen of the state in which the suit is brought and a citizen of another state" had the same meaning as the shorter descrip tion, in the Act of 1789, of "a suit between" such parties; that each term implied a pro- | 113 U. S. 73 [28: 927]; Baltimore & O. R. ceeding in a court of justice by a party Co. v. Bates, 119 U. S. 464 [30: 436]. plaintiff against a party defendant; and con- The Act of March 3, 1887, chap. 373, corsequently that all the defendants must be rected by the Act of August 13, 1888, chap. citizens of other states from any of the plain-866, was intended, as this court has often tiffs, and that one of several defendants could recognized, to contract the jurisdiction of the not remove the suit. Grover & B. S. Mach. circuit courts of the United States, whether Co. v. Florence 8. Mach. Co. 85 U. S. 18 original over suits brought therein, or by reWall. 553, 585 [21: 921, 922]; Vannerar v. moval from the state courts. It not only Bryant, 88 U. S. 21 Wall. 41 [22: 476] amends the Act of 1875; but it allows to none Blake v. McKim, 103 U. S. 336, 338, 339 but defendants the right to remove any case [26: 563, 564]. whatever, and, by new regulations of re : persedes and repeals the earlier statutes upon this subject. 24 Stat. at L. 553; 25 Stat. at L. 434; Smith v. Lyon, 133 U. S. 315 [33: 635]; Fisk v. Henarie, 142 U. S. 459 [35: 1080]; Tennessee v. Union & P. Bank, ante, p. 511. The Act of 1867 was substantially re-en-movals for prejudice or local influence, su196] acted in clause 3 of *section 639 of the Revised Statutes, which, however (like the Act of 1789) described the case to be removed as "a suit" between a citizen of the state in which it is brought and a citizen of another state (instead of describing it, as in the Act of 1867, as "a suit in which there is con- This Act, after other provisions which need troversy between" such parties) and was not be stated, re-enacts the last clause of seclikewise held to require that all the neces-tion 2 of the Act of 1875, above quoted, exsary parties on one side of the suit should be cept that it omits the words "plaintiffs or." citizens of different states from those on the It then takes up the subject of the Act of other, and not to permit a removal because 1867, and enacts that in the case, defining it of a separable controversy between one of in the words of that Act, "where a suit is the defendants and the plaintiff. Myers v. now pending or may be hereafter brought, Swann, 107 U. S. 546 [27: 583]; American in any state court, a removal may be had, Bible Society v. Price, 110 U. S. 61 [28: 70]; not, as under that Act, by "such citizen of Cambria Iron Co. v. Ashburn, 118 U. S. 54 another state, whether he be plaintiff or de[30: 60]; Hancock v. Holbrook, 119 U. S. 586 fendant," but only by "any defendant being [30: 538]; Young v. Parker, 132 U. S. 267, such citizen of another state;" and not upon 270, 271 [33: 352, 353]. petition to the state court and the mere affidavit of the petitioner to his belief in prejudice or local influence, but upon petition to the circuit court of the United States and "when it shall be made to appear to said circuit court" that prejudice or local influence exists. conflicting decisions in the circuit courts, and upon which we are not now required to express a definitive opinion. The Act of March 3, 1875, chap. 137, § 2, authorized any suit in a state court"in which there shall be a controversy between citizens of different states" to be removed by "either party" into the circuit court of the United States; and added this clause: "and when in any suit mentioned in this section there shall Whether this Act permits one of two or be a controversy which is wholly between more defendants to remove any case which he citizens of different states, and which can be could not have removed under earlier statfully determined as between them, then ei-utes is a question upon which there have been ther one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States." 18 Stat. at L. 470. Beyond doubt, the existing Act, like every Under that statute, it has been uniformly Act which *preceded it, does not auth- [198 held that, in order to justify a removal of orize one defendant to remove a suit into the the suit because of "a controversy which is circuit court of the United States from a state wholly between citizens of different states," court, upon the ground of prejudice or local the whole subject-matter of the suit must be influence between himself and other defendcapable of being finally determined between ants. The whole object of allowing a defendthem, and complete relief afforded as to the ant to remove a suit or controversy into the cir separate cause of action, without the presence cuit court of the United States is to prevent of other persons originally made parties to the plaintiff from obtaining any advantage the suit; and that when there was but one against him by reason of prejudice or local indivisible controversy between the plain- influence. Unless such prejudice or influence tiffs and the defendants, as in the case of a in favor of the plaintiff is alleged and proved, suit for partition, the suit could not be re- he cannot be prevented, under the clause of moved by one of several plaintiffs or defend- the existing statute upon this subject, from ants. Blake v. McKim, 103 U. S. 336 [26: prosecuting his suit against all the defend563]; Torrence v. Shedd, 144 U. S. 527 [36:ants in the court in which he originally 5281; Bellaire v. Baltimore & O. R. Co. 146 brought it. U. S. 117 [36: 910]; Wilson v. Oswego Tip. The present case was a suit for partition, ante, p. 70; Merchants Cotton Press & S. Co. to which all the plaintiffs and all the defendv. Insurance Co. of N. A. unte, p. 195. ants were indispensable parties. Torrence v. 197] *The Act of 1875 contained nothing Shedd, 144 U. S. 527 [36: 528]: De la Vega corerning removal on the specific ground of v. League, 64 Tex. 205; Stark v. Carroll, 66 prejudice or local influence, and did not re-Tex. 393. Each and all of the defendants peal clause 3 of section 639 of the Revised Statutes. American Bible Society v. Grore, 101 U. S. 610 [25: 847]; Iless v. Reynolds, contested the rights which the plaintiffs asserted; the defendant Brady was a citizen of the same state as some of the plaintiffs; and the only prejudice and local influence which he alleged as a ground of removal was between himself and other defendants. For this reason, independently of other reasons urged against the validity of the removal, Brady's removal of the cause into the circuit court of the United States was not warranted by any of the acts of Congress on which he relied. Brady, having wrongfully removed the case into the circuit court, must pay the costs in that court, as well as the costs of the three appeals to this court. Mansfield, C. & L. M. R. Co. v. Siran, 111 U. S. 379 [28: 462]; Torrence v. Shedd, and Tennessee v. Union & P. Bank, above cited. Appeal of the plaintiffs sustained, and decree reversed, with costs of the three appeals against Brady; and case remanded to the circuit court with directions to render judg. ment against him for costs in that court, and to remand it to the state court. stated in the previous findings, such findings are Argued Jan. 24, 1894. Decided April 30, 1894. APPEAL from a decree of the Circuit Court of the United States for the Southern District of New York, reversing the decree of the District Court of that district, and dismissing a libel filed by the Bradley Fertilizer Company against the schooner Edwin I. Morrison to recover for the damage done to a cargo of guano by sea water taken aboard on her voyage from Weymouth, Massachusetts, to Savannah, Georgia. Reversed, and cause remanded with direction to enter a decrce for libelant for the amount found due by the district court with interest and costs. See same case below, 27 Fed. Rep. 136, 40 Fed. Rep. 501. Statement by Mr. Chief Justice Fuller: This was a libel filed by the Bradley Fertilizer Company in the District Court of the United States for the Southern District of New York against the schooner Edwin I. Morrison, *to recover for the damage done to a [200 cargo of guano by sea water taken aboard on January 10, 1884, on her voyage from Weymouth, Massachusetts, to Savannah, Georgia. The libe! set up the charter, the loading, the bills of lading, the sailing from Weymouth, the arrival at Savannah, and the delivery of Charter of vessel-perils of the sca-damage to the cargo in a damagel condition; and also al cargo-findings of the court. 1. Where by the charter party it is agreed on the part of the vessel that she shall be tight, staunch, strong, and in every way titted for the voyage, the owner is bound to see that his vessel is seaworthy and suitable for the service for which she is to be employed, while no obligation to look cargo; if there be a defect, although latent and after the matter rests upon the owner of the leged that the schooner, when she left Weymouth and before, "was not tight, staunch, strong, and every way fitted for said voyage as agreed;" "and that the cap was gone from off the bilge pump hole on the port side of said schooner, or was then so loosely, insecurely and negligently fastened and screwed that the same worked and came off without any danger of the sea intervening, whereby said vessel was unseaworthy and unfit for said voy2. Where perils of the sea are excepted by the age, or after leaving port said cap was recharter-party the burden of proo is on the moved and not properly and securely replaced owner to show that the vessel was in good con- and screwed down, or was negligently and dition and suitable for the voy are at its ineoption, improperly loosened and left insecure by those and the exception does not exonerate him from in charge of said schooner, so that by the unhability for loss or damage from one of those seaworthiness of said schooner or by the negliperils to which his negligence, or that of his serv-gence and improper navigation of those in unknown to the owner of, he is not excused. charge of her, said cap came off from said pump hole without any danger of the sea," and that about seven feet of water was admitted through it into the hold and upon the the cargo. The answer admitted the charter, shipment, bills of lading, sailing, arrival, and delivery of the cargo in a damaged condition, and in excuse thereof alleged: "That on said voyage the said vessel encountered very rough and tempestuous weather, in consequence of which she shipped large quantities of water, and was greatly damaged by the seas, and it was found NOTE. As to liability for necessaries, supplies, and, As to lien of the contract of affreightment on the repairs to ship; liability for conduct and acts of mas-vessel, and for damages to goods, see note to The ter and mariners, see note to United States v. The Freeman v. Buckingham, 15: 341. Maiek Adhel, 11: 239. As to liability of carrier by water for loss or damage of goods, see note to Moore v. American Transp. Co. 16: 674. As to lien for repairs and necessaries for vessels. domestic and foreign; and for supplies, salvage and freight; proceedings in rem for, see notes to Blaine v. The Charles Carter, 2:636, The General Smith, As to lien for freight; who has, and how waived or 4: 609, and The Palmyra, 6: 531. lost, see note to Raymond v. Tyson, 15: 47. |