Opinion of the Court.

defendant was not entitled to an acquittal as having acted in self-defence, 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 post. office.

If he armed himself for the purpose of pursuing 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 post office, 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-defence in the event of his being pursued and attacked, and if the circumstances occurring 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 post office, 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-defence, 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.

The court, in effect, said or the jury may, not unreasonably, have understood the court as declaring - that preparation, by arming, although for self-defence only, could not be followed, in any case, by manslaughter, if the killing, after such arming, was not, in fact, in necessary self-defence. Such we understand 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 of the law in arming himself for self

Statement of the Case.

defence, and if, without seeking, but on meeting, his adversary, on a subsequent occasion, he killed him, not in necessary self-defence, 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-defence.

The judgment is reversed and the cause remanded for a new trial.

HANRICK v. HANRICK.

HANRICK v. HANRICK.

BRADY v. HANRICK.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS.

Nos. 337, 338, 339. Argued and submitted April 3, 1894. — Decided April 30, 1894.

Under the act of March 3, 1887, c. 373, corrected by the act of August 13, 1888, c. 866, (as under earlier acts,) one of several defendants, being a citizen of the same State as a plaintiff, cannot remove a cause from a state court into the Circuit Court of the United States upon the ground of prejudice and local influence between himself and the other defendants.

A defendant, who wrongfully removes a cause from a state court into the Circuit Court, from whose decree appeals are taken by himself and other parties to this court, must, upon reversal of the decree by this court for want of jurisdiction in the Circuit Court, pay the costs in that court, as well as of all the appeals to this court.

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, intestate and without issue. His

Statement of the Case.

heirs, at the time when this suit was brought, were his sister Elizabeth; Nicholas Hanrick and others, the children of his deceased brother James; and Edward G. Hanrick, the only son of another deceased brother. The plaintiffs were Elizabeth and the children of James, and were some of them citizens of the State of New York, and the others subjects 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 plaintiffs 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.

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 J. Gurley, citizens of Texas. Brady, Sargent and Branch severally claimed interests in the lands under conveyances from the defendants O'Brien and wife; and Gurley claimed an undivided third of the land under a deed from Edward G. Hanrick pursuant to a contract made by Edward Hanrick in his lifetime. The amended petition prayed for a partition of the whole land, having due regard to any valid conveyances of interests therein, and to other equitable considerations.

On June 15, 1887, Brady, relying on section 639 of the Revised Statutes, and the acts of March 3, 1875, c. 137, and March 3, 1887, c. 373, filed in the state court a petition, supported by his affidavit, for the removal of the suit into the Circuit Court of the United States, on the ground that there was in the cause a controversy between himself, a citizen of New York, and the defendants Edward G. Hanrick, Branch and Gurley, citizens of Texas, and that by reason of prejudice and local influence, created by said Hanrick, Brady could not obtain justice in the courts of the State. Thereupon the state court ordered the case to be removed as prayed for.

VOL. CLIII-13

Opinion of the Court.

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 appear to the court that from prejudice and local influence the defendant Brady would not be able to obtain justice in the courts of the State; and adjudging that the cause be removed from the state court to the Circuit Court.

The pleadings were then, by order of the Circuit Court, reformed according to the equity rules of the court; and, after further proceedings and hearings, it was decreed that the parties were entitled to undivided interests in the land as follows: The plaintiffs, 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.

Mr. W. Hallett Phillips for appellant in No. 337. Mr. L. W. Goodrich also filed a brief for same.

No appearance for other parties.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The first question to be decided is whether the Circuit Court of the United States lawfully acquired and retained jurisdiction of the cas. The determination of this question really

Opinion of the Court.

depends upon the construction and effect of the act of March 3, 1887, c. 373, as corrected by the act of August 13, 1888, c. 866; but will be aided by referring to the earlier acts of Congress and to the construction of those acts by this court.

The Judiciary Act of September 24, 1789, c. 20, § 12, authorized "a suit" commenced in any state court "by a citizen of the State in which the suit is brought against a citizen of another State" to be removed by the defendant into the Circuit Court of the United States upon a petition filed in the state court. 1 Stat. 79. Under that statute, it was held to be essential to the jurisdiction of the Circuit Court that all the defendants should, be citizens of a different State from any of the plaintiffs. Strawbridge v. Curtiss, 3 Cranch, 267; Coal Co. v. Blatchford, 11 Wall. 172; Barney v. Latham, 103 U. S. 205, 209.

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, c. 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. 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 description, in the act of 1789, of "a suit between" such parties; that each term implied a proceeding in a court of justice by a party plaintiff against a party defendant; and consequently that all the defendants must be citizens. of other States from any of the plaintiffs, and that one of several defendants could not remove the suit. Case of Sewing Machine Cos., 18 Wall. 553, 585; Vannevar v. Bryant, 21 Wall. 41; Blake v. McKim, 103 U. S. 336, 338, 339.

The act of 1867 was substantially reenacted in clause 3 of