ants collecting checks except in the usual use that according to the bill they intend to way. The District Court dismissed the bill make of them will infringe the plaintiffs' for want of equity and its decree was affirm- rights. The defendants say that the holded by the Circuit Court of Appeals (Novem- er of a check has a right to present it to the ser 19, 1920). The plaintiffs appealed, set- bank upon which it was drawn for payment ting up want of jurisdiction in the District over the counter, and that however many Court and error in the final decree. *358 checks *he may hold he has the same right as to all of them and may present them all at once, whatever his motive or intent. They ask whether a mortgagee would be prevented from foreclosing because he acted from disinterested malevolence and not But the from a desire to get his money. word 'right' is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified. A man has at least as absolute a right to give his own money as he has to demand money from a party that has made no promise to him; yet if he gives it to induce another to steal or murder the purpose of the act makes it a crime.

[1, 2] We agree with the Court below that he removal was proper. The principal deendant was incorporated under the laws of the United States and that has been established as a ground of jurisdiction since Osborn v. Bank of the United States, 9 Wheat. 738, 6 L. Ed. 204; Pacific Railroad Removal Cases, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; Matter of Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558. We shall say but a word in answer to the appellants' argument that a suit against such a corporation is not a suit arising under those laws within section 24 of the Judicial Code of March 3, 1911, c. 231, 36 Stat. 1087 (Comp. St. § 991). The


contrary is established, and the accepted doctrine is intelligible at least since it is part of the plaintiffs' case that the defendant bank existed and exists as an entity capable of committing the wrong alleged and of being sued. These facts depend upon the laws of the United States. Bankers' Trust Co. v. Texas & Pacific Ry. Co., 241 U. S. 295, 306, 307, 36 Sup. Ct. 569, 60 L. Ed. 1010; Texas & Pacific Ry. Co. v. Cody, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1132. See further Smith v. Kansas City Title & Trust Co., 255 U. S. 180, 41 Sup. Ct. 243, 65 L. Ed. 577, February 28, 1921. A more plausible objection is that by the Judicial Code, § 24, sixteenth, except as therein excepted national banking associations for the purposes of suits against them are to be deemed citizens of the States in which they are respectively located. But we agree with the Court below that the reasons for localizing ordinary commercial banks do not apply to the Federal Reserve Banks created after the Judicial Code was enacted and that the phrase 'national banking associations' does not reach forward and include them. That

phrase is used to describe the ordinary commercial banks whereas the others are systematically called 'Federal Reserve Banks'. We see no sufficient ground for supposing that Congress meant to open the questions that the other construction would raise.

[3] On the merits we are of opinion that the Courts below went too far. The question at this stage is not what the plaintiffs may be able to prove, or what may be the reasonable interpretation of the defendants' acts, but whether the plaintiffs have shown a ground for relief if they can prove what they allege. We lay on one side as not necessary to our decision the question of the defendants' powers, and assuming that they act within them consider only whether the

A bank that receives deposits to be drawn upon by check of course authorizes its depositors to draw checks against their accounts and holders of such checks to present them for payment. When we think of the ordinary case the right of the holder is so unimpeded that it seems to us absolute. But looked at from either side it cannot be so. The interests of business also are recognized as rights, protected against injury to a greater or less extent, and in case of conflict between the claims of business on the one side and of third persons on the other lines have to be drawn that limit both. A man has a right to give advice but advice given for the sole purpose of injuring another's business and effective on a large scale, might create a cause of action.

Banks as

we know them could not exist if they could not rely upon averages and lend a large part of the money that they receive from their than a certain fraction of it will be demanddepositors on the assumption that not more ed on any one day. If without a word of falsehood but acting from what we have called disinterested malevolence a man by

persuasion should organize and carry into effect a run upon a bank and ruin it, we

cannot doubt that an action would lie. A similar result even if less complete in its


effect is to be *expected from the course that the defendants are alleged to intend, and to determine whether they are authorized to follow that course it is not enough to refer to the general right of a holder of checks to present them but it is necessary to consider whether the collection of checks and presenting them in a body for the purpose of breaking down the petitioner's business as now conducted is justified by the ulterior purpose in view.

If this were a case of competition in private business it would be hard to admit the

(41 Sup.Ct.)

Though the last shot fired by defendant, when attacked by deceased was intentional and apparently unnecessary, when subsequently conhis immunity, if it followed close upon the othsidered, defendant would not necessarily lose ers, while the heat of the conflict was on, and if defendant believed that he was fighting for his life.

Justification of self interest considering the 4. Homicide 117-Unnecessary shot in heat now current opinion as to public policy ex- of conflict does not necessarily prevent impressed in statutes and decisions. But this munity. is not a private business. The policy of the Federal Reserve Banks is governed by the policy of the United States with regard to them and to these relatively feeble competitors. We do not need aid from the debates upon the statute under which the Reserve Banks exist to assume that the United States did not intend by that statute to sanction this sort of warfare upon legitimate creations of the States.

Decree reversed.

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4. Indictment and information 86(2)-Allegation as to jurisdiction of United States over scene of crime held sufficient.

2. Homicide 244(1), 300(3)—Failure to retreat not categorical proof of guilt; instruction held improper.

Mr. Justice Pitney and Mr. Justice Clarke dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Fifth Circuit.

Robert B. Brown was convicted of murder in the second degree, and his conviction was affirmed by the Circuit Court of Appeals (257 Fed. 46, 168 C. C. A. 258), and he brings certiorari. Reversed.


*Messrs. James R. Dougherty, of Beeville, Tex., E. C. Brandenburg, of Washington, D. for petitioner. C., and W. E. Pope, of Corpus Christi, Tex.,


*Mr. Assistant Attorney General Stewart, for the United States.


*Mr. Justice HOLMES delivered the opin

Under Penal Code, § 272 (Comp. St. 8 10445), specifying the places to which such Code applies, an indictment alleging that a homicide was committed on land acquired from the state by the United States for the ex-ion of the Court. clusive use of the United States for its public [1] The petitioner was convicted of murpurposes, and under the exclusive jurisdiction der in the second degree committed upon of the same, was sufficient, though not alleging one Hermis at a place in Texas within the that it was acquired for the erection of a fort, exclusive jurisdiction of the United States, magazine, arsenal, dockyard, or other needful building. and the judgment was affirmed by the Circuit Court of Appeals. 257 Fed. 46, 168 C. C. A. 258. A writ of certiorari was granted by this Court. 250 U. S. 637, 39 Sup. Ct. 494, 63 L. Ed. 1183. Two questions are raised. The first is whether the indictment is sufficient, inasmuch as it does not allege that the place of the homicide was acquired by the United States "for the erection of a fort, magazine, arsenal, dockyard, or other needful building," although it does allege that it was acquired from the State of Texas by the United States for the exclusive use of the United States for its public purposes and was under the exclusive jurisdiction of the same. Penal Code of March 4, 1909, c. 321, § 272, Third; 35 Stat. 1088

The failure of one killing another to retreat is a circumstance to be considered with all others in determining whether he went farther than he was justified in doing, but is not categorical proof of guilt, and it was error to charge that a party assaulted was always under the obligation to retreat so long as retreat was open to him provided he could do so without danger, and that unless retreat would have appeared to a man of reasonable prudence in defendant's position as involving danger he was not entitled to stand his ground, especially where defendant was at a place where he was called to be in the discharge of his duty in superintending excavation work.

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(Comp. St. § 10445); *Constitution, art. 1, § point we think it unnecessary to do more 8. In view of our opinion upon the second than to refer to the discussion in the Court below upon this.

[2] The other question concerns the instructions at the trial. There had been trouble between Hermis and the defendant for a long time. There was evidence that Hermis had twice assaulted the defendant with a knife and had made threats communi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

That has

been the decision of this Court. Beard v.. United States, 158 U. S. 550, 559, 15 Sup. Ct.. 962, 39 L. Ed. 1086. Detached reflection. cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him Rowe v. United States, 164 U. S. 546, 558, 17 Sup. Ct. 172, 41 L. Ed. 547. The law of

cated to the defendant that the next time, | sailant he may stand his ground and that one of them would go off in a black box. if he kills him he has not succeeded the On the day in question the defendant was bounds of lawful self defence. at the place above mentioned superintending excavation work for a postoffice. In view of Hermis's threats he had taken a pistol with him and had laid it in his coat upon a dump. Hermis was driven up by a witness, in a cart to be loaded, and the defendant said that certain earth was not to be removed, whereupon Hermis came toward him, the defendant says, with a knife. The defendant retreated some twenty or twenty-five feet to where his coat was and got his pistol. Hermis was striking at him and the defendant fired four shots and kill- Texas very strongly adopts these views as ed him. The judge instructed the jury among other things that "it is necessary to remember, in considering the question of self defence, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm." The instruction was reinforced by the further intimation that unless "retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm" the defendant was not entitled to stand his ground. An instruction to the effect that if the defendant had reasonable grounds of apprehension that he was in danger of losing his life or of suffering serious bodily harm from Hermis he was not bound to retreat was refused. So the question is brought out with sufficient clearness whether the


formula *laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights.

is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex. Cr. R. 28, 38, 89 S. W. 1068. Baltrip v. State, 30 Tex. App. 545, 549, 17 S. W. 1106.


[3, 4] *It is true that in the case of Beard he was upon his own land (not in his house,). and in that of Rowe he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defence by the old common law and were not appreciably more favorable than that the defendant here was at a place where he was called to be, in the discharge of his duty. There was evidence that the last shot was fired after Hermis was down. The jury might not believe the defendant's testimony that it was an accidental discharge. but the suggestion of the Government that this Court may disregard the considerable body of evidence that the shooting was in self defence is based upon a misunderstanding of what was meant by some language in Battle v. United States, 209 U. S. 36, 38, 28 Sup. Ct. 422, 52 L. Ed. 670. Moreover if the last shot was intentional and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others while the heat of the conflict was on, and if the defendant believed that he was fighting for his life.

It is useless to go into the developments of the law from the time when a man who had killed another no matter how innocently had to get his pardon, whether of grace or of course. Concrete cases or illustrations stated in the early law in conditions very different from the present, like the reference to retreat in Coke, Third Inst. 55, and elsewhere, have had a tendency to ossify into The Government presents a different case. specific rules without much regard for rea- It denies that Hermis had a knife and even son. Other examples may be found in the that Brown was acting in self defence. Notlaw as to trespass ab initio, Commonwealth withstanding the repeated threats of Hermis v. Rubin, 165 Mass. 453, 43 N. E. 200, and and intimations that one of the two would as to fresh complaint after rape. Common- die at the next encounter, which seem hardwealth v. Cleary, 172 Mass. 175, 51 N. E. 746. ly to be denied, of course it was possible for Rationally the failure to retreat is a cir- the jury to find that Brown had not sufficicumstance to be considered with all the ent reason to think that his life was in others in order to determine whether the de- danger at that time, that he exceeded the fendant went farther than he was justified limits of reasonable self defence or even that in doing; not a categorical proof of guilt. he was the attacking party. But upon the The law has grown, and even if historical hypothesis to which the evidence gave much mistakes have contributed to its growth it color, that Hermis began the attack, the inhas tended in the direction of rules consist-struction that we have stated was wrong. ent with human nature. Many respectable Judgment reversed.

writers agree that if a man reasonably be

lieves that he is in immediate danger of Mr. Justice PITNEY and Mr. Justice death or grievous bodily harm from his as- CLARKE dissent.

(41 Sup.Ct.)

(256 U. S. 395)
(Submitted Jan. 3, 1921. Decided May 16,
No. 547.

1. Bankruptcy 143(12)-Benefit of life in-
surance remains with bankrupt, except to
extent of cash surrender value.

Bankruptcy Act, § 70a (Comp. St. § 9654), relative to the property vesting in the trustee, shows a purpose to pass to the trustee whatever sum was available to the bankrupt at the time of bankruptcy as cash assets to be realized on surrender of a life insurance policy, but otherwise to leave to the insured the benefit of such insurance.

2. Bankruptcy 143(12)-When trustee did not demand change of beneficiary until after payment of proceeds, company not liable to trustee for surrender value.

Under Bankruptcy Act, § 70a (Comp. St. § 9654), while a life insurance policy, not in terms payable to the bankrupt, but which could be made so payable at his will by a simple declaration changing the beneficiary, must be regarded as assets, the trustee cannot, as against the company, demand that the surrender value be made assets by a change in beneficiary with out timely notice to the company of a demand for such a change, and where no such demand was made until after payment of the proceeds to the designated beneficiary, following the bankrupt's death, without notice of the bankruptcy, the company is not liable to the trustee for the cash surrender value.

On Writ of Certiorari to the Superior Court of the State of Pennsylvania.

Action by Elliott Frederick, trustee in bankruptcy of John E. Schmidt, against the Fidelity Mutual Life Insurance Company of Philadelphia. A judgment for defendant was affirmed by the Superior Court of Pennsylvania (75 Pa. Super. Ct. 77), and an appeal was refused by the Supreme Court of Pennsylvania, and plaintiff brings certiorari. Affirmed.

value of the policy at the time of the adjudication of bankruptcy. The court of common pleas gave judgment in favor of defendant; on appeal the Superior Court affirmed the judgment (75 Pa. Super. Ct. 77); the Supreme Court of the state refused an appeal, thereby making the judgment of the Superior Court final; and a writ of certiorari brings the case


The facts in brief are as follows: September 20, 1902, the insurance company issued a policy of insurance upon the life of John E. Schmidt in the sum of $1,000, payable upon surrender of the policy properly receipted, after acceptance of proof of death; payment to be made to his wife, Annie M. Schmidt, or, if he should survive her, then to his administrators, executors or assigns, subject to certain provisions, one of which was:

"The insured, with the written approval of the president or vice president, may upon the surrender of this policy, change the beneficiary, or with such approval it may be assigned."

December 19, 1912, a petition in involuntary bankruptcy was filed against Schmidt; on January 8th following he was duly adjudged a bankrupt; and one month later petitioner was elected and duly qualified as his trustee. The policy was not included in the schedule of assets, and petitioner had no knowledge of it until after the proceeds had been paid by the insurance company to the widow. Upon the date of the adjudication of bankruptcy the policy had a cash surrender value of $322. April 4, 1913, the bankrupt died, proof of the fact and cause of his death was duly made and accepted by the company, and May 7, 1913, it paid the face of the policy to the beneficiary named therein and took her


receipt therefor. Neither then nor at any time before had the company knowledge of the adjudication in bankruptcy, or notice that the trustee would claim the whole or any part of the policy.

The trustee's suit to recover the surrender value is grounded upon section 70a of the

See, also, 254 U. S. 625, 41 Sup. Ct. 15, 65 Bankruptcy Act (Act July 1, 1898, c. 541; 30 L. Ed.

Mr. Lowrie C. Barton, of Pittsburgh, Pa., for petitioner.

Mr. George Sutherland, of Washington, D.

-C., for respondent.

Mr. Justice PITNEY delivered the opinion of the Court.


Stat. 544, 565 [Comp. St. § 9654]), under which the trustee is vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, to rights and property not exempt, including:

"(3) Powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; * (5) property which prior to the filing John E. Schmidt having died pending bank- of the petition he could by any means have ruptcy, his trustee, the present petitioner, transferred or which might have been levied sued the insurance com*pany, respondent, in upon and sold under judicial process against him: Provided, that when any bankrupt shall the court of common pleas of Allegheny coun- have any insurance policy which has a cash ty, Pa., to recover the proceeds of a certain surrender value payable to himself, his estate, policy of life insurance, with interest from or personal representatives, he may, within the date of death. By an amended statement thirty days after the cash surrender value has Flaintiff limited his claim to the surrender' been ascertained and stated to the trustee by For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the company issuing the same, pay or secure | the surrender value be made assets of the esto the trustee the sum so ascertained and stat- tate, as by a change in beneficiary, without ed, and continue to hold, own, and carry such timely notice to the company of a demand for policy free from the claims of the creditors such a change; for the section in its very participating in the distribution of his estate words contemplates that the cash surrender under the bankruptcy proceedings, otherwise value shall have been "ascertained and stated the policy shall pass to the trustee as assets. to the trustee by the company issuing the policy."

* *


*In the present case, the company, having in good faith performed the contract according to its terms, without the notice that the contract called for as a condition of changing the terms, cannot be called upon to make the further payment demanded by the trustee. Frederick v. Metropolitan Life Ins. Co., 239 Fed. 125, 152 C. C. A. 167. Judgment affirmed.

[1, 2] This provision shows it was the purpose of Congress to pass to the trustee whatever sum was available to the bankrupt at the time of bankruptcy as cash assets to be realized on surrender of the policy, but otherwise to leave to the insured the benefit of his life insurance. Burlingham v. Crouse, 228 U. S. 459, 473, 33 Sup. Ct. 564, 57 L. Ed. 920, 46 L. R. A. (N. S.) 148; Everett v. Judson, 228 U. S. 474, 33 Sup. Ct. 568, 57 L. Ed. 927, 46 L. R. A. (N. S.) 154. In two recent cases, Cohen v. Samuels, 245 U. S. 50, 53, 38 Sup. Ct. 36, 62 L. Ed. 143, and Cohn v. Malone, 248 U. S. 450, 39 Sup. Ct. 141, 63 L. Ed. 352, we have held that the surrender value of a policy not in YEE WON v. WHITE, Immigration Com'r. terms payable to the bankrupt, but which could be made so payable at the bankrupt's (Submitted April 20, 1921. Decided May 16,


will by a simple declaration changing the *beneficiary, must be regarded as assets to which the trustee in bankruptcy was entitled. In each case the question arose while the policy was in the bankrupt's possession unmatured, and the interest of the insurance company was not affected. Here the question is whether, after the death of the insured and payment of the stipulated amount to the beneficiary named in the policy in strict conformity to its terms, without notice of the bankruptcy, or claim made by the trustee, there is a liability on the part of the insurance company to pay to the trustee the surrender value that, on complying with the terms of the policy, he might have demanded.

It is not enough to sustain the trustee's claim to say that the filing of the petition in bankruptcy was a caveat to all the world, and in effect an attachment and injunction, and that on adjudication title to the bankrupt's property became vested in the trustee. Mueller v. Nugent, 184 U. S. 1, 14, 22 Sup. Ct. 269, 46 L. Ed. 405. The asserted right of property arose out of a contract under which the insurance company had rights as well as the insured. The company's contract was to pay the stipulated amount to the beneficiary first ramed on receiving proof of death of the insured, unless the latter should have surrendered the policy and, with the written approval of the head officer of the company, have changed the beneficiary. The requirement of such surrender and approval was for the protection of the company, so purposed that at least it should have notice before its


No. 209.

(256 U. S. 399)

1. Aliens 23 (2)-Chinese person becoming laborer after entry not entitled to entry of wife and children.

Under Act April 29, 1902, as amended by Act April 27, 1904, § 5 (Comp. St. § 4337), limitations on the immigration of Chinese lare-enacting, extending, and continuing prior borers, one entering the United States subsequent to the treaty with China of 1894 as a resident merchant's minor son, but subsequently acquiring the status of a laborer, is not entitled to have his wife and minor children, born in China and never residing elsewhere, admit


2. Aliens 24-Acts limiting immigration of Chinese laborers still in force notwithstanding expiration of treaty.

The legislation limiting the immigration or residence of Chinese laborers re-enacted, extended, and continued by Act April 29, 1902, as amended by Act April 27, 1904, § 5 (Comp. St. § 4337), is in force notwithstanding the exChina, prohibiting the coming of Chinese lapiration in 1904 of the treaty of 1894 with borers to the United States.

3. Aliens 24-Chinese laborers not specifically exempted are excluded.

The statutes limiting the immigration or residence of Chinese laborers excluded all Chilaborers except those specifically and definitely nese persons belonging to the class defined as exempted.

Mr. Justice Clarke dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Ninth


liability under the policy was modified. Section 70a of the Bankruptcy Act cannot be construed to give to the trustee in bankruptcy a Habeas corpus by Yee Won against Edright as against the company to demand that' ward White, as Commissioner of Immigra

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