evidence, taken in connection with all the othering to the jury if they found the evidence to evidence in the case, but it seems to us en- be true, they ought to infer malice; but this is tirely clear that there was enough to ask the not such a case. jury to decide whether the killing was, upon all the evidence in the case, murder or manslaughter. The jury should have been permitted to determine the credibility of the evidence, as above detailed, and, if true, whether the effect of the conduct of the deceased in shooting, as he did, into the saloon, and considering all the circumstances of the casc, was such as naturally tended to and did excite in the mind of the plaintiff in error a sudden passion, either of rage or fear, and under the influence of which he fired the shot and killed the deceased wilfully and unlawfully, but at the same time without malice. If he thus fired the pistol, would not a jury have the right to say that the consequent killing was manslaughter instead of murder? Is it not clearly a question of fact for a jury to determine just what the mental condition of plaintiff in error was in regard to malice?

Manslaughter at common law was defined to be the unlawful and felonious killing of another without any malice, either express or implied. Whart. Am. Crim. Law (8th ed.) § 304. Whether there be what is termed express malice or only implied malice, the proof to show either is of the same nature, viz., the circumstances leading up to and surrounding the killing. The definition of the crime given by U. S. Rev. Stat. § 5341, is substantially the same. The proof of homicide, as necessarily involving malice, must show the facts under which the killing was effected, and from the whole facts and circumstances surrounding the killing the jury infers malice or its absence. Malice in connection with the crime of killing is but another name for a certain condition of a man's heart or mind, and as no one can look into the heart or mind of another, the only way to decide upon its condition at the time of a killing is to infer it from the surrounding facts, and that inference is one of fact for a jury. The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter. As we have al ready said, there may be a case of killing by 321] shooting where the *facts necessarily show malice, but, taking all the evidence in this case, we think it was one for the jury to determine upon the issue of manslaughter.

In this case, the plaintiff in error was fresh from an altercation with the deceased, the one having a knife and the other a pistol, and each had threatened to use his weapon upon the other. The plaintiff in error by reason of the previous circumstances, was laboring under great excitement at the saloon, and, as one of the witnesses says, "seemed to be mad." The deceased came up to the saloon door and at once shot his pistol into the room, and the bullet came within a few inches of the head of the plaintiff in error, who immediately fired his rifle in the direction of the deceased. The ruling of the trial judge in effect was to say that as matter of law there was nothing in all this evidence, if true, which would permit the jury to find that the plaintiff in error when he fired his rifle was so much under the influence of sudden passion, caused by these circumstances and by this assault upon him, as not to have been actuated by that malice which the law defines as a necessary ingredient in the crime of murder. Is it perfectly plain and clear, as a conclusion of law, that shooting at another under circumstances such as were detailed by *some of the witnesses in this[322 case can have no tendency to raise within the mind of the person thus assaulted such a sudden passion of anger or terror as to deprive his subsequent act of malice which is necessary to make it murder? If it is not to be so asserted as matter of law, then it becomes a question of fact in such case, and that question must be answered by the jury. Whether the witnesses told the truth in regard to such circumstances is not for the court to say, nor is it for the court to decide upon the weight to be given to them if proper for the consideration of the jury.

It is objected that while the evidence above set forth was proper to be submitted to the jury upon the issue of self-defense, it was not of that character to even raise an issue as to the grade of the crime, if the theory of self-defense were not sustained. We do not see the force of the objection. The fact that the evidence might raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. It might be argued to the jury, under both aspects, as an act of self defense and also as one resulting from a sudden passion and without malice. The jury might reject the theory of self defense, as they might say the shot from the pistol of the deceased had already been fired and the plaintiff in error had not been harmed, and, therefore, firing back was unnecessary and was not an act of self-defense. But why should the other issue be taken from the jury and they not be permitted to pass upon it as upon a question of fact?

In Brown v. United States, 159 U. S. 100 [ante, 90], Mr. Justice Harlan, when speaking of an affray in which the plaintiff in error was charged with having murdered a man, stated that "the verdict of guilty of manslaughter or murder should not have turned alone upon an inquiry as to the day in which the killing was done. The inquiry rather should have been, whether at the moment the defendant shot there were present such circumstances, taking all of them into consideration, including the mode of killing, as made the taking of the life of the deceased manslaughter and not mur- It seems to us quite plain that an assault der." Who is to make the inquiry, the court upon another by means of firing a pistol at or the jury under proper instructions from the him is naturally calculated to excite some kind court? There might be cases where the un- of passion in the one upon whom such an ascontradicted evidence was so clear and over-sault is made. It might be one of anger or it whelming of a deliberate purpose, involving might be terror. If either existed to a suffi. malice, that a court might be justified in stat-cient extent to render the mind of a person of

Claims in favor of Madison J. Julian, claimant, against the United States for fees as commissioner of the Circuit Court. Affirmed.

ordinary temper incapable of cool reflection, APPEAL from a judgment of the Court of it might be plausibiy claimed that the act which followed such an assault was not accompanied by the malice necessary to constitute the killing murder. Whether such a state of mind existed in this case, and whether the 323] plaintiff in error fired the *shot under the influence of passion and without malice, cannot be properly regarded as a question of law.

A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to man. slaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.

Statement by Mr. Justice Brown:

of the circuit court for the middle district of This was a petition for fees, as commissioner Tennessee.

but the only point in controversy before this The claim included a large number of items, court is, whether petitioner was entitled to 15 cents for each jurat or certificate, appended to depositions taken by him as such commissioner. The total number of jurats so appended was 238, and the total charge therefor was $35.70.

the government appealed.

The court of claims allowed this item, and

Mr. J. E. Dodge, Assistant Attorney General, for appellant.

Mr. George A. King for appellee.

Mr. Justice Brown delivered the opinion of the court:

It is also objected that as all the testimony is not set forth in the bill of exceptions, it must be assumed there was some which was given on the trial that would show there was no issue of manslaughter in the case. The evidence which has been returned does, in our opinion. show the existence of such an issue, and if This case involves the construction of that there were other and further evidence of a paragraph of U. S. Rev. Stat. § 847, which different nature, which is not in the bill of ex- allows to commissioners "for issuing any warceptions, the question as to which should be rant or writ, and for any other service, the credited was for the jury, and should not have same compensation as is allowed to clerks for been taken from it by the court. The plain-like services;" and the paragraphs of § 828, tiff in error may have been guilty of murder, there was certainly sufficient evidence on that issue to render it necessary to submit it to the jury. We have no power and no inclination to pass upon that question of fact. We only decide that the question as to the grade of the crime, whether murder or manslaughter, should have been submitted to the jury as well as the question of self-defense.

For the error in refusing to do so, the judg ment of conviction must be reversed, and the cause remanded to the court below, with instructions to grant a new trial.

324] UNITED STATES, Appt.,

v.

MADISON J. JULIAN.

(See S. C. Reporter's ed. 324, 325.)

Fees of commissioner.

A jurat or certificate appended to depositions taken by a commissioner of the circuit court, stating the fact that the witness appeared before him and was sworn to the truth of what he had stated, Stat. § 828, for which 15 cents may be charged by the commissioner by virtue of 8 847, allowing him the same compensation as a clerk for such serv

is a certificate within the meaning of U. S. Rev.

ices.

[No. 925.]

which allow to clerks "for taking and certifying depositions to file, 25 cents for each folio of 100 words;" and "for making any record, certificate, return, or report, for each folio, 15 cents."

In the case of United States v. Ewing, 140 U. S. 142, 146, ¶ 4 [35: 388, 390], and in United States v. Barber, 140 U. S. 164, 165, T1 [35: 396, 397], we held a commissioner to be entitled to 25 cents per *folio for drawing[325 complaints in criminal cases, as for "taking and certifying depositions to file," where the local practice required a magistrate to reduce the examination of the camplaining witnesses to writing. In the latter case (p. 166 [397]) we also held that the petitioner should be allowed a fee of 10 cents for each oath administered in connection with these complaints, and 15 cents for each jurat, as for a certificate; and also (p. 168, 7 [398]) that the charge per folio for depositions taken on examinations of prisoners was allowable, upon the same principle upon which we allowed it for preparing complaints. It follows from this that the commissioner is also entitled to 15 cents per folio for the jurat to each deposition.

The certificate referred to in the words "taking and certifying depositions to file," is that required by §§ 863-866 and 873, to be appended to depositions taken de bene esse in civil cases depending in the district or circuit court, which includes the circumstances with reference to the witness authorizing his deposition to be taken; the official character of the person taking it; the proof of reasonable notice to the opposite party; the fact that the

Submitted March 16, 1896. Decided April 13, witness was cautioned and sworn to testify to

1896.

the whole truth, and other similar requirements. NOTE.-A8 to extra pay or compensation to officers It was probably more particularly with reference to this class of depositions that the fee

see note to United States v. Macdaniel, 8: 587.

"for taking_and certifying depositions" was inserted. The certificate referred to is always appended to depositions or a series of depositions taken de bene esse, is often of considerable length, and is required by repeated rulings of this and the circuit courts. Bell v. Morrison, 26 U. S. 1 Pet. 351 [7: 174]; Cook v. Burnley, 78 U. S. 11 Wall. 659 [20: 29]; Harris v. Wall, 48 U. S. 7 How. 693 [12: 875]; Whitford v. Clark County, 119 U. S. 522 [30: 500]; Tooker v. Thompson, 3 McLean, 92; Voce v. Lawrence, 4 McLean, 203.

The jurat is not a certificate to a deposition in the ordinary sense of the term, but a certificate of the fact that the witness appeared before the commissioner, and was sworn to the truth of what he had stated. We think the design of the statute was to allow a separate fee therefor.

Statement by Mr. Justice Brown: This was a bill in equity filed by the firm of Fechheimer, Goodkind, & Co., against Justus Hollander, a judgment debtor, Samuel Bieber, his assignee, and a number of preferred creditors under such assignment, alleging that the assignment was fraudulent and void, and pray ing that Hollander might be required to dis close the amount of his indebtedness to each of his preferred creditors; the amount of goods purchased by him immediately prior to his failure, and the names of the persons from whom he purchased; the amount of his indebtedness to each of his creditors before making such purchases; the amount and character of goods he had in stock prior to his last purchases, and sundry other particulars; the amount of property turned over to Bieber under the assignment; and also praying for the

The judgment of the court of claims is there-appointment of a receiver; the setting aside of fore affirmed.

An appeal to the Supreme Court of the United States from a decree of the supreme court of the District of Columbia setting aside a fraudulent and void assignment for creditors, and ordering payment of a judgment held by the plaintiff, and also remanding the case for further proceedings. must be dismissed where such judgment is for $1,000 only, besides interest and costs, although plaintiff sought payment of other claims making an aggregate of more than $5,000, which he might be allowed to prove in the subsequent proceedings, the amount of which claims could not be fixed until those proceedings were had.

the assignment; the payment of the plaintiffs' claim, and an injunction against the defendant Bieber from further proceeding under the assignment.

The bill set forth, as the basis of plaintiffs' right to sue, an indebtedness in the sum of $1,000, by judgment recovered in the supreme court of the District of Columbia, upon which execution had been issued and returned nulla bona, a note for $1,000, and goods purchased to the amount of $1,846.50.

Demurrers were filed to this bill by Bieber and certain of the preferred creditors, which were sustained, and the bill *dismissed. [327 Upon appeal to the general term the decree of the special term dismissing the bill was reversed, and the case remanded for further proceedings. Answers were subsequently filed by the several defendants, and testimony taken; and upon a hearing upon pleadings and proofs the bill was again dismissed, and an appeal taken to the general term, which again reversed the decree of the special term, declared the assignment to be fraudulent and void, and decreed that the complainants recover from the defendant Bieber the amount of their judgment set out in the bill of complaint, together with their costs, to be taxed by the clerk, and that the case be remanded to the special term for further proceedings. From this decree defendant appealed to this court.

Messrs. Leon Tobriner and A. S. Worthington for appellants.

Messrs. James Francis

APPEAL from a decree of the Supreme Court Henry E. Davis for appellee.

of the District of Columbia reversing the decree of the Special Term of that court, and declaring an assignment fraudulent and void, and decreeing that the complainants, Martin S. Fechheimer et al., recover from the defendant Samuel Bieber the amount of a judgment of complainants rendered against Justus Hollander, the assignor of Bieber, both of whom were defendants, together with the complainants' costs. Dismissed.

See same case below, 6 Mackey,512,21 D.C.76. NOTE.-As to amount necessary to give jurisdiction in circuit court cases prior to act of 1875; amount necessary since act of 1875; amount in dispute,-see note to Schunk v. Moline, M. & S. Co. 87: 256.

Smith and

Mr. Justice Brown delivered the opinion of the court:

It is clear that this appeal must be dismissed for the want of jurisdiction. The decree from which the appeal was taken declares the assignment from Hollander to the defendant Bieber to be fraudulent and void as against the have and recover from the said defendant Biecomplainants, and "that said complainants do ber the amount of their judgment set out in the bill of complaint, together with their costs in this cause, to be taxed by the clerk; and it is further ordered that this cause be remanded

to the special term for further proceedings." | GREAT WESTERN TELEGRAPH COM.

The amount of the judgment referred to in the decree was $1,000, with interest at 7 per cent from February 15, 1886, and costs, and the total amount due thereon at the time the decree was rendered was but $1,454.11.

It is true that the bill alleged a further indebtedness upon a note for $1,000 and an open account of $1,846.50; and it is claimed that at the time the decree was rendered there was due 328] *upon these two items the sum of $3,778.16, which, added to the amount due upon the judgment, made the total amount due at the time of the decree $5,232.27.

PANY, Piff. in Err.,

The denial by a state court of conclusive effect

to an order of assessment on shareholders made by a court in another state presents a Federal question for review by the Supreme Court of the United States; such Federal question being whether the state court thereby declined to give full faith and credit to a judicial proceeding of a court of another state.

shareholders to set aside a contract with a corporation and compel the issue of shares, and new directors have been elected in accordance with the decree, a bill filed by other shareholders for a receiver, charging fraud upon such officers, although called a supplemental bill, begins a new litigation in which the decree will not be binding upon parties to the original suit unless they have notice of the latter proceeding.

The whole basis of the decree, however, was the judgment for $1,000, which was the amount for which the general term directed a 1. recovery. It is true that it also decreed the assignment to be void and remanded the case for further proceedings, that upon such further proceedings the court might direct an account to be taken and the property to be divided generally among the creditors, and that upon such accounting the plaintiffs might be admit-. After full relief has been given in a suit by ted to prove the full amount of their claim. This amount, however, is not one directly involved in the decree, and the law is well settled that the jurisdiction is to be determined by the amount directly involved in the decree appealed from, and not by any contingent demand which may be recovered, or any contingent loss which may be sustained by either one of the parties through the probative effect of the decree, however direct its bearing upon such contingency. New England Mortg. Secur. Co. v. Gay, 145 U. S. 123 [36: 646]. In that case, which was an action in assumpsit upon promissory notes, there had been a finding by a jury that the transaction was usurious. The amount involved in the particular suit was less than $5,000, but the effect of the judg-The running of the statute of limitations ment under the laws of Georgia was to invalidate a mortgage given as security upon property worth over $20,000. It was held that, notwithstanding such indirect effect, this court had no jurisdiction, the amount directly in dispute being only the usurious sum. the prior authorities upon the point are cited in this case.

But again: If the decree appealed from be a final decree at all, it is final only for the amount of the judgment. If it be regarded as a decree for the whole amount of the plaintiffs' claim against Hollander, then it is clearly not a final decree, since the case was remanded for further proceedings, and until those proceedings were had, the amount of such indebtedness could not be fixed in such manner as to give this court jurisdiction of an appeal, and was purely conjectural upon the court finding that amount to be due. Union M. L. Ins. Co. v. Kirchoff, 160 U. S. 374 [ante, 461]. This con329] clusion is not the less irresistible from the fact that the note and open account were reduced to judgment after the bill was filed, since this judgment was not made the basis of the bill, and the finding in the decree is restricted to the amount of the first judgment of $1,000.

The appeal must therefore be dismissed.

3.

Sustaining a defense of the statute of limitations to an action for assessments upon stock ordered by a court in another state does not deny to the judicial proceeding in the other state the full faith and credit to which it was entitled, as such order for assessments does not constitute a judgment against the shareholders.

against an action to enforce an assessment on a subscription to stock of a corporation is not in Iowa suspended by delay in making the assessment, when a right to recover would arise by making a demand or giving a notice.

NOTE.-As to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4: 97; Matthews v. Zane, 2: 654; and Williams v. Norris, 6: 571.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws,-see notes to Hart v. LamBuckingham, 12: 169. phire, 7: 679, and Commercial Bank of Cincinnati v.

As to jurisdiction of Federal over state courts; necessity of Federal question; what constitutes Federal question, see note to Hamblin v. Western Land Co. 37: 267.

As to what statute of limitations governs; effect of new statutes; lex fori, and not lex loci, governs,—see note to Townsend v. Jemison, 13: 194.

As to when taxation of stock or shares in corpora

tion impairs obligation of contracts,-see note to Providence Bank v. Billings, 7: 939.

and dealings with corporation,-see note Koehler v. As to fiduciary position of directors; their contracts Black River F. I. Co. 17: 339.

As to individual liability of stockholders for corporate debts, see note to Hatch v. Dana, 25: 885.

6. Limitation of actions is governed by the lex | subscribed by the undersigned shall be issued fort, and is controlled by the legislation of the to them as full-paid stock by the said com

state in which action is brought as construed by the highest court of that state, even if the legisT. C. Snow is appointed agent to solicit lative act or the judicial construction differs from stock and receive only the first instalment of that prevailing in other jurisdictions. 5 per cent (50 cents on a share) at the time of subscription. J. SNOW, Secretary.

6. The time when a cause of action accrues under a state statute is not a Federal question, but is a local question, on which the decisions of state courts cannot be reviewed by the Supreme Court of the United States.

Argued December 6, 9, 1895. Decided April 13, on their subscriptions, filed a bill in equity in the