any limitation by a state on the making of contracts is a restraint upon the power of a national bank within the state to make such contracts; but the question which we determine is whether it is such a regulation as violates the act of congress. As well might it be contended that any contract made by a national bank within a state in violation of the state laws on the subject of minority or coverture was valid because such state laws were in conflict with the act of congress, or impaired the power of the bank to perform its functions. Indeed, reduced to its last analysis, the position here assumed by the plaintiffs in error amounts to the assertion that national banks, in virtue of the act of congress, are entirely removed, as to all their contracts, | from any and every control by the state law. The argument that the concession of a right on the part of a state to forbid the taking of real estate by a national bank for an antecedent debt, under any circumstances, implies the existence of a power in the state to forbid such taking in all cases, begs the question, and amounts simply to a restatement of the proposition already answered. As long since settled in the cases already referred to, the purpose and object of congress in enacting the national bank law was to leave such banks, as to their contracts in general, under the operation of the state law, and thereby invest them as federal agencies with local strength, while at the same time preserving them from undue state interference wherever congress, within the limits of its constitutional authority, has expressly so directed, or wherever such state interference frustrates the lawful purpose of congress, or impairs the efficiency of the banks to discharge the duties imposed upon them by the law of the United States. It is said that section 98 of the Massachusetts statute is in conflict with the statutes of the United States in so far as it provides that, "If such sale, assignment, transfer or conveyance is not made in the usual and ordinary course of business of the debtor, that fact shall be prima facie evidence of such cause of belief"; that is, the belief on the part of the creditor of the insolvency of the debtor by whom the transaction was made. The reasoning is that, as the United States law allows the taking by a bank of real estate for an antecedent debt, and the state statute makes such taking of real estate prima facie evidence of a reasonable belief on the part of the bank of the insolvency of the debtor from whom the real estate is so taken, therefore the state law violates the national bank law, since it attributes to the doing of the act which the national bank law authorizes, a presumption which virtually annuls the contract unless proof be made to the contrary. But this view gives to the words "ordinary course of business" in the state statute a strained and unreasonable construction. The state statute does not provide that the mere fact that a security is taken for an antecedent debt renders the contract one not in the actual course of the debtor's business, thereby engendering the presumption of knowledge on the part of the creditor, but affixes such presumption only to cases where the particular nature of the dealings between the parties is such as to make the contract not one in the actual course of business, from which fact the statutory presumption arises. However, this objection does not arise on the record before us, since the supreme court of Massachusetts held that the effect of the charge of the trial court was substantially to instruct the jury that, before the plaintiff in the entry suit could recover, he must satisfy the jury by a preponderance of evidence that Hall, at the time of the conveyance, was insolvent. The claim that the security vested in the bank by the conveyance of the land is taken away from it in violation of the United States law, because, under the Massachusetts law, a contract by a debtor giving a fraudulent preference to one creditor over another is voidable, and not void, is without merit. This contention concedes that, if the state law rendered the transaction void, there would be a valid exercise of state authority. But the power to do the greater necessarily carries with it the right to do the lesser. Nor is there anything in the opinion of this court in Davis v. Bank, supra, which supports the argument of the plaintiffs in error. There the conflict between the state and the federal law was found to be express and irreconcilable, bringing that case, therefore, under the exception to the general rule. The opinion carefully confined the ruling there made to such a case, so as to render it inapplicable in a case like the one now before it. It said: "It is certain that, in so far as not repugnant to acts of congress, the contracts and dealings of national banks are left subject to the state law, and upon this undoubted premise, which nothing in this opinion gainsays." And the whole opinion was qualified by this language: "Nothing, of course, in this opinion is intended to deny the operation of general and undiscriminating state laws on the contracts of national banks, so long as such laws do not conflict with the letter or the object and purposes of congressional legislation." *360 Finding no conflict between the special power conferred by congress upon national banks to take real estate for certain purposes and the general and undiscriminating law of the state of Massachusetts subjecting the taking of real estate to certain restrictions, in order to prevent preferences in case of insolvency, we conclude that the judgments of the supreme court of the state of Massachusetts were right,. and they are, therefore, in both cases affirmed. 198. (164 U. S. 319) CITIZENS BANK OF LOUISIANA v. COURTS-JURISDICTION-ADDING DISTINCT CLAIMS 1. Jurisdiction cannot be conferred on a court to enjoin the collection of taxes assessed in several parishes by joining in one bill, against the different collectors, the whole amount of such taxes, the separate assessments not being sufficient to give jurisdiction. 2. Where it is sought to enjoin the collection of taxes for certain years, and there is evidence of the amount of taxes for but one of such years, it will not be assumed, to make up the jurisdictional amount, that a like tax was assessed for each of the other years. 3. In a suit by a bank to enjoin the collection of taxes for certain years on property claimed to be exempt, the amount of the tax being insufficient to give jurisdiction, the fact that the value of the exemption during the continuance of the charter of the bank will exceed the jurisdictional amount will not give jurisdiction. 4. Where the court has dismissed, for want of jurisdiction, a bill to enjoin the collection of taxes, it has no power to decree the payment of costs and counsel fees allowed by statute. Appeal from the Circuit Court of the United States for the Western District of Louisiana. In March, 1893, the Citizens' Bank of Louisiana, a banking corporation created by the legislature of Louisiana, filed a bill of complaint in the circuit court of the United States for the Western district of Louisiana, against several defendants, who were sheriffs, respectively, of a number of parishes in that district, seeking to enjoin the defendants from enforcing the payment of taxes alleged to be due from the bank on lands owned by it in the several parishes. The main allegation of the bill was that the bank was, by the terms of its charter, exempt from taxation of every kind on its capital and property, and that certain specific and subsequent statutes of the state of Louisiana, by virtue of whose provisions the defendants were proposing to enforce the payment of taxes, would, if carried into effect, operate to impair the contract between the bank and the state, contrary to the tenth section of the first article of the constitution of the United States. The taxes which it was alleged it was the purpose of the defendants to assess and collect were for state and parish taxation for the years 1889, 1890, 1891, and 1892. Restraining orders were issued against the several defendants. Afterwards, in May, 1893. an amended bill of complaint was filed by the bank against the same defendants, alleging that since the granting of the restraining orders, and pending the disposition of the case, certain named assessors of the said several parishes were proceeding to list for assessment and taxation for the year 1893 the property of the bank situated in the said parishes, and praying that the said assessors might be subpoenaed to appear and answer said original and amended bill, and to abide the decrees of the court. Restraining orders were likewise issued under this amended bill. On July 17, 1893, the defendants filed a general demurrer to both bills, and on the same day filed a plea to said bills, alleging that the taxes levied on the property of the complainant did not, in any one of the parishes named in the bill, amount to the sum of $2,000, and because such taxes so levied were payable to and levied for the state, the respective parish, and the levee board of the levee district in which such parish was situated, and alleg ing that the assessors and tax collectors of each of said parishes could not be joined for the purpose of giving the circuit court jurisdiction. The defendants also filed an answer, setting up various matters on which they contended that the bank's exemption from taxa tion was no longer operative. The demurrer was, after argument, overruled. Replications to the plea and answer were filed. The complainant put in evidence the original charter of the bank, and several acts of the legislature amendatory thereof; the revenue act of the legislature for the year 1890; and extracts from the assessment rolls of the several parishes named in the original and amended bill, showing the property owned by the bank, and the amount of taxes assessed thereon. The defendants put in evidence certificates from the respective parishes, showing the property owned by the bank, and the amount of taxes assessed thereon. 321 22 On November 22, 1893, after argument, the* court entered a decree sustaining the plea to the jurisdiction, and dismissing the bill at complainant's costs. The decree further ordered that a fee should be allowed the solicitor of the defendants, amounting to 10 per cent. of the taxes sought to be enjoined in the bill, viz. the sum of $317.44, to be paid by complainant as part of the costs in the case. From this decree an appeal was prayed and allowed to this court. A certificate was duly signed by the judge of the circuit court, setting forth that the question decided was solely that raised by the plea to the jurisdiction of the court, and directing that copies of the bill, the exhibits showing the taxes involved, and the property on which the taxes were levied, and the valuation of said property, and of the plea and decree, should be attached to the certificate. Wm. A. Maury, for appellant. M. J. Cunningham, A. H. Leonard. and Alex. Porter Morse, for appellees. Mr. Justice SHIRAS, after stating the facts as above, delivered the opinion of the court. The first assignment of error questions the correctness of the decree of the court in sustaining the plea to the jurisdiction and dismissing the bill. The bill alleged that the defendants were about to assess and collect state and parish taxes for the years 1889, 1890, 1891, and 1892, *323 *322 and the amended bill alleged a similar purpose as to taxes for 1893. Neither bill contained a specific allegation as to the amount of the assessment or taxes for any one parish, but averred that the taxes so assessed exceeded, exclusive of interest and costs, the sum of $2,000. This must be understood to mean that the aggregate amount of the taxes for the several parishes exceeded $2,000, and the theory of that part of the bill evidently was that the amount involved, in order to confer jurisdiction on the circuit court, could be reached by adding together the taxes for the several parishes. But for reasons given in the recent cases of Walter v. Railroad Co., 147 U. S. 370, 13 Sup. Ct. 348, and Railroad Co. v. Walker, 148 U. S. 391, 13 Sup. Ct. 650, jurisdiction cannot be conferred on the circuit court by joining in one bill against distinct defendants claims no one of which reached the jurisdictional amount. It is now contended that as it appears in the extract from the assessment roll for the year 1892 that the tax for that year assessed, and in the hands of John S. Young, sheriff for the parish of Caddo, for collection, amounted to upwards of $900, it can be assumed that the taxes for the years 1889, 1890, and 1891 were for similar amounts, and thus, in the case of that parish, at least, that jurisdiction was shown. But as the facts showing jurisdiction do not affirmatively appear in the bill, and as, for some reason that does not appear, the proof was restricted to the year 1892, we do not think the defect is supplied by such a conjecture. It is further agreed that jurisdiction may be seen in the averment of the bill that the value of the exemption of the bank's property during the continuance of its charter exceeds $2,000 for each parish. But the answer to this is that this is not a suit to exempt property from taxation permanently. The purpose of the bill is to restrain certain tax assessors and tax collectors from collecting taxes for specific years, and, if the amount of such taxes does not confer jurisdiction, it is, from the nature of things, impossible for a court to foresee what, if any, taxes may be assessed in the future. It is, however, suggested that as the allegations of the bill and the evidence adduced to sustain the plea leave it uncertain whether, if the facts were made fully to appear, jurisdiction might not be maintainable, this court should reverse the decree in order to afford an opportunity to the complainant to make it appear, by competent evidence, what were the amounts of the taxes assessed and levied for the whole four years, and also for the year 1893 covered by the amended bill; and reference is made to Railroad Co. v. Walker, 148 U. S. 392, 13 Sup. Ct. 650, a case somewhat similar to the present, where such a course, it is said, was followed. We do not feel warranted to reverse the decree of the court below on such a view, but as we are constrained to reverse the decree, for reasons presently to be stated, we shall leave it to the court below to exercise its own discretion in the matter of further proceedings of the kind suggested. Error is assigned to the action of the court decreeing that the complainant should pay the costs, including a fee of upwards of $300 to the defendants' counsel. As a general rule, an appeal will not lie in a matter of costs alone. But such appeals have been sustained in particular circumstances, as, for instance, where the costs have been directed to be paid out of a trust fund. In Trustees v. Greenough, 105 U. S. 528, this court said, through Mr. Justice Bradley, that the objection to an appeal on the ground of its being from a decree for costs only is untenable. However, in the present case the appeal was not taken from the decree on the sole ground that costs were wrongfully awarded, and, as the entire decree is before us, it is competent for us to consider whether, when a circuit court dismisses a suit for want of jurisdiction, it can give a decree for costs, including a fee in the nature of a penalty, to the defendants' counsel. The revenue law of Louisiana (Act 1890, No. 106, § 56) provides that the attorney at law who represents the tax collector in injunetion proceedings shall, in case of a successful defense, receive a compensation of 10 per cent. on the amount of taxes and penalties collected as the result of the proceedings, which shall be paid to the said attorney by the party against whom the judgment is rendered, and shall be collected by the tax collector as costs at the same time that the taxes and other penalties are collected. It would seem that the court below applied the provisions of that statute in the present instance. Without considering or deciding whether it would be the duty of a federal court to follow the state statute in assessing costs, and par-, ticularly in making a payment to an attorney at law of a fee proportionate to the amount? recovered a part of the decree, we are of opinion that this decree was erroneous in the particular complained of. Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties. Mayor v. Cooper, 6 Wall. 250, was a case where the circuit court of the United States had held that it had no jurisdiction of case, removed to it from a state court, and had sustained a motion to remand for that reason, yet proceeded to give a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This court said: "The court held that it had no jurisdiction whatever of the case, and yet gave a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This was clearly erroneous. If there were no jurisdiction, there was no power to do any thing but to strike the case from the docket. In that view of the subject, the matter was as much coram non judice as anything else could be, and the award of costs and execu tion were consequently void. Such was the necessary result of the conclusions of the court." In Ingle v. Coolidge, 2 Wheat. 363, it was said by the chief justice that this court does not give costs where a cause is dismissed for want of jurisdiction. In Hornthall v. Collector, 9 Wall. 566, where the circuit court of the United States for the district of Mississippi had dismissed a bill for want of jurisdiction, and had awarded costs to the respondents, this court reversed the decree for that reason, and remanded the cause, with directions to dismiss the bill of complaint, but without costs. Blacklock v. Small, 96 U. S. 105. The decree of the court below is reversed, and the cause remanded, with directions to proceed in conformity with this opinion. (164 U. S. 388) ACERS v. UNITED STATES. (November 30, 1896.) ASSAULT WITH INTENT TO KILL-DEADLY WEAPON 1. Where the charge clearly distinguishes between the assault and the intent, directs specifically that each must be proved, and that the intent is to be deduced from all the circumstances of the case, nowhere stating that the assault itself necessarily proves the intent, a recital that "you may take the act itself as done, and from it you may find that it was willfully done," is not error. 2. A charge defining a deadly weapon as "anything with which death may be easily and readily produced," regardless of the purpose for which it was made, or whether it was made by man at all, is not open to exception. 3. The court may properly call the attention of the jury to the manner in which, and the part of the body upon which, a weapon is used, as circumstances to be considered in determining whether it is a deadly weapon. 4. A charge defining the real danger which will render an act one in self-defense, as a present danger of "great injury to the person injured, that would maim him, or that would be permanent in its character, or that might produce death," and not a past danger or danger of a future injury, is not erroneous. 5. A charge relative to self-defense, based on apparent danger, to the effect that the defendant must have had reasonable ground to believe that there was danger to his life, or of "deadly violence to his person," is not error, where it clearly appears, from the charge, that the word "deadly" was used in the sense of "great." Mr. Justice Shiras dissenting. In Error to the District Court of the United States for the Western District of Arkansas. A. H. Garland and R. C. Garland, for plaintiff in error. Asst. Atty. Gen. Dickinson, for the United States. Mr. Justice BREWER delivered the opinon of the court. Plaintiff in error was convicted in the district court for the Western district of Arkansas of an assault with intent to kill, and sentenced to the penitentiary for the term of two years and six months. The undisputed facts were these: Defendant and one Joseph M. Owens had some dispute about business affairs, and, on returning together to the house where they were both stopping, defendant picked up a stone about three inches wide, nine inches long, and an inch and a half or two inches thick, and with it struck Owens on the side of the head, fracturing the skull. The defense was that there was no intent to kill; that defendant acted in self-defense; that, believing Owens was about to draw a pistol, he picked up the stone, and pushed him down. And the disputed matters were whether Owens had a pistol, and, if so, whether he attempted to draw it, or made any motions suggestive of such a purpose. The verdict of the jury was, adverse to the contentions of the defendant. *The only questions presented for our consideration arise on the charge of the court, and may be grouped under four heads: First, as to the evidences of intent; second, as to what constitutes a deadly weapon; third, as to real danger; and, fourth, as to apparent danger. It may be premised that the exceptions to this charge are taken in the careless way which prevails in the Western district of Arkansas; but, passing this, and considering the charge as properly excepted to, we find in it no substantial error. First. With reference to the charge as to the matter of intent, counsel for plaintiff in error challenge a single sentence, as follows: "But you need not go to a thing of that kind, because the law says you may take the act itself as done, and from it you may find that it was willfully done." But this sentence is to be taken, not by itself alone, but in connection with many others, in order to determine what the court instructed as to the evidences of intent. It distinguished between the assault and the intent to kill, and charged specifically that each must be proved, that the intent could only be found from the circumstances of the transaction, and, after suggestion that the declarations made by a party at the time of an assault would tend to show the intent with which it was committed, added the sentence which counsel have quoted. Nowhere, not even in the sentence quoted, was it said that the assault, of itself, necessarily proved the intent, bat all through the charge in this respect was the constant declaration that the intent was to be deduced from all the circumstances of the case, the court pointing out many things which tended to disclose the real intent of a party, summing up the matter with these observations: "That is the way you find intent, then, bearing in mind that he is held to have intended whatever consequences might have followed from the act as willfully done by him with the deadly weapon. You, in other words, to find intent, take the circumstances. You take the character of the act done, the manner in which it was executed, the weapon used in executing it, 390 *392 *391 the part of the body upon which it was executed, the very result produced by that act upon that vital part of the body known as the head. These are all circumstances that it is your duty to take into consideration to find whether the party intended to kill him or not." There is nothing objectionable in this. Second. With respect to a deadly weapon, the court defined it as "a weapon with which death may be easily and readily produced; anything, no matter what it is, whether it is made for the purpose of destroying animal life, or whether it was not made by man at all, or whether it was made by him for some other purpose, if it is a weapon, or if it is a thing with which death can be easily and readily produced, the law recognizes it as a deadly weapon." We see nothing in this defi nition to which any reasonable exception can be taken. Nor do we find anything in the subsequent language of the court which in any manner qualifies this definition, or can be construed as an instruction to the jury that, as matter of law, the stone actually used was a deadly weapon. It is true reference was made to the manner in which the stone was used, and the part of the body upon which the blow was struck, as considerations to aid the jury in determining whether it was properly to be considered a deadly weapon. We have so little doubt that, when one uses a stone of such size, and strikes a blow on the skull so severe as to fracture it, a jury ought to find that the stone was a deadly weapon, that if the court had expressed a definite opinion to that effect we should have been reluctant, on that account alone, to have disturbed the judgment. But the court did not so express itself, and, in calling attention to the manner of its use, and the part of the body upon which the blow was struck, it only properly called the attention of the jury to circumstances fairly to be considered in determining the character of the weapon. U. S. v. Small, 2 Curt. 241, 243, Fed. Cas. No. 16,314; Com. v. Duncan, 91 Ky. 592, 595, 16 S. W. 530; State v. Davis, 14 Nev. 407, 413; People v. Irving, 95 N. Y. 541, 546; Hunt v. State, 6 Tex. App. 663; Melton v. State, 30 Tex. App. 273, 17 S. W. 257; Jenkins v. State, 30 Tex. App. 379, 17 S. W. 938. Third. With reference to the matter of selfdefense by reason of the presence of a real danger, the court charged that it could not be a past danger, or a danger of a future injury, but a present danger, and a danger of "great Injury to the person injured, that would maim him, or that would be permanent in its character, or that might produce death." In this we think nothing was stated incorrectly, and that there was a fair definition of what is necessary to constitute self-defense by reason of the existence of a real danger. Neither, fourthly, do we find anything to condemn in the instructions in reference to self-defense based on an apparent danger. Several approved authorities are quoted from, in which the doctrine is correctly stated that it is not sufficient that the defendant claims that he believed he was in danger, but that it is essential that there were reasonable grounds. for such belief, and then the rule was summed up in this way: "Now, these cases are along the same line, and they are without limit, going to show that, as far as this proposition of apparent danger is concerned, that, to rest upon a foundation upon which a conclusion that is reasonable can be erected, there must be some overt act being done by the party which, from its character, from its nature, would give a reasonable man, situated as was the defendant, the ground to believe-reasonable ground to believe that there was danger to his life, or of deadly violence to his person, and, unless that condition existed, then there is no ground upon which this proposition can stand; there is nothing to which the doctrine of apparent danger could apply." Counsel criticise the use of the words "deadly violence," as though the court meant thereby to limit the defense to such cases as showed an intention on the part of the person assaulted to take the life of the defendant; but, obviously, that is not a fair construction of the language, not only because danger to life is expressly named, but also because, in other parts of the charge, it had indicated that what was meant by those words was simply "great violence." This is obvious from this language, found a little preceding the quotation: "When, from the nature of the attack.' You look at the act being done, and you from that draw an inference as to whether there was reasonable ground to believe that there was a design upon the part of Owens, in this case, to destroy the life of the defendant Acers, or to commit any great violence upon his person at the time he was struck by the rock. 'When from the nature of the attack.' That implies, not that he can act upon a state of case where there is a bare conception of fear, but that there must exist that which is either really or apparently an act of violence, and from that the inference may reasonably be drawn that there was deadly danger hanging over Acers, in this case, at that time." These are all the matters complained of. We see no error in the rulings of the court, and therefore the judgment is affirmed. Mr. Justice SHIRAS dissents. (164 U. S. 287) MCKEE et al. v. UNITED STATES. (November 30, 1896.) No. 131. REPAYMENT FOR LANDS SOLD FOR DIRECT TAXES -STATUTE-CONSTRUCTION. The first clause of section 4 of the act of March 2, 1891, provides for payment of a specific sum per acre to the legal owners for lands sold in the parishes of St. Helena and S. Luke's, in South Carolina, under the direct tax act of 1861. The last clause of the section provides for payment to the owners of lands sold |