Ex parte Jones

v.

Bank, 9 Wheat. 738, 819, and more recently to railways chartered under acts of congress (Pacific Railroad Removal Cases, 115 U.S. 1, 5 Sup. Ct. 1113), even since the court of appeals act was passed (Railroad Co. v. Amato, 144 U.S. 465, 12 Sup. Ct. 740; Railway Co. v. Harris, 158 U.S. 326, 15 Sup. Ct. 843). But by the act of 1882, and more recently by section 4 of the acts of March 3, 1887, and August 13, 1888, the privi-

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lege of suing and being sued under this clause was taken away from national banks by the following language: 'Sec. 4. That all national banking associtions established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity, be deemed citizens of the states in which they are respectively located; and in such cases the circuit and district courts shall not have jurisdiction, other than such as they would have in cases between individual citizens of the same states.'  In Bank v. Cooper, 120 U.S. 778, 7 Sup. Ct. 777, it was held by this court that, under the act of 1882, which was similar in its terms, an action against a national bank could not be removed to the federal court 'unless a similar suit could be entertained by the same court by or against a state bank in like situation with the national bank. Consequently, so long as the act of 1882 was in force, nothing in the way of jurisdiction could be claimed by a national bank because of the source of its incorporation. A national bank was by that statute placed before the law in this respect the same as a bank not organized under the laws of the United States.' See, also. Whittemore v. Bank, 134 U.S. 524, 10 Sup. Ct. 592; Petri v. Bank, 142 U.S. 644, 12 Sup. Ct. 325. The section above cited from the act of 1888 undoubtedly deprives these banks of the privilege of suing or being sued, except in cases where diversity of citizenship would authorize an action to be brough; and in such cases the decree of the court of appeals is final. In this case the original bill averred the complainant to be a citizen of Pennsylvania and the defendant to be a national bank, duly established under the laws of the United States, having its place of business at Boston, and a citizen of the state of Massachusetts. As the bill was filed after the act of 1888 took effect, it must be deemed to be a suit dependent upon citizenship alone. But, even if another ground were developed in the course of the proceedings, the judgment of the court of appeals would be final if the jurisdiction of the circuit court were originally invoked solely upon the ground of

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citizenship. Mining Co. v. Turck, 150 U.S. 138, 14 Sup. Ct. 35; Borgmeyer v. Idler, 159 U.S. 408, 16 Sup. Ct. 34. The petition for mandamus must be denied. Carver v. U S [17SCt228,164US694,41LEd602]  17 S.Ct. 228 164 U.S. 694  41 L.Ed. 602 CARVER v. UNITED STATES.

No. 588.

January 4, 1897.

This was a writ of error to review the conviction of the plaintiff in error for the murder of one Anna Maledon at Muskogee, in the Creek Nation of the Indian Territory. The conviction was a second one for the same offense, the first having been set aside by this court upon the ground that improper evidence had been received of an alleged dying declaration. 160 U.S. 553, 16 Sup. Ct. 388.

The evidence tended to show that Carver, a man about 25 years of age, was grossly intemperate in his habits, and upon the day the homicide took place had been drinking a mixture of hard cider and Jamaica ginger, and was so intoxicated that he could hardly walk; that deceased, who had been his mistress for several years, had agreed to meet him in the evening at a certain mill crossing in Muskogee. They met at about half-past 8, when he soon began to threaten her that he would, before daylight, kill her and one Walker, of whom he appeared to have been jealous. He was armed with a revolver, and his conduct indicated that he was crazed with liquor. During his walk with the deceased, he met a man whom he dreve off at the point of his pistol, and amused himself by firing it off at a lot of cattle, which were within range. Meeting one Crittenden, the deceased, believing that Carver was unfit to care for her and accompany her, asked Crittenden, with whom she was acquainted, to take her home. Crittenden started with them, when Carver got out his pistol again, flourished it about, and fired it off twice, once in the air and once in the ground. After walking some 50 yards or more Carver again took out his pistol, flourished it around, and, either intentionally or accidentally, shot deceased in the back, and mortally wounded her.

William M. Cravens, for plaintiff in error.

Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.