court. The motion to remand is based on the contention that the petition as amended does not allege the state of facts necessary to give this court jurisdiction. So far as now material, the amended petition alleges that a short time prior to the alleged assault the petitioner, while acting as a posseman under a deputy collector of internal revenue, had assisted in destroying an illicit distillery belonging to the aforesaid N. K. Thomas; that he appeared as a witness, and had testified against Thomas at the preliminary hearing, and was recognized as a government witness to appear and testify against Thomas at the then next term of the federal court. At this juncture-between the examining trial and the term of court at which Thomas was to be tried for operating an illicit distillery-the petitioner was summoned by a deputy United States marshal to assist in an effort to arrest one Agee for a violation of the federal revenue laws. "While in the discharge of such duty, and while acting under and by authority of said officer, your petitioner was set upon by said N. K. Thomas, who told your petitioner that, on account of his having reported said Thomas' still to the government officers, and on account of his having, while acting under and by authority of a deputy collector of the United States, assisted in the cutting up and destruction of said Thomas' still, and on account of the evidence given by your petitioner against him before the commissioner, and to prevent such evidence being repeated by your petitioner at the November term of the said district court, he intended to kill your petitioner. As he said this, said N. K. Thomas thrust his hand in his pocket and drew therefrom a pistol. Your petitioner, acting in the capacity of a government officer, also had on his person a pistol, which he drew from his pocket, and, without attempting to fire on the said N. K. Thomas, struck him in self-defense, and thereby prevented the said N. K. Thomas from carrying out the threats made not only at that time, but on previous occasions." There is no room for doubt that a deputy marshal, while executing, or on the way to execute, a warrant for the arrest of one charged with a violation of an internal revenue statute, is "an officer acting by authority of a revenue law." Carico v. Wilmore (D. C.) 51 Fed. 196. And the petitioner as he was acting under such an officer-is within the intent and letter of the statute (Davis v. South Carolina, 107 U. S. 597, 2 Sup. Ct. 636, 27 L. Ed. 574) if the prosecution is on account. of an act done under color of office or of any revenue law, or if the prosecution is on account of any right or authority claimed under any revenue law. Possibly the mere fact that the assault made by Thomas on the petitioner grew out of the prior actions of the petitioner while acting under the deputy revenue collector may have no bearing on the question here. If, years after a revenue collector has left the government service, he is attacked because of some act done by him while in the service, and if, in repelling the attack, he kills the one who assaults him, his act is not one done under color of office or of any revenue law, nor is it an act done under a right or authority claimed under any revenue law. The only right that could be claimed in such case would be the right of self-defense. Again, suppose that a revenue officer, while holding a commission, but while quietly at his home, and while not engaged in any official duty, is attacked because of some act previously done by him in the performance of his official duty, and in repelling such attack he kills the person who assaulted him, and is indicted therefor in the state court. It would seem that the act of killing here is not done under color of office or of any revenue law, nor under a right properly to be claimed under any revenue law; but that the officer in this case is again merely exercising the right of self-defense. While congress might well have extended the right of removal to cover such a case, the language employed in section 643 may not be quite sufficient to do so. Illinois v. Fletcher (C. C.) 22 Fed. 778. However, the petition here sets up certain other facts which I think do show a prima facie right to a trial in this court. These facts are that, the petitioner having been duly summoned as a posseman by a revenue officer, who was "seeking to arrest" an offender against the revenue law, and while the petitioner was "in the discharge of such duty" he was set upon by Thomas, who declared his purpose to kill petitioner, and the latter in self-defense struck said Thomas. If a revenue official (the law being the same in the case of one acting under such official as his posseman), while "hot-foot" after a fleeing violator of a revenue law, is set upon by friends of the fugitive, who seek thus to prevent the arrest, and if, in resisting the assault, the officer kills one of the party, his act in so doing is certainly one done under color of office, or one done under a right claimed under a revenue law. "Colorable" is defined as "having the appearance, especially the false appearance, of right." In the case supposed it was the duty of the officer to arrest the fugitive. To execute this duty he had to repel the assault, or to abandon his pursuit. The killing, then, was, to say the least, done colorably in the line of official duty. Does it alter the case if we suppose that the person or persons who interfere with the officer's pursuit are actuated, not by a desire to prevent the arrest, but by a mere personal desire to injure the officer? In such case, if the assault be not repelled, the officer cannot proceed with the execution of his official duty. Consequently it is not a strained construction of the statute to hold that when an attack is made on a revenue officer, while he is in the actual pursuit of a violator of the revenue laws, by a third party actuated by mere personal malice towards the officer, and the officer, in repelling the attack, wounds or kills the person attacking him, such act is one done, at least colorably, in the line of official duty. Nor can a distinction be properly drawn if, instead of being in actual pursuit, the officer is merely on the way to make an arrest, or merely seeking an offender with intent to arrest him when found. It seems to me that it is as much the officer's right, even if not as much his duty, to proceed on his way, or to proceed with his search, as it is to pursue when the offender is in sight and is fleeing. If interrupted by one who assaults him-no matter what cause actuates the person making the assault-the officer has as much right to repel the assault in the one case as in the other. To be sure, the same necessity for immediate action may not exist in both cases. It is true that, when the officer is merely traveling on the way to make an arrest, he could, perhaps, by a timely retreat, avoid the necessity of injuring the one attacking him. But this might also be true if he were attacked while in hot pursuit of a fleeing criminal. And in either case his act in repelling the assault is at least colorably done in the exercise of his official duty; for in either case it is his official duty to proceed, whether with the actual pursuit of a fugitive, or with his journey, or his search for an offender. Any one who, while the officer is thus engaged, attacks him, is, in some measure, interfering with the performance of an official duty. And in repelling the attack the officer is at least colorably performing such duty. The mere fact that the officer's chief thought or sole thought is self-defense does not eliminate from the case the fact that in repelling the assault he is, at least colorably, proceeding with his official duty. And I am not disposed to emasculate the statute by such refinements as making the right of removal depend on whether the thought uppermost in the officer's mind was self-defense, or an intent to proceed with the execution of his duty-necessarily putting his assailant hors de combat, in order that he might be at liberty to so proceed. The intent of section 643, Rev. St. [U. S. Comp. St. 1901, p. 521], is to afford to revenue officials and their assistants protection from local prejudice against federal revenue laws and revenue officials. The language of the statute does not authorize a removal of every prosecution against a revenue officer; but the words "under color of" and "right or authority claimed" show clearly that the act for which the prosecution is commenced need not be one done strictly in pursuance of a federal revenue statute in order to justify removal. If, for instance, a revenue officer, while not even colorably engaged in the performance of duty, sets fire to a neighbor's dwelling, he should be tried for his arson by the state court. But if, while seeking to arrest a violator of a revenue law, who is fortified in his dwelling, the officer-even without sufficient justificationsets fire to the house in order to effect the capture, the trial of the charge of arson made against him should be removed to the federal court. The conclusion I reach is that the petition here shows on its face a right of removal. The motion to remand is overruled. ALBRO V. MANHATTAN LIFE INS. CO. (Circuit Court, D. Massachusetts. December 23, 1902.) No. 1,247. 1. LIFE INSURANCE-PLACE OF CONTRACT. The answer in an action on a life insurance policy admitted that the defendant was legally admitted to do business in Massachusetts; that the policy in suit was issued on an application made in writing to its 1. See Insurance, vol. 28, Cent. Dig. § 174. agent in that state where the applicant resided, and was there delivered to the applicant by such agent, to whom the first premium wàs paid. Held that, in the absence of other facts, the policy was a Massachusetts contract. 2. SAME-LAW GOVERNING CONTRACT-EFFECT OF PROVISIONS IN POLICY. Where a contract of life insurance is in fact made within a state between a resident thereof and a foreign insurance company legally authorized to do business therein, the parties cannot avoid statutory provisions of the state, declaring a rule of public policy with respect to such contracts made within its jurisdiction, by inserting provisions in the policy adopting the law of another state. 8. SAME MASSACHUSETTS STATUTE-REQUIRING ATTACHMENT OF CORRECT COPY OF APPLICATION TO POLICY. Under the statute of Massachusetts (Acts 1894, c. 522, § 73) providing that, unless a correct copy of the application is attached to the policy, the same shall not be considered a part of the policy or received in evidence, an application cannot be admitted in evidence as a defense to an action on the policy where the copy omitted the answers made by the applicant to certain questions, which appeared in the original, and which under some circumstances might affect the rights of the parties, although they have no bearing on the questions raised by the pleadings. 4 SAME-RULE OF EVIDENCE IN FEDERAL COURTS-FOLLOWING STATE DECI SION. In construing such statute the supreme judicial court of Massachusetts laid down the rule that, where under its terms the application itself was not admissible in evidence, the company could not be permitted to show by oral evidence statements made by the insured which were contained in the application, and such rule has been acquiesced in without question for a number of years. Held that, without regard to its correctness, such rule was binding upon a federal court sitting within the state. At Law. Action on life insurance policy. On demurrer to answer. John W. Cummings, for plaintiff. Crapo, Clifford & Clifford, for defendant. PUTNAM, Circuit Judge. The question now before us arises on the following portion of section 73, c. 522, Acts Mass. 1894, namely: "In any claim arising under a policy which has been issued in this commonwealth by any life insurance company, the statements made in the application as to the age, physical condition, and family history of the insured shall be held to be valid and binding upon the company: provided, however, that the company shall not be debarred from proving as a defence to such claim that said statements were wilfully false, fraudulent or misleading: and provided, further, that every policy which contains a reference to the application of the insured, either as a part of the policy or as having any bearing thereon, must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence. Each application for such policy shall have printed upon it in large bold faced type the following words: 'Under the laws of Massachusetts, each applicant for a policy of insurance to be issued hereunder is entitled to be furnished with a copy of this application attached to any policy issued thereon.'" With reference to the construction of this statute and its application to this case, the counsel on either side have cited a number of 4. Federal courts following state practice as to rules of evidence, see note to O'Connell v. Reed, 5 C. C. A. 594. decisions. We have examined them all, but refer only to such of them as seem to us important. The general history of the legislation which led up to this enact.ment, and the fact that the part of it with which we are concerned applies to all policies governed by the law of Massachusetts which contain references to the application within its language, were explained in Considine v. Insurance Co., 165 Mass. 462, 43 N. E. 201. The question before us arises as follows: The plaintiff declared on a policy issued by the defendant corporation. The defendant filed an answer containing four independent paragraphs, the first and second of which rely directly on misstatements contained in the application on which it is alleged the policy issued, and also they allege that a correct copy of the application was attached to the policy as provided by the statute to which we have referred. The third paragraph adopts the first and second paragraphs, and alleges that the delivery of the policy was obtained by willful fraud in the answers made in the application already referred to. The fourth paragraph in like manner adopts the first and second paragraphs, and alleges that the statements in the application referred to were false, fraudulent, and misleading, and that the truth in reference thereto would have increased the risk of loss, so that thereby, and by the express terms and conditions of the policy, no contract of insurance binding on the defendant was made. There is no allegation in the answer, or in the amendment thereto, to which we will refer, charging fraudulent statements, except statements in the application itself. By an amendment to the answer the defendant admitted that the copy of the application annexed to the policy was incorrect in leaving blank statements as to the age of the applicant's mother's mother, her health, and the cause of her death. The blanks in the application which according to the copy had not been filled were, in fact, filled with facts which were favorable to the applicant, but which the answer admits were truly stated. Therefore there is nothing in these omissions from the copy of the application which appertain to anything which could injuriously affect the rights of either party as the case is now presented. The plaintiff demurred to the answer, assigning, among other reasons of demurrer, that it appeared thereby that no correct copy of the application was annexed to the policy. The answer admits that the applicant lived in Massachusetts; that the defendant is a life insurance company legally admitted to do business in that state; that the application for the policy was made. in writing to the representative of the defendant corporation at Fall River; that the defendant did issue to the applicant its policy of insurance by manual delivery thereof at Fall River by the defendant's agent to the applicant; and that the first premium was paid by the applicant to the defendant's agent, also at Fall River. Beyond the matters which we have stated, there is nothing in the pleadings to show that the contract for insurance was not completed within Massachusetts. Notwithstanding this, the defendant argues that the contract was completed in New York, and that the usual provisions of life insurance policies, which are found in this policy, |