Statement of the Case.

Northern Railway Company, a body corporate under the laws of Alabama, The Tuskaloosa Coal Iron and Land Co., a body corporate under the laws of Alabama, and the Tuskaloosa Belt Railway Co., a body corporate under the laws of Alabama, all of the county of Tuskaloosa in the State of Alabama are held and firmly bound unto the above named Reiley & Gude in the sum of Fifteen Thousand (15,000) Dollars to be paid the said Reiley & Gude.

"For the faithful payment of which sum well and truly to be made we bind ourselves and each of us, our and each of our heirs, executors and administrators jointly and severally and firmly by these presents.

"Sealed with our seals and dated at Tuskaloosa, Alabama, the 23d day of May, A.D., 1890.

"Whereas the above bounden Tuskaloosa Northern Railway Co., has prosecuted an appeal or writ of error to the Supreme Court of the United States to reverse the judgment rendered in the above entitled cause at the spring term 1890, of the Circuit Court of the United States for the Southern Division of the Northern District of Alabama, holden at Birmingham, Alabama, by the Hon. John Bruce, judge of the Circuit Court of the United States for the Southern Division. of the Northern District of Alabama. Now therefore, the condition of the above obligation is such, that if the above named Tuskaloosa Northern Railway Co. shall prosecute said appeal to effect and answer all damages and costs, if it fail to make said appeal good, then this obligation shall be void, otherwise the same shall be and remain in full force and virtue.

Order of the Court.

"Tuskaloosa Belt

Railway Company.

"W. C. Jemison, [SEAL.]

"Presd't.

"Taken and approved this 24th day of May, 1890.

"JOHN BRUCE,

"Judge of the U. S. Court Southern Division Northern District of Alabama.

"There is no other allowance of an appeal or writ of error in the cause of record, except that disclosed in the bond for supersedeas and the orders thereon, as above stated and no formal writ of error appears in the record.

"The plaintiff in said judgment, who is shown by the record to be the surviving partner of the firm of Reiley & Gude, on the 9th of July, 1890, presented his petition to Hon. John Bruce, who took and approved said supersedeas bond, praying that he would revoke the supersedeas created by said bond because it was not valid in law to prevent the issue of execution on the judgment which was not accurately described in the supersedeas bond.

66

Judge Bruce denied the petition, and thus sustained the validity of the bond, and treated the case as if it had been removed into the Supreme Court of the United States.

"The petition and the papers relating thereto were filed in said Circuit Court and a certified transcript of the same is subImitted with this motion to this Honorable Court.

"These papers, thus certified, are dehors the record in the case adjudged by the court, but they are here presented to show that the plaintiff, Gude, is without remedy as to execution on his judgment until the Supreme Court has exercised jurisdiction in the main cause, or has declared that it has no jurisdiction."

Mr. John T. Morgan for the motion.

No one opposing.

The court ordered the case to be docketed and dismissed.

Counsel for Plaintiffs in Error.

WILLIAMS v. PASSUMPSIC SAVINGS BANK.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA.

No. 1354. Submitted March 30, 1891. Decided April 6, 1891.

A decree in chancery in a Circuit Court having been brought up by writ of error instead of appeal, the defendant in error consented to the dismissal of the writ, and the court announced that if an appeal is seasonably taken the transcript of the record in this cause may be filed as part of return.

THIS was a motion by the defendant in error to dismiss a writ of error for the following reasons:

First. Because said cause is a suit in equity and not at law and for that reason a writ of error does not lie to revise the proceedings of the United States Circuit Court in the premises.

Second. Because the proceedings sought to be revised by said writ of error terminated in a final decree and judgment on the 19th day of October, 1889, at a term of the United States Circuit Court in and for the Northern District of Florida, which term finally terminated and adjourned on the 22d day of November, 1889, and said writ of error was not sued out until the first day of July, 1890, and no citation has ever been issued or served in said cause.

Thereupon the plaintiffs in error moved as follows:

Now come the plaintiffs in error in the above entitled cause, by H. Bisbee, their solicitor, and consent to granting the motion to dismiss, made by defendant in error; and plaintiffs in error move for leave to withdraw the transcript of the record, on the ground that the failure to bring the cause within the jurisdiction of this court is not attributable to their negligence, but to that of their solicitors in the court below, and plaintiffs desire to take and perfect an appeal and should not be subjected to the expense of another transcript.

Mr. H. Bisbee for plaintiffs in error.

Statement of the Case.

Mr. Henry C. Ide for defendant in error.

FULLER, C. J. The mandate in this cause will issue forthwith, and if the plaintiffs in error seasonably take and prosecute an appeal from that rendered by the Circuit Court, leave will be granted them to file as part of the return on said appeal the transcript of the record in this cause.

UNION PACIFIC RAILWAY COMPANY v.

BOTSFORD.

UNITED STATES FOR THE

ERROR TO THE CIRCUIT COURT OF THE

DISTRICT OF INDIANA.

No. 1375. Submitted January 6, 1891.- Decided May 25, 1891.

A court of the United States cannot order a plaintiff, in an action for an injury to the person, to submit to a surgical examination in advance of the trial.

THE original action was by Clara L. Botsford against the Union Pacific Railway Company, for negligence in the construction and care of an upper berth in a sleeping car in which she was a passenger, by reason of which the berth fell upon her head, bruising and wounding her, rupturing the membranes of the brain and spinal cord, and causing a concussion of the same, resulting in great suffering and pain to her in body and mind, and in permanent and increasing injuries. Answer, a general denial.

Three days before the trial (as appeared by the defendant's bill of exceptions) "the defendant moved the court for an order against the plaintiff, requiring her to submit to a surgical examination, in the presence of her own surgeon and attorneys, if she desired their presence; it being proposed by the defendant that such examination should be made in manner not to expose the person of the plaintiff in any indelicate manner; the defendant at the time informing the court that

Opinion of the Court.

such examination was necessary to enable a correct diagnosis of the case, and that without such examination the defendant would be without any witnesses as to her condition. The court overruled said motion, and refused to make said order, upon the sole ground that this court had no legal right or power to make and enforce such order."

To this ruling and action of the court the defendant duly excepted, and after a trial, at which the plaintiff and other witnesses testified in her behalf, and which resulted in a verdict and judgment for her in the sum of $10,000, sued out this writ of error.

Mr. John F. Dillon and Mr. Harry Hubbard for plaintiff

in error.

Mr. Addison C. Harris for defendant in error.

MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.

The single question presented by this record is whether, in a civil action for an injury to the person, the court, on application of the defendant, and in advance of the trial, may order the plaintiff, without his or her consent, to submit to a surgical examination as to the extent of the injury sued for. We concur with the Circuit Court in holding that it had no legal right or power to make and enforce such an order.

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley; "The right to one's person may be said to be a right of complete immunity to be let alone." Cooley on Torts, 29. For instance, not only wearing apparel, but a watch or a jewel, worn on the person, is, for the time being, privileged from being taken under distress for rent, or attachment on mesne process, or execution for debt, or writ of replevin. 3 Bl. Com. 8; Sunbolf v. Alford, 3 M. & W. 248, 253*, 254*;