in the business, it is not a difficult step to infer that the capital of the business was firm capital. Whether capital shall be attributed to the firm or to a partner is a matter that often escapes the attention of the members. For if there is a joint liability for debts it does not matter very much to the party furnishing the capital whether he owns it or whether he charges it to the firm. In a case where two partners contributed capital and two partners contributed time it was held that the capital belonged to the firm and that those who contributed time were bound to make good their proportion of the loss. Whitcomb v. Converse, 119 Massachusetts, 38. Moreover, when James went into the business a thousand dollars belonging to him were deposited in his name undistinguished from the deposits on the business account. The money or a part of it was used to pay liabilities of Henry in connection with the stock in trade. It is true that ultimately more than that sum was used in paying James's outstanding debts, but the mingling of funds tends to show a common interest. The facts that we have mentioned seem to us to constitute some evidence that the relation between the brothers was a partnership by implied understanding until a corporation should be formed. It does not matter that it was not formally recognized or that they may not have used the name to themselves if that is the fair result of what they did understand and intend. We do nct say that we necessarily should have come to this conclusion if the case had been tried before us in the first instance, but upon a pure question of fact the error, if there was one, is not so plain as to call upon us to depart from our usual rule. Decree affirmed.

APPLICATION FOR A WRIT OF MANDAMUS AGAINST THE HONORABLE SMITH MCPHERSON, DISTRICT JUDGE OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA, CENTRAL DIVISION, AND AGAINST THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF IOWA, CENTRAL DIVISION.

No. 12, Original. Argued April 5, 1909.-Decided May 3, 1909.

No cause can be removed from the state court to the Circuit Court of the United States unless it could have originally been brought in the latter court. Boston Mining Co. v. Montana Ore Co., 188 U. S. 632, and Ex parte Wisner, 203 U. S. 449.

A suit only arises under the Constitution and laws of the United States within the meaning of § 1 of the act of August 13, 1888, c. 866, 25 Stat. 433, conferring jurisdiction on the Circuit Court when the plaintiff's statement of his own cause of action shows that it is based on those laws or that Constitution, and it is not enough that defendant may base his defense thereon. Louisville & Nashville Railroad v. Mottley, 211 U. S. 149.

Although a defendant in the state court may set up a defense based on Federal rights which will, if denied, entitle him ultimately to have the decision reviewed by this' court, if the Federal question does not appear in the plaintiff's statement the case is not removable to the Circuit Court of the United States.

A writ of mandamus when issued under § 688, Rev. Stat., is for the purpose of revising and correcting proceedings in a case already instituted in the courts and is part of the appellate jurisdiction of this court, which is subject to such regulations as Congress shall make. Mandamus will lie from this court to compel a Circuit Court to remand a case to the state court where it is apparent from the record that the Circuit Court has no jurisdiction whatever, and the writ will lie even though the party aggrieved may also be entitled to appeal or writ of error.

While mandamus never lies where the party praying therefor has another adequate remedy, an appeal or writ of error at the end of a litigation, which must go for naught, is not an adequate remedy for a plaintiff

whose case has been wrongfully removed from the state court to the Circuit Court, and held there against his protest.

The rule that mandamus will not lie to control the judicial discretion of an inferior court does not apply to an attempt of that court to exercise its discretion on subject-matter not within its jurisdiction. In re Pollitz, 206 U. S. 323, and Ex parte Nebraska, 209 U. S. 436, distinguished. While a general appearance in the Circuit Court after removal may amount to a waiver of objection to the jurisdiction if some Circuit Court has jurisdiction of the cause, In re Moore, 209 U. S. 490, neither appearance nor consent can confer jurisdiction where no Circuit Court has jurisdiction of the controversy. Ex parte Wisner, 203 U. S. 449.

THE facts are stated in the opinion.

Mr. Guy A. Miller, with whom Mr. W. H. Bremner was on the brief, for petitioner:

Mandamus does not lie to control judicial discretion, except when that discretion has been abused; but it is a remedy when the case is outside of the exercise of this discretion, and outside the jurisdiction of the court or officer to which or to whom the writ is addressed. One of its peculiar and more common uses is to restrain inferior courts, and to keep them within their lawful bounds. Virginia v. Rives (Ex parte Virginia), 100 U. S. 316; Ex parte Wisner, 203 U. S. 449; Ex parte Nebraska, 209 U. S. 436, and Re Pollitz, 206 U. S. 323, distinguished, because in those cases the discretionary powers necessary to defeat the issuance of the writ of mandamus were exercised in connection with matters outside the record.

Want of jurisdiction from any cause appearing on the face of the record, entitles plaintiff to a writ of mandamus where the Federal court refuses to perform the duty to remand, as these cases are outside the discretion and jurisdiction of the court. Cases supra and Virginia v. Paul, 148 U. S. 107.

Under §§ 1, 2, 3, of the act of March 3, 1875, 18 Stat. c. 137, as amended by the act of March 3, 1887, 24 Stat. 552, c. 373, corrected by the act of August 13, 1888, 25 Stat. 433, c. 866, an action commenced in the state court, by a citizen of another

Argument for Respondent.

213 U.S.

State, against a non-resident defendant, who is a citizen of a State other than that of plaintiff, cannot be removed by the defendant into the Circuit Court, on the ground of diverse citizenship, at least where the plaintiff resists the removal. Ex parte Wisner, supra.

A case cannot be removed to the Circuit Court from a state court, on the ground that it arises under the laws of the United States, unless that fact appears from the plaintiff's statement of his own claim; and if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in any subsequent pleadings. Metcalf v. Watertown, 128 U. S. 586; Minnesota v. Northern Securities Co., 194 U. S. 453; Tennessee v. Union & Planters' Bank, 152 U. S. 453.

It is not enough that in the progress of litigation a question under those laws would arise, since that does not show that plaintiff's action derived its life from those laws. Louisville & Nashville Railroad Co. v. Mottley, 211 U. S. 149.

The suggestion on the part of the defendant that he will set up a defense or claim under the laws of the United States does not make the suit one arising under those laws. Tennessee v. Union & Planters' Bank, supra; Boston & M. Con. Copper S. Min. Co. v. Montana Ore Pur. Co., 188 U. S. 632.

Were the plaintiff to admit all the allegations in petition for removal, relative to the act to regulate commerce, it would only show that the plaintiff was unable to recover, and not that this case arises under any law of the United States. Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185.

The question whether or not a shipper is entitled to recover more than the declared value of stock in a contract for interstate shipment does not present a Federal question. Pennsylvania R. Co. v. Hughes, 191 U. S. 477.

Mr. Nathaniel T. Guernsey, with whom Mr. Alonzo C. Parker and Mr. William E. Miller were on the brief, for respondent:

The jurisdiction of the Circuit Court is beyond question.

213 U.S.

Argument for Respondent.

It affirmatively appears from the pleadings filed by the petitioner, Winn, that the parties are citizens of different States and that the amount in controversy exceeds the sum or value of $2,000. Ex parte Wisner, 203 U. S. 449, does not control, because both parties waived any objection which might have been urged to the maintenance of the suit in the Southern District of Iowa. The defendant did this by its petition for removal, general appearance, stipulation for, and filing, cost bond and for time to plead. Construction Company v. Gibney, 160 U. S. 217-220; Re Moore, 209 U. S. 490.

Upon the face of the plaintiff's petition, the case presented questions arising under the laws of the United States.

The character of a case is determined by the questions involved, and if it appears that the claim will be defeated by one construction of a law of the United States or sustained by the opposite construction, it is a case arising under the laws of the United States. Starin v. New York, 115 U. S. 248-257; Tennessee v. Union & Planters' Bank, 152 U. S. 454; Bankers Casualty Co. v. Minn., St. P. &c. Ry. Co., 192 U. S. 371–380.

This doctrine does not conflict with the line of cases holding that a Federal question may not be imported into a case by the averments of the answer. Upon the face of the petition filed in the state court, the case necessarily involved the determination of whether the contract limiting the liability of the defendant to $50 is valid under the provisions of § 20 of the act to regulate commerce as amended by § 7 of the Hepburn Act, which has already been considered by the Interstate Commerce Commission, Matter of Released Rates, 13 Interstate Comm. Comm. 550, but has not been authoritatively determined by the courts. Penna. R. R. v. Hughes, 191 U. S. 477, having been decided prior to the Hepburn Act, is not in point.

Also whether the special contract to haul the hog in a single covered wagon is valid, it being a special service not covered by a tariff. Wight v. United States, 167 U. S. 512.

Also whether misrepresentation, by the shipper, of the value of the hog, in order to secure a lower rate, was a violation of