Inasmuch, therefore, as the judgment of the Supreme Court of the State of South Carolina, sought to be brought in review by this writ of error, does not involve any question necessarily arising under the Constitution of the United States or the laws and treaties made in pursuance thereof, we must refuse to take jurisdiction in the case.

The writ of error is accordingly dismissed for want of jurisdiction.

under the Constitution of the United States, or | affirmatively not only that a federal question under any law or treaty made in pursuance was presented for decision to the highest court thereof. It is not a question, therefore, which, of the State, having jurisdiction, but that its under this writ of error, we have a right to re- decision was necessary to the determination of view. We are not authorized to inquire into the cause, and that it was actually decided, or the grounds and reasons upon which the su- that the judgment as rendered could not have preme court proceeded in its construction of been given without deciding it. Brown v. At [233] that statute. It is a state statute conferring well, 92 U. S. 327 [23: 511]; Citizens Bank v. certain rights upon suitors choosing to avail Board of Liquidation, 98 U. S. 140 [25: 114]; themselves of its provisions upon certain con- | Chouteau v. Gibson, 111 U. S. 200 [28: 400]; ditions in certain cases. Who may sue under Adams County v. Burlington & M. R. R. Co it, and when, and under what circumstances, 112 U. S. 123 [28: 678]; Detroit City R. Co. v. are questions for the exclusive determination Guthard, 114 U. S. 133 [29: 118]; New Orleans of the state tribunals, whose judgment thereon Water Works Co. v. Louisiana Sugar Refining is not subject to review by this court. It was Co. 125 U. S. 18 [31: 607]. competent for the State of South Carolina either to grant or withhold the right to bring suits against the officers of the State for the recovery of money alleged to have been illegally exacted and wrongfully paid. If granted, the action is in substance, though not in name, an action against the State itself, just as an action, permitted by the Act of Congress on the subject, against a collector of customs for the recovery of duties alleged to have been illegally exacted, and paid under protest, is an action against the United States, though nominally against the collector. In such cases, as the State may withhold all remedy, it may attach to the remedy it actually gives whatever conditions and limitations it chooses; and its own interpretation and application of its statutes on that subject, given by its own judicial tribunals, are conclusive upon the parties seeking the benefit of them. No right secured by the Constitution of the United States to any citizen is affected by them unless they are framed or administered so as, in some particular case, to deprive the party of his property without due process of law or to deprive him of the equal protection of the laws. No such question is or can be made in reference to the statute of South Carolina under consideration. It authorizes, in certain enumerated cases, parties found to be within its terms to bring a prescribed action against the State in the name of one of its officers. According to the decision of its highest tribunal, the plaintiff in this action is not within the class entitled to sue. To review that judgment is not within the province of this court, because it does not deny or injuriously affect any right claimed by the plaintiff under the Constitution or laws of the United States.

[234]

ANNA E. CAMERON ET AL. Appts.,

v.

'ASA HODGES ET AL.

(See S. C. Reporter's ed. 322-326).

Jurisdiction of circuit courts-citizenship of parties-statement- objection-amendment-re manding suit.

1. It is not sufficient, to give jurisdiction to a Circuit Court of the United States, that the defendant in the suit is a citizen of the State, and that none of the complainants were citizens of that State. The adverse party must be a citizen of some other named State, or an alien.

Columbia, can neither bring nor sustain a suit on 2. A citizen of a Territory, or of the District of the ground of citizenship, in one of the Circuit courts.

parties, and of the particular State in which it is 3. A distinct statement of the citizenship of the claimed, is required, in order to sustain the juris

diction of the circuit court.

objection of the want of jurisdiction in the circuit 4. This court will, on its own motion, take the court, especially as regards citizenship.

5. This court may reverse the decree of the court below because it had no jurisdiction, but has no power to amend the record so as to give jurisdiction to that court.

6. Where it appears upon the face of the affidavit or petition for removal of a suit from a state court circuit court, it is the duty of that court at any that the suit has been improperly removed into the time to remand the suit to the state court. [No. 208.]

Argued April 5, 1888. Decided April 30, 1888.

APPEAL from a decree of the Circuit Court

It is a well settled rule, limiting the jurisdiction of this court in such cases, that "where it appears by the record that the judgment of the state court might have been based either upon a law which would raise a question of repugnancy to the Constitution, laws, or treaties of the United States, or upon some other independent ground, and it appears that the court did, in fact, base its judgment on such of the United States for the Western Disindependent ground, and not on the law rais-trict of Tennessee dismissing a bill in regard to ing the federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one." Klinger v. Missouri, 80 U. S. 13 Wall. 257, 263 [20: 635, 637] per Mr. Justice Bradley. And it has been repeatedly decided, under section 709 of the Revised Stat-it. utes, that, to give this court jurisdiction of a McLard v. Linnville, 10 Humph. 163, Trabue writ of error to a state court, it must appear v. Turner, 10 Heisk. 447.

the title to real estate. Reversed.

The facts are stated in the opinion. Messrs. D. H. Poston and W. K. Poston, for appellants:

The bill being on oath, the answer only makes an issue, and one witness will overturn

The plaintiff may waive an answer under oath, and the answer will then be entitled to no more weight as evidence than the bill. Lindsley v. James, 3 Coldw. 487.

In Tennessee a party failing to testify as to matters shown to be necessarily within his personal knowledge affords a presumption against him.

Dunlap v. Haynes, 4 Heisk. 479; Alley v. Connell, 3 Head, 578; Louisville & N. R. R. Co. v. Garrett, 8 Lea, 438.

The refusal of the party to produce his books or papers raises a presumption adverse to the

party.

Clifton v. U. 8. 45 U. S. 4 How. 242 (11; 957); Hanson v. Eustace, 43 U. S. 2 How. 653 (11: 416); 2 Whart. Ev. §§ 1265, 1266.

Asa Hodges et al.

R. 4593.

"To the Hon. W. W. McDowell, Chancellor:
time of the institution of this suit was, a citizen
"Your petitioner states that he is, and at the
of the State of Arkansas, and not of the State
of Tennessee, and that none of the complain-

ants are or were at that time citizens of the
State of Arkansas; that said suit is of a civil
nature, and the matters in controversy exceed,
exclusive of costs, in value the sum of five hun
dred dollars; that the controversy affects the
ownership of real estate in said State of Arkan-
pre-sas, and can be wholly decided between com-
plainants and this defendant. Wherefore he
prays an order for the removal of said cause
from this court to the United States Circuit
Court for the Western District of Tennessee,

The nonproduction of evidence clearly within the power of a party creates a strong sumption against him.

Miller v. Jones, 32 Ark. 337.
Messrs. W. G. Weatherford and T. B.
Turley, for appellees:

An assignment that points to no specific error is too vague and indefinite, and should be disregarded.

Deitsch v. Wiggins, 82 U. S. 15 Wall. 539 (21: 228); Ryan v. Koch, 84 U. S. 17 Wall. 19 (21: 611).

The questions involved being matters of

fact, this court will affirm the decree.

Harrell v. Beall, 84 U. S. 17 Wall. 590 (21: 692); Alviso v. U. 8. 75 U. S. 8 Wall 337 (19: 305); Parker v. Phetteplace, 68 U. S. 1 Wall. 684 (17: 675); Lytle v. Arkansas, 63 U. S. 22 How. 193 (16: 306). Acknowledgment cannot be proven by parol testimony.

Elliott v. Peirsol, 26 U. S. 1 Pet. 338 (7:169). In Arkansas, the executory and unacknowledged contract of a married woman to convey her real estate is void.

Wood v. Terry, 30 Ark. 385.
Voidable at her election.
Milwee v. Milwee, 44 Ark. 112.
She cannot make executory contracts to con-

vey.

Chrisman v. Partee, 38 Ark. 31; Wood v. Terry, supra.

When a written contract is to be proven by parol, the substance of the agreement ought to be proven satisfactorily.

Tayloe v. Riggs, 26 U. 8. 1 Pet. 600 (7: 279); Findley v. Hinde, 26 U. 8. 1 Pet. 245 (7:130); Vattier v. Hinde, 32 U. S. 7 Pet. 266 (8: 680); Nichols v. Kingdom Iron Ore Co. 56 N. Y. 618; Edwards v. Noyes, 65 N. Y. 125.

Mr. Justice Miller delivered the opinion of

the court:

This is an appeal from the Circuit Court of the United States for the Western District of Tennessee.

at Memphis, and he tenders herewith the re-
quisite bond, as required by law, for the re-
moval thereof.

"Asa Hodges, the petitioner, being sworn,
says the matters set forth in the above petition
are true as far as stated on his own knowledge;
Asa Hodges.

the rest he believes to be true.

"Sworn to this October 2, 1882.

"J. M. BRADLEY, Deputy Clerk and M." While this petition sets forth the citizenship of Hodges to be in the State of Arkansas, both at the commencement of the suit and at the time of the application for removal, it does not state that of any of the complainants, but merely says "that none of the complainants are or were at that time citizens of said State of Arkansas;" nor have we been able to find in the record any evidence, allegation or statement as to the citizenship of any of them. That the defendant Hodges was a citizen of Arkansas, in connection with the fact that none of the complainants were citizens of that State, is not sufficient to give jurisdiction in a Circuit Court of the United States. Brown v. Keene, 33 U. S. 8 Pet. 115 [8: 886].

The adverse party must be a citizen of some other named State than Arkansas, or an alien. All the complainants might be residents and citizens of the District of Columbia, or of any Territory, and they might not be citizens of the State of Tennessee where the suit was brought, or indeed, of any State in the Union. A citizen of a Territory, or of the District of Columbia, can neither bring nor sustain a suit on the ground of citizenship, in one of the cir cuit courts. Barney v. Baltimore, 73 U. S. 6 Wall. 280 [18: 825].

This court has always been very particular in requiring a distinct statement of the citizenThe suit was originally brought in the Chan-ship of the parties, and of the particular State cery Court of Shelby County, held in the City in which it is claimed, in order to sustain the of Memphis in that State, in regard to a con- jurisdiction of those courts; and inasmuch as troversy which arose concerning the title to the only citizenship specifically averred and certain real estate situated in the State of Ar- set out in the case before us is that of the dekansas. The principal defendant, Asa Hodges, fendant Hodges, at whose instance the cause was a citizen of Arkansas, and upon that was removed, and as that is the only ground ground procured an order in the chancery court upon which the removal was placed, it seems to remove the case into the Circuit Court of the clear that the circuit court did not have jurisUnited States for the Western District of diction of it, and that the suit should have been

[325]

under the Constitution of the United States, or under any law or treaty made in pursuance thereof. It is not a question, therefore, which, under this writ of error, we have a right to review. We are not authorized to inquire into the grounds and reasons upon which the supreme court proceeded in its construction of [233] that statute. It is a state statute conferring certain rights upon suitors choosing to avail themselves of its provisions upon certain conditions in certain cases. Who may sue under it, and when, and under what circumstances, are questions for the exclusive determination of the state tribunals, whose judgment thereon is not subject to review by this court. It was competent for the State of South Carolina either to grant or withhold the right to bring suits against the officers of the State for the recovery of money alleged to have been illegally exacted and wrongfully paid. If granted, the action is in substance, though not in name, an action against the State itself, just as an action, permitted by the Act of Congress on the subject, against a collector of customs for the recovery of duties alleged to have been illegally exacted, and paid under protest, is an action against the United States, though nominally against the collector. In such cases, as the State may withhold all remedy, it may attach to the remedy it actually gives whatever conditions and limitations it chooses; and its own interpretation and application of its statutes on that subject, given by its own judicial tribunals, are conclusive upon the parties seeking the benefit of them. No right secured by the Constitution of the United States to any citizen is affected by them unless they are framed or administered so as, in some particular case, to deprive the party of his property without due process of law or to deprive him of the equal protection of the laws. No such question is or can be made in reference to the statute of South Carolina under consideration. It authorizes, in certain enumerated cases, parties found to be within its terms to bring a prescribed action against the State in the name of one of its officers. According to the decision of its highest tribunal, the plaintiff in this action is not within the class entitled to sue. review that judgment is not within the province of this court, because it does not deny or injuriously affect any right claimed by the plaintiff under the Constitution or laws of the United States.

[234]

affirmatively not only that a federal question was presented for decision to the highest court of the State, having jurisdiction, but that its decision was necessary to the determination of the cause, and that it was actually decided, or that the judgment as rendered could not have been given without deciding it. Brown v. At well, 92 U. S. 327 [23: 511]: Citizens Bank v. Board of Liquidation, 98 U. S. 140 [25: 114]; Chouteau v. Gibson, 111 U. S. 200 [28: 400]; Adams County v. Burlington & M. R. R. Co 112 U. S. 123 [28: 678]; Detroit City R. Co. v. Guthard, 114 U. S. 133 [29: 118]; New Orleans Water Works Co. v. Louisiana Sugar Refining Co. 125 U. S. 18 [31: 607].

Inasmuch, therefore, as the judgment of the Supreme Court of the State of South Carolina, sought to be brought in review by this writ of error, does not involve any question necessarily arising under the Constitution of the United States or the laws and treaties made in pursu ance thereof, we must refuse to take jurisdiction in the case.

The writ of error is accordingly dismissed for want of jurisdiction.

ANNA E. CAMERON ET AL. Appts.,

v.

'ASA HODGES ET AL.

(See S. C. Reporter's ed. 322-326).

Jurisdiction of circuit courts-citizenship of par ties-statement— objection—amendment-remanding suit.

1. It is not sufficient, to give jurisdiction to a Circuit Court of the United States, that the defendant in the suit is a citizen of the State, and that none of the complainants were citizens of that State. The adverse party must be a citizen of some other named State, or an alien.

Columbia, can neither bring nor sustain a suit on 2. A citizen of a Territory, or of the District of the ground of citizenship, in one of the Circuit courts.

parties, and of the particular State in which it is claimed, is required, in order to sustain the juris

3. A distinct statement of the citizenship of the

To diction of the circuit court.

objection of the want of jurisdiction in the circuit 4. This court will, on its own motion, take the court, especially as regards citizenship.

5. This court may reverse the decree of the court below because it had no jurisdiction, but has no power to amend the record so as to give jurisdiction to that court.

6. Where it appears upon the face of the affidavit or petition for removal of a suit from a state court circuit court, it is the duty of that court at any that the suit has been improperly removed into the time to remand the suit to the state court. [No. 208.]

Argued April 5, 1888. Decided April 30, 1888.

APPEAL from a decree of the Circuit Court

It is a well settled rule, limiting the jurisdiction of this court in such cases, that "where it appears by the record that the judgment of the state court might have been based either upon a law which would raise a question of repugnancy to the Constitution, laws, or treaties of the United States, or upon some other independent ground, and it appears that the court did, in fact, base its judgment on such of the United States for the Western Disindependent ground, and not on the law rais-trict of Tennessee dismissing a bill in regard ing the federal question, this court will not take jurisdiction of the case, even though it might think the position of the State court an unsound one." Klinger v. Missouri, 80 U. S. 13 Wall. 257, 263 [20: 635, 637] per Mr. Justice Bradley. And it has been repeatedly decided, under section 709 of the Revised Statutes, that, to give this court jurisdiction of a writ of error to a state court, it must appear

the title to real estate. Reversed.

The facts are stated in the opinion. Messrs. D. H. Poston and W. K. Poston, for appellants:

The bill being on oath, the answer only makes an issue, and one witness will overturn it.

McLardv. Linnville, 10 Humph. 163, Trabue v. Turner, 10 Heisk. 447.

[326)

WILLIAM C. CULBERTSON, Plff. in Err., V. Rice, 52 Mich. 451.

Witnesses to deed—acknowledgment—Michigan | 224.
record-declaration of trust-Michigan tax
deed-evidence.

1. A deed in Michigan held to be sufficiently wit-
nessed by two persons where the signatures of the
witnesses follow a memorandum of interlineation.