reputation, and time, greatly to his cost, loss, damage, and injury." Alleging a refusal by the defendant in mandamus "to proceed, on the part of the United States, to seek to obtain redress of grievance in behalf of your petitioner," it was prayed that a writ of mandamus issue, "addressed to said defendant, John Hay, the Secretary aforesaid, commanding and requiring him forthwith to institute vigorous and proper proceedings against the Empire of Germany, or Kingdom of Prussia, or both, that is to say, against the Emperor, for the recovery of $500,000 damages, in behalf of your petitioner."

The matter was heard, and an order was entered, dismissing the petition. An appeal was allowed, and the court of appeals of the District affirmed the judgment. 20 App. D. C. 576. By writ of error the cause was then brought to this court.

Mr. R. S. Tharin argued the cause, and, with Mr. A. E. L. Leckie, filed a brief for plaintiff in error.

Assistant Attorney General McReynolds submitted the cause for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The relief demanded was denied by the [375 court below substantially *upon the ground that no legal duty rested upon the defendant to do the act the performance of which it was the purpose of the proceeding to coerce, because such act concerned the political department of the government, involving solely the exercise of official discretion, which was not subject to judicial control. Without intimating in the slightest degree that the dismissal was not justified upon the ground referred to, we are compelled to dispose of the case upon the objection made to the want of jurisdiction in this court to entertain the writ of error.

It is provided in the Code of the District of Columbia (31 Stat. at L. 1227, chap. 854), as follows:

"Sec. 233. Any final judgment or decree of the court of appeals may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in all cases in which | the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars, in the same manner, and under the same regulations, as existed in cases of writs of error on judgments or appeals from decrees rendered in the supreme court of the District of Columbia on February ninth, eighteen hundred and ninety-three, and also in cases, without regard to the sum or value of the matter in dispute,

wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States."

It is clear, therefore, unless the case is one in which the matter in dispute, exclusive of costs, exceeds the sum of $5,000, we have no power to review the final judgment of the court of appeals in this case.

The meaning of the term "matter in dispute," as employed in prior and analogous statutes regulating appeals from the courts of the District of Columbia, has been considered in previous decisions of this court, to one only of which we shall specially refer.

In South Carolina v. Seymour, 153 U. S. 353, 38 L. ed. 742, 14 Sup. Ct. Rep. 871, the court had *under consideration § 8 of the act [376] of 1893 [27 Stat. at L. 436, chap. 74, U. S. Comp. Stat. 1901, p. 573], referred to in § 233 of the District Code, supra. Particularly discussing the preliminary provision conferring jurisdiction upon this court where "the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars," the court said (p. 357, L. ed. p. 744, Sup. Ct. Rep. p. 873):

"In order to bring a case within the first alternative, the matter in dispute, according to the settled construction, must be money, or some right the value of which can be estimated and ascertained in money, and which appears by the record to be of the requisite pecuniary value."

Now, assuming that the term "matter in dispute" may embrace a right to have a claim against a foreign government present. ed through the political department of the United States, and that the value of such a right may be gauged by the possible pecuniary injury which may be sustained if no such action is taken, it is yet evident that the claim under consideration is one having merely a conjectural value. The "matter in dispute," as respects a money demand, has relation to justiciable demands. Now, the averments in the petition for mandamus in this case do not, under the principles of the law of false imprisonment prevailing in this country, state a cause of action even against individuals, much less against a sovereignty; nor is it shown that the alleged wrong was actionable under the laws of Germany. So far as appears, the right to assert the demand in question upon the German Empire is merely a right to appeal to the grace of that country. The value of such a right is manifestly purely conjectural, and not susceptible of a pecuniary estimate. It certainly cannot be said to have the value declared by the statute to be essential to our power to entertain a writ

be dismissed.

Mr. Justice Brewer and Mr. Justice Brown think the judgment should be affirmed.

*SUN PRINTING & PUBLISHING ASSOCIATION, Piff. in Err.,

v.

CHARLES WILLIAM EDWARDS.

(See S. C. Reporter's ed. 377-383.)

Pleading--sufficiency of allegations of citi zenship defective averments cured by record.

1.

2.

An allegation of a complaint admitted by answer, that "defendant is a domestic corporation duly organized and existing under the laws of New York, having its principal office for the transaction of business in the northern district of New York," sufficiently avers that the corporation is a citizen of New York, for the purpose of giving juris diction to a Federal circuit court.

Resort may be had to the entire record for the purpose of curing a defective averment of citizenship, where the jurisdiction of the lower Federal court is asserted to depend upon diversity of citizenship.

The testimony contained in a certificate

from a circuit court of appeals of the United States, and recited to have been given on the

trial of an action at law in the court below, will be assumed to have been preserved in a bill of exceptions which formed part of the transcript of record filed in the circuit court of appeals on the writ of error from that court to the court below.

An averment that plaintiff is a resident of the state of Delaware will be regarded by an appellate court as a sufficient averment of citizenship in that state, for the purpose of

giving jurisdiction to a Federal circuit court,

where the uncontradicted testimony shows a legal domicil therein, and that any absence from the state was without intention to abandon such domicil.

[No. 239.]

ciently shown to give jurisdiction of the action to a Federal circuit court. Answered in the affirmative.

The facts are stated in the opinion. Mr. Franklin Bartlett argued the cause and filed a brief for the Sun Printing & Publishing Association:

"Citizenship" and "residence" are not synonymous terms.

Parker v. Overman, 18 How. 141, 15 L. ed. 318; Robertson v. Cease, 97 U. S. 648, 24 L. ed. 1058.

There must be an explicit averment of citizenship.

Bingham v. Cabot, 3 Dall. 382, 1 L. ed. 646; Abercrombie v. Dupuis, 1 Cranch, 343, 2 L. ed. 129; Wood v. Wagnon, 2 Cranch, 9, 2 L. ed. 191; Capron v. Van Noorden, 2 Cranch, 126, 2 L. ed. 229; Brown v. Keene, 8 Pet. 112, 8 L. ed. 885.

The essential jurisdictional fact should be averred or alleged in the bill of complaint. Hornthall v. The Collector, 9 Wall. 560, 19 L. ed. 560.

There is no presumption in favor of jurisdiction in the circuit court, but the presumption is against jurisdiction.

Robertson v. Cease, 97 U. S. 646, 24 I ed. 1057; Grace v. American Cent. Ins. Co. 109 U. S. 283, 27 L. ed. 934, 3 Sup. Ct. Rep. 207; Börs v. Preston, 111 U. S. 255, 28 L. ed. 420, 4 Sup. Ct. Rep. 407.

An averment of residence is not the equivalent of an averment of citizenship for the purposes of jurisdiction in the courts of the United States.

Everhart v. Huntsville Female College, 120 U. S. 223, 30 L. ed. 623, 7 Sup. Ct. Rep. 555; Menard v. Goggan, 121 U. S. 253, 30 L. ed. 914, 7 Sup. Ct. Rep. 873; Denny v. Pironi, 141 U. S. 123, 35 L. ed. 657, 11 Sup. Ct. Rep. 966.

The record fails to disclose diverse citizenship in the parties.

Ex parte Smith, 94 U. S. 455, 24 L. ed. 165; Grace v. American Cent. Ins. Co. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep.

1904.

A CERTIFICATE from the United

O`States Circuit Court of Appeals for the

Second Circuit presenting the question

NOTE.-As to diverse citizenship as ground of Federal jurisdiction-see Shipp v. Williams, 10

C. C. A. 247, and note; Mason v. Dullagham, 27

C. C. A. 296, and note; Seddon v. Virginia, T. & C. Steel & I. Co. 1 L. R. A. 108, and note; and Myers v. Murray, N. & Co. 11 L. R. A. 216, and note. And see note to Roberts v. Lewis, 36 L.

ed. U. S. 579.

On sufficiency of averments of diverse citizenship to confer jurisdiction on Federal courtssee note to Shipp v. Williams, 10 C. C. A. 261.

The record must show affirmatively and with distinctness that at the time of the commencement of the action a diversity of citizenship existed.

Emsheimer v. New Orleans, 186 U. S. 44, 46 L. ed. 1047, 22 Sup. Ct. Rep. 770; Gibson v. Bruce, 108 U. S. 561, 27 L. ed. 825,, 2 Sup. Ct. Rep. 873; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193; Peper v. Fordyce, 119 U. S. 471, 30 L. ed. 435, 7 Sup. Ct. Rep. 287; Thayer v. Life Asso. of America, 112 U. S. 717, 28 L. ed. 864, 5 Sup. Ct Rep. 355.

Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Horne v. George H. Hammond Co. 155 U. S. 393, 39 L. ed. 197, 15 Sup. Ct. Rep. 167; Interior Constr. & Improv. Co. v. Gibney, 160 U. S. 219, 40 L. ed. 401, 16 Sup. Ct. Rep. 272.

A party cannot, by proceedings in the circuit court, waive a question of jurisdiction in that court, so as to prevent its being raised and passed upon by the Supreme Court of the United States.

Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462, 4 Sup. Ct. Rep. 510; Metcalf v. Watertown, 128 U. S. 589, 32 L. ed. 544, 9 Sup. Ct. Rep. 173; Parker v. Ormsby, 141 U. S. 81, 35 L. ed. 654, 11 Sup. Ct. Rep. 912.

Jurisdiction cannot be inferred argumentatively, either from the averments or allegations of the complaint, or from the testimony appearing in the record.

Brown v. Keene, 8 Pet. 115, 8 L. ed. 886; Robertson v. Cease, 97 U. S. 649, 650, 24 L ed. 1059.

A man may actually reside in one place, and have his home or residence there, and yet may have a domicil in another place. Story, Confil. L. § 44.

In the matter of the jurisdiction of the Federal courts, the discrimination between suits between citizens of the same state, and suits between citizens of different states is established by the Constitution and laws of the United States. And it has been the constant effort of Congress and of this court to prevent this discrimination from being evaded, by bringing into the Federal courts controversies between citizens of the same state.

Bernards Twp. v. Stebbins, 109 U. S. 353, 27 L. ed. 960, 3 Sup. Ct. Rep. 252; Shreveport v. Cole, 129 U. S. 44, 32 L. ed. 592, 9 Sup. Ct. Rep. 210.

Facts or acts which in legal intendment constitute citizenship must be proved, and not be mere declarations of the party.

Butler v. Farnsworth, 4 Wash. C. C. 103,

Fed. Cas. No. 2,240.

The diversity of citizenship must exist at the time of the commencement of the action,

which is the time of the test.

Stevens ▼. Nichols, 130 U. S. 231, 232, 32 L. ed. 914, 9 Sup. Ct. Rep. 518; Jackson ▼. Allen, 132 U. S. 34, 33 L ed. 249, 10 Sup. Ct. Rep. 9.

The decision of this court in the case of Brown v. Keene, 8 Pet. 112, 8 L. ed. 885, i fatal to the argument of the defendant in

error.

United States v. Wong Kim Ark, 169 U. S. 649, 42 L ed. 890, 18 Sup. Ct. Rep. 456.

Neither the place of organization, nor the principal place of business, is an absolute test of citizenship.

Union P. R. Co. v. Harris, 158 U. S. 327, 39 L. ed. 1003, 15 Sup. Ct. Rep. 843; Guinn v. Iowa C. R. Co. 4 McCrary, 566, 14 Fed. 323; New York & N. E. R. Co. v. Hyde, 5 C. C. A. 461, 5 U. S. App. 443, 56 Fed. 188.

Mr. Thomas F. Bayard argued the cause and filed a brief for Edwards: If the diversity of citizenship affirmatively appears upon the record, the jurisdiction of the circuit court must be affirmed.

Grace v. American Cent. Ins. Co. 109 U. S. 278, 27 L. ed. 932, 3 Sup. Ct. Rep. 207; Peper v. Fordyce, 119 U. S. 469, 30 L. ed. 435, 7 Sup. Ct. Rep. 287; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380, 7 Sup. Ct. Rep. 193.

An affirmative averment that one of the parties is a corporation, duly organized and existing under the laws of a certain state, is a sufficient allegation to establish the citizenship of the party in that state.

Louisville, C. & C. R. Co. v. Letson, 2 How. 497, 558, 11 L. ed. 353, 377; Marshall v. Baltimore & O. R. Co. 16 How. 314, 329, 14 L. ed. 953, 959; United States Exp. Co. v. Kountze Bros. 8 Wall. 342, 351, 19 L. ed. 457, 460; Muller v. Dows, 94 U. S. 444, 445, 24 L. ed. 207; Black's Dillon, Removal of Causes, § 178; Foster, Fed. Pr. 3d ed. § 19, p. 67.

For the purpose of jurisdiction of the courts of the United States, domicil is the test of citizenship.

Poppenhauser v. India-Rubber Comb Co. 14 Fed. 707; Carter, Jurisdiction of Federal Courts, p. 18.

As a resident in Delaware, with his home in Delaware, and with the animus manendi, Edwards was a citizen of the state of Dela

ware.