10 FEDERAL Bmronun.
court, that issue must be such as to embrace and cover the alleged
defense, either as permitting the facts of which it consists to be ad-
duced in evidence, or as setting them out specially as a bar to the
action`. Bf the issue be not of this character it cannot be true, as
matter of law, that the decision of the case necessarily depends upon
a federal question, because the latter cannot arise except upon facts
exhibited either by plea or in proof. In the present case there is a
demurrer to the declaration raising only, as a question of law, the
sufliciency of the plaintiiis statement of their cause of action. That
is the case sought to be removed, and it involves no question under
any law of the United States. If the defendant has a defense aris-
ing under any such law, he cannot make it under the pleadings in
. the case, and whether he ever will or can do so does not certainly
appear. It cannot be inferred from anything at present in the rec-
ord. If the demurrer is well taken, he certainly will not, for the de·
rnurrer sustained is a decision upon the merits, and ends the action;
or if it leads to an amendment, that may make a diderent case. If
it is overruled, whether the defendant will plead, and if so, what, is
not made to appear. It is not open, for the purpose of jurisdiction,
to speculate upon what may take place in the progress of the cause.
The ground of present jurisdiction must appear in the record as it
actually exists, and the petition for removal can be taken as part
. of that record only so far as it states facts which may be regarded as
legally consistent with the pleadings of the parties, and within the
purview of the issue, if one has been made between them.
For these reasons the motion of the plaintiffs to remand the cause
to the superior court of Detroit is granted, and the cause is remanded
accordingly, at the costs of the defendant.
McFum:•mr and others v. Roemsou and others.
(Circuit Court, D. Oalqwnia. October 20, 1884.)
T Rsupvrr. or Cwsm-Casa Amsme ummm mmsrm-¤·r1oN on Laws or Uurrmn
Tgiidgsse removed to a federal court, on the ground that the suit arose under
, the constitution or laws of the United States, will be remanded to the state
court when the record fails to show that there will arise some contested point
of law depending upon the constitution or laws of the United States, what the
question is, and how it will arise. _
Motion to Bemand Cause.
A. L. Rhodes, for complainants.
Wm. Matthews, for defendants.
Sswrmn, J. The suit is in equity, to quiet title to a tract of land
V which is covered by two patents, issued upon confirmations of two