Page:Federal Reporter, 1st Series, Volume 5.djvu/518

 506 FSDSRAL BBFQBTSR. �junsdiction. They say: "As^the jurisdietion of the circuit court is limited in the sense that it has none except that con- ferred by the constitution and laws of the United Btates, the presumption now, as well as before the fourteenth amend- mpnt, is that a cause is without its jurisdiction unless the contrary affirmatively appears. In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the fàcts which in legal intendment constitute it, should be tdistinotly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other. parts of the record. In Broun v. Keene, 8 Pot. 115, Mr. Çhief Justice Marshall, said: "The deoifiions of this court require that the averment of jurisdiction shall state expressly the fact on which jurisdiction depends. It is net sufficient that jurisdiction may be inferred àrgumentatively from its averments." �It is to be noticed that in Rohertson t. Case the particu- lar objection to the jurisdiction relied upon was made after verdict, by a motion in arrest of judgment, when ordinarily the presumption wOuld be that the necessary facts had been proved and every fair intendment allowed to uphold the ver- dict. The present case, arising upon a demurrer, is one in ■which much greater strictness might well be insisted upon. If we look to the bond which the plaintiff in this case filed as a condition precedent to obtaining the attachment, and consider it, as we are urged to do, as part of the record, and examine it foi- an averment of the jurisdictional facts, we find that it relieves the plaintiff in one particular, but as we think in one only. It describes the plaintiff as "The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America," and describes the other obliger as "Thomas Y. Canby, of the cityof Baltimore, in the state of Maryland." This may amount to an averment that the plaintiff is a banking association, established under the law providing for national banking associations, but it is not equivalent in our judgment, for reasons before suggested, to the equally necessary averment that the association is estab- lished within the district of Maryland. We must, there- ����