2 rmommn umronru. _
said Brm to Hubbell; two to S. W. Lee, and by him to Hubbell; and
Bve were assigned by the original lienholders directly to Hubbell.
The original bill of complaint was silent as to the citizenship of all
of the original lienholders, and also as to the citizenship of J. C.
Hampton, J. C. Hampton & Go., and S. W. Lee, intermediate as-
signees of 117 of these liens, and the immediate assignors of com-
plainant`. Objection having been raised as to the sufhciency of the bill
on this point, complainant Bled an amended bill, June 5, 1882, alleg-
ing that 113 of the original owners of said liens named in the
amended bill were Chinamen, and subjects of the emperor of China
at the date of the Bling of both the original and amended bill of com-'
plainant. The amended bill, however, was wholly silent asto the cit-
· izenship of the other nine original lien-owners, and also as to the
citizenship of J. G. Hampton, J. C. Hampton & Co., and S. W. Lee,
intermediate assignees of 117 of the liens sought to be foreclosed.
The demands of the nine lienholders whose citizenship is not set
forth aggregate the sum of $4,890.52, in amounts varying from
$2,584.66 to $33. B
This omission in the amended bill of any averment as to the citi-
zenship of these nine original lien claimants may be considered as an
admission that they were citizens of Nevada at the time of the com-
mencement of this action, since, had their citizenship been such as
to bring them within the statute giving this court jurisdiction, it cere
tainly would have been set forth in the amended bill prepared and
' Bled expressly to obviate any supposed jurisdictional defect in the
original bill. If, however, this presumption is not in fact true, still
the bill is fatally defective on this point. The jurisdiction of the
court as to all parties must afdrmatively and clearly appear by the
pleadings, and this not by way of description or recital, but by pos-
itive averment.
The rulings of the supreme court upon this point have been uniform,
and without exception. In Brown v. Keene, 8 Pet. 112, the court says:
A "The decisions of this court require that the averment of jurisdiction
shall be positive that the declaration shall state expressly the fact on
which jurisdiction depends. It is _not sufficient that jurisdiction may
be inferred argumentatively from its avertments." In Exparte Smith,
94 U. S. 455, the court says: "No presumptions arise in favor of the
jurisdiction of the federal courts."
The statute of March 3, 1875, controlling the jurisdiction of the
court in this matter, reads as follows:
4 "Nor shalli any circuit or district court have cognizance of any suit,
founded on contract, in favor of an assignee, unless a suit might have been
prosecuted in such court to recover thereon if no assignment had been made,
except in cases of promissory notes, negotiable by the 1aw—merchant and bills
of exchange. "
In this case it does not appear by the original or amended bill that
any one of these nine original lien-owners, whose citizenship is not