Opinion of the Court.

added as a defendant, but on looking into the record we find no sufficient evidence of the jurisdiction of the Circuit Court, which depends alone on the citizenship of the parties. It is stated in the original bill that Everhart is a resident of Wis consin, and the same fact is also shown by the testimony, but this, as it has often been held, is not enough. An averment of residence is not the equivalent of an averment of citizenship for the purposes of jurisdiction in the courts of the United

According to the pleadings the Huntsville Female Academy is an Alabama corporation, and the other defendants are residents of either Alabama or Tennessee. The decree dismissing both the original and cross-bills is reversed, because the record fails to show the jurisdiction of the Circuit Court, but as the fault rests alone on Everhart, the complainant in the original bill, whose duty it was to put on record the facts necessary to show the jurisdiction, the reversal will be at his costs in this court. This whole subject has already been considered twice during the present term; once in Continental Ins. Co. v. Rhoads, 119 U. S. 237, and again in Peper v. Fordyce, 119 U. S. 469. The reasons for our judgment sufficiently appear in the opinions delivered in those cases. If on the return of the case to the Circuit Court it is made to appear that the citizenship necessary for the jurisdiction existed at the time the suit was brought, it will be for that court to determine whether an amendment of the pleadings ought to be allowed, so as to cure the present defects.

The decrce of the Circuit Court is reversed, at the costs of the appellant Everhart, and the cause remanded for further proceedings not inconsistent with this opinion.

Statement of Facts.

KING BRIDGE COMPANY v. OTOE COUNTY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

Submitted January 7, 1887. - Decided January 31, 1887.

An order drawn upon a county treasurer by county officials in favor of A or order unindorsed, and a like order in favor of A, both assigned by A to B for a valuable consideration, constitute no cause of action in B's favor on which B can maintain an action in a Circuit Court of the United States on the ground of citizenship, if A could not maintain the action there on the same ground; and if, in such action in B's favor A's necessary qualification of citizenship does not affirmatively appear in the record in this court, the judgment below will be reversed whether the question of jurisdiction be made or not, and plaintiff in error adjudged to pay costs in this court.

THIS action was brought, November 10, 1885, by the King Iron Bridge and Manufacturing Company, a corporation of Ohio, against Otoe County, in the State of Nebraska, to recover the amount of two county warrants or orders, each signed by the chairman of the county commissioners of the county and countersigned by the county clerk. One was dated October 9, 1878, and directed the "Treasurer of Otoe County to pay to Z. King, or order, sixteen hundred and five dollars, and charge to account of special bridge fund," and the other, dated January 9, 1879, directed the "Treasurer of Otoe County to pay to Z. King, sixteen hundred and five dollars, and charge to account of special bridge fund." The first one being presented for payment on the 23d of October, 1878, was indorsed by the treasurer, "Presented and not paid for want of funds." The other was presented on the 15th of January, 1879, and received a like indorsement. The petition stated, in respect of each warrant, that it had been for a valuable consideration "sold, transferred and delivered" by Z. King to the plaintiff, who sues as the holder and owner thereof.

Judgment was asked for $3210, with ten per cent. interest on $1605 thereof from October 23, 1878, and for $1605 with like interest from January 15, 1879.

VOL. CXX-15

Opinion of the Court.

The defence was the limitation of five years prescribed by the local law for an action "upon a specialty, or any agreement, contract, or promise in writing or foreign judgment." The court below overruled a demurrer to the answer and dismissed the action.

Mr. N. S. Harwood and Mr. John H. Ames for plaintiff in

error.

Mr. John C. Watson for defendant in error.

MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.

This case was argued upon the question of limitation. But we have no occasion to consider that question; for it does not appear that the Circuit Court had jurisdiction of the action. Unless the contrary appears affirmatively from the record, the presumption, upon writ of error or appeal, is that the court below was without jurisdiction. Robertson v. Cease, 97 U. S. 646; Grace v. American Central Ins. Co., 109 U. S. 278, 283; Börs v. Preston, 111 U. S. 252; Continental Life Ins. Co. v. Rhoads, 119 U. S. 237. That the point as to jurisdiction was not made here by either party is immaterial, because, as said in Mansfield, &c., Railway Co. v. Swan, 111 U. S. 379, 382, "the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." See also Hancock v. Holbrook, 112 U. S. 229, 231.

The act of March 3, 1875, § 1, excludes from the cognizance of a circuit or district court of the United States "any suit founded on contract in favor of an assignee, unless a suit might

Syllabus.

have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant, and bills of exchange." One of the warrants is payable to Z. King, and the other to Z. King, or order. The latter is not indorsed by him in blank or to the order of the plaintiff. Plainly, therefore, upon any view of the statute, the plaintiff, as the holder or owner of the warrants, could not maintain a suit in the court below, unless King could have sued in that court, had he not sold the warrants. But it does not appear that King could have maintained the suit. There is no averment as to his citizenship, nor does his citizenship otherwise appear from the record. We must, therefore, presume, on this writ of error, that the Circuit Court was without jurisdiction.

It will be for the court below to determine whether an amendment of the pleadings upon the point of jurisdiction. will be proper.

The plaintiff in error must pay the costs in this court. Peper v. Fordyce, 119 U. S. 469; Everhart v. Huntsville College, ante, 223.

Reversed.

UNITED STATES v. PACIFIC RAILROAD.

PACIFIC RAILROAD v. UNITED STATES.

APPEALS FROM THE COURT OF CLAIMS.

Submitted January 10, 1887. - Decided January 31, 1887.

The United States are not responsible for the injury or destruction of private property caused by their military operations during the late civil war; nor are private parties chargeable for works constructed on their property by the United States to facilitate such operations. Accordingly, where bridges on the line of a railroad were destroyed during the civil war by either of the contending forces, their subsequent rebuilding by the United States as a measure of military necessity, without the request of, or any contract with, the owner of the railroad, imposes no liability upon such owner.

Opinion of the Court.

THESE were appeals from the Court of Claims. The case is stated in the opinion of the court.

Mr. Attorney General and Mr. E. M. Watson for the United

States.

Mr. John F. Dillon and Mr. James Coleman for the Pacific Railroad Company.

MR. JUSTICE FIELD delivered the opinion of the court.

The Pacific Railroad Company, the claimant in this case, is a corporation created under the laws of Missouri, and is fre quently designated as the Pacific Railroad of that state, to distinguish it from the Central Pacific Railroad Company incorporated under the laws of California, and the Union Pacific Railroad Company incorporated under an act of Congress, each of which is sometimes referred to as the Pacific Railroad Company.

From the 14th of August, 1867, to the 22d of July, 1872, it rendered services by the transportation of passengers and freight, for which the United States are indebted to it in the sum of $136,196.98, unless they are entitled to offset the cost of labor and materials alleged to have been furnished by them, at its request, for the construction of certain bridges on the line of its road. The extent and value of the services rendered are not disputed. It is only the offset or charge for the bridges which is in controversy; and that charge arose in this wise: During the civil war, the State of Missouri was the theatre of active military operations. It was on several occasions invaded by Confederate forces, and between them and the soldiers of the Union conflicts were frequent and sanguinary. The people of the state were divided in their allegiance, and the country was ravaged by guerilla bands. The railroads of the state, as a matter of course, were damaged by the contending forces; as each deemed the destruction of that means of transportation necessary to defeat or embarrass the movements of the other. In October, 1864, Sterling Price, a noted Confederate officer, at the head of a large force, invaded the state and advanced rapidly towards St. Louis, approach