of them, accrue to the said plaintiff at any time within seven years next preceding the commencement of this suit.

""

The seventh plea set out the facts in regard to such former suit, begun March 26, 1877, referred to in the declaration, denied that it was decided against the plaintiff for matter of form only, and averred that it was so decided on matter of substance; and concluded by averring that "the present action was not brought within seven years after the cause of action accrued," and was, therefore, barred by the statute.

The plaintiff demurred to these pleas, and his demurrer was overruled. Thereupon he filed his replication, taking issue.

The parties waived a jury and submitted the issues of fact to the court by the following agreement:

In this cause a jury is waived, and it is agreed to submit the cause to the court in lieu of a jury to be decided on the law and the evidence, and separate findings thereof to be rendered by the court, so that the decision may be finally reviewed by the Supreme Court of the United States. The court having, in the decision of the questions arising upon the demurrers to sixth and seventh pleas filed, expressed the opinion that the pending of the former suit could not be availed of to prevent the bar of the Statute of Limitations, and that this action is barred by limitation, it is agreed that that sole question shall be presented upon the pleadings and proof, and that only such evidence as in the judgment of the court bears upon that issue shall be incorporated in its findings and presented to the Supreme Court of the United States; and that the record for said court shall consist of the pleadings and exhibits, the orders of the court, the findings of fact and law in the cause, and this agreement. And it is further agreed that should the Supreme Court differ in opinion with and reverse the circuit court, the cause shall be remanded for trial on its merits on all the other questions in the case."

The cause was tried under this agreement and the court made both a general and special finding of facts. The general finding was as follows: "The court having heard the evidence upon the sixth and seventh pleas of the defendant, and replications thereto, etc., finds said issues in favor of defendants, and that said plaintiff's right of action when this suit was brought was barred by the Statute of Limita

tions.'

The court found, by its special findings, as follows: the plaintiff's cause of action accrued in this case on April 1, 1871, and, what the record also shows, this action was brought December 21, 1878; on March 26, 1877, the plaintiff brought an action against the defendant on the contract set out in and exhibited with the declaration in this cause; the defendant pleaded a transfer of all interest in said contract to an assignee in bankruptcy, under the bankrupt law; to said plea the plaintiff replied that his assignee in bankruptcy had sold the said contract to one Boyle, who purchased it for the plaintiff, and assigned it to him on the day of January, 1877; issue was joined on this replication; this issue was submitted to the court for trial; on the trial it was shown that the assignment by Boyle to Meath was made on January 28, 1878; on this state of facts the court

found that the plaintiff did not have the legal title to the claim sued on when the action was commenced; and judgment therein was rendered in that suit for the defendants.

Upon the general and special findings, the court found, as matter of law, that this action was barred by the limitation of seven years, and rendered judgment for the defendants. To this conclusion of law the plaintiff excepted and sued out the present writ of error.

Messrs. S. P. Walker, George Gantt and Josiah Patterson, for plaintiff in error. Mr. James Lowndes, for defendant in error.

Mr. Justice Woods delivered the opinion of the court:

It is insisted, by the plaintiff in error, that the special findings of the court are fatally defective, because they do not find the contract by which the suit was brought or fix the date when the cause of action accrued, and that for this reason the judgment of the circuit court should be reversed. We might dismiss this assignment of error on the ground that there was a general finding for defendants on all the issues of fact, and that no error can be assigned on such a finding. Tioga R. R. Co. v. Blossburg and C. R. R. Co., 20 Wall., 137 [87 U. S., XXII., 331]. But the special findings also fix specifically the date when the plaintiff's right of action accrued, to wit: on the first day of April, 1871. In considering the sufficiency of the special findings the stipulation between counsel, for submitting the cause to the court, must be kept in mind. The only questions which, by this agreement, were to be submitted to the court were the issues raised by the replication to the sixth and seventh pleas being pleas of the Statute of Limitations. The contract and breaches, as set out in the declaration, were, for the purpose of this trial, taken for granted; they were confessed by the pleas, and, as a matter of avoidance, the Statute of Limitations was set up. The court, by its general and special findings, has declared, as a conclusion of fact, that the matters set up in the pleas of the Statute of Limitations were proven. We think the findings pass upon every issue submitted to the court, and that they are not imperfect or defective.

The limitation law of Mississippi applicable to this case was as follows:

"Art. 6. All actions of debt or covenant founded upon any bond, obligation or contract, under seal or upon the award of arbitrators, shall be commenced within seven years next after the cause of such action accrued, and not after."

The Revised Code of Mississippi of 1871 failed to provide any limitation for causes of action under seal, which arose after October 1, 1871, the date fixed by section 2938, when that Code should take effect, but did contain the following provision:

"Sec. 2172. The several periods of limitation prescribed by this chapter, shall commence from the date when it shall take effect, but the same shall not apply to any action commenced nor to any cases where the right of action, or of entry, shall have accrued before that time, but the same shall be subject to the laws now in force; but this law may be pleaded in any case where a bar has accrued under the provisions thereof."

parts of the record. An averment that parties reside, or that a firm does business, in a particular State, or that a firm is "of " that State, is not sufficient to show citizenship in such State.

4. Where the record does not show a case within the jurisdiction of a Circuit Court, this court will take notice of that fact although no question as to jurisdiction had been raised by the parties. [No. 60.]

Argued Oct. 19, 1883. Decided Nov. 19, 1883. 'N ERROR to the Circuit Court of the United

The history and facts of the case fully appear in the opinion of the court.

Messrs. Winchester Britton and B. F. Tracy, for plaintiffs in error:

The notice to Anthony was not such a notice of election to terminate the risk as was required by the terms of the policy.

Whited v. Ins. Co., 76 N. Y., 415; Rohrbach v. Ins. Co., 62 N. Y., 47; Alexander v. Ins. Co., 66 N. Y., 464; Van Schoick v. Ins. Co., 68 N. Y., 434; Ins. Co. v. Myers, 30 Am. Rep., 521; 55 Miss., 479.

The case of the Standard Oil Co., against the Triumph Ins. Co. (64 N. Y., 85), has no application here. See, Brueck v. Ins. Co., 21 Hun,548. Nor does the testimony, claimed to establish a custom, charge plaintiffs with this notice to Anthony.

Bradley v. Wheeler, 44 N. Y., 500; Higgins v. Moore, 34 N. Y., 425; Esterly v. Cole, 3 N. Y., 502; Dawson v. Kittle, 4 Hill, 107; Wheeler v. Newbould, 5 Duer, 29; Brueck v. Ins. Co.(supra); Wallis v. Bailey, 49 N. Y., 464; Woolen Co. v. Proctor, 7 Cush., 417; Cunningham v. Fonblanque, 6 Carr. & P., 44; Garey v. Meagher, 33 Ala., 630; Bank v. Swain, 29 Md., 483; Mills v. Hallock, 2 Edw. Ch., 652; Haskins v. Warren. 115 Mass., 514; Randall v. Smith, 18 Am. Rep., 200, and note; Adams v. Ins. Co., 76 Pa., 411; Harris v. Tumbridge, 83 N. Y., 92; Lawson, Usages and Customs, pp. 23, 48, 52, 55, 63, 89,97. Mr. George W. Parsons, for defendant in error:

Independent of direct and positive evidence of the fact of the agency, the law interprets the acts of the parties as constituting an agency.

Phil. Ins., sec. 1870; Meadowcraft v. Ins. Co., 61 Pa. St., 91; Bodine v. Ins. Co., 51 N. Y., 117; Bergson v. Ins. Co., 5 Ben. Fire Ins. Cas., 253; Story, Ag., sec. 14.

Notice was given and accepted; and the contract of insurance was then and there, by its express terms, terminated.

Ins. Co. v. Stark, 6 Cranch, 272.

In Standard Oil Co. v. Ins. Co., 64 N. Y., 85, a case quite parallel with that under discussion, it was held that an insurance broker, employed by a party to effect insurance for him, must be regarded as his agent, and may be regarded by the insurer as clothed with full authority to act for his principal in procuring, modifying or canceling policies; and his acts in these respects are binding upon his principal, the same as if done by the principal.

See, also, Ins. Co. v. Mueller, 8 Ins. Law Jour., 263; Armour v. Ins. Co., 47 N. Y. Sup. Ct., 352; Bank v. Davis, 2 Hill, 461; McEwen v. Ins. Co., 5 Hill, 101; Bank v. Canal Co., 4 Paige, 137; Boyd v. Vanderkemp, 1 Barb. Ch., 273; Anderson v. Coonley, 21 Wend., 279; Ins. Co., v. Ins. Co., 66 N. Y., 119; Ins. Co. v. Stark, 6 Cranch, 268.

There was uncontradicted and satisfactory evidence given of a well known custom to give the notice of cancellation in such cases to the agent. The usage is entirely in harmony with the terms of the contract. But even if the contract had been silent on that subject, the law would hold that the parties must have contracted in reference to such custom, which indeed should be taken to be a part of the contract.

Story, Ag., secs. 77, 106; Pars. Cont., 52;

86 N. Y., 476; Duncan v. Hill, 19 W. R., 894; 3 Kent, Com., 389; Lawson, Usages and Customs, sec., 24.

As to the admission of evidence of usage, see, 2 Phil. Ev., 4 Am. ed., 798; Blackett v. Royal Assur. Co., 2 Cromp. & J., 244; Hinton v. Locke (supra); Grant v. Maddox, 15 Mees. & W., 737; Yates v. Pym, 6 Taunt., 446; Keener v. Bank, 2 Barr., 237; Sweet v. Jenkins, 1 R. I., 147; Mumford v. Hallett, 1 Johns., 439; Rankin v. Ins. Co., 1 Hall (N. Y.), 619; Partridge v. Ins. Co., 1 Dill., 139; Barnard v. Kellogg, 10 Wall., 383 (77 U. S., XIX., 987]; Steinbach v. Ins. Co., 13 Wall., 183 (80 U. S., XX., 615]; Blackett v. Ins. Co. (supra); Rogers v. Ins. Co., 1 Story, 603; Ins. Co. v. Holzrafe,[53 Ill., 516.

Mr. Justice Harlan delivered the opinion of the court:

This is an action upon a policy of fire insurance issued September 26, 1877, by the American Central Insurance Company of St. Louis to the firm of Wm. R. Grace & Co.

The circumstances under which it was issued are these: a clerk of Wm. R. Grace & Co., charged with the duty of effecting insurance against loss by fire upon their property, employed one W. R. Moyes, a broker in the City of New York, to obtain insurance, in a specified amount, for his principals. Moyes instructed one Anthony, an insurance broker and agent in Brooklyn, who had on previous occasions obtained policies for Grace & Co., to procure the required amount of insurance. Anthony obtained the policy in suit from the general agenta in New York City, of the defendant Company, mailed or delivered it to Moyes, and by the latter it was delivered to Grace & Co. not later than the day succeeding its date. On the morning of October 6, one Carrol, for the Insurance Company, verbally notified Anthony that the Company refused to carry the risk and required the policy to be returned. There is some conflict in the testimony as to what occurred between Carrol and Anthony on this occasion. But, in the view which the court takes of this case, it may be conceded that Anthony gave Carrol to understand that the policy would be returned to the Company or its agents. The property insured was destroyed by fire on the night of October 6, 1877, or early on the morning of the 7th. Prior to the fire neither the insured, nor their clerk by whose instructions the policy was obtained, had any knowledge or notice of the conversation between Carrol and Anthony, or of the fact that the Company had elected not to carry the risk. At the trial it was admitted that the contract between the parties was fully executed upon the delivery of the policy to the insured.

The eighth clause of the policy is in these

The court refused, although so requested by plaintiffs, to rule that Anthony was not, within the meaning of the policy, their agent for the purpose of receiving notice of its termination; but charged the jury, in substance, that Anthony was, for such purpose, to be deemed the agent of the insured. Exception was taken in proper form by plaintiffs, as well to the refusal to give their instruction, as to that given by the court to the jury. A verdict was returned for the Company, and judgment thereon was entered.

The charge, in connection with the opinion delivered by the learned Judge who presided at the trial, indicates that, in his judgment, the words in the eighth clause: "It is a part of this contract that any person, other than the assured, who may have procured the insurance to be taken by this Company, shall be deemed to be the agent of the assured named in this policy," were intended to be qualified by the words "in any transaction relating to this insurance." Upon this ground it was ruled that notice of the termination of the policy was properly given to Anthony, who personally procured the insurance. We do not concur in this interpretation of the contract. The words in their natural and ordinary signification import nothing more than that the person obtaining the insurance was to be deemed the agent of the insured in all matters immediately connected with the procurement of the policy. Representations by that person in procuring the policy, were to be regarded as made by him in the capacity of agent of the insured. His knowledge or information, pending negotiations for insurance, touching the subject-matter of the contract, was to be deemed the knowledge or information of the insured. When the contract was consummated by the delivery of the policy he ceased to be the agent of the insured, if his employment was solely to procure the insurance. What the Company meant by the clause in question, so far as it relates to the agency, for the one party or the other, of the person procuring the insurance, was, to exclude the possibility of such person being regarded as its agent, under any circumstances whatever, or in any transaction relating to this insurance. This, we think, is not only the proper interpretation of the contract, but the only one at all consistent with the intention of the parties as gathered from the words used. There is, in our opinion, no room for a different interpretation. If the construction were doubtful, then the case would be one for the application of the familiar rule that the words of an instrument are to be taken most strongly against

As the uncontradicted evidence was that Anthony's agency or employment extended only to the procurement of the insurance, the jury should have been instructed that his agency ceased when the policy was executed, and that notice to him, subsequently, of its termination was ineffectual to work a rescission of the contract.

At the trial below, evidence was offered by the Company and was permitted, over the objection of plaintiffs, to go to the jury, to the effect that, when this contract was made, there existed in the Cities of New York and Brooklyn an established, well known general custom in fire insurance business, which authorized an insurance company, entitled upon notice to terminate its policy, to give such notice to the broker by or through whom the insurance was procured. This evidence was inadmissible because it contradicted the manifest intention of the parties as indicated by the policy. The objection to its introduction should have been sustained. The contract, as we have seen, did not authorize the Company to cancel it upon notice merely to the party procuring the insurance-his agency, according to the evidence, not extending beyond the consummation of the contract. The contract, by necessary implication, required notice to be given to the insured, or to some one who was his agent to receive such notice. An express written contract, embodying in clear and positive terms the intention of the parties, cannot be varied by evidence of usage or custom. In Barnard v. Kellogg, 10 Wall., 383 [77 U. S., XIX., 987], this court quotes with approval the language of Lord Lyndhurst in Blackett v. Royal Exchange Assur. Co., 2 Cromp. & J., 249, that

Usage may be admissible to explain what is doubtful; it is never admissible to contradict what is plain." This rule is based upon the theory that the parties, if aware of any usage or custom relating to the subject-matter of their negotiations, have so expressed their intention as to take the contract out of the operation of any rules established by mere usage or custom. Whatever apparent conflict exists in the adjudged cases as to the office of custom or usage in the interpretation of contracts, the established doctrine of this court is as we have stated. Partridge v. Ins. Co., 15 Wall., 573 [82 U. S., XXI., 2291; Robinson v. U. S., 13 Wall., 365; [80 U. S., XX., 654]; The Delaware, 14 Wall., 603 [81 U. S., XX., 783]; Nat. Bk. v. Burkhardt, 100 U. S., 692 [XXV., 769].

The record in this case presents a question of jurisdiction which, although not raised by either party in the court below or in this court, we do not feel at liberty to pass without notice. Sullivan v. Steamboat Co., 6 Wheat., 450. As the jurisdiction of the Circuit Court is limited, in the sense that it has no other jurisdiction than that conferred by the Constitution and laws of

the United States, the presumption is that a cause is without its jurisdiction unless the contrary affirmatively appears. Turner v. Bank, 4 Dall., 8; Ex parte Smith,94 U. S.,456 [XXIV., 165]: Robertson v. Cease, 97 Id., 649 [XXIV., 1058]. In the last case it is said that, "Where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively and with equal distinctness in other parts of the record." R. Co. v. Ramsey, 22 Wall., 322 [89 U. S., XXII., 823]; Briges v. Sperry, 95 U. S., 401 [XXIV., 390]. In Brown v. Keene, 8 Pet., 115, it is declared not to be sufficient that jurisdiction may be inferred argumentatively from averments in the pleadings; that the averments should be positive.

The present case was commenced in the Supreme Court of New York and was thence removed, on the petition of the defendant, to the Circuit Court of the United States for the Eastern District of New York. The record does not satisfactorily show the citizenship of the parties. The complaint filed in the state court shows that the firm of Wm. R. Grace & Co., composed of Wm. R. Grace, Michael P. Grace and Charles R. Flint, is doing business in New York, and that Wm. R. Grace and Charles R. Flint are residents of that State. The petition for the removal of the cause shows that the defendant is a Corporation of the State of Missouri; that Wm. R. Grace and Charles R. Flint reside

in New York; and that Michael P. Grace is a resident of some State or country unknown to defendant, but other than the State of Missouri. The record, however, fails to show of what State the plaintiffs are citizens. They may be doing business in and have a residence in New York without, necessarily, being citizens of that State. They are not shown to be citizens of some State other than Missouri. Bingham v. Cabot, 3 Dall., 383; Abercrombie v. Dupuis, 1 Cranch, 343; Jackson v. Twentyman, 2 Pet.,136; Sullivan v. Steamboat Co., supra; Hornthall v. Collector, 9 Wall., 565 [76 U. S., XIX., 562]; Brown v. Keene, supra; Robertson v. Cease, supra.

It is true that the petition for removal, after stating the residence of the plaintiffs, alleges "that there is, and was at the time when this action was brought, a controversy therein between citizens of different States." But that is to be deemed the unauthorized conclusion of law which the petitioner draws from the facts previously averred. Then there is the bond given by the defendant on the removal of the cause, which recites the names of the firm of Wm. R. Grace & Co., and describes it as "of the County of Kings and State of New York." If that bond may be considered as part of the record for the purpose of ascertaining the citizenship of the parties, the averment that the plaintiffs are "of the County of Kings and State of New York" is insufficient to show citizenship. Bingham v. Cabot, 3 Dall., 382; Wood v. Wagnon, 2 Cranch,9. As the judgment must be reversed and a new trial had, we have felt it to be our duty, notwithstanding the record, as presented to us, fails to disclose a case of which the court below could take cognizance, to indicate, for the benefit of parties at another trial, the conclusion

reached by us on the merits. And we have called attention to the insufficient showing as to the jurisdiction of the Circuit Court so that, upon the return of the cause, the parties may take such further steps, touching that matter, as they may be advised.

The judgment is reversed and the cause remanded, with directions to set aside the judgment, and for such further proceedings as may not be inconsistent with this opinion. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-111 U. S., 255, 342, 382, 386; 33 Hun, 588.

MONONGAHELA NATIONAL BANK OF BROWNSVILLE, PA., Plf. in Err.,

v.

SAMUEL H. JACOBUS.

(See S. C., Reporter's ed., 275-277.)

Competency of witnesses.

ecution attachment against property claimed by a In proceedings subsequent to judgment on an exthird person, the deceased debtor's administrator and the claimant of the property are competent witnesses under sec. 858, R. S., to prove the alleged transfer of such property from such debtor to claimant, and its consideration. [No. 84.]

Submitted Oct. 26, 1883. Decided Nov. 19, 1883.

IN ERROR to the Circuit Court of the United States for the Western District of Pennsyl

vania. The history and facts of the case appear in the opinion of the court.

Messrs. D. T. Watson and Knox & Reed, for plaintiff in error.

Messrs. Thos. C. Lazear and J. W. Douglass for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

The plaintiff in error, having recovered a judgment for $9,056.12 against Alfred Patterson, in the Circuit Court of the United States for the Western District of Pennsylvania, caused an execution attachment to be issued against the Fayette County Railroad Company and Samuel H. Jacobus, the defendant in error, attaching, as the property of Patterson, certain shares of the capital stock of that company, which stood in the name of Jacobus. The attachment was duly served upon Patterson, Jacobus and the railroad company. The controlling issue in the case is, whether the stock was the property of Alfred Patterson, and liable to be attached in satisfaction of the judgment against him. Jacobus claims that the stock became his property in virtue of an unrecorded assignment and transfer, for a valuable consideration, by Alfred Patterson prior to the rendition of that judgment; consequently, that it is not liable to the Bank's attachment.

In the progress of the litigation, Patterson died and his administrator was substituted of record as a party defendant.

The contention on the part of the Bank is, that the assignment was by an insolvent debtor in trust for certain preferred creditors, and that