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Catlett and Keith v. Pacific. Insurance Company.

Alexandria, January 29, 1818. Messrs. Le Roy, Bayard, & Co.

Gentlemen-Will you have the goodness to effect insurance on joint account of Mr. James Keith, jr., and myself, upon brig Sphinx, captain Peyton R. Page, from Alexandria to Canton, and back to Alexandria, against all risks ? Say on vessel 10,000 dollars, valued at this sum-On specie 70,000 dollars, provided it can be done in an office of unquestionable solidity, at or under six and a half per cent. The balance of the specie we can get insured here at that rate. The brig is in complete order, and will probably sail by the middle of February. Very respectfully your most obedient servant,


Alexandria, March 5, 1818. Colonel Thomas H. Perkins,

Dear sir-If perfectly convenient, you may, if you please, effect insurance on specie out, and merchandise home, at and from Alexandria, to, at, and from Canton, back to Alexandria, with the usual privileges for trade and refreshments ; say 26,000 dollars, per brig Sphinx, Peyton R. Page, master, for account of James Keith, jr., Thomas R. Keith, and Charles I. Catlett, if to be done at six per cent. Mr. James Keith, jr., and myself, have already had insurance effected on 80,000 dollars. With esteem and respect, your most obedient servant,


William Bayard, jun. of the house of Le Roy, Bayard, & Co., testified, that he went with his father to the office of the defendants to get the insurance effected ; that his father went into the office with Catlett's letter, directing the insurance to be made, and that it was their practice to show such letters to the underwriters.

Catlett and Keith v. Pacific Insurance Company.

A letter was introduced from Catlett to Le Roy, Bayard, & Co., dated the 7th of February, acknowledging the receipt of a letter advising James Keith, jun. and Catlett of the insurance on the Sphinx and cargo. Thomas H. Perkins & Co. effected the insurance in Boston, agreeably to the directions of Catlett, at the office of the Suffolk Insurance Company, who subsequently paid the loss.

John Wheelwright, who was called to prove the residence of the plaintiffs, testified, that James Keith, jun. was a resident of Virginia. In December, 1824, Catlett removed to Virginia, and still resides there. About the time of his removal, he informed witness that, as a resident in the District of Columbia, he could not sue in the United States Courts, and that he meant to procure a residence elsewhere, to enable him to sue. He said he intended to leave Alexandria, and not return, and to reside permanently in Virginia. On his removal he took a lease of a house in Virginia for one year.'

On this evidence the plaintiffs rested their case; and,

T. A. EMMET and G. GRIFFEN for the defendants, moved for a nonsuit on the following grounds :

1. That Catlett, as a citizen of the District of Columbia, could not sue in this Court, and that he had not acquired the right by his residence in Virginia.

In support of this position it was contended, that Catlett, having removed to Virginia with the avowed object of acquiring a residence so as to enable him to sue in the Circuit Court, it was an act in fraudem legis, and the right to sue in such Court could not be acquired by it. It stood on precisely the same ground as the assignment of a chose in action for the same purpose, which had been decided not to give the Court jurisdiction. And it was held to be immaterial that the as

Catlett and Keith.v. Pacific Insurance Company.

signment of the chose in action was for a valuable consideration; the decision was on the ground that it was an attempt to deprive the state Courts of their jurisdiction. What varies this case from that in principle? They are neither of them cases contemplated by the constitution.

2. That the plaintiffs had not proved the warranty that the Sphinx was an American vessel.

The warranty of national character implies, that the vessel shall have the necessary papers on board to show such character. But no evidence has been offered to show that any such papers were on board during the voyage ; and the vessel is not even proved to have been American. The transcript from the Treasury Department is but a copy of a copy, and as such cannot be evidence. It is not the original register which is sent to the Treasury Department when the vessel is lost. That remains with the Collector.

3. That the loss of the property insured was not proved.

The loss is not pretended to have been an actual total loss, and the plaintiffs have not made out such a technical total loss as the law considers equivalent to an actual one. There is no proof that the Sphinx could not have been repaired at the Isle of France. What the captain says of the proceedings of the surveyors and Court of Admiralty is not evidence. He should have given his own opinion as to her being reparable, and at what expense. This he has not done; he only says that some of her puttocks were broken. Why was he not called upon to prove the report of the surveyors, and the other proceedings of the Court at Mauritius? Why were not the surveyors themselves examined ?--for even a copy of their report, if established in proof, would not be evidence of the facts contained in it. The record of a Court of Vice-Admiralty is only evidence of the fact of condemnation ; but in this case a Phil. Ins. 127. ; 14 John. 314. ; 1 Condy's Mar. 406. b6 Cranch, 206.219.

Catlett and Keith v. Pacific Insurance Company.

there is no survey proved and no condemnation. The proceedings of the Court of Vice-Admiralty are not evidence per se; and no proof has been offered of the seal, which is effaced, of handwriting, nor any thing else. It was not a Court acting under the law of nations, but a municipal Court of the coun-, try. The condemnation binds the rights of no one, but is a mere justification of the acts of the master. The question whether the voyage was properly broken up, is a question of law for the Court to determine.

4. That there was a non-joinder of parties, Thomas R. Keith, one of the owners insured, not having been made a plaintiff.

All the owners should have been joined.d. The policy is on account of owners. It is immaterial who were the owners when the policy was made. The question is, who were the owners when the policy attached; that is, on shipment of the goods? The bill of lading shows that at this time Thomas R. Keith was an owner. And the evidence of Page does not prove that he was not an owner even before the insurance was effected ; and what he says, is of a conversation of the plaintiffs in the absence of the defendants, and not evidence. The letters from Catlett to Bayard & Co. and to Perkins are not evidence. It does not appear that the defendants knew when they insured that it was for the plaintiffs only. The letter from Catlett to Bayard is not proved to have been shown to them ; and if it had been, parol evidence could not be ad.. mitted to alter the legal construction of the policy. All previous contracts and explanations are merged in the policy, and a Court of Equity e alone can rectify it. What is the legal construction ? That all the owners at the time of shipment were intended to be insured. The insurance is on goods laden or to be laden ou board, and the risk is to commence from the lading. Probably there was no interest in any one when

d 16 John. Rep. 34.

c King v. Del. Ins. Co. 6 Cranch, 71.

2 Cranch, 419,

Catlett and Keith v. Pacific Insurance Company,

the insurance was effected. If partnership property is insured, it is on account of all the partners, unless it clearly appear to be for account of only some of them.

5. That there was a variance between the declaration and proof: The declaration averred a joint interest in Catlett and James Keith, jun. and the evidence showed that their interests were several.

6. That the plaintiffs had exercised acts of ownership over the property insured after abandonment, by investing the specie in cotton.

Thomas R. Keith was one of the insured, and a partner with the plaintiffs in the specie, and his acts at the Isle of France are binding upon them. He received the property as owner. And this view of the case is the most agreeable to justice. The investment of the specie in cotton was a speculation made by him for their joint benefit, and because it proved to be a losing one, the loss ought not to be thrown upon the defendants; they did not undertake to insure against the fluctuations in the market. This was such an act of ownership as waived the abandonment."

D. B. Ogden and J. Duer for the plaintiffs, insisted

1. That the defendants could not avail themselves of the objection, that Catlett was not a citizen of Virginia under the general issue; they should have pleaded it in abatement. But he has been proved to be a citizen of Virginia, and the Court cannot inquire into his reasons for becoming so. He has brought himself within the constitution and laws, and is by their provisions entitled to sue in this Court; and what power have the Court to say that his case forms an exception? The case of a chose in action is not analogous; in that case Congress were obliged to pass an act specially providing against

f 2 Cranch, 419.; 3 Stark, 1159.; 5 Taunt. 208.; 16 East, 141. g Phil. Ins. 453.; 6 Cranch, 272.

h 10 John. 177.

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