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Catlett apd Keith v. Pacific Insurance Company.

a fraudulent assignment; and if they had not expressly interfered by law, this Court must have entertained a suit where the consignment had been made merely to give the Court jurisdiction. And this is the strongest argument against this position of the defendant's counsel. In the case of the chose in action, cited from Dallas, the assignment was considered by the Court as collusive and without consideration, and no interest passed by it. Here there has been a real bona fide removal. The motive was not merely to give the Court jurisdiction; it was a permanent removal.

2. The only document necessary to prove the national character of the vessel, was her register. The voyage was in a time of general peace, and the documents required during war could not be wanted. Evidence of American ownership is enough prima faciek to prove this warranty.

3. The proof of loss is sufficient: At any rate there is enough to go to the jury. The testimony of Page shows the injuries the vessel had sustained, and it is a reasonable inference from his conduct, and what he says of the report of the surveyors, that his opinion coincided with theirs. If the proceedings of the Court which condemned her are not themselves in evidence, the captain does prove the facts that a report of unseaworthiness was made by the surveyors, and that the vessel was condemned and the voyage broken up.

4. It is true that all the parties interested in the policy must be joined. But Thomas R. Keith, although interested in the shipment, had no interest in the insurance. The construction of the policy is not necessarily that it was for all the owners. "Owners” does necessarily mean sole owners. There can be no doubt that the plaintiffs had a right to insure their separate interest; and the only question is, for whom was the insurance made? It was effected by Le Roy, Bayard, & Co. as agents. Agents for whom? Certainly for their em

i 14 John. 314. k 2 Serg, and Rawle, 133.

Catlett and Keith v. Pacific Insurance Company.

ployers, who were the plaintiffs. They paid the premium, and were the only parties to the contract. Thomas R. Keith had nothing to do with it, and can have no interest in it. Even if Thomas R. Keith had been an owner at the time the policy was effected, which he was not, it would have made no difference, so long as those who effected the insurance were agents for the plaintiffs alone.

5. The averment of joint interest in the plaintiffs is proved. Why, if their interests were separate, are there no marks upon the boxes? Suppose a loss, who would have borne it? There is nothing by which each could know his own property. The memorandum on the back of the bill of lading was only to show their shares in interest; and is this to be received to disprove a partnership positively made out?

6. The fact of the investment of the specie in cotton is not made out. But suppose it were: The specie was to be delivered to Thomas R. Keith at Canton, and not before; and until it reached Canton, he had no right to interfere with it as joint owner, supercargo, or in any other capacity, for the owners. The master was the sole and exclusive agent for the owners during the voyage, and the only person whose acts could affect their rights. No one in case of loss had any right to interfere with the cargo except the master. And the abandonment constituted him an agent for the underwriters. If a speculation was made it was for their benefit. It is immaterial that Thomas R. Keith made the investment. He could have no right to act for the owners; and if he had any agency, it was as a sub-agent for the underwriters through the captain. The captain by his-letter of instructions could not deliver the specie to Thomas R. Keith until their arrival at Canton. It is a mere inference, that Thomas R. Keith did make the investment for the benefit of the owners; there is no proof of the fact. It is also an assumption that he acted in the capacity of joint owner. Suppose the master a joint owner. Would his duty to act for

Catlett and Keith v. Pacific Insurance Company,

the insurers be taken away because he was owner as well as master? It is said, that it is to be inferred from the nature of the act that it was done by Keith as joint owner, and for the benefit of the owners. But why? It was necessary to transport the specie from the Isle of France--it could not remain there; and the cotton, for aught that appears, could be as easily transported. That the investment was a judicious one is no evidence that he acted for the owners and not for the underwriters. If he was acting for the benefit of the latter, it is to be presumed he would have acted judiciously. And the investment was such an act as if made for them would have been good. But if the act was conclusive against himself it did not bind his copartners, if they were such. If there was a copartnership, the abandonment dissolved it.

THOMPSON, J. I regret that the counsel have not thought proper to adopt the course I suggested, of putting this cause into the shape of a special verdict, or a case subject to the opinion of the Court, so as to afford me an opportunity of giving a more deliberate consideration to the several points that have been raised on the motion for a nonsuit, than is practicable in the hurry of a trial. But as this course has not been deemed expedient, I must proceed and dispose of these questions according to first impressions.

1. It has been objected in the first place, that the plaintiffs have not shown themselves entitled, under the constitution and laws of the United States, to bring their action in this Court.

There can be no doubt but that under the present pleadings it is necessary for the plaintiffs to prove that they are citizens of Virginia, and that the defendants are citizens of New York. It has been said on the part of the plaintiffs, that the question

11 Mar. Ins. 170.; 1 Term Rep. 621. n.

Catlett and Keith v. Pacific Insurance Company. cannot arise upon the plea of the general issue, but must be raised by a plea in abatement. This proposition I think cannot be sustained. The citizenship of the parties is a necessary averment in the declaration, and the want of it is error for which the judgment would be reversed. And by the plea of the general issue, the proof of all necessary averments is thrown upon the plaintiff.

The question for consideration then is, whether, in the present case, this averment has been proved. There is some difficulty in understanding, precisely, the sense in which the term citizen is used in reference to this question. A citizen of the United States is, to many purposes, a citizen of each state; and I am not aware that it has ever been held, that where there is a permanent change of residence by a citizen from one state to another, the party so removing must acquire all the rights and privileges of a citizen of the state to which he removes, according to the state laws, before he can come into the Circuit Court of the United States. It has been held, however, that it is not enough for the party to aver, that he is a resident or inhabitant of the state, but there must be an averment in the language of the law and constitution, that he is a citizen. This presents some difficulty then, as to the proof that will sustain such averment. But I am inclined to think it is sustained by proof of a permanent and fixed residence, under such circumstances that it may be said, that he has his domicil there. A mere temporary residence for some special purpose might not be sufficient.

In the present case there is no question with respect to Keith, one of the plaintiffs. The objection only goes to Catlett, the other plaintiff. And with respect to him, the proof is substantially, that he removed from Alexandria into Virginia in December, 1824, avowing that one of the objects of his removal was to enable him to prosecute this suit in the Courts of the United States, at the same time declaring, that

Catlett and Keith v. Pacific Insurance Company.

it was a permanent removal, never intending to return again to reside in Alexandria—that he leased a house in Virginia, and had lived there ever since his removal with his family.

It has been said that his declaration, that one object he had in view by the removal, was to enable him to bring this suit, makes it a fraud upon the law. I do not think it can be considered in this light. If he had avowed that his sole object was to place himself in a situation to bring this suit, with an intention of returning to his former residence when it was ended, it might have been considere i a fraud upon the law. But if he deemed the privilege of bringing a suit in the Courts of the United States of sufficient consequence to justify a bona fide change of residence, he cannot be charged with a fraudulent evasion of the law, so as to make the act void. Whether it was a bona fide, or mere colourable removal, is a question for the jury.

It is incumbent also on the plaintiffs to show, that the defendants were citizens of New York; as a corporation there can be no citizenship. Their liability to be sued in this Court must depend upon the citizenship of the individual members. The proof, with respect to them, is not very satisfactory; but as they are a company incorporated by a law of this state, and transacting their business in this city, it may be enough prima facie, to warrant the jury in finding that they are citizens of this state.

2. The next inquiry is, whether the assured have shown a compliance with the implied warranty in the policy, that the Sphinx was an American vessel. That she was American built, and owned by American citizens, is fully proved, so far as parol proof may be admissible to establish the fact, that the vessel was American property. The testimony of the captain is full on this subject.

But it is said that this warranty not only implies, that the

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