THOMPSON, Circuit justice.
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-l'ork. It has been said on the piart of the plaintiffs that the question 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 iu 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 iu 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 1 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 puipose 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, 1S24, 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 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 tlie 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 considered a fraud upon the law. But if he deemed the privilege of bringing a suit in the courts of the [297] United States of sufficient consequence to justify a bona fide change of residence, be 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 coloura-ble removal, is a question for the jury. It is incumbent also on thp 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 vessel was American prop‘-erty, but that she was duly documented as such, so as to show her national character. It was intimated by one of the counsel, that ■other documents than the register were necessary for this purpose, but it was not distinctly pointed out what those documents were; and the objection to this extent has not been urged by the other counsel. And I understand it, therefore, to be conceded, that an American register, if on board, would have been a compliance with this warranty; and I am not aware of any other document that could have been required. There being a state of universal peace, and no treaty provisions applicable to the voyage, the register was all that could be necessary to show the national character of the Sphinx. No question of neutral or belligerent rights could arise. This objection, however, under the testimony that has been offered, divides itself into two branches: (1) Whether the register has been sufficiently proved ? (2) Whether it was on board the vessel? The proof of the register consists of the official certificate •of Joseph Nourse, register of the treasury •of the United States, that the document produced in evidence is a true copy of the original register on file in his office, together with a certificate of the secretary of the treasury, under the seal of the department, that Joseph Nourse is the register, and that the document is duly authenticated. It is •said, however, that this is at best but a •copy of a copy, and therefore not evidence. If the fact were so, the objection might be well founded. But, according to the provisions of the registry act, as I understand it, this is a copy of the original. The register is a document issued from the office of the register of the treasury, signed by the secretary of the treasury, and under the seal of the department. It is sent in blank in many parts to the collector of the port where it is to be used, and by him filled up as occasion may require; of which he is required to keep a copy in a record for that purpose provided, and also to transmit a copy of the same to the register of the treasury to be recorded; and when any vessel is lost, as in the present case, it is made the duty of the master to send the original register to the register of the treasury to be cancelled. And the document now produced is a copy of the original so returned. No further provision is made by the act for the disposition of the register after it is cancelled; but I believe it is the practical construction given to the act, not to destroy the register so returned, but to keep it on file in the office. It may, therefore, be well considered a document required by law to be deposited in the register’s office, there to remain; and if so, a copy thereof was admissible, and was duly authenticated. The proof that the register was on board the vessel, is not very satisfactory. There are, however, some circumstances affording such a presumption, and this is matter for the jury.
3. The next objection is, that there is not sufficient evidence of the loss of the vessel. The proof offered to show the loss, consists -- of the vice-admiralty proceedings, on the survey and condemnation of the vessel at the isle of France, and the deposition of the captain. These admiralty proceedings were not offered in evidence until after the motion for a nonsuit had been made, and were admitted subject to objection, without any opinion having been expressed by the court as to their admissibility. These proceedings purported to be under the seal of the court, certified by the register, and accompanied by a certificate of tlio American consul, under his seal of office, that he was such register. These proceedings I think are not so authenticated as to entitle them to be read in evidence. The seal does not prove itself. There is no impression from which any conclusion can be drawn, that it is the seal of that or any other court: And some proof aliunde is always required, either that it is the seal of the court by a witness who knows the fact, or by proof of the handwriting of the judge or the clerk, or by an examined copy, compared with the original in the proper office, or some other evidence of a similar character. They do not alone, unaided by extrinsic evidence, carry with them that verity as to make them evidence in foreign courts. I attach no credit to the consular certificate. It has been said that he is an officer recognized by the law of nations, and entitled to credit. The law of nations recognizes him only in commercial transactions, but not as clothed with any authority to authenticate judicial pro[298] ceedings. These proceedings must, therefore, be laid out of vietv. There is evidence, however, in the deposition of the captain tending to show the loss, and which must be submitted to the jury for that purpose. He describes the injury which made it necessary to put into the isle of France to repair, and swears that no other vessel could be obtained to carry on the cargo, which affords a strong inference that the Sphinx could not be repaired at that place, so as to prosecute the voyage at a less exjjense than that estimated by the surveyors. I do not mean to intimate that his testimony proves, or is admissible to prove, the proceedings of tile surveyor, any further than will warrant the conclusion, that he coincided with them in opinion; he making the report of the surveyors the basis of his application for a condemnation of the vessel as unsea worthy: All which affords a pretty strong inference that, in the judgment of the captain, the vessel could not be repaired at that place at a less expense than twenty thousand dollars. At any rate, this is testimony proj>er to be submitted to the consideration of the jury, and the court cannot sajT there is no evidence of loss.
4. The next objection is, that the averments in the declaration are not supported by the proofs in the cause — that the averment is, a joint interest in the plaintiffs in this cause, and that the proof shows that Thomas It. Keith was either jointly interested with them in the specie insured, or that there was no joint interest in the three, but a separate interest in one moiety in Catlett, and a joint interest in the other moiety in the two Keiths, and that in neither case does the evidence support the averment. This necessarily calls for the inquiry, in the first place, for whom was this policy effected, and whose interest does it cover? The policy is in the name of Le Roy. Bayard & Co. and on account of owners. And it is said on the part of the defendants, that this is on account of the owners at the commencement of the voyage, and when the policy attaches, and not the owners when the policy is effected. This perhaps ! would be the legal construction, in the absence of all proof, explanatory of the term owners as used in the policy. It is very well established by the evidence, that Thomas R. Keith had no interest in this specie when this policy was underwritten; and that in point of fact, the only interest intended to be insured, was that of the plaintiffs in this cause. There can be no question but that one or more joint owners may insure their interest in joint property. The only question to be determined is, whether it has been done in this instance. It is equally clear, that If the insured aver an entire interest in themselves, in the subject insured, such averment cannot be supported by evidence of a joint interest with others. Nor can an averment of a joint interest with others, be supported by proof of a sole interest As I understand | the declaration in this cause, it only avers a joint interest in Catlett and James Keith, Jr., to the extent of thirty thousand dollars, and not an exclusive interest in the entire cargo. Will the policy then admit of the construction, that the insurance is for the benefit of Catlett and Jajnes Keith, Jr., and not for the benefit of Thomas It. Keith? It must be borne in mind, that application for insurance was not made by the plaintiffs themselves, but through their agents, pursuant to instructions; and the policy was filled up in the name of the agents for account of owners. The term “owners,” is only descriptive of the-persons intended to be insured, and they cannot sue on the policy without bringing themselves within that description. It is equally important and necessary, that they should show for what owners the agent acted, or who were intended to be insured under that description. Owners may include all concerned in interest, but such a construction is not necessarily to be given to the instrument. It is a proper subject for explanation. It does not contradict the policy to show who were the owners intended to be insured. The term "owners,” as here used, necessarily refers to matter out of the policy, and cannot be explained by any thing appearing on the face of the instrument. It must, of course,, be open to explanation by extrinsic evidence.
It certainly does appear from the facts, that no property was intended to be covpred but the property of Catlett and James Keith, Jr. Whatever may have been the interest of Thomas R. Keith, it is manifest that Catlett, in instructing his agent to insure, did not mean that he should insure Thomas R. Keith’s interest, but only his own and James Keith, Jr.’s, for Thomas R. Keith had not. at that time, any interest in the specie. If the underwriters understood when they underwrote-the policy, that it was the agent's intention to insure only for Catlett and James Keith, Jr., and not for Thomas R. Keith, they cannot. now set up that he was one of the insured, because he afterwards became part owner; for they never undertook to insure his interest. Their contract was with Catlett and James Keith. Jr., and no one else. That such was the understanding of the underwriters, is very satisfactorily made out. It is objected, that under this policy Thomas R. Keith might recover as one of the insured. But, I think, that the letter of instructions to Le Roy, Bayard & Co. would always be an insuperable obstacle to any such recovery.
The next question is, whether the evidence shows a joint property in Catlett and James Keith, Jr., conformably to the averment in the declaration. No circumstance has ap peared from which it has been attempted to-infer that their interests were separate, except the endorsements on the bill of lading. The bill of lading, on its face, the invoice, and all the papers which bear on this question, show that their interest was joint. And I consider the endorsements as made merely [299] for the purpose of showing the extent of the interest of each owner, and not to contradict the bill of lading on its face. But it is said they furnished their proportions separately: It is certain that each purchased a moiety separately; but this proves only that they were separate owners before the specie was shipped; but it proves no more. When it was put on board, their joint interest commenced. The object was not to purchase it jointly', but to ship it jointly; and a joint ownership, after it was shipped, is sufficient. Besides this, there is no evidence of separate interests. There were no marks on the bill of lading to show, that the plaintiffs intended to be separate owners, or to enable any one to identify the property of each. I disregard entirely the marks on the manifest, contained in the admiralty proceedings, as they have been entirely excluded, as not having been properly authenticated.
5. The only remaining objection that has been urged in support of this motion is, that on the breaking up of the voyage, at the isle of France, the specie was delivered by the captain to Thomas R. Keith, one of the part owners, and by him invested in cotton. This, it is said, exonerates the underwriters ■'rom all responsiudity. The legal effect and operation of this act must depend upon the character in which Thomas R. Keith is to De considered as ■ acting". If the view which I have taken of this case, under the last objection, be correct, he is not a party to this policy, and his interest in the cargo is in no manner covered or protected by it. And if the plaintiffs are to be bound or prejudiced by his acts, it must be by reason of their con-nexion as part owners. In all the cases which have been referred to, where the acts and interference of the owners, have been held to take away the right of abandonment, or to waive it, if made — they were the assured. In such case it is just and reasonable that the acceptance of the cargo, at any intermediate port, should discharge the underwriters. The master of the vessel, in whose possession the cargo is placed, is their agent, and they may revoke his authority, and take the cargo into their own hands. They are the only parties interested in the policy, and have the right to discharge it: But it by no means follows, thal such authority is vested in one of the joint owners who has no interest in the policy. It has been said that the joint owners were partners, and that the law applicable to the rights of partners, must govern this case; and that the act of one, in judgment of law, is the act of all. There is no doubt, but in partnership transactions, all the partners are bound by the acts of each which fall within the scope of the partnership. But I cannot consider this such a case. The rights and authority of partners, whatever they might have been, were suspended and modified by the special arrangement between them, under which this property was shipped. One of the joint owners, who had no interest in this policy, was constituted supercargo, and as such, became the agent of the plaintiffs, so far as their interest was concerned. His rights and powers as partner, were suspended, and merged in his new character of supercargo; and he thereby parted with the possession and control of the property in transitu. His functions, as supercargo, did not commence until the arrival of the vessel at Canton. Upon the voyage the cargo was in the possession, and under the management and control of the master: He was the agent of the owners, and responsible to them under his bill of lading. It canuot be pretended that Thomas R. Keith, as part owner, would have had a right to demand of the master this specie, and to have invested it in cotton, or any thing else, if the vojage had not been broken up. A delivery of it to him would not have exonerated the master from his liability on the bill of lading; and if not. I am unable to see why the breaking up of the voj’age should give to Thomas R. Keith any greater rights. The captain, thereupon, became the agent of the underwriters, and bound to them for the faithful discharge of his duty as such; and they became responsible for his acts. And the same-rule applies to the supercargo; he becomes the agent of the underwriters. And the assured are not bound by his acts where there is a right to abandon. I do not, therefore, think that the plaintiffs’ claim upon the underwriters is taken away by the acts of Thomas R. Keith, at the isle of France.
I have thus briefly noticed the several grounds which have been urged in support of the motion for a nonsuit, some of which are by no means free from difficulty: and I am not prepared to say. that I do not entertain doubts upon some of the questions that have been raised and discussed. From what has fallen from the bar, however, there is lirtle reason to think that either party will be satisfied with the result of the trial here, but that the cause must ultimately go to the supreme court of the United States. Under such circumstances. I deem it most prudent and discreet, and best calculated to advance the ends of justice with as little expense and delay as practicable, to proceed in the cause, and have the whole merits of the case disclosed. And this course I snould think advisable, even if I entertained stranger doubts than I do upon the questions which I have been called upon to decide. The motion for a nonsuit is accordingly overruled.
The defendants then proceeded with their defence, which was, that some of the stockholders of the Pacific Insurance Company were not citizens of Kew York. Having proved that three stockholders resided in other states, the court ordered the plaintiffs to be nonsuited.