Jackson v. New York Insurance

2 Johns. Cas. 191

Opinion

Radcliff, J.

1. It is sufficient to decide this case, that the plaintiff has not maintained his warranty, according to the principles already determined on this subject. (1 Johns. Cas. 16, 341, 360.) But,

2. Here was- a transfer of the property, subsequent to the insurance, to one, who in view of the belligerent parties was not entitled to be regarded as a neutral. James Jackson emigrated flagrante bello; and we have already decided, (1 Johns. Cas. 360 ;)(

Footnotes

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a) that no citizen or subject of either of the parties at war, can change his allegiance, so far as to alter *with respect to them, the relation in which he .stood at the commencement of the war. The French had, therefore, a right to consider him as a British subject; and the ship, after being transferred to him, was liable to seizure and condemnation by them, as enemy’s property. The risk, therefore, was essentially altered and increased; and the plaintiff, by the transfer, voluntarily destroyed the neutrality which he had guarantied to maintain. The plaintiff, therefore, cannot recover on the policy, but as he has not committed any actual^ fraud, and the risk never commenced, he is entitled to a return of premium, on the principle adopted in several cases, (1 Johns. Cas. 310,)(b) already decided in this court.

Kent, J.

This cause offers two points for our consideration :

1. What effect, if any, is the sale of the ship to James Jackson to have upon the policy 1

2. If none, then is there the requisite evidence of a breach of the warranty 1

1. The policy was subscribed in November; and in the April following, and previous to the sailing of the ship, the plaintiff sold her to James Jackson. He was born a British subject, and was naturalized on the 7th of April, 1797. How long previous thereto, James Jackson had fixed his domicil in this country, does not appear. The act of Congress, of the 27th of March, 1790, required only a previous residence of two years. The act of Congress, of the 29th of January, 1795, enlarged the term of residence to five years, but provided that the enlargement of the term should not apply to aliens then resident within the United States. • As James Jackson was naturalized within two years and three months from the time of passing the last act, the naturalization is proof of his residence here in January, 1795 ; but it is no evidence of any previous residence. The presumption Antecedent to that time must be, that he resided under the jurisdiction of the king of Great Britain, as every person’s domicil must be presumed, until the contrary be shown, to be in the country where he was born, and to which he owes his native allegiance. In January, 1795, the war between Great Britain and France had already existed for two years, and James Jackson is accordingly to be considered as changing his domicil, and emigrating, flagrante hello.

This natural, and as it appears to me, legal presumption, is strengthened by this further consideration, that we are to conclude, from the fact of his subsequent naturalization, that James Jackson came to this country with a view of becoming a citizen ; and in that case, that he would not have postponed the solemnity, for any considerable time beyond the period prescribed by law; and if he had in fact fixed his residence here before the commencement of the war, he was entitled to the privilege of naturalization two years, at least, before he actually obtained it.

' The case of Duguet v. Rhinelander, (1 Johns. Cas. 360 ;)(a) is in point. The plaintiff there was a Frenchman by birth, and was naturalized here the 11th of October, 1796; and there was no proof in the case of any previous residence. The decision of the court, accordingly, went upon the ground of his emigration here during the war, and that he was, therefore, in the purview of the law of nations, to which the warranty had reference, still a Frenchman.

My conclusion then is, that the plaintiff did, by his own act, and without the assent of the insurer, (for none appears,) change the property which he had warranted neutral, into belligerent property ; and this too before the commencement of the risk.

Upon such an act, I have no difficulty in declaring what must be the result. A warranty must be true at the com mencement of the risk. (Doug. 732. Eden v. *Parkinson, Park, 353.) This was not so; and what renders the case'the stronger, and would, perhaps, have been decisive, if done even after the risk begun, is that the property ceased to be neutral, by the act of the party himself. It would be against all rule and right for a party in such a case, to avail himself of a loss, the consequence of his own voluntary deed; and therefore, without having any reference to the sentence of condemnation, I think the plaintiff ought not to recover beyond the amount of his premium, subject to the deduction stipulated in the policy.

Benson, J. was of the same opinion.

LEwrs, J. was absent.

Lansing, Ch, J. not having heard the argument, gave no opinion.

Judgment for the plaintiff, for a return of the premium only.(a)

(a) But see 1 Caines’ Cas. in Err. xxv.

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(b) And see 313, n. (a).

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(a) But see 1 Caines’ Cas. in Err. xxv.

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(a) Upon the principle of this case Mr. Puer remarks: “In the United States, it appears to be settled law, that a native subject can not acquire a foreign domicil by an emigration from his own country, during the existence of hostilities, (flagrante hello,) so as to protect his trade during the war, either against the belligerent claims of his own country, or against those of a hostile power. The Dos Hermanos, 2 Wheat. 78. Duguet v. Rhinelander, 1 Johns. Cas. 360. Jackson v. N. Y. Ins. Co. 2 Johns. Cas. 191. Contra — Duguet v. Rhinelander, 1 Caines’ Cas. in Err. xxv. S. C. 2 Johns. Cas. 476. Vattel, liv. 1, c. 19, liv. 2, c. 27. Grotius De Jur. Bel. ac Pac. liv. 2, c. 5, § 2. Puffendorf, Droit des Gens par Barbeyrac, liv. 8, c. 11, § 3. In other words, his native character is wholly unchanged by his change of residence. He is as much bound to abstain from a trade with the public enemies of his own country, as if he had remained at home ; and his property, as that of an enemy, continues to be just as liable to seizure and confiscation, by an opposite belligerent. The ground of this doctrine is, that there rests, upon every subject or citizen, a moral obligation, not to abandon his country in a time of war, without the express sanction of the government. The personal services, and the property, of each separate individual, are a component part of the national resources, on which the government relies, in declaring a war; and to withdraw these, when his country may require their aid, is a breach of the duty that springs from the necessary relation that each individual bears to the political society of which he is a member. A contrary doctrine, it has been truly observed, would be inconsistent with the soundest maxims of national po licy, since it would enable and encourage mercantile men, at the commencement, of every war, to change their residence and character, in order to exempt themselves from its necessary burdens and apprehended losses. It is for these reasons, that the principle in question has been sanctioned, by many of the most approved writers on the law of nations; and, although it has not yet been expressly affirmed, so far as I have been able to discover, by any decision of the English admiralty, I doubt not that its authority, as binding on the court, should the question arise, would be promptly admitted and followed.” 1 Duer on Ins. 521, 522, § 35. See id. 547.