#### Elbers & Kraffts *against*The United Insurance Company.

A. and B. subjects, and partners in trade at *St.*Bartholomews. in 1811 B. came to the *United States,*and in *July,*1813, B. still continuing in the *United*States, a policy of insurance was underwritten, on account of A. and B., on cargo, for a voyage from *New Haven*to *St*Bartholomews, warranted *Swedish*property. Held, that from the long previous residence of B. in this country, it was to be presumed that he intended to reside here permanently; that it was incumbent on the insured to repel the presumption, which was not done in this rase; that, whether B. had a permanent counting-house here, or not, was immaterial to the question, and, therefore, as B. was to be regarded as domiciled in the *United*States, that the warranty was not complied with, and the insured could not recover for a loss; but as the policy never attached, and there was no ground to presume fraud, a return of the premium was awarded.

The property of a citizen, or subject, of a neutral, domiciled in a belligerent country, is liable to capture and condemnation, as prize of war, by the other belligerent; and a warranty in a policy of insurance on such property, that it was neutral property, is not compl ied wi th.

THIS was an action of *assumpsit*on a policy of insurance, dated the 26th of *July,*1813, underwritten by the defend-

*129ants, on a cargo laden on board the *Swedish*brig Gustava, for a voyage from *Mew-Haven*to *St. Bartholomews.*The policy contained a warranty, that the goods insurtid were *Swedish*property. The cause was tried before Mr. J. *Yates,*at the *Mew-York*sittings, in *December,*1816.

The deposition of *F. G. Evers*was read at the trial, on the part of the plaintiifs. The witness stated, that, from *May,*1814, until *May,*in' the year following, he was in the counting-house of the plaintiffs, who were *Szvedish burghers,*'carrying on commercial business at *St. Bartholomews,*in the capacity of book-keeper; and that, from several letters received by the plaintiffs while the deponent was in their employ, the deponent obtained knowledge of the fact, that previous to the month of *hi ay,*1814, the *Gustava*had sailed from *Mew-Haven*with a cargo consigned to the plaintiffs. The deponent further stated, that the *Gustava*had not arrived at *St. Bartholomews,*or been heard of, on or about the 17th of May,-1815, nor had she been heard of since, to the deponent’s knowledge or belief. That the plaintiffs dissolved their partnership in *February,*1814; that the plaintiff, *Kraffts,*had, before the witness arrived in *St. Bartholomews,*gone to the *United States*for the benefit of his health; and that *Kraffts*transacted no business in the *United States,*except through the agency of others; but that several shipments were made to the house of *Elbers dr Kraffts*from the *United States,*under the superintendance of *Kraffts,*who was consulted by, and advised with, the agents here.

*Kraffts,*as appeared from the testimony of other witnesses, came to the *United States*in *1811*or 1812, for the benefit of his health, which, however, he soon recovered. He did not remain stationary *in Mew-York,*but was occasionally at *Philadelphia*and *Baltimore. G. dr T. Myer*were the agents of *Elbers dr Kraffts,*at Mew-York; and *T. Myer*testified, that all orders received by his house, were from *Elbers d/ Kraffts,*and not from *Kraffts*alone; but that *Kraffts*bad a general superintendance. of the business of his house in this country, and was acquainted by *G. dr T. Myer,*with their transactions, in relation to the business of the house. The witness further stated, that he did not know that *Kraffts*ever- made any purchases on account of his

*130house, except that on one occasion, he made a purchase of produce, from *G. & T. Myer,*which he shipped to *St. Bartholomews. Kraffts,*although consulted by *G. fy T. Myer*in relation to the concerns of the house at *St. Bartholomews,*them entirely to their management, without any interference on his part. The witness stated, that *Kraffts*mentioned to him that he wanted an agent at *Philadelphia,*whereupon the witness gave him letters to *Bohlen Co.*of *Philadelphia.*

A verdict was found for the plaintiffs, subject to the opinion of the Court on the above case.

*T. A. Emmet,*for the plaintiffs, contended, that there was not sufficient evidence to show that *K.*had changed his *domicil,*or had acquired an *American*character. The burden of proof lies on the defendants, and they should •prove a *residence*of *K.*in the *United States,*of that; nature and duration, as would evince an intention to change his domicil. The original natural character is not changed by an occasional residence in another country, for a temporary purpose. It must be a residence taken' *animo manendi.*Now, it is proved, that *K.*came to the *United States*for the benefit of his health, which had become impaired by a tropical climate; that object would necessarily require a change of residence of some continuance. *K.*came to the *■United States*in 1812, and this insurance was effected in *July,*1813; and his original natural character would adhere to him, until it was clearly shown that he had changed it. *(Arnold*<§• *Ramsay*v. *United Ins.*Co> 1 *Johns. Cas.*363. *Jenk's*v. *Hallet Bowne,*1 *Caines’ Rep.*'60. *Chitty’s L. of N.*38. *50. '*1 *Rob. Adm. Rep.*102. 1 *Acton,*116.) At any rate, the plaintiffs will be entitled to a return of the premium.

S. *Jones,*jun. and *Hoffman,*contra.

If *K.,*by his residence in the *United States,*acquired an *American*character, the warranty, in the policy, has not been complied with. All the evidence is derived from the plaintiffs’ witnesses. The defendants produced no witnesses. It is said, that *K.*came to the *United States*for the purpose of regaining his

*131Again ; war intervened between this country and *Great Britain.*Could *K.*have appeared in a *British*prize court, and maintained that he was a *Swedish,*not an American? citizen ? Certainly not.

Every question on this subject has been discussed, and already settled in this court, or in the courts of the *United States.*If a person goes into another country and resides there, his national character *quoad*his commercial transactions will be changed ; and if war should intervene, he must quit the country, or his continuance will be evidence of his intention to remain, and to be considered a citizen of that country. The cases are very strict on this subject. (1 *Johns. Cases,*363. 1 *Caines,*60. 1 *Rob. Adm. Rep.*I. *The Vigilantia. Id. The Adriana,*313. *The Harmony, 2 Rob. Adm. Rep.*322. *The Indian Chief,*3 *Rob.*12. *The Dree Gebroeders,*4 *Rob.*232. *The Diana, 5 Rob.*60. *The Ocean, 5 Rob.*91. *The Boedes Lust, 5 Rob.*233. 248. *The*President, 5 *Rob. 271. Jonge Klassina, 5 Rob.*297. *132*Wheaton on Captures,*141. 157. *The Neptunus,*6 *Rob.*403. *The Ann*Green, 1 *Gallis. Rep. 274. The Joseph,*1 *Gallis.*545. *The Francis, id. 614. 618.*7 *Cranch,*542. *The Venus,*8 *Cranch,*253. *The Francis,*8 *Cranch.*335,, 363. The *Rugen,*1 *Wheat. Rep.*65. *Mary and Susan,*1 *Wheal. Rep.*25. 2 *Wheat. Rep. Appendix*1. 27, 28, 29.)

*Emmet,*in reply, said, the cases cited did not apply to this case. *K.*was a *neutral,*and the intervention of the war between the *U. S.*and *G. B.,*made no difference as to him. He was not bound to quit the country. He might stay or go, as he pleased, precisely as in time of peace.

It is true, that a residence for an indefinite period, connected with other circumstances, would be evidence of an intention *to*change his domicil; but what are those circumstances ? They-must bo such as to show, that the party mingles himself with the business and affairs of the country, lío doubt, one day’s residence would be sufficient, if coupled-with a declared intent permanently to reside in the country ; otherwise, not. A neutral may be here for health or pleasure. The question is, has he come here for the purpose of business ? Does he mingle himself with the business and concerns of the country *?*

Spencer, J. delivered the opinion of the Court.

The plaintiffs claim for a total loss, on the ground that the vessel, having sailed on the voyage, was never heard *of*after-wards.; and a year, and a day having elapsed; she is, presumed to be lost. The claim is resisted, 1. Because there is no proof that the vessel ever sailed; 2. That there was- a breach of the warranty, as to the *Swedish*ownership of the goods, insured; *Krafts,*having lost his *Swedish.,*and acquired an *American*character, by being domiciled here.

This last point will be first considered. The plaintiffs had a mercantile establishment, as partners, in *St. Bartholomews,*several years prior to *February,*181,4; and it is proved, also, that *Iirafts*came to this country for the recovery ot his health, in 1811; and has ever since continued to reside here, being, occasionally at *New-York, Philadelphia,*and Baltimore, having agents at those places, who generally *133corresponded with, and transacted the business of the house of *Elbers and Krafts,*at *St. Barts ; Krafts*having, himself, in one instance, in 1813, made a purchase of produce for the house, which he shipped to it, when *Krafts*was present a: *New-*York; that his agents there advised and consulted with him on the business of the house, and constantly kept the house in *St. Bartholomews*advised of the business transactions in this country, and that *Krafts*applied to *T.*Myer, one of his agents in *New-York,*saying he wanted an agent in Philadelphia, and received letters to *Bohlenfy Co.*upon that subject. It does not appear that he had any compting house.

It is an established principle, not only in the *prize*courts, but in the common law courts, that shipments made by merchants actually *domiciled*in the enemy’s country, at the breaking out of a war, partake of the nature of the enemy’s trade, and, as such, are subject to belligerent capture. The only question then is, whether *Krafts*was temporarily here, or whether he was here *animo manendi.*He having remained in the *U.S.*for such a length of time, the presumption of law is, that it was his intention to reside here permanently; and he is bound 'to explain the circumstances of his residence, to repel that presumption. This is the doctrine of the *British*admiralty court; (1 *Rob.*102.) and it is founded in good sense, and the plainest principles of policy. The fact of a person’s residing in a country, for a considerable period, leads to the conclusion that he has adopted it as the place of his residence. If the real fact be otherwise, he alone can show it. *Krafts*came to this country for his health; but he has not shown that the state of his health required his continuance here. We find him, on one occasion, actually purchasing a cargo to be sent to *St. Bartholomews,*constituting a commercial agent, and superintending the concerns of the house, by advising with, and consulting the agents of the house, in relation to their business with the firm. Indeed, there is no proof, that *Krafts*ever talked of returning to *St. Bartholomews,*or that he ever explained himself to any one, that he was here for mere temporary purposes.

In the case of the *Jonge Klassima,*(5 *Rob.*297.) the *134claimant took the ground, that he was not to be deemed a resident in the hostile country, because he had no fixfed eompting house there. Sir *Wm. Scott*declared that circumstance not to be decisive. He asks, how much of the great mercantile concerns of the kingdom are carried on in coffee-houses ? He says, it is a vain idea, that a eompting house, or fixed establishment, is necessary .to make a man a merchant of any place; if he is there himself, and acts as a merchant, it is sufficient.

In *Livingston and Gilchrist*v. *Maryland Insurance Com*pany,, (7 *Crunch,*542.) Mr. Justice *Story*says, “ it is perfectly immaterial what is the trade in which the party is engaged, or whether he be engaged in any. If he be settled *bona fide*in a country, with the intention of indefinite residence, he is, as to all foreign countries, to be deemed a subject of that country.’’ What constitutes a settlement in the country, is to be collected from all the circumstances of the case.

It seems to me not to admit of a doubt, that, by the well understood law of nations, the facts disclosed in this case, and the absence of all proof that *Krafts*was here, temporarily, or that he intended to return at any future time to Si. *Bartholomews,*are decisive, that he had an indefinite intention to remain here; and, especially, as he was actually engaged in superintending the business of his house in their concerns in this country. The warranty is, therefore, broken, and falsified; the property insured would have been liable to belligerent capture and condemnation.

It becomes unnecessary to examine and decide the first point. With regard to the return of thepremium, as the policy never attached, and as there is no ground to presume any fraud intended on the underwriters, the plaintiffs are entitled to it; the court, however, have not the requisite facts to enable them to pronounce how much is, to be recovered, This, however, the parties can adjust between themselves.

Judgment fbr the plaintiff, for a return of the premium only.