single circumstance of not making immediately for some other port, or, possibly, obstinate and determined declarations of a resolution to break the blockade-might be evidence of an attempt, after warning, to enter the blockaded port. But whether . these circumstances or others may, or may not, amount to evidence of the offence, the offence itself is attempting again to enter; and "unless, after notice, she shall again attempt to enter," the two nations expressly stipulate, that " she shall not be detained, nor her cargo, if not contraband, be confiscated." It would seem, as if aware of the excesses which might be justified by converting intention into offence, the American negotiator had required the union of fact with intention, to constitute the breach of blockade.

The cause of condemnation then, described in this sentence, is one, which by express compact between the United States and Great Britain, is an insufficient cause, unless the intention was manifested in such manner as in fair construction, to be equivalent to an attempt to enter Cadiz after knowledge of the blockade. This not being proved by the sentence itself, the parties are let in to other evidence.

However conclusive then, the sentence may be of the particular facts which it alleges, those facts not amounting in themselves to a justifiable cause of condemnation, the Court must look into the special verdict, which explains what is uncertain in the sentence. The special verdict shows, that the vessel was seized on her approaching the port of Cadiz, without previous knowledge of the blockade; that she never was turned away and permitted to go to any other port or place;" that she was "detained" for several days, and then sent for adjudication, without being ever put into the possession of her captain and crew so as to enable her either "again to attempt to enter" the port of Cadiz, or to sail for some other port; that while thus detained, the commander of the blockading squadron drew the Captain of the John into a conversation which must be termed insidious, since its object was to trepan him into expressions, that might be construed into evidence of an intention to sail for Cadiz, should he be liberated; and that the

at the time he wrote his Nisi Prius considered it as then established.

That the doctrine was considered as perfectly fixed in the year 1781, is plainly to be inferred from the case of Bernardi and Motteaux, decided in that year. Lord Mansfield speaks of it as he would of any other well established principle of law, declaring in general terms that the sentence, as to that which is within it, is conclusive against all persons, and cannot be collaterally controverted in any other suit.

The only difficulty in that case was to discover the real ground upon which the foreign sentence proceeded, and the Court in that and many subsequent cases laid down certain principles auxiliary to the rule, for the purpose of ascertaining the real import of the sentence, in relation to the fact decided as between the insurer and the insured. For if the sentence did not proceed upon the ground of the property not being neutral, it of course concluded nothing against the insured, since upon no other ground could the sentence be said to falsify the warranty.

It was admitted by the counsel for the insured, that as between him and the insurer, the sentence is prima facie evidence of a non-compliance with the warranty. But if they are right in their arguments as to the inconclusiveness of the sentence, I would ask for the authority upon which the sentence can be considered as prima facie evidence. Certainly no case was referred to, and I have not met with one to warrant the position. If we look to general principles applicable to domestic judgments, they are opposed to it. We have seen that the judgment is conclusive between the same parties upon the same matter coming incidentally in question. The judgment of a foreign court is equally conclusive, except in the single instance where the party claiming the benefit of it applies to the court in England to enforce it; in which case only the judgment is prima facie . evidence. But it is to be remarked that in such a case the judgment is no more conclusive as to the right it establishes, than as to the fact it decides. Now it is admitted, that the sentence

Y

of a foreign court of admiralty is conclusive upon the right to the property in question; upon what principle then can it be prima facie evidence, if not conclusive upon the facts directly decided? A domestic judgment is not even prima facie evidence between those not parties to it, or those claiming under them; and such would clearly be the rule, and for a similar reason, as to foreign judgments. If between the same parties the former is conclusive as to the right and as to the facts decided, this principle, if applied at all to foreign sentences, which it certainly is, is either applicable throughout upon the ground that the parties are the same, or if not so, then by analogy to the rule applying to domestic judgments, the sentence cannot be evidence at all.

Upon the whole, I am clearly of opinion that the sentence of the Court of Admiralty at Barbadoes condemning the brig Fame and her cargo, as prize on account of an attempt to break the blockade of Martinique, is conclusive evidence in this case against the insured to falsify his warranty of neutrality.

If the injustice of the belligerent powers and of their courts should render this rule oppressive to the citizens of neutral nations, I can only say with the Judges who decided the case of Hughes v. Cornelius, let the government in its wisdom adopt the proper means to remedy the mischief; I hold the rules of law, when once firmly established, to be beyond the control of those who are merely to pronounce what the law is; and if from any circumstance it has become impolitic in a national point of view, it is for the nation to annul or modify it. Till this is done by the competent authority, I consider the rule to be inflexible.

Judges Chase and Livingston dissented, and Judge Todd, not having been present at the argument, gave no opinion; so that this judgment is reversed by the opinions of the Chief Justice, Cushing, Washington and Johnson.

None of the Judges except Washington and Johnston gave the reasons of their opinions.*

[*The Supreme Court of New-York have determined the following points:

1st. That where there is a warranty of neutral property, and a capture and condemnation as prize, it shall be presumed to be on the ground of enemy's property, and in all cases the sentence shall be conclusive:

2d. Where there is a condemnation for particular reasons mentioned in the sentence, the Court will not inquire whether the reasons were good or not, but the sentence shall be conclusive, both as to the law and the fact:

3d. Where the condemnation is, as being contraband, where there is the usual clause of warranty, against loss by trade in contraband, the Court will not inquire whether the article be contraband or not; the sentence shall be conclusive.

January 31, 1801.]

Supreme Court of the United States.

FEBRUARY TERM, 1808.

Marshal, Plaintiff in Error, v. The Delaware Insurance Company.

Error from the Circuit Court for the District of Pennsylvania.

INSURANCE-ABANDONMENT-TOTAL OF PARTIAL Loss. The real state of the loss, at the time when the abandonment is made, is the proper and safe criterion of the rights of the parties. When a final decree of restitution has been awarded, the technical loss ceases to be total, and the underwriter is only answerable for a partial loss.

THIS

HIS was an action on several policies of insurance, in which the following case was made for the opinion of the Court, with an agreement, that it should be considered as a special verdict, for the purposes of a writ of error.

The plaintiff, a citizen of the state of New-York, and residing in the city of New-York, by his agent, F. Dusar, on the 7th of May, 1806, caused insurance to be effected on the cargo, freight and brig Rolla, (all owned by him) Samuel Clapp,

master.

On the 28th May, 1806, the vessel, while proceeding on her voyage, was captured and taken possession of, as prize, by the French privateer schooner, Napoleon, and carried into Lemon, an out-port of Samana. The captors there committed great pillage of the cargo. The Rolla remained at Lemon four or five days, and was then carried round to Samana, under the charge of a prize master, where further pillage was committed. The captors libelled the vessel and cargo in the inferior tribunal, at the city of St. Domingo, where the said vessel and cargo were acquitted on the 7th July by the said tribunal. From this decision there was an appeal by the captors to the superior tribunal at the said city of St. Domingo, where the said