Upon the whole, the court is unanimously of opinion, that the circuit court erred in permitting the copies of surveys made for Wilson Carey Nicholas, and the testimony of Erastus Granger, to go to the jury for the purposes mentioned in the bill of excep[* 433] tions, and * that the judgment of the circuit court must, on that account, be reversed, and the cause remanded for a new trial.1 12 P. 300; 4 H. 131; 8 H. 451 Judgment reversed. Ex parte LEWIS and others. 4 C. 433. In the circuit court for the district of Pennsylvania, at November term, 1806, a motion was made by Rawle, in behalf of Lewis and others, (the jurors in civil cases, who had attended the court at that session,) that the marshal be ordered to pay each of the jurors one dollar and twenty-five cents for each day's attendance; But the judges of that court being divided in opinion upon the question, it was certified to this court. This court ordered it to be certified that the jurors were entitled to the fee of one dollar and twenty-five cents per diem for their attend ance. 'After the opinion of the court was delivered, Lee prayed that the cause might be remanded, with leave for the defendants below to amend their pleadings. THE COURT said, that the court below had the power to grant leave to amend, and this court could not doubt but it would do what was right in that respect. Croudson v. Leonard. 4 C. CROUDSON and others v. LEONARD. [*434] 4 C. 434. The sentence of a foreign court of admiralty condemning a vessel for breach of blockade, is conclusive evidence of that fact in an action on the policy of insurance. ERROR to the circuit court of the District of Columbia, in an action on a policy of insurance on the cargo of the brig Fame, on a voyage from Alexandria, to, at, and from Barbadoes and four other ports in the West Indies, and back to Alexandria, the vessel and cargo warranted American property. The vessel arrived at Barbadoes, and sailed from thence for Antigua, but on her voyage to that island was captured by a British vessel and carried into Barbadoes, and there condemned in the vice-admiralty court, for attempting to break the blockade of Martinique. The jury found a special verdict, upon which the judgment below was in favor of the plaintiffs. The only question arising upon this special verdict was, whether the sentence of the court of vice-admiralty was conclusive evidence of an attempt to violate the blockade of Martinique. This question having been several times argued, (but not decided,) in the case of Fitzsimmons v. The Newport Insurance Company, at this term, (4 C. 185,) the counsel submitted it to the court without further argument. JOHNSON, J. The action below was instituted on a policy of in surance. On behalf of the insurers, it was contended that the policy was forfeited by committing a breach of blockade. It is not, and cannot be made a question, that this is one of those acts which will exonerate the underwriters from their liability. The only point below was relative to the evidence upon which the commission of *the [*435 ] act may be substantiated. A sentence of a British prize court in Barbadoes was given in evidence, by which it appeared that the vessel was condemned for attempting to commit a breach of blockade. It is the English doctrine, and the correct doctrine on the law of nations, that an attempt to commit a breach of blockade is a violation of belligerent rights, and authorizes capture. This doctrine is not denied, but the plaintiff contends that he did not commit such Croudson v. Leonard. 4 C. an attempt, and the court below permitted evidence to go to the jury to disprove the fact on which the condemnation professes to proceed. On this point, I am of opinion that the court below erred. I do not think it necessary to go through the mass of learning on this subject, which has so often been brought to the notice of this court, and particularly in the case of Fitzsimmons, argued at this term. Nearly the whole of it will be found very well summed up in the 18th chapter of Mr. Park's Treatise. The doctrine appears to me to rest upon three very obvious considerations; the propriety of leaving the cognizance of prize questions exclusively to courts of prize jurisdiction; the very great inconvenience, amounting nearly to an impossibility, of fully investigating such cases in a court of common law, and the impropriety of revising the decisions of the maritime courts of other nations, whose jurisdiction is coördinate throughout the world. It is sometimes contended that this doctrine is novel, and that it takes its origin in an incorrect extension of the principle in Hughes v. Cornelius, Raym. R. 473. I am induced to believe that it is coeval with the species of contract to which it is applied. Policies of insurance are known to have been brought into England from a country that acknowledged the civil law. This must have been the law of policies at the time when they were considered as contracts proper for the admiralty jurisdiction, and were submitted to the court of policies established in the reign of Elizabeth. It is probable that, at the time when the common law assumed to itself exclusive jurisdic[*436] tion of the contract of insurance, the rule was * too much blended with the law of policies to have been dispensed with, had it even been inconsistent with common law principles. But, in fact, the common law had sufficient precedent for this rule, in its own received principles relative to sentences of the civil law courts of England. It may be true that there are no cases upon this subject prior to that of Hughes v. Cornelius, but this does not disprove the existence of the doctrine. There can be little necessity for reporting decisions upon questions that cannot be controverted. Since the case of Hughes v. Cornelius, the doctrine has frequently been brought to the notice of the courts of Great Britain in insurance cases, but always with a view to contest its applicability to particular cases, or to restrict the general doctrine by exceptions, but the existence of the rule, or its applicability to actions on policies, is nowhere controverted. I am of opinion that the sentence of condemnation was conclusive evidence of the commission of the offence for which the vessel was condemned, and as that offence was one which vitiated the policy, the defendants ought to have had a verdict. Croudson v. Leonard. 4 C. WASHINGTON, J. The single question in this case is, whether the sentence of the admiralty court at Barbadoes, condemning the brig Fame and her cargo as prize, for an attempt to break the blockade of Martinique, is conclusive evidence against the insured, to falsify his warranty of neutrality, notwithstanding the fact stated in the sentence as the ground of condemnation is negatived by the jury? This question has long been at rest in England. The established law upon this subject in the courts of that country is, that the sentence of a foreign court of competent jurisdiction, condemning the property upon the ground that it was not neutral, is so entirely conclusive of the fact so decided, that it can never be controverted, directly or collaterally, in any other court having concurrent jurisdiction. This doctrine seems to result from the application of a legal principle which prevails in respect to domestic judg- [*437] ments, to the judgments and sentences of foreign courts. It is a well-established rule in England, that the judgment, sentence, or decree of a court of exclusive jurisdiction directly upon the point, may be given in evidence as conclusive between the same parties, upon the same matter coming incidentally in question in another court for a different purpose. It is not only conclusive of the right which it establishes, but of the fact which it directly decides. This rule, when applied to the sentences of courts of admiralty, whether foreign or domestic, produces the doctrine which I am now considering, upon the ground that all the world are parties in an admiralty cause. The proceedings are in rem, but any person having an interest in the property may interpose a claim, or may prosecute an appeal from the sentence. The insured is emphatically a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation, by proving, if he can, the neutrality of the property. The master is his immediate agent, and he is also bound to act for the benefit of all concerned, so that, in this respect, he also represents the insurer. That irregularities have sometimes taken place, to the exclusion of a fair hearing of the parties, is not to be denied. But this furnishes no good reason against the adoption of a general rule. A spirit of comity has induced the courts of England to presume, that foreign tribunals, whether of prize or municipal jurisdiction, will act fairly, and will decide according to the laws which ought to govern them; and public convenience seems to require, that a question, which has once been fairly decided, should not be again litigated between the same parties, unless in a court of appellate jurisdiction. The irregular and unjust decisions of the French courts of admiralty, of late years, have induced even English judges to doubt * Croudson v. Leonard. 4 C. of the wisdom of the above doctrine in relation to foreign sentences, but which they have acknowledged to be too well established for English tribunals to shake; and the justice with which [438] the same charge is made by all neutral nations against the English as well as against the French courts of admiralty, during the same period, has led many American jurists to question the validity of the doctrine in the courts of our own country. It is said to be a novel doctrine, lately sprung up, and acted upon as rule of decision in the English courts, since the period when English decisions have lost the weight of authority in the courts of the United States. It is this position which I shall now examine, acknowledging that I do not hold myself bound by such decisions made since the revolution, although, as evidence of what the law was prior to that period, I read and respect them. The authority of the case of Hughes v. Cornelius, the earliest we meet with as to the conclusiveness of a foreign sentence, is admitted; but its application to a question arising under a warranty of neutrality between the insurer and insured, is denied. It is true that, in that case, the only point expressly decided was, that the sentence was conclusive as to the change of property effected by the condemnation. But it is obvious that the point decided in that case depended, not upon some new principle peculiar to the sentences of foreign courts, but upon the application of a general rule of law to such sentences. This case, as far as it goes, places a foreign sentence upon the same foundation as the sentence or decree of an English court acting upon the same subject; and we have seen that, by the general rule of law, the latter, if conclusive at all, is so as to the fact directly decided, as well as to the change of property produced by the establishment of the fact. Hence it would seem to follow, that if the sentence of a foreign court of admiralty be conclusive as to the property, it is equally conclusive of the matter or fact directly decided. What is the matter decided in the case under consideration? That the vessel was seized whilst attempting to break a blockade, in consequence of which she lost her neutral character; and the change of property produced by the sentence of condemnation is a consequence of the mat ter decided, that she was, in effect, enemy-property. Can [*439] the parties to that sentence be bound by so much of * it as works a loss of the property, because it was declared to be enemy-property, and yet be left free to litigate anew in some other form, the very point decided from which this consequence flowed? Or upon what just principle, let me ask, shall a party to a suit, who has once been heard, and whose rights have been decided by a competent tribunal, be permitted, in another court of concurrent jurisdic |
