located. This circumstance is sufficient, in our opinion, to establish the branch which was called for, as it is the first you meet with above the bend; and when that is ascertained, there is no longer any difficulty in locating the complainants' land. The jury find that the tree called for is very conspicuous, and that previous to the date of the complainants' entry a tree very near the spot where that is situated was marked D. L. Although a tree of a particular species, at a distance not precisely limited, may be uncertain where that tree abounds, the impression of a certain mark upon such a tree is a sufficient identification, when accompanied with the other circumstances of this case, which might have been resorted to by a subsequent locator to prove the identity of this tree. In giving this opinion the court is not uninfluenced by an anxiety to save the early estates acquired in that country. Such was the laxity of the rules upon which the rights of individuals depended under the land laws of Virginia, 177*1 *that this court feels a strong sense of the necessity of liberality in deciding upon the validity of entries. The court, therefore, reverses the decree of the district court, and decrees a conveyance, to be executed by the defendant to the complainants, of that part of the land contained in his patent which is included in the complainants' survey, and that each party pay their own costs. Decree reversed. Cited 20 How. 83; 5 Wall. 836. VIERS and WIFE v. MONTGOMERY. A court of equity will not interfere between a donee of land by deed, and a devisee under a will of the donor, in a case where there is no fraud. RROR to the district court of Kentucky, in stated in the bill, and avers that the defendant Patsy, although solicited, always refused to make any promise of marriage to the deceased; that he often pressed her to accept his land, which she for some time declined; that he declared he did not expect any consideration, but wished her to receive it as a gift, and that he did not expect she would marry him. It alleged that Brooks had boarded in her house some months, where he had been kindly and hospitably treated, without any charge being made against him, and suggested that this, together with the affection which he entertained for her, but which she always discountenanced, were his motives for giving her the land. That she at last, by the advice of her friends, accepted it, and that when he had executed the deeds he voluntarily declared himself to be fully satisfied, in the presence of the subscribing witnesses. The facts found by the jury were, that the defendant Patsy, by her conduct to the deceased, induced him to suppose that she would marry him, and that this encouragement or inducement was the only consideration she gave for the land, except his boarding; but that she never made him any promise of marriage. That he had urged her to accept the land before she agreed to take it, and had declared to her that he did not expect to receive any consideration from her, but wished her to accept it as a gift; and that at the time he executed the deeds, he declared he did not expect that she would marry him. That she was advised by her friends to take the land before she agreed to accept it; and that, after the execution of the deeds, she offered to return to him the land, but he would not receive it. That Brooks boarded in her house, and never paid her any thing therefor, except the land. The jury also found the will of the deceased, and the devise to the complainant. *Which decree was, by this court, [*179 without argument, reversed, and the complainant's bill dismissed, with costs. Decree reversed. The decree of the court below, upon argument, was, that the defendants should convey the land to the complainant, and that the comMontgomery against W. M. Viers and Patsy of Brook's board, and the taxes which had been his wife, late Patsy Henly, to compel the lat-paid by the defendants, with interest. ter to convey to the former the legal estate in certain lands in Kentucky, which one Ebenezer Brooks, since deceased, conveyed, by deeds dated the 10th of November, 1791, to the defendant's wife, while a widow, and which Brooks, by his last will, devised to the complainant Montgomery. The bill charged that the only consideration of the deeds from Brooks to Patsy Henly was, that she should take him as her husband," which she refused to do, but inter-married with the defendant, W. M. Viers. It did not aver that the complainant was of kin to the deceased, or that he had any equitable DIGGS and KEITH v. WOLCOTT. A court of the United States cannot enjoin proceedings in a state court. circuit court for the district of Connecticut, in a suit in chancery. HIS was an appeal from a decree of the claim other than as a devisee. Nor did it charge the defendant Patsy with any promise of marriage, or any breach of such a promise, The appellants, Diggs & Keith, had comnor with fraud in obtaining the deeds. The menced a suit at law against Alexander Wolwill of Brooks, referred to in the bill, calls the cott, the appellee, in the county court for the complainant his friend and cousin. The county of Middlesex, in the state of Connectideeds were of bargain and sale in fee, and pur-cut, upon two promissory notes given by Wolported to be in consideration of 1,100. Virginia cott to one Richard Matthews, for the purchase currency, and contained a warranty against of lands in Virginia, and by him indorsed to Brooks, and all claiming under him. the appellants; whereupon Wolcott filed a bill 178*] *The answer of the defendants de- in chancery in the Superior Court of the state, nied that the consideration of the deeds was as against the appellants Diggs & Keith, and also against Robert Young and Richard Matthews, praying that Diggs & Keith might be compelled to give up the two notes to be cancelled, or be perpetually enjoined from proceeding at law for the recovery thereof, &c. This suit in chancery was removed by the appellants from the state court into the circuit court of the United States for the district of Conneticut, where it was decreed that Diggs & Keith should, on or before a certain day, deliver the notes to the clerk of the court, and in default thereof should forfeit and pay to Wolcott 1,500 dollars; and that they should be perpetually enjoined, &c. and that Robert Young should repay to the appellee the amount of principal and interest which the latter had paid on account of the purchase of the lands; and that the appellee should deliver up to the clerk the surveys of the lands, and the bond of conveyance; and in default thereof should pay to R. Young the sum of 20,000 dollars. 180*] *The case was argued upon its merits by C. Lee and Swann, for the appellants, and by P. B. Key, for the appellee; but the court being of opinion that a circuit court of the United States had not jurisdiction to enjoin proceedings in a state court, filed in the clerk's office of the Supreme Court until the 18th of March, 1806, after the court had closed its session. P. B. Key, for the plaintiff in error, suggested that in such a case the writ of error ought to be dismissed of course. The Court, however, inclined to be of a contrary opinion, but informed Key that they would give him an opportunity to show the contrary. On a subsequent day he contended that the writ could not be returned at any other term than that to which it was returnable, and to which the defendant in error had been cited to appear. After the expiration of the term it was void. The execution of a writ of error is the sending up the record according to its command, and to send the record up at another term is no execution of the writ. *He relied upon the case of Blair r. [*181 Miller, in this court, 4 Dall. 21, as being decisive. February 28. The Chief Justice stated that there had been some difference of opinion among the judges, which arose from their not understanding perfectly the facts of the case. If the writ of error had been served when it was not in force, (that is, after its return day.) such service would have been void. But if served while in force, a return afterwards will be good. The service of a writ of error is the lodging a copy thereof for the adverse party in the office of the clerk of the court where the judgment was rendered. Laws U. S. vol. 1, p. 63, 8. 23. If it be so served before the return day, the service is good. In the case cited from 4 Dall. it does not appear which party made the motion, nor whether there was an appearance for the opposite party. In the present case, the writ of error having been served when in full force, and the writ of error returned although not at the first term, the appearance of the defendant in error has waived all objection to the irregularity of the return. The judgment was affirmed. NOTE. No notice was taken of the fact that the writ of error was served before the judg ment below was signed. Distinguished-4 Pet. 58, 61, 69. Cited 7 Pet. 147; 6 How. 81; 3 Wall. 97; 9 Otto, 507; 3 Mason, 37, 43, 49; Id. 84, 85, 436. Cranch 4. *The appointment of Judge Todd was under the act of Congress of 24th of February, 1807, directing that the Supreme Court should consist of a Chief Justice and six Associate Justices. Supreme Court of the United States. 185*] *FEBRUARY TERM, 1808. FITZSIMMONS admiralty court, but it does not appear to have been prosecuted. The judgment in the court below was for the original defendants. This cause was several times argued, having been pending in this court ever since the year 1803. It was now argued by Dallas and C. Lee, for THE NEWPORT INSURANCE COMPANY. the plaintiff in error, and by Rawle, for the defendants. E RROR to the circuit court of the district of Rhode Island, in an action upon a policy of insurance on the brig John, warranted American property, from Charleston, South Carolina, to Cadiz, captured by a British ship of war on the 16th of July, 1800, carried into Gibraltar, and there condemned on the 26th day of August following. The cause of condemnation, set forth in the sentence, was, that the brig was "cleared out for Cadiz, a port actually blockaded," and that the master "persisted in his intention of entering that port, after warning from the blockading force not to do so, in direct breach and violation of the blockade thereby notified." On the trial in the court below, the jury found a special verdict, stating, among other things, that the blockade of Cadiz was not known at Charleston when the John sailed from thence, and that the first notice the master had was from the blockading squadron, who brought to the brig, and warned the master not to proceed to, nor attempt to enter, the port of Cadiz, and indorsed his register; but the master had no notice of such indorsement upon his register until after the condemnation. The mate and some of the seamen were taken out, and a prizemaster and British seamen put on board. She was de186*] tained by the *blockading squadron from the 16th to the 27th of July, when the master was ordered on board the admiral's ship, and told, "We have thoughts of setting you at liberty, and in case we do, and deliver you your vessel and papers, what course will you steer, or what port will you proceed for?" To which the master answered, that in case he got no new orders, he should continue to steer by his old ones. The admiral then said, "That will be, I suppose, for Cadiz." To which the master replied, "Certainly, unless I have new orders." Upon which the admiral said, "That is sufficient; I shall send you to Gibraltar for adjudication." Whereupon the brig, without being liberated, was sent into Gibraltar, and condemned on the grounds stated in the sentence. The libel and proceedings in the viceadmiralty are found by the special verdict. An appeal was prayed and granted from the vice Argument for the plaintiff in error. 1. The plaintiff is entitled in the present action to support his claim by the truth of the case, in opposition to the falsehood of the sen tence. 2. The cause expressly assigned for condemning the vessel is not a lawful cause of condemnation, tested by the law of nations, or by the treaty between this country and Great Britain. I. The question of conclusiveness of a foreign sentence of a court of admiralty, in a case of insurance, has never yet been settled in this court. It is res integra. In a question of principle, and where this court is bound by no authority or precedent, it will take the path which leads to justice. *1st. How does it stand upon general [*187 principles? By what principle are we bound to enforce a foreign judgment? Not that of comity and reciprocity; for that would often be to sanction gross error and palpable injustice; but upon the principle of public policy and convenience, and this can extend no further than is necessary to quiet the title to the thing acquired under such a sentence. So far as the title to the thing itself is concerned, a foreign sentence must be considered as conclusive, but no further. foreign municipal judgment, when brought into our courts to be enforced, is only prima facie evidence; but when set up as a defense it is conclusive, because it is the decision of that tribunal to which the plaintiff has chosen to resort. It is, therefore, conclusive against him, but not in his favor. A Judgments upon attachments, which change the property of the thing attached, are conclusive as to the title of the thing, but not as to the question of debt between the principal creditor and debtor. Why should a sentence of condemnation as prize be conclusive in a suit for indemnity against capture? Public policy is not concerned in the question whether the insurer or the insured should bear the loss. The underwriter promises indemnity against capture and its effects, if the property be neutral. The assured warrants the neutrality, but not the acquittal in a foreign prize court. He is bound to sue, labor and travel for the benefit of the underwriter in this case as well as in others. But the loss by capture and condem |