Page images
PDF
EPUB

ments themselves, in a state of hostility,' and it dissolves commercial partnerships existing between the subjects or citizens of the two contending parties prior to the war, for their continued existence would involve community of interest and mutual dealing between enemies.” Trotter, p. 255.

New York Life Insurance Co. v. Statham, 93 U. S. 24, 1.—The Court said: "The case, therefore, is one in which time is material and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipulation of the parties by introducing equities for the relief of the insured against their own negligence.

"But the Court below bases its decision on the assumption that, when performance of the condition becomes illegal in consequence of the prevalance of public war, it is excused, and forfeiture does not ensue. It supposes the contract to have been suspended during the war, and to have revived with all its force when the war ended. Such a suspension and revival do take place in the case of ordinary debts. But have they ever been known to take place in the case of executory contracts in which time is material? If a Texas merchant had contracted to furnish some Northern explorer with a thousand cans of preserved meat by a certain day, so as to be ready for his departure for the North Pole, and was prevented from furnishing it by the Civil War, would the contract still be good at the close of the war five years afterwards, and after the return of the expedition?

[blocks in formation]

"We are of opinion, therefore, first, that as the companies elected to insist upon the condition in these cases, the policies in question must be regarded as extinguished by the non-payment of the premiums, though caused by the existence of the war, and that an action will not lie for the amount insured thereon."

Trotter, pp. 211, 212, 214.

Williams v. Paine. 169 U. S. 55.-Peckham, J., said: “(2) The next question which arises is whether this power of attorney was revoked by the war which broke out between the two sections of the country in 1861.

"Lieutenant Ransom, although one of the last officers to go out, did resign his commission in the army of the United States and went south and entered the army of the Confederacy, in which, before the close of the war, he attained high rank. His wife followed him, so that during the war they were both inside the lines of the Confederacy.

"We are of opinion that the war did not revoke the power of attorney executed by Mrs. Ransom and her husband. It is not every

agency that is necessarily revoked by the breaking out of a war between two countries, in which the principal and agent respectively live. Certain kinds of agencies are undoubtedly revoked by the breaking out of hostilities. Agents of an insurance company, it is said, would come within that rule (Insurance Company v. Davis, 95 U. S. 425, 429).

*

*

*

*

"It is entirely plain, as we think, that the mere fact of the breaking out of a war does not necessarily and as a matter of law revoke every agency. Whether it is revoked or not depends upon the circumstances surrounding the case and the nature and character of the agency. This case shows that in 1859, at the time when the power of attorney was executed, Lieutenant Ransom and his wife were desirous of realising their share of the value of the land in controversy. It was vacant, unimproved land in the city of Washington, and the charge for taxes was quite burdensome. The parties desired to realise the money. No sale of the property was effected from that time until the latter part of 1864 or early part of 1865. There is no evidence of any such change of circumstances as would naturally suggest a revocation of the authority to sell, but, on the contrary, the testimony is otherwise. It appears to have been to the interest of all parties to sell, and thus to free themselves from a constant source of expense."

Trotter, pp. 227–229.

The treaty of peace with Great Britain prevents the operation of the statute of limitations of Virginia on British debts which were incurred before the treaty.

Moore's Digest, vol. 7, p. 254, citing Hopkirk v. Bell, 3 Cranch, 454.

Where a citizen of a State adhering during the war of the rebellion to the national cause brought suit, after the war, against a citizen residing during the war within the limits of an insurrectionary State, it was held that the period during which the plaintiff was prevented from suing by the state of hostilities should be deducted from the time necessary to bar the action under the statute of limitations.

Moore's Digest, vol. 7, p. 254, citing Hanger v. Abbott, 6 Wall. 532.

See, also, The Protector, 12 Wall. 700; Semmes v. Hartford Ins. Co., 13
Wall. 150; Brown v. Hiatts, 15 Wall. 177; University r. Finch 18
Wall. 106.

The effect of war is to dissolve a partnership between citizens of hostile nations.

Moore's Digest, vol. 7, p. 250, citing The William Bagaley, 5 Well. 377. See, also, Griswold r. Waddington (1819), 16 Johns. 438. As to exceptions, see Matthews v. McStea (1875), 91 U. S. 7.

A transfer of property to a creditor by an enemy debtor, though made to an agent of the creditor and in payment of a debt contracted before the war, is void, and can not be made lawful by any ratification.

Moore's Digest, vol. 7, p. 251, citing United States v. Grossmayer, 9
Wall. 72.

A sale of real estate during the rebellion, under a power in a deed of trust previously given to secure the payment of promissory notes of the grantors in the deed, is valid, though said grantors at the time of the sale were citizens and residents of one of the States declared to be in insurrection.

Moore's Digest, vol. 7, p. 251, citing University v. Finch, 18 Wall. 106.

In May, 1859, Lieutenant R., of the United States Army, who was then stationed at Carlisle Barracks, in Pennsylvania, and his wife, executed a power of attorney to the latter's brother to convey their interest in certain lands in the city of Washington, D. C. After the civil war broke out, R. who was a native of North Carolina, resigned his commission and entered the Confederate service. His wife accompanied him to the South. Her brother remained with the United States Army, of which he was an officer. During the war the lands. were sold and a deed for them was given by him under the power of attorney. The purchase money was duly paid and the share of Mrs. R. was paid over to her while she was within the lines of the Southern army with her husband. Some years afterwards, after the death of R. and his wife, a bill was filed by their children to have the deed executed by Mrs. R.'s brother under the power of attorney declared null and void as a cloud upon the title of the complainants in the property. In support of this petition it was argued, among other things, that the power of attorney was revoked by the war which existed between the sections in which the principals and the agent, respectively, lived. It was held, however, that the war did not revoke the power of attorney. War did not, said the court, necessarily revoke every agency existing between inhabitants of the contending countries. Certain kinds of agencies were undoubtedly revoked by the breaking out of hostilities. It had been held that the agent of an insurance company came within the rule (Insurance Company v. Davis, 95 U. S. 425, 429); and Mr. Justice Bradley, in delivering the opinion in that case, had said that, in order that the agency might subsist during the war, it must have the assent of the parties. This remark was made with reference to the case then before the court in which the agent of a New York company, who resided in Virginia, entered the Confederate service and thereafter refused to receive premiums, on the ground that he had no receipts from the

company, and that the money, if received by him, would be confiscated by the Confederate government. A claim was subsequently made for the insurance, on the ground that the insured was guilty of no laches, and that at the close of the war the policy revived. The court held that the agency was revoked by the war, since its continuance would have involved an active and continuous business of such a nature that it could not be carried on during the war, where the principal and the agent resided in different belligerent countries. The general subject of contracts and business between the citizens of States at war was examined with great care in Kershaw v. Kelsey, 100 Massachusetts, 561, by Mr. Justice Gray, who held that, while the law of nations prohibited all contracts involving intercourse between citizens of the two belligerents, the prohibition would not be carried further, and that the court was not disposed to declare unlawful contracts such as had not previously been adjudged to be inconsistent with a state of war. The Supreme Court thought that the power of attorney in the present case was not revoked by the war, and that, as it was manifestly the interest of the principal that the agency constituted before the war should continue, his assent to its continuance would be presumed. And the act of the agent was ratified by the receipt by the principal of the money obtained by the sale.

Moore's Digest, vol. 7, pp. 251, 252, citing Williams v. Paine (1897) 169 U. S. 55; opinion by Mr. Justice Peckham.

During the war, a sale of land within the Union lines was made under a deed of trust given before the war to secure the payment of a debt. The grantor, at the time of the sale, was a resident within the Confederate lines. Held, that the sale was valid.

Moore's Digest, vol. 7, p. 252, citing Mitchell r. Nodaway County, 80
Mo. 257.

With regard to life insurance contracts, it was held that, as the companies elected to insist upon the conditions of time as to the payment of premiums, the payment of which had been prevented by the existence of war, the policies must be considered as extinguished by nonpayment of the premiums, but that the insured were entitled ex aequo et bono to recover the equitable value of the policies, with interest from the close of the war.

Moore's Digest, vol. 7, p. 252, citing New York Life Ins. Co. v.
Statham (1876), 93 U. S. 24; Semmes v. Hartford Ins. Co. (1871),
13 Wall. 158; New York Life Ins. Co. v. Davis (1877), 95 U. S. 425;
Abell v. Penn Mutual Life Ins. Co. (1881), 18 W. Va. 400.

CESSATION OF INTEREST ON OBLIGATIONS.

The tendency of modern law, both private and international, is to pass away from abstractions and technicalities, and to take cognizance of realities and actual conditions as they exist here and now. It is conceived, then, that the only necessary measure, in accordance with an equitable interpretation of the doctrine of non-intercourse, is to suspend merely the payment of interest until the resumption of peace. This suspension, moreover, need not amount to a total discontinuance, for it is not conceivably antagonistic to the interests of law or national policy to permit the interest to accrue till the end of hostilities. The network of commercial transactions has become so far-reaching and complex, and the interests involved in trading relationships so great, that it is necessary to afford such security to foreign investors as will encourage them to furnish capital for large business undertakings. Of course, the legal position of a company which provides a belligerent with means for the prosecution of war will be quite different.

Phillipson, pp. 101, 102.

Further, debenture-holders ought to be permitted, on the conclusion of peace, to sue for arrears of interest accrued on the debentures during the war. If any time be fixed for payment, interest ought to run till that time. In the case of perpetual debenture stock, interest should continue to run throughout the war. There are, indeed, several old cases to the contrary, but they were decided at a time when it was the practice even to confiscate debts. But, consistent with the spirit of the present age, a more liberal practice has of recent years prevailed; and various important relaxations and modifications of the older doctrine have been introduced. In the South African War, for example, interest was regularly paid to debenture-holders in the South African mining companies, in spite of the decision that a company incorporated under the laws of the Transvaal and carrying on business there was vested with enemy character.

Phillipson, p. 104; Janson v. Driefontein Consolidated Mines, Ltd.,
A. C. 489, 505.

No interest runs on debts [Du Belloix v. Lord Waterpark (1822), 1 Dowl. & R. 16; Mayer v. Reed (1867), 37 Gallison, 482.] or mortgages [to alien enemies]. [Hoare v. Allan (1789), 2 Dallas, 102.]

Oppenheim, vol. 2, p. 137.

« PreviousContinue »