And so, in the present case, whilst the insurance company has right to insist on the materiality of time in the condition of payment of premiums, and to hold the contract ended by reason of non-payment, they cannot with any fairness insist upon the condition, as it regards the forfeiture of the premiums already paid; that would be clearly unjust and inequitable. The insured has an equitable right to have this amount restored to him, subject to a deduction for the value of the assurance enjoyed by him whilst the policy was in existence; in other words, he is fairly entitled to have the equitable value of his policy.

*

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.

Secondly, that such failure being caused by a public war, without the fault of the assured, they are entitled ex æquo et bono to recover the equitable value of the policies with interest from the close of the

war.

In estimating the equitable value of a policy, no deduction should be made from the precise amount which the calculations give, as is sometimes done where policies are voluntarily surrendered, for the purpose of discouraging such surrenders; and the value should be taken as of the day when the first default occurred in the payment of the premium by which the policy became forfeited. In each case the rates of mortality and interest used in the tables of the company will form the basis of the calculation.

The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be proceeded with according to law and the directions of this opinion. * * * Mr. Justice CLIFFORD, with whom concurred Mr. Justice HUNT, dissenting:

Where the parties to an executory money-contract live in different countries, and the governments of those countries become involved in public war with each other, the contract between such parties is suspended during the existence of the war, and revives when peace ensues; and that rule, in my judgment, is as applicable to the contract of life-insurance as to any other executory contract. Consequently, I am obliged to dissent from the opinion and judgment of the court in these cases.24

24 In New York Life Ins. Co. v. Davis, 95 U. S. 425, 433, 24 L. Ed. 453 (1877), the facts were the same, except that the Insurance Company had an agent in the Confederacy to whom the insured, a major in the Confederate service, vainly tendered the premium as it fell due. Under the circumstances, the court, following the principal decision, said per Mr. Justice Bradley: "We do not mean to say that, if the defendant had continued its authority to the agent to act in the receipt of premiums during the war, and he had done so, a payment or tender to him in lawful money of the United States

would not have been valid; nor that a stipulation to continue such authority in case of war, made before its occurrence, would not have been a valid stipulation; nor that a policy of life insurance on which no premiums were to be paid, though suspended during the war, might not have revived after its close. We place our decision simply on the ground that the agency of Garland was terminated by the breaking out of the war, and that, although by the consent of the parties it might have been continued for the purpose of receiving payments of premiums during the war, there is no proof that such assent was given, either by the defendant or by Garland; but that, on the contrary, the proof is positive and uncontradicted, that Garland declined to act as agent!"

In the course of its opinion, the court considered and approved as authorities for payment to agents in an enemy's country: Conn v. Penn., Pet. C. C. 496, Fed. Cas. No. 3,104 (1818), the leading authority; Denniston v. Imbrie, 3 Wash. C. C. 396, Fed. Cas. No. 3,802 (1818); Buchanan v. Curry, 19 Johns. 137, 10 Am. Dec. 200 (1821); Ward v. Smith, 7 Wall. 447, 19 L. Ed. 207 (1868); Brown v. Hiatts, 15 Wall. 177, 21 L. Ed. 128 (1872); Montgomery v. U. S., 15 Wall. 395, 21 L. Ed. 97 (1872); Fretz v. Stover, 22 Wall. 198, 22 L. Ed. 769 (1874).

In regard to the influence of war on life insurance policies it may be said that three essentially distinct views have been held by courts of last resort, and reference is made to Abell v. Penn. Mutual Life Ins. Co., 18 W. Va. 400, 423-435 (1881), for their enumeration, and criticism of the authorities cited. In Semmes v. Hartford Ins. Co., 13 Wall. 158, 20 L. Ed. 490 (1871), the action was upon a policy of fire insurance containing the express stipulation that no suit should be sustainable thereunder unless brought within twelve months after the loss or damage occurred. The Civil War broke out during the twelve months within which the suit should and no doubt would have been brought. As it was impossible to bring suit during the war, this condition was not performed. It was held by the court that the condition was entire and not divisible; that as performance became impossible by operation of law, the assured was entirely released from the obligation of bringing suit within the twelve months; that the action could, therefore, be maintained at any time within the statute of limitations. In other words, war suspends but does not extinguish conditions of a contract, so that on the return of peace the entire conventional stipulation as regards time revives as of right. In case of a statutory limitation within which the suit may or must be brought, the period during which the courts were closed by reason of war is deducted and the plaintiff is given the balance of time to bring the action which the war prevented him from doing. See Wambaugh, A Selection of Cases on Insurance (1902) 651, note, for an exhaustive citation of adjudged

cases.

CHAPTER VII

INTERCOURSE BETWEEN BELLIGERENTS

SECTION 1.-GENERAL PROHIBITION 1

THE HOOP.

(High Court of Admiralty, 1799. 1 C. Rob. 196.)

This was a case of a claim of several British merchants for goods purchased on their account in Holland, and shipped on board a neutral vessel.

The affidavit annexed to the claim set forth, that Mr. Malcolm of Glasgow, and several other merchants of North Britain, had, long prior to hostilities, been used to trade extensively with Holland, in the importation of various articles of the produce of Holland, which were particularly wanted for the use of Glasgow, and essentially necessary to the agriculture and manufacture of that part of the kingdom; that, after the irruption of the French into Holland, they had constantly applied for, and obtained special orders of his majesty in council, permitting them to continue that trade; that after the passing of the acts of Parliament, 35 Geo. III, c. 15,2 and 80; 36 Geo.

1 In Small's Adm'r v. Lumpkin's Ex'x et al., 28 Grat. 832, 834, 835 (1877), decided by the Court of Appeals of Virginia in 1877, Judge Burks said:

"In a foreign or international war, from the time it is declared or recognized, all the people in the territory and subject to the dominion of each belligerent, without regard to their feelings, dispositions or natural relations, be come, in legal contemplation, and so continue to the close of hostilities, the enemies of all the people resident in the territory of the other belligerent; and all negotiation, trading, intercourse or communication between them, unless licensed by the government, is unlawful. Such a war, as between the citizens or subjects of the respective belligerents, ipso facto dissolves all commercial partnerships, and all contracts wholly executory and requiring for their continued existence commercial intercourse or communication; and while it does not abrogate, yet it suspends all other existing contracts and obligations and the remedies thereon, and renders all contracts, with rare exceptions, entered into pending hostilities, illegal and void.

"These familiar principles of public law, regulating conduct in foreign wars, have been applied by the courts of this country, state and federal, to the late war between the United States and the Confederate States. Griswold v. Waddington, 16 Johns. (N. Y.) 438 [1819]; Prize Cases, 2 Black's U. S. 635, Fed. Cas. No. 18,283 [1862]; Mrs. Alexander's Cotton, 2 Wall. (U. S.) 404, 17 L. Ed. 915 [1864]; The William Bagaley, 5 Wall. (U. S.) 377, 18 L. Ed. 583 [1866]; Hanger v. Abbott, 6 Wall. (U. S.) 532, 18 L. Ed. 939 [1867]; Matthews v. McStea, 91 U. S. 7, 23 L. Ed. 188 [1875]; Billgerry v. Branch & Sons, 19 Grat. (Va.) 393, 100 Am. Dec. 679 [1869]; Walker v. Beauchler, 27 Grat. (Va.) 511 [1876]."

2 The 35 Geo. III, c. 15 (16th March 1795), reciting and confirming the Orders of Council of the 16th and 21st of January (which allowed goods

III, c. 76; 37 Geo. III, c. 12, confirming and continuing the orders of council of the 16th and 21st January, it was apprehended in that part of Great Britain, that by these acts the importation of such goods was made legal. But for the greater security, they still made application to the commissioners of customs at Glasgow, to know what they considered to be the interpretation of the said acts, and whether his majesty's license was still necessary; and that in answer to such application, the merchants were informed, under the opinion of the law advisers of the said commissioners, that no such orders of council were necessary, and that all goods brought from the United Provinces, would in future be entered without them; and that in consequence of such information, they had caused the goods in question to be shipped at Rotterdam for their account; ostensibly documented for Bergen to avoid the enemy's cruisers.

Sir W. SCOTT. This is the case of a ship, laden with flax, madder, geneva, and cheese, and bound from Rotterdam ostensibly to Bergen; but she was in truth coming to a British port, and took a destination to Bergen to deceive French cruisers; and as the claim discloses (of which I see no reason to doubt the truth), the goods were to be imported on account of British merchants, being most of them articles of considerable use in the manufactures and commerce of this country, and being brought under an assurance from the commissioners of the customs in Scotland that they might be lawfully imported without any license, by virtue of the statute 35 Geo. III, cc. 15 and 80.

It is said that these circumstances compose a case entitled to great indulgence; and I do not deny it. But if there is a rule of law on the subject binding the court, I must follow where that rule leads me; though it leads to consequences which I may privately regret, when I look to the particular intentions of the parties.

In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country; it is laid down by Bynkershoek as an universal principle of law. "Ex naturâ belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant," etc. He proceeds to observe, that the interests of trade, and the necessity of

coming to ports of this kingdom directly from any port of Holland, and navigated in any manner, to be landed and secured in warehouses for the use of the proprietors till farther orders), enacts, that it shall be lawful to import such goods belonging to subjects of the United Provinces, or to any who were subjects before the 19th of January, 1795, or to any subject of his Majesty, to be landed and secured in warehouses for the benefit of the proprietor, and for the security of the revenue. The subsequent acts contain further regulations for property coming from Holland, in the ambiguous situation of the two countries at that time.

3 Parts of the opinion are omitted.

obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, "prout e re sua, subditorumque suorum esse censent principes." Bynk. Q. J. P. bk. 1, c. 3. But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quo ad hoc. It is, as he expresses it, "pro parte sic bellum, pro parte pax inter subditos utriusque principes." It appears from these passages to have been the law of Holland; Valin, 1. iii., tit. 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels. It will appear from a case which I shall have occasion to mention, The Fortuna, to have been the law of Spain; and it may, I think, without rashness be affirmed to have been a general principle of law in most of the countries of Europe.

By the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone therefore who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expediency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circumstances that may be connected with such an intercourse, to determine when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the consequences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and under color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government, charged with the care of the public safety?

Another principle of law, of a less politic nature, but equally general in its reception and direct in its application, forbids this sort of communication as fundamentally inconsistent with the relation at that time existing between the two countries; and that is, the total inability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain in the language of the civilians a persona standi in judicio. The peculiar law of our own country applies this principle with