negligence. It is well settled in this State that such a release is against public policy. Comity does not require more of us than to give effect to the lex loci contractus when not subversive of the public policy of our own State. This has been distinctly held by the Court of Appeals of New York,* in which this release was executed, and in whose behalf comity is asked. I would follow the Court of Appeals, because comity can require no more of us in any given case than the courts of the place of the contract would yield to us for comity's sake; and because I believe the rule to rest on solid ground."

*NOTE. The case referred to is doubtless Keller v. Paine, 9 Cent. Rep. 429, 107 N. Y. 83.

CHAPTER IV.

WAR AS AFFECTING CONTRACTS.

13. Dealings with Public Enemy.

a. Duty of Citizen to Avoid.

b. Executory Contracts Canceled by War.
c. Contracts with, Void.

14. No Power to Appoint Agent after Hostilities.
15. Licenses to Trade.

a. May be Given to Alien Enemy.

b. Liberally Construed.

16. Insuring the Property of a Public Enemy.

§ 13. Dealings with Public Enemy.

a. Duty of Citizen to Avoid.-The duty imposed upon the citizen of sustaining the government which protects him in his social rights, establishes the rule, as courts and jurists everywhere agree, that all trading in time of war with the public enemy, unless by permission of the sovereign, is interdicted when war is declared or duly recognized by the belligerent parties.'

As soon as war is commenced, all trading, negotiation, commu nication or intercourse between the citizens of the belligerent countries must cease, unless authorized by the direct permission of the sovereign power.'

b. Executory Contracts Canceled by War.-All contracts made with an enemy during war are utterly void."

'McKee v. United States, 75 U. S. 8 Wall. 163, 19 L. ed. 329; Hanger v. Abbott, 73 U. S. 6 Wall. 532, 18 L. ed. 939; The Hoop, 1 C. Rob. 196; Scholefield v. Eichelberger, 32 U. S. 7 Pet. 586, 8 L. ed. 793; Exposito v. Bowden, 7 El. & Bl. 779; Griswold v. Waddington, 15 Johns. 57, 16 Johns. 449; 3 Phill. Ins. L. 108; White v. Burnley, 61 U. S. 20 How. 235, 15 L. ed. 886. Lasere v. Rochereau, 84 U. S. 17 Wall. 439, 21 L. ed. 695; Desmare v. United States, 10 Ct. Cl. 393; Philips v. Hatch, 1 Dill. 578; Planters Bank v. St. John, 1 Woods, 589; 1 Chit. Com. Law, 379; 1 Duer, Ins. 419, United States v. Grossmayer, 76 U. S. 9 Wall. 72, 19 L. ed. 627; Mitchell v. United States, 88 U. S. 21 Wall. 350, 22 L. ed. 584; Kershaw v. Kelsey, 100 Mass. 576. 'Vattel, Law of Nations, § 220; United States v. Grossmayer, 76 U. S. 9 Wall. 72, 19 L. ed. 627; Montgomery v. United States, 82 U. S. 15 Wall. 395, 21 L. ed. 97; United States v. Lapene, 84 U. S. 17 Wall. 601. 21 L. ed. 693; Brown v. United States, 12 U. S. 8 Cranch, 110, 3 L. ed. 504.

Executory contracts, if they cannot be performed except in the way of commercial intercourse with the enemy, are dissolved by the declaration of war.'

Under an attempted purchase from an enemy of enemy's property during war, no title can be acquired."

c. Contracts with, Void.-Where a citizen of New Orleans, after its subjugation by the federal forces, went within the rebel lines, engaged actively in the service of the rebel government, and while so engaged acquired the ownership of cotton, his contracts for the cotton were illegal and void.'

Contracts by the British consul at New Orleans, made during the civil war, to cause cotton to be protected and transported from place to place within the insurgent lines to New Orleans were void.

A sailing license issued by one in command of a hostile fleet, within the territory of the belligerent, will be evidence of such illegal trading as will authorize the latter to condemn the vessel using the license.*

The payment of money by the subject of one of the belligerents, in the country of another is condemned, and all contracts and securities looking to that end are illegal and void.*

So of a bill of exchange drawn by an alien in an enemy's country during a war, on a subject of the other belligerent at his home. It cannot be collected after peace."

14. No Power to Appoint Agent after Hostilities.— After hostilities have actually commenced, an individual in one territory has no power to appoint an agent for any purpose in the other hostile territory.

A resident, however, of the territory of one belligerent, may

1Hanger v. Abbott, 73 U. S. 6 Wall. 532, 18 L. ed. 939.

Montgomery v. United States, 82 U. S. 15 Wall. 395, 21 L. ed. 97; United
States v. Lapene, 84 U. S. 17 Wall. 601, 21 L. ed. 693; Mitchell v. United
States, 88 U. S. 21 Wall. 350, 22 L. ed. 584.

Desmare v. United States, 93 U. S. 605, 23 L. ed. 959.
Hall v. Coppell, 74 U. S. 7 Wall. 548, 19 L. ed. 245.
The Julia, 12 U. S. 8 Cranch, 181, 3 L. ed. 528.

Griswold v. Waddington, 16 Johns. 459.

'Antoine v. Morshead, 6 Taunt. 237.

8 United States v. Grossmayer, 76 U. S. 9 Wall. 72, 19 L. ed. 627.

have, in times of war, an agent residing in the territory of the other belligerent, to whom his debtor must pay the debt or deliver property in discharge of it. Such payments on deliveries involve no intercourse between enemies.'

A devise to an alien enemy vests a title in the devisee which is good until office found."

A bequest to an alien enemy is good, and after peace can be enforced."

Parties within an enemy's country, engaged in hostility to their own government, may transfer and receive the title to real property situated within the limits of their own government.*

15. Licenses to Trade.

a. May be Given to Alien Enemy.-License may be granted by the proper authority to trade with the public enemy. Trading with the enemy, except by license, subjects the property to confiscation. This rule applies to allies. The interposition of a prior neutral port does not relieve the illegality."

b. Liberally Construed.-Where a license is issued even to an alien enemy, to trade, it must be liberally construed to carry out the purpose of the grant, and its terms are not to be limited by construction, where the adventure contemplated has been fairly and reasonably carried out."

A license of this nature, legalizing a particular venture, incidentally legalizes all the measures necessary to be used for its prosecution; it impliedly allows a person whose commerce is authorized, although he be an alien enemy, to protect his interest by insurance, and an agent of the power granting the license to an alien enemy, in whose name the insurance is effected, may

1Montgomery v. United States, 82 U. S. 15 Wall. 400, 21 L. ed. 97. Fairfax v. Hunter, 11 U. S. 7 Cranch, 603, 3 L. ed. 453.

Atty-Gen. v. Weeden, Park. Exch. 267.

Conrad v. Waples, 96 U. S. 279, 24 L. ed. 721.

Jecker v. Montgomery, 59 U. S. 18 How. 110, 15 L. ed. 311; Madonna Delle Gracie, 4 Rob. 195.

The Cosmopolite, 4 C. Rob. 8; Grotius, b. 3, chap. 21, § 14; The Abigail Stewart's Vice Adm. 360; Schroeder v. Vax, 15 East, 52, 3 Campb. 84, note; 1 Edward, Adm. 95.

bring an action upon the policy even during the continuance of the war.'

§ 16. Insuring the Property of a Public Enemy.-Insuring the property of a public enemy is condemned by all publicists who have discussed the question, as well the earliest as the latest. Valin (liv. 3, title 6, art. 3), Emérigon (tom. 1, 128), and Bynkershoek (2 Juris. Pub. chap. 21), are not less emphatic than Wheaton (Dana, Wheat. § 317), and Phillimore (vol. 5, 109). Such also is the rule of the common law."

A distinction was taken in Bell v. Gilson, 1 Bos. & P. 345, where it was held that the insurance of goods purchased in an enemy's country during war, by a British agent, and shipped for British subjects, was lawful insurance. But in Furtado v. Rogers, 3 Bos. & P. 191, every distinction of that kind was abandoned, and in case of French property, previous to war, insurance was held not to cover a loss by British capture after the war was renewed, even though the action was not brought until after peace was declared.' The ordinances of Barcelona, as early as 1484, declared such insurance void.*

Bynkershook, discussing this question, concludes that the very fact and reason of the existence of war absolutely forbids the insurance of enemy's property, because by assuming such risks, we promote the maritime commerce of the enemy. Valin considered that insuring enemy's property and trading with the enemy 1Kensington v. Inglis, 8 East, 273; Flindt v. Scott, 5 Taunt. 705; De Tastet v. Taylor, 4 Taunt. 248; Fayle v. Bourdillon, 3 Taunt. 546; Hullman v. Whitmore, 3 Maule & S. 337; Willison v. Patterson, 7 Taunt. 448; Uspari cha v. Noble, 13 East, 332; Morgan v. Oswald, 3 Taunt. 568; Flindt v. Scott, 5 Taunt. 700, 701; Edw. Lead. Dec. Brit. Luc. 20; Rucher v. Ausley, 5 Maule & S. 25; Anthony v. Moline, 5 Taunt. 711, 715; Schnakonez v. Andrews, 5 Taunt. 716, 719; Robinson v. Morris, 5 Taunt. 720; Bazett v. Meyer, 5 Taunt. 824, 828, 829; Fiese v. Bell, 4 Taunt. 4; Robinson v. Touray, 1 Maule & S. 217, 3 Campb. 158; Hagedorn v. Reed, 1 Maule & S. 567. But see Hagedorn v. Bazett, 2 Maule & S. 100, as to which see observations 5 Maule & S. 31; Mennet v. Bonham, 15 East, 477; Flindt v. Crockett, 15 East, 522.

'Brandon v. Nesbitt, 6 T. R. 23; Potts v. Bell, 8 T. R. 548; Furtado v. Rogers, 3 Bos. & P. 191.

33 Kent, Com. 254.

4Consulat de la Mer, per Boucher, tome 2, 717. See also Le Guidon, chap. 2, 5, in Cleirac, Us et Contumes de la Mer, 197, edit. 1671. Ord. of Stockholm, 1756; 2 Magen, 257. Ord. of States General of the Netherlands, in 1622, 1657, 1665, and 1689. Cited in Bynk. Quaes. J. Pub. lib. 1, chap. 21. Emerigon, des Ass. tome 1, 128.