52.71 
 
Cornell University Library 
 JX5271.C5T85suppl. 
 
 Supplement to the Law of contract during 
 
 3 1924 018 409 502 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018409502 
 
SUPPLEMENT TO THE LAW OF 
 CONTRACT DURING WAR 
 
SUPPLEMENT 
 
 TO THE LAW OF 
 
 CONTRACT DURING WAR 
 
 WITH RECENT CASES, STATUTES, AND 
 ORDERS IN COUNCIL 
 
 BY 
 
 WILLIAM FINLAYSON TROTTER 
 
 M.A., LL.M.(Cantab.) 
 
 OF LINCOLN'S INN, BARRISTER-AT-LAW, AND ADVOCATE, PROFESSOR OF LAW 
 
 IN THE UNIVERSITY OF SHEFFIELD 
 
 EXAMINER IN LAW IN THE UNIVERSITY OF LEEDS 
 
 LONDON AND EDINBURGH 
 
 WILLIAM HODGE & COMPANY 
 
 1915 
 
/%U3f 
 
 PRINTED BY 
 
 WILLIAM HODGE AND COMPANY 
 
 GLASGOW AND EDINBURGH 
 
N 
 
 ) 
 
 I 
 
 PREFACE TO SUPPLEMENT. ; v 
 
 The reception given by the lay as well as the legal public to 
 my book on the "Law of Contract during War" has been 
 such as to show the necessity of a work of the kind at the 
 present time. In this Supplement I have continued my effort 
 to act as an unofficial guide through part of the labyrinths of 
 law which the war has raised and will continue to raise. Such 
 a task may, I hope, be regarded as a real, though indirect, 
 form of national service not inappropriate to a teacher of law 
 in the University of a great industrial centre. 
 
 But although this volume is of a supplementary nature, it 
 is complete in itself. Part I. contains a revised and enlarged 
 statement of the whole law brought up to date ; and additional 
 notes on various topics will bafound in the Appendix. Part II. 
 consists of the recent English*, Irish) and Scottish cases which 
 have appeared since the publication of my first book, or were 
 insufficiently noticed in it. As the reports of these cases are 
 readily accessible, I have contented myself with giving full 
 summaries of the facts and judgments. In Part III. there are 
 set forth the new statutes and rules of Court, and in Part IV. 
 the new Proclamations and Orders in Council. To facilitate 
 reference from one volume to the other, I have added at the 
 end of the Table of Contents a list of the cases reported, and 
 of the statutes, rules, and orders printed in the first volume. 
 
 In endeavouring to make the discussion of the law as 
 concise, exhaustive, and practical as possible, I have gladly 
 availed myself of any suggestions in the many and most 
 friendly reviews that have appeared of my former work. My 
 thanks are also due to my colleague, Mr. F. J. 0. Coddington, 
 barrister-at-law, for assisting me in the preparation of the 
 notes of the cases on the Moratorium and the Courts (Emer- 
 gency Powers) Act, 1914, in Part II. 
 
 WILLIAM FINLAYSON TEOTTEE. 
 
 The University of Sheffield, 
 June, 1915. 
 
 '- ,'i 
 
In Leader, Plunkett & Leader v. Direction der Disconto- 
 GeseUschaft, reported in The Times of 4th June, 1915, the 
 Court of Appeal held that the effect of the licence to the 
 defenders' London branch, set forth on pp. 38-40 infra, was 
 to deprive judgment creditors of their right to seize the assets 
 of that branch to satisfy a judgment debt which would not 
 ordinarily have been discharged by that branch. Proceedings 
 under a writ of ft. fa. were stayed so far as regards any assets 
 of the bank, subject to the control of the Chief Controller 
 appointed under the Order in Council. 
 
ADDENDUM. 
 
 1. Exportation (Prohibition) Order op 2nd June, 1915. 
 
 By an Order in Council of 2nd June, 1915, it was ordered that 
 the Exportation (Prohibition) Proclamation of 3rd February, 1915, 
 as amended and added to by subsequent Orders in Council, should 
 be further amended as follows : — 
 
 1. That the heading " Forage and food for animals" in the list 
 of goods the exportation of which is prohibited to all destinations 
 should be deleted, and there be substituted therefor the heading — 
 
 Forage and food which may be used for animals, namely : — 
 
 Beans, including haricot beans, Burma and Rangoon beans; 
 
 Brewers' and distillers' grains; 
 
 Brewers' dried yeast; 
 
 Cakes and meals, the following, namely : — 
 
 Coconut or poonac cake ; 
 
 Compound cakes and meal; 
 
 Cottonseed cake, decorticated and undecorticated, and 
 cottonseed meal ; 
 
 Gluten meal or gluten feed ; 
 
 Linseed cake and meal ; 
 
 Maize germ meal; 
 
 Maize meal and flour; 
 Hay; 
 Lentils ; 
 Maize ; 
 
 Malt dust, oulmns, sprouts or combings; 
 Offals of corn and grain, including: — 
 
 Bran and pollard ; 
 
 Mill dust and screenings of all kinds ; 
 
 Rice meal (or bran) and dust ; 
 
 Sharps and middlings ; 
 Patent and proprietary cattle food of all kinds; 
 Straw. 
 
 2. That the following articles should be added to the list of goods 
 the exportation of which is prohibited to all destinations : — 
 
 Oats ; 
 
 Wheat, wheat flour and wheat meal. 
 
 3. That the following sub-headings which have hitherto been 
 included under the heading " Oleaginous nuts, seeds, and products " 
 
viii ADDENDUM. 
 
 in the list of goods the exportation of which is prohibited to all 
 destinations abroad other than British Possessions and Protectorates 
 should be deleted : — 
 
 Ground nuts (Arachides) ; 
 Palm kernels ; 
 Kape seed. 
 
 4. That the following sub-headings which have hitherto been 
 included under the heading " Provisions and victuals which may be 
 used as food for man " in the list of goods the exportation of which 
 is prohibited to all destinations abroad other than British Possessions 
 and Protectorates should be deleted : — 
 
 Barley and oats, including barley meal and pearled barley, and 
 
 oatmeal ; 
 Wheat, wheat flour, and wheat meal. 
 
 5. That the heading " Maps and plans of any place within the 
 territory of any belligerent, or within the area of the military 
 operations, on a scale of four inches to the mile or on any larger scale, 
 or reproductions on any scale by photography or otherwise of such 
 maps or plans " included by the Order of Council of the 20th day 
 of May, 1915, in the list of goods the exportation of which is pro- 
 hibited to all destinations abroad other than British Possessions 
 and Protectorates should be deleted, and there be substituted there- 
 for the heading " Maps and plans of any place within the territory 
 of any belligerent, or within the area of military operations, on a 
 scale of four miles to one inch or on any larger scale, and reproduc- 
 tions on any scale by photography or otherwise of such maps or 
 plans." 
 
 6. That the heading " Zinc and zinc ore (including zinc ashes, 
 spelter, spelter dross, and zinc sheets) " in the list of goods the ex- 
 portation of which is prohibited to all destinations abroad other 
 than British Possessions and Protectorates should be deleted, and 
 there be substituted therefor the heading " Zinc (including zinc 
 ashes, spelter, spelter dross, and zinc sheets) " in the list of goods 
 the exportation of which is prohibited to all destinations, and the 
 heading " Zinc ore" in the list of goods the exportation of which is 
 prohibited to all destinations abroad other than British Possessions 
 and Protectorates. 
 
 7. That the following articles should be added to the list of 
 goods the exportation of which is prohibited to all destinations 
 abroad other than British Possessions and Protectorates : — 
 
 Chemicals, drugs, medicinal and pharmaceutical preparations: — 
 Hydrochloric acid; 
 Oxides and salts of nickel ; 
 Oxides and salts of tungsten ; 
 
ADDENDUM. ix 
 
 Metals and ores, the following, namely: — 
 
 Wulfenite ; 
 Mineral and vegetable wax; 
 Oleaginous nute, seeds and products, the following, namely : — 
 
 Ground nuts, earth nuts, or pea nuts (Arachides) ; 
 Hempseed ; 
 
 Palm nuts and palm kernels; 
 Poppy seed ; 
 Rape or colza seed; 
 Sunflower seed ; 
 
 Provisions and victuals which may be used as food for man, 
 namely : — 
 
 Barley, barleymeal, and pearled and pot barley ; 
 
 Oatmeal and rolled oat®. 
 Tungsten filaments for electric lamps. 
 
 8. That the following articles should be added to the list of goods 
 the exportation of which is prohibited to all foreign ports in 
 Europe and on the Mediterranean and Black Seas, other than those 
 of France, Russia (except Baltic ports), Spain, and Portugal: — 
 
 Chemioals, drugs, &c. : — 
 
 Arsenic and its compounds; 
 Forage and food which may be used for animals, namely : — 
 Buckwheat ; 
 Cakes and meals, the following, namely : — 
 
 Biscuit meal ; 
 
 Calf meal ; 
 
 Fish meal (including fish guano) and concentrated fish • 
 
 Ground nut or earth nut cake and meal ; 
 
 Hempseed cake and meal ; 
 
 Husk meal ; 
 
 Locust bean meal ; 
 
 Meat meal ; 
 
 Palmnut oake and meal ; 
 
 Poppyseed cake and meal; 
 
 Rapeseed or colzaseed cake and meal ; 
 
 Sesame seed cake and meal ; 
 
 Soya bean oake and meal ; 
 
 Sunflower seed cake and meal ; 
 Chick peas, pigeon peas, gram or dhol ; 
 Dari; 
 Millet ; 
 
 Molasses for cattle feeding ; 
 Provisions and victuals which may be used as food for man, 
 namely : — 
 Onions ; 
 Potatoes ; 
 Rye, rye flour and meal. 
 
x ADDENDUM. 
 
 2. Directions dated 30th March, 1915, of the Lord Chief Justice 
 as to Procedure under the Legal Proceedings against Enemies 
 Act, 1915. 
 
 1. Every application for leave to issue a Writ of Summons or 
 to serve the same or give notice thereof under the Act shall be made 
 ex parte to the Judge and shall be supported by an affidavit intituled 
 in the matter of the Act and of the intended action setting forth 
 such, facts as may be necessary to show that the case is one to which 
 the Act applies. The affidavit must also state the reasons for which 
 the Writ or notice cannot be promptly served or brought to the 
 notice of the Defendant, and how it is sought to serve or give notice 
 thereof, and the grounds for resorting to thisi manner of service. 
 
 2. On the hearing of suoh application or at any subsequent time 
 on an application made ex parte or on such notice as the Judge shall 
 think fit, the Judge may give directions as to — 
 
 (a) The issue of the Writ. 
 
 (6) The service of the writ or Notice thereof or substituted or 
 other service thereof. 
 
 (c) The time within which the Defendant may enter an appear- 
 
 ance to the Writ. 
 
 (d) Whether any and if so what particulars or points of claim 
 
 shall be delivered with the Writ or Notice or otherwise. 
 
 (e) Whether any and if so what Notice of Trial shall be given 
 
 to the Defendant, and when and how such Notice (if 
 
 any) shall be given. 
 (/) What discovery of documents shall be made. 
 (g) The mode in which any fact or document may be proved. 
 (h) The service on or notice to the Defendant of any Order 
 
 made hereunder or any judgment given under the Act, 
 
 and generally as to the trial of the action and all matters 
 
 in relation thereto. 
 
 3. Any Order made under Rule 4 may be rescinded, varied or 
 altered by the Judge on a subsequent application to him. 
 
 4. In these directions "the Act" means the "Legal Proceed- 
 ings against Enemies Act, 1915," and the " Judge " means the 
 Judge or one of the Judges for the time being nominated by the 
 Lord Chief Justice as the Judge or Judges to and before whom appli- 
 cations and proceedings under the Act shall be made and taken. 
 
 Beading, G. J. 
 
 The Honourable Mr. Justice Bray shall be the Judge by whom all 
 applications and proceedings under the Legal Proceedings against 
 Enemies Act, 1915, will be heard. 
 
 Beading, C. J. 
 
 March 30th, 1915. 
 
ADDENDUM. xi 
 
 3. Rules, dated 15th Apbil, 1915, made by the Lord Chancellor of 
 Ireland under the Legal Proceedings against Enemies, Act, 
 1915. 
 
 Whereas by section one, sub-section (2), of the Legal Proceedings 
 against Enemies Act, 1915, it is provided that in Ireland the 
 Lord Chancellor of Ireland may by rules make provision for the 
 practice and procedure to be adopted for the purpose of this section : 
 
 Now I, The Right Honourable Ignatius J. O'Brien, Lord Chan- 
 cellor of Ireland, in pursuance of the powers vested in me by section 
 1, sub-section (2), of the said Legal Proceedings against Enemies 
 Act, 1915, The Rules Publication Act, 1893, and all other 
 powers thereunto' me enabling, do hereby make the Rules herein- 
 after set forth and certify that on account of urgency the said Rules 
 should come into immediate operation and do make the said Rules 
 to come into operation forthwith. 
 
 1. All applications and proceedings under the Legal Proceedings- 
 against Enemies Act, 1915 (in these Rules referred to as the Act), 
 shall be made and taken in the King's Bench Division of the High 
 Court of Justice. Provided always that any Judge of the said 
 Division may order that any such application or proceeding shall be 
 transferred to any other Division of the High Court subject to the 
 consent of the President of that Division or of the Judge to whom 
 such application or proceeding is proposed to be transferred. 
 
 2. The indorsement of claim on any writ of summons, leave to 
 issue which is sought under the Act, shall set forth the declaration 
 which the Plaintiff seeks and give particulars of the contract in 
 respect of which such declaration is sought. The Judge shall have 
 power to make, or allow, any amendment of such indorsement at 
 any stage of the proceedings. 
 
 3. The Lord Chief Justice may from time to time give directions 
 as to the practice and procedure to be adopted on applications and 
 proceedings under the Act. 
 
 4. Subject to the provisions of the Act and these Rules and any 
 directions thereunder the same practice and procedure may be 
 adopted in any application or proceedings under the Act as would 
 or might be adopted in any action or matter under the Rules of 
 the Supreme Court. 
 
 5. Where an enemy service order has been made and the enemy 
 defendant appears, nothing in these Rules shall apply to any pro- 
 ceedings taken after the appearance. 
 
 The 15th day of April, 1915. 
 
 Ignatius J . O'Brien. 
 
J 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Addendum, vii 
 
 Table op Cases, xxi 
 
 Table op Statutes, xxix 
 
 PART I. 
 
 Statement op the Law. 
 
 1. The definition of war, 3 
 
 2. The declaration of war, 5 
 
 3. Judicial notice of the existence of war, 6 
 
 4. Varying effect of war upon contracts, 6 
 
 5. Meaning of alien enemy, 7 
 
 6. Domicile as test of enemy character, - 9 
 
 7. The Hague Convention on the legal rights of belligerents, 19 
 
 8. Contracts made with alien enemies during the existence of war, 20 
 
 General rule, 20 
 Exceptions — 
 
 (1) Licensed contracts, 21 
 
 (2) Ransom contracts, 22 
 
 (3) Contracts of necessity with prisoners of war, 22 
 
 (4) Contracts with alien enemies residing or trading in 
 
 British, allied, or neutral territory, 24 
 
 (5) Contracts not of a commercial or financial nature, - 28 
 
 9. Trading with the enemy, 29 
 
 10. Licences by the Crown to trade with the enemy, 37 
 
 11. Executed contracts made with alien enemies before the 
 
 outbreak of war, - 44 
 
 12. Executory contracts made with alien enemies before the 
 
 outbreak of war, 45 
 
 (1) Affreightment, 46 
 
 (2) Agency, 46 
 
 (3) Insurance, 48 
 
 (4) Leases, 51 
 
 (5) Mortgages, - 51 
 
 (6) Negotiable instruments, 52 
 
 (7) Partnership, - 53 
 
 (8) Shares and debentures in corporations, 55 
 
xiv TABLE OF CONTENTS. 
 
 PAGE 
 
 13. Operation of the rules of limitation or prescription on con- 
 
 tracts suspended by war, 60 
 
 14. Interest on pecuniary contracts suspended by war, 61 
 
 15. Public debts to alien enemies, 62 
 
 16. Actions by and against alien enemies, 63 
 
 17. Service on alien enemies, 67 
 
 18. Legal proceedings against Enemies Act, 1915, 70 
 
 19. Effect of war on contracts made with persons who are not 
 
 alien enemies, 72 
 
 20. The moratory law under the Postponement of Payments 
 
 Act, 1914, 85 
 
 21. The emergency powers of the Court, 94 
 
 22. The new legal tender, 101 
 
 23. The termination of war, 103 
 
 PART II. 
 
 Recent Casks. 
 
 I. — Enemy Character. 
 
 (a) Nationality. 
 
 1. Continental Tyre and Rubber Company (Great Britain), 
 
 Limited v. Daimler Company, Limited, 107 
 
 The Same v. Thomas Tilling, Limited, 107 
 
 (b) Domicile. 
 
 2. In re Mary, Duchess of Sutherland — Bechoff, David & Co. v. 
 
 Bubna and Others, 110 
 
 II. — Trading with the Enemy. 
 (a) General Rule. 
 
 3. Rex v. Kupfer, - 112 
 
 (b) Excepted Transactions. 
 
 4. Schmidt v. Van der Veen, 113 
 
 5. Wilson v. Ragosine <fe Company, Limited, - 115 
 
 6. W. L. Ingle, Limited v. Mannheim Insurance Company, 117 
 
TABLE OF CONTENTS. xv 
 III. — Contracts with Persons not Enemies. 
 
 PAGE 
 
 7. Duncan Fox & Co. v. Schrempft & Bonke, 118 
 
 8. Andrew Millar & Co. v. Taylor & Co., 118 
 
 9. Smith, Coney & Barrett v. Becker, Gray & Co., 119 
 
 10. Liston and Others v. Owners of Steamship "Carpathian," 120 
 
 11. British Berna Motor Lorries, Limited v. Inter-Transport 
 
 Company, Limited, 121 
 
 IV. — Actions by and against Alien Enemies. 
 
 (a) Enemy's Eight to Sue. 
 
 12. Volkl v. Governors of the Botunda Hospital, 122 
 
 13. Schulze, Gow & Co. v. Bank of Scotland, 123 
 
 (b) Enemy a Co-plaintiff. 
 
 14. Actien Gesellschaft fur Anilin Fabrikation in Berlin and 
 
 Mersey Chemical Works, Limited v. Levinstein, Limited, 124 
 
 15. Mercedes Daimler Motor Company, Limited, and Daimler 
 
 Motoren Gesellschaft v. Maudsley Motor Company, 
 
 Limited, 125 
 
 (c) Enemy's Eight to Defend and Appeal. 
 
 16. Porter v. Freundenberg, 126 
 Kreglingler v. S. Samuel & Eosenfeld, 126 
 In re Merten's Patent, 126 
 
 V. — The Moratorium. 
 
 17. In re Sahler — ex parte Mumford & Co., 135 
 
 18. Happe v. Manasseh, 135 
 
 19. Durrell v. Gread, 136 
 
 20. Shortland v. Cabins, Limited, and Another, 136 
 
 VI. — Courts (Emergency Powers) Act, 1914. 
 
 21. In re Farnol, Eades, Irvine & Company, Limited; Carpenter 
 
 v. The Company, - 138 
 
 22. Behagg v. Palmer, 138 
 
 23. Burgess v. O.H.N. Gases, Limited, 139 
 
 24. Lyric Theatre (London), Limited v. Lyric Theatre, Limited, 139 
 
 25. The Philco Publishing Company v. Nolan, - 140 
 
 26. De Bingham v. London Life Association, Limited, - - 140 
 
xvi TABLE OF CONTENTS. 
 
 PAGE 
 
 27. Evans v. Main Colliery Company, Limited, - 141 
 
 28. In the Matter of Two Companies, 141 
 
 29. In re Sibler, 142 
 
 30. Ziman v. Komata Reefs Gold Mining Company, Limited, - 142 
 
 31. Barnard v. Foster, - 143 
 
 PART III. 
 
 Recent Statutes and Rules of Couet. 
 
 1. Courts (Emergency Powers) (Ireland) Act, 1914, - 147 
 
 2. Courts (Emergency Powers) English Rules, 1914, 147 
 
 3. County Courts (Emergency Powers) English Rules, 1915, 149 
 
 4. County Courts (Emergency Powers) English Rules, 1915 
 
 (No. 2), 152 
 
 5. County Court English Rule as to the application for certifi- 
 
 cates under section 115, sub-section 4, of the Army Act, 
 
 1881, and Acts amending the same, - 154 
 
 6. British Ships (Transfer Restriction) Act, 1915, 156 
 
 7. Customs (War Powers) Act, 1915, 157 
 
 8. Legal Proceedings against Enemies Act, 1915, 159 
 
 9. English Rules under the Legal Proceedings against Enemies 
 
 Act, 1915, 161 
 
 10. Defence of the Realm (Amendment) No. 2 Act, 1915, - 162 
 
 11. The Trading with the Enemy (Vesting and Application of 
 
 Property) English Rules, 1915, 163 
 
 12. The Trading with the Enemy (Suspected Coupons) English 
 
 Rules, 1915, 167 
 
 13. The County Courts Trading with the Enemy (Application 
 
 of Property) English Rules, 1915, - 169 
 
 14. The Trading with the Enemy (Vesting and Application of 
 
 Property) Irish Rules, 1915, - 172 
 
 15. The Trading with the Enemy Scottish Rules, Act of 
 
 Sederunt, 1914, 177 
 
 PART IV. 
 
 Recent Proclamations and Orders in Council. 
 
 1. Courts (Emergency Powers) (Scotland) Order, 1914, 181 
 
 2. Trading with the Enemy Proclamations, 1915, - 181 
 
 3. Exportation (Prohibition) Proclamation and Orders in 
 
 Council, - 184 
 
 4. Proclamations as to contraband, 202 
 
TABLE OF CONTENTS. xvii 
 
 PAGE 
 
 5. Order in Council establishing a blockade of Germany, 205 
 
 6. Notice to importers and exporters, - 207 
 
 7. Export and import licences, 210 
 
 8. Banking licences, 211 
 
 APPENDIX. 
 
 A. Proof of War, - 215 
 
 B. The Doctrine of Non-intercourse, - 215 
 
 C. Transactions with enemy branch in England, 216 
 
 D. Votes by enemy shareholders, . 217 
 
 E. Defences not pleadable by an enemy, 218 
 P. Indirect effect of war on a contract, 219 
 G. Export of coal prohibited, 222 
 H. Modified rules for imports and exports, 222 
 
 I. Treasury embargo on capital issues, 223 
 
 J. The moratorium and interest on bank deposits, 223 
 
 K. Latest Exportation (Prohibition) Order in Council, 225 
 
 L. New County Court Rule as to applications for certificates 
 under the Army Act, 1881, section 115, and amending 
 
 Acts, 227 
 M. Garnishee Orders and the Courts (Emergency Powers) 
 
 Act, 1914, 229 
 
 N. Rule, dated 13th March, 1915, made by the Lord Chancellor 
 under the Trading with the Enemy Amendment Act, 
 1914 (5 Geo. V. c. 12), as to Lodgment of Money in 
 
 Court, - - 229 
 
 0. Additions to List of Absolute Contraband, 230 
 
 General Index, 233 
 
 NOTE. 
 
 The Following Cases are Fully Reported in the Previous Volume : 
 Leading British and American Oases. 
 I. — The Commencement of War. 
 
 1. Muller v. Thompson. 
 
 2. Janson v. Driefontein Consolidated Mines, Ltd. 
 Appended Note. 
 
 II. — Enemy Territory. 
 
 3. Hagedorn v. Bell. 
 Appended Note. 
 
xviii TABLE OF CONTENTS. 
 
 III. — Enemy Character. 
 (a) Nationality. 
 
 4. Sparenburgh v. Bannatyne. 
 
 (6) Marriage. 
 
 5. De Wahl v. Braune. 
 Appended Note. 
 
 6. Bell v. Reid. (c) Domicile. 
 
 7. M'Connell v. Hector. 
 
 8. O'Mealey v. Wilson. 
 
 9. Roberts v. Hardy. 
 Appended Note. 
 
 10. Albretcht v. Sussman. 
 
 11. Nigel Gold Mining Company, Limited v. Hoade. 
 
 IV. — Trading with the Enemy. 
 (1) General Rule. 
 
 12. Potts v. Bell. 
 
 13. Willison v. Patteson. 
 
 14. Bristow v. Towers. 
 
 (2) Excepted Transactions. 
 (a) Licensed Trade. 
 
 15. Usparicha v. Noble. 
 
 16. Kensington v. Inglis. 
 
 17. Boulton v. Dobree. 
 Appended Note. 
 
 18. Alciator v. Smith. 
 Appended Note. 
 
 (6) Contracts of Prisoners or War. 
 
 19. Antoine v. Morshead. 
 
 20. Daubuz v. Morshead. 
 Appended Note. 
 
 V. — Contracts made with Enemies betore War. 
 
 (1) Executed Contracts. 
 
 21. Alcinous v. Nigreu. 
 
 22. Ex parte Boussmaker. 
 
 (2) Executory Contracts. 
 (a) General Rules. 
 
 23. Clementson v. Blessig. 
 
 24. Furtado v. Rogers. 
 
 25. New York Life Insurance Company v. Statham. 
 
 (6) Particular Contracts. 
 
 26. Williams v. Paine. 
 
 27. Brandon v. Curling. 
 
 28. New York Life Insurance Company v. Davis. 
 
 29. Dorsey v. Dorsey. 
 Appended Note. 
 
 30. Matthews v. M'Stea. 
 
 VI. — Contracts with Persons not Enemies. 
 
 31. EBposito v. Bowden. 
 
 VII. — Actions by and against Alien Enemies. 
 (1) Right to Sue. 
 
 32. Brandon v. Nesbitt. 
 
 33. Le Bret v. Papillon. 
 
 34. Venbrynen v. Wilson. 
 
 35. Wells v. Williams. 
 
TABLE OF CONTENTS. xix 
 
 36. Princess of Thurn and Taxis v. Moffitt. 
 Appended Note. 
 
 37. Dorsey v. Kyle. 
 Appended Note. 
 
 (2) Plea of Alien Enemy. 
 
 38. Flindt v. Waters. 
 
 39. Casseres v. Bell. 
 
 40. Sheppeler v. Durant. 
 
 (3) Proof of Hostile Alienage. 
 
 41. Harmon v. Kingston, 
 
 (4) Defences not Pleadable by an Enemy. 
 
 42. Wolff v. Oxholm. 
 Appended Note. 
 
 ADDITIONAL CASES. 
 (1) Transactions with Enemy Branch in Scotland. 
 
 43. Orenstein & Koppel v. Egyptian Phosphate Company, Limited. 
 
 (2) Right to Sue Alien Enemy. 
 
 44. Robinson & Company v. Continental Insurance Company of 
 
 Mannheim. 
 
 (3) Agency. 
 
 45. Maxwell v. Grunhut. 
 
 (4) Actions against Enemy Banks. 
 
 46. Cooper & Co. v. Deutsche Bank of Berlin. 
 
 47. Leader, Plunkett & Leader v. Direction der Disconto-Gesellschaft. 
 
 The Text of the Following Statutes and Rules of Court, with Notes, 
 is given in the Previous Volume : — 
 
 1. Postponement of Payments Act, 1914. 
 
 2. Aliens Restriction Act, 1914. 
 
 3. Currency and Bank Notes Act, 1914. 
 
 4. Currency and Bank Notes (Amendment) Act, 1914. 
 
 5. Customs (Exportation Prohibition) Act, 1914. 
 
 6. Courts (Emergency Powers) Act, 1914. 
 
 7. Courts (Emergency Powers) Order, 1914. 
 
 8. Courts (Emergency Powers) Rules, England, 1914. 
 
 9. County Courts (Emergency Powers) Rules, England, 1914. 
 
 10. Courts (Emergency Powers) Rules, Ireland, 1914. 
 
 11. Courts (Emergency Powers) Act of Sederunt, Scotland, 1914. 
 
 12. Trading with the Enemy Act, 1914. 
 
 13. Bills of Exchange Act, 1914. 
 
 14. Trading with the Enemy Amendment Act, 1914. 
 
 The Text of the Following Proclamations and Orders in Council, 
 with Notes, is given in the Previous Volume: — 
 
 1. Proclamations of a moratorium. 
 
 2. Writs and judgments in High Court and English County Court 
 
 Rule relating thereto. 
 
 3. Aliens Restriction (Consolidation) Order, 1914, and subsequent 
 
 Orders, 1914. 
 
 4. Trading with the Enemy Proclamations, 1914. 
 
 5. Exportation (Prohibition) Proclamations and Orders in Council to 
 
 19th October, 1914. 
 
 6. Proclamation of 29th October, 1914, as to Contraband. 
 
TABLE OF CASES. 
 
 The cases in italics are reported at the pages numbered in italics. 
 
 PAGE 
 
 Abbott, Hanger v, ■ ■ - 60 
 
 Action, Gesellschaft fur Fabrikation 
 in Berlin and Mersey Chemical 
 Works, Ltd. v Levinstein, Ltd. , 
 
 64, 124-125 
 Adam, In re, - - 7 
 
 Albretcht v Sussman, 8, 15, 16, 27 
 
 Alciator v Smith, 16, 26, 41, 43 
 
 Alcinous v Nigreu, - 6, 16, 26, 44, 66 
 Allen, Hoare v, - - 61 
 
 Allen v London County and West- 
 minster Bank, - 92 
 Allnutt, Butler v, 76 
 Allnutt, Pieschell v, 76 
 Amorduct Manufacturing Company 
 
 v Defries & Company, - 17 
 
 " Amy Warwick," The, - 6 
 
 Andrade, Keir v, 76 
 
 Anglo-Egyptian Co. v Rennie, - 81 
 " Anna Uatharina," The, 29, 75 
 
 Anthon v Fisher, - - - 22 
 
 Antoine v Morshead, 11, 23, 52, 53, 129 
 Appleby v Myers, - - 79, 82 
 
 Armstrong, O'Neil v, . - - 75 
 
 Ashton, Eldridge & Co. ; Nichol & 
 
 Knight v, - - - 80 
 
 Associated Portland Cement Manu- 
 facturers, Ltd. v William Cory 
 & Son, Ltd., 219-222 
 
 Athawer, Menetone v, 82 
 
 Atkinson v Ritchie, 73 
 
 "Atlas," The, 37 
 
 Attorney-General v Rowe, - - 10 
 Attorney - General v Weeden & 
 
 Shales, - - 56, 129 
 
 Attorney - General of Natal, De 
 
 Jager v, - - 19 
 
 Auster v London Motor Coach 
 
 Works, Ltd., 88 
 
 Avery v Bowden, 46 
 
 Baerselman, Haarbleicher & Schu- 
 
 man v, • 52 
 
 Baglehole, Mx parte, 36, 41 
 
 Bailey v De Crespigny, 78 
 
 Bailey, Seymour v, 42 
 
 Bainbridge v Willeooks, 61 
 
 Baker v Oates, - 100 
 
 " Baltica," The, 14 
 
 Bank of Scotland ; Schulze, Oow & 
 
 Co. v, - - 17, 43, 128-124. 
 
 Bank of United States v Deveaux, 110 
 Bank fur Hundel und Industrie, In 
 
 re, - - - 69 
 
 Bannatyne, Sparenburgh, v, 23, 64, 123 
 Barber; C. Groom, Ltd., v, 79 
 
 Barker v Hodgson, 77 
 
 Barkworth v Young, 83 
 
 Bar wick v Cuba, - - 65 
 
 Barnard v Foster, 92, 97, US 
 
 Bazett v Meyer, 24 
 
 Bean v Chapman, 61 
 
 Becker, Gray & Co.; Smith, Coney db 
 
 Barrett v, 74, 82, 119-120 
 
 Behagg v Palmer, - 96, 138-9 
 
 Bell, Casseres v , 66 
 
 Bell, Hagedorn v, - 4, 19 
 
 Bell, Potts v, ■ 20, 36, 49 
 
 Bell v Reid, 15 
 
 Bempde v Johnstone, 
 Berney, Yeaton v, - 
 Berthould v Schweder & Co., 
 Bettenham, Ricord v, 
 Betterbee v Davis, - 
 Biddell Brothers, Clemens Horst 
 
 Co. v, 
 Binnington, Budgett v, 
 Blackburn, Cornu v, 
 Blaekburne v Thompson, 
 Blackwell v Willard, 
 Blakely v Muller & Co., 
 Blessig, Clementson v, 
 " Boedes Lust," The, 
 Borniman, Ditton v, 
 Boulton v Dobree, 
 Boussmaker, Ex parte, 
 Bowden, Avery v, 
 Bowden, Esposito v, 
 Brandon Hill, Ltd. v Erater, 
 Brandon v Curling, 
 
 21, 38 
 
 11 
 
 61 
 219 
 
 22 
 103 
 
 135 
 77 
 
 - 22 
 6 
 
 - 48 
 80, 81 
 44, 45 
 -4, 49 
 
 68, 133 
 41 
 44 
 46 
 44, 46, 72 
 99 
 
 - 49 
 Brandon v Nesbitt, 21, 23, 48, 63 
 Brandts (William) Sons & Co. v 
 
 DuHlbpTRuBbe-r-GQ,, 116 
 
 Braune, De Wahl v, - , 26, 56, 60 
 IJritish and Foreign Marine Insurance 
 
 Co. , Ltd. ; Sanday & Co. v, - 84 
 British Berna Motor Lorrie]s, Ltd. 
 
 v Inter-Transport Co., Ltd., 80, 121 
 British Wagon Co. v Lea, 67 
 
XX11 
 
 TABLE OF CASES. 
 
 Britten, Camelo v, 
 Bromley v Hesseltine, 
 Brown v Hiatts, 
 Brown v Royal Insurance Co., 
 Bucknall Brothers, Dunn v, - 
 Budgett v Binnington, 
 
 PAGE 
 
 - 40 
 11 
 
 - 61 
 76,83 
 
 35 
 „ . 77 
 
 Burgess v O.H.N. Oases, Limited, 
 
 92, 96, 139 
 Burke, Reg. v, - 65 
 
 Burnside v Matthews, 65 
 
 Butler v Allnutt, - 76 
 
 Byers, Thiis v, - . 77 
 
 Cabins, Ltd., and Another ; Short- 
 land v, 91, 136-7 
 Caldwell v Harding, - 48 
 Caldwell, Taylor v 79, 80, 81, 221 
 Calhoun County, Conley v, 103 
 Calvin's Case, 7 
 " Calypso," The, 75 
 Camelo v Britten, - - - 40 
 Carr, Parker & Go., Ltd.; Wolf 
 
 Sons v, - 216-7 
 
 Casseres v Bell, 66 
 
 Chafee, Pope v, 48 
 
 Chandler v Webster, 80 
 
 Chapman, Bean v, 61 
 
 Charter Oak Life Insurance Co., 
 
 Worthington v, - - - 50 
 Chavasse, ex parte, re Grazebrook, 37 
 "Chile," The, 63 
 
 Chodwiok, Spence v, 77 
 
 Christie, Paul v, 61 
 
 Christie, Silcock v, 93 
 
 City of London v Wood, 110 
 
 Civil Service Co-operative Society v 
 General Steam Navigation 
 Co., - - 80, 81 
 
 Clark, Kodak, Limited v, 108 
 
 Clarke v Morey, - - 42 
 
 Clemens Horst Co. v Biddell Broth- 
 ers, - 135 
 Clementson v Blessig, - 21, 38, 44, 45 
 Clopton, New York Life Insurance 
 
 Co. v, - ■ 51 
 
 Coats (J. & P.), Ltd. v Direction 
 
 der Disconto-Oesellschaft,- 223-225 
 Colvin, Lord v, 11 
 
 Conley v Calhoun County, 103 
 
 Conolly, Keats v, - - 229 
 
 Continental Insurance Co. of Mann- 
 heim, Robinson v, 27, 63, 64, 94, 
 131, 218 
 Continental Tyre and Rubber Co. 
 (Great Britain), Ltd. v Daimler 
 Co., Ltd., - 18, 107-110 
 
 Continental Tyre and Rubber Co. 
 ( Great Britain), Ltd. v Thomas 
 Tilling, Ltd. . - 18, 107-110 
 
 Cook, Robinson v, 103 
 
 Cook v Sprigg, 63 
 
 PAGE 
 
 Cooney v Wilson and Another, - 97 
 Cooper & Co. v Deutsche Bank of 
 
 Berlin, - 40 
 
 Cornu v Blackburn, 22 
 
 " Corsican Prince," The, - - 36 
 Cory ( William) <b Son, Ltd.; Associ- 
 ' ated Portland Cement Manufac- 
 turers v, ■ - . 219-222 
 
 " Cosmopolite," The, 40, 215 
 
 Cotesworth, Ford v, 77 
 
 Coward & Co., Ltd., Re, - 96 
 Craig Line Steamship Co., Ltd. v 
 
 North British Storage Co., 66 
 
 Cramer v United States, 54 
 
 Crowe v Irvine, - 98 
 
 Cuba, Barwick v, - 65 
 
 Cunningham v Dunn, 78 
 
 Curling, Brandon v, 49 
 
 Cutter v Powell, 82 
 
 Da Costa v Davis, - - - 82 
 
 Daimler Co., Ltd.; Continental Tyre 
 
 and Rubber Co. (Great Britain), 
 
 Ltd. v, - 18, 107-110 
 
 " Danaous," The, - 15 
 
 Daubuz v Morshead, 23 
 
 Davidson, Re, - 101 
 
 Davis, Betterbee v, 103 
 
 Davis, Da Costa v, - 82 
 
 Davis, New York Life Insurance 
 
 Co. v, - 47, 50 
 
 Davison, Robinson v, - -81 
 
 De Beers Consolidated Mines, Ltd. 
 
 v Howe, - - 18 
 
 De Bingham v London Life Associa- 
 tion, Ltd., - ■ 99, 140-1 
 De Crespigny, Bailey v, ■ 78 
 De Jager v Attorney-General of 
 
 Natal; 19 
 
 De Wahl v Braune, - 26, 56, 60 
 
 Defries & Company ; Amorduct 
 
 Manufacturing Company v, 17 
 
 Delury ; St. George & Concannon v, 
 
 87, 93 
 Depardo, Rex v, - - 24 
 
 Deutsche Bank of Berlin, Cooper & 
 
 Co. v, ... 40 
 
 Deveaux, Bank of United States v, 110 
 "Diana," The, - 12,13 
 
 Direction der Disconto-Gesellschaft, 
 
 J.& P. Coats, Ltd. v, - 223-225 
 Direction der Disconto-Gesellschaft ; 
 
 Leader, Plunkett & Leader v, 
 
 40, 67, 101 
 Ditton v Borniman, 68, 133 
 
 Dobree, Boulton v, 41 
 
 Dorsey v Dorsey, - 51 
 
 Dorsey v Kyle, - 27, 64, 70, 218 
 
 "DosHermanos," The, 14 
 
 Douglas v Patrick, - - 103 
 
 Douglas v United States, 54 
 
TABLE OF OASES. 
 
 xxm 
 
 PAGE 
 
 Driefontein Consolidated Mines, 
 
 Ltd.; Jansona, 3, 4, 6, 9, ]3, 17, 
 18, 21, 24, 41, 46, 49, 50, 65, 66, 101, 
 108, 110, 123, 124, 128 
 Du Belloix v Lord Waterpark, - 62 
 Duncan Fox & Co. v Schrempft <Ss 
 
 BonH, 45, 72, 118 
 
 Dunn v Buoknall Brothers, 35 
 
 Dunn, Cunningham v, - 78 
 
 Dunlop Rubber Co. ; William 
 
 Brandts, Sons & Co. v, 116 
 
 Durant, Shepeler v, - 66 
 
 Durdl v Gread, 90, 136 
 
 Edinburgh lee and Cold Storage 
 
 Co., Leitch v, 79 
 
 Egyptian Phosphate Co. , Ltd. ; 
 
 Orenstein & Koppel v, 
 
 18, 25, 27, 45, 48 
 " Emmanuel," The, - 17, 37 
 
 Emmanuel College (Cambridge) v 
 
 Nobbs, " - 92, 95 
 
 Esposito v Bowden, - 44, 46, 72 
 
 Evans v Main Colliery Co., Ltd., 96, HI 
 Evans v Richardson, 53 
 
 Evans, Will ; London Theatre of 
 
 Varieties v, 81 
 
 " Express," The, 73 
 
 Pabre, Hewitson v, 67 
 
 Fanshawe, Howard v, 91 
 
 Farnol, Eades, Irvine & Co. ; In re, 
 
 96, 138, 141 
 Farrow v Wilson, 81 
 
 "Favourite," The, 75 
 
 Feize v Thompson, 40 
 
 Fetherstone v Hutchinson, 76 
 
 Finch, Washington University v, 48 
 
 Fischer, Netherlands South Africa 
 
 Railway Co. v, 18, 65 
 
 Fisher, Anthon v, - 22 
 
 Flach v London and South- Western 
 
 Bank, Ltd., - 87 
 
 Flindt v Scott, 40, 41 
 
 Flindt v Waters, 65 
 
 Ford v Cotesworth, - 77 
 
 Ford v Shepherd, 68, 133 
 
 " Fortuna," The, - 34 
 
 Foster, Barnard v, 92, 97, 143 
 
 Fourie, In re, 215 
 
 Foxcroft v Nagle, - 61 
 
 Frater ; Brandon Hill, Ltd. v, 99 
 
 " Frederick," The, 75 
 
 "Freedom," The, - - 34 
 
 Freundenberg, Porter v, 16, 20, 24, 27, 
 
 41, 43, 56, 63, 64, 67, 68, 69, 94, 110, 
 
 126-134 
 "Froija,"The, - 65 
 
 Furtado v Rogers, 22, 46, 49, 56 
 
 PAGE 
 
 Galmoye, Stock and Share Auction 
 
 and Advance Co. v, 143 
 
 Geipel v Smith, - 37 
 
 General Steam Navigation Co., 
 Civil Service Co - operative 
 Society v, 80, 81 
 
 Gernon, Muller v, - 37 
 
 Gillespie & Co. v Howden & Co., 76 
 
 Gillett v Mawman, 82 
 
 Glaskie v Petry, 93 
 
 Goldsmid, Johnston & Wright v, 21, 33, 
 
 52 
 Gordon's Case, Lord George, - 6 
 
 Governors of Rotunda Hospital, 
 
 VolU v, - 17, 43, m-1%3 
 
 Gramophone and Typewriter, Ltd. 
 
 v Stanley, - - - 108 
 
 Gramophone Co., Ltd. v King, 87, 93 
 Grazebrook re, ex parte Chavasse, - 37 
 Gread, Durdl v, - - 90, 136 
 
 Grey (Ed. ) & Co. v Tolme & Runge, 84 
 Griswold v Johnson, - 54 
 
 Griswold u Waddington, - 44, 46, 55 
 Groom (C), Ltd. v Barber, 79 
 
 Groning, Orgood v, - 73 
 
 Grossmayer, United States v, 47, 61 
 
 Grunhut, Maxwell v, - 48 
 
 Haarbleicher & Schuman v Baersel- 
 
 man, 
 
 52 
 
 Hagedorn v Bell, 
 
 -4, 19 
 
 Hall, Maria v, 
 
 24 
 
 Halpin, Murphy v, 
 
 93 
 
 Hanger v Abbott, 
 
 - 60 
 
 Happe v Manasseh, 
 
 88, 92, 135 
 
 Harding, Caldwell v, 
 
 48 
 
 Hardy, Roberts v, 
 
 - 8, 16 
 
 Hardy, Rowe v, 
 
 61 
 
 Harman v Kingston, 
 
 65,66 
 
 "Harmony," The, 
 
 12, 13 
 
 Hecter, M'Connell v, 
 
 8, 9, 15, 128 
 
 " Heinrich," The, 
 
 73 
 
 "Helen," The, 
 
 - 37 
 
 Henry, Krell v, 
 
 80, 81, 221 
 
 Heme Bay Steamboat Co. v Hut- 
 ton, 80, 82 
 Hesseltine, Bromley v, 11 
 Hewitson v Fabre, - 67 
 Hiatts, Brown v, 61 
 Hicks v Raymond, - 77 
 Hills v Sughrue, - - 77 
 Hoade, Nigel Gold Mining Co. v, 14 
 
 18, 73, 55 
 Hoare v Allen, 61 
 
 Hodgson, Barker v, - 77 
 
 Hoey v MacEwan & Auld, 81 
 
 Hong-Kong, &c. , Dock Co. v Nether- 
 ton Shipping Co. , - - 76 
 " Hoop," The, 21, 37, 63, 128, 215 
 " Hope," The, 38 
 Hoskins, Reid v, 72 
 
XXIV 
 
 TABLE OF OASES. 
 
 PAGE 
 
 Howard v Fanshawe, «■ 91 
 
 Howden & Co., Gillespie & Co. v, 76 
 Howe ; De Beers Consolidated Mines, 
 
 Ltd. v, 18 
 
 Hubbard v Matthews, 54 
 
 Hughes, Whinoup v, 81 
 
 Hume, Whicker v, - 10 
 
 Hunter, Luter v, 60 
 
 Hutchinson, Fetherstone v, 76 
 
 Hutchinson, Taylor v, -54 
 
 Hutton, Heme Bay Steamboat 
 
 Co. v, 80, 82 
 
 Ilfracombe Railway Co. , Pickering v, 75 
 " Indian Chief," The, - 15 
 
 Ingle ( W. L. ), Ltd. v Mannheim 
 
 Insurance Co. - 30, 50, 117 
 
 Inglis, Kensington v. 41, 63 
 
 Inglis v Nutt, - 61 
 
 International Life Insurance Society, 
 
 Robinson v, - - 47, 51 
 
 Inter- Transport Co., Ltd.; British 
 
 Berna Motor Lorries, Ltd. v, 80, 121 
 Irvine, Crowe v, 98 
 
 " Jan Frederick," The, 49 
 
 Jane, Paradine v, - - - - 77 
 Janson v Driefontein Consolidated 
 
 Mines, Ltd., 3, 4, 6, 9, 13, 17, 18, 
 
 21, 24, 41, 46, 49, 50, 65, 66, 101, 
 
 108, 110, 123, 124, 128 
 
 Johnson, Griswold v, 54 
 
 Johnstone, Bempde^ v, - 11 
 Johnston & Wright v Ooldsmid, 
 
 21, 33, 52 
 
 Jones, Murrell v, - ■ - 47 
 
 Jones v St. John's College (Oxford), 76 
 
 "JuffrowCatherina,"The, - 34 
 " Juffrouw Louisa Margaretha," 
 
 The, 14 
 
 "Juno," The, 75 
 
 Kearon v Pearson, - 
 Keats v Conolly, 
 Keir v Andrade, 
 Kelsey, Kershaw v, 
 Kensington v Inglis, 
 Kershaw v Kelsey, 
 
 77 
 
 229 
 
 - 76 
 
 28, 45, 51, 215 
 
 41, 63 
 
 ■ 28, 45, 51, 215 
 
 Kiersted v Orange and Alexandria 
 
 Railway Company, - 51 
 
 King, Gaskell v, -75 
 
 King; Gramophone Co., Ltd. o, 87, 93 
 Kingston, Harman v, • 65, 66 
 
 Kodak, Limited v Clark, 108 
 
 Kok, In re, - - 215 
 
 Komato Reefs Gold Mining Co., 
 
 Ltd. ; Ziman v, - ■ 97, 14S-S 
 Kopper's Coke Oven and Bye-Pro- 
 duct Co. , In re, - 54 
 
 Kreglinger v Samuel <Ss Bosenfeld, 16, 20, 
 24, 27, 41, 43, 56, 63, 64, 67, 68, 69, 
 94, 110, 126-134 
 Krell v Henry, - 80, 81, 221 
 
 Kupfer, Bex v, 33, 53, 112-113, 116 
 
 Kyle, Dorsey v, 27, 64, 70, 218 
 
 La"Virginie," - 12 
 
 Lambert, Lash v, 61 
 
 Lash v Lambert, 61 
 
 Lea, British Wagon Co. v, 67 
 
 Le Bret v Papillon, - - 64 
 
 Leader, Plunkett & Leader v Direc- 
 tion der Disconto-Gesellschaft, 40, 
 67, 101 
 Leitch v Edinburgh Ice and Cold 
 
 Storage Co., - 79 
 
 Lemcke v Vaughan, 40 
 
 Levinstein, Ltd. ; Actien Gesellschaft 
 fur Anilin Fabrication in Berlin 
 and Mersey Chemical Works, 
 Ltd. v, 64, 124-125 
 
 Lewis & Co. v Ludwick, 3 
 
 Liebenthal, Montgomery v, - 67 
 
 Liston and Others v Owners of 
 
 Steamship " Carpathian," 37,83, 
 120-121 
 London and Liverpool Bank of 
 Commerce, Ltd. ; Wetherman 
 v, - - 84 
 
 London and South- WeBtern Bank, 
 
 Ltd. ; Flach v, 87 
 
 London County and Westminster 
 
 Bank, Allen v, - 92 
 
 London Life Association, Ltd. ; De 
 
 Bingham v, ■ - 99, 140-1 
 
 London Motor Coach Works, Ltd. ; 
 
 Auster v, - 88 
 
 London Theatre of Varieties v Will 
 
 Evans, 81 
 
 Lord v Colvin, - 11 
 
 Lord George Gordon's Case, 6 
 
 Ludwick, Lewis & Co. v, - 3 
 
 Lumpkin's Executor, Small's Ad- 
 ministrator v, ■ 47 
 Lube v O'Shea, 87, 93 
 Luter v Hunter, 60 
 Lyric Theatre (London), Ltd., v 
 Lyric Theatre, Ltd., and 
 Another, - 99, 139, 140 
 
 M'Connell v Hector, 8, 9, 15, 128 
 
 MacEwan & Auld, Hoey v, - 81 
 
 M'Leod, The People v, - 6 
 
 M'Nair v Toler, 65 
 
 M'Stea, Matthews v, 54 
 
 McVeigh v United States, 27, 64 
 
 " Madonna delle Gracie," The, 36 
 
TABLE OF CASES. 
 
 XXV 
 
 Main Colliery Co., Ltd.; Evans v, 96, 
 
 Ul 
 Maitland v Rattray, - 76 
 
 Mallan v May, - - 75 
 
 Manasseh, Happe v, - 88, 92, 135 
 Mannheim Insurance Go.; W. L. 
 
 Ingle, Ltd. v, 30, 50, 117 
 
 Marais, ex parte, 215 
 
 Maria v Hall, - - - 24 
 
 " Marie Glajser," The, 8, 36, 65 
 
 Marryatt, Wilson v, - 13 
 
 " Mashona," The, 20, 35 
 
 Matthews, Burnside v, 65 
 
 Matthews, Hubbard v, 54 
 
 Matthews v M'Stea, - 54 
 
 Maudsley Motor Go. , Ltd.; Mercedes 
 Daimler Co., Ltd. and Daimler 
 Motoren Gesellschaft v, 64, 125-126 
 Mawman, Gillett v, 82 
 
 Maxim - Nordenfeldt Gun Co. v 
 
 Nordenfeldt, 75 
 
 Maxwell v Grunhut, 48 
 
 May, Mallan v, - 75 
 
 Mayor of London, Thorn v, 76 
 
 Meister Lucius & Bruning, Ltd., 
 
 In re, - - 54 
 
 Menetone v Athawer, 82 
 
 Mercedes Daimler Motor Go. , Ltd. , 
 and Daimler Motoren Gesell- 
 schaft v Maudsley Motor Co., 
 Ltd., - 64, 125-126 
 
 ' ' Mercurius, " The, 33, 37 
 
 Merten's Patent, In re, 16, 20, 24, 27, 
 41, 43, 56, 63, 64, 65, 67, 94, 110, 
 126-134 
 Meyer, Bazett v, - - - 24 
 
 Millar {Andrew) v Taylor & Co., 74, 
 
 118-119 
 Mitchell, Russ v, - - - 64 
 
 Moffitt, Princess of Thurn and Taxis 
 
 v, 17, 42, 43, 63, 123, 124, 129 
 
 Montgomery v Liebenthal, 67 
 
 Morey, Clarke v, 42 
 
 Morgan v Oswald, 41 
 
 Morgan, Softlaw v, - 86 
 
 Morshead, Antoine v, 23, 52, 53, 129 
 Morshead, Daubuz v, 23 
 
 "M6we,"The, ■ 64 
 
 Muller&Co.,Blakely«, 80,81 
 
 Muller v Gernon, 37 
 
 Muller v Thompson, 4 
 
 Murphy v Halpin, 93 
 
 Murrell v Jones, - 47 
 
 Myers, Appleby v, - 79, 82 
 
 Nagle, Foxcroft v, ■ 
 "Nayade,"The, 
 Nelson & Brand, Reg. v, 
 Nelson v Trigg, 
 " Neptune," The, 
 Nesbitt, Brandon v, 
 
 61 
 
 -6,43 
 
 215 
 
 - 22 
 
 38, 43 
 
 21, 23, 48, 63 
 
 PAGE 
 
 Netherlands South Africa Railway 
 
 Co. v Fischer, - 18, 65 
 
 Netherton Shipping Co. v Hong 
 
 Kong, &c. , Dock Co. , - - 76 
 
 New York Life Insurance Co. v 
 
 Clopton, - - - 51 
 
 New York Life Insurance Co. v 
 
 Davis, - 47, 51 
 
 New York Life Insurance Co., 
 
 Sands v, - - 47, 51 
 
 New York Life Insurance Co. v 
 
 Statham, - 46, 51 
 
 Nichol & Knight v Ashton, Eld- 
 ridge, & Co., - 80 
 
 Nigel Gold Mining Co. v Hoade, 
 
 14, 18, 73 
 
 Nigreu, Alcinous v, 6, 16, 26, 44, 66 
 
 Nobbs, Emmanuel College (Cam- 
 bridge) v, 92, 95 
 
 Noble, Usparioha v, - 25, 37, 41 
 
 Nolan, Philco v, 99, lift 
 
 Nordenfeldt, Maxim-Nordenfeldt 
 
 Gun Co. v, ■ ■ 75 
 
 North British Storage Co., Craig 
 
 Line Steamship Co. v, 66 
 
 Northwingfield, Rex v, 75 
 
 Nutt, Inglis v, 61 
 
 Oates, Baker v, - 101 
 
 "Ocean," The, - 11,12,14 
 
 O'Farrell, Shaw & Sons v, 98 
 
 O.S.N. Gases, Limited, Burgess v, 
 
 92, 96, 139 
 O'Mealey v Wilson, 15 
 
 O'Neil v Armstrong, - 75 
 
 Orange and Alexandria Railway 
 
 Co. , Kiersted v, 51 
 
 Orenstein & Koppel v Egyptian 
 
 Phosphate Co., Ltd., 18, 25, 27, 
 45, 48 
 Orgood v Groning, 73 
 
 O'Shea, Lube v, 87, 93 
 
 Oswald, Morgan v, 41 
 
 Overmann, Rouquette v, - - 92 
 Owners of Steamship " Carpathian," 
 
 Lis on and Others v, 37 , 83, 120-121 
 Oxholm, Wolff u, 56, 129, 218 
 
 Paine, Williams v, - 47 
 
 Palmer, Behagg v, ■ 96, 138-9 
 
 " Panariellos," The, 29, 33, 215 
 
 Papillon, Le Bret v, 64 
 
 Paradine v Jane, - 77 
 
 " Patria," The, 73 
 
 Patrick, Douglas v, - - 103 
 
 Patteson, Willison v, 8, 16, 21, 23, 52 
 Paul v Christie, - - 61 
 
 Pearson, Kearon v, 77 
 
 Pelly, United States of America v, 6 
 People, The, v M'Leod, - 6 
 
XXVI 
 
 TABLE OF CASES. 
 
 PAGE 
 
 " Perkeo," The, 34 
 
 Petry, Glaskie v, - 93 
 
 Philco v Nolan, ■ 99, 140 
 
 " Phcenix," The, - 65 
 
 Pickering v Ilfracombe Railway 
 
 Co., - - 75 
 
 Piesehell v Allnutt, 76 
 
 Pigot's Case, 76 
 
 Pope v Chafee, - - 48 
 
 Porter v Freundenberg, 16, 20, 24, 27, 41 
 
 43, 56, 63, 64, 67, 68, 69, 94, 110, 
 
 126-134 
 
 "Portland," The, -9,13 
 
 Potts v Bell, 20, 36, 49 
 
 Powell, Cutter v, 82 
 
 Premier Oil and Pipe Line Co. , Ltd. 
 
 and Others; Robson v, - 215, 217-8 
 " President," The, 13,14 
 
 Quigley, United States v, 
 
 47 
 
 13 
 
 Raffenel, In the goods of, 
 Ragosine & Co. , Ltd. ; Wilson v, 
 
 33, 115-117 
 Rattray, Maitland v, 76 
 
 Raymond, Hicks v, - 77 
 
 Rechnitzer, Von Hellfield v, 64 
 
 Reg. v Burke, 65 
 
 Reg. v Nelson & Brand, 215 
 
 Reg. , Sorensen v, - -8,16 
 
 Reg. , West Rand Gold Mining Co. v, 63 
 Reg. v Wilcock, - - 86 
 
 Reid, Bell v, 15 
 
 Reid v Hoskins, 72 
 
 Rennie, Anglo-Egyptian Co. v, 81 
 
 Rex v Depardo, - - - 24 
 
 Rex v Kupfer, ■ 33, 53, 112-113, 116 
 Rex v Northwingfield, 75 
 
 Richardson, Evans v, 53 
 
 Ricord v Bettenham, 22 
 
 Ritchie, Atkinson v, 73 
 
 Roberts v Hardy, - - 8, 16 
 
 Robinson v Cook, 103 
 
 Robinson v Davison, - 81 
 
 Robinson v International Life In- 
 surance Society, - 47, 51 
 Robinson & Co. v Continental Insur- 
 ance Co. of Mannheim, 27, 63, 64, 
 94, 131, 218 
 Robson v Premier Oil and Pipe Line 
 
 Co., Ltd., and Others, -215,217-8 
 Rogers, Furtado v, 22, 46, 49, 56 
 
 Rombach v Rombach, 54 
 
 Rouquette v Overmann, - 92 
 
 Rowe, Attorney-General v, 10 
 
 Rowe v Hardy, - 61 
 
 Royal Insurance Co., Brown v, 76, 83 
 Rucklidge; West, &c, Building 
 
 Society v, - 68, 133 
 
 Russ v Mitchell, 64 
 
 St. George & Concannon v Delury, 87, 93 
 St. John's College (Oxford), Jones 
 
 v, - - - - 76 
 
 Sahler, In re, ex parte Mwmiford <5e 
 
 Co., ■ 88, 135 
 
 Salomon v Salomon, - 108 
 
 Samuel & Rosen/eld, Kreglinger v, 16, 
 
 20, 24, 27, 41, 43, 56, 63, 64, 67, 68, 
 
 69, 94, 110, 126-134 
 
 Sanday & Co. v British & Foreign 
 
 Marine Insurance Co., Ltd., 84 
 Sands v New York Life Insurance 
 
 Co., - 47, 51 
 
 " San Roman," The, 73 
 
 " Sarah Christina," The, - - 37 
 Schmidt v Van der Veen, 33, 113-115 
 
 Schrempft <Ss Bonke; Duncan Fox & 
 
 Co. v, - 45, 72, 118 
 
 Schtdze, Gow & Co. v Bank of Scot- 
 land, ■ ■ 17, 43, 123-124 
 Schweder & Go. , Berihould v, 210 
 Scott, Flindt v, - 40, 41 
 Scott ; Standard Property Invest- 
 ment Co., Ltd. v, 99 
 Scott, Warm v, 40 
 Seymour v Bailey, - - 42 
 Shaw & Sons v O'Farrell, 98 
 Shepeler v Durant, - 66 
 Shepherd, Ford v, - - - 68, 133 
 Shortland v Cabins, Ltd. and An- 
 other, 91, 136-7 
 Sibler, In re, - 100, 142 
 Silcock v Christie, - - 93 
 Skipwith and Others ; Zinc Corpor- 
 ation, Ltd. and Romaine v, 72 
 Small's Administrator v Lumpkin's 
 
 Executor, 47 
 
 Smart v Wolff, 37 
 
 Smith, Alciator v, - 16, 26, 41, 43 
 
 Smith, Coney <Se Barrett v Becker, 
 
 Gray & Co., 74, 82, 119-120 
 
 Smith, Geipel v, 31 
 
 Smith, Ward v, 61 
 
 Softlaw v Morgan, - 86 
 
 Society for the Propagation of the 
 
 Gospel v Wheeler, 110 
 
 Sorensen v Reg., - 8, 16 
 
 Sparenburgh v Bannatyne, 23, 64, 123 
 Spence v Chodwick, 77 
 
 Sprigg, Cook v, 63 
 
 Standard Property Investment Co. , 
 
 Ltd. v Scott, - - 99 
 
 Stanley, Gramophone and Type- 
 writer, Ltd. v, - 108 
 Statham, New York Life Insurance 
 
 Co. v, - 46, 51 
 
 Stevens v Webb, - 82 
 
 Stock and Share Auction and Ad- 
 vance Co. v Galmoye, 143 
 Stoddart v United States, 47 
 Sughrue, Hills v - - -77 
 Sussman, Albretcht v, 8, 15, 16, 27 
 
TABLE OF CASES. 
 
 XXVll 
 
 PAGE 
 
 Sutherland, Duchess of, In re, 17, 24, 25, 
 
 110-111 
 Sylvester's Case, 65 
 
 Taylor & Co., Andrew Miller v, 
 
 74 118-119 
 Taylor v Caldwell, 79, 80, 81, 221 
 
 Taylor v Hutchinson, 54 
 
 "Tergestea,"The, - 36 
 
 " Teutonia," The, 73,82 
 
 Thiis v Byers, 77 
 
 Thompson, Blackburne v, 6 
 
 Thompson, Feize v, 40 
 
 Thompson, Muller v, - 4 
 
 Thorn v Mayor of London, 76 
 
 Thurn and Taxis, Princess of, v 
 
 Moffitt, 17, 42, 43, 63, 123, 124, 129 
 Tilling ( Thomas), Ltd. ; Continental 
 
 Tyre & Rubber Go. (Great 
 
 Britain), Ltd. v, 18, 107-110 
 
 Toler, M'Nair v, - - 65 
 
 Tolme & Runge, Edward Grey & 
 
 Co. v, - 84 
 
 Trigg, Nelson v, - - 22 
 
 Two Companies, In the matter oj, 
 
 96, Ul-S 
 
 Udny v Udny, 
 
 10,12 
 
 United States, Cramer v, 
 
 54 
 
 United States, Douglas v, 
 
 54 
 
 United States v Grossmayer, 
 
 47,61 
 
 United States, McVeigh v, 
 
 27, 64 
 
 United States v Pelly, 
 
 6 
 
 United States v Quigley, 
 
 47 
 
 United States v Stoddart, 
 
 - 47 
 
 Usparicha v Noble 
 
 - 25, 37, 41 
 
 Van der Veen, Schmidt v, 
 
 33, 113-115 
 
 Vandyck v Whitmore, - 
 
 21,37 
 
 Vaugfian, Lemcke v, 
 
 40 
 
 Venbrynen v Wilson, 
 
 - 64 
 
 "Vigilantia,"The, 
 
 13, 14 
 
 " Virginie," La, 
 
 12 
 
 Volkl v Governors of Rotunda Hos- 
 pital, 17, 43, m-123 
 Von Hellfield v Reehnitzer, 64 
 "Vriendschap,"The, 40 
 
 Waddington, Griswold v, 
 Ward v Smith, 
 
 44, 46, 55 
 61 
 
 PAGE 
 
 Warin v Scott, 40 
 
 Washington University v Finch, 48 
 
 Waterpark, Lord ; Du Belloix v, 62 
 Waters, Flindt v, ■ 65 
 
 Webb, Stevens v, 82 
 
 Webster, Chandler v, 80 
 
 Weeden & Shales, Attorney-Gen- 
 eral v - - 56 129 
 Wells v Williams, 9, 41, 44, 63, 123, 128 
 West Rand Gold Mining Co. v Reg. , 63 
 Western, &c, Building Society v 
 
 Rucklidge, - 68, 133 
 
 Wetherman v London and Liverpool 
 
 Bank of Commerce, Ltd. , 84 
 
 Wheeler, Society for the Propaga- 
 tion of the Gospel v, - 110 
 Whicker v Hume, - 10 
 Whincup v Hughes, - 81 
 Whitmore, Vandyck v, 21, 37 
 Wilcock, R. v, v- 86 
 Wilder, Woods v, - 54 
 Willard, Blackwell v, 48 
 Willcocks, Bainbridge v, 61 
 " William Bagaley," The, 46, 54 
 Williams v Paine, 47 
 Williams, Wells v, 9, 41, 44, 63, 123, 128 
 Willison v Patteson, 8, 16, 21, 23, 52 
 Wilson and Another, Cooney v, 97 
 Wilson, Farrow v, 81 
 Wilson v Marryatt, 13 
 Wilson, O'Mealey v, 15 
 Wilson v Ragosine & Go. , Ltd. , 33, 115-117 
 Wilson, Venbrynen v, 64 
 Wolf cfc Sons v Garr, Parker <fc Go. , 
 
 Ltd., - 216-7 
 
 Wolff v Oxholm 56, 129, 218 
 
 Wolff, Smart v, - 37 
 
 Wood, City of London v, 110 
 
 Woods v Wilder, - - - 54 
 
 Worthington v Charter Oak Life 
 
 Insurance Co. , 50 
 
 Yeaton v Berney, - 61 
 
 " Yonge Klassina," The, - 9, 14 
 
 Young, Barkworth v, 83 
 
 Ziman v Komata Reefs Gold Mining 
 
 Co., Ltd., - 97, HS-S 
 
 Zinc Corporation, Ltd. and Romaine 
 
 v Skipwith and Others, 72 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 25 Edw. III. c. 2 (Statute of Treasons, 1351), 29 
 
 21 Jao. I. o. 16 (Limitation Act, 1623), s. 3, 60, 61 
 
 22 Geo. III. c. 25, 22 
 
 43 Geo. III. u. 155, 122, 123 
 6 Geo. IV. v . 120 (Court of Session Act, 1825), s. 51, 70 
 1 & 2 Vict. u. 74 (Small Tenements Recovery Act, 1838), - 97, 100 
 
 13 & 14 Vict. u . 36, ». 22, 70 
 
 14 & 15 Vict. u. 92 (Summary Jurisdiction (Ireland) Act, 1851), 100 
 16 & 17 Vict. c. 34 (Income Tax Act, 1853), 18 
 
 23 & 24 Vict. c. 154 (Landlord and Tenant Law Amendment (Ireland) 
 
 Act, 1860), s. 86, - 100 
 
 27 & 28 Vict. c. 25 (Naval Prize Act, 1864), s. 45, 22 
 
 33 & 34 Vict. c. 90 (Foreign Enlistment Act, 1870), s. 3, 75 
 
 s. 8, 6 
 42 & 43 Vict. c. 21 (Customs and Inland Revenue Act, 1879), s. 8, 74, 184, 194, 
 
 195, 198, 200, 201, 225 
 
 44 & 45 Vict. c. 58 (Army Act, 1881), s. 115 (4), 79, 154, 155, 227 
 
 45 & 46 Vict. c. 61 (Bills of Exchange Act, 1882), ss. 29, 30, 36 
 
 ss. 29, 30, 89, 52 
 
 o. 46 (1), 85 
 
 46 & 47 Vict. u. 52 (Bankruptcy Act, 1883), s. 6 (1) (6), 135 
 52 & 53 Vict. u. 49 (Arbitration Act, 1889), s. 4, 84 
 52 & 53 Viet. u. 63 (Interpretation Act, 1889), s. 3, 86 
 56 & 57 Vict. c. 53 (Trustee Act, 1893), s. 1, 88 
 56 & 57 Vict. c. 71 (Sale of Goods Act, 1893), s. 7, 79 
 63 & 64 Vict. c. 44 (Exportation of Arms Act, 1900), s. 1, 74, 184, 194, 195, 
 
 198, 200, 201 
 6 Edw. VII. c. 41 (Marine Insurance Act, 1906), ». 30 (2) (3) (4) (5) (6), 73 
 
 s. 31, - 85 
 
 6 Edw. VII. c. 58 (Workmen's Compensation Act, 1906), 88 
 
 8 Edw. VII. i;. 69 (Companies (Consolidation) Act, 1908), b. 274, - 18, 117 
 
 1 & 2 Geo. V. u. 55 (National Insurance Act, 1911), 88 
 
 3 & 4 Geo. V. c. 34 (Bankruptcy and Deeds of Arrangement Act, 1913), 
 
 s. 4 (1) (6), - 135 
 
 4 & 5 Geo. V. c. 11 (Postponement of Payments Act, 1914), - 85, 101 
 
 s. 1 (1), 90, 91 
 
 ss. 1 (1) (2) (3), 2 (2) (4), 86 
 
 4 & 5 Geo. V. u. 12 (Aliens Restriction Act, 1914), 17, 26, 42, 43, 122, 124 
 
 4 & 5 Geo. V. c. 14 (Currency and Bank Notes Act, 1914), s. 1 (1), 101 
 
 ss. 1 (3) (4) (6), 2, 102 
 
 ss. 1, 4, 5 (1) (3), 103 
 
 4 & 5 Geo. V. c. 17 (British Nationality and Status of Aliens Act, 1914), 
 
 s. 10, 26 
 
 B . 13, 7 
 
xxx TABLE OF STATUTES. 
 
 PAGE 
 
 4 & 5 Geo. V. o. 64 (Customs (Exportation Prohibition) Act, 1914), s. 1, 184 
 
 s. 2, 194, 195, 198, 199, 201, 225 
 
 4 & 5 Geo. V. u. 72 (Currency and Bank Notes (Amendment) Act, 1914), 
 
 ss. 1, 2, 102 
 
 4 & 5 Geo. V. c. 78 (Courts (Emergency Powers) Act, 1914), 88, 94 
 
 140, 147, 149, 152 
 s. 1 (1), 95, 96, 97, 138, 139, 141, 142, 143, 229 
 
 ss. 1 (1), 2 (2) (3) (4), 94 
 
 a. 1 (2), - 98, 99 
 
 s. 1 (3), 100 
 
 s. 1 (4), 97 
 
 ss. 1 (5) (6) (7), 2 (2) (3), 101 
 
 ss. 1 (4), 2 (2), 100 
 
 s. 2 (2), 97 
 
 s. 2 (4), 181 
 
 4 & 5 Geo. V. u. 82 (Bills of Exchange Act, 1914), ss. 1, 2, 3, 85 
 
 4 & 5 Geo. V. c. 87 (Trading with the Enemy Act, 1914), ^4, 53, 114 
 
 s. 1 (1), 29, 30 
 
 s. 1 (2), 28, 30 
 
 s. 2 (2), 53, 54, 59 
 
 s. 3, 54 
 
 5 Geo. V. c. 2 (Customs (Exportation Restriction) Act, 1914, ss. 1 2, 184 
 
 s. 2, 194, 195, 198, 199, 201 
 
 5 Geo. V. c. 12 (Trading with the Enemy Amendment Act, 1914), 53, 56, 57, 
 
 115, 116, 163, 167, 169, 172, 177, 229 
 
 ss. 1(1) (2), 2(1) (5), 3(1), 5(1), 57 
 
 ss. 3 (2), 7, 8 (1) (2) (3) (4) (5), 58 
 
 s. 4 (1) (2), 70, 163, 164, 165, 166, 173, 175, 176 
 
 ss. 4 (1) (2), 5 (1), 69 
 
 s. 5 (2), 164, 165, 169, 170, 174, 175 
 
 =. 5 (5), 172 
 
 s. 6 (1), 53 
 
 s. 6 (2), 34, 53 
 
 «. 7, 116, 167, 168, 177 
 
 ss. 9 (1) (2), 14 (2) (3), 59 
 
 s. 14 (3), 177 
 
 5 Geo. V. c. 19 (Courts (Emergency Powers) (Ireland) Act, 1914), 147 
 
 s. 1, 101 
 
 5 Geo. V. c. 21 (British Ships (Transfer Restriction) Act, 1915), 156, 157 
 
 5 Geo. V. u. 31 (Customs (War Powers) Act, 1915), 157, 158, 159 
 
 5 Geo. V. u. 36 (Legal Proceedings against Enemies Act, 1915), 159, 160, 161 
 
 bs. 1 (1) (6), 4, . 70 
 
 ss. 1 (2) (3) (4) (5), 2, 3, 7 1 
 
 s. 5 (2), 72 
 
 5 Geo. V. c. 37 (Defence of the Realm (Amendment) No. 2 Act, 1915), 162 
 
 s. 1 (2), . 80, 221, 222 
 
PART I. 
 STATEMENT OF THE LAW. 
 
THE LAW OF CONTRACT DURING WAR. 
 
 STATEMENT OF THE LAW. 
 
 1. The Definition of War. — In Driefonteim Consolidated 
 Mines, Limited v. Janson, 1900, 2 Q.B. 343, Matthew, J., 
 observed that what constitutes a state of war is well described 
 in Hall's Treatise on International Law, 6th edition, p. 60, in 
 the following passage : — " When differences between States 
 " reach a point at which both parties resort to force, or one 
 " of them does acts of violence which the other chooses to look 
 " upon as a breach of the peace, the relation of war is set up, 
 " in which the combatants may use regulated violence against 
 " each other until one of them has been brought to accept such 
 " terms as his enemy is willing to grant." It may be added 
 that the belligerents need not be States in the full sense 
 of that term in international law. One or other may be 
 communities which have received recognition of belligerency, 
 i.e., which, for the purposes of the contest, are deemed States. 
 Thus, when a party in rebellion, as happened in the case of 
 the American Civil War, occupy and hold a certain portion of 
 territory in a hostile manner, have declared their independence, 
 have cast off their allegiance, have organised armies, and have 
 commlenced hostilities ajgainst their former sovereign, the 
 world recognises them as belligerents and the contest as a war 
 {Lewis fy Co. v. Ludwick, 1869, 98 American Decisions, 459). 
 
 War has to be distinguished from other acts of force, such 
 as embargo and pacific blockade, which do not amount to it, 
 . because the parties to them do not regard themselves as 
 belligerents, and commercial intercourse between their subjects 
 is not suspended outside the area of the forcible proceedings. 
 Instances of such acts are the blockade by the Great Powers 
 of the coasts of Greece in 1887 in order to prevent the Greeks 
 
4 STATEMENT OF THE LAW. 
 
 from making war on Turkey, and the embargo laid on all 
 Dutch, vessels in British ports in 1803, because this country 
 feared that Holland was going to join Franc© in war against 
 her. The legal effects of embargo will be found in Lord 
 Stowell's judgment in The " Boedes Lust," 1804, 5 Ch.Bob. 
 244-251. 
 
 English law recognises a state of peace and a state of war, 
 but knows of no intermediate state which is neither one thing 
 nor the other. Though the general effect of war is to suspend 
 or end contracts between the subjects of the belligerent States, 
 the actual existence and not the mere imminence of war is 
 necessary to bring about such result. 
 
 Thus in Janson v. Driefontein Consolidated Mines, Limited, 
 1902, A.C. 484, a British subject who underwrote a policy 
 of insurance of gold by which a limited company registered 
 under the laws of the late South African Republic was insured, 
 among other risks, against " arrests, restraints, and detain- 
 "ments of all kings, princes, and peoples," was held liable 
 on his contract to make good the loss of the gold through its 
 seizure by the Transvaal Government some days before the 
 actual outbreak of the war with this country. 
 
 The absence of diplomatic intercourse between two States 
 and the exclusion of the commerce of one from the ports of 
 the other do not constitute a state of war. 
 
 In Muller v. Thompson, 1811, 2 Camp. 609, a voyage to a 
 Prussian port was held not to be an illegal trading with the 
 enemy, although British commerce was entirely excluded from 
 the ports of Prussia, and there was no diplomatic intercourse 
 between the two countries. But there had been neither a 
 declaration of war nor the commission of any act of hostility. 
 
 Even though a State may be in the military possession of 
 one of two belligerents, that will not constitute her subjects 
 enemies to the other belligerent if the sovereign power of the 
 latter chooses to permit a continuance of intercourse with them. 
 
 In Hagedom v. Bell, 1813, 1 M. & S. 450, when Great 
 Britain was at war with France, an insurance was effected on 
 property shipped in this country to Hamburg, on account of 
 persons domiciled in this country, at a time when that town 
 was in the military occupation of the French, but retained its 
 powers of civil government. The assured were held entitled to 
 
THE DECLARATION OF WAR 5 
 
 recover for a loss which happened in the course of a voyage 
 permitted by His Majesty's Order in Council. 
 
 The Trading with the Enemy (Occupied Territory) 
 Proclamation, dated 16th February, 1915, declares that during 
 the present war territory in the effective military occupation 
 of the enemy is to be deemed enemy territory, and enemy 
 territory in the effective military occupation of Great Britain 
 or her Allies is to be regarded as territory in friendly occupa- 
 tion. On 25th March, 1915, the following announcement 
 was made by the Colonial Office : — 
 
 With reference to the Trading with the Enemy (Occupied 
 Territory) Proclamation, 1915, of 16th February, the 
 Secretary of State for the Colonies gives notice that 
 the German colony of Togoland, having been in the 
 effective military occupation of British and French 
 forces since 26th August, Togoland became territory 
 in friendly occupation within the meaning of the 
 Proclamation from the above date. Daily News and 
 Leader of 26th March, 1915. 
 
 2. The Declaration of Wae. — The First Article of the 
 Convention, relative to the commencement of hostilities, 
 agreed upon at The Hague Peace Conference of 1907, is to the 
 effect that " the contracting Powers recognise that hostilities 
 " between them must not commence without a previous and 
 " unequivocal warning, which shall take the form either of a 
 " declaration of war, giving reasons, or of an ultimatum, 
 " with a conditional declaration of war." 
 
 On 4th August, 1914, a state of war was declared to exist 
 between Great Britain and Germany as from 11 p.m. on that 
 day, and on d2th August the Foreign Office also notified that 
 a state of war existed between this country and Austria- 
 Hungary as from midnight of that day [Supplement to the 
 London Gazette of 4th August, 1914; London Gazette of 14th 
 August, 1914). On 5th November of the same year (1914) it 
 was further declared that, owing to hostile acts committed by 
 Turkish forces under German officers, a state of war existed 
 between Great Britain and Turkey as from that date {London 
 Gazette of 6th November, 1914). 
 
 A state of war may, however, exist independently of, and 
 
6 STATEMENT OF THE LAW. 
 
 prior to, a declaration of war {The " Nayade," 1802, 4 Ch.Rob. 
 251). But this can only be effected by an actual commence- 
 ment of hostilities (per Mellish, L.J., in The " Teutonia," 
 1872, L.R. 4 P.C. 179). In The "Amy Warwick," &c, 1862, 
 2 Black. 635, the Supreme Court of the United States held 
 that a state of war in fact existed, although there had been no 
 declaration of war by Congress. And in United States of 
 America v. Pelly, 1899, W.N. 12 (9), an English Court decided 
 that a State is at war within the meaning of the Foreign 
 Enlistment Act, 1870, 33 & 34 Yict. c. 90, section 8, as soon 
 as hostilities have in fact begun, whether war has been formally 
 declared or not. 
 
 3. Judicial Notice of the Existence of War. — The 
 American view is that a state of peace and the continuance 
 of treaties must be presumed by all Courts of justice till the 
 contrary be shown ; and this is presumptio juris et de jure 
 until the national power of the country in which such Courts 
 sit officially declares the contrary ( The Peoples. McLeod, 1841, 
 37 American Decisions, 328). The English doctrine is the 
 same. " It belongs to the Government of the country to 
 " determine in what relations of peace or war any other country 
 "stands towards it; and ... it would be unsafe for 
 " Courts of justice to take upon them, without that authority, 
 "to decide upon those relations. But when the Crown has 
 " decided upon the relation of peace or war in which another 
 " country stands to this, there is an end of the question ; and 
 " in the absence of any express promulgation of the will of the 
 " sovereign in that respect, it may be collected from other acts 
 " of the State" (per Lord Ellenborough, C.J., in Blackburner. 
 Thompson, 1812, 15 East, 89, 90. See also Lord Macnaghten's 
 judgment in Janson v. Driefontein Consolidated Mines, 
 Limited, 1902, A.C. 497). The existence of war between Great 
 Britain and any foreign State is matter of notoriety, and need 
 not be proved by express evidence (per Buller, J., in Lord 
 George Gordon's Case, 1787, 22 Howell's St. Tr. 230; per 
 Lord Campbell, C.J., in Alcinous v. Nigreu, 1854, 4 E. & B. 
 218). 
 
 4. Varying Effect of War upon Contracts. — The exist- 
 ence of a state of war affects different contracts in different 
 
MEANING OF ALIEN ENEMY. 7 
 
 ways. Some contracts are avoided or dissolved; others are 
 rendered unenforceable for the time being; others, again, 
 remain unaffected. The particular conditions of each contract 
 materially affect the consideration of each case. But the 
 chief circumstances which determine whether any given 
 contract is valid or void or dissolved, enforceable or 
 unenforceable during war, seem to be the following : — 
 
 (i.) The enemy or friendly character of the party or parties 
 with whom the contract was made. 
 
 (ii.) The time when the contract was concluded. Was it 
 made before the outbreak of war or during its 
 continuance ? 
 
 (iii.) The fact that the contract is executory or not. 
 
 (iv.) The possibility or impossibility of performance owing 
 to a state of war. 
 
 (v.) The subject-matter of the contract. Was the 
 contract, for example, one for the exportation of 
 goods of which the exportation has been forbidden 
 by law? 
 
 5. Meaning of Alien Enemy. — The status of a person, as 
 whether alien or not, is determined by English law (In re 
 Adam, 1837, 1 Moo. P.C. 460). 
 
 An alien enemy, in the primary sense of the words, is a 
 natural-born subject of a State which is at war with this 
 country (Calvin's Case, 1608, 7 Co. Rep. 1). But birth is not 
 now the sole factor in determining nationality. A person may 
 become a subject of a State by naturalisation. A British 
 subject, for instance, who, when in any foreign State, and not 
 under disability, by obtaining a certificate of naturalisation or 
 by any other voluntary act, becomes naturalised therein, ceases 
 to be a British subject (the British Nationality and Status of 
 Aliens Act, 1914, 4 & 5 Geo. V. c. 17, sec. 13). Should that 
 State be at war with Great Britain, such a person will be an 
 alien enemy. Further, for all commercial purposes, any one 
 residing or trading in a hostile State, even though not a 
 natural-born or naturalised subject of that State, is deemed 
 an alien enemy. 
 
 An alien enemy may thus be denned as a natural-born or 
 
8 STATEMENT OP THE LAW. 
 
 naturalised subject of, or any other person resident or carrying 
 on business in, a State for the time being at war with His 
 Majesty. 
 
 So the following are alien enemies : — 
 
 (i.) A natural-born or naturalised subject of a State which 
 is at war with Great Britain. Such a person is 
 still, under certain circumstances, and despite dicta 
 to the contrary, an alien enemy even for com- 
 mercial purposes. None of the recent decisions 
 goes so far as to maintain that an unregistered 
 alien enemy here can sue during war. 
 
 (ii.) A subject of a neutral State residing and trading in 
 enemy territory (Albretcht v. Sussman, 1813, 2 
 Ves. & B. 323 ; Sorensen v. Reg., 1857, 11 Moo. P.C. 
 141). 
 
 (iii.) A British subject who adheres to the King's enemies 
 by residing or trading in a hostile State (M'Connell 
 v. Hector, 1802, 3 Bos. & P. 113 ; Roberts v. Hardy, 
 1815, 3 M. & S. 533 ; Willison v. Patteson, 1817, 
 7 Taunt. 439). 
 
 (iv.) A British subject, even though domiciled in British 
 territory, may acquire enemy character by being a 
 shareholder in, or a mortgagee of, an enemy ship, 
 and may thus suffer loss through the capture of 
 such vessel as prize of war by a British cruiser (The 
 "Marie Glceser," 1914, 137 Law Times, 468). 
 
 Under the first of these categories, so far as it is applicable, 
 there fall at the present time Germans, Austrians, and Turks. 
 But the Aliens Restriction (Armenians, &c.) Order, 1915, gives 
 the status of alien friends to certain Turkish subjects. It 
 provides that a registration officer may, subject to the general 
 or special instructions of the Secretary of State, grant to a 
 Turkish subject resident in his registration district who is 
 shown to his satisfaction to be by race a Greek, Armenian, or 
 Syrian, or a member of any other community well known as 
 opposed to the Turkish regime, and to be a Christian, a certifi- 
 cate of exemption from all or any of the provisions of the 
 Aliens Restriction (Consolidation) Order, 1914, except such as 
 
DOMICILE AS TEST OF ENEMY CBAEACTEE. 9 
 
 apply to alien friends. Any such certificate is operative 
 throughout the United Kingdom, but may be revoked by the 
 registration officer who granted it, or by the registration officer 
 of any district in which the holder is for the time being 
 resident. 
 
 6. Domicile as Test of Enemy Chabacteb. — " When con- 
 sidering questions arising with an alien enemy, it is not the 
 nationality of a person, but his place of business during war, 
 that is important. An Englishman carrying on business in 
 an enemy's country is treated as an alien enemy in consider- 
 ing the validity or invalidity of his commercial contracts 
 (M'Connell v. Hector, 1802, 3 Bos & P. 113). Again, the 
 subject of a State at war with this country, but who is carry- 
 ing on business here or in a foreign neutral country, is not 
 treated as an alien enemy; the validity of his contracts 
 does not depend on his nationality, nor even on what is his 
 real domicile, but on the place or places in which he carries 
 on his business or businesses (Wells v. Williams, 1698, 1 Salk. 
 45) . As observed by Sir "William Scott in The ' Yonge 
 ' Klassina,' 1804, 5 Ch.Eob. 302-3, 'a man may have mer- 
 ' cantile concerns in two countries, and if he acts as a 
 'merchant in both he must be liable to be considered as a 
 ' subject of both with regard to the transactions originating, 
 ' respectively, in those countries. That he has no fixed 
 ' counting-house in the enemy's country will not be decisive.' 
 See also The ' Portland,' 1800, 3 Ch.Eob. 41." 
 The above passage from Lord Lindley's judgment in Janson 
 v. Driefontein Consolidated Mines, Limited, 1902, A.C. 505, 
 shows that the term " domicile " is used in two senses, firstly, 
 regardless of trade or commerce, and more in relation to the 
 person, and, secondly, in direct reference to a person's place 
 of business. Dicey calls the former the civil and the latter 
 the commercial domicile of a person (Conflict of Laws, 2nd 
 edition, App. n. 7, pp. 740 et seq.). In many cases the two 
 domiciles are the same. But this can only occur, if it does, 
 when the person is a trader. But all persons are not merchants ; 
 and even when a person is such, his personal or civil domicile 
 may not coincide with his commercial domicile. It is therefore 
 important to distinguish the two kinds of domicile. 
 
10 STATEMENT OF THE LAW. 
 
 The personal or civil domicile of a person is the place 
 where he has his permanent home (WMcker v. Hume, 1858, 
 7 H.L.Cas. 124; Attorney-General v. Rowe, 1862, 1 H. & C. 
 31). A judicial definition of it, somewhat in the form of an 
 Irish bull, was, the writer believes, " the place where you 
 " would always find a man if for some good reason he was not 
 " elsewhere at the time." (But the writer has not the 
 reference at hand.) 
 
 "It is a settled principle that no man shall be without a 
 " domicile, and to secure this result the law attributes to every 
 " individual, as soon as he is born, the domicile of the father 
 " if the child be legitimate, or the domicile of the mother if 
 " illegitimate. This has been called the domicile of origin, 
 " and it is involuntary. Other domiciles are domiciles of 
 " choice ; for as soon as the individual is sui juris, it is com- 
 " petent to him to elect and assume another domicile, the 
 " continuance of which depends upon his will and act. When 
 " another domicile is put on, the domicile of origin is for that 
 " purpose relinquished, and remains in abeyance during the 
 " continuance of the domicile. But as the domicile of origin 
 " is the creature of the law, and independent of the will of the 
 " party, it would be inconsistent with the principles on which 
 " it is by law created and ascribed to suppose that it is capable 
 " of being, by the mere act of the party, entirely obliterated 
 " and extinguished. It revives and exists wherever there is 
 " no other domicile, and it does not require to be regained or 
 " reconstituted animo et facto in the manner which is necessary 
 "for the acquisition of a new domicile of choice" (per Lord 
 Westbury in Udny v. Udny, 1869, 7 M. (H.L.) 99 ; L.R. 1 
 Sc.App. 457-8). 
 
 Domicile of origin would appear to be of no importance in 
 determining enemy character, except in so far as it may deter- 
 mine nationality by place of birth. If, for instance, A, a 
 German subject, whose domicile of origin is French, but whose 
 acquired domicile is German, leaves Germany on the outbreak 
 of war between it and Great Britain, intending to settle in 
 America, he will be deemed an alien enemy during his transit 
 to America, although his domicile of origin revives during such 
 transit for other purposes (Dicey, Conflict of Laws, 2nd edition, 
 p. 744). 
 
DOMICILE AS TEST OP ENEMY CHARACTER. 11 
 
 A good definition of an acquired domicile is given by 
 Kindersley, Y.C., in Lord v. Colvin, 1859, 4 Drew. 376— "That 
 ' place is properly the domicile of a person in which he has 
 " voluntarily fixed the habitation of himself and his family, not 
 ' for a mere special and temporary purpose, but with a present 
 " intention of making it his permanent home, unless and until 
 " something (which is unexpected, or the happening of which 
 " is uncertain) shall occur to induce him to adopt some other 
 " permanent home." 
 
 The three great tests of an acquired personal domicile are 
 (1) the voluntariness of the residence, (2) the fact of residence, 
 and (3) the intention to reside either permanently or for an 
 indefinite time. 
 
 An involuntary residence in a foreign country cannot create 
 a domicile therein. If a person is detained on the outbreak of 
 war in a hostile State, this forced residence will not make him 
 an alien enemy (per Lord Ellenborough in Bromley v. Hessel- 
 tine, 1807, 1 Camp. 77; The " Ocean," 1804, 5 Ch.Rob. 90). 
 
 Thus in Antoine v. Morshead, 1815, 6 Taunt. 237, it was 
 held that a British subject who was a prisoner of war in an 
 enemy's country was not an alien enemy. So where a bill, 
 drawn by such prisoner on a British subject in England, is 
 indorsed to an alien enemy, it becomes available in the hands 
 of the latter upon the cessation of hostilities. 
 
 " The actual place where a man is is prima facie to a great 
 " many purposes his domicile " (per Lord Thurlow in Bempde 
 v. Johnstone, 1796, 3 Ves. 198). But this presumption is 
 rebutted if it be shown that there was no intention to reside there 
 permanently or for an indefinite time. A person may go into 
 a foreign country for a special purpose or for a definite period, 
 intending to return home after the accomplishment of such 
 purpose or after the lapse of such period. If so, he will not 
 necessarily be deemed to have acquired a foreign domicile, 
 even though he prolongs his stay thereafter. But, for all 
 commercial purposes at least, " time is the grand ingredient in 
 " constituting domicile. I think that hardly enough is attri- 
 " buted to its effects ; in most cases it is unavoidably conclusive ; 
 " it is not infrequently said that if a person comes only for a 
 " special purpose that shall not fix a domicile. ... A 
 " special purpose may lead a man to a country where it shall 
 
12 STATEMENT OF THE LAW. 
 
 " detain him the whole of his life. ... I cannot but think 
 "that against such a long residence the plea of a special 
 " purpose could not he averred ; for it must be inferred in such 
 " a case that other purposes forced themselves upon him and 
 "mixed themselves with his original design, and impressed 
 " upon him the character of the country where he resided. 
 " Suppose a man comes into a belligerent country at or before 
 " the beginning of a war, it is certainly reasonable not to bind 
 " him too soon to an acquired character and to allow him a 
 " fair time to disengage himself ; but if he continue to reside 
 " during a good part of the war, contributing, by payment of 
 " taxes or other means, to the strength of the country, I am 
 " of opinion that he could not plead his special purpose with 
 " any effect against the rights of hostility. . . . Time is 
 " the great agent in the matter ; it is to be taken in a compound 
 " ratio of the time and the occupation, with a great preponder- 
 " ance on the article of time " (per Lord Stowell in The 
 "Harmony," 1800, 2 Ch.Eob. 324). On the other hand, it is 
 obvious that a forced residence beyond the time originally 
 intended will not constitute a domicile (The " Ocean," 1804, 5 
 Ch.Eob. 90) ; and where a treaty allows a definite time to the 
 inhabitants of a territory to leave such territory, residence 
 during that time raises no presumption of an intention to 
 remain (The "Diana," 1803, 5 Ch.Eob. 50). 
 
 The supreme test of personal or civil domicile, therefore, 
 is the intention to remain permanently or for an indefinite 
 time in a country. The amount of evidence necessary to prove 
 such intention varies according to circumstances. Slighter 
 evidence suffices in the case of a person returning home from 
 abroad than in the case of a person going from home to a 
 foreign country. In the former case the native domicile very 
 easily reverts (per Lord Westbury in Udny v. Udny, Ii869, 7 
 M. (H.L.) 98; L.E. 1 Sc.App. 459); while in the latter case 
 the natural presumption is that the person does not intend to 
 make a permanent stay in the foreign State. Again, "it 
 " requires fewer circumstances to constitute domicile in the 
 "case of a native subject who returns to reassume his original 
 " character than it does to impress the national character on 
 " the enemy " (per Lord Stowell in " La Virginie," 1804, 5 
 Ch.Eob. 99). But a return to one's native country merely for 
 
DOMICILE AS TEST OF ENEMY CHAEACTEE. 13 
 
 a temporary purpose, and without any intention of abandoning 
 one's foreign domicile, does not effect a change of domicile 
 (Wilson v. Marryatt, 1788, 8 T.E. 31). On the other hand, 
 trading in a country is the strongest proof of domicile therein, 
 at least so far as the acquisition or not of enemy character is in 
 question (The " Vigilantia," 1798, 1 Ch.Eob. 1 ; The " Port- 
 "land," 1800, 3 Ch.Eob. 41; Lord Lindley's judgment in 
 Janson v. Driefontein Consolidated Mines, Limited, 1902, A.C. 
 505) ; and this leads naturally to the consideration of a person's 
 commercial domicile. 
 
 The commercial domicile of a person is the place or country 
 where he carries on business. The differences between 
 commercial and civil domicile are admirably set forth by Dicey 
 in his Conflict of Laws, 2nd edition, App. n. 7, pp. 742 et seq., 
 whose statement of them may be thus summarised and 
 supplemented. 
 
 In the first place, while residence in a country is prima 
 facie evidence of a person having his domicile therein, it is 
 more than prima facie evidence of a person's commercial 
 domicile. " In time of war a man is taken to be domiciled for 
 " commercial purposes in the country where in fact he resides, 
 " and if he is to escape the effect of such presumption he must 
 " prove affirmatively that he has the intention of not continuing 
 "to reside in such country. A long period, further, of 
 " residence which, as regards civil rights, is merely evidence of 
 " domicile might, it would seem, be absolutely conclusive in 
 "determining national character in time of war" (Dicey, 
 Conflict of Laws, 2nd edition, pp. 742-3; see The "Harmony," 
 1800, 2 Ch.Eob. 322). 
 
 Secondly, the intention necessary to create a commercial 
 domicile need not be an intention to carry on business in a 
 given country permanently or for an indefinite time; it is 
 sufficient that there is an intention to carry on business or 
 trade for the present. 
 
 Thirdly, a change of civil domicile can only be effected by 
 complete abandonment in fact of the country where one is 
 domiciled (In Goods of Rafenel, 1863, 32 L.J. P. & M. 203) ; 
 while " a commercial domicile in time of war can, it would 
 " seem, be changed under some circumstances by the intention 
 " to change it, accompanied by steps taken for the purpose of 
 
14 STATEMENT OP THE LAW. 
 
 " effecting a change " (Dicey, Conflict of Laws, 2nd edition, p. 
 744). But in an American case, The " Dos Hermanos," 1817, 2 
 Wheaton's Supreme Court Eeports, 76, it was held that a person 
 does not acquire a neutral domicile for the purpose of protecting 
 his trade against the belligerent claims of his native country 
 if he emigrate from that country, flagrante hello, to a neutral 
 country. It would seem, however, " that the subject of one 
 " country, surprised by a declaration of war in the country 
 "where he has a commercial domicile, ought to have time 
 " allowed him to free himself from his commercial engagements 
 "and effect a removal of his property" (per Matthew, J., in 
 Nigel Gold Mining Company v. Hoade, 1901, 2 K.B. 853-4). 
 Hence a neutral, residing or trading in a belligerent State, 
 preserves his neutrality by leaving such country sine animo 
 revertendi; provided such intention is manifested by overt acts 
 (The "President," 1804, 5 Ch.Rob. 277, 280; The " Baltiea," 
 1855, Spinks' Prize Cas. 264, 267), and his withdrawal is 
 effected either before war or within a short period after its 
 outbreak, unless it is delayed by necessity or compulsion (The 
 "Diana," 1803, 5 Ch.Rob. 60; The " Ocean," 1804, ibid. 90; 
 The " President," 1804, ibid. 277 ; and compare " Jufrouw 
 "Louisa Margaretha," cited by Lord Stowell, 1 Ch.Rob. 203). 
 
 Another and fourth difference may be added to those 
 enumerated above. Commercial domicile may be established 
 without any residence. If a person enters into a house of 
 trade in the enemy's country in time of war, or continues that 
 connection during the war, he does not protect himself by mere 
 residence in a neutral territory. " There is a traffic which 
 " stamps a national character on the individual, independent 
 " of that character which mere personal residence may give 
 " him " (per Lord Stowell in The " VigUantia," 1798, 1 Ch.Rob. 
 15). But trading or carrying on business in a country without 
 residing therein can only affect a person's status during war 
 so far as the trade or business carried on therein is concerned ; 
 his status otherwise will be determined by his acquired civil 
 domicile, or, failing that, by his nationality (see Lord Stowell's 
 judgment in The " Yonge Klassina," 1804, 5 Ch.Rob. 302-3). 
 If a man acts as a merchant in two countries, he is liable to be 
 considered a subject of both with regard to the transactions 
 originating respectively in them. The fact of having no fixed 
 counting-house in the enemy's country is not decisive (ibid.). 
 
DOMICILE AS TEST OF ENEMY CHARACTER. 15 
 
 " No position is more established than this, that, if a person 
 goes into another country and engages in trade and resides 
 ' there, he is, by the law of nations, to be considered as a 
 " merchant of that country " (per Lord Stowell in The " Indian 
 " Chief," 1800, 3 Ch.Rob. 18). In other words, the principle 
 may be more broadly stated thus — National character is deter- 
 mined for all commercial purposes by the domicile of the 
 party. This general rule has been applied by the English 
 Courts to the case of Englishmen domiciled in a neutral 
 country. 
 
 Thus in The " Danaous," 1802, 4 Ch.Eob. 255 n., a 
 British-born subject resident in the English factory at Lisbon 
 was allowed the benefit of a Portuguese character so far as to 
 render his trad© with Holland (then at war with England, 
 but not with Portugal) not impeachable as an illegal trade. 
 
 In Bell v. Eeid, 1813, 1 M. & S. 726, it was generally laid 
 down that a natural-born subject of this country, domiciled in 
 a foreign country in amity with this, may lawfully exercise 
 the privileges of a subject of the country where he is domiciled 
 to trade with another country in hostility with this. There- 
 fore, where a British-born subject, domiciled in America, 
 effected a policy of insurance on ship, freight, and goods, at 
 or from Virginia to any ports in the Baltic, and the ship was 
 captured by a Danish privateer on her way to Elsineur in 
 Denmark (which was in amity with America, but at war 
 with this country), he was held entitled to recover on such 
 policy. 
 
 The general rule has also been applied to the case of 
 Englishmen or neutrals residing or trading in enemy 
 territory. 
 
 In M'Connell v. Hector, 1802, 3 Bos. & P. 113, it was held 
 that a commission of bankruptcy founded on the petition of 
 A, a British subject resident in England, for a debt due to 
 himself and his partners, B and C, also British subjects, but 
 resident and carrying on trade in an enemy's country, could 
 not be supported. (See also O'Mealeyv. Wilson, 1808, 1 Camp. 
 481.) 
 
 In Albretcht v. Sussman, 1813, 2 Ves. & B. 323, a consul of 
 a neutral State, residing and trading in France who was then 
 at war with Great Britain, was deemed to be an alien enemy. 
 
16 STATEMENT OF THE LAW. 
 
 (See also Sorensen v. Reg., 1857, 11 Moo. P.O. 141, a similar 
 case.) 
 
 In the case of a consul, or a person having even higher 
 privileges, residing in an enemy's country, his own national 
 character will he preserved if he does not emhark in mercantile 
 transactions in such country (per Eldon, L.C., in Albretcht v. 
 Sussman, 1813, 2 Ves. & B. 323). By some jurists, e.g., Anson 
 (Law of Contract, 13th edition, p. 129 n.), it is contended 
 that this also applies to the case of British suhjects resident 
 in a hostile State. Nothing short of residence therein for 
 trading purposes, it is said, will make them alien enemies. 
 But the case relied upon, Roberts v. Hardy, 1815, 3 M. & S. 
 533, even as explained in Willison v. Patteson, 1817, 7 Taunt. 
 439, does not go so far as that. In that case it was not shown 
 that a personal or civil domicile had heen established ; and the 
 decision is quite consistent with the theory that either personal 
 or commercial domicile determines national character in time 
 of war, even in the case of British suhects in enemy territory. 
 (See the definition of enemy in Article 3 of the Trading with 
 the Enemy Proclamation, No. 2, dated 9th Septemher, 1914.) 
 
 There are, however, two important qualifications to the 
 rule, that, for all commercial purposes, the domicile of the 
 party is the test of national character. 
 
 Firstly, the rule has not heen applied to the case of alien 
 enemies domiciled in this country. 
 
 Thus in Alcinous v. Nigreu, 1854, 4 E & B. 217, it was held 
 that a person horn in Russia, hut domiciled in England, could 
 not sue on a contract of service which he had performed before 
 the outbreak of war between Russia and this country, on the 
 ground that he was an alien enemy. 
 
 Similarly, in Alciator v. Smith, 1812, 3 Camp. 244, an 
 action by the indorsee against the drawer of a bill of exchange 
 was dismissed on the plea of alien enemy, although the 
 plaintiff, a French lady, had resided for a long time in 
 London. 
 
 The dictum of Lord Lindley in Janson v. Driefontein 
 Consolidated Mines, Limited, 1902, A.C. at p. 505, quoted at 
 the beginning of this section, and that of Lord Reading, C.J., 
 in Porter v. Freundenberg, Kreglinger v. S. Samuel fy Rosenfeld, 
 In re Merten's Patent, 1915, 31 T.L.R. at p. 166, to the effect 
 that " it is clear law that the test is not nationality, but the 
 
DOMICILE AS TEST OF ENEMY CHARACTER. 17 
 
 " place of carrying on the business," must be understood witb 
 a necessary qualification. Civil or trade domicile in this 
 country does not in itself entitle an alien enemy to sue during 
 war in an English Court. Such a person must also have the 
 express or implied licence of the Crown to do so. In Princess 
 of Thurn and Taxis v. Moffttt, 1914, W.N. 379; Volkl v. 
 Governors of the Rotunda Hospital, 1914, 2 I.R. 543 ; and 
 Schulze, Gow $ Co. v. Bank of Scotland, 1914, 2 S.L.T. 455, 
 the enemy plaintiff had not merely resided here, but had also 
 complied with the requirements as to registration under the 
 Aliens Restriction Act, 1914, and the Aliens Restriction Order 
 made thereunder. That Act and Order, when complied with, 
 was held to amount to a licence to sue. 
 
 It has, however, been held by Warrington, J., on reliance 
 of the above dicta, In re Duchess of Sutherland, Bechoff ', David 
 fy Co. v. Buhna and Others, reported in The Times of 19th 
 February, 1915, that an alien enemy carrying on business in 
 allied or neutral territory may sue during the present war. 
 The decision seems only supportable on principle by interpret- 
 ing Article 3 of the Trading with the Enemy Proclamation, 
 No. 2, of 9th September, 1914, as implying a licence to sue in 
 favour of such an alien enemy. 
 
 The second limitation to the principle of determining 
 national character by domicile is that a person must not be 
 found in hostility to his native country. He must do nothing 
 inconsistent with his natural allegiance, e.g., carrying on a 
 contraband trade (Kent, Com., I., p. 77; per Lord Stowell in 
 The "Emmanuel," 1799, 1 Ch.Rob. 296, where freight was 
 refused to a neutral ship carrying on the coasting trade of the 
 enemy) . 
 
 The national character of a corporation is primarily 
 determined by the country under the laws of which it has been 
 incorporated, and not by the nationality of its members 
 (Janson v. Driefontein Consolidated Mines, Lvnvited, 1902, 
 A.C. 484). 
 
 Thus in Amor duct Manufacturing Company, Limited, v. 
 Defries fy Company, 1914, 31 T.L.R. 69, the Divisional Court 
 held that a limited company registered in this country according 
 to English law was entitled to sue during this war although 
 alien enemies held almost all the shares. 
 
18 STATEMENT OF THE LAW. 
 
 In Continental Tyre and Rubber Company (Great Britain), 
 Limited v. Daimler Company, Limited, The Same v. Thomas 
 Tilling, Limited, 1915, W.N. 44, it was decided by the full 
 Court of Appeal (Buckley, L.J., dissenting) that a company 
 incorporated under English law and carrying on business in 
 this country had a right to sue during war, although all its 
 shares except on© were held by alien enemies, the one share 
 being registered in the name of the secretary, a German, who 
 had been naturalised here. 
 
 A supplementary incorporation in another country will 
 not effect a change in nationality. Thus in Nigel Gold Mining 
 Company v. Hoade, 1901, 2 K.B. i849, where a company 
 registered in Natal, whose only property was a gold mine in 
 the Transvaal, obtained a supplementary incorporation in the 
 latter country in order to enable it to sue and be sued there in 
 its corporate name, it was held to be a British company, and 
 to be entitled to recover on a policy of insurance for a loss 
 occurring during the South African war. 
 
 In Orenstein fy Koppel v. Egyptian Phosphate Company, 
 Limited, 1914, 2 S.L.T. 293, the pursuers were a company 
 incorporated in Germany, but were also registered under the 
 Companies (Consolidation) Act, 1908, as a foreign company 
 trading in this country, and having a registered London office ; 
 but all their work was done in Germany. The First Division 
 of the Scottish Court of Session held that the supplementary 
 registration here did not give the pursuers a title to sue during 
 the present war. 
 
 It would appear, however, that a corporation may have a 
 commercial domicile in the country where it carries on business, 
 and thus acquire an enemy character by continuing to conduct 
 such business therein after the outbreak of war between that 
 country and Great Britain (Nigel Gold Mining Company v. 
 Hoade, 1901, 2 K.B. 849 ; Lord Lindley's judgment in Janson 
 v. Driefontein Consolidated Mines, Limited, 1902, A.C. 505 ; 
 Netherlands South African Railway Company v. Fischer, 1901, 
 18 T.L.R. 116; see also De Beers Consolidated Mines, Limited 
 v. Howe, 1906, A.C. 455, where it was held that a foreign 
 corporation could " reside " in this country within the meaning 
 of the Income Tax Act, 1853 ; but see the definition of enemy 
 in Article 3 of the Trading with the Enemy Proclamation, 
 No. 2, dated 9th September, 1914). 
 
LEGAL EIGHTS OF BELLIGERENTS. 19 
 
 Domicile in a territory in the military occupation of the 
 enemy, especially if such occupation be temporary, does not, 
 at common law, impress a person with enemy character 
 (Hagedorn v. Bell, 1813, 1 M. & S. 450; see also Be Jagerv. 
 Attorney-General of Natal, 1907, A.C. 326). The territory 
 must be under the full sovereignty of the enemy. But by the 
 Trading with the Enemy (Occupied Territory) Proclamation, 
 of 16th February, 1915, territory in the effective military 
 occupation of the enemy is, during the present war, enemy 
 territory, and territory in the effective military occupation of 
 Great Britain or her allies is friendly territory. 
 
 7. The Hague Convention on the Legal Rights of 
 Belligerents. — Article 23 (h) of The Hague Convention of 
 1907, concerning the Laws and Customs of War on Land, 
 declares that it is especially forbidden "to declare extin- 
 " guished, suspended, or unenforceable in a Court of law the 
 " rights and rights of action of the nationals of the adverse 
 "party." According to the view taken by the German 
 Weissbuch, which appears to have been the only view expressed 
 during the discussions at The Hague, this provision would 
 admit an alien enemy to the position of a persona standi in 
 judicio, and would thus reverse the rule of the English and 
 American common law that contracts entered into by British 
 or American subjects with subjects of a hostile State are 
 suspended or extinguished according to their nature. But 
 the English and American interpretation of the Article is that 
 it only applies to commanding generals and their authorities 
 in the theatre of belligerent activity (The Hague Peace 
 Conferences, by A. Pearce Higgins, pp. 263-265), the context 
 referring solely to this. The British view was publicly stated 
 by the Foreign Office as long ago as 27th March, 1911, in a 
 letter addressed to Professor Oppenheim of Cambridge in answer 
 to an inquiry made by him on the preceding 28th February, 
 in reference to opinions expressed by certain foreign jurists. 
 Germany must have known the British view. On the eve of 
 the outbreak of the present war Germany sought to make an 
 arrangement with Great Britain as to the continued enforce- 
 ability of German claims in British Courts. But no such 
 agreement was effected. The provision of The Hague 
 
20 STATEMENT OF THE LAW. 
 
 Convention does not therefore affect the ancient rule of the 
 English common law that an alien enemy, unless with special 
 licence or authorisation of the Crown, has no right to sue in 
 the King's Courts during war. (See the judgment of Lord 
 Reading, C.J., in Porter v. Freundenherg, Kreglinger v. S. 
 Samuel 8f Rosenfeld, In re Merten's Patent, 1915, 31 T.L.R. 
 at p. 168.) 
 
 8. Contracts Made with Alien Enemies During the 
 Existence of War. — The general rule is that contracts made 
 with alien enemies during the existence of war, and particu- 
 larly (if not exclusively) transactions which amount to trading 
 with the enemy, are illegal and void. 
 
 " The law is clear that one of the immediate consequences 
 " of the commencement of hostilities is the interdiction of all 
 " commercial intercourse between the subjects of the States at 
 " war without the licence of their respective Governments. 
 " . . . The prohibition applies to all persons domiciled 
 " within the hostile State. If a war breaks out, a foreign 
 " merchant carrying on trade in a belligerent country has a 
 " reasonable time allowed him for transferring himself and 
 " property to another country. If he does not avail himself 
 " of the opportunity, he is treated, for the purposes of the 
 "trade, as a subject of the Power under whose dominion he 
 " carries it on, and as an enemy of those with whom that 
 " Power is at war " (per De Yilliers, C.J., in The " Mashona," 
 1900, 17 Buchanan, 135). The Trading with the Enemy 
 Proclamation, No. 2, dated 9th September, 1914, applies such 
 prohibition during the present war to any one who is for the 
 time being in British territory (Article 5). 
 
 The authorities are numerous, but the following may serve 
 as examples : — 
 
 In Potts v. Bell, 1800, 8 T.R. 548, it was expressly laid 
 down that trading with an enemy, without the King's licence, 
 is illegal. In that case it was held to be illegal for a subject 
 in time of war, without the King's licence, to bring, even in 
 a neutral ship, goods from an emeny's port which were 
 purchased by his agent, resident in the enemy's country, 
 after the commencement of hostilities, although it did not 
 appear that they were purchased from an enemy. 
 
CONTRACTS MADE DURING WAR. 21 
 
 In Willison v. Patteson, 1817, 7 Taunt. 439, it was declared 
 that no contract made with an alien enemy in time of war can 
 be enforced in a Court of British judicature, although the 
 plaintiff do not sue until the return of peace, and although 
 such plaintiff be an English-born subject, resident in the 
 hostile country. The facts were these: The defendant, a 
 British subject resident in England, having in his hands the 
 proceeds of A, an alien enemy, A drew a bill on the defendant, 
 payable to his own order, and indorsed it to the plaintiff, an 
 English-born subject resident in the hostile territory, who 
 sued on the bill after peace was restored. It was held that 
 he could not recover. 
 
 For other English authorities, reference may be made to 
 Brandon v. Neslitt, 1794, 6 T.R. 23 ; to the note at the end of 
 Clementson v. Blessig, 1855, 11 Exch. 135,; and to the judg- 
 ments in Jan-son v. Driefontein Consolidated Mines, Limited, 
 1902, A.C. 484. The following is a Scottish case: — 
 
 In Johnston 8f Wright v. Goldsmid, 15th February, 1809, 
 F.C., a set of bills was drawn by a foreigner on a Leith firm 
 before a declaration of war. They were accepted after the 
 declaration, but before it was known to the drawee. They 
 were subsequently indorsed to indorsees, who took them in the 
 knowledge of the declaration of war. A second set of bills 
 drawn on the Leith firm was indorsed, unaccepted, to the same 
 indorsee by an alien enemy, and was taken by the indorsees 
 in the knowledge that war had been declared. It was held 
 that the indorsees, having received the bills in the knowledge 
 that they were enemy property, were not entitled to demand 
 payment from the Leith firm. 
 
 There are certain exceptions to this general rule of law. 
 
 (1) Contracts entered into with alien enemies in time of 
 war are valid in favour of and enforceable by a 
 person who has an express or implied licence from 
 th© Crown to make them (The "Hoop," 1799, 1 
 Ch.Rob. 196 ; Vandych v. Whitmore, 1801, 1 East, 
 475; see also section 10, infra). But if the other 
 party to the contract has not such a licence, the 
 contract may, under certain circumstances, be 
 impeachable quoad him on the ground of his being 
 an alien enemy. 
 
22 
 
 STATEMENT OF THE LAW. 
 
 (2) Ransom contracts were formerly held valid. Thus, 
 
 in Ricord v. Bettenham, 1765, 3 Burr. 1734, an 
 action upon a ransom bill given in time of war was 
 sustained in time of peace. But no such action 
 was maintainable in time of war (Anthon v. Fisher, 
 Dougl. 649 n.). In Furtado v. Rogers, 1802, 3 
 Bos. & P. 191, it was observed by Lord Alvanley 
 that " no action was ever maintainable upon a 
 " ransom bill in a Court of common law until the 
 " case of Ricord v. Bettenham, 3 Burr. 1734 ; 1 Bl. 
 " 563 " ; and that he had " the authority of Sir 
 " William Scott for saying that in the Admiralty 
 " Court the suit was always instituted by the 
 "hostage. The case of Ricord v. Bettenham, how- 
 " ever, tended to show that such an action might 
 " be maintained in the Courts of common law at 
 " the suit of an alien enemy. In consequence of 
 " this a similar action was brought in Cornu v. 
 " Blackburn, Dougl. 641, and after argument the 
 " Court of King's Bench held that it might be 
 " sustained. But in Anthon v. Fisher, Dougl. 649, 
 " 650, in notis, the contrary was expressly deter- 
 " mined upon a writ of error in the Exchequer 
 " Chamber." 
 
 By a statute in 1782, 22 Geo. III. c. 25, ransom contracts 
 were made illegal and void. Under section 45 of the Naval 
 Prize Act, 1864 (27 & 28 Vict. c. 25), however, the Crown may, 
 by Order in Council, still allow British subjects to ransom 
 their property. A contract of ransom in violation of the 
 regulations of such Order renders the contractor liable to a 
 penalty not exceeding £500. 
 
 (3) Contracts of necessity entered into during hostilities 
 
 by prisoners of war are valid, and may be sued upon 
 after peace has been declared. 
 
 Thus bills of exchange drawn by a prisoner of war for his 
 own subsistence constitute an exception to the general rule by 
 which all contracts made between subjects of belligerent States 
 during the existence of war are void (Nelson v. Trigg, 3 Tenn. 
 Cas. 733 — an American decision). 
 
CONTEACTS MADE DUEING WAE. 23 
 
 In Antoine v. Morshead, 1815, 6 Taunt. 237, a bill of 
 exchange was drawn on the defendant in England by his 
 father, a British subject detained prisoner in France during 
 war. It was payable to other British subjects also detained 
 there. It was afterwards indorsed to the plaintiff, a French 
 subject, who was a banker at Verdun, and accepted by the 
 defendant. The plaintiff was held entitled to recover on the 
 bill after the declaration of peace. Gibbs, C.J., observed— 
 This is no bill of exchange drawn in favour of an alien 
 enemy, but by one subject in favour of another subject, 
 upon a subject resident here, the two first being both detained 
 prisoners in France; the drawer might legally draw such a 
 bill for his subsistence. After the bill is so drawn, the payee 
 indorses it to the plaintiff, then an alien enemy. How was 
 he to avail himself of the bill, except by negotiating it, and 
 to whom could he negotiate it, except to the inhabitants of 
 that country in which he resided ? " 
 In Willison v. Patteson, 1817, 7 Taunt. 439, Gibbs, C.J., 
 again referred to the above case as an exception to the general 
 rule invalidating contracts made during war with alien 
 enemies, because founded on necessity. This is also the only 
 possible way of reconciling the case of Daubuz v. Morshead, 
 1815, 6 Taunt. 332, with the general principle that a party 
 cannot sue in trust for an alien enemy (Brandon v. Nesbitt, 
 1794, 6 T.E. 23). There a bill of exchange had been drawn 
 by a prisoner of war in France, and accepted by his son in 
 England, the defendant, and indorsed to the plaintiff, who, 
 though only a trustee for an alien enemy, was held entitled to 
 recover on the bill. 
 
 The decision in Sparenburgh v. Bannatyne, 1797, 1 Bos. & 
 P. 163, might be explained in the same way, although it was 
 put by the judges on a different ground. In this case a native 
 of a neutral State was taken in an act of hostility on board an 
 enemy's ship, and brought to England as a prisoner of war. It 
 was held that he was not disabled from suing, while in 
 confinement, for wages for working a ship home, a service 
 which he had rendered at the request of an officer of the Crown. 
 The judges did not regard him as an alien enemy, a view 
 which, in all probability, would not now be adopted. But the 
 peculiar circumstances of the case explain not only why the 
 
24 STATEMENT OF THE LAW. 
 
 contract was held valid, but also why it was held enforceable 
 during hostilities. The plaintiff had in fact what could be 
 considered to amount to a licence from the Crown to make the 
 contract. (See also Maria v. Hall, 2 Bos. & P. 236; Rex v. 
 Depardo, 1 Taunt. 26 ; Bazett v. Meyer, 4 Taunt. 324, 834.) 
 
 The three exceptions enumerated above seem to be well 
 established in law. But possible additional exceptions have 
 either been, or may here be, suggested. 
 
 (4) The principle that enemy character is determined by 
 domicile — a doctrine applied, as was pointed out 
 in section 6, supra, to the case of British subjects 
 who have a^ civil or commercial domicile in a neutral 
 country, and also to the case of British subjects or 
 neutrals residing or trading in enemy territory — 
 would logically lead to the conclusion that alien 
 enemies who have a civil or commercial domicile in 
 a neutral State or in this country, should not be 
 deemed to be such. Indeed, some judicial observa- 
 tions, e.g., that of Lord Lindley in Janson v. 
 Driefontein Consolidated Gold Mines, Limited, 1902, 
 A.C. 505, and of Lord Reading, C.J., in Porter v. 
 Freundenberg, Kreglinger v. S. Samuel 8f Rosenfeld, 
 In re Merten's Patent, 1915, 31 T.L.R. at p. 166, 
 might lead one to adopt this view, which is taken 
 by Dr. Phillipson (Effect of War on Contracts, 
 p. 36), but the English decisions do not go quite 
 so far as this. 
 
 No case seems to have arisen as regards a contract made in 
 time of war with an alien enemy residing or trading in a 
 neutral country. But In re Duchess of Sutherland, Bechoff, 
 David 8f Co. v. Bubna and Others (reported in The Times of 
 19th February, 1915) decides that the subject of an enemy 
 State carrying on business in allied or neutral territory is not 
 an alien enemy; and contracts with such a person are not 
 wholly forbidden by the Trading with the Enemy Proclama- 
 tion, No. 2, of 9th September, 1914. 
 
 Article 6 of that Proclamation provides that where an 
 enemy has a branch locally situated in British, allied, or 
 neutral territory, not being neutral territory in Europe, trans- 
 
CONTEACTS MADE DUEING WAE. 25 
 
 actions by and with such branch shall not be treated as 
 transactions by or with an enemy; but where such branch 
 carries on the business of insurance or re-insurance, of whatever 
 nature, transactions by or with such branch are deemed 
 transactions by or with an enemy (Article 5 of the Proclamation 
 relating to Trading with the Enemy, dated 8th October, 1914) . 
 A mere agency is not a branch (Orenstein fy Koppel v. Egyptian 
 Phosphate Company, 1914, 2 S.L.T. 293). Contracts made 
 during the present war with an enemy's branch business estab- 
 lishment in neutral territory in Europe are therefore illegal 
 and void. Further, the Trading with the Enemy Proclamation 
 of 7th January, 1915, provides that transactions thereafter 
 entered into by persons, firms, or companies resident, carrying 
 on business, or being in the United Kingdom, in respect of 
 
 (a) banking business with a branch situated outside the United 
 Kingdom of an enemy person, firm, or company, or (5) any 
 description of business with a branch situated outside the 
 United Kingdom of an enemy bank, are to be deemed trans- 
 actions with an enemy. But the extent of the validity of 
 contracts made with an enemy residing or trading in allied or 
 neutral territory, and having no place of business in enemy 
 territory, or with the branch of an enemy situated in neutral 
 territory outside of Europe, is a matter of doubt. Such 
 contracts, unless they are (a) of insurance or re-insurance, or 
 
 (b) banking, are not illegal in the sense of being criminal. 
 They are probably valid for all purposes, even that of entitling 
 an alien enemy to sue upon them during this war. The case of 
 In re Duehess of Sutherland, Bechoff, David Sf Co. v. Bubna and 
 Others (reported in The Times of 19th February, 1915), supports 
 such a view. 
 
 The Proclamation does not prohibit transactions during this 
 war with an enemy resident or trading in British territory 
 (Article 3, 6), except transactions of insurance or re-insurance 
 (Trading with the Enemy Proclamation of 8th October, 1914, 
 Article 5), and banking transactions outside the United King- 
 dom (Trading with the Enemy Proclamation of 7th January, 
 1915, Article 1). Such transactions are not then illegal. But 
 the same question arises as to the extent of their validity. In 
 this connection several English cases fall to be considered. 
 
 In Usparicha v. Noble, 1815, 13 East, 332, a native 
 
26 STATEMENT OF THE LAW. 
 
 Spaniard, domiciled here in time of war between this country 
 and Spain, was held entitled to sue upon a policy of insurance 
 of goods shipped by him in a neutral vessel to certain ports in 
 Spain. But he had been licensed in general terms by the 
 Crown to carry on this trade. 
 
 In Aleinous v. Nigreu, 1854, 4 E. & B. 217, the contract had 
 not only been concluded with, but also performed by, an alien 
 enemy domiciled here before the outbreak of hostilities. Yet 
 it was held to be unenforceable by him during the existence 
 of the war. 
 
 In Alciator v. Smith, 1812, 3 Camp. 244, the plaintiff, an 
 alien enemy, had been long resident in this country, had 
 obtained a licence under an Act which had expired, and had 
 registered her abode at a police office in conformity with 
 another statute. Yet she was held not entitled to sue, even 
 although she had obtained a new licence after her cause was 
 at issue. 
 
 From these cases it would appear that at common law if a 
 contract is made in time of war with an alien enemy residing 
 or trading in this country, such contract, however otherwise 
 valid it may be, cannot be enforced by a suit at the instance of 
 the alien enemy during hostilities, unless he has the express 
 or implied licence of the Crown to reside or trade here. It 
 may at once be said here — what is more fully stated in section 
 10, infra — that the Aliens Restriction Act, 1914, and Orders 
 in Council issued thereunder, have been held to amount to an 
 implied licence to this effect if their requirements are complied 
 with. 
 
 The case of De WaM v. Braune, 1856, 11 Exch. 178, where 
 the English wife of an alien enemy who lived here separately 
 from her husband, was barred from suing on a breach of 
 contract of sale of a school, need no longer present difficulties. 
 The status of a married woman has changed since then, and 
 now a woman married to an alien can make a declaration that 
 she desires to retain British nationality, and thereupon she 
 will be deemed to remain a British subject (British Nationality 
 and Status of Aliens Act, 1914, 4 & 5 Geo. V. c. 17, section 10, 
 which came into operation on 1st January, 1915). But the 
 English wife of an unregistered alien enemy here will not be 
 able to sue upon her contracts in time of war, if she does not 
 make such declaration. 
 
COMPACTS MADE DURING WAR. 27 
 
 Contracts falling within this fourth exceptional class, if 
 otherwise valid, are enforceahle by British subjects even at 
 common law (Robinson 8r Co. v. Continental Insurance Company 
 of Mannheim, 1914, W.N. 393; Porter v. Freundenberg, 
 Kreglinger v. S. Samuel $ Rosenfeld, In re Merten's Patent, 
 1915, 31 T.L.R. 162). The Supreme Court of the United 
 States, in the case of McVeigh v. United States, 11 Wall, 259, 
 " after citing Albretcht v. Sussman, 2 Ves & B. 324, Bacon's 
 Abridgment and Story's Equity PL, section 53, for authority, 
 says, ' Whatever may be the extent of the disability of an 
 ' alien enemy to sue in the Courts of the hostile country, it is 
 'clear that he is liable to be sued'" (J. B. Scott's Cases on 
 International Law, p. 545, note). In Dorsey v. Kyle, 1869, 
 96 American Decisions, 617, it was also declared that an alien 
 enemy may be sued at law though he may not sue, as neither 
 reason nor policy forbids judicial proceedings against an alien 
 enemy in favour of a friendly citizen. Sir Frederick Pollock 
 seems to be of the same opinion (Principles of Contract, 8th 
 edition, p. 100), and points out that even alien enemies could 
 enforce such contracts after the war has ceased. It is also 
 possible that contracts made with alien enemies, resident or 
 trading in this country but unregistered, are enforceable by 
 them during the continuance of war by such modes of self- 
 redress as lien or retention and appropriation of payments. 
 
 The Trading with the Enemy Proclamation, No. 2, of 9th 
 September, 1914, appears to make such contracts valid in 
 favour of, and enforceable by, British subjects (Articles 3, 6, 
 7) . It may further be noted that Article 7 of that Proclamation 
 provides that nothing in the Proclamation shall be deemed to 
 prohibit payments by or on account of enemies to persons 
 resident, carrying on business, or being in the British 
 dominions, if such payments arise out of transactions before 
 the outbreak of war or otherwise permitted. This Article gives 
 express permission to persons resident or carrying on business 
 in British territory to receive payment from an enemy in the 
 sense of the Proclamation in two cases — (1) in the case of past 
 transactions, and (2) in the case of transactions otherwise 
 permitted, and including a transaction properly falling within 
 Article 6. Payment arising out of a transaction is therefore 
 not a transaction in the sense of Article 6 (Orenstein fy Koppel 
 v. Egyptian Phosphate Company, 1914, 2 S.L.T. 293). 
 
28 STATEMENT OF THE LAW. 
 
 (5) The doctrine of non-intercourse between the residents 
 in belligerent States during war has only so far 
 been applied to commercial or financial contracts. 
 The language of the judges in some cases is wide 
 enough to cover every kind of contract, but must, 
 of course, be interpreted by reference to the actual 
 facts of these cases. It is also true that the Trading 
 with the Enemy Proclamation, No. 2, of 9th 
 September, 1914, which has statutory force under 
 the Trading with the Enemy Act, 1914, 4 & 5 Geo. 
 V. c. 87, section 1 (2), warns all persons resident, 
 carrying on business, or being in the British 
 dominions " not to enter into any commercial, 
 " financial, or other contract or obligation with or 
 " for the benefit of an enemy," i.e., any one residing 
 or trading in enemy territory (Articles 3, 5, (9)). 
 But it might be argued that the words " or other 
 " contract or obligation " must be interpreted by the 
 ejusdem generis rule, especially as the proclamation 
 is of a penal nature. If so, a contract not of a 
 commercial or financial nature, e.g., a promise of 
 marriage, might be valid in favour of, and action- 
 able at the instance of, a British subject ; and it 
 might even be actionable at the instance of an alien 
 enemy on the restoration of peace. However this 
 may be, a British subject would incur technical 
 difficulties in pursuing a remedy in such cases 
 against an alien enemy divided from him by " the 
 " line of war " by reason of the difficulty in serving 
 process, &c, a difficulty which, as we shall see later, 
 has not been entirely removed. 
 
 The language of Gray, J., in the American case of Kershaw 
 v. Kelsey, 1869, 97 American Decisions, 124, suggests a possible 
 limitation of the above nature to the rule of non-intercourse. 
 In delivering judgment he stated, as a result of an exhaustive 
 review of the principal English and American authorities, that 
 " the law of nations, as judicially declared, prohibits all 
 " intercourse between citizens of the two belligerents which is 
 " inconsistent with the state of war between their countries ; 
 " and this includes any act of voluntary submission to the 
 
TRADING WITH THE ENEMY. 29 
 
 enemy or receiving his protection, as well as any act or 
 contract which tends to increase his resources, and every kind 
 of trading or commercial intercourse, whether by transmission 
 " of goods or money, or by orders for the delivery of either 
 " between the two countries, directly or indirectly, or through 
 ' the intervention of third persons or partnerships, or by 
 " contracts in any form looking to or involving such 
 " transmission, or by insurances upon trade by or with the 
 " enemy. Beyond the principle of these cases, the prohibition 
 " has not been carried by judicial decision. . . . At this age 
 
 ' of the world, when all the tendencies of the law of nations are 
 " to exempt indimiduals and private contracts from, injury or 
 " restraint in consequence of war between their Governments, we 
 
 ' are not disposed to declare such contracts unlawful as have not 
 " been heretofore adjudged to be inconsistent with a state of war." 
 But the opinion of Sir Samuel Evans, President of the Prize 
 Court, is that war makes illegal all intercourse between the 
 citizens of the belligerents, even intercourse which cannot fitly 
 be described as commercial (The " Panariellos," reported in 
 The Times of 23rd March, 1915). 
 
 9. Teading with the Enemy. — Trading with the enemy is 
 a crime at common law (1 Hawk. P.C. c. 22), which in some 
 cases may amount to high treason (Statute of Treasons, 1351, 
 25 Edw. III. c. 2), e.g., contracting to raise a loan for the 
 enemy (see Proclamation hereon of 5th August, 1914). 
 
 The old common law distinguished trading with the enemy 
 from contracting with the enemy (The "Anna Catharina," 
 1802, 4 Ch.Eob. 107). Trading involved the supplying goods 
 to, or obtaining goods from, an enemy country. But this 
 distinction is not observed in the recent Acts or Proclamations 
 relating to trading with the enemy. 
 
 Heavy penalties are imposed by the Trading with the Enemy 
 Act, 1914, 4 & 5 Geo. V. c. 87, upon any person who during 
 the present war trades or has, since 4th August, 1914, traded 
 with the enemy. Such person is guilty of a misdemeanour, 
 and, on summary conviction, is liable to imprisonment, with 
 or without hard labour, for a term not exceeding twelve 
 months, or to a fine not exceeding £500, or to both such 
 imprisonment and fine. If convicted on indictment, he is 
 
30 STATEMENT OF THE LAW. 
 
 liable to penal servitude for a term not exceeding seven or 
 less than three years, or to imprisonment, with or without 
 hard labour, for a term not exceeding two years, or to a fine, 
 or to both such penal servitude or imprisonment and fine. The 
 Court may in any case order that any goods or money in respect 
 of which the offence has been committed be forfeited (see 
 section 1 (1)). 
 
 For the purposes of this Act a person is deemed to have 
 traded with the enemy if he has entered into any transaction 
 or done any act which was, at the time of such transaction or 
 act, prohibited by or under any Proclamation issued by His 
 Majesty dealing with trading with the enemy for the time 
 being in force, or which at common law or by statute constitutes 
 an offence of trading with the enemy. Any transaction or act 
 permitted by or under any such Proclamation is not deemed 
 trading with the enemy (see section 1 (2)). 
 
 The Trading with the Enemy Proclamation, No. 2, dated 
 9th September, 1914, as amended by a later Proclamation, 
 dated i8th October, 1914, gives a comprehensive account of what 
 constitutes trading with the enemy. 
 
 The expression " enemy " in the Proclamation means any 
 person or body of persons, of whatever nationality, resident or 
 carrying on business in the enemy country, but does not include 
 persons of enemy nationality who are neither resident nor 
 carrying on business in the enemy country (Article 3). But 
 where an enemy has a branch locally situated in neutral 
 territory in Europe, transactions with such branch are treated 
 as transactions by or with an enemy (Article 6). And where 
 the enemy has a branch locally situated in British, allied, or 
 neutral territory, which carries on the business of insurance 
 or re-insurance of whatever nature, transactions by or with 
 such branch in respect of the business of insurance or re-insur- 
 ance are considered as transactions by or with an enemy 
 (Article 5 of the Proclamation relating to Trading with the 
 Enemy, dated 8th October, 1914). This latter Proclamation 
 is not retrospective (W. L. Ingle, Limited v. Mannheim Insur- 
 ance Company, 1914, W.N. 406). The Trading with the 
 Enemy Proclamation of 7th January, 1915, further provides 
 that transactions thereafter entered into by persons, firms, or 
 companies resident, carrying on business, or being in the 
 
TEADING WITH THE ENEMY. 31 
 
 United Kingdom, (a) in respect of banking business with a 
 branch situated outside the United Kingdom of an enemy 
 person, firm, or company, or (&) in respect of any description 
 of business with a branch situated outside the United Kingdom 
 of an enemy bank, are to be deemed transactions with an 
 enemy. In the case of incorporated bodies, enemy character 
 attaches only to those incorporated in an enemy country 
 (Article 3). 
 
 " Enemy country " means the territories of the German 
 Empire and of the dual monarchy of Austria-Hungary, together 
 with all the colonies and dependencies thereof (Article 2). It 
 includes also the dominions of the Sultan of Turkey other than 
 Egypt, Cyprus, and any territory in the occupation of Great 
 Britain or her allies (Article 3 of the Proclamation of 5th 
 November, 1914, extending to the war with Turkey the 
 Proclamations and Orders in Council in force relating to the 
 war) . But enemy territory in the effective military occupation 
 of Great Britain or her allies, e.g., Togoland, is friendly 
 territory, and any territory in the effective military occupation 
 of the enemy is enemy territory (The Trading with the Enemy 
 (Occupied Territory) Proclamation, of 16th February, 1915). 
 
 In Article 5 any person resident, carrying on business, or 
 being in the British dominions is warned — 
 
 (1) Not to pay any sum of money to or for the benefit of 
 
 an enemy. 
 
 (2) Not to compromise or give security for the payment 
 
 of any debt or other sum of money with or for the 
 benefit of an enemy. 
 
 (3) Not to act on behalf of an enemy in drawing, accept- 
 
 ing, paying, presenting for acceptance or payment, 
 negotiating, or otherwise dealing with any negoti- 
 able instrument. 
 
 (4) Not to accept, pay, or otherwise deal with any 
 
 negotiable instrument which is held by or on behalf 
 of an enemy, provided that this prohibition shall 
 not be deemed to be infringed by any person who 
 has no reasonable ground for believing that the 
 instrument is held by or on behalf of an enemy. 
 
32 STATEMENT OE THE LAW. 
 
 (5) Not to enter into any new transaction, or complete any 
 
 transaction already entered into with an enemy in 
 any stocks, shares, or other securities. 
 
 (6) Not to make or enter into any new marine, life, fire, 
 
 or other policy or contract of insurance (including 
 re-insurance) with or for the benefit of an enemy, 
 nor to accept, or give effect to any insurance of, 
 any risk arising under any policy or contract of 
 insurance (including re-insurance) made or entered 
 into with or for the benefit of an enemy before the 
 outbreak of war; and in particular as regards 
 treaties or contracts of re-insurance current at the 
 outbreak of war to which an enemy is a party or in 
 which an enemy is interested not to cede to the 
 enemy or to accept from the enemy under any such 
 treaty or contract any risk arising under any policy 
 or contract of insurance (including re-insurance) 
 made or entered into after the outbreak of war, or 
 any share in any such risk (Article 1 of the 
 Proclamation of 8th October, 1914) ; 
 
 (7) Not directly or indirectly to supply to or for the use 
 
 or benefit of, or obtain from, an enemy country or 
 an enemy any goods, wares, or merchandise, nor 
 directly or indirectly to supply to or for the use 
 or benefit of, or obtain from any person any goods, 
 wares, or merchandise for or by way of transmission 
 to or from an enemy country or an enemy, nor 
 directly or indirectly to trade in or carry any goods, 
 wares, or merchandise destined for or coming from 
 an enemy country or an enemy. 
 
 (8) Not to permit any British ship to leave for, enter, or 
 
 communicate with any port or place in an enemy 
 country. 
 
 (9) Not to enter into any commercial, financial, or other 
 
 contract or obligation with or for the benefit of an 
 enemy. 
 
 (10) Not to enter into any transactions with an enemy 
 
 if and when they are prohibited by an Order in 
 
TRADING WITH THE ENEMY. 33 
 
 Council made and published on the recommendation 
 of a Secretary of State, even though they would 
 otherwise he permitted by law or by this or any 
 other Proclamation. 
 
 The Trading with the Enemy Proclamation of 26th October, 
 1914, prohibits the importation into the United Kingdom of 
 all sugar. But this prohibition does not extend to sugar (not 
 being raw or refined sugar made or produced by an enemy or 
 in an enemy country, or refined sugar made or produced from 
 raw sugar made or produced by an enemy or in an enemy 
 country), which is (a) cleared from the port of shipment to this 
 country on or before 26th October, 1914, or (b) imported under 
 contract made prior to 4th August, 1914. 
 
 These prohibitions call for a few comments. 
 
 There have been several cases on the first prohibition. 
 R. v. Kupfer, 1915, 31 T.L.E. 223, decides that it is a 
 crime during the present war to pay a debt due from 
 an alien enemy to a neutral. But a transaction which 
 as a whole diverts a balance and business from Germany to 
 England, and which enables an Englishman to collect in 
 England and out of Germany a number of debts, is not a 
 trading with or for the benefit of an enemy (Wilson v. Ragosine 
 8f Co., Limited, reported in The Times of 25th February, 
 1915) . Similarly, no crime is committed by making a payment 
 to a naturalised British subject resident here, which merely 
 improves the position of an enemy by giving him further 
 security that he will ultimately recover the money, and without 
 an intention that the enemy, while such, shall benefit by it as 
 a payment (Schmidt v. Van Der Veen, 1915, 31 T.L.E. 214). 
 
 Prohibition 4 contains an exception to the rule, " Ignorantia 
 "juris non excusat," an exception recognised in Scottish law 
 (Johnston fy Wright v. Goldsmid, 15th February, 1809, E.C.). 
 That rule is strictly applied. The determining factor in 
 trading with the enemy is the fact of actual intercourse; 
 innocence of intention is no answer (The " Panariellos,'' reported 
 in The Times of 23rd March, 1915). Innocent intention, 
 however, may be a factor in determining whether in fact there 
 was a trading with the enemy (The " Mereurius," 1 Ch.Eob. 
 288) . But ignorance of the existence of war seems immaterial 
 
34 STATEMENT OF THE LAW. 
 
 {The "Perkeo," 1914, 137 L.T. 452). Again, if it is clearly 
 proved that goods were purchased under an order given before 
 the commencement of war, and that it was beyond the owner's 
 power after using due diligence to countermand the order in 
 time to prevent the shipment, he will not be guilty of trading 
 with the enemy ( The " Juffrow Catharina," 5 Ch.Eob. 141 ; 
 The "Fortuna," 1 Ch.Eob. 211; The "Freedem," 1 Ch.Eob. 
 212). 
 
 The Trading with the Enemy Amendment Act, 1914 (5 Geo. 
 V. c. 12), provides that no person shall by virtue of any transfer 
 of a bill of exchange or promissory note made or to be made 
 in his favour by or on behalf of an enemy, whether for valuable 
 consideration or otherwise, have any rights or remedies against 
 any party to the instrument unless he proves that the transfer 
 was made before the commencement of the present war, and 
 any party to the instrument who knowingly discharges the 
 instrument shall be deemed to be guilty of trading with the 
 enemy within the Trading with the Enemy Act, 1914 (4 & 5 
 Geo. Y., c. 87). But this provision does not apply where the 
 transferee, or some subsequent holder of the instrument, proves 
 that the transfer was made before the 19th November, 1914, 
 in good faith and for valuable consideration (section 6 (2)). 
 
 The sixth prohibition is declaratory of the common law 
 (section 12 (3), infra). 
 
 The seventh and eighth prohibitions include the doctrine 
 of continuous voyage — " When an adventure includes the 
 ' carriage of goods to a neutral port, and thence to an ulterior 
 ' destination, the doctrine of ' continuous voyage ' consists in 
 ' treating for certain purposes the whole journey as one 
 'transportation, with the consequences which would have 
 ' attached had there been no interposition of the neutral port. 
 ' The doctrine is only applicable when the whole transportation 
 ' is made in pursuance of a single mercantile transaction pre- 
 ' conceived from the outset. Thus it will not be applied where 
 'the evidence goes no further than to show that the goods 
 ' were sent to the neutral port in the hopes of finding a market 
 ' there for delivery elsewhere " (Correspondence and Documents 
 respecting the International Naval Conference, held in 
 London, December, 1908, to February, 1909, presented to both 
 Houses of Parliament by command of His Majesty, March, 
 1009, pp. 7, 8). 
 
TEADING WITH THE ENEMY. 35 
 
 The " Mashona," 1900, 17 Buchanan, 135, was a case of a 
 transaction which is forbidden by the seventh prohibition. In 
 that case the Supreme Court at the Cape condemned, on the 
 ground of trading with the enemy, the cargo of English 
 merchants destined for the South African Republic, with which 
 Stat© this country was at war at the time of the shipment. 
 The goods had been shipped at New York for conveyance to 
 Delagoa Bay, and were in part consigned to various neutrals 
 resident in the Transvaal. The sole question at issue was 
 whether at the time of her capture at Port Elizabeth the 
 " Mashona," which was admitted to be a British ship, was 
 engaged in carrying cargo for and trading with the Queen's 
 enemies. 
 
 A British ship will therefore be deemed to be trading with 
 the enemy — 
 
 " (1) If she has commenced her voyage from a hostile 
 " port. 
 
 " (2) If during her voyage she has touched at a hostile 
 " port as a port of call, whether she has actually 
 " taken cargo on board thence or not. 
 
 " (3) If she commenced her voyage having a hostile port, 
 " either certainly or according to contingencies, for 
 " her port of destination or port of call, unless, 
 " previous to the time she is met with, her master 
 "has definitely abandoned the intention to go to a 
 " hostile port. 
 
 " (4) If her real destination is hostile, though her 
 " immediate and apparent port of destination is 
 "neutral" (T. E. Holland's Manual of Naval Prize 
 Law, p. 14). 
 
 Where a British shipowner carries goods destined for an 
 alien enemy without the knowledge and consent of the other 
 shippers, he will be liable to them for damages for delay in 
 delivering their goods at the port of destination, where such 
 delay is caused through the ship's seizure and detention by 
 reason of carrying enemies' goods (Dunn v. Bucknall Brothers, 
 1902, 2 K.B. (C.A.) 614). 
 
36 STATEMENT OF THE LAW. 
 
 British shareholders in, and British or neutral mortgagees 
 of, an enemy ship captured by a British cruiser have no remedy 
 at law when that ship is condemned as a prize of war; and 
 this is so even when the mortgagees advanced money for 
 necessaries (The "Marie Glceser," 1914, 137 L.T. 468). 
 But such British subjects may present their case to the Crown 
 for the exercise of its prerogative of bounty (ibid.). The 
 captor's rights take precedence of all other claims. So where 
 claimants for necessaries supplied to an Austrian ship before 
 the war had issued writs and seized the ship, the arrest of the 
 Admiralty Marshal was suspended, and all further proceed- 
 ings in the necessaries' action stayed (The " Tergestea," reported 
 in The Times of 26th January, 1915). Questions between the 
 shipowners and cargo owners, in a case of a cargo seized as 
 prize, are within the exclusive jurisdiction of the Prize Court 
 (The " Corsican Prince," reported in The Times of 23rd 
 February, 1915). 
 
 Trading with the enemy on the part of a representative of 
 the Crown, whilst resident in enemy territory, is by the common 
 law illegal, unless authorised by special licence, even though 
 benefits accrue thereby to Great Britain (Ex parte Baglehole, 
 1812, 18 Ves. 528). But in The "Madonna delle Grade," 4 
 Ch.Eob. 195, an exception was allowed to the rule where the 
 trade was for the benefit of the British fleet. 
 
 Contracts which amount to trading with the enemy are not 
 only void as between the immediate parties thereto, but also, 
 being illegal, taint all collateral transactions. This effect of 
 illegality is a well-established rule in contract. Thus if it is 
 admitted or proved in an action on a bill of exchange that the 
 acceptance, issue, or subsequent negotiation of the bill was due 
 to such a transaction, an indorsee must prove not only that he 
 had no notice of it, but also that subsequent to the illegality 
 value has in good faith been given for the bill (Bills of 
 Exchange Act, 1882, 45 & 46 Yict. c. 61, sections 29, 30; see 
 also the Trading with the Enemy Proclamation, No. 2, of 9th 
 September, 1914, Article 5 (4)). 
 
 Any contract in furtherance or in aid of trading with the 
 enemy is void, e.g., a policy of insurance on the goods dealt 
 in (Potts v. Bell, 1800, 8 T.E. 548). No action lies for the 
 recovery of freight if the carriage of the goods amounts to 
 
LICENCES TO TEADE WITH ENEMY. 37 
 
 xrading with the enemy (Mutter v. Gernon, 3 Taunt. 394). 
 But if British subjects are the shippers of goods to, or the 
 consignees of goods from, the enemy country, which are carried 
 in a neutral ship, they must pay the neutral carrier his freight 
 (The " Hoop," 1799, 1 Ch.Rob. 219 ; Smart v. Wolff, 3 T.E. 
 323), unless the goods are contraband (The " Sarah Christina," 
 1 Ch.Eob. 237; The " Mercurius," ibid. 288; The 
 "Emmanuel," ibid. 296), or the neutral carrier has otherwise 
 violated international law, as by using false papers (The 
 "Atlas," 3 Ch.Eob. 304 n.). 
 
 When Great Britain is neutral, it is not illegal to trade 
 with a blockaded port (The " Helen," 1865, L.R. '1 A..& E. 1) ; 
 and a contract of partnership for the importation of contraband 
 into a belligerent State is not forbidden by English law (Ex 
 parte Chavasse, re Grazebrooik, 1865, 34 L.J.N.S. Bank. 17). 
 
 But where seamen sign on for a purely commercial voyage, 
 and find that they are to run a blockade or carry contraband, 
 they can repudiate the contract; and the same rule probably 
 applies to a charter party (per Lush, J., in Geipel v. Smith, 
 1872, L.E. 7 Q,.B. 404). And when seamen make a bargain 
 for a commercial voyage in time of peace, not contemplating 
 the risks of war, they are discharged from their obligation to 
 proceed on the voyage by the outbreak of war (Liston and Others 
 v. Owners of Steamship "Carpathian," 1915, W.N. 103). 
 
 10. Licences by the Crown to Trade with the Enemy. — 
 At common law the Crown has the power to grant licences to 
 trade with the enemy (The "Hoop," 1799, 1 Ch.Eob. 196), 
 and it may revoke them at any time (ibid. 199). Not only may 
 such a licence be given to a British subject who is within 
 the kingdom, but a licence may also be given to a British 
 subject to reside and trade within enemy territory, or to an 
 alien enemy to reside and trade within the kingdom (Vandych 
 v. Whitmore, 1801, 1 East, 475), or to an alien enemy domiciled 
 here to trade with his own native country (Usparieha v. 
 Noble, 1811, 13 East, 332). 
 
 A licence may be either general or special. A general 
 licence is one permitting all subjects, or even all persons, to 
 trade with a particular locality or in particular goods. A 
 special licence is one granted to individuals for a particular 
 
38 STATEMENT OF THE LAW. 
 
 voyage, or for trading in particular goods. These terms are, 
 however, used by different jurists in different senses (see Pitt 
 Cohbett's Leading Cases on International Law, 3rd edition, 
 vol. ii. p. 81). But the important difference for present 
 purposes is between a licence given to British subjects or alien 
 enemies within the kingdom in general and a licence issued 
 only to individuals. A general licence can only be granted 
 by the Crown ; but a special licence may be issued by a military 
 or naval officer acting within the limits of his particular 
 command (ibid. p. 81; see also The "Hope," 1 Dod. 226). 
 
 An example of a general licence is the Order in Council, 
 dated 15th April, 1854, which permitted British subjects to 
 trade with non-blockaded Russian ports, if in neutral ships, 
 but not in contraband goods, during the Crimean War (see 
 Clemenison v. Blessig, 1855, 11 Exch. 135 ; The " Neptune," 
 1855, Spinks' Prize Cas, 281). 
 
 General licences under the Trading with the Enemy Pro- 
 clamation, No. 2, of 9th September, 1914, have been granted 
 during the present war by the Board of Trade to all persons 
 resident, or carrying on business, or being in the British 
 dominions, to pay fees, to obtain the grant or renewal of 
 patents, or the registration or renewal of registration of 
 designs or trade marks in an enemy country, or to pay on 
 behalf of an enemy fees for the same purposes here (London 
 Gazette of 6th November, 1914). British owners of cargo 
 now lying in a neutral port in an enemy ship may, for the 
 purpose of obtaining possession of such cargo, pay freight and 
 other necessary charges to the enemy's agent at such port 
 (London Gazette of 29th September, 1914). 
 
 An example of a special licence is that which was granted 
 to the Deutsche Bank, the Dresdner Bank, and the Direction 
 der Disconto-Gesellschaft — all German banks in London — 
 during this war. It is of a limited nature, as the following 
 copy shows : — 
 
 " In pursuance of the powers conferred on me by the Aliens 
 " Eestriction (No. 2) Order in Council, 1914, made on the 10th 
 " day of August under the Aliens Eestriction Act, 1914, I 
 " hereby permit the Deutsche Bank, the Dresdner Bank, the 
 " Disconto-Gesellschaft to carry on banking business in the 
 " United Kingdom subject to the following limitation, con- 
 
LICENCES TO TRADE WITH ENEMY. 39 
 
 " ditions, supervision, and requirement as to the deposit of 
 " money and securities : — 
 
 " (1) The permission shall extend only to the completion 
 " of the transactions of a banking character entered 
 " into before the 5th day of August, 1914, so far 
 " as these transactions would in ordinary course 
 " have been carried out through or with the London 
 " establishments. The permission does not extend 
 "to any operations for the purposes of making 
 " available assets which would ordinarily be col- 
 " lected by, or of discharging liabilities which would 
 " ordinarily be discharged by, establishments of 
 " the banks other than the London establishments. 
 " No new transaction of any kind, save such as 
 "may be necessary or desirable for the purpose of 
 "the completion of the first-mentioned transactions, 
 " shall be entered into by or on behalf of the London 
 " establishments of the banks. 
 
 " (2) The business to be transacted under this permission 
 " shall be limited to such operations as may be 
 " necessary for making the realisable assets of the 
 "banks available for meeting their liabilities, and 
 " for discharging these liabilities as far as may be 
 " practicable. 
 
 " (3) All transactions carried out under this permission 
 " shall be subject to the supervision and control of 
 " a person to be appointed for the purpose by the 
 " Treasury, who shall have absolute discretion (a) 
 " to refuse to permit any payment that may appear 
 " to him to be contrary to the interests of the 
 " nation ; (J) to permit any such new transactions 
 " as are in his opinion necessary or desirable for 
 " the purpose of the completion of the transactions 
 " first mentioned in paragraph 1 ; (c) to permit or 
 " refuse to permit the completion of any particular 
 " transaction whatsoever. 
 
 " (4) Any assets of the banks which may remain undis- 
 " tributed after their liabilities have, so far as 
 
40 STATEMENT OF THE LAW. i 
 
 " possible in the circumstances, been discharged, 
 " shall be deposited with the Bank of England to 
 " the order of the Treasury. The permission 
 " granted by me on the 10th day of August, 1914, 
 " is hereby revoked. 
 
 " (Signed) E. M'Kenna, 
 " One of His Majesty's Principal Secretaries 
 "of State." 
 
 The terms of these special licences do not prevent a creditor 
 from suing the banks for his debt {Cooper fy Co. v. Deutsche 
 Bank of Berlin, reported in the Glasgow Herald of 21st 
 November, 1914; Leader, Plunkett fy Leader v. Direction der 
 Disconto-Gesellschaft, 1914, 31 T.L.E. 83). 
 
 Licences are construed liberally {Flindt v. Scott, 1814, 5 
 Taunt. 674). But there is some authority for saying that a 
 special licence is more strictly construed {The " Cosmopolite," 
 1801, 4 Ch.Eob. 8; The " Vriendschap," 1801, ibid. 96). 
 Non-disclosure by an agent, when applying for a licence, of 
 the fact that he was applying for an enemy trader, did not 
 vacate the licence in Flindt v. Scott, 1814, 5 Taunt. 674. In 
 Lemche v. Vaughan, 1824, 8 Moo. P.O. 646, an innocent 
 misdescription of a party in an application for a licence did 
 not affect the validity of the licence. But in Camelo v. 
 Britten, 1824, 4 B. & Aid. 184, it was held that conditions 
 attached to a licence must be strictly complied with. 
 
 In Warin v. Scott, 1812, 4 Taunt. 615, a Dutchman 
 obtained limited licences to reside in England and to carry on 
 his trade, Great Britain being then at war with his country. 
 He shipped goods from an English port after the expiry of 
 his licence to reside, but before the expiry of his licence to 
 trade. An insurance of these goods was held void. 
 
 Licences are not assignable. In Feize v. Thompson, 1808, 
 1 Taunt. 121, a licence had been issued to T. B. to import 
 goods, being the property of T. B., in neutral ships from an 
 enemy's country. It was held that it could not be assigned 
 so as to authorise the importation of goods, the property of 
 the assignee. The question was raised, but not decided, 
 whether the licence would not have been sufficient, if there 
 had been a special property remaining in T. B. as general 
 consignee of the cargo. 
 
LICENCES TO TRADE WITH ENEMY. 41 
 
 Licences are either express or implied. A licence to trade 
 implies an authority to insure (Kensington v. Inglis, 1807, 8 
 East, 273) . So where a licence is issued in general terms, 
 e.g., to an alien enemy domiciled in England, to ship goods 
 in a neutral vessel to certain ports in the enemy's country, 
 such commerce is legalised for all purposes of its due and 
 effectual prosecution, either for the henefit of the party himself 
 or of his correspondents, though residing in the enemy's 
 country; and such goods may, therefore, be insured by him 
 either on his own account or as agent for them (Usparicha v. 
 Noble, 1811, 13 East, 332). A licence to insure gives power 
 not only to insure the goods shipped, but also the vessel, 
 although it be an enemy's (Morgan v. Oswald, 1812, 3 Taunt. 
 554; Flindt v. Scott, 1814, 5 Taunt. 674). But a licence to a 
 British subject to trade with an enemy country does not imply 
 a licence to reside in that country (Em parte Baglehole, 1812, 
 18 Ves. 526). A licence to an alien enemy, however, to reside 
 within the kingdom gives him authority to sue on a bond here 
 (Wells v. Williams, 1697, 1 Salk. 45). 
 
 Mere non-interference with an alien enemy who is within 
 this country has been held not to imply a licence to reside 
 here. 
 
 In Boulton v. Dobree, 1808, 2 Camp. 163, a licence had been 
 granted to a Danish subject to undertake a voyage between 
 London and Vera Cruz. War broke out between this country 
 and Denmark before the termination of the voyage. After 
 arriving at London the licensee went about at large without 
 being molested by the British Government. But his agents 
 were held not entitled to sue on a policy of marine insurance 
 effected by them on his behalf. 
 
 Even where an alien enemy is domiciled in the kingdom, 
 and has registered her place of abode in compliance with an 
 Act, it has been held that this does not amount to a licence to 
 reside here (Alciator v. Smith, 1812, 3 Camp. 244). 
 
 How far such cases have been recently followed is matter 
 of doubt. The observations of Lord Lindley in Janson v. 
 Driefontein Consolidated Mines, Limited, 1902, A.C. 505, and 
 of Lord Reading, C.J., in Porter v. Freundenberg, Kreglinger v. 
 S. Samuel 8f Rosenfeld, In re Merten's Patent, 1915, 31 T.L.R. 
 166, would suggest that a licence to reside would be implied 
 
42 STATEMENT OF THE LAW. 
 
 from, mere non-interference or non-expulsion. This is the 
 American view. In Clarice v. Morey, 1813, 10 Johnson, 69, 
 Chief Justice Kent held that alien enemies resident in the 
 United States at the time of war might sue or be sued as in 
 time of peace, and that it was not necessary for this purpose 
 that they should have an actual licence to reside therein, but 
 that such a licence would be implied from their being suffered 
 to remain without being expelled from the United States by 
 the Government. This was also held to apply to alien enemies 
 who came into the United States after the outbreak of war. 
 The American authorities will be found in Seymour v. Bailey, 
 1872, 66 111. 288. 
 
 The various Proclamations and Aliens Restriction Orders 
 which have already been issued during the present war with 
 Germany and Austria-Hungary are all of a restrictive rather 
 than of an enabling nature. Any enabling effect they possess 
 seems to be intended for British subjects, or, at all events, not 
 in favour of alien enemies here to the extent of conferring a 
 title to sue on their contracts in time of war (section 8 (4), 
 supra). The Aliens Restriction (No. 2) Order, 1914, dated 
 10th August, expressly provides that an alien enemy shall 
 not carry on or engage in any banking business except with 
 the permission in writing of the Secretary of State, and to 
 such extent and subject to such conditions and supervision as 
 the Secretary of State may direct, and an alien enemy who is 
 or has been carrying on or engaged in banking business shall 
 not, except with the like permission, part with any money or 
 securities in the bank where he is or has been carrying on 
 or engaged in business, and shall, if so required, deposit any 
 such money or securities in such custody as the Secretary of 
 State may direct (Article 1). For the purposes of this 
 provision, any person who is a member of a firm or a director 
 of a company carrying on banking business in the United 
 Kingdom is deemed to be carrying on banking business {Hid.). 
 
 It has, however, been held by Sargant, J., in Princess 
 Thurn and Taxis v. Moffitt, 1914, W.N. 379, that those alien 
 enemies in this country who strictly comply with the require- 
 ments of the Aliens Restriction Act, 1914, and Orders made 
 thereunder, are impliedly licensed to reside and trade here, and 
 so can sue on their contracts during the war ; whilst those who 
 do not so comply cannot apparently sue during the continuance 
 
LICENCES TO TEADE WITH ENEMY. 43 
 
 of hostilities. This decision was followed in Volkl v. Governors 
 of the Rotunda Hospital, 1914, 2 I.E. 543, and was approved 
 of by the Court of Appeal in Porter v. Freundenberg, S. Samuel 
 v. Rosenfeld, In re Merten's Patent, 1915, 31 T.L.E. 162. 
 But it may he pointed out that in Scotland the doctrine in 
 Alciator v. Smith, 1812, 3 Camp. 244, was acted on in a case 
 in the Glasgow Sheriff Court in September, 1914, a note of 
 which was communicated to the writer by Sheriff-Substitute 
 Fyfe who tried it. It was at the instance of a German in 
 Scotland, who sued for a week's wages in lieu of warning. 
 War had been declared before the date of the small debt 
 summons. The objection was taken that, being an alien 
 enemy, the pursuer could not sue. It was answered that he 
 had registered himself in compliance with the Aliens Eestric- 
 tion Order, 1914. But the learned Sheriff-Substitute held 
 that this did not make any difference, and dismissed the case. 
 Mr. Leslie Scott, K.C., takes the same view (Trading with 
 the Enemy, pp. 16, 20). The decision in Princess Thurn and 
 Taxis v. Moffitt, 1914, W.N. 379, has, however, now been 
 followed by the Scottish Courts (Schulze, Gow fy Co. v. Bank 
 of Scotland, 1914, 2 S.L.T. 455). 
 
 In view of the fact that in the present war Great Britain 
 is allied with France and Eussia, not to mention other States, 
 such as Japan, the following observation of Kent, in his 
 Commentaries on American Law, 43th edition, pp. 69, 70, is 
 important : — " A single belligerent may grant licences to trade 
 " with the enemy, and dilute and weaken his own rights at 
 " pleasure, but it is otherwise when allied nations are pursuing 
 " a common cause. The community of interests and object 
 " and action creates a mutual duty not to prejudice that joint 
 "interest; and it is a declared principle of the law of nations, 
 " founded on very clear and just grounds, that one of the 
 " belligerents may seize and inflict the penalty of forfeiture on 
 " the property of a subject of a co-ally engaged in a trade with 
 "the common enemy, and thereby affording him aid and 
 " comfort, whilst the other ally was carrying on a severe and 
 " vigorous warfare. It would be contrary to the implied 
 " contract in every such warlike confederacy that neither of 
 "the belligerents, without the other's consent, shall do any- 
 " thing to defeat the common object " (see The " Nayade," 
 1802, 4 Ch.Eob. 251 ; The " Neptune," 1807, 6 Ch.Eob. 403). 
 
44 STATEMENT OF THE LAW. 
 
 11. Executed Contracts Made with Awen Enemies 
 Before the Outbreak of "War. — An executed contract means 
 a contract wholly performed on one side. Where such a 
 contract has heen entered into with an alien enemy before the 
 outbreak of war, and the performance is on his side, the 
 general rule is that war only suspends his remedy, or, in other 
 words, he cannot sue upon it during the existence of hostilities 
 (Alcinous v. Nigreu, 1854, 4 E. & B. 217; see also note at end 
 of Clementson v. Blessig, 1855, 11 Exch. 135). 
 
 Thus in Ex parte BoussmaJcer, 1806, 13 Ves. 71, it was 
 decided that a dividend payable under a bankruptcy, in respect 
 of a debt due and payable before the outbreak of war to an 
 alien enemy, ought to be retained in hand for payment to him 
 on the restoration of peace. 
 
 If, however, the alien enemy is residing or trading in this 
 country with the licence of the Crown, he can sue on such a 
 contract during the existence of war (Wells v. Williams, 1697, 
 1 Salk. 45), and, as suggested in section 8 (4), supra, an alien 
 enemy domiciled here may have the right, apart from any 
 licence, to enforce the contract indirectly by such forms of 
 self-redress as lien, &c. 
 
 On the other hand, if the performance of the contract is 
 on the part of a British subject, he can enforce the contract 
 by action during the continance of war, provided, of course, 
 that a cause of action has accrued (see section 8 (4), supra). 
 
 The general principle that an alien enemy's right to the 
 performance of, and right of action on, a contract concluded 
 and executed by him before war are only suspended by the war, 
 applies particularly to contracts which only require for their 
 performance by the other party the payment of money. 
 
 Where the unperformed obligation is not an obligation to 
 pay money, matters become more complicated. If the obliga- 
 tion is in its nature incapable of being suspended, the 
 contract will be dissolved (Griswold v. Waddington, 1818, 16 
 Johnson, 438, an American case). This, for instance, would 
 be the case if the proper performance of the contract required 
 some dealings with the enemy during the war (Esposito v. 
 Bowden, 1857, 7 E. & B. 763). Mutatis mutandis, the same 
 considerations may even arise where the party who has fulfilled 
 his part of the contract is not an alien enemy but a British 
 
EXECTJTOEY CONTEACTS MADE BEFOEE WAE. 45 
 
 subject (see section 19, infra). It has been suggested by Mr. 
 Alfred Hutchison, in his article on " The Effect of "War on 
 " Contracts and Payments of Debts " (in the Commercial 
 Review for September, 1914), that money paid in respect of 
 such contracts, under which no consideration has been received 
 by the party paying the money, may be recoverable after the 
 war on the ground of failure of consideration. 
 
 A debt due to an alien enemy being in enemy territory is 
 not only irrevocable by him during the war, but it is illegal 
 to pay it (Trading with the Enemy Proclamation, No. 2, 9th 
 September, 1914, Article 5 (1), which is declaratory of the 
 common law). But if such enemy has an agent in this 
 country, duly appointed before the war, the American doctrine 
 is that payment to such agent is not a crime, although the 
 money must not be transmitted by him to his principal 
 (Kershaw v. Kelsey, 1868, 100 Mass. 561). But the Trading 
 with the Enemy Proclamation, No. 2, of 9th September, 1914, 
 expressly prohibits such payment (Article 5 (1) ; Orenstein $ 
 Koppel v. Egyptian Phosphate Company, 1914, 2 S.L.T. 293) ; 
 and Article 5 of the Trading with the Enemy Proclamation of 
 8th October, 1914, further forbids such payment, where the 
 business is insurance or re-insurance. 
 
 12. Executory Contracts Made wrrH an Alien Enemy 
 Before the Outbreak or War. — An executory contract is a 
 contract which is either wholly unperformed or in which there 
 remains something to be done on both sides. There is little or 
 no authority in English law as to the effect of war on such 
 contracts concluded with alien enemies before the commence- 
 ment of hostilities. In Duncan, Fox fy Co. v. Schrempft fy 
 Bonhe, 1914, W.N. 440, Atkin, J., was of opinion that it was 
 not contrary to public policy for a contract made before war to 
 provide that after the war trading should be resumed with 
 persons who were in the meantime alien enemies (see The 
 Times' report of this case on 5th November, 1914). It is 
 stated in the note at the end of Clementson v. Blessig, 1855, 
 11 Exch. 135, that the declaration of war renders these con- 
 tracts void. But, as pointed out by Dr. E. J. Shuster (The 
 Effect of War on Commercial Transactions, p. 14, n.), this 
 statement only applies to special classes of such contracts. If 
 
46 STATEMENT OF THE LAW. 
 
 the American authorities are taken into account, a more correct 
 statement of the law would be the following : — 
 
 An executory contract concluded with an alien enemy 
 before the outbreak of war is merely suspended during the war 
 as regards the right to performance and the right of action 
 (Janson v. Brief ontein Consolidated Mines, Lirrvited, 1902, A.O. 
 484). But such a contract is either avoided or dissolved by 
 the outbreak of war (1) if it ensures to the aid of the enemy 
 (Furtado v. Rogers, 1802, 3 Bos. & P. 191) ; or (2) if it is in 
 its nature incapable of suspension (Griswold v. Waddington, 
 1818, 16 Johnson, 438, an American case). A contract will 
 in its nature be incapable of suspension, (a) if its proper 
 performance necessitates intercourse with the enemy during 
 the war (Esposito v. Bowden, 1857, 7 E. & B. 763; The 
 " William Bagaley," 5 Wall. 377, 407, an American case) ; or 
 (b) where time is of the essence of the contract (New York Life 
 Insurance Company v. Statham, 1876, 93 United States 
 Reports, Supreme Court, 24) ; or (c) where the parties cannot, 
 on conclusion of peace, be made equal, for the doctrine of 
 revival of contracts suspended by war is based on considerations 
 of equity and justice (ibid.). 
 
 This general statement of the law relates to contracts 
 between parties " divided by the line of war," that is, domi- 
 ciled, or for the time being, in the countries of the respective 
 belligerents (see Cobbett's Leading Cases on International Law, 
 3rd edition, vol. ii. pp. 66 et seq.). It may be exemplified in 
 its application to the principal kinds of contracts. 
 
 (1) Affreightment. — A contract of affreightment may at 
 once become void by the declaration of war (Avery v. Bowden, 
 25 L.J. Q,B. 49; 26 L.J. Q..B. 3). This will be the case 
 when its performance involves trading with the enemy 
 (Exposito v. Bowden, 1857, 7 E. & B. 763). On the other 
 hand, if its performance can be suspended till the end of the 
 war, e.g., in the case of a charter of a ship for several distinct 
 voyages, ranging over a considerable period of time, the 
 contract will only be suspended by war. 
 
 (2) Agency. — The American doctrine is that the relation of 
 principal and agent existing between the residents of belli- 
 gerent States is not necessarily, and as matter of law, ter- 
 minated by the outbreak of war. Whether the agency is 
 
EXECUTORY CONTRACTS MADE BEFORE WAR. 47 
 
 revoked or not depends upon the circumstances surrounding the 
 case and the nature and character of the agency (Williams v. 
 Paine, 1898, 169 United States Reports, Supreme Court, 55). 
 
 A general agency conferring general authority is probahly 
 terminated (United States v. Grossmayer, 9 Wall. 72). A 
 limited agency is suspended so far as it involves any intercourse 
 or dealing with the enemy, or any transmission of money or 
 property to an enemy country (ibid. ; Small's Administrator v. 
 bumpkin's Executor, 28 Grattan, 832). But where such agency 
 does not involve prohibited acts, and the assent of the principal 
 or his subsequent ratification is expressly given, or may 
 reasonably be implied, it continues until otherwise ended (New 
 York Life Insurance Company v. Davis, 1877, 95 United States 
 Reports, Supreme Court, 425). Under these circumstances 
 the American Courts have sustained the following transac- 
 tions: — 
 
 (a) An arrangement by an agent for protecting and safe- 
 
 keeping his principal's property (United States v. 
 Quigley, 103 United States Reports, Supreme Court, 
 595). If the agent has the property of the prin- 
 cipal in his possession or control, he must 
 preserve it safely during the war, and must restore 
 it faithfully at its close (New York Insurance Com- 
 pany v. Davis, 1877, 95 United States Reports, 
 Supreme Court, 425). 
 
 (b) The payment to an agent of a debt due to the principal, 
 
 where the agent and the debtor resided in the same 
 country (Robinson v. International Life Assurance 
 Society, 1870, 1 American Reports, 490; Sands v. 
 New York Life Insurance Company, 1872, 10 
 American Reports, 535). But the agent must have 
 been appointed before the war (United States v. 
 Grossmayer, 9 Wall. 72). He may invest moneys 
 thus received in property in the enemy territory, 
 e.g., a British agent could invest it here (see 
 Stoddart v. United States, 6 Ct.Cl. 340). 
 
 (c) A sale by an agent of his principal's property (Murrell 
 
 v. Jones, 46 Miss. 565). In Williams v. Paine, 
 
48 STATEMENT OF THE LAW. 
 
 1898, 169 United States Beports, Supreme Court, 
 55, a power of attorney executed by a married 
 woman, with her husband's concurrence, to convey 
 her lands was held not to be revoked by the out- 
 break of the Civil War. And in Pope v. Chafee, 
 14 Rich. Eq. (Supreme Court) 69, an authority to 
 an agent to receive the proceeds of the sale of his 
 principal's land was not deemed revoked by such 
 principal being taken as a prisoner of war. 
 
 (d) An attorney's defence of an action against his client 
 (Washington University v. Finch, 18 Wall. 259). 
 But the relation of attorney and client is generally 
 terminated by war. Thus, in Blackwell v. Willard, 
 1871, 6 American Reports, 749, a citizen of New 
 York had a suit pending in North Carolina before 
 the outbreak of the Civil War; and payment was 
 made during the war by the debtor to the attorney. 
 It was held that such action was void, the relation 
 of attorney and client being ended by the war. 
 
 On the termination of war an agent must account to his 
 principal [Caldwell v. Harding, 1 Lowell, 326). 
 
 There are few or no English authorities on this topic. A 
 payment to an enemy's agent in this country being illegal 
 (Trading with the Enemy Proclamation, No. 2, of 9th 
 September, 1914, Article 5 (1) ; Orenstein fy Koppel v. Egyptian 
 Phosphate Company, 1914, 2 S.L.T. 293; Trading with the 
 Enemy Proclamation of 8th October, 1914, Articles 1, 5), the 
 British Courts would presumably not uphold any such void 
 payment after the war. Where an alien enemy has an English 
 agent, the latter cannot maintain an action in favour of such 
 enemy where the enemy's interest appears on the record 
 (Brandon v. Nesbitt, 1794, 6 T.R. 23). The English agent of 
 an enemy principal cannot bring an action against him for a 
 declaration that the agent is entitled to collect debts due to 
 the principal and to pay debts due from the principal, or for 
 the appointment of a receiver of the principal's business here 
 (Maxwell v. Grunhut, 1914, 31 T.L.R. 79). 
 
 (3) Insurance. — An insurance by a British subject (includ- 
 
EXECUTORY CONTRACTS MADE BEFORE WAR. 49 
 
 ing corporation) of an enemy's property against capture at 
 sea by the British is illegal and void, whether the contract was 
 made before or after the war (The " Jan Frederick," 1804, 5 
 Ch.Rob. 128; The " Boedes Lust," 1804, ibid. 233). 
 
 In Furtado v. Rogers, 1802, 3 Bos. & P. 191, an insurance 
 with an English company was effected by the plaintiff on a 
 French ship before the outbreak of war between France and 
 this country. The ship was captured by the British, and con- 
 demned as enemy property. After the conclusion of the war 
 the plaintiff sued on the policy. But it was held that the 
 contract of insurance was by common law abrogated by war, 
 on the ground that it amounted to an indemnity to an enemy 
 owner against the capture of his property by the insurer's 
 State, which was inconsistent with the very object of war. 
 In his judgment Lord Alvanley, C.J., observed that, if a 
 British subject insured against captures, the law would infer 
 an exception as regardes British captures; whilst if he 
 expressly insured against such captures the contract would be 
 void ah initio. 
 
 An insurance against the capture of an enemy's goods at 
 sea, though effected with a British underwriter before the 
 outbreak of war, cannot be enforced against such underwriter, 
 even after the restoration of peace, in order to recover a loss 
 by capture by an ally of Great Britain (Brandon v. Curling, 
 1803, 4 East, 410). 
 
 As previously observed in section 9, supra, an insurance of 
 goods in furtherance of an illegal trading with the enemy is 
 void (Potts v. Bell, 1800, 8 T.R. 548). 
 
 An insurance of an alien enemy's property against loss at 
 sea will, on the same principles, not cover a loss caused by the 
 British or an ally, e.g., destruction by a cruiser. 
 
 An express insurance of an alien enemy's property against 
 seizure by the insured's own Government during a state of war 
 is illegal and void in its inception; but if such seizure takes 
 place while war is only imminent, the loss is recoverable under 
 a policy of insurance against capture in general terms (Janson 
 v. Driefontein Consolidated Mines, Limited, 1902, A.C. 484). 
 
 Insurances of an alien enemy's private property or land, 
 effected before the outbreak of war, will be dissolved thereby, 
 at all events if the loss takes place in a mode recognised in 
 
 E 
 
50 STATEMENT OF THE LAW. 
 
 international law, e.g., as a penalty for military offences, or 
 on the ground of military necessity. Probably in all cases 
 where the loss was inflicted by the British an insurance against 
 it would be inoperative as against the policy of the Govern- 
 ment. A possible exception is a forced contribution (see Dr. 
 Coleman Phillipson's Effect of War on Contract, pp. 83-4; 
 Law Quarterly Review, vol. 18, pp. 289 et seq. ; the Trading 
 with the Enemy Proclamation of 8th October, 1914). 
 
 In all other cases of insurance of property effected before 
 the war the policy remains valid but cannot be sued on during 
 the war (Janson v. Driefontein Consolidated Mines, Limited, 
 1902, A.C. 484). Article 5 (6) of the Trading with the Enemy 
 Proclamation, No. 2, of 9th September, 1914, even as amended 
 by the Proclamation of 8th October, 1914, does not seem to 
 alter the law. For it simply warns persons not to enter into 
 an insurance with or for the benefit of an enemy during the 
 war, nor to give effect to such an insurance made before the 
 war. The latter prohibition seems only suspensory of the 
 remedy during the war. In W. L. Ingle, Limited v. Manheim 
 Insurance Company, 1914, W.N. 406, Bailhache, J., held that 
 the Proclamation of 8th October, 1914, was not retrospective, 
 and that, even if it were, payment of a loss occurring after the 
 outbreak of war by a German insurance company, or an action 
 against such insurance company to recover a loss, is not a 
 transaction forbidden by that Proclamation. 
 
 There are no English cases on the effect of war on life 
 insurance, where one of the parties to the contract becomes 
 an alien enemy. Although there are several American 
 decisions, they are somewhat conflicting, and it is not easy 
 to reconcile them. But the result of the case law seems to 
 be this: A failure to pay the premiums during the war avoids 
 the policy (Worthington v. Charter Oak Life Insurance Com- 
 pany, 1874, 19 American Reports, 495). Where such failure 
 arises from the fact that it would involve intercourse with an 
 enemy in enemy territory, then, although the contract is 
 ended, the assured is entitled to the equitable value of the 
 policy arising from the premiums actually paid. This 
 equitable value is the difference between the cost of a new 
 policy and the present value of the premiums yet to be paid 
 on the forfeited policy when the forfeiture occurred, and may 
 
EXECUTOEY CONTEACTS MADE BEFOEE WAE. 51 
 
 be recovered by action on the conclusion of peace (New York 
 Life Insurance Company v. Statham, 1876, 93 United States 
 Eeports, Supreme Court, 24). The payment of premiums 
 during the war by the assured to an agent of the company, 
 who resides in the same territory as the assured, binds the 
 company (Robinson v. International Life Assurance Society, 
 1870, 1 American Eeports, 490; Sands v. New York Life 
 Insurance Company, 1872, 10 American Eeports, 535) ; provided 
 such agent continues to have due authority to receive the 
 premiums (New York Life Insurance Company v. Davis, 1877, 
 95 United States Eeports, Supreme Court, 425, which 
 reaffirmed New York Life Insurance Company v. Statham, 
 1876, 93 United States Eeports, Supreme Court, 24). Where 
 an agent in such circumstances refuses to accept payment, 
 the company will be held liable (New York Life Insurance 
 Company v. Clopton, 1869, 3 American Eeports, 290). It 
 would follow from these cases that, if a British subject is 
 insured with a German life office which has a branch here, 
 payment of premiums by him during the war to such branch 
 will bind the German life office under the above circumstances. 
 Such a transaction was expressly allowed by Article 6 of the 
 Trading with the Enemy Proclamation, No. 2, of 9th Sep- 
 tember, 1914. But it is now illegal by the provisions of the 
 Trading with the Enemy Proclamation of 8th October, 1914. 
 
 (4) Leases. — The American view seems to be that a lease 
 is not dissolved by war, but that the remedy of the party to it 
 who becomes an alien enemy is suspended during the war. 
 This was apparently the decision in the case of an implied 
 contract for use and occupancy (Kiersted v. Orange and Alex- 
 andria Railway Company, 54 How. Pr. (N.Y.), 29, which was 
 reversed on other grounds in 1877, 25 American Eeports, 
 190). Kershaw v. Kelsey, 1868, 100 Mass. 561, is not precisely 
 in point. The lease was made in time of war between persons 
 " not divided by the line of war," and was held binding. 
 
 (5) Mortgages. — In Dorsey v. Dorsey, 1869, 96 American 
 Decisions, 633, it was held that war does not have the effect 
 of preventing a citizen of a State from enforcing its laws in 
 the Courts of that State, so as to subject a non-resident 
 enemy's real estate, situated therein, to the payment of a debt 
 contracted before the war, and secured by a proper mortgage 
 
52 STATEMENT OF THE LAW. 
 
 on the property itself, which has heen executed and duly- 
 recorded prior to hostilities. In short, war does not suspend 
 a mortgage where there is no occasion to resort to the enemy's 
 Courts to enforce it against the mortgaged property. The 
 title of a purchaser from the mortgagee is, under such circum- 
 stances, good ; provided that the defendant is served by publi- 
 cation. Impossibility of receiving and complying with the 
 notice of publication makes no difference. This American 
 view seems eminently reasonable, and there appears to be 
 nothing in the way of its adoption by the Courts here, apart 
 from difficulties in serving process. 
 
 (6) Negotiable Instruments. — When a negotiable instru- 
 ment, such as a bill of exchange, is made before the war 
 between persons " divided by the line of war," it is unenforce- 
 able by an alien enemy during the war ; but the remedy revives 
 on the conclusion of peace (section 11, supra; see Antoine v. 
 Morshead, 1815, 6 Taunt. 237; Pitt Cobbett's Leading Cases 
 on International Law, 3rd edition, vol. 2, p. 87). Article 5 (4) 
 of the Trading with the Enemy Proclamation, No. 2, of 9th 
 September, 1914, warns any person in the British Dominions 
 ' not to accept, pay, or otherwise deal with any negotiable 
 ' instrument which is held by or on behalf of an enemy." But 
 it provides that " this prohibition shall not be deemed to be 
 ' infringed by any person who has no reasonable ground for 
 ' believing that the instrument is held by or on account of an 
 enemy." British or neutral holders in due course can, at 
 common law, sue on a bill made with the alien enemy in time 
 of war (Johnston 8f Wright v. Goldsmid, 15th February, 1809, 
 F.C. — a Scottish ease; see Bills of Exchange Act, 1882, 45 & 
 46 Vict. c. 61, sections 29, 30, 89, and fourth last paragraph of 
 section 9, supra). The case of Willison v. Patteson, 1817, 7 
 Taunt. 439, quoted by Mr. Pitt Cobbett in his Leading Cases 
 on International Law, 3rd edition, p. 87, as an authority to the 
 contrary, does not support his view ; for in that case the party 
 suing was an indorsee, who was an alien enemy at the time 
 of indorsation. In Haarbleicher fy Schumann v. Baerselman, 
 The Times, 14th October, 1914, where a bill was drawn by 
 merchants in Petrograd on a British firm who accepted it, and 
 was payable to the order of a Hamburg merchant, who endorsed 
 it, Sankey, J., held that the British firm could not refuse 
 
EXECUTOEY CONTEACTS MADE BEFOEE WAE. 53 
 
 payment to the holders, a firm of bill discounters in London, 
 on the ground that it was endorsed by an alien enemy j because 
 the endorsement was not restrictive. Bills of exchange granted 
 or negotiated to alien enemies by British prisoners of war for 
 their necessities can be sued on by such alien enemies on the 
 conclusion of peace (Antoine, v. Morshead, 1815, 6 Taunt. 237). 
 
 The Trading with the Enemy Amendment Act, 1914, 5 
 Geo. V. c. 12, has somewhat modified the common law. It 
 provides that no person shall, by virtue of any transfer of a bill 
 of exchange or promissory note made or to be made in his 
 favour by or on behalf of an enemy, whether for valuable con- 
 sideration or otherwise, have any rights or remedies against 
 any party to the instrument unless he proves that the transfer 
 was made before the commencement of the present war, and 
 any party to the instrument who knowingly discharges the 
 instrument shall be deemed to be guilty of trading with the 
 enemy. But this provision does not apply where the transferee, 
 or some subsequent holder of the instrument, proves that the 
 transfer, or some subsequent transfer, of the instrument was 
 made before 19th November, 1914, in good faith and for valua- 
 able consideration (section 6 (2)). There is a similar provision 
 as to the assignment of any debt or other chose in action, or 
 delivery of a)ny coupon or other security transferable by 
 delivery, or transfer of any other obligation by or on behalf 
 of an enemy. But here the leave of the Board of Trade will 
 validate the transaction (section 6 (1)). 
 
 (7) Partnership. — There is no English decision as to the 
 effect of war on partnership. Evans v. Richardson, 1817, 3 
 Mer. 469, only decided that an agreement between an American 
 subject and an Englishman, who was then in America, for the 
 exportation of goods from England to America on their joint 
 account in time of war, " provided a peace should not be likely 
 " to take place at the time of shipping the goods," was illegal. 
 Lord Lindley, however is of opinion that war does dissolve 
 a partnership (Treatise on the Law of Partnership, 8th edition, 
 pp. 87, 88, 111, 648). In R. v. Kupfer, 1915, 31 T.L.E. 
 223, the Court of Appeal assumed that a partnership came 
 to an end, by operation of law, on the outbreak of war. 
 
 The Trading with the Enemy Act, 1914, 4 & 5 Geo. V. c. 87, 
 contains no explicit statement on this point. Sub-section 2 (a) 
 
54 STATEMENT OF THE LAW. 
 
 of section 2 apparently assumes that war does not dissolve a 
 partnership. But, on the other hand, section 3 recognises the 
 difficulties of carrying on business under such conditions, and 
 makes express provision for them of such a nature, e.g., the 
 appointment of a receiver on the petition of the Board of Trade, 
 as to suggest the dissolution of a partnership by war. The 
 proper course for the English partner would seem to be an 
 action for dissolution and for the appointment of a receiver 
 and manager {Rombaeh v. Rombaeh, 1914, W.N. 423). But 
 where a dissolution is not asked for, and the case falls within 
 section 3 of the Trading with the Enemy Act, 1914, 4 & 5 
 Geo. V. c. 87, the Court will not appoint a receiver on an ex 
 parte application, the appointment requiring to be made 
 through the Board of Trade {In re Kopper's Coke Oven and 
 Bye-Product Company, 1914, W.N. 450). 
 
 In the case of In re Meister Lucius fy Bruning, Limited, 1914, 
 W.N. 390, Warrington, J., held (1) that applications for the 
 appointment of a controller under the Trading with the Enemy 
 Act, 1914, 4 & 5 Geo. V. c. 87, might be made by motion; (2) 
 that the Court should require reasonable evidence that the infor- 
 mation on which the Board of Trade based its application had 
 reasonable foundation ; (3) that the controller appointed should 
 be ordered to give the usual security demanded from a receiver ; 
 (4) that the Court should reserve the power to require the con- 
 troller to render and vouch his own accounts in addition to 
 those of the company ; and (5) that the controller should make 
 periodical reports upon the company's business. 
 
 The American doctrine is that a partnership ia dissolved 
 by war, where a partner becomes an alien enemy {Hubbard v. 
 Matthews, 1870, 13 American Reports, 562 ; Woods v. Wilder, 
 1870, ibid. 684; Taylor v. Hutchinson, 1874, 18 American 
 Reports, '699), except as to matters existing prior to the war 
 {Griswold v. Johnson, 1819, 16 Johnson, 438), and as to wind- 
 ing up (Cramer v. United States, 7 Ct.Cl. 1 ; Douglas v. United 
 States, 14 Ct.Cl. 1). Partnership property allowed to remain 
 in the enemy country has impressed upon it enemy character, 
 and may be condemned as enemy property or for breach of 
 blockade {The " William Bagaley," 5 Wall. 407). In Matthews 
 v. M'Stea, 1875, 91 United States Reports, Supreme Court, 7, 
 a partnership was not held dissolved as at the outbreak of the 
 
EXECUTORY CONTRACTS MADE BEFORE WAR. 55 
 
 Civil War; but that was because an Act of Congress and a 
 Proclamation by the President had fixed a later date for the 
 cessation of commercial intercourse with the enemy. 
 
 There are sound reasons for the American view. A part- 
 nership between a British subject and an alien enemy in enemy 
 territory can hardly continue for the following practical 
 reasons: — 
 
 " (a) The parties' power of mutual control cannot con- 
 
 " tinue. 
 " (b) No person can derive any profit from his partner, 
 
 " an alien enemy, trading in an enemy country. 
 " (c) It is impracticable to suspend all operations of the 
 " partnership business during the war until peace 
 " is declared, as it might be a very serious injury 
 "to force the English subject to continue the part- 
 nership after a lengthy period of war, when it 
 " might be impossible to pick up the threads of the 
 " business which had been abandoned " (A. 
 Hutchison on " The Effect of War on Contracts 
 " and Payment of Debts " in the Commercial Review, 
 September, 1914). 
 
 The first two of the above reasons, viz., (a) and (6), were 
 stated by Chancellor Kent in Griswold v. Waddmgton, 1819, 
 16 Johnson, 438, and the last (c) is adduced by Hall in his 
 Treatise on International Law, 6th edition, p. 384. 
 
 (8) Shares and Debentures in Corporations. — " The shares 
 " and debentures of companies incorporated under British law 
 " which are held by enemy subjects at the outbreak of a war 
 " will not cease to exist, but must continue as properties, what- 
 " ever be decided as to the ownership of those properties. There 
 " is therefore no alternative, but either to confiscate them for 
 " the benefit of the British Government, which in many cases 
 " would be contrary to treaty and in all cases is now out of the 
 " question, or to regard the enemy shareholders and debenture- 
 " holders as continuing to be such. To strike out the enemy 
 "subjects from the lists of persons interested, without more, 
 " would practically be to confiscate their properties for the 
 " benefit of the other shareholders, a proceeding which would 
 "be grotesque in its injustice, and which would fall within 
 
56 STATEMENT OF THE LAW. 
 
 "the spirit, if not within the letter, of treaties prohibiting 
 " confiscation. But the dividends on the shares and the 
 " interest on the debentures, so far as not represented by 
 " coupons payable to bearer, and of which therefore the owner- 
 " ship would not be apparent to the companies, cannot be paid 
 " to the enemy subjects during th© war. After its close they 
 "will be entitled to claim the back dividends and interest, 
 " but not to interest on debentures after their maturity, 
 " subject, in the case of shareholders, to their paying any calls 
 " made in the meantime. And the prohibition of commercial 
 " intercourse with enemy subjects will during the war prevent 
 " the shareholders from exercising voting powers, while the 
 " enemy directors, who cannot continue to fill their places 
 " while their duties would be in suspense, must be regarded as 
 " deprived of that character from the outbreak " (Westlake's 
 International Law, vol. ii. pp. 49-50 ; see also Lindley's 
 Treatise on Company Law, 6th edition, vol. i. p. 53). Whether 
 choses in action, in the sense of rights under a contract, which 
 belong to an alien enemy, can be enforced for the benefit of 
 the Crown, and thus confiscated by it, would, however, appear 
 a matter of doubt. An affirmative answer seems to be given 
 in such cases as Attorney-General v. Weeden 3f Shales, 1699, 
 Park, 267, and Be Wahl v. Browne, 1856, 1 H. & IS". 178; but 
 the contrary is held in Furtado v. Rogers, 1802, 3 Bos. & P. 191, 
 200, and Wolff v. Oxholm, 1817, 6 M. &' S. 92, 102. Probably 
 such right exists, but has not been exercised (see the judgment 
 of Lord Reading, C.J., in Porter v. Freundenberg , Kreglinger 
 v. S. Samuel fy Rosenfeld, In re Merten's Patent, 1915, 31 
 T.L.R., at p. 167). In Wolff v. Oxholm, 1817, 6 M. & S. 92, 
 however, it was decided that payment of a debt to the Danish 
 Treasury, in accordance with a Danish ordinance confiscat- 
 ing debts due to English subjects, was no defence to an 
 action for the debt here, because such confiscation was contrary 
 to the law of nations. The only prohibition in connection 
 with shares in th© Trading with the Enemy Proclamation, 
 No. 2, of 9th September, 1914, is in clause 5 (5), which 
 prohibits any new transactions, or the completion of any trans- 
 action already entered into, with an enemy in any stocks, 
 shares, or other securities. 
 
 The Trading with the Enemy Amendment Act, 1914, 5 
 
EXECUTORY CONTEACTS MADE BEFORE WAR. 57 
 
 Geo. V. c. 12, contains provisions relating to an alien enemy's 
 interests in companies. It enables an official, called the 
 Custodian, who is to be appointed by the Board of Trade 
 (section 1 (1)), and who in England and Wales is the Public 
 Trustee (section 1 (2)), and in Scotland the Accountant of Court 
 {London Gazette, 11th December, 1914) to collect the pay- 
 ments of dividends, interest, or share of profits due to an alien 
 enemy by a person, firm, or company (section 2 (1)), and to 
 hold such until the termination of the war, to be thereafter 
 dealt with in such manner as the King may by Order in 
 Council direct (section 5 (1)). Payment is compulsory on 
 the party liable within fourteen days after 27th November, 
 1914, or within fourteen days after it is due, as the case may 
 be (section 2 (1)). For the purposes of the Act the expression 
 "dividends, interest, or share of profits " means any dividends, 
 bonus, or interest in respect of any shares, stock, debentures, 
 debenture stock, or other obligations of any company, any 
 interest in respect of any loan to a firm or person carrying on 
 business for the purposes of that business, and any profits or 
 share of profits of such a business, and, where a person is 
 carrying on any business on behalf of an enemy, any sum 
 which, had a state of war not existed, would have been trans- 
 missible by a person to the enemy by way of profits from that 
 business is to be deemed to be a sum which would have been 
 payable and paid to that enemy (section 2 (5)). Persons who 
 have or control an enemy's property, real or personal (includ- 
 ing any rights, whether legal or equitable, in or arising out of 
 property, real or personal), are bound to disclose it to the 
 Custodian under heavy penalties (section 3 (1)). Every 
 company incorporated in the United Kingdom and every com- 
 pany which, though not incorporated in the United Kingdom, 
 has a share transfer or share registration office in the United 
 Kingdom must, within one month after the passing of the Act 
 (27th November, 1914), by notice in writing communicate 
 to the Custodian full particulars of all shares, stock, debentures, 
 and debenture stock and other obligations of the company 
 which are held by or for the benefit of an enemy; and every 
 partner of every firm, one or more partners of which on the 
 commencement of the war became enemies or to which money 
 had been lent for the purpose of the business of the firm by a 
 
58 STATEMENT OF THE LAW. 
 
 person who so became an enemy, must within the same period, 
 by notice in writing, communicate to the Custodian full 
 particulars as to any share of profits and interest due to such 
 enemies or enemy. Heavy penalties are imposed on the com- 
 pany or partner failing to comply with this provision (section 
 3 (2)). No transfer made after 27th November, 1914, by or on 
 behalf of an enemy of any securities is to confer on the trans- 
 feree any rights or remedies in respect thereof ; and no company 
 or municipal authority or other body by whom the securities 
 were issued or are managed must, except so far as provided 
 in the Act, take any cognisance or otherwise act upon any 
 notice of such a transfer (section 8 (1)). No entry must be 
 made during the continuance of the war in any register or 
 branch register or other book kept in the United Kingdom of 
 any transfer of securities therein registered, inscribed, or 
 standing in the name of an enemy, except by leave of a Court 
 of competent jurisdiction or of the Board of Trade (section 
 8 (2)). No share warrants payable to bearer are to be issued 
 during the continuance of the present war in respect of any 
 shares or stock registered in the name of an enemy (section 
 8 (3)). Heavy penalties are imposed for contravention of 
 these provisions upon the company or body in default, and 
 upon every director, manager, secretary of the company or 
 body who is knowingly a party to the default (section 8 (4)). 
 " Securities " here mean any annuities, stock, shares, deben- 
 tures, or debenture stock issued by or on behalf of the 
 Government or by any municipal or other authority, or by any 
 company or by any other body which are registered or inscribed 
 in any register, branch register, or other book kept in the 
 United Kingdom (section 8 (5)). Where, during the continu- 
 ance of the war, any coupon or other security transferable by 
 delivery is presented for payment to any company, municipal 
 authority, or other body or person, and the company, body, 
 or person has reason to suspect that it is so presented on behalf 
 of or for the benefit of an enemy, the company, body, or person 
 may pay the sum due in respect thereof into the High Court, 
 and same is, subject to rules of Court, to be dealt with accord- 
 ing to the orders of the Court, and such a payment is for all 
 purposes to be a good discharge to the company, body, or person 
 (section 7). During the continuance of the present war a 
 
EXECUTORY CONTRACTS MADE BEFORE WAR. 59 
 
 certificate of incorporation of a company is not to be given by 
 tbe Registrar of Joint Stock Companies until there has been 
 filed with him either (a) a statutory declaration by a solicitor 
 of the Supreme Court, or, in Scotland, by an enrolled law 
 agent engaged in the formation of the company, that the 
 company is not formed for the purpose or with the intention 
 of acquiring the whole or any part of the undertaking of a 
 person, firm, or company the books and documents of which 
 are liable to inspection under the Trading with the Enemy 
 Act, 1914, 4 & 5 Geo. V. c. 87, section 2 (2), or (h) a licence 
 from the Board of Trade authorising the acquisition by the 
 company of such an undertaking (section 9 (1)). Where such 
 a statutory declaration has been filed, it is not lawful for the 
 company, during the continuance of the present war, without 
 the licence of the Board of Trade, to acquire the whole or any 
 part of such undertaking; and heavy impenalties are imposed 
 on doing so (section 9 (2)). The undertakings here referred to 
 are those (a) of a firm, one of whose partners was immediately 
 before or at any time since the commencement of the present 
 war a subject of, or resident or carrying on business in, a 
 State for the time being at war with Great Britain ; or (6) of 
 a company of which one-third or more of the issued capital or 
 of the directorate immediately before or at any time since the 
 commencement of the present war was held by or on behalf of 
 or consisted of persons who were subjects of, or resident or 
 carrying on business in, a State for the time being at war with 
 Great Britain ; or (c) of a person who was or is, or of a firm or 
 company which were or are, acting as agent for any person, 
 firm, or company trading or carrying on business in a State 
 for the time being at war with Great Britain (Trading with 
 the Enemy Act, 1914, 4 & 5 Geo. Y. c. 87, section 2 (2)). For 
 the purposes of the Trading with the Enemy Amendment Act, 
 1914, 5 Geo. Y. c. 12, " enemy " has the same meaning as in 
 any Proclamation issued by the Crown dealing with trading 
 with the enemy for the time being in force ; and " commence- 
 " ment of the present war " means as respect any enemy the 
 date on which war was declared by the Crown on the country 
 in which that enemy resides or carries on business (section 14 
 (2)) . In the application of the Act to Scotland the necessary 
 change of terminology is made (section 14 (3)). The Act does 
 
60 STATEMENT OF THE LAW. 
 
 not seem to apply outside the United Kingdom. Its other 
 releyant provisions will be found in their appropriate place in 
 this book. 
 
 The review of the British-American case law shows that 
 the suspensory effect of war on executory contracts is, as a 
 rule, chiefly confined to those of a continuous nature. Where 
 the executory contract is not of this character, but relates to a 
 single transaction, e.g., a sale of goods or land, it will generally 
 be dissolved by the outbreak of war. In many such cases time 
 will be of the essence of the contract, either by the express 
 agreement of the parties or from the circumstances of the 
 case, as, for example, in an agreement to sell perishable goods 
 or an interest in property of a speculative or wasting nature. 
 There are, of course, some contracts where time is not essential, 
 e.g., a promise to marry. But in most cases time either is or 
 becomes important. So the duration of the war beyond what 
 would be regarded by the Court as reasonable, in a given 
 executory contract of this nature, will probably dissolve the 
 agreement. 
 
 13. Operation of the Rules of Limitation oe Peesceip- 
 tion on Conteacts Suspended by Wae. — It has been held in 
 the United States that a statute limiting the time within which 
 an action can be brought on a contract does not run whilst such 
 right of action is suspended by war {Hanger v. Abbott, 1867, 6 
 Wall. 532), unless there is an express provision to the contrary 
 in the statute (Luter v. Hunter, 1868, 98 American Decisions, 
 494). 
 
 Some eminent English jurists accept this view. See, for 
 instance, Westlake's International Law, part ii. p. 49 ; 
 Pollock's Principles of Contract, 8th edition, p. 86, n. 
 But there is an obiter dictum of Lord Bramwell to the opposite 
 effect in Be Wahl v. Braune, 1856, 1 H. & N. 178; 25 L.J. 
 Ex. 343. The passage only occurs in the latter report of the 
 case. In that case an Englishwoman, living here separately 
 from her husband, who was an alien enemy domiciled in 
 Russia, claimed to sue on a contract as a feme sole, and part 
 of the argument set up on her behalf was, that unless she 
 could so sue, the claim might be barred by the Statute of 
 Limitations. But Lord Bramwell (then Bramwell, J.) 
 
INTEREST ON CONTRACTS SUSPENDED BY WAR. 61 
 
 observed that "the inconvenient operation of the Statute of 
 " Limitations is no answer, and does not take the case out of 
 "the general rule," i.e., that her husband had to join in the 
 action. Some great English lawyers adopt this dictum (see 
 Anson on Contracts, 13th edition, p. 129 ; Lindley on Company 
 Law, 6th edition, p. 53). There seems to be no Scottish case 
 or opinion as to whether or no prescription runs in such cases. 
 
 14. Interest on Pecuniary Contracts Suspended by War. 
 — The American law is that no interest is recoverable after 
 peace for the time during which the debtor was prevented from 
 paying the principal debt by the law which forbids commercial 
 intercourse with the enemy (Hoare v. Allen, 2 Dallas, 102 ; 
 Foxcroft v. Nagle, Hid. 182). But this rule only applies to 
 cases where interest is recoverable as damages ; for interest, 
 expressly stipulated for in the contract, is not affected by war 
 (Yeaton v. Berney, 62 111. 61 ; Lash v. Lambert, 2 American 
 Reports, 142; but see Brown v. Hiatts, 15 Wall. 185, for a 
 contrary view). Where the debtor, or one of several joint 
 debtors, resides in the same country as the creditor or his duly 
 authorised agent, provided such agent was appointed before 
 the war [United States v. Grossmayer, 9 Wall. 72), interest on 
 the debt is not suspended by war {Ward v. Smith, 7 Wall. 452, 
 455). This is also the case where a surety for an enemy 
 principal resides in the same country as the creditor, and the 
 action is brought against him (Bean v. Chapman, 62 Ala. 58 ; 
 Paul v. Christie, 4 Harr. & M. (Md.) 161). An agreement by 
 a debtor after peace to pay interest for the time during which 
 war continued is binding (Inglis v. Nutt, 2 Desauss. Eq. 
 (Supreme Court) 623 ; Bainbridge v. Wilcocks, Baldw. 536. 
 But such an agreement in England would probably require 
 consideration, if not expressed in a deed, although it would 
 hold good in Scotland (Trotter's Law of Contract in Scotland, 
 pp. 9, 46, 54). In Rowe v. Hardy, 75 American State Reports, 
 811, it was held that where a judgment had been recovered 
 upon a debt, both for principal and interest, it was error in 
 an action on such judgment to abate the interest on the 
 principal debt for the period of the Civil War. 
 
 There is some authority for assuming that the English law 
 is, at all events in part, the same as the American. In Du 
 
62 STATEMENT OE THE LAW. 
 
 Belloix v. Lord Waterparh, 1822, 1 Dow. & Eyl. 16, Abbott, 
 C.J., said — "But there is another objection to the plaintiff's 
 "recovering interest on the debt" (as damages), "for during 
 " the greater part of that time he was an alien enemy, and 
 " could not have recovered even the principal in this country, 
 " and, at all events, during that period of the time the interest 
 " could not have run, and it would even have been illegal to 
 " pay the bill whilst the plaintiff was an alien enemy " (ibid. 
 at p. 19). 
 
 15. Public Debts to Alien Enemies. — "Public funds are 
 " not confiscable. All modern writers share the opinion of 
 " Vattel (Commentaries upon International Law (London, 
 " 1885), vol. iii. pp. 145 seq.) in this respect. A contract to 
 " pay interest to all holders of the national stock or securities 
 " should, if a strict application be made of the principle of 
 " domicile dealt with above, be suspended till the conclusion 
 "of peace, that is, so far as alien enemies are concerned. But 
 " as national honour and the State's credit are involved, it is 
 "conceived that the outbreak of war will not be allowed to 
 " interfere with the discharge of such obligations. It has 
 " thus become a rule of international law that neither the prin- 
 " cipal nor the interest of a State debt can be sequestrated or 
 " confiscated " (The Effect of War on Contracts, by Dr. Coleman 
 Phillipson, p. 39). This doctrine was fully established by the 
 Silesian Loan Controversy of 1752-56 (De Marten's Causes 
 Celebres, ii. 97). 
 
 This principle does not, however, extend to other national 
 obligations, unless they are based on a public treaty such as 
 that under which the Duchess of Coburg still receives her 
 Parliamentary annuity, although the late Duke was a German 
 sovereign (see 65 State Papers, p. 62). Thus payment of the 
 Parliamentary annuity to the Grand Duchess of Mecklenburg- 
 Strelitz, aunt of the Queen, has been suspended. 
 
 It must also be noted that no transfer made after 27th 
 November, 1914, by or on behalf of an enemy of any annuities, 
 stock, shares, debentures, or debenture stock issued by or on 
 behalf of the British Government, confers on the transferee 
 any rights or remedies in respect thereof (Trading with the 
 Enemy Amendment Act, 1914, 5 Geo. V. c. 12, section 8 (1), 
 
ACTIONS BY AND AGAINST ALIEN ENEMIES. 63 
 
 (5)). In short, enemy holders of public stock cannot transfer 
 it during the present war. 
 
 There is, further, no rule of international law that the 
 contractual obligations incurred before the outbreak of war by 
 a State, subsequently conquered and annexed by Great Britain, 
 pass upon annexation, as a matter of course and in default of 
 express reservations, to Great Britain. Such obligations cannot 
 therefore be enforced by British municipal law against the 
 Crown by petition of right. When making peace, the con- 
 quering sovereign can make any conditions he thinks fit 
 respecting the financial obligations of the conquered country, 
 and it is entirely in his option to what extent he will adopt 
 them. The only law here is that of military force, and it is 
 unnecessary for the sovereign when making peace to limit the 
 obligations to be taken over (West Rand Gold Mining 
 Company v. Reg., (L905, 2 KB. 391 ; see Cook v. Sprigg, 1899, 
 A.C. 572). 
 
 16. Actions Bt and Against Alien Enemies. — The general 
 rule is that an action cannot during war be brought by or on 
 behalf of an alien enemy unless by virtue of a statute, or an 
 Order in Council, or a Proclamation, or a licence from the 
 Crown, or unless he comes into the British dominions under a 
 flag of truce, a cartel, a pass, or some other act of public 
 authority that puts him in the King's peace pro hac vice (The 
 "Hoop," 1799, 1 Ch.Eob. 196; Wells v. Williams, 1698, 1 
 Salk. 45; Brandon v. Nesbitt, 1794, 6 T.E. 23; see also The 
 " Chile," 1914, reported in The Times of 5th September, where 
 an alien enemy was not allowed to appear in the Prize Court 
 in answer to the notice served on the ship; Robinson fy Co. 
 v. Continental Insurance Company of Mannheim, 1914, W.N. 
 393; Princess of Thurn and Taxis v. Moffitt, 1914, W.N. 379). 
 In short, an alien enemy cannot sue during war without the 
 licence or authorisation of the Crown (Porter v. Freundenberg, 
 Kreglinger v. S. Samuel fy Rosenfeld, In re Merten's Patent, 
 1915, 31 T.L.R. 162). It has even been doubted whether a 
 licence from the Crown could, in point of law, have the effect 
 of removing this personal disability in respect of suit, so as to 
 enable an enemy trader to sue in his own name (per Lord 
 Ellenborough, C.J., in Kensington v. Inglis, 1807, 8 East, 
 
64 STATEMENT OF THE LAW. 
 
 273). But this cannot be regarded as law now, if, indeed, it 
 ever was. Any apparent exceptions to the general rule, e.g., 
 Spareriburgh v. Bannatyne, 1797, 1 Bos. & P. 163, can be 
 explained on the doctrine of an implied licence from the 
 Crown. In The " Mowe," 1915, P. 1, the President of the 
 Prize Court made a rule of practice allowing an alien enemy 
 to appear and claim the benefit of any Hague Convention which 
 he thinks may help him. Unless an alien enemy can bring 
 himself within one of the above-mentioned exceptions, he is 
 precluded from suing during war (Von Hellfield v. Rechnitzer, 
 reported in The Times of 11th December, 1914). 
 
 Where the plaintiff in an action becomes an alien enemy 
 after the action has been commenced by him, he cannot con- 
 tinue it during war (Le Bret v. Papillon, 1804, 4 East, 502). 
 But in Venbrynen v. Wilson, 1808, 9 East, 320, the Court 
 refused to stay judgment and execution, on a summary appli- 
 cation, because the plaintiffs after verdict became alien 
 enemies. 
 
 Where a co-plaintiff with a British subject becomes an alien 
 enemy during the dependence of an action, proceedings will be 
 stayed (Actien Gesellschaft fur Anilin Faibrikation in Berlin and 
 Mersey Chemical Works, Limited v. Levinstein, Limited, 1915, 
 W.N. 85), unless the British co-plaintiff is the real and sub- 
 stantial plaintiff in the action {Mercedes Daimler Motor Com- 
 pany, Limited, and Daimler Motoren Gesellschaft v. Maudsley 
 Motor Company, Limited, 1915, W.N. 55). 
 
 Both on American and English authority an action can 
 during war be brought against an alien enemy (M'Veigh v. 
 United States, 11 Wall. 259 ; Dorsey v. Kyle, 1869, 96 American 
 Decisions, 617 ; Robinson 8f Go. v. Continental Insurance Com- 
 pany of Mannheim, 1914, W.N. 393 ; Porter v. Freundenberg, 
 Kreglinger v. S. Samuel 8f Rosenfeld, In re Merten's Patent, 
 1915, 31 T.L.B. 162). An alien enemy can defend by all the 
 usual means and appliances (Russ v. Mitchell, 11 Fla. 80; 
 Seymour v. Bailey, 66 111. 288; see also English 
 cases last cited). In such a case the alien enemy has 
 the same right of appeal as any other litigant; although if 
 he be a plaintiff, his right of appeal is suspended during the 
 war, unless he sues with the licence or authorisation of the 
 Crown {Porter v. Freundenberg, Kreglinger v. S. Samuel # 
 
ACTIONS BY AND AGAINST ALIEN ENEMIES. 65 
 
 Rosenfeld, In re Merten's Patent, 1915, 31 T.L.E. 162). But 
 the English Courts are so averse to any intercourse with the 
 enemy country that they will not sanction any communication 
 with it, e.g., a commission to examine witnesses, even in an 
 action where neither party is an alien enemy (Barwick v. 
 Cvia, 14 C.B. 492). 
 
 An alien enemy who claims to have a title to sue on any 
 of the grounds above mentioned, e.g., an Order in Council, &c, 
 must, it has been held, show on what specific ground he has 
 such title (The "Phoenix," 2 Eoscoe's Prize Cas. 439; The 
 " Froija," Spinks' Prize Cas. 37 ; The " Marie Glceser," 1914, 
 137 Law Times, 469). Thus, if he has a licence, he must 
 plead it (Sylvester's Case, 1703, 7 Mod. Eep. 150). 
 
 On the other hand, it has been held in America that the 
 defence of alien enemy is deemed to be waived unless specially 
 pleaded (MeNair v. Toiler, 21 Minn. 175 ; Burnside v. Matthews, 
 54 N.T. 78). In England it must be specially pleaded to an 
 action on a contract which was legal in its inception (Flindt 
 v. Waters, 1812, 15 East, 260). Although the English Court 
 can take judicial notice of the fact of hostile alienage where 
 this is obvious on the record, as in the case of a foreign com- 
 pany (Lord Davey's judgment in Janson v. Driefontein Con- 
 solidated Mines, Limited, 1902, A.C. 499), this objection can be 
 waived by consent in an action on a contract which was lawful 
 when originally made (Lord Lindley's judgment, ibid. 509). 
 But this has been doubted (Netherlands South African Railway 
 Company v. Fischer, 1901, 18 T.L.E. 116; Lord Davey's judg- 
 ment in Janson v. Driefontein Consolidated Mines, Limited, 
 1902, A.C. 499). Where the defence of alien enemy is set 
 up, it must be made out by the strictest proof. The person 
 alleged to be an alien enemy must be shown by the clearest 
 evidence to be so either by nationality or domicile (per Lord 
 Ellenborough, C.JT., in Harman v. Kingston, 1811, 3 Camp. 
 152). Thus, the mere production of a passport found on a 
 prisoner, which is proved to be granted by the authorities of a 
 foreign State to natural-born subjects only, has been held not 
 to be sufficient evidence of his being an alien (Reg. v. Burke, 
 11 Cox, C.C. 138). Again, to prove that a person was an alien 
 enemy at the time of the action, it is not enough to show that 
 
66 STATEMENT OP THE LAW. 
 
 lie was some time before domiciled in a State which has become 
 hostile, without showing that he was a native of that country 
 or was living in it at the time the action was brought (Harmon 
 v. Kingston, 1811, 3 Camp. 150). 
 
 The defence of alien enemy seems, on the whole, not to be 
 favoured by the English Courts. Lord Kenyon observed that 
 it was " an odious plea," and that a defendant who sets it up 
 must " state everything that can oust the plaintiff of his right 
 "of suing" {Casseres v. Bell, 1799, 8 T.R. 166). And in 
 Shepeler v. Durant, 1854, 14 C.B. 582, where a defendant 
 obtained time to plead on the usual terms, i.e., that he should 
 plead issuably, and afterwards war broke out between Great 
 Britain and the State of which the plaintiff was a subject, the 
 Court refused to allow the defendant to plead that the plaintiff 
 was an alien enemy. Lord Lindley holds the same view of 
 this defence; but a contrary opinion has been expressed by 
 Lord Davey and Lord Justice Vaughan Williams (Janson v. 
 Driefontein Consolidated Mines, Limited, 1902, A.C. 499 ; the 
 view of Vaughan Williams, L.J., will be found in the same 
 case, 1901, 2 KB. 432). 
 
 When this plea is successfully raised at the outset of an 
 action, the proper course for the Court is to dismiss the action. 
 Thus, in the unreported case in the Glasgow Sheriff Court, 
 mentioned in section 10, supra (second last paragraph), the 
 Sheriff-Substitute was asked to continue the case sine die, so 
 that the pursuer (i.e., plaintiff) could enrol it after peace was 
 declared. But as war had been declared before the date of 
 the summons, the learned Sheriff-Substitute held that the 
 pursuer, at the date of raising the action, had no title to sue, 
 and dismissed the case. If the plaintiff becomes an alien 
 enemy subsequently to the commencement of the action, it 
 would seem that the case can either be dismissed (Alcinous v. 
 Nigreu, 1854, 4 E. & B. 217), or proceedings stayed till the 
 restoration of peace (see Shepeler v. Durant, 1854, 14 C.B. 
 582). In Craig Line Steamship Company, Limited v. North 
 British Storage Company, 1914, 2 S.L.T. 326, the action was 
 sisted on the pursuer becoming an enemy during its depend- 
 ence. But this alternative only exists where the contract is 
 otherwise valid, and the sole question is its enforceability 
 during war. 
 
SERVICE ON ALIEN ENEMIES. 67 
 
 As an alien enemy can be sued, so of course he can be made 
 bankrupt; and it follows from the decision of the Court of 
 Appeal in Porter v. Freundenberg, Kreglinger v. S. Samuel fy 
 Rosenfeld, In re Merten's Patent, 1915, 31 T.L.R. 162, that a" 
 bankrupt alien enemy can apply for and obtain his discharge 
 (In re Levy, reported in The Times of 30th January, 1915). 
 
 17. Service on Alien Enemies. — If an alien enemy is 
 resident here, or, although out of the jurisdiction, has a 
 solicitor who will accept service, no difficulty arises as to 
 bringing him before the Court, and this is also the case when 
 the enemy has a branch establishment here (see the Companies 
 (Consolidation) Act, 1908, 8 Edw. VII. c. 69, section 274; 
 Leader, Plunkett Sf Leader v. Direction der Disconto-Gesellschaft, 
 1914, 31 T.L.R. 83). In other cases difficulties arise. 
 
 The English rule of procedure is that a writ of summons 
 cannot be served on a foreigner outside the jurisdiction 
 (Hewitson v. Fabre, 1888, 21 Q.B. 6); although he can be 
 served with notice of a writ (R.S.C., 0. 11, r. 6). There must 
 be personal service of this notice (R.S.C., 0. 9, r. 2) ; unless 
 (1) the defendant or his solicitor undertakes in writing to 
 accept service and enters an appearance; or (2) in certain 
 miscellaneous cases where process may be served in other ways, 
 e.g., on vacant land (R.S.C., 0. 9, r. 9), or by warrant of 
 arrest in Admiralty actions in rem (R.S.C., 0. 9, rr. 11-14) ; 
 or (3) the person without the jurisdiction has contracted to 
 have a domicile within it for the purpose of being sued here 
 (Montgomery v. Liebenthal, 1898, 1 Q.B. 487), provided that 
 this does not give the Court any jurisdiction expressly forbidden 
 by the Rules (British Wagon Company v. Lea, 1896, 1 Q.B. 
 35). 
 
 Service of notice of the writ through the Foreign Office is 
 impossible in time of war; it is difficult in time of peace. It 
 only applies to countries as to which the Lord Chancellor has 
 made an Order ; and the Order made with reference to Germany 
 on 4th July, 1904, has, of course, been revoked. There is no 
 like provision for service of County Court process. 
 
 The only mode, apart from the above exceptions, to bring 
 an alien enemy into Court is by substituted service. Here leave 
 of the Court must be obtained on an application supported by 
 affidavit that prompt personal service cannot be effected. 
 
68 STATEMENT OF THE LAW. 
 
 The general rule is that an order for substituted service of 
 a writ of summons for service within the jurisdiction cannot 
 he made in any case in which at the time of the issue of the 
 writ there could not he at law a good personal service of the 
 writ because the defender is not within the jurisdiction. In 
 order that substituted service may be permitted, it must be 
 clearly established that the plaintiff is in fact unable to effect 
 personal service, and that the writ is likely to reach the 
 defendant or to come to his knowledge by the method of sub- 
 stituted service which is asked for. The Court may then make 
 such order as may seem just (0. 9, r. 2). The terms of this 
 rule are of very wide application, and give a very wide dis- 
 cretion, which the Court of Appeal in Porter v. Freundenberg, 
 Kreglinger v. S. Samuel fy Rosenfeld, 1915, 31 T.L.R. 162, 
 was not inclined to limit. In the case of a writ properly issued 
 under one of the heads of Order 11 rule 1, for service out of 
 the jurisdiction, substituted service, either within or without 
 the jurisdiction, may be allowed under special circumstances, 
 as, for example, where the defendant is evading personal service 
 of the writ and the proposed form of substituted service will 
 be effectual in bringing the writ to his notice [Ford v. Shep- 
 herd, 1885, 34 W.R. 63; per Swinfen Eady, J., in Western, 
 tyc, Building Society v. Ruehlidge, 1905, 2 Ch. 472). 
 
 In the case of a notice of a writ to be served on a foreigner 
 outside the jurisdiction, the Court of Appeal in Porter v. 
 Freundenberg, Kreglinger v. S. Samud 8f Rosenfeld, 1915, 31 
 T.L.R. 162, saw no reason why substituted service of such 
 notice should not be permitted in similar circumstances to 
 those in which it was allowed in the case of a writ for service 
 out of the jurisdiction. Order 11, rule 7, and Order 9, rule 2, 
 gave power to order it ; and this was contemplated under Order 
 11, rules 8 (4) and 5 (see Ditton v. Borniman, 3 T.L.R. 3). The 
 Court of Appeal laid down two rules for the guidance of 
 the judge in chambers before whom an application is made for 
 substituted service of a writ for service out of the jurisdiction, 
 or of notice of such writ. First, he must satisfy himself that 
 actual service is practically impossible ; secondly, he must 
 satisfy himself that the method of substituted service asked 
 for by the plaintiff is one which will in all reasonable proba- 
 bility, if not certainty, be effective to bring knowledge of the 
 
SEEYICE ON ALIEN ENEMIES. 69 
 
 writ, or of the notice of the writ, as the case may be, to the 
 defendant. 
 
 There is some difficulty " in imagining how an English 
 " plaintiff would satisfy a judge in chambers that, ' in all 
 " ' reasonable probability, if not certainty,' knowledge of the 
 " institution of proceedings would be brought home to a defend- 
 " ant fighting in the trenches opposite those of th© allies. 
 " Possibly the friendly offices of neutrals will be taken advan- 
 " tage of for this purpose " (138 Law Times, p. 290). 
 
 In Porter v. Freundenberg, and in Kreglinger v. S. Samuel 
 8f Rosenfeld, 1915, 21 T.L.R. 162, leave was given to make 
 substituted service upon an agent and a manager in this country 
 respectively, and both cases were referred back to chambers 
 for directions as to th© mode of communicating notice of the 
 proceedings to the defendants and as to the time to be allowed 
 for appearance. 
 
 In certain cases a wider power than that above mentioned 
 seems to be given to the Court by the Trading with the Enemy 
 Amendment Act, 1914, 5 Geo. V. c. 12, section 4 (2). The 
 High Court or a judge thereof may, on the application of any 
 person who appears to the Court to be the creditor of an enemy 
 or entitled to recover damages against an enemy, or to b© 
 interested in any property, real or personal (including any 
 rights, whether legal or equitable, in or arising out of property 
 real or personal), belonging to or held or managed for or on 
 behalf of an enemy, or on the application of the Custodian 
 or any Government Department, by order vest in the Custodian 
 any such real or personal property as aforesaid, if the Court or 
 the judge is satisfied that such vesting is expedient for the 
 purposes of the Act, and may by the order confer on the 
 Custodian such powers of selling, managing, and otherwise 
 dealing with the property as to the Court or judge may seem 
 proper (section 4 (1)). Th© Court or judge before making any 
 such order may direct that such notices (if any), whether by 
 way of advertisement or otherwise, shall be given as the Court 
 or judge may think fit (section 4 (2)). One can thus get 
 satisfaction of a claim out of an enemy's property here by 
 this mode of proceeding (section 5 (1)). But In re Bank fur 
 Handel und Industrie, 1915, W.N. 145, decides that it was 
 not the intention of the Act to place the Custodian in the 
 position of an assignee of a disputed debt. 
 
70 STATEMENT OF THE LAW. 
 
 In Scotland, as in America (Dorsey v. Kyle, 1869, 96 Am. 
 Dec. 617), no difficulty arises about service because of the 
 mode of edictal citation which is employed when the defender, 
 is out of the jurisdiction (6 Geo. IV. c. 120, section 51; A.S., 
 24th December, 1838, section 7; 13 & 14 Vict. c. 36, section 
 22; and see Mackay's Manual of Practice). 
 
 18. Legal Proceedings against Enemies Act, 1915. — 
 The object of this Act (5 Geo. V. c. 36) is to facilitate legal 
 proceedings against enemies in certain cases, namely, where 
 — (a) the plaintiff is a British subject and is entitled for the 
 time being to bring an action in the High Court; and (&) the 
 defendant or one of the defendants is an enemy ; and (e) the 
 writ is indorsed only with a claim for a declaration as to the 
 effect of the present war on rights or liabilities of the plaintiff 
 or defendant under a contract entered into before the outbreak 
 thereof; and (d) there is written evidence of the contract 
 (section 1 (6)). 
 
 In such cases leave may be given to issue a writ of summons 
 in the High Court for service on an enemy out of the jurisdic- 
 tion or of which notice is to be given out of the jurisdiction if 
 the Court or judge is satisfied that the case is one to which the 
 Act applies, and the Court or a judge may, on an application 
 made at the time leave is so given or at any subsequent time, 
 if satisfied that the writ cannot promptly be served or brought 
 to the notice of the enemy defendant by any of the usual means, 
 make an order (called in the Act an enemy service order) 
 directing substituted or other service of the writ or the substi- 
 tution of notice for service by means of advertisement or 
 otherwise ; and on that order being complied with, all proceed- 
 ings may be taken on the claim as if the writ had been served 
 on the enemy defendant by the usual means (section 1 (1)). 
 In the cases to which the Act applies, " constructive service " 
 is thus permissible, just as in applications to vest property of 
 an enemy in the Custodian (Trading with the Enemy Amend- 
 ment Act, 1914, 5 Geo. V. c. 12, section 4 (1), (2)). This kind 
 of service has hitherto been unknown in English procedure. 
 
 The Lord Chancellor of England or Ireland (section 4), as 
 the case may be, is empowered to make such rules as he thinks 
 fit for expediting proceedings and regulating procedure gener- 
 
LEGAL PROCEEDINGS AGAINST ENEMIES ACT. 71 
 
 ally in a case where an enemy service order has been made and 
 the enemy defendant does not appear; and any rules so made 
 are to have effect as if they were included in the Rules of Court 
 for the time being in force (section 1 (2)). 
 
 Where an enemy service order has been made, and it 
 appears not to be practicable to obtain the best evidence of 
 any document which is, in the opinion of the Court or judge, 
 material to the case, the Court or judge may admit such other 
 evidence thereof as appears proper in the circumstances (section 
 1(3)). 
 
 The Court or judge has power, where an enemy service order 
 has been made and the enemy defendant does not appear, to 
 order the plaintiff, though successful, to pay the whole or any 
 part of the proceedings, if the Court or judge consider that it 
 is just to do so in the special circumstances of the case (section 
 
 1 (4))- 
 
 The fact that, for the purpose of obtaining the benefit of 
 this provision, a writ of summons has been indorsed only 
 with a claim for a declaration in accordance therewith does not 
 prevent any other declaration or any consequential or other 
 Telief being claimed in other proceedings, or prevent the case 
 being dealt with, although no such other declaration or conse- 
 quential or other relief is claimed (section 1 (5)). 
 
 Nothing in the Act is to prejudice or interfere with any 
 powers of the Court to give leave to issue a writ of summons 
 or to adjourn, postpone, or otherwise deal with, any proceedings 
 on any claim against an enemy, and the Court or judge may, 
 if it appears on any proceedings in a case where an enemy 
 service order has been made that for any reason the case cannot 
 properly be dealt with under the Act, dismiss the case, without 
 prejudice to any subsequent proceedings in the same matter 
 (section 3). 
 
 " Enemy " in the Act means any persons or body of persons 
 of whatever nationality resident or carrying on business in an 
 enemy country, but does not include persons of enemy 
 nationality who are neither resident nor carrying on business in 
 an enemy country (section 2 (a)). " Outbreak of war" is, as 
 respects any enemy, to be construed as referring to the date of 
 the outbreak of war with the enemy country in which the 
 enemy is resident or carrying on business (section 2 (&)). 
 
72 STATEMENT OF THE LAW. 
 
 " British subject " includes a corporation incorporated in the 
 British Dominions (section 2 (c)). 
 
 The Act does not apply to Scotland (section 5 (2)). Where 
 it does apply, it overrules the decision in Zinc Corporation, 
 Limited, and Romaine v. Skipwith and Others, 1914 (C.A.), 31 
 T.L.R. 107, to the effect that an action by one party to a 
 contract for a declaration as to its construction will not lie in 
 the absence of the other party, where there is no third' party 
 whose interests make it necessary to determine its construction. 
 
 19. Effect of Was, on Contracts Made with Persons 
 who are not Alien Enemies. — When a contract is made before 
 the outbreak of war with a party who does not subsequently 
 become an alien enemy, it will be dissolved by war in three 
 cases — (1) Where a state of war makes the contract illegal, or 
 (2) where performance of the contract is thereby rendered im- 
 possible, provided that the possibility of performance was 
 known by the parties to depend upon the continuance of a state 
 of peace, or (3) where the risks of war were not in the contem- 
 plation of the parties. 
 
 The leading case of Exposito v. Bowden, 1857, 7 E. & B. 
 763, establishes the rule that a contract made before war is 
 dissolved where the outbreak of war makes its performance 
 illegal. 
 
 The plaintiff in that case was the owner of a neutral ship 
 chartered by the defendant, a British subject, to bring a cargo 
 of corn from Odessa. Before the ship reached that port Great 
 Britain declared war against Russia. The defendant did not 
 therefore load the cargo, and was sued by the plaintiff, a 
 neutral, for breach of contract. The Court held that the 
 contract was dissolved by the outbreak of hostilities, because 
 its performance would have involved an illegal trading with 
 the enemy on the part of the defendant. The authorities are 
 reviewed in the elaborate judgment of Willes, J., who has been 
 well described by Sir Frederick Pollock as a master of the 
 common law. (See Reid v. Hoskins, 6 E. & B. 953, a similar 
 case, but where both parties were British subjects.) 
 
 In Duncan, Fox 8f Co. v. Schrempft fy Bonke, 1915, 1 K.B. 
 365, there was a c.i.f . contract, and payment was to be made in 
 exchange for shipping documents on presentation of the same. 
 
CONTEACTS WITH PEESONS NOT ENEMIES. 73 
 
 The honey sold was shipped on a German steamship to 
 Hamburg. The present war broke out in the meantime, and 
 on 5th August, 1914, a Eoyal Proclamation was issued against 
 trading with the enemy. The shipping documents were there- 
 after tendered to the sellers, who refused to accept them. 
 Atkins, J., held that such refusal was justified, because by 
 accepting the shipping documents and obtaining the goods the 
 sellers would have been guilty of trading with the enemy. 
 
 But where the terms of a charter party and bill of lading 
 are such that it can be legally performed by delivery of the 
 cargo at some of the other ports mentioned in the contract, and 
 is so performed, an action for freight will lie against the owners 
 of the cargo, and war has no effect upon such a contract (The 
 " Teutonia," 1872, L.E. 4 P.C. 171). 
 
 No action of damages lies in case of deviation in a voyage 
 or detention of a ship in neutral waters in order to avoid 
 imminent risk of capture (The " San Roman," 1873, 5 P.C. 301 ; 
 see also The " P atria," 3 A. & E. 436; The " Heinrich," ibid. 
 424; The "Express," ibid. 597). 
 
 A mere apprehension that the port of loading is about to 
 become hostile, or a mere apprehension of capture not founded 
 on circumstances which would affect the mind of a master of 
 ordinary courage, judgment, and experience, is not sufficient 
 to justify delay in the voyage (Atkinson v. Ritchie, 10 East, 
 530; Or good v. Groning, 2 Camp. 466). 
 
 In short, deviation or delay in prosecuting the voyage con- 
 templated in a policy of marine insurance is excused where 
 reasonably necessary for the safety of the ship or subject- 
 matter insured (Marine Insurance Act, 1906, 6 Edw. VII. c. 
 41, section 30 (4) ; see also ibid, sub-sections 2, 3, 5, 6, for 
 other excusing circumstances, all of which are likely to arise in 
 time of war). 
 
 An insurance by a British company of its property in an 
 enemy country against capture by enemies, which has been 
 effected before war with a British insurer, is valid, provided 
 such property has not acquired enemy character by any act of 
 the owner evincing an intention to retain his domicile in 
 enemy territory, e.g., by continuing to work a gold mine 
 therein (Nigel Gold Mining Company v. Hoade, 1901, 2 K.B. 
 849). 
 
74 STATEMENT OF THE LAW. 
 
 A contract for the exportation of goods, although made 
 before the outbreak of war with a party who does not thereby 
 become an alien enemy, may be rendered illegal and void by a 
 Proclamation or Order in Council issued under statutory 
 authority, e.g., under section 8 of the Customs and Inland 
 Bevenue Act, 1879, or under section 1 of the Exportation of 
 Arms Act, 1900. Several such Proclamations or Orders in 
 Council have been issued in connection with the present war, 
 and are set forth in Part IV. of this book. One example may 
 be given here. 
 
 On 10th August, 1914, a Proclamation prohibited the 
 export of sugar and of confectionery as containing sugar. It 
 was withdrawn on 20th August, having only been in force ten 
 days. Yet a case arose in connection with it. In Andrew 
 Millar 8f Co., Limited v. Taylor fy Co., 1915, W.N. 116, con- 
 tracts for sale of certain confectionery for export were made 
 between 18th June and 23rd July, 1914. On 14th August 
 of that year the sellers cancelled their orders. The buyers sued 
 for damages for non-delivery. Kowlatt, J., held that the sellers 
 were entitled to regard the contract as ended by the Proclama- 
 tion of 10th August, 1914. The fact that the embargo only 
 lasted ten days was immaterial. For aught that was known by 
 the parties it might have lasted for years. 
 
 But where a contract of sale provides for the contingency 
 of an outbreak of war, as where a contract of sale of sugar 
 f .o.b.' at Hamburg contains a war clause to the effect that, if 
 by reason of war this is not possible, the contract is to be 
 settled by a payment in cash, the outbreak of war and the 
 embargo on sugar by a foreign Government do not end the 
 contract {Smith, Coney 8f Barrett v. Becker, Gray Sf Co., 
 reported in The Times of 13th January, 1915). 
 
 By a Proclamation, dated 5th August, 1914, it is illegal to 
 carry in British ships any article, comprised in the list of 
 contraband issued by the Crown, from any foreign port to any 
 other foreign port unless the shipowner has first satisfied 
 himself that the articles are not intended ultimately for use in 
 the enemy country. (See Part IV. of this book for the articles 
 which are contraband of war.) Any contract contrary to this 
 prohibition will be illegal and void, whether made before or 
 during the present war, or made with a British, allied, or 
 
CONTEACTS WITH PEESONS NOT ENEMIES. 75 
 
 neutral person. But the crew are probably entitled to their 
 wages {The " Frederick," 5 Oh. Eob. 8) ; and a mate who 
 becomes master during the voyage may possibly claim his 
 wages as mate for the whole voyage {The " Favourite " (Instance 
 Court), 2 Ch.Eob. 223). Such claims seem good even against 
 the captors ; but the captain must sue the owner {ibid. ; see, 
 however, The "Anna Catharina," 6 Ch.Eob. 10). An enemy 
 crew cannot recover their wages {The "Favourite" (Instance 
 Court), 2 Ch.Eob. 223). The master or crew must have acted 
 in good faith {The "Calypso," 2 Ch.Eob. 298). The cases 
 cited referred to claims of a neutral captain or crew, but seem 
 applicable to those of a British captain or crew. At any rate, 
 it was held in The "Juno," 1915, 31 T.L.E. 131, that where 
 enemy goods, shipped before the outbreak of war, are seized 
 en route for a foreign port, the Prize Court will allow the ship- 
 owner such a sum in respect of freight up to the time of seizure 
 as is fair and reasonable. 
 
 The outbreak of a war in which Great Britain is not a 
 party may render performance of a contract illegal. 
 
 In O'Neil v. Armstrong, 1895, 2 Q,.B. 418, an Englishman 
 was engaged by the captain of a Japanese warship to act as a 
 fireman on a voyage from the Tyne to Yokohama. In the 
 course of the voyage war broke out between China and Japan. 
 Further performance of the contract by the Englishman was 
 illegal under the Foreign Enlistment Act, 1870, 33 & 34 Vict. 
 c. 90, section 3. He was held entitled to leave the ship and 
 sue for the wages agreed upon, since the act of the Government 
 in Japan had made his performance of the contract legally 
 impossible. 
 
 The illegality of any part of a contract vitiates the whole, 
 unless the illegal part can be separated from the legal, in which 
 case the latter can be enforced (per Willes, J., in Pickering v. 
 Ilfracombe Railway Company, 1868, L.E.C.P. 250). So 
 where a contract includes several obligations, some only of 
 which are unlawful, the remainder (if separable) are valid 
 {GasMl v. King, 11 East, 164; Median v. May, 1843, 11 M. 
 & W. 665; 13 M. & W. 517; Maxim-Nordenfeldt Gun Com- 
 pany v. Nordenfeldt, 1894, A.C. 535). But, as a general rule, 
 a promise given for a consideration, part of which is illegal, 
 is void {Rex. v. Northunng field, 1830, 1 B. & Ad. 912; Maitland 
 
76 STATEMENT OF THE LAW. 
 
 v. Rattray, 1848, 11 D. 71). There seems to be no apportion- 
 ment of consideration (F ether stone v. Hutchinson, 1590, Cro. 
 Eliz. 199), unless in the case of several obligations granted for 
 distinct and several considerations (Pigofs Case, 1614, 11 
 Co.Eep. 27 b). 
 
 Thus, if a British subject is licensed to trade in particular 
 goods, or goods to a certain amount, with the enemy, and 
 insures his whole cargo with a British company, such insurance 
 will cover the licensed goods, unless the whole contract is 
 indivisible (Butler v. Allnutt, 1 Stark, 222; Pieschell Y.AUnutt, 
 4 Taunt. 792). If the contract be divisible, it is immaterial 
 whether the difference in the cargo is one of quantity only 
 (Keir v. Andrade, 2 Marsh. 196). 
 
 So far we have only considered contracts which are 
 dissolved either by the mere outbreak of war or by a subsequent 
 change in the law made in connection with war. We have 
 now to discuss the effect of war in creating impossibility of 
 performance of a contract, where the parties have made no 
 provision in their agreement as to this eventuality. 
 
 The impossibility under discussion does not include what 
 has been termed " commercial impossibility," i.e., extreme and 
 unforeseen cost or difficulty of performance, which is no excuse 
 for non-performance {Hong-Kong and Whampoa Dock 
 Company, Limited v. Neiherton Shipping Company, Limited, 
 1909, S.C. 34, a Scottish case; Brown v. Royal Insurance 
 Company, 1859, 1 E. & E. 853). Again, if any one agrees to 
 do work according to orders or specifications from the other 
 party to the contract, he is not freed from his obligation by the 
 fact that such work turns out to be impracticable. In the 
 Scottish case of Gillespie fy Co. v. Howden Sf Co., 1885, 12 R. 
 800, there was a contract for the building of a ship of specified 
 dimensions and carrying power, according to a model to be 
 approved by the purchaser. The ship actually built was 
 deficient in the required carrying capacity. In an action for 
 damages for breach of contract at th© instance of the purchaser, 
 it was held no defence to show that it was impossible to build 
 a seaworthy ship of the required dimensions and carrying 
 capacity according to the model. English cases to the same 
 effect are Jones v. St. John's College (Oxford), 1870, L.E,. 
 6 Q.B. 115, 124, and Thorn v. Mayor of London, 1876, L.E,. 
 
CONTRACTS WITH PERSONS NOT ENEMIES. 77 
 
 9 Ex. 163; 10 Ex. 112; affirmed by the House of Lords, 1 
 App.Cas. 120. Any impossibility of tbe above kinds caused 
 by war will have no effect on a contract made before or during 
 tbe war. Nothing short of sheer impossibility will serve as an 
 excuse, and even then it only does so under certain circum- 
 stances, which must now be considered. 
 
 A general rule is laid down in Paradine v. Jane, 1647, 
 Aleyn, 26, where the defendant was sued for rent due on a 
 lease. The defendant pleaded "that a certain German prince, 
 " by name Prince Rupert, an alien born, enemy to the King 
 " and his kingdom, had invaded the realm with a hostile army 
 " of men ; and with the same force did enter upon the 
 " defendant's possession, and him expelled, and held out of 
 " possession . . . whereby he could not take the profits." 
 This was held to be no excuse for the non-payment of the rent. 
 " And this difference was taken, that where the law creates a 
 " duty or charge, and the party is disabled to perform it with- 
 " out any default in him, and hath no remedy over, there the 
 " law will excuse him. As in the case of Waste, if a house be 
 " destroyed by tempest, or by enemies, the lessee is excused. 
 " . . . But when the party by his own contract creates a 
 " duty or charge upon himself, he is bound to make it good, 
 " if he may, notwithstanding any accident by inevitable 
 " necessity, because he might have provided against it by his 
 " contract. And therefore, if the lessee covenant to repair a 
 " house, though it be burnt by lightning or thrown down by 
 " enemies, yet he ought to repair it." 
 
 An express unconditional contract is not, then, as a general 
 rule, dissolved by its performance being or becoming quite 
 impossible in fact owing to particular circumstances, one of 
 which is war. This rule is not only accepted by all authorities, 
 e.g., Sir Frederick Pollok (Principles of Contract, 7th edition, 
 pp. 407-8), and Anson (Law of Contract, 13th edition, pp. 
 370-372), but is also supported by positive decisions, such 
 as Hills v. Sughrue, 1846, 15 M. & W. 253 ; Kearon v. Pearson, 
 1861, 7 H. & N. 386; Thais v. Byers, 1876, 1 Q.B.D. 244; 
 Budgett v. Binnington, 1891, 1 Q.B. 35; see also Barker v. 
 Hodgson, 1814, 3 M. & S. 267; Spence v. Chodwick, 1847, 10 
 Q.B. 517. This rule does not extend to implied contracts 
 Ford v. Cotesworth, 1870, L.R. 5 Q.B. 544; Hicks v. Ray- 
 
78 STATEMENT OF THE LAW. 
 
 mond, 1893, A.C. 22), nor to a contract where both parties are 
 prevented, e.g., by foreign law, from performing their respec- 
 tive parts of the agreement (Cunningham v. Dunn, 1878, 3 
 C.P.D. 443). Hence war may dissolve an implied contract 
 by rendering its fulfilment impossible, and also dissolves an 
 express unconditional contract which it makes impossible of 
 performance by either party. But the outbreak of war will not 
 affect an express unconditional contract by rendering it im- 
 possible of performance by one of the parties, unless it falls 
 within the admitted exceptions to the general rule. 
 
 The general nature of these exceptions is thus stated in 
 Baily v. Be Crespigny, 1869, L.E. 4 Q.B. 185— 
 
 " There can be no doubt that a man may by an absolute 
 " contract bind himself to perform things which subsequently 
 " become impossible, or to pay damages for the non-perform- 
 " ance, and this construction is to be put upon an unqualified 
 " undertaking, where the event which causes the impossibility 
 "was or might have been anticipated and guarded against in 
 " the contract, or where the impossibility arises from the act 
 "or default of the promiser " (e.g., by voluntary enlistment 
 at the present time in the Army or Navy after making a 
 contract before the war for personal services). 
 
 " But where the event is of such a character that it cannot 
 " reasonably be supposed to have been in the contemplation of 
 " the contracting parties when the contract was made, they 
 " will not be held bound by general words which, though large 
 " enough to include, were not used with reference to the possi- 
 " bility of the particular contingency which afterwards 
 " happens. It is on this principle that the act of God is in 
 " some cases said to excuse the breach of a contract. This is in 
 " fact an inaccurate expression, because, where it is an answer 
 " to a complaint of an alleged breach of contract that the thing 
 " done or left undone was so by the act of God, what is meant 
 " is that it was not within the contract." 
 
 The group of exceptions has been widened by recent 
 decisions. But perhaps the law may be thus summarised — If, 
 according to the true intention of the parties, the contract was 
 conditional on its performance being or continuing possible in 
 fact, it will be avoided by performance being or becoming 
 impossible in fact. Such an intention is presumed where the 
 
CONTEACTS WITH PEESONS NOT ENEMIES. 79 
 
 performance depends on the existence or continued existence 
 of some thing, or state of things, or condition {e.g., the life or 
 health of a party in a contract of personal services). This 
 general statement, however, requires to he applied to particular 
 cases. 
 
 (1) " Where there is an agreement to sell specific goods, 
 " and subsequently the goods, without any fault on the part 
 " of the seller or buyer, perish before the risk passes to buyer, 
 " the agreement is thereby avoided " (Sale of Goods Act, 1893, 
 56 & 57 Vict. c. 71, section 7; Leitch v. Edinburgh Ice and 
 Cold Storage Company, 1900, 2 F. 904). This rule would apply 
 to an agreement to sell specific goods in a British ship -which 
 had been destroyed at sea by a German cruiser. 
 
 But where there was a written contract of sale of goods 
 for shipment from Calcutta to London on c.i.f . terms, payment 
 to be cash against documents, and " war risk for buyer's 
 " account," and there was no appropriation of goods to the con- 
 tract until after the steamer carrying them had, unknown to 
 the parties, been sunk by a German cruiser, Atkin, J., held 
 that the tender of the documents after such appropriation 
 bound the buyers (C. Groom, Limited v. Barber, 1914, W.N. 
 440). 
 
 In Appleby v. Myers, 1867, L.E. 2 C.P. 651, a contract to 
 erect machinery upon certain premises and keep it in repair 
 for two years was held to be discharged by the total destruction 
 of the premises through fire during the progress of the work. 
 If the destruction had taken place through a bomb from a 
 Zeppelin, the effect on such a contract would have been the 
 same. The effect would be the same on a similar contract 
 where the premises had been destroyed under Article 2 (d) of 
 the Defence of the Eealm (Consolidated) Eegulations, 1914. 
 
 In the same way, where an agreement is made for the use 
 of premises for a particular purpose, e.g., a musical perform- 
 ance, and are destroyed, say, by fire, before the time when 
 they are to be used, the agreement is discharged (Taylor v. 
 Caldwell, 1862, 3 B. & S. 826). The principle of Taylor v. 
 Caldwell would cover the case of the charter party of a British 
 ship, which, before the contemplated voyage, had been requisi- 
 tioned by the British Government for transport purposes under 
 section 115 of the Army Act, 1881. It would also apply to an 
 
80 STATEMENT OF THE LAW. 
 
 agreement to sell specific goods which had been similarly 
 requisitioned. For the principle of Taylor v. Caldwell is not 
 limited to the destruction of the subject-matter of the contract 
 (Nicholl fy Knight v. Ashton, Eldridge fy Co., 1901, 1 KB. 
 (C.A.) 126) . Even if it were, the principle of the Coronation 
 cases is wide enough to cover the hypothetical cases just 
 mentioned. Where goods delivered under a hire-purchase 
 agreement, e.g., a motor chassis, are impressed by the War 
 Office, the compensation paid by the War Office therefor will 
 be apportioned between the parties to the agreement {British 
 Berna Motor Lorries, Limited v Inter-Transport Company, 
 Limited, reported in The Times of 3rd February, 1915). 
 
 The Defence of the Realm (Amendment), No. 2, Act, 1915, 
 5 Geo. V. c. 37, which gives powers of expediting production 
 of war material, declares that where the fulfilment by any 
 person of any contract is interfered with by the necessity on 
 the part of himself or any other person of complying with any 
 requirement, regulation, or restriction of the Admiralty or 
 the Army Council under the Defence of the Realm Consolida- 
 tion Act, 1914, or this Act, or any regulations made there- 
 under, that necessity is a good defence to any action or pro- 
 ceedings taken against that person in respect of the non- 
 fulfilment of the contract so far as it is due to that interference 
 (section 1 (2)). 
 
 (2) The Coronation cases are Krell v. Henry, 1903, 2 KB. 
 740 ; Civil Service Co-operative Society v. General Steam Naviga- 
 tion Company, ibid. 756; Blakeley v. Mutter 8f Co., ibid. 760 n; 
 Heme Bay Steamboat Company, ibid. 683 ; Chandler v. Webster, 
 1904, 1 KB. 493. 
 
 The principle underlying these cases is that " where a 
 "contract is entered into on the assumption by 'both parties 
 " that a particular state of things exists or will occur, the non- 
 " existence or the non-occurrence of that state of things through 
 " default of neither party discharges the contract " (Anson's 
 Law of Contract, 13th edition, p. 374). An agreement with 
 a tourist agency, made before this war for a trip to Germany 
 or Austria-Hungary, would therefore be discharged by the 
 outbreak of the war. 
 
 (3) A contract for personal services is ended by the death 
 of either party or the incapacitating illness of the party who 
 
CONTRACTS WITH PERSONS NOT ENEMIES. 81 
 
 is to perform the services (Robinson v. Davison, 1871, L.R. 6 
 Ex. 269; see judgment of Baron Bramwell at p. 277; London 
 Theatre of Varieties v. Will Evans, 1914, 30 T.L.R. 258). 
 Hence if the owner of a business engaged a manager, either 
 before or during this war, for a period of, say, five years, and 
 went out on military service and was killed, the agreement 
 would be ended (see Hoey v. MacEwan fy Aidd, 1867, 5 M. 
 814, a Scottish case; Farrow v. Wilson, 1869, L.R. 4 C.P. 744). 
 It has been suggested in The Law Times, vol. 137, p. 461, that 
 this principle extends to all cases where the impossibility is 
 caused by personal incapacity through enforced absence, e.g., 
 where a reservist is called up for military service, and not 
 merely to cases of death, illness, or insanity. The inference 
 from this is that incapacity to perform personal services caused 
 by the provision being called up as a reservist would end the 
 contract. But this is not necessarily so. The particular 
 contingency must be such that it must be presumed to have 
 been within the contemplation of both parties (see rule (2), 
 supra, of which rule (3) is only a particular example) . Suppose 
 A has engaged as manager B, a reservist liable to be called out 
 for foreign service, and A is not aware of this fact. Suppose, 
 further, that the engagement was made before the war for ten 
 years. It is submitted that such a contract would not be ended 
 by the outbreak of war, and that B would still be bound by his 
 engagement. 
 
 The extinction of a contract by supervening impossibility 
 does not affect specific rights already acquired under it by 
 either party (see Taylor v. Caldwell, 1863, 3 B. & S. 826; 
 Whincup v. Hughes, 1871, L.R. 6 C.P. 78; Anglo-Egyptian 
 Company v. Rennie, 1875, L.R. 10 C.P. 271). Thusi a sum 
 paid on engaging seats to view the Coronation procession of 
 King Edward VII. (Blakely v. Midler $ Co., 1903, 2 K.B. 
 760 n.), or a deposit paid for the same purpose (Krell v. Henry, 
 1903, 2 K.B. 740) were held not recoverable. In the Civil 
 Service Co-operative Society, Limited v. General Steam Naviga- 
 tion Company, 1903, 2 K.B. 756, a steamer was hired for three 
 days in connection with the naval review on the occasion of the 
 Coronation of King Edward VII. The whole of the money 
 was paid according to the terms of the charter party ten days 
 
82 STATEMENT OF THE LAW. 
 
 before the date fixed for the naval review, which never took 
 place. The money was held not to he recoverable. Hence if 
 a deposit had been paid before this war for a tourist ticket 
 with a tourist agency for a tour round Germany, such deposit 
 would, in the absence of provision to the contrary, be 
 irrecoverable, when war made the tour impossible. 
 
 The effects of partial impossibility depend upon the express 
 or implied intention of the parties to the agreement. It is a 
 question of construction whether partial impossibility avoids a 
 contract, or whether performance by one party of the possible 
 part entitles him or his representatives to claim what (if any) 
 recompense or counter-performance from the other (Menetone 
 v. Athawer, 1794, 3 Burr. 1592; Cutter v. Powdl, 1795, 6 T.R. 
 320; Gillett v. Mawman, 1808, 1 Taunt. 140; The " Teutonia," 
 1872, L.E. 4 P.C. 171). 
 
 In Appleby v. Myers, 1867, L.E, . 2 C.P. 651, where 
 performance of the rest of the contract by one party became 
 impossible, it was held that he could not recover payment for 
 what had been done by him. But there the contract was that 
 nothing should be payable unless and until the whole work 
 was completed. In Scotland, however, he could have recovered 
 such payment in the absence of any express agreement to the 
 contrary (Trotter's Law of Contract in Scotland, pp. 332, 
 358). 
 
 Again, in the Heme Bay Steamship Company v. Hutton, 
 1903, 2 K.B. 683, there was an agreement for the charter of a 
 steamship for one day to view the Coronation naval review 
 and to cruise round the fleet. A deposit was paid. Although 
 the naval review did not take place, the agreement was held 
 not to be discharged on the ground that the occurrence of that 
 review was not the sole basis of the contract. A cruise round 
 the fleet had still been possible. 
 
 If at the time when the contract was made, there are two 
 alternative modes of performance, only one of which is rendered 
 illegal or impossible by the outbreak of war or a change in the 
 law consequent thereon, then, on the authority of Da Costa 
 v. Davis, 1798, 1 Bos. & P. 242, and Stevens v. Webb, 1835, 
 7 C. & P. 62, the obligant must adopt the possible mode of 
 performance. (See also Smith, Coney fy Barrett v. Becker, 
 Gray fy Co., reported in The Times of 13th January, 1915). 
 
CONTEACTS WITH PEESONS NOT ENEMIES. 83 
 
 But this will depend upon the terms of the contract, especially 
 where one of the modes of performance becomes impossible 
 before an election (if permissible) has been made [Barhworth v. 
 Young, 1856, 4 Drew. 1, at p. 25). It would seem from 
 Brown v. Royal Insurance Company, 185,9, 1 E. &' E. 853, that 
 where a choice of alternative and optional modes of perform- 
 ance has been made, and the mode chosen becomes subsequently 
 impossible, the effect is the same as if the obligant had 
 originally agreed to perform his obligation in the manner 
 selected. 
 
 Even where a contract made before the outbreak of war is 
 not rendered illegal or impossible by such outbreak, it may be 
 discharged thereby if the risks of war were not within the 
 contemplation of the parties at the time of concluding the 
 contract. 
 
 In Liston and Others v. Owners of Steamship " Carpathian," 
 1915, W.N. 102, seamen were engaged on a British ship on a 
 commercial voyage from London to Port Arthur and thence to 
 a port in the United Kingdom. While at Port Arthur the 
 news arrived of war between Germany and this country ; and 
 the crew also learned of the presence in the vicinity of a German 
 cruiser. Their own ship was carrying black oil. The seamen 
 thereupon refused to complete the voyage on account of the 
 extra risks, unless they received extra wages. The master 
 agreed in writing to give them extra remuneration, and the 
 seamen sued for it. Lord Coleridge, J., held that the risks 
 of war not being contemplated by the seamen when they signed 
 on for a commercial voyage, and the risk of capture if the oil 
 was deemed contraband, and of mines on the homeward voyage 
 being risks which might reasonably be taken into considera- 
 tion, the seamen were discharged from their original obligation ; 
 and that the new contract entered into was binding on the 
 shipowners. 
 
 Unless, however, it appears from the terms or nature of 
 the contract or the circumstances of the case that the parties 
 intended that their agreement should be discharged by the 
 outbreak of war, the contract remains unaffected by such out- 
 break except where it is thereby rendered illegal. Even in 
 the last case it will hold good, if the parties have made lawful 
 provision for such an event, as, for instance, by a stipulation 
 for an alternative and lawful mode of performance. 
 
84 STATEMENT OF THE LAW. 
 
 Much, but not all, of the above discussion has related to 
 contracts made before the war. The parties to a contract 
 made during it will generally be presumed to have contemplated 
 the contingencies of war. War will not be an unforeseen event 
 as regards such contracts. But even her© many of the fore- 
 going considerations will apply, mutatis mutandis. Thus 
 emergency legislation may render such contracts legally 
 impossible. Again, a thing agreed to be sold may have been 
 destroyed, unknown to, and without th© fault of, either party, 
 before the risk passed to the buyer. The events of war may 
 bring about a total failure of consideration, and so on. 
 
 Certain miscellaneous cases on contract fall to be noted as 
 recent decisions connected with the present war. 
 
 In Edward Grey $ Co. v. Tolme Sf Runge, 1915, 31 T.L.E. 
 137, a contract had been entered into before the war for the 
 purchase of sugar. It contained the usual arbitration clause. 
 Owing to the outbreak of war delivery became impossible. 
 The defendants in an action upon it applied under section 4 of 
 the Arbitration Act, 18*89, 52 &' 53 Vict. c. 49, for an order 
 staying the action, which the judge refused. The Court of 
 Appeal (Buckley, L.J., Phillimore, L.J., and Pickford, L.J.), 
 held that such an application was permissible, but that the 
 judge had a discretion to make the order or refuse it, and here 
 it had been rightly refused ; for the question between the parties 
 was whether th© contract was suspended or dissolved. 
 
 Wetherman v. London and Liverpool Bank of Commerce, 
 Limited, 1914, 31 T.L.R. 20, was a case on the position of a 
 bailee. The plaintiff, a British subject, handed over, through 
 his London bankers, certain shares to the defendants " to the 
 " order " of a German bank, which had arranged to transfer 
 them to New York. The German bank failed to give directions 
 for the transfer, and on the outbreak of war the defendants 
 still held the shares. The plaintiff sued for delivery of the 
 shares to him. The German bank had no lien upon them. 
 Scrutton,. J., held that th© plaintiff had a right, as against the 
 German bank, to the delivery of the shares, and that therefore 
 the defendants were bound to hand them over to him. 
 
 In Sanday fy Co. v. British and Foreign Marine Insurance 
 Company, Limited, 1915, 31 T.L.R. 194, affirmed on appeal, 
 the plaintiffs were the owners of a cargo shipped from Buenos 
 
THE MORATORY LAW. 85 
 
 Ayres to Hamburg before the war, and the defendants were the 
 British underwriters on the cargo. War broke out before the 
 ship reached England; and by an order of the Admiralty the 
 ship and cargo were diverted on arrival at Falmouth. 
 The cargo owners gave notice of abandonment, and claimed for 
 " a constructive total loss." Bailhache, J., held that there 
 was, owing to " restraint of princes," a constructive total loss 
 at common law, and that section 31 of the Marine Insurance 
 Act, 1906, 6 Edw. VII. c. 91, preserved the common law where 
 not inconsistent with the Act; that, further, the loss was due 
 to a peril insured against as its proximate cause. 
 
 The Bills of Exchange Act, 1914, 4 & 5 Geo. V. c. 82, 
 makes certain provisions in connection with the present war in 
 respect to bills of exchange. Delay in the presentment for 
 payment of a bill of exchange, where the proper place for 
 payment is outside the British Islands, is excused if the delay 
 is, or has been, due either directly or indirectly to circum- 
 stances arising out of the present war, or to the impracticability, 
 owing to similar circumstances, of transmitting the bill to the 
 place of payment with reasonable safety. But this is without 
 prejudice to the operation of section 46 (1) of the Bills of 
 Exchange Act, 1882 (section 1). Where, in any action or 
 proceeding upon a bill of exchange payable outside the British 
 Islands, it is shown to the Court that the bill has been lost 
 and that the loss can reasonably be presumed to be due to 
 circumstances attributable directly or indirectly to the present 
 war, the Court may allow proof of the bill to be given by 
 means of a copy thereof certified by a notary public, or by 
 means of such other evidence as the Court thinks reasonable 
 under the circumstances : provided that such indemnity be 
 given against the claims of other persons as the Court may 
 require (section 2) . The King may, by Order in Council, at 
 any time determine the operation of the Act, or provide that 
 the Act shall have effect subject to such limitations as may be 
 contained in the Order; but, subject to the operation of any 
 such Order in Council, the Act is to have effect during the 
 continuance of the present war and for six months thereafter 
 (section 3). 
 
 20. The Mobatory Law under the Postponement of 
 Payments Act, 1914. — The Postponement of Payments Act, 
 
86 STATEMENT OF THE LAW. 
 
 1914, 4 & 5 Geo. V. c. 11, provides that the King may by 
 Proclamation authorise the postponement of the payment of 
 any bill of exchange, or of a negotiable instrument, or any 
 other payment in pursuance of any contract, to such extent, 
 for such time, and subject to such conditions or other provisions 
 as may be specified in the Proclamation (section 1 (1)). Any 
 such Proclamation may be varied, extended, or revoked by any 
 subsequent Proclamation, and separate Proclamations may be 
 made dealing with separate subjects (section 1 (3)). Ko addi- 
 tional stamp duty is payable in respect of any instrument as a 
 consequence of postponement in pursuance of a Proclamation 
 in the Act unless the Proclamation otherwise directs (section 
 1 (2)). The Act is to remain in force for six months from 
 its date, 3rd August, 1914 (section 2 (2)). Month here means", 
 of course, calendar month (Interpretation Act, 1889, 52 & 53 
 Yict. c. 63, section 3). 
 
 Although the Crown has power to postpone payments in 
 pursuance of contracts made during the war (section 1 (1)), it 
 has not done so. The moratorium proclaimed does not extend to 
 contracts made after 4th August, 1914 (Softlaw v. Morgan, 
 1914, 31 T.L.R. 54). Six Proclamations have up to the 
 present been made. 
 
 The first, dated 2nd August, 1914, is now called the Bills 
 (Re-acceptance) Proclamation in the sixth Proclamation, dated 
 30th September, 1914. It was issued before the Postponement 
 of Payments Act, 1914, 4 & 5 Geo. V. c. 11, section 2 (4) of 
 which confirmed it but gave the wrong date of it, referring to 
 it as issued on 3rd August, 1914. But it is sufficiently identi- 
 fied (see B. v. Wileoek, 7 Q.B. 329, and the Proclamation of 
 30th September, 1914). It only deals with bills of exchange. 
 It provides that if on the presentation for payment of a bill of 
 exchange, other than a cheque or bill on demand, which has 
 been accepted before the beginning of 4th August, 1914, the 
 acceptor re-accepts the bill by a declaration on the face of the 
 bill in the form set out in the Proclamation, that bill is to be 
 deemed to be due and payable on a date one calendar month 
 after the date of its original maturity, and to be a bill for the 
 original amount, increased by the amount of interest thereon 
 calculated from the date of re-acceptance to the new date of 
 
THE MORATORY LAW. 87 
 
 payment at the Bank of England Tate current on the date of 
 such re-acceptance. 
 
 The second Proclamation, dated 6th August, 1914, and 
 called the First General Proclamation in the sixth Proclama- 
 tion of 30th September, 1914, is more general in its scope. It 
 provides that all payments (with certain exceptions) which had 
 become due and payable before its date, or which might 
 become due and payable before 4th September, 1914, in respect 
 of any bill of exchange (being a cheque or bill on demand) 
 which was drawn before 4th August, 1914, or in respect of any 
 negotiable instrument (not being a bill of exchange) dated 
 before that time, or in respect of any contract made before that 
 time, shall be deemed to be due and payable on a day one 
 calendar month after the day on which the payment originally 
 became due and payable, or on 4th September, 1914, whichever 
 is the later date. Payments so postponed are, if not otherwise 
 carrying interest, and if specific demand is made for payment 
 and payment is refused, to carry interest as from 4th August, 
 1914, if they become due and payable before that day, and as 
 from the date on which they become due and payable if they 
 become due and payable after 4th August, 1914, at the Bank 
 of England rate current on 7th August, 1914. In Flach v. 
 London and South-Western Bank, Limited, reported in The 
 Times of 25th March, 1915, Scrutton, J., held that this Pro- 
 clamation applied to a cheque drawn after 4th August, 1914, 
 in respect of a sum of money paid into a bank before that date, 
 and that the bank did not require to honour it. 
 
 Neither this nor any other Proclamation prevents payments 
 being made before the expiry of the period for which they are 
 postponed. Indeed, the Proclamation, dated 3rd September, 
 1914, recites that it is desirable in the best interests of the 
 realm at the present juncture that all persons who can dis- 
 charge their liabilities should do so without delay. The effect 
 of the Proclamations is to give a statutory credit for the period 
 mentioned therein, so that during such period no action is 
 maintainable in Tespect of a debt coming within the Proclama- 
 tions [Gramophone Company, Limited v. King, St. George fy 
 Concannon v. Delury, Lvhe v. O'Shea, 1914, 2 I.R. 535). But 
 a debt falling within the Proclamation is, nevertheless, a good 
 petitioning creditor's debt in a bankruptcy petition (In re 
 
88 STATEMENT OF THE LAW. 
 
 Sahler, ex parte Mumford $ Co., 1914 (Div. Ct.), W.N. 439). 
 The same theory prevailed in Scotland. The general view 
 taken in the Sheriff's Small Debt Courts in Scotland was that 
 the Proclamations referred only to the enforcement of debts, 
 and did not affect the right of every creditor to constitute his 
 debt at law. That this view was the correct one in Scotland 
 has now been made clear by the terms of the Courts (Emer- 
 gency Powers) Act, 1914, 4 & 5 Geo. V. c. 78, which is discussed 
 in section 21, infra. 
 
 As previously mentioned, the second Proclamation makes 
 certain exceptions. It does not apply to — 
 
 (1) Any payment in respect of wages and salary. 
 
 (2) Any payment in respect of " a liability which when 
 " incurred did not exceed £b in amount." In Auster, Limited 
 v. London Motor Coach Works, Limited, 1914, 31 T.L.E. 26, the 
 Court of Appeal held that these words must be read according 
 to their natural meaning; and that the moratorium did not 
 apply to an account, which was chiefly composed of items less 
 than £5, but the total of which exceeded £5. It could, 
 however, be pleaded against the items exceeding £5. 
 
 (3) Any payment in respect of rates or taxes. 
 
 (4) Any payment in respect of maritime freight. This 
 includes a c.i.f. contract (Happe v. Manasseh, 1915, W.N. 
 137). 
 
 (5) Any payment in respect of any debt from any 
 person resident outside the British Islands, or from any firm, 
 company, or institution whose principal place of business is 
 outside the British Islands, not being a debt incurred in the 
 British Islands by a person, firm, company, or institution 
 having a business establishment or branch business establish- 
 ment in the British Islands. 
 
 (6) Any payment in respect of any dividend or interest 
 payable in respect of any stocks, funds, or securities 
 (other than real or heritable securities) in which trustees are, 
 under section 1 of the Trustee Act, 1893, 56 & 57 Vict. c. 53, or 
 any other Act for the time being in force authorised to invest. 
 
 (7) Any liability of a bank of issue in respect of bank notes 
 issued by that bank. 
 
 (8) Any payment to be made by or on behalf of His Majesty 
 
THE MORATORY LAW. 89 
 
 or any Government Department, including the payment of 
 old age pensions. 
 
 (9) Any payment to be made by any person or society in 
 pursuance of the National Insurance Act, 1911, or any Act 
 amending it (whether in the nature of contributions, benefits, 
 or otherwise). 
 
 (10) Any payment under the Workmen's Compensation 
 Act, 1906, or any Act amending it. 
 
 (11) Any payment in respect of the withdrawal of a deposit 
 in a trustee savings bank. 
 
 It would appear that Crown debts fall within the moratorium 
 (see 48 Ir.L.T. 324). 
 
 The third Proclamation, dated 12th August, 1914, is called 
 the second General Proclamation in the sixth Proclamation of 
 30th September, 1914. It provides that the first General 
 Proclamation, dated 6th August, 1914, shall apply, and shall 
 be deemed always to have applied to — 
 
 (a) Any bill of exchange which has not been re-accepted 
 under the Bills (Be-acceptance) Proclamation of 2nd August, 
 1914, as it applies to a bill of exchange, being a cheque or bill 
 payable on demand, unless on the presentation of the bill the 
 acceptor has expressly refused re-acceptance thereof, but with 
 the substitution, as respects rate of interest, of the date of 
 the presentation of the bill for the 7th August, 1914. 
 
 (b) Payments in respect of any debt from any bank whose 
 principal place of business is in any part of His Majesty's 
 dominions or any British protectorate, although the debt was 
 not incurred in the British Islands and the bank had not a 
 business establishment or branch business establishment in the 
 British Islands. 
 
 The fourth Proclamation, dated 1st September, 1914, 
 extended the times mentioned in the previous Proclamations, 
 but was revoked by the fifth Proclamation, dated 3rd Septem- 
 ber, 1914. 
 
 The fifth Proclamation, dated 3rd September, 1914, is called 
 the third General Proclamation in the sixth Proclamation of 
 30th September, 1914. It is in effect the same as the fourth 
 Proclamation, which it Tevokes, but is more precise in its 
 language. Its provisions are to the following effect: — 
 
 (1) If on the presentation for payment of a bill of exchange 
 
90 STATEMENT OF THE LAW. 
 
 which has before 4th September, 1914, been re-accepted under 
 the terms of the Bills (Ee-acceptance) Proclamation of 2nd 
 August, 1914, the bill is not paid, then the said Bills (Ee- 
 acceptance) Proclamation shall in its application to that bill 
 have effect as if the period of two calendar months had been in 
 that Proclamation substituted for the period of one calendar 
 month, and the sum mentioned in the form of re-acceptance 
 under the said Proclamation shall be deemed to be increased 
 by the amount of interest on the original amount of the bill 
 for one calendar month, calculated at the Bank of England 
 rate current on the date when the bill is so presented for 
 payment as aforesaid. 
 
 (2) The first General Proclamation, dated 6th August, 1914, 
 as extended by the second General Proclamation, dated 12th 
 August, 1914, shall apply to payments which became due and 
 payable on or after 4th September, 1914, and before 4th 
 October, 1914 (whether they become so due and payable by 
 virtue of the said Proclamations or otherwise), in like manner 
 as it applies to payments which became due and payable before 
 the date of the first General Proclamation (i.e., 6th August, 
 1914), and before the 4th September, 1914. 
 
 (3) Nothing in the Proclamation is to affect the payment 
 of interest under the Proclamations extended thereby, or pre- 
 vent payments being made before the expiration of the periods 
 for which they are postponed. 
 
 Before passing to the sixth Proclamation, dated 30th Sep- 
 tember, 1914, which does not extend the moratorium as regards 
 rent, reference must be made to the case of Dwell v. Gread, 
 1914, W.N. 382. That was a case in which two landlords sued 
 for the rent of premises and for possession. The writ was issued 
 on 25th August, 1914. The rent was payable quarterly, and 
 there was the usual proviso for re-entry on non-payment of 
 rent for twenty-one days. The defendant neither paid the 
 rent due at Michaelmas, 1913, nor for twenty-one days there- 
 after, nor the quarterly instalments subsequently due. The 
 landlords did not exercise their right of re-entry, but had not 
 waived it. So it subsisted up to '6th August, 1914. It was 
 contended on their behalf that the provisions of the Postpone- 
 ment of Payments Act, 1914, section 1 (1), and the first 
 General Proclamation, dated 6th August, 1914, did not affect 
 
THE MORATOEY LAW. 91 
 
 the right to recover possession; although it was admitted 
 that these provisions harred the plaintiffs' recovery of the 
 rent. But it was argued that section 1 (1) of the Postpone- 
 ment of Payments Act, 1914, did not apply in terms to pos- 
 session, and the Proclamation could not extend its provisions. 
 Scrutton, J., held, however, that not only could the plaintiffs 
 not recover the rent, hut also that they could not recover 
 possession. The Courts had always treated the right of re- 
 entry as an auxiliary proviso for the recovery of rent (Howard 
 v. Fanshawe, 1895, 2 Ch. 581). Where the principal obliga- 
 tion was destroyed, the auxiliary security fell too. When the 
 writ was issued, no rent was payahle, and hence the right of 
 re-entry had gone. 
 
 But where a distress has been levied before the Proclamation 
 of a moratorium, the subsequent Proclamation of a moratorium 
 only affects the landlord's right to sell the goods, but not his 
 right to secure his possession (Shortland v. Cabins, Limited, 
 and Another, reported in The Times of 12th March, 1915). 
 
 The sixth Proclamation, dated 30th September, 1914, does 
 not apply to (a) rent, and (&) any payment due and payable to 
 or by a retail trader in respect of his business as such trader 
 (Article 1). There is no extension of the moratorium in respect 
 to them. Its other provisions are in effect the following: — 
 
 (1) Payments other than bills of exchange, not being 
 cheques or bills on demand, which fall within the General 
 Proclamations, and become due and payable after 3rd October, 
 and before 4th November, 1914, will receive one month's exten- 
 sion, or one month's further extension, as the case may be. 
 Payments falling due after 3rd November, 1914, will not 
 receive any extension. 
 
 It is also provided that, if the payment is one the date 
 whereof has been postponed by virtue of any of the General 
 Proclamations, and is one which carries interest either by 
 virtue of the terms of the contract or instrument under which 
 it is due and payable, or by virtue of the General Proclama- 
 tions, then the person from whom the payment is due is not 
 entitled to claim the benefit of this further extension of the 
 moratorium unless, within three days after the date to which 
 the payment has been postponed by virtue of the General Pro- 
 clamations, all interest thereon up to that date is paid. 
 
92 STATEMENT OF THE LAW. 
 
 (2) Bills of exchange (other than cheques or hills on 
 demand) accepted before 4th August, 1914, of which the 
 original due date was after 3rd October, 1914, will continue 
 to receive one month's extension, under the Bills (IJe-accept- 
 ance) Proclamation of 2nd August, 1914. 
 
 (3) Bills of exchange which have already received an exten- 
 sion under the Bills (Re-acceptance) Proclamation, or the 
 second or third General Proclamations, are given a further 
 extension of fourteen days. 
 
 As regards the moratorium generally, several cases fall to 
 be noted. 
 
 A call upon shares made in July, 1914, and payable, 
 partly in the following August and partly in the following 
 October, falls within the moratorium proclaimed {Burgess v. 
 O.H.N. Gases, Limited, 1914, W.N. 422). 
 
 Where a customer pays a cheque into his bank after the 
 moratorium came into force, the bank cannot appropriate the 
 proceeds of such cheque to liquidate an overdraft of the cus- 
 tomer (Allen v. London County and Westminster Bank, 1915, 
 138 L.T. 342). 
 
 In Happe v. Manasseh, 1915, W.N. 137, Sankey, J., was 
 of opinion that the moratorium Proclamation of 6th August, 
 1914, only applied where the payment was a naked one, and 
 not to cases where there was a stipulation that to obtain docu- 
 ments of title, the purchaser must perform the condition pre- 
 cedent of payment. 
 
 In Barnard v. Foster, 1915, W.N. 136, Sankey, J., held 
 that a stock exchange transaction fell within the moratorium. 
 
 The moratory law does not affect the validity of a contract ; 
 nor does it apply to obligations not contractual, e.g., tithes 
 (Emmanuel College (Cambridge) v. Nobis, 1914, 137 L.T. 567). 
 It only extends the time of payment on contracts to which it 
 applies. In an action on a foreign bill of exchange, English 
 law recognises a foreign moratory law (Rouquette v. Overmann, 
 1875, L.R. 10 Q.B. 525). 
 
 The practice of the Courts in consequence of the moratorium 
 may be summarised in the following table, which supposes 
 that the claim in each case falls within the particular mora- 
 torium applicable thereto: — 
 
 1. Writ before proclamation of the moratorium. Sub- 
 
THE MORATORY LAW. 93 
 
 sequent trial of the action after the cessation of 
 the moratorium. The action is good [Glaskie v. 
 Petry, 1014, W.N. 410). 
 
 2. Writ after proclamation of moratorium. No appearance 
 
 entered. Action dismissed (Gramophone Com- 
 pany v. King, St. George fy Concannon v. Delury, 
 Lube v. O'Shea, 1914, 2 I.R. 535, deciding that 
 although no appearance is entered in such a case, 
 the Court, on the facts being brought to its notice, 
 will of its own motion either dismiss the action or 
 remove the writ from the files of the Court. If 
 judgment has been inadvertently marked in such 
 a case, it will be set aside by the Court, when 
 brought to its notice, without requiring the 
 defendant to institute a motion for the purpose). 
 
 3. Writ before proclamation of moratorium. Service of 
 
 writ after proclamation of moratorium. The writ 
 is properly served (Silcoch v. Christie, 1914, 48 
 Ir.L.T.R. 227). 
 
 4. Specially indorsed writ after Proclamations of 6th 
 
 August and 30th September, 1914, in an action 
 on a promissory note. Motion for final judgment 
 on affidavits verifying the cause of action, but 
 not alleging any demand for payment. Action 
 dismissed in the Irish King's Bench Division, it 
 being held that the note did not carry interest 
 either " by virtue of the terms of the contract " or 
 " by virtue of the said general Proclamations " 
 within the proviso in section 1 of the Proclamation 
 of 30th September, and therefore that the amount 
 sued for was not due and payable. On appeal, 
 the plaintiffs filed affidavits alleging demand for 
 payment and refusal. The Irish Court of Appeal 
 allowed the fresh affidavits, discharged the order 
 of the King's Bench Division, except as to the 
 costs of the motion for final judgment, and gave 
 the defendant liberty to defend [Murphy v. Halpin, 
 1914, 48 Ir.L.T.R. 247). 
 
94 STATEMENT OF THE LAW. 
 
 An interesting point in connection with the moratorium 
 was raised in Scotland in the Dunfermline Sheriff Court, 
 namely, whether it was available in favour of an alien enemy 
 resident here. The case was postponed. But as there is no 
 express provision in the Postponement of Payments Act, 1914, 
 or the various Proclamations issued thereunder, it would seem 
 to follow from the decision in Robinson 8f Co. v. Continental 
 Insurance Company of Mannheim, 1914, W.N. 393, and from 
 the judgment of the Court of Appeal in Porter v. Freunderiberg, 
 Kreglinger v. S. Samuel Sf Rosenfeld, In re Merten's Patent, 
 1915, 31 T.L.R. 162, that an alien enemy here can take 
 advantage of the moratorium. But it is a moot point whether 
 the moratorium prevents the running of the time for limitation 
 or prescription. 
 
 21. The Emergency Powers op the Court. — The Courts 
 (Emergency Powers) Act, 1914, 4 & 5 Geo. V. c. 78, was passed 
 on 31st August in order to give, in connection with the present 
 war, further powers to Courts in relation to the remedies for 
 the recovery of money, and in relation to other similar matters. 
 The King may, by Order in Council, at any time determine 
 the operation of the Act, or provide that the Act shall have 
 effect subject to such limitations as may be contained in the 
 Order; but, subject to the operation of any such Order in 
 Council, the Act is to have effect during the continuance of 
 the present war, and for a period of six months thereafter 
 (section 2 (4)). It applies to Scotland and Ireland as well as 
 England (section 2 (2), (3)). 
 
 Sub-section (1) of section 1 provides that from and after 
 the passing of the Act no person shall — 
 
 (a) proceed to execution (or diligence) on, or otherwise to 
 
 the enforcement of, any judgment or order (or 
 decree) of any Court (whether entered or made 
 before or after the passing of the Act) for the 
 payment or recovery of a sum of money to which 
 this sub-section applies, except after such application 
 to such Court and such notice as may be provided 
 for by rules or directions under the Act ; or 
 
 (b) levy any distress, take, resume, or enter into pos- 
 
 session of any property, exercise any right of 
 
EMERGENCY POWERS OF THE COURT. 95 
 
 re-entry, foreclose, realise any security (except by 
 way of sale by a mortgagee, or creditor in a herit- 
 able security, in possession), forfeit any deposit, or 
 enforce the lapse of any policy of insurance to 
 wbich this sub-section applies, for the purpose of 
 enforcing the payment or recovery of any sum of 
 money to which this sub-section applies, or, in 
 default of the payment or recovery of any such 
 sum of money, except after such application to 
 such Court and such notice as may be provided 
 for by rules (or Act of Sederunt) or directions under 
 the Act. 
 
 This sub-section does not apply to any sum of money (other 
 than rent not being rent at or exceeding £50 per annum) due 
 and payable in pursuance of a contract made after 4th August, 
 1914. But it applies to life or endowment policies for an 
 amount not exceeding £25, or payments equivalent thereto, 
 the premiums in respect of which are payable at no longer than 
 monthly intervals, and have been paid for at least the two 
 years preceding the 4th August, 1914. 
 
 This sub-section is therefore sweeping in its scope. It 
 applies to any sum of money due and payable in pursuance of 
 any contract made before the outbreak of war, i.e., before 4th 
 August, 1914 ; but in case of life or endowment policies it will 
 not apply, unless (a) they are for an amount not exceeding 
 £25, or payments equivalent thereto, and (b) the premiums 
 in respect of such are payable at not longer than monthly 
 intervals, and (c) such premiums have been paid for at least 
 the two years preceding 4th August, 1914. 
 
 In Emmanuel College (Cambridge) v. Nobbs, 1914, 137 L.T. 
 567, a County Court case, His Honour, Judge Mulligan, K.C., 
 observed that the Legislature had " forgotten to define " the 
 sums of money, to which sub-section (1) of section (1) applies ; 
 and he proceeded to say that " the Courts will either have to 
 " add words to the Act, that is to say, to legislate, or they will 
 " have to leave the Act almost wholly inoperative." But surely 
 the meaning seems obvious. When it is said that the sub- 
 section " shall not apply " to certain cases, it must be taken to 
 apply to all others; and the practice has been to adopt this 
 common-sense interpretation. 
 
96 STATEMENT OF THE LAW. 
 
 Re William Coward Sf Co., Limited, 1914, noted in 137 
 L.T. Jour. 590, raised the question whether the applicants, who 
 were the first mortgagees of certain leaseholds, could enter into 
 possession (when the interest was in arrear and the mortgagor 
 was in America), in view of sub-section 1 (6) of section 1. The 
 property was mostly unlet. The application for leave to 
 re-enter was supported by the subsequent mortgagees. Neville, 
 J., gave< leave to re-enter, the costs to be added to the security. 
 
 Burgess v. O.H.N. Gases, Limited, 1914, W.N. 422, decides 
 that a forfeiture of shares in a company for unpaid calls falls 
 within sub-section 1 (6) of section 1, being an attempt to take 
 possession of property in default of payment. 
 
 In Evans v. Main Colliery Company, Limited, 1915, W.N. 
 10, the Court of Appeal had reversed a judgment of Horridge, 
 J., and thus a sum of £100 became payable by the plaintiffs 
 to the defendants under the decision of the Court of Appeal. 
 The defendants now asked for leave to issue execution or other- 
 wise enforce the judgment. It was held, after consultation 
 with the Master of the Rolls, that having regard to sub-section 
 1 (a) of section 1 of the Act, and rule 2 of the Courts (Emer- 
 gency Powers) Rules, 1914, the application was properly made 
 to the Court which pronounced the judgment. But the Court, 
 having no machinery to inquire into the facts, would refer it to 
 a Master, and, upon his report, would deal with the application. 
 
 According to a decision at the Ballina Quarter Sessions in 
 Ireland Crown debts are not excepted from the operation of the 
 Act (see 48 Ir.L.T. 324). 
 
 It has, on the other hand, been held that a winding-up 
 petition by a judgment creditor is neither a proceeding to 
 execution on, nor a proceeding to the enforcement of, a judgment 
 within the meaning of sub-section 1 (a) of section 1 (In re the 
 Matter of Two Companies, 1915, W.N. 96) ; and the appoint- 
 ment of a receiver in a debenture holder's foreclosure action is 
 not within the statute {In re Farnol, Eades, Irvine fy Co., 
 Limited, 1915, 1 Ch. 22). It is doubtful whether this last 
 decision covers the case of the appointment of a receiver by a 
 mortgagee under his statutory powers. 
 
 A mortgagee may proceed as far as a foreclosure order nisi 
 without special leave (Behagg v. Palmer, 1914, W.N. 416) ; 
 and no application is necessary under the Act when it is desired 
 
EMERGENCY POWERS OF THE COURT. 97 
 
 to extend an Irish judgment to England (Cooney v. Wilson and 
 Another, 64 Ir.L.T. 64). 
 
 In Ziman v. Komata Reefs Gold Mining Company, Limited, 
 1915, W.N. 121, the Court of Appeal held that the exception 
 in suh-section 1 (6) of section 1 as to a sale by mortgagees in 
 possession applied to personal as well as to real estate. Whether 
 this decision would be followed in Scotland is more than doubt- 
 ful ; for by section 2 (2) it is provided that in the application 
 of the Act to Scotland the expression " creditor in a heritable 
 "security" shall be substituted for "mortgagee." 
 
 In Barnard v. Foster, 1915, W.N. 136, a stockbroker bought 
 railway shares on the exchange for a client, and, on the 
 batter's failure to take them up, sold them after notice of his 
 (the stockbroker's) intention to do so. It was held that the 
 shares were not a security within the meaning of sub-section 
 1 (&) of section 1, and that therefore the stockbroker was 
 entitled to sell as he did. 
 
 The Act further applies to all proceedings for the recovery 
 of possession of tenements under the Small Tenements 
 Recovery Act, 1838, 1 & 2 Yict. c. 74, as if they were in all 
 cases proceedings for the payment or recovery of a sum of 
 money due and payable on account of rent (section 1 (4)). 
 
 The Courts (Emergency Powers) Order, dated 17th Septem- 
 ber, 1914, creates an exception to this wide operation of the 
 Act. It provides that the Act is not to apply in the case of 
 any proceedings for the levying of any fine, or for the enforce- 
 ment of the payment of any sum due under a recognisance, or 
 for the enforcement of the payment of any order for affiliation 
 or any order enforceable in the same manner. With respect 
 to any sum of money due or payable in pursuance of a post 
 helium contract, i.e., one made after 4th August, 1914, the 
 Act does not apply in any case except that of rent which is 
 below £50 a year. 
 
 The Courts (Emergency Powers) (Scotland) Order, 1914, 
 makes a similar exception in the case of Scotland. The Act 
 is not to apply in the case of any proceedings for the recovery 
 by civil diligence of any penalty, or for the enforcement of 
 the payment of any sum due under a bail bond or bond of 
 caution granted in respect of any person charged with or con- 
 
98 STATEMENT OE THE LAW. 
 
 victed of any offence, or for the enforcement of the payment 
 of any decree of aliment. 
 
 The controlling euh-section (2) of section 1 provides that 
 if, on any such application as mentioned above, the Court to 
 which the application is made is of opinion that time should 
 be given to the person liable to make the payment on the 
 ground that he is unable immediately to make payment by 
 reason of circumstances attributable, directly or indirectly, 
 to the present war, the Court may, in its absolute discretion, 
 after considering all the circumstances of the case and the 
 position of all the parties, by order stay execution (or diligence) 
 or defer the operation of any of the remedies mentioned in the 
 Act for such time and subject to such conditions as the Court 
 thinks fit. 
 
 A form of an Order under this sub-section will be found in 
 Shaw fy Sons v. Bridget O'Farrell and Edward O'Farrell, 1914, 
 48 Ir.L.T.R. 215. The defendants were sued for goods sold 
 and delivered. The defence was inability to pay immediately 
 by reason of circumstances attributable to the war, and an offer 
 was made to pay by instalments. Plaintiffs were given leave 
 to sign judgment with costs, such judgment not to be regis- 
 tered, the defendant, Edward O'Farrell, undertaking to make 
 certain payments, and in default of such payments the 
 plaintiffs to be at liberty to proceed to execution or register 
 the judgment if so advised. 
 
 Sub-section 2 confers a new power upon the Scottish Courts. 
 The English practice known as stay of execution does not 
 obtain in Scotland, although under exceptional circumstances 
 a Scottish judgment may be qualified by superseding extract for 
 a specified time. Unless, however, this is done when judgment 
 is pronounced, there is no machinery in Scottish practice for 
 staying execution, except by way of appeal to a higher Court. 
 As no such appeal lies from the Sheriff's Small Debt Court, 
 debtors summoned to such Court will require, if they want to 
 plead the Act, to appear there and lay before the Sheriff any 
 circumstances to warrant the Sheriff in exercising the discretion 
 given by the Act to defer the operation of a decree of the Court, 
 which in a normal state of affairs is automatically enforceable 
 without leave being specially granted. 
 
 In Crowe v. Irvine, 1914, 2 S.L.T. 378, the circumstances 
 
EMEEGENCY POWEES OF THE COUET. 99 
 
 under which the execution of a decree was suspended for six 
 weeks were these. The defender was a lessee of a picture 
 house in a mining town, where a large proportion of the male 
 population was absent on military service, and those at home 
 were earning small wages owing to the collieries only working 
 three days a week. The takings at the picture house had 
 fallen so low as barely to cover expenses, and hence the 
 defender was unable to pay immediately. 
 
 The expenses of an unopposed application to proceed with 
 diligence will not be allowed {Standard Property Investment 
 Company, Limited v. Scott, 1914, 2 S.L.T. 369). But in an 
 undefended cause the defender can appear and successfully 
 oppose such a motion {Brandon Hill, Limited v. Frater, 1915, 
 1 S.L.T. 199). 
 
 Although an absolute discretion is given to the Court, the 
 Act evidently contemplates that the powers granted by it are 
 not to be lightly regarded. Its direction is emphatic. The 
 Court is only to exercise such powers " after considering all 
 " the circumstances of the case and the position of all the 
 " parties." 
 
 In Lyric Theatre {London), Limited v. Lyric Theatre, 
 Limited, and Another, 1914, W.N. 461, the Court of Appeal 
 dismissed an appeal against an order giving leave to enforce a 
 judgment for possession. The master and the judge had 
 exercised the " absolute discretion " given to them after con- 
 sidering the situation. It was unnecessary to hold that the 
 Court of Appeal could not in any circumstances interfere with 
 that discretion. But it would be veTy slow to do so. The 
 decision was followed by the Irish Court of Appeal in Philco 
 v. Nolan, 1915, 49 Ir.L.T.E. 65, where it was laid down 
 that an order, giving a plaintiff liberty to proceed to execution 
 on a judgment, will not be disturbed upon appeal unless it is 
 shown that the absolute discretion which is vested in the judge 
 was not exercised upon legal grounds. In De Bingham v. 
 London Life Association, Limited, 1915, W.N. 165, Scrutton, 
 J., had given judgment for the defendants on a counter claim 
 with leave to proceed to execution, and had refused the applica- 
 tion of the plaintiff for leave to appeal against the latter part 
 of the order. On appeal it was held that where the judge had 
 
100 STATEMENT OE THE LAW. 
 
 exercised his discretion after due consideration, an appeal 
 did not lie under the Act. 
 
 Sub-section 3 of section 1 deals with bankruptcy proceed- 
 ings. Where a bankruptcy petition or a petition of sequestra- 
 tion has been presented against any debtor, and the debtor 
 proves to the satisfaction of the Court having jurisdiction in 
 bankruptcy that his inability to pay his debts is due to circum- 
 stances attributable, directly or indirectly, to the present war, 
 the Court may, in its absolute discretion, after considering all 
 the circumstances of the case and the position of all the 
 parties, at any time stay the proceedings under the petition for 
 such time and subject to such conditions as the Court thinks 
 fit. 
 
 This sub-section is exhaustive. So sub-section 1 does not 
 apply to a bankruptcy petition. No leave is necessary to 
 present such ; although the registrar has an absolute discretion 
 in staying the proceedings {In re Sibler, 1914, W.N. 71). 
 
 As previously mentioned, the Act applies to all proceedings 
 for the recovery of possession of tenements under the Small 
 Tenements Eecovery Act, 1838, 1 & 2 Vict. c. 74. Such 
 proceedings are in the ordinary case available by landlords, 
 where the rent of the premises is below £20 a year and such 
 premises are held for a short term, or at will, and the term 
 has either ended or been properly determined by notice to quit. 
 Proceedings for the recovery of such premises under such 
 circumstances take place either before a stipendiary magistrate 
 or before justices in petty sessions. 
 
 In Scotland the Courts (Emergency Powers) Act, 1914, is 
 similarly to apply to all proceedings in removings and ejections 
 in the case of subjects let at a rent not exceeding £21 as if they 
 were in all cases proceedings for the payment of money due 
 and payable on account of rent (sections 2 (2), 1 (4)). 
 
 In Ireland the Act is to apply to all proceedings for the 
 recovery of possession of lands or tenements under section 15 
 of the Summary Jurisdiction (Ireland) Act, 1851, 14 &' 15 
 'Vict. c. 92, or section 86 of the Landlord and Tenant Law 
 Amendment Act (Ireland), 1860, 23 & 24 Vict. c. 154, as if 
 they in all cases were proceedings for the payment or recovery 
 of a sum of money due and payable on account of rent (Courts 
 
THE NEW LEGAL TENDER. 101 
 
 (Emergency Powers) (Ireland) Act, 1914, 5 Geo. V. c. 19, 
 section 1). 
 
 The powers given under the Act are in addition to, and not 
 in derogation of, any other powers of the Court (section 1 (6)). 
 
 Nothing in the Act is to affect any right or power of pawn- 
 brokers to deal with pledges, or give any power to stay execu- 
 tion (or diligence), or defer the operation of any remedies of a 
 creditor in the case of a sum of money payable by, or recover- 
 able from, the subject of a Sovereign or State at war with His 
 Majesty. Alien enemies cannot avail themselves of it (Leader, 
 Plunkett fy Leader v. Direction der Disconto-Gesellschaft, 1914, 
 31 T.L.E.. 83). This last provision is important in view of the 
 fact that there was no such limitation in the Postponement of 
 Payments Act, 1914, or the Proclamations issued thereunder 
 (see last paragraph of section 20, supra). 
 
 Sub-section (5) of section 1 gives the Lord Chancellor power 
 to make such rules and give such directions as he thinks fit 
 for the purpose of giving full effect to this Act. He may, by 
 those rules or directions, provide for any proceedings for the 
 purposes of the Act being conducted, so far as possible, in 
 private, and for the remission of any fees. Similar powers 
 aTe given to the Court of Session in Scotland and to the Lord 
 Chancellor of Ireland (section 2 (2) (3)). 
 
 The Act, however, does not seem to enable jurisdiction to 
 be exercised in chambers. It speaks solely of the Court, 
 which means a judge or judges in open Court, and does not 
 include even a judge in chambers (Baker v. Oates, 1877, 2 
 Q.B. 171; Be Davidson, 1899, 2 Q.B. 103). Hence the rules 
 which have been made allowing an application under the Act 
 to be dealt with in chambers are probably ultra vires. 
 
 22. The New Legal Tendeb. — The Currency and Bank 
 Notes Act, 1914, 4 & 5 Geo. V. c. 14, provides that currency 
 notes for £1 and for 10s., issued by the Treasury subject to 
 the provisions of the Act, shall be current in the United King- 
 dom in the same manner and to the same extent and as fully 
 as sovereigns and half-sovereigns aTe current, and shall be 
 legal tender in the United Kingdom for the payment of any 
 amount (section 1 (1)). The holder of a currency note is 
 entitled to obtain on demand, during office hours at the Bank 
 
102 STATEMENT OF THE LAW. 
 
 of England, payment for the note at its face value in gold coin, 
 which is for the time being legal tender in the United Kingdom 
 (section 1 (3)). 
 
 The Treasury may, subject to such conditions as to time, 
 manner, and order of presentation as they think fit, call in any 
 currency notes under this Act on paying for' those notes at 
 their face value in gold (section 1 (4)), or on exchanging the 
 notes so called in for other notes of the same face value issued 
 under the Act (Currency and Bank Notes (Amendment) Act, 
 1914, 4 & 5 Geo. V. c. 72, section 1). 
 
 The Treasury may, if they think fit, instead of issuing any 
 notes to any person, give to that person a certificate entitling 
 him to the issue on demand from the Treasury of the notes 
 mentioned in the certificate; and the notes covered by the 
 certificate are, for the purpose of section 2 of the Act, to be 
 deemed notes issued to that person (ibid, section 2). Under 
 section 2 currency notes may be issued to such persons and in 
 such manner as the Treasury direct; but they are to be a 
 floating first charge on the assets of that person. 
 
 For the purpose of meeting immediate exigencies, all postal 
 orders issued, either before or after the passing of the Act 
 (viz., 6th August, 1914), aTe temporarily to be current and 
 legal tender in the United Kingdom, in the same manner and 
 to the same extent and as fully as current coins, and shall be 
 legal tender in the United Kingdom for the payment of any 
 amount. The holder of any such postal order is entitled to 
 obtain on demand, during office hours at the Bank of England, 
 payment for the postal order at its face value in any coin 
 which is for the time being legal tender in the United Kingdom 
 for the amount of the note. But these provisions as to postal 
 orders are to have effect only until His Majesty by Proclama- 
 tion revokes the same, and any Proclamation revoking such 
 provisions may provide for the calling in or exchange of any 
 postal orders affected thereby (section 1 (6)). By a Proclama- 
 tion of 3rd February, 1915, postal orders were declared to be 
 no longer legal tender after that date. But the holder of any 
 postal order to which the Act applies is entitled to obtain 
 on demand at any time before 1st June, 1915, during office 
 hours at any money order office in the United Kingdom, pay- 
 ment for the order at its face value in coins or currency notes 
 
THE TERMINATION OF WAR. 103 
 
 which are for the time being legal tender in the United 
 Kingdom. 
 
 Section 4 provides that any bank notes issued by a bank of 
 issue in Scotland ox Ireland shall be legal tender for a payment 
 of any amount in Scotland or Ireland respectively, and any 
 such bank of issue shall not be under any obligation to pay its 
 notes on demand except at the head office of the bank, and may 
 pay its notes, if thought fit, in currency notes issued under this 
 Act. But notes which are legal tender under this section are 
 not to be legal tender for any payment by the head office of the 
 bank by whom they are issued for the purpose of the payment 
 of notes issued by that bank. This section has effect only 
 until His Majesty by Proclamation revokes the same, and any 
 Proclamation revoking this section may provide for the calling 
 in or exchange of notes affected thereby. 
 
 " Bank of issue " in the Act means any bank having power 
 for the time being to issue bank notes (section 5 (1)). The Act 
 applies to the Isle of Man as if it were part of the United 
 Kingdom, but not to any other British possession (section 5 
 
 It will be seen that the Act, while making an addition to the 
 previous legal tender, does not abrogate the latter. Much less 
 does it alter the rules of the common law which relate to legal 
 tender, e.g., that, although a tender of more than what is due 
 is a good tender of the amount, the creditor cannot be asked 
 to give change (even in the form of the new legal tender), and 
 is not bound to give it {Douglas v. Patrick, 1700, 3 T.R. 683; 
 Betterbee v. Davis, 1811, 3 Camp. 70; Robinson v. Cook, 
 1815). 
 
 23. The Tekmination of War. — It is the province of the 
 Government, and not of the Courts, to determine when war is 
 at an end (Conley v. Calhoun County, 2 W.Va. 416, an 
 American case). The same view would obtain here {Janson v. 
 Driefontein Consolidated Mines, Limited, 1902, A.C. 484; see 
 judgment of Lord Macnagbfcen at p. 497). 
 
PART II. 
 
 EECENT CASES. 
 
ENEMY CHARACTER. 
 (a) Nationality. 
 
 [The nationality of a corporation is that of the country in which, 
 and from whose laws, it receives personality. 
 
 A company incorporated under English law and carry- 
 ing on business in this country is entitled to sue during 
 war, although alien enemies hold all its shares except one.] 
 
 CONTINENTAL TYRE AND EUBBER COMPANY (GREAT 
 BRITAIN), LIMITED v. DAIMLER COMPANY, LIMITED. 
 
 THE SAME v. THOMAS TILLING, LIMITED. 
 
 Court of Appeal. [1915] 1 E.B. 893. 
 
 These two cases were argued before a full Court of Appeal, consisting 
 of Lord Reading, C.J. ; Lord Cozensi-Hardy, M.R. ; Kennedy, L.J. ; 
 Phillimore, L.J. ; Pickford, L.J. ; and Buckley, L.J. 
 
 In the first action the defendants appealed against an. order of 
 Scrutton, J., affirming an order of the Master by which the plaintiffs 
 were given leave to sign judgment under Order XIV. 
 
 In the second action the defendants appealed against the judgment 
 given by Lush, J., in favour of the plaintiffs after trial. 
 
 The plaintiffs were a limited liability company, incorporated 
 under the Companies Act. They carried on business in London, at 
 the registered office of the company, and bad a number of agencies 
 throughout the United Kingdom. The company was formed in 1905, 
 with a capital of £10,000, increased in 1908 to £25,000, to trade in 
 motor-car tyres made in Germany by a company incorporated under 
 German law. The German company formed a number of subsidiary 
 companies in various parts of the world for the sale of these tyres. 
 The plaintiff company was formed for the purpose of selling such 
 tyres in the United Kingdom. At the date of the writ the German 
 company held 23,398 shares in the plaintiff company, and the remain- 
 ing shares, except one, were held by subjects of the German Empire 
 residing in Germany. The one share was registered in the name of 
 the secretary of the company, who was born in Germany, resided in 
 London, and in January, 1910, became a naturalised subject of the 
 Crown. The directors were subjects of the German Empire, and 
 
 107 
 
108 RECENT CASES. 
 
 were resident in Germany. The business was managed by two 
 managers and the secretary, all three being resident in this country. 
 
 In the first case the plaintiff company was the drawer and holder 
 of bills accepted by the defendants for goods supplied before the 
 declaration of war. The bills matured for payment, and were 
 presented, after the declaration of war. In the second case the 
 plaintiffs' claim was for a balance of account for goods supplied 
 before the war. 
 
 The appellants contended that the plaintiff company must be 
 regarded as an alien enemy notwithstanding that it was a limited 
 liability company, and that the Court should look at the substance 
 and not the technicalities of the matter. 
 
 Lord Heading, C.J., in delivering the judgment of the whole 
 Court (except Buckley, L.J.), said that it could not be disputed that 
 the plaintiff company was an entity created by statute. At the 
 outbreak of war it was carrying on business in the United Kingdom, 
 it had contracted to supply goods, it delivered them, and until the 
 outbreak of the war it was admittedly entitled to receive payment 
 at the due dates. Had the character of the company changed because, 
 on the outbreak of war, all the shareholders and directors resided in 
 an enemy country, and therefore became alien enemies? An English 
 company could not by reason of these facts cease to be an English 
 company. It was undoubtedly the policy of the law as administered 
 in the Courts to regard substance and to disregard form. But sub- 
 stance must not be treated as form or swept aside asi technicality 
 because that course might appear convenient in a particular case. 
 The fallacy of the appellants' contention lay in the suggestion that 
 the entity created by statute was or could be treated during the 
 war as a mere form of technicality by reason of the enemy character 
 of its shareholders and directors. 
 
 Salomon v. Salomon,, 1897, A.C. 22, and Jamson v. Driefontein 
 Consolidated: Mines, Limited, 1902, A.C. 484, were authorities for 
 holding that payment to the plaintiff company was not payment to 
 the enemy shareholders or for their benefit. The Trading with the 
 Enemy Proclamation, No. 2, of 9th September, 1914, gave a defini- 
 tion of " enemy," which did not include a company incorporated in 
 this country. The prohibition of any payment " to or for the benefit 
 "of an enemy," therein contained, did not therefore apply here. 
 
 The weight of judicial opinion was against the appellants, as 
 could be seen by reference to Gramophone and Typewriter, Limited 
 v. Stanley, 1908, 2 K.B. 89, and Kodak, Limited v. Clark, 1903, 
 1 K.B. 505. 
 
 It had been argued that the plaintiff company could not in time 
 of war be regarded as a subject of the Crown, that it had no mind, 
 and could not be loyal or disloyal to the State, and that only the 
 character of the shareholders could determine whose subject the 
 company was. That view had not been favoured by the House of 
 Lords in Jansoni v. Driefontein, Consolidated Mines, Limited, 1902, 
 A.C. 484. 
 
 The Court were also invited to decide against the plaintiff com- 
 pany on the ground that to allow it to recover debts during the war 
 
CONTINENTAL TYRE CO. v. DAIMLER CO. 109 
 
 ■would be against public policy. But nothing would more easily tend 
 to create uncertainty and confusion in the law than to allow considera- 
 tions of public policy, as distinguished from law based upon public 
 policy, to be a ground of judicial decision. Bath appeals were there- 
 fore dismissed. 
 
 Buckley, L.J., regretted that he could not concur in the judgment 
 delivered. 
 
 The artificial legal entity created by incorporation under the 
 Companies Actsi was a legal person existing apart from its corporators. 
 On the other hand, the corporation could not exist without corporators. 
 It had no physical existence, and existed only in contemplation of law. 
 The corporation, if it were a British corporation, stood in the same 
 position for most purposes as a British subject, but it could not be 
 correctly described as a British subject. A subject, he conceived, 
 must be one who could owe and pay allegiance to the King; but this 
 could not be predicated of the abstract legal entity. If those proposi- 
 tions were true, as he thought they were, they seemed to him to go 
 to the root of the question which had in this case to be determined. 
 This corporation was one which as a corporation certainly had in 
 law an independent legal existence, and that legal person was British. 
 But, on the other hand, all its directors were Germans resident in 
 Germany. The holders of all its 25,000 shares, except one share, 
 were Germans resident in Germany. 
 
 The question for determination was whether, when all the natural 
 persons who expressed and gave effect to their wishes through the 
 corporation as a legal abstraction were Germans resident in Germany, 
 the corporation could sue in this country, because those persons who 
 could not sue were, as matter of law, absorbed in a separate legal 
 person which was British and could sue. The contractual relations 
 constituted by membership in a corporation under the Companies 
 Acts were singular. Where the corporator was an alien enemy those 
 relations might be vitally affected by a state of war. The motive 
 power of the corporation might become paralysed and suspended by 
 the existence of war in a case where every corporator was as an alien 
 enemy under disability as such. Suppose it were the law to allow 
 a sole person to incorporate himself as a company with limited 
 liability, and an individual German resident in Germany became incor- 
 porated here as a British company, could it be seriously contended 
 that in time of war that alien enemy, because he had acquired a legal 
 corporate name and had an artificial legal existence in this country, 
 was consequently for the present purpose not an alien enemy? 
 
 Did it make any difference that there must be two persons, or 
 that the number was seven or ten 1 The number of corporators in the 
 present company was six. If his judgment were wrong, the matter 
 was one which called urgently for legislation. The proposition that 
 an alien enemy could not sue rested upon the proposition that such a 
 one could not approach the King, had no resort to the King, and could 
 not invoke the assistance of the King. The Court was the King's 
 Court. To say that the six Germans in the present case could approach 
 the King because it was not they, but the British corporation, which 
 approached the King seemed to him to be unsound. 
 
110 RECENT CASES. 
 
 The artificial legal entity had no independent power of motion ; it 
 was moved by the corporators. It was the German corporator who, 
 under the corporate name, but still German for the relevant purpose 
 of friendliness or enmity, came. Although British in form, he was 
 German in fact. 
 
 The Court could look beyond the corporate name and notice the 
 character of the individual (City of London v. Wood, 12 Mod. 669; 
 Bank of the United States v. Deveaux, 5 Cranch, 61 ; Society for the 
 Propagation of the Gospel v. Wheeler, 2 Gallison, 133). 
 
 In his opinion, the appeals should be allowed. 
 
 (b) Domicile. 
 
 [The subject of an enemy State, carrying on business in allied of 
 neutral territory, is not an alien enemy.] 
 
 IN HE MARY DUCHESS OF SUTHERLAND— BECHOFF, DAVID 
 & Co. v. BUBNA AND OTHERS. 
 
 Chanceet Division. [1915] 31 T.L.R. 248. 
 
 The plaintiffs, a partnership firm, claimed, as creditors of the late 
 Duchessi of Sutherland, to have her estate administered. The 
 defendants were her executors. At the date of the issue of the writ 
 all the plaintiffs, three in number, were resident in Paris. Two of 
 them were French subjects, and the third, Siegfried David, was an 
 Austrian, who appeared from the evidence to be now residing in 
 France (an allied country) or in Spain (a neutral country). The 
 defendants moved for a stay of proceedings on the ground that this 
 third partner was an alien enemy. 
 
 Warrington, J., in refusing the application, said that Siegfried 
 David, if carrying on business at all, was carrying on business through 
 his partners, who were doing so in an allied country, France. David 
 wasi of enemy nationality, but in the three cases of Porter v. 
 Freundenberg, Kreglinger v. Samuel and Bosenfeld, and In re 
 Merten's Patent, 31 T.L.R. 166, the Lord Chief Justice said, " It is 
 " clear law that the test is not nationality, but the place of carrying 
 "on the business." 
 
 Lord Lindley's view was the same in Janson v. Driefontein Con- 
 solidated Mines, Limited, 1902, A.C. 505. Although the point to 
 which the attention of the Lord Chief Justice was mainly directed was 
 the question whether British subjects carrying on business in an 
 enemy country were to be treated as alien enemies, he proceeded — 
 
 " When considering the enforcement of civil rights, a person may 
 " be treated as the subject of an enemy State, notwithstanding that 
 
BECHOFF, DAVID & CO. v. BUBNA AND OTHERS. Ill 
 
 " he is in fact a subject of the British Crown or of a neutral State. 
 " Conversely, a person may be treated as a subject of the Crown not- 
 " withstanding that he is in fact the subject of an enemy State." 
 
 Here was the case of a person of enemy nationality neither residing 
 nor carrying on business in an enemy State, and, according to the 
 judgments of the Lord Chief Justice and Lord Lindley, he was not an 
 alien enemy. 
 
TRADING WITH THE ENEMY. 
 
 (a) General Rule. 
 
 [It is a crime during: the present war to pay a debt due from an 
 alien enemy to a neutral.] 
 
 REX v. KUPFER. 
 
 Coubt of Criminal Appeal. [1915] 31 T.L.R. 223. 
 
 The appellant had been convicted of trading with the enemy, having 
 paid to a firm in Holland, after the declaration of war, a debt due 
 from the branch of his firm in Germany. 
 
 Lord Reading, C.J., said that the appellant, Albert Kupfer, was 
 indicted for unlawfully trading by making certain payments of £500 
 and £39 7s. Id. for the benefit of certain enemies, namely, his two 
 brothers, who carried on business in Frankfurt. The ground of the 
 appeal was that the payments were not payments for the benefit of 
 enemies. There was a firm of Bettmann & Kupfer trading in Frank- 
 furt and London and elsewhere, consisting of the appellant's two 
 brothers, who lived in Frankfurt and carried on business there, and 
 the appellant, who lived in London and carried on the business of the 
 firm there. Substantially the business consisted in the purchase of 
 manufactured goods and their shipment abroad. In the main the 
 activities of the London partner were centred in the collection of 
 moneys due for goods sold, and he remitted those moneys to Frankfurt. 
 Throughout the case no distinction was made between the partnership 
 in Frankfurt or in London. It was clear that until the war began 
 the appellant had no business with the Dutch firm. War broke out 
 at 11 p.m. on 4th August, 1914, and intercourse between England and 
 Germany was prohibited. There was no doubt that a British subject 
 carrying on business or resident in Germany was to be treated as an 
 alien enemy, although in fact not an enemy. In this case both the 
 partners in Frankfurt and the appellant were naturalised British 
 subjects. 
 
 The correspondence established beyond all doubt that the Frankfurt 
 partners were issuing instructions to the appellant how to carry on 
 business and complete transactions which had been begun before the 
 war by the partners in Frankfurt. In a letter from the appellant to 
 the Dutch firm, dated 13th August, he stated in terms that the 
 Frankfurt house had requested him to communicate with them. On 
 17th August they replied that they were willing to do business with 
 him on the basis of the old contract with the Frankfurt partners, 
 but they made it clear that unless he paid the amount due from 
 Frankfurt they would find it difficult to enter into business relations 
 with him. 
 
 112 
 
SCHMIDT v. VAN DER VEEN. 113 
 
 At the beginning of the war there were two cheques, for £100 and 
 £400, drawn by the appellant on the London City and Midland Bank 
 in favour of the Frankfurt partners. At the same time £750 was due 
 from the Frankfurt branch to the Dutch firm. A payment of £500 
 was made by the appellant through Blydenstein & Co., of London, to 
 be paid by them to their branch in Holland, to be remitted to the 
 Dutch firm. The effect of that would be to liquidate to the extent 
 of £500 the debt of £750 due from the Frankfurt partners to the 
 Dutch firm; that was to say, the appellant had liquidated a debt for 
 which the Dutch firm was looking to Frankfurt. 
 
 It was argued that payment to a neutral, and therefore not to an 
 enemy, by a partner resident in this country of the debt of a firm of 
 which he wasi a member, in respect of a transaction effected before 
 the war, could not be treated as a payment for the benefit of an enemy. 
 In his opinion the Proclamation of 9th September, 1914, which had 
 been given the force of a statute, was deliberately introduced to prevent 
 devices by which mercantile houses might seek indirectly to make 
 payments notwithstanding the prohibition against making them direct, 
 and its words were very wide. It was said that, as the appellant 
 would be liable to pay if sued, payment did not render him liable. 
 But that did not represent the true state of the facts. There was no 
 trace of any demand for payment by the Dutch firm. It might be — 
 they did not decide it — that under a threat of process he might have 
 justified payment. They assumed that the partnership came to an 
 end, by operation of law, on the outbreak of war. But the effect of 
 that wasi that these transactions were taking place between a British 
 subject and alien enemies who were not partners. It was further 
 contended that the payment was, under paragraph 7 of the Proclama- 
 tion, a payment "by or on account of enemies to persons . 
 " carrying on business . . in our Dominions." The facts did 
 
 not bring the payment within those words, for the money was not 
 paid in the sense there intended. The appeal must be dismissed. • 
 
 (b) Excepted Transactions. 
 
 [A payment to a British subject, whieh merely improves the 
 position of an alien enemy by giving him further security 
 that he will ultimately recover the money, is lawful. 
 
 But sembie under the Trading with the Enemy Amend- 
 ment Act, 1914, the money so paid must be vested in the 
 Custodian] 
 
 SCHMIDT v. VAN DER VEEN. 
 
 King's Bench Division. The Times, 6th February, 1915. 
 
 The plaintiff, who was a naturalised British subject resident in this 
 country, sued the defendants, a London firm, for the price of goods 
 
 I 
 
114 KECENT CASES. 
 
 sold and delivered. The defendants pleaded (1) that the plaintiff was 
 not entitled to sue, because the contract had been made by him only 
 as agent for a foreign manufacturer, Arnz, resident in Germany ; and 
 (2) that the plaintiff could not recover on the ground that, even 
 although he was the principal in the contract with the defendants, 
 yet the arrangements between him and Arnz were such that the action 
 was for the benefit of the latter, an alien enemy, and so not maintain- 
 able. 
 
 Rowlatt, J., said that the first defence failed, it having been 
 established that the contract was between the plaintiff and the 
 defendants. As regards the second defence, it appeared that the 
 arrangements between the plaintiff and Arnz were that the plaintiff 
 ordered umbrella silks, for which he had previously obtained orders 
 himself from customers in England. The goods were consigned to the 
 plaintiff by Arnz in bulk ; and the plaintiff appropriated and delivered 
 them to the various buyers. The plaintiff was at liberty to sell them 
 at any price he chose above a certain minimum. The excess was 
 divided equally between him and Arnz, and the plaintiff also received 
 3 per cent, commission. The plaintiff was. only to pay Arnz if and 
 when he himself received payment, Arnz thus taking the risk of the 
 buyers' default, though, of course, the plaintiff's share of profit and 
 commission were at his own risk. The course of business* was for 
 the plaintiff, when he had collected a certain amount, to send Arnz a 
 cheque for it. He kept a ledger account with Arnz. Every six 
 months he credited himself in this account with share of profits and 
 commission to date. 
 
 From these facts it appeared to be clear that, as a payment to 
 the plaintiff created an obligation on his part, which would not have 
 arisen without it, to remit the money paid to Arnz, subject to his own 
 claim for half-profits and commission, the action was clearly in one 
 sense for the benefit of Arnz. He would obtain the benefit of Schmidt's 
 besoming accountable or indebted (it mattered not which) to him for 
 the money. He would not, however, obtain the benefit of the pay- 
 ment in the sense of a benefit by way of payment unless Schmidt not 
 only became liable to, but did in fact, remit. 
 
 Where the cause of action itself was unexceptionable, though the 
 person interested was an enemy, as where the claim accrued 
 before he became an enemy, there was no objection to an action 
 upon it for the benefit of the alien enemy by one who was not himself 
 an alien enemy, provided, of course, that he was otherwise entitled to 
 sue in his own name. If there was any objection, it was at a later 
 stage, namely, as to the payment over of the proceeds after the action. 
 In the present case the plaintiff's claim, in which an alien enemy was 
 interested, accrued before the war, and, so far as the common law rule 
 went, he was entitled to maintain the action. 
 
 It remained to consider the effect of the Trading with the Enemy 
 Act, 1914, and the Proclamation of 9th September, which made it a 
 criminal offence to make a payment to or for the benefit of an enemy. 
 If payment of the debt now sued for by the defendant to the plaintiff, 
 in the circumstances existing between the plaintiff and Arnz, would be 
 a payment for the benefit of the enemy within the meaning of the 
 
WILSON v. EAGOSINE & CO. 115 
 
 Proclamation, he could not give a judgment which would have the 
 effect of bringing about that payment. In his opinion, however, no 
 crime was committed by making a payment to a third person which 
 merely improved the position of an enemy by giving him further 
 security that he would ultimately recover the money and without an 
 intention that the enemy, while such, should benefit by it as a 
 payment. 
 
 In the present case the plaintiff had expressed his willingness to 
 submit to a stay of execution until he should have taken out and 
 brought to a hearing a summons under the Trading with the Enemy 
 Amendment Act, 1914, for the vesting of the money in the custodian; 
 and he would make that order. He was by no means clear that even 
 if the plaintiff had not consented it would not have been his duty to 
 take the same course, in order to make it certain that the judgment 
 of the Court would not work an offence against the statute. But it 
 was unnecessary for him actually to decide that. He did not know 
 whether, upon the summons of the plaintiff, the Chancery Division 
 could, or would, make any order, or whether any or what other 
 measures could or would be taken to prevent the money from going to 
 Arnz pending the war. His functions were confined to securing the 
 necessary delay by suspending execution. 
 
 [A transaction immediately before the war which diverts a balance 
 and a business from Germany to England, and enables a 
 British subject to collect in England a number of debts, is 
 not trading with or for the benefit of an enemy.] 
 
 WILSON v. RAGOSINE & CO., LIMITED. 
 
 King's Bench Division. The Times, 25th February, 1915. 
 
 The plaintiff, a British subject, claimed from the defendants 
 £243 3s. lid., under a bill of exchange for goods supplied before the 
 war, and a further balance of £147 14s. 9d. for goods also supplied 
 before the war. The defendants pleaded that they had reasonable 
 grounds for suspecting that the bill was held, and the balance of 
 account claimed, by the plaintiff, as the owner of a business still 
 carried on at Cologne on behalf of an enemy, and that therefore 
 payment was prohibited. 
 
 Scrutton, J., in giving judgment for the plaintiff without costsi, 
 said that Wilson was in partnership with a German, Scholz, in a paint 
 business at Cologne. Wilson had found all the capital. Suspecting 
 war to be imminent, on 3rd August, at Cologne, Wilson made an 
 agreement with Scholz as follows : 
 
 " We beg to state that from this day, the third of August of this 
 "year (1914), the firm of Harold Wilson & Scholz has been made 
 " over entirely to our senior partner, Mr. Harold Wilson, of 16 
 " Watling Street, London, E.C., to whom alone all accounts are 
 " payable. Mr. Harold Wilson is therefore alone entitled to collect 
 
116 RECENT CASES. 
 
 " all debts owing to Harold Wilson & Scholz, and to give receipt 
 " for these; he will also pay all accounts which are still owing by 
 " Harold Wilson & Scholz. The style of the business is from this 
 " day changed to Harold Wilson, London." 
 
 This was signed by Harold Wilson and Scholz. This agreement 
 in terms applied to all the assets and liabilities. Wilson explained 
 that what was meant was that Scholz should take the German and 
 Austrian assets and liabilities and wind up the German business, 
 and that he, Wilson, should take all assets and liabilities, a list 
 of which was prepared at the time, outside Germany and Austria, 
 and carry on the business in London, the partnership being dissolved. 
 
 Assuming this to be the agreement, the business effect was that 
 Wilson could collect debts of the face value of £12,000 in England 
 and America, and was liable to discharge debts in England, France, 
 Holland, and America to the extent of £5500. He thus on balance 
 brought £6500 to England, being the capital he had paid into the 
 dissolved business, and also transferred the business to London. 
 While the discharge of one debt as an isolated transaction might be 
 a trading for the benefit of the enemy within the recent decision of 
 the Court of Criminal Appeal in Rex v. Kupfer, 31 T.L.R. 223, he 
 (the learned judge) could not see how this transaction as a whole, 
 which diverted on balance £6000, and a business from Germany to 
 England, and especially that part of it which enabled an Englishman 
 to collect in England and out of Germany £12,000 of debts, could 
 be said to be trading with or for the benefit of the enemy. It did 
 not appear to offend against the Trading with the Enemy Amendment 
 Act, 1914, as the assignment of the debt was made before the war, 
 and also before 19th November, 1914, in good faith and for valuable 
 consideration, and the transfer of the bill was either made before 
 the war, if it was transferred by the letter of 3rd August, or not 
 made by an enemy if transferred by the indorsement by the English 
 branch of the Disoonto-Gesellschaft. Section 7 did not apply to this 
 case at all. 
 
 The bill having been indorsed by the German firm to the Disoonto- 
 Gesellschaft in England, who held it for collection only, was presented 
 for payment on behalf of the German firm before Wilson could get 
 back from Germany. On his return and on the Disconto's being 
 shown the agreement it indorsed the bill to him in blank, and he 
 sued as holder of the bill. 
 
 As to the claim on balance of account for goods supplied, he 
 stood either as legal or equitable assignee of the debt. If legal 
 assignee there was sufficient notice of the assignment ; if equitable 
 assignee, there was sufficient warrant in the decision of the House of 
 Lords in William Brandts, Sons, & Go. v. Dimlop Rubber Com- 
 pany, 1905, A.C. 454, for allowing him, as he had the sole beneficial 
 interest, to sue without joining the German ex-partner who, as he 
 was serving in the German Army, could not effectively be served or 
 joined. There must therefore be judgment for the plaintiff for the 
 amount claimed. 
 
 There remained the subject of costs. As a general rule, if a 
 defendant had all the facts before him, and by throwing the responsi- 
 
W. L. INGLE, LTD. v. MANNHEIM INSURANCE CO. 117 
 
 bility on the Court put the plaintiff to the expense of an action, he 
 would have to pay the costs of the action. But in this case the bill 
 was admittedly presented once after the beginning of the war on 
 behalf of the firm; the agreement of dissolution was informal and 
 ambiguous; and on 29th October the plaintiff's solicitor, no doubt 
 on the instructions of his client, stated that the plaintiff had paid 
 hia partner a lump sum for all his interest in the partnership assets. 
 No receipt for this payment was produced, though requested, and 
 the statement seemed to have been quite inaccurate. In these 
 circumstances no costs would be given to the plaintiff. 
 
 [The Trading with the Enemy Proclamation of 8th October, 1914, is 
 not retrospective. 
 
 Semble payment of a loss by a German insurance office, 
 or an action against such insurance office to recover a loss, 
 is not forbidden by the Proclamation.] 
 
 W. L. INGLE, LIMITED v. MANNHEIM INSURANCE COMPANY. 
 
 King's Bench Division. [1914] 1 K.B. 227. 
 
 This was an application by the plaintiffs to transfer an action to the 
 Commercial List. 
 
 The plaintiffs sought to recover a loss under a policy of marine 
 insurance issued on 31st July, 1914, by the defendants, a German 
 company with its head office in Germany and a branch office in this 
 country. The loss under the policy occurred at the end of August or 
 the beginning of September. The writ was issued on 22nd Septem- 
 ber. The defendants contended that they could not be called upon 
 to pay under the policy without infringing the Trading with the 
 Enemy Proclamation of 8th October, 1914. 
 
 Bailhache, J., said that the status of the defendants, who carried 
 on business in this country through their underwriters and agents, 
 and had complied with the provisions of section 274 of the Companies 
 (Consolidation) Act, 1908, had been altered by the Proclamation of 
 8th October. Since that date they had become alien enemies. But 
 the Proclamation was not retrospective. Even if it had been, he 
 was not prepared to hold that payment of a loss by a German 
 insurance company, or an action against such insurance company to 
 recover a loss, was a transaction within the meaning of the Proclama- 
 tion. So to hold would be to deprive a British subject of his right 
 to receive money from or to sue an alien enemy — a right which he 
 had at law, at any rate, when the right to be paid or to sue accrued 
 before the defendant became an alien enemy. Paragraph 7 of the 
 Proclamation was conclusive that the right to receive payment from 
 an alien enemy was intended to be left as it stood at common law. 
 The action would therefore be transferred. 
 
CONTRACTS WITH PERSONS NOT 
 
 ENEMIES. 
 
 [A contract entered into before war is dissolved by the outbreak 
 of war, where its performance would involve trading with 
 the enemy.] 
 
 DUNCAN, FOX & CO. v. SCHREMPFT & BONKE. 
 
 King's Bench Division. [1915] 1 K.B. 365. 
 
 In May, 1914, the claimants sold to the respondents, a quantity of 
 Chilian honey, to be shipped to Hamburg, payment to be made 
 against shipping documents. On 4th August war was declared by 
 Great Britain on Germany, and on 5th August a Proclamation was 
 issued against trading with the enemy. On the same day the 
 respondents were informed that the shipping documents were at their 
 disposal; but they refused to accept them. The matter was referred 
 to arbitration, and the arbitrators stated a case for the opinion of 
 the Court. 
 
 Atkin, J., held that the respondents were justified in refusing the 
 tender of the documents on the ground that, if they had accepted 
 them and obtained the goods, they would have been carrying out a 
 contract in violation of the Proclamation against trading with the 
 enemy. 
 
 [A contract is dissolved where a Proclamation under statutory 
 authority prohibits its performance, and it is immaterial 
 that such prohibition only lasts a short time.] 
 
 ANDREW MILLAR & CO. v. TAYLOR & CO. 
 
 King's Bench Division. [1915] 31 T.L.R. 272. 
 
 Thh plaintiffs were confectionery manufacturers at Belfast, and the 
 defendants ordered from them confectionery to be delivered during 
 August and September, 1914, for export. On 10th August a 
 Proclamation prohibited the export of confectionery, and on 14th 
 August the plaintiffs cancelled the contract. The defendants counter- 
 claimed for damages for non-delivery of the goods. 
 
 Rowlatt, J., dismissed the counter claim. The plaintiffs' conten- 
 tion was that, as the goods were for export, the contract could not 
 be legally performed in view of the Proclamation. It appeared that 
 the course of business was for the goods to be shipped from Belfast 
 
 118 
 
SMITH, CONEY, &c. v. BECKER, GRAY & CO. 119 
 
 in a local steamer to Liverpool or London, and there to be transhipped 
 to the vessel which was to take them to their destination. They 
 were packed in strong cases and marked with the name of the foreign 
 port to which they were to be carried. That would not commit them 
 irrevocably for export, for the defendants, the purchasers, could 
 have interposed at Liverpool or London, and said that they had 
 changed their minds, and would not export the goods after all. But 
 there was a duty on the importation of sugar and a corresponding 
 drawback allowed on its export, and from the evidence it appeared 
 that the Belfast Customs authorities treated the goods as exported 
 on leaving Belfast and paid the drawback to the plaintiffs as the 
 exporters. Apparently, therefore, goods ordered on a contract of 
 this nature must go abroad, and could not be kept in England, and 
 the vendors, in quoting a price under the contract, would take into 
 consideration the fact that they would receive the drawback from 
 the Revenue authorities. 
 
 On 20th August the embargo on the export of sugar was removed, 
 having only been in force for ten days, and on 25th August the 
 plaintiffs reaffirmed their cancellation. The embargo, in fact, made 
 the export illegal, and on 10th August, when it came into force, no 
 one knew how long it would last. In his judgment, the plaintiffs 
 were entitled to declare the contract off as soon as the further 
 performance of it became illegal, and the fact that the embargo 
 lasted only a short time was quite immaterial. 
 
 [Where the terms of a contract are such as to provide for a 
 lawful and possible performance of it in the event of war, 
 the contract is unaffected by the outbreak of war.] 
 
 SMITH, CONEY & BARRETT v. BECKER, GRAY & CO. 
 
 Court op Appeal. [1915] 31 T.L.R. 151. 
 
 The plaintiffs carried on business at Liverpool, and some time before 
 31st July, 1914, agreed to buy from the defendants a quantity of 
 beetroot sugar, f.o.b. Hamburg, in August. An embargo was placed 
 on the export of beetroot sugar by the German Government on 31st 
 July, 1914. On 1st August the plaintiffs ordered the defendants to 
 sell the sugar at the best price, and thereupon the defendants con- 
 tracted to buy the sugar from the plaintiffs. The contracts contained 
 an arbitration clause. In the purchase contract entered into by the 
 plaintiffs there was a clause to the effect that, " in the event of 
 " Germany being involved in a war with either England, France, 
 " and/or Austria, this contract, unless previously closed, shall on 
 " official notice being given that such a state of war exists, be deemed 
 " to be closed at the average quotation of the official calls held on the 
 " sixth working day counted backwards from the day when such official 
 " notice is given . . ." War broke out between Great Britain 
 and Germany on 4th August, and Proclamations against trading with 
 
120 RECENT CASES. 
 
 the enemy were afterwards issued. A dispute arose with regard to 
 the contract of 1st August, and the defendants desired to submit 
 it to arbitration. The plaintiffs sought an injunction restraining the 
 defendants from proceeding with the arbitration, on the ground that 
 the contract was illegal or incapable of performance. 
 
 Lord Cozens-Hardy, M.R., said that no question asi to arbitration 
 could arise if the contract of 1st August, 1914, was illegal by reason 
 of the declaration of war on 4th August. It was also contended that, 
 if the contract was not tainted with illegality, it ought not to be 
 enforced because of the embargo placed on the export of sugar by 
 the German Government on 31st July, 1914. It was said that it 
 must be taken to be an implied term of the agreement that it should 
 be possible to export the sugar. 
 
 He could see nothing illegal in the contract. The agreement was 
 for the sale of sugar f.o.b. at Hamburg, or, if by reason of war this 
 was not possible, it was 1 provided by the war clause that the contract 
 should be settled by a payment of cash. There was no illegality in 
 this contract with its two branches. If delivery was impossible, the 
 contract could be performed by a payment in cash. That was the 
 true construction of the contract, and there was nothing in the 
 contention of illegality. Under the war clause there was a provision 
 to meet the event of an outbreak of war. 
 
 With regard to the question as to the effect of the embargo, 
 there was no authority to show that a mere embargo was a termina- 
 tion of the rights of the parties under their contracts; and there 
 was nothing to show that the contract was entered into on the 
 presumption that there would be no embargo. It was for the buyers 
 to say whether the sugar was to be delivered in a ship at Hamburg 
 or warehoused, and there was nothing to prevent them from saying 
 that, as there was an embargo, the sugar must be warehoused. There 
 was no ground, therefore, for saying that the contract was illegal or 
 incapable of performance. 
 
 Asi the parties had in fact agreed to settle their disputes by 
 arbitration, the Court would not interfere. The appeal of the 
 plaintiffs against the decision of Warrington, J., refusing the injunc- 
 tion asked for, must be dismissed. 
 
 [A contract is discharged by the outbreak of war, if the risks of 
 war were not in the contemplation of the parties.] 
 
 LISTON AND OTHERS v. OWNERS OF STEAMSHIP 
 " CARPATHIAN." 
 
 King's Bench Division. [1915] W.N. 102. 
 
 The plaintiffs sued for £84, due to them by the defendants under 
 a written agreement dated 16th August, 1914. They had signed on 
 as seamen on the " Carpathian," a British ship, for a commercial 
 voyage, with a final port of destination in the United Kingdom, and 
 
BERNA MOTOR LORRIES v. INTER-TRANSPORT CO. 121 
 
 •when at Port Arthur learned of the outbreak of war between Great 
 Britain and Germany. They also heard of the presence of a German 
 cruiser in the neighbourhood. The cargo of the " Carpathian " was 
 oil. On the plaintiffs' refusal to complete the voyage on account of 
 the extra risks due to war unless they received extra wages, the 
 master gave the undertaking in writing upon which the action was 
 brought. The defendants! contended that, unless the risk amounted 
 to a risk to life, the plaintiffs were not entitled to any sum beyond 
 their original wages. 
 
 Lord Coleridge, J., held that the new agreement was binding on 
 the owners. The risks of war were not in the contemplation of the 
 seamen when they signed on for a commercial voyage. The risks 
 both of capture, if the oil was contraband, and of mines on the 
 homeward voyage were risks which might reasonably be taken into 
 consideration. Under these circumstances, the plaintiffs were dis- 
 charged from their original obligation. 
 
 [Where goods held under a hire-purchase agreement are requisi- 
 tioned by the Government, the compensation paid therefor 
 will be equitably proportioned between the parties.] 
 
 BRITISH BERNA MOTOR LORRIES, LIMITED v. INTER- 
 TRANSPORT COMPANY, LIMITED. 
 
 King's Bench Division. The Times, 3rd February, 1915. 
 
 The plaintiffs claimed from the defendants £308 6s. 6d. as money 
 had and received for their (the plaintiffs 1 ') use. The facts were these — 
 Under a hire purchase agreement dated 29th November, 1913, the 
 plaintiffs delivered to the defendants a motor chassis on the terms 
 that the defendants were to pay to the plaintiffs £490 by three instal- 
 ments of £163 6s. 8d., the first instalment to be paid on the signing 
 of the agreement, the second instalment in the next April, and the 
 third instalment on 29th August, 1914, with interest and subject to 
 the defendants' option of paying the full amount at any time. Until 
 payment was made in full, the property in the chassis remained in the 
 plaintiffs. The defendants fitted the chassis with a body, tyres, and 
 accessories, at a cost of £160, and paid the first two instalments 
 under the agreement. On 6th August, 1914, after the outbreak of 
 war, the motor lorry was impressed by the War Office, and £409 
 was paid by the War Office to the defendants as compensation. 
 
 The question for the Court was, What proportion of this sum 
 ought to be paid by the defendants to the plaintiffs 1 
 
 Rowlatt, J., said that at the time the chattel was impressed by 
 the War Office only £163 6s. 8d. remained due to the plaintiffs, and 
 the remaining interest in the chattel was in the defendants. In 
 his opinion, the £409 represented the full value of the lorry, less 
 depreciation, and the plaintiffs were entitled to £163 6s. 8d., with 
 interest. Judgment would be for the plaintiffs for £170. 
 
ACTIONS BY AND AGAINST ALIEN 
 ENEMIES. 
 
 (a) Enemy's Right to Sue. 
 
 [An alien enemy duly registered under the provisions of the Aliens 
 Restriction Aet, 1914, and Order made thereunder, and 
 residing in a prohibited area of the United Kingdom under 
 a permit, ean sue in the Courts of this eountry during the 
 present war.] 
 
 VOLKL y. GOVERNORS OF THE ROTUNDA HOSPITAL. 
 
 King's Bench Division, [1914] 2 I.R. 543. 
 
 Ireland. 
 
 This action was brought by Mrs. Volkl for alleged negligence on the 
 defendants' part when she was in their hospital. The action was ripe 
 for trial when the war broke out. She was the English wife of an 
 Austrian, who was now an alien enemy. She and her husband were 
 duly registered, in compliance with the Aliens Restriction Order of 
 5th August, 1914, and she had a permit to reside in the prohibited 
 area of Havant. The motion before the Court was to suspend the 
 action and trial till the war ended. 
 
 Gibson, J., in delivering his judgment, with which Dodd, J., 
 concurred, said that the question was whether, under the Aliens 
 Restriction Act, 1914, and Aliens Restriction Order in Council of 5th 
 August, 1914, the plaintiff was entitled to sue, no order for deporta- 
 tion having been made, she and her husband having been duly regis- 
 tered, and there having been no violation of the terms of the permit 
 or infringement of the restriction of residence and locomotion. The 
 Act 43 Geo. III. c. 155 contained elaborate provisions as to passports, 
 registration, and licences ; being at large without a licence was made 
 an offence, and a licence was ipso facto invalidated if the alien went 
 outside the prescribed district. The resident enemy aliens were then 
 few. At present their number was very large. The Aliens Restric- 
 tion Act of 1914 omitted all reference to licences, and the point before 
 the Court was whether registration, with permission to reside in a 
 prohibited area, amounted to a licence or permission to reside within 
 the prohibited district entitling the alien to the protection of the 
 King's peace and to ask for redress if his rights in respect of person 
 
 122 
 
SCHULZE, GOW & CO. v. BANK OF SCOTLAND. 123 
 
 or property were violated. He (the learned judge) was of opinion 
 that the Act and Order recognised the right of the registered alien 
 to reside within the limited area. His residence there was lawful, 
 and he was entitled to the protection of the English civil and criminal 
 law. It was the interest of the State that the alien should continue 
 to earn his livelihood, and not be added to the ranks of the unem- 
 ployed. It would be a cruel kindness to leave him a restricted 
 liberty and deprive him of the means of enjoying it. The Aliens 
 Restriction Order in Council of 5th August, 1914, rr. 1 and 2, plainly 
 contemplated the alien carrying on business here without any special 
 licence. The learned judge referred to Janson v. Driefontein Con- 
 solidated Mines, Limited, 1902, A.C., at pp. 525-6, and Wells v. 
 Williams, 1 Ld. Raym. 282. That wrongs, however outrageous, 
 could be perpetrated on such an alien with practical impunity during 
 war, and that his redress should be confined to the chance of his 
 surviving the war — actio personalis moritur cum, persona — appeared 
 a most unlikely intention. The probable reason that licences were 
 not specially provided for as in the Act of 43 Geo. III. c. 145, was on 
 account of the immense numbers of resident aliens to be dealt with. 
 The necessary inference from the recent compendiousi legislation was 
 that the registered alien was permitted by lawful authority to reside 
 in the district, and such permission carried with it civil rights in 
 respect of person, character, and otherwise. Sparenburgh v. 
 Bannatyne, 1797, 1 Bos. & P. 163, was an interesting authority on 
 the subject. Rooke, J., there indicated that a resident prisoner of 
 war can sue. The exact point before the Court had been decided in 
 Princess of Thurn and Taxis v. Moffitt, 1914, 31 T.L.R. 24. The 
 motion, therefore, must be refused, with costs, and the action allowed 
 to proceed. 
 
 [An alien enemy who has long resided and traded in Scotland, and 
 has complied with the provisions of the Aliens Restriction 
 Act, 1914, and Orders made thereunder, can sue in the 
 Scottish Courts during: the present war.] 
 
 SCHULZE, GOW & CO. v. BANK OF SCOTLAND. 
 
 Coubt of Session, [1914] 2 S.L.T. 455. 
 
 Scotland. 
 
 In this action, which was. raised before the outbreak of the present 
 war, the sole surviving partner of a firm sued the defenders for an 
 accounting of their intromissions with the funds of the firm, whereby 
 the true balance due to the firm might be ascertained. The defenders 
 pleaded, inter alia, no title to sue, beoause such surviving partner 
 was an alien enemy. 
 
 Lord Hunter said that he could not give effect to this plea. 
 Although the pursuer was a German subject, he had long resided 
 and traded in Scotland, and had duly complied with the provisions 
 
124 RECENT CASES. 
 
 of the Aliens Restriction Act, 1914, and Orders made thereunder. In 
 Janson v. Driefontein Consolidated Mines, Limited, 1902, A.C. , at 
 p. 505, Lord Lindley said — " When considering questions arising 
 " with an alien enemy, it is not the nationality of a person, but his 
 "place of business during war, that is important." The case of 
 Princess Thwrn and Taixis v. Moffitt, 1914, W.N. 379, applied. 
 
 (b) Enemy a Co-Plaintiff. 
 
 [Where a co-plaintiff with a British subject becomes an alien enemy 
 during the dependence of an action, proceedings will be 
 stayed.] 
 
 ACTIEN GESELLSCHAFT FUR ANILIN FABRIKATION IN 
 BERLIN AND MERSEY CHEMICAL WORKS, LIMITED v. 
 LEVINSTEIN, LIMITED. 
 
 Cotrrer of Appeal. [1915] W.N. 85. 
 
 The facts and arguments are set forth in the judgment of Lord Cozens- 
 Hardy, M.R., with whose judgment Phillimore, L.J., and Joyce, J., 
 concurred. 
 
 Lord Cozens-Hardy, M.R., said that the plaintiffs, who were a 
 German company and an English company, had begun an action in 
 1912 alleging the infringement of certain patents, which had been 
 vested in the German company and had afterwards by assignment 
 become vested in the English company. The decision of the Court 
 below was against the plaintiffs, and the action was dismissed with 
 costs. Before the declaration of war the plaintiffs — that was to say, 
 both the German company and the English company — gave notice of 
 appeal, and the appeal was in the paper for hearing. Having regard 
 to the recent decision of the full Court of Appeal, it was impossible 
 for the appeal to proceed in its present form. The plaintiffs were 
 actors in the Court below and actors in the Court of Appeal, and the 
 action could not be brought on for hearing in its present form, but 
 must be suspended during the war. 
 
 It wasi contended on behalf of the plaintiffs that there were really 
 two causes of action; that the German company had a claim for 
 damages during the period when the patents were vested in them, 
 and the English company had a claim for damages during the subse- 
 quent period. The English company were trustees for the German 
 company, but that made no difference ; there were separate causes of 
 action, and the actions might have been brought separately. They 
 were not, however, brought separately, and it was a convenient course 
 that both claims should be combined in the same action and brought 
 at the same time. That being so, it was plain that the appeal must 
 be suspended during the war. 
 
DAIMLER MOTOR CO. v. MAUDSLEY MOTOR CO. 125 
 
 It was further contended that they might strike out the German 
 company as plaintiffs and treat the action as if it were an action 
 brought by the English company for damages since they became 
 entitled to the patents. The plaintiffs did not ask to be struck out, 
 and his lordship had never heard of a defendant having one of 
 two co-plaintiffs struck out that he might have a trial against the 
 other. They were co-plaintiffs for better or for worse, and the appeal 
 must be suspended during the war. 
 
 [Where a co-plaintiff with a British subject becomes an alien enemy 
 during the dependence of an action, but the British subject 
 is the real and substantial plaintiff in the action, proceed- 
 ings will not be stayed.] 
 
 MERCEDES DAIMLER MOTOR COMPANY, LIMITED, AND 
 DAIMLER MOTOREN GESELLSCHAFT v. MAUDSLEY 
 MOTOR COMPANY, LIMITED. 
 
 Chancery Division. [1915] W.N. 55. 
 
 This was an action for infringement of a patent, of which the plaintiff 
 companies were the joint registered owners, the first company being 
 an English company and the second company a German company. 
 The letters patent were vested in the plaintiffs jointly by a deed dated 
 1st May, 1908, clause 9 of which provided — 
 
 " The British company shall have the sole right of bringing actions 
 
 or other proceedings to restrain the infringement of or otherwise 
 
 protecting the rights granted by all or any of the letters patent 
 
 . and for such purpose may upon first giving to the German 
 
 company twenty-one days' notice of its intention so to do join the 
 
 German company as co-plaintiffs with the British company in any 
 
 such proceedings, and the British company shall have the sole 
 
 conduct and control of any such actions. . . ." 
 
 The English company had by a letter dated 15th October, 1913, 
 
 given the German company the twenty-one days' notice required in 
 
 the deed, but had received no reply. 
 
 When the case was called, the preliminary objection was taken 
 for the defendant company that the German company, being an 
 alien enemy, the action ought to be suspended during the present war. 
 Warrington, J., said that this was a somewhat peculiar case. 
 Clause 9 of the deed of 1st May, 1908, showed that, as* between the 
 English company and the German company, the proceedings, though 
 brought formally in the names of the two companies, were really 
 brought by the English company. The German company had nothing 
 to do with bringing the action; they might have objected to the 
 action being brought, but they had not done so. The important 
 point was that, although the patent was in the names of the two 
 
126 RECENT CASES. 
 
 companies, the person to protect the patent was the English company. 
 To deny the English company the right to prosecute this action would 
 be to deny the right to a British subject to bring an action for his 
 own protection. 
 
 The preliminary objection, therefore, could not be sustained, and 
 the hearing must proceed. 
 
 (c) Enemy's Right to Defend and Appeal. 
 
 [An alien enemy, unless with special lieenee or authorisation of 
 the Crown, has no right to sue in the King's Courts 
 during war, his right to sue being suspended until the 
 restoration of peace. 
 
 An alien enemy may be sued, if he could have been 
 sued in time of peace, and if it is practicable to give him 
 proper notice of the proceedings. 
 
 An alien enemy ean appear, if sued, and be heard in 
 his defence. 
 
 In such a ease an alien enemy has the same right of 
 appeal as any other litigant. 
 
 But if the alien enemy was a plaintiff, his right of appeal 
 is suspended during the war, unless he has the special 
 lieenee or authorisation of the Crown.] 
 
 PORTER v. FREUNDENBERG. 
 
 KREGLINGER v. S. SAMUEL & ROSENFELD. 
 
 IN BE MERTEN'S PATENT. 
 
 Court of Appeal. [1915] 1 K.B. 857. 
 
 These cases were argued before a full Court, consisting of Lord 
 Reading, C.J. ; Lord Cozens-Hardy, M.R. ; Buckley, L.J. ; Kennedy, 
 L.J. ; Swinfen Eady, L.J. ; Phillimore, L.J. ; and Pickford, L.J. Sir 
 John Simon, A.G., attended for the Crown as amicus curias. 
 
 The plaintiff in the first appeal issued a writ against Philip 
 Freundenberg (trading as Hermann Gerson) to recover a quarter's; 
 rent due on 29th September, 1914, under a lease made in 1903 of 
 certain premises situated in Hanover Square, London. The defendant 
 resided and carried on business in Berlin, and had for some time 
 before the outbreak of the war carried on a branch establishment at 
 the above premises in London by means of an agent named Arthur 
 Barnes. According to the plaintiff's affidavit, a quantity of stock 
 was usually kept on the premises, but immediately before 29th Sep- 
 
PORTER v. FREUNDENBERG, &c. 127 
 
 tember the whole of the stock, fixtures, and fittings were removed 
 from the premises. On 28th September the keys of the premises were 
 sent to the plaintiff by Barnes, which, the plaintiff intimated, would 
 be held at the disposal of Barnes, as the defendant's agent. The 
 plaintiff, having issued his writ, applied to Scrutton, J., for direc- 
 tions as to the manner of serving it upon the defendant in Berlin. 
 Liberty was given to him to issue a concurrent writ against the 
 defendant and to serve notice of the writ in Berlin. In 
 view of the difficulty in serving the notice of the writ, the plaintiff 
 appealed for an order of substituted service of the notice of the writ 
 by allowing service of it upon Barnes, or otherwise as the Court 
 might direct. 
 
 In the second appeal the plaintiffs, Kreglinger, were skin and hide 
 merchants, carrying on business in London and at Antwerp. Before 
 the outbreak of war they had entered into contracts! for the sale of 
 cargoes of hides from Australia to the firm of S. Samuel & Kosenfeld, 
 carrying on business in London. Before the outbreak of war the firm 
 of S. Samuel & Rosenfeld intimated that they did not intend to carry 
 out the contracts. After the outbreak of war a writ was issued, and 
 the plaintiffs claimed to have effected proper service of it upon the 
 firm under Order 48, rule 3, by leaving it upon one Bonome, a person 
 who appeared to be in control or management of the business here. 
 (See Order 48, rule 3.) Bonome entered a conditional appearance, 
 and applied to set aside the service. Scrutton, J., set it aside on 
 the ground that one Alfred Cohen, who resided at Hamburg, was the 
 sole proprietor of the business of Samuel & Rosenfeld, and therefore 
 Order 48, rule 3, did not apply, as there were not two or more partners 
 carrying on business within the jurisdiction. An unsuccessful attempt 
 was made to establish that Bonome was a partner in the firm. 
 
 Evidence was taken before the Master, and it appeared that 
 Bonome was not a partner, but was the manager of the 
 business in London for Alfred Cohen, with full authority to act 
 in all matters in respect of the said business. The plaintiffs only 
 knew Bonome, and transacted all their business with the firm with 
 him. Scrutton, J., in the plaintiffs' application, gave leave to issue 
 a concurrent writ against Alfred Cohen with liberty to serve notice 
 of the writ at Hamburg, in Germany, but refused leave to make 
 substituted service of the notice of writ by serving it upon Bonome. 
 
 The plaintiffs appealed, and asked the Court, in view of the circum- 
 stances and the difficulty, if not impossibility, of effecting service upon 
 Alfred Cohen during the war, to permit them to make the service 
 upon Bonome, inasmuch as he appeared to be the person in charge of 
 the defendants' interests in this country. 
 
 The third appeal came before the Court on a motion to set aside 
 the appeal on the ground that the appellants were alien enemies. 
 Soldan & Co. , Limited, an English company, presented a petition for 
 revocation of a patent granted to a German subject, resident in Ger- 
 many, of which patent a German company were the ownem The 
 petition was heard by Warrington, J., who made an order on 28th 
 July, 1914, for revocation of the patent, but, if notice of appeal was 
 given on or before 28th August, 1914, the operation of the order was 
 
128 RECENT CASES. 
 
 to be suspended until the hearing of the appeal. Notice of appeal 
 was given on 28th August, and war broke out between Great Britain 
 and Germany on 4th August. At the date of giving notice of 
 appeal the appellants were alien enemies. 
 
 Lord Beading, C. J., in delivering the judgment of the whole Court, 
 said that the main questions were — (1) the capacity of alien enemies 
 to sue; (2) their liability to be sued; (3) their capacity to appeal, and 
 generally their right to appear and be heard in the Courts. 
 
 (1) The main propositions of law had long been settled. It was 
 necessary at the outset to keep clearly in mind the meaning of the 
 term " alien enemy " when used in reference to civil rights and lia- 
 bilities. Its natural meaning indicated a subject of a State at war 
 with Great Britain, and would not in any circumstances include a 
 neutral person or a British subject. But that was not the sense of 
 the term when used in reference to civil rights. Ever since The 
 "Hoop," 1799, 1 Ch.Bob. 196, it had been firmly established, as 
 laid down in Lord Stowell's judgment, that one of the consequences of 
 war was the absolute interdiction of all commercial intercourse or 
 correspondence by a British subject with the inhabitants of the hostile 
 country except by permission of the Sovereign. It was clear that the 
 test was not nationality, but the place of carrying on the business 
 {Wells v. Williams, 1 Ld. Raym. 282 ; M'Gormell v. Hector, per Lord 
 Alvanley, 3 Bos. & P. 113; and Janson v. Driefontein Consolidated 
 Mimes, Limited, 1902, A.C., per Lord Lindley, p. 505). When con- 
 sidering the enforcement of civil rights, a person might be treated as 
 the subject of an enemy State, notwithstanding that he was in fact a 
 subject of the British Crown or of a neutral State. Conversely, a 
 person might be treated as a subject of the Crown, notwithstanding 
 that he was in fact the subject of an enemy State. Such was Lord 
 Lindley's view. Lord Lindley, for the purposes of the appeal then 
 before the House of Lords, was considering the character of a trading 
 corporation, and did not purport to deal with persons residing but 
 not carrying on business in the enemy territory. Professor Dicey, in 
 his Treatise on Parties to an Action, at p. 3, stated the law accurately 
 in the following proposition: — " Under the term alien enemies are 
 " included not only the subjects of any State at war with us, but also 
 ' ' any British subjects or the subjects of any neutral State voluntarily 
 " resident in a hostile country." 
 
 In ascertaining the rights of aliens, the first point for consideration 
 was whether they were alien friends or alien enemies. Alien friends 
 had long since been, and were at the present day, treated in reference 
 to civil rights as if they were British subjects, and were entitled to 
 the enjoyment of all personal rights of a citizen, including the right to 
 sue in the King's Courts. Alien enemies had no civil rights or privi- 
 leges, unless they were here under the protection and by permission 
 of the Crown (Blackstone'si Commentaries, 21st edition, vol. 1, c. 10, 
 p. 373). Indeed, under the ancient common law " debts and goods 
 " found in this realm belonging to alien enemies belonged to the 
 " King, and must be seized by him " (Hales's Pleas of the Crown, 
 volume 1, p. 95). Whether the right of the Sovereign to confiscate 
 any of the alien enemies' goods or debts in this realm was ever 
 
PORTER v. FREUNDENBERG, &c. 129 
 
 exercised or not (Wolff v. Oxholm, 1817, 6 M. & S. 102, per Lord 
 Ellenborough), there could be no doubt about the existence of the right 
 {A. G. v. Wheeden, 1699, Parker's Eeports, 267). Chief Justice 
 Gibbs, in Amtoine v. Morshead, 1815, 6 Taunt. 238, affirmed the 
 principle that the Crown during the war might lay hands on debts due 
 to the alien enemy, but if it did not, then on the return of peace the 
 rights of the contracting alien were restored, and he might himself 
 sue to recover the debts. The right of confiscation was only of im- 
 portance to trace the history and foundation of the common law, 
 since there was manifestly no question of exercising this right. The 
 severity of the common law rule was, however, in early days relaxed 
 in favour of those who had the King's permission to come here. 
 
 The authorities were agreed that an alien enemy could not sue 
 or proceed in the Courts without the licence or authorisation of the 
 Crown. The latest adjudication upon the alien enemy's right to sue 
 was Princess Thum and Taxis v. Moffitt, 1914, W.N. 379, where 
 Sargant, J., held that the subject of an enemy State who was regis- 
 tered under the Aliens Restriction Act, 1914, as an alien and the 
 subject of an enemy State could sue in the King's Courts. This 
 decision was clearly right. Such an alien was resident here by tacit 
 permission of the Crown. He had by registration informed the Execu- 
 tive of his presence in this country, and had been allowed thereafter 
 to remain here. He was sub protections domi/n/i regis. 
 
 It fell now to be considered whether The Hague Convention of 
 1907 on the Laws and Customs of War on Land, Article 23 (H), of 
 chapter 1 of section 2 of the annex, entitled " Regulations respecting 
 " the Laws and Customs of War on Land," had any bearing upon 
 the questions to be determined. The heading of that section was " Of 
 " Hostilities." Section III. was headed, " Military Authority over 
 " the Territory of a Hostile State." Chapter I. of section II. was 
 entitled "The Means of Injuring the Enemy, Sieges and Bombard- 
 " ments." The articles in it numbered from 22 to 28. Articles 22 
 and 23 were as follows: — 
 
 "Article 22. 
 
 " Belligerents have not got an unlimited right as to the choice of 
 " means of injuring the enemy. 
 
 "Article 23. 
 
 " In addition to the prohibitions provided by special conventions, 
 "it is particularly forbidden — 
 
 ' ' (a) To employ poison or poisoned weapons ; 
 
 " (5) To kill or wound by treachery individuals belonging to the 
 
 " hostile nation or army; 
 " (c) To kill or wound an enemy who, having laid down his 
 " arms or no longer having means of defence, has sur- 
 " rendered at discretion; 
 " (d) To declare that no quarter will be given; 
 " (e) To employ arms, projectiles, or material calculated to cause 
 "unnecessary suffering; 
 
 K 
 
130 RECENT CASES. 
 
 "(f) To make improper use of a flag of truce, of the national flag, 
 
 "or of the military insignia and uniform of the enemy, 
 
 " as well as of the distinctive signs of the Geneva Conven- 
 
 " tion; 
 " (g) To destroy or seize enemy property unless such destruction 
 
 ' ' or seizure be imperatively demanded by the necessities 
 
 " of war; 
 " (h) To declare abolished, suspended, or inadmissible the right 
 
 " of the subjects of the hostile party to institute legal 
 
 " proceedings. 
 " A belligerent is likewise forbidden to compel the subjects of the 
 ' ' hostile party to take part in the operation of war directed against 
 " their own country, even if they were in the service of the belligerent 
 " before the commencement of the war." 
 
 The remaining articles referred to ruses of war, bombardments, 
 sieges, and assaults. The important paragraph was 23 (h) — 
 
 " To declare abolished, suspended, or inadmissible the right of the 
 " subjects of the hostile party to institute legal proceedings." 
 
 The question was whether the operation of that paragraph was 
 or was not to abrogate the old rule (not peculiar to English law, 
 though it had been more prominent in England than elsewhere) that 
 an alien enemy's rights of action were suspended during war. After 
 careful consideration of the divergent views of eminent jurists, the 
 Court were clearly of opinion that the paragraph could not be treated 
 as effecting any such abrogation. In the first place, the terms of the 
 paragraph itself were against any such view. What was forbidden 
 was a declaration, " It is forbidden to declare." That had no appli- 
 cation to a country in which, as in England, there was no room for a 
 declaration. By the existing law of the country the mere fact of war 
 operated ipso facto to suspend the rights of action of an alien enemy. 
 An eminent German jurist, Dr. Sieveking, was of opinion that the 
 paragraph was ineffectual as to England for this reason. Secondly, 
 the context showed that the paragraph must really be taken as 
 prohibiting any declaration by the military commander of a belligerent 
 force in the occupation of the enemy's territory which would prevent 
 the inhabitants therein from using their Courts of law in order to 
 assert or to protect their civil rights. The paragraph was included 
 in a group of paragraphs forming Article 23, every other of which 
 related solely to the conduct of a military force and its commanders 
 in a campaign. The chapter of which the article formed part was 
 entitled " The Means of Injuring the Enemy, Sieges and Bombard- 
 " ments " ; and the section of the annex to which the chapter belonged 
 bore the general heading " Of Hostilities." The declaration govern- 
 ing the whole annex itself and controlling its application was to be 
 found in Article 1, " The contracting parties shall issue instructions 
 " to their armed land forces which shall be in conformity with the 
 ' ' regulations respecting the laws and customs of war on land annexed 
 " to the present Convention." This was the view of the British 
 Government, made public in 1911 (see section 7 of Part I., supra). 
 
 (2) The second question was whether an alien enemy could be 
 sued during the war. To allow an alien enemy to sue or proceed 
 
PORTER v. FREUNDENBERG, &c. 131 
 
 during the war in the King's Courts would be to give to the enemy 
 the advantage of enforcing his rights by the assistance of the King, 
 with whom he was at war. But to allow the alien enemy to be sued 
 or proceeded against during war was to permit the subjects of the King 
 or alien friends to enforce their rights with the assistance of the King 
 against the enemy. Prima facie there seemed no possible reason why 
 the law should decree an immunity during hostilities to the alien 
 enemy against the payment of just debts or demands due to British or 
 neutral subjects. The rule of law suspending the alien enemy's right 
 of action was based upon public policy, but no considerations of public 
 policy were apparent which would justify preventing the enforcement 
 by a British or neutral subject of a right against the enemy. As was 
 said by Mr. Justice Bailhache in Robinson & Go. v. Continental Insur- 
 ance Company of Mannheim [1915], 1 K.B. 155, " To hold that a 
 subject's right of suit is suspended against an alien enemy is to injure 
 a British subject and to favour an alien enemy, and to defeat the 
 " object and reason of the suspensory rule." The effect would be to 
 convert that which during war was a disability imposed upon the 
 alien enemy because of his hostile character into a relief to him 
 during war from the discharge of his liabilities 1 to British subjects. 
 
 (3) Once the conclusion was reached that the alien enemy could be 
 sued, it followed that he could appear and be heard in his defence, 
 and might take all such steps as might be deemed necessary for the 
 proper presentment of his defence. If brought at the suit of a 
 party before a Court of justice, he must have the right of submitting 
 his answer to the Court. To deny him that right would be to deny 
 him justice, and would be quite contrary to the basic principles 
 guiding the King's Courts in the administration of justice. 
 
 Equally it followed that, when sued, if judgment proceeded against 
 him, the Appellate Courts were asi much open to him as to any other 
 defendant. It was true that he was the person who might be said 
 in one sense to initiate the proceedings in the Appellate Court by 
 giving the notice of appeal, which was the first necessary step to 
 bring the case before that Court ; but he was entitled to have his case 
 decided according to law, and if the judge in one of the King's Courts 
 had erroneously adjudicated upon it, he was entitled to have recourse 
 to another and an Appellate Court to have the error rectified. 
 
 But the same conclusion was not reached in reference to appeals by 
 an alien enemy plaintiff, that is, a person who before the outbreak 
 of war was a plaintiff in a suit, and then by virtue of his residence 
 or place of business became an alien enemy. He could not proceed 
 with his action during the war. If judgment had been pronounced 
 against him before the war in an action in which he was plaintiff, he 
 could not present an appeal to the Appellate Courts of the King. There 
 was no distinction in principle between the case of an alien enemy 
 seeking the assistance of the King to enforce a civil right in a Court 
 of first instance and an alien enemy seeking to enforce such right by 
 recourse to the Appellate Courts. He was in either case seeking to 
 enforce his right by invoking the assistance of the King in his Courts. 
 He was the " actor " throughout. He was not brought to the Courts 
 at the suit of another; it was he who invoked their assistance, and it 
 
132 RECENT CASES. 
 
 mattered not for this purpose that a judgment had been pronounced 
 against him before the war. When once hostilities had begun he 
 could not, so long as they continued, be heard in any suit or proceeding 
 in which he was the person first setting the Courts in motion. If he 
 had given notice of appeal before the war, the hearing of his appeal 
 must be suspended until after the restoration of peace. 
 
 The Courts, having decided that an alien enemy. could be sued, 
 had to consider how effective notice of the proceedings could be 
 served on an alien enemy in enemy territory. Diplomatic relations 
 with Germany had been broken off, and a serious question might have 
 arisen whether in the circumstances Order XL, rule 8, was applicable. 
 Before the outbreak of war Germany was by an order of the Lord 
 Chancellor a country to which that rule applied, and so long as 
 that order stood the procedure to be adopted for service in Germany 
 was regulated by that rule. But, as the order had been revoked 
 by the Lord Chancellor, it was unnecessary to consider whether the 
 rule that the procedure therein prescribed ' ' shall be followed ' ' could 
 be held applicable during a war between Great Britain and Germany. 
 
 Unless an order for substituted service in this country of a notice 
 of a writ for service out of the jurisdiction could be made in a 
 proper case, great hardship might be inflicted upon persons who 
 were subjects of and resident in this country, and who had given 
 credit or had contracted with, or had claims against, persons who 
 were now alien enemies, to the manifest advantage of the latter and 
 the disadvantage of the former, and of neutral subjects who wished 
 to sue in this country. The Court, while bearing this consideration 
 in mind, had also to take into account the position of the defendant 
 the alien enemy, who was, according to the fundamental principles of 
 English law, entitled to effective notice of the proceedings against 
 him. It was obvious that in all cases against the alien enemy the 
 plaintiff would seek, if possible, an order to make substituted service 
 in this country. It was desirable, therefore, to consider in some 
 detail, firstly, in what circumstances substituted service could be 
 ordered; and, secondly, whether substituted service within the juris- 
 diction could be ordered of a notice of writ for service without the 
 jurisdiction. 
 
 The general rule was that an order for substituted service of writ 
 of summons for service within the jurisdiction could not be made 
 in any case in which at the time of the issue of the writ there could 
 not be at law a good personal service of the writ because the defendant 
 was not within the jurisdiction. In order that substituted service 
 might be permitted, it must be clearly shown that the plaintiff was 
 in fact unable to effect personal service, and that the writ was likely 
 to reach the defendant or to come to his knowledge if the method of 
 substituted service which was asked for by the plaintiff was adopted. 
 The Court might then make such order as might seem just (Order 
 IX., rule 2). The terms of this rule were of very wide application, 
 and gave a very wide discretion, which the Court was not inclined to 
 limit. In the case of a writ properly issued under one of the heads 
 of Order XL, rule 1, for service out of the jurisdiction, substituted 
 service, either within or without the jurisdiction, might be permitted 
 
PORTER v. FREUNDENBERG, &c. 133 
 
 in special circumstances, as, e.g., that the defendant was evading 
 personal service of such writ, and that the proposed form of substi- 
 tuted service would be effectual in bringing the writ to the defendant's 
 knowledge (Ford v. Shepherd, 1885, 34 W.R. 63; Western, &c, 
 Building Society v. Ruchlidge, 1905, 2 Ch. 472). 
 
 In the case of a notice in lieu of writ to be served on a foreigner 
 out of the jurisdiction on order properly obtained under Order XI., 
 rule 1, there was no reason why substituted service of that notice 
 should not be permitted in similar circumstances to those in which 
 it was permitted in the case of a writ for service out of the jurisdic- 
 tion. As to substituted service of such a notice, Order XL, rule 7, 
 and Order IX., rule 2, gave power to order it. Certainly under 
 Order XL, rule 8 (4) and (5), it was contemplated that this might 
 be done, for it prescribed the method of doing it, and Ditton v. 
 Bornemann, 3 T.L.R. 3, favoured the view that the substituted 
 service of a notice of a writ might be allowed. The judge in 
 chambers before whom the application was made for substituted 
 service of a writ for service out of the jurisdiction or of a notice of 
 such a writ ought to be careful before acceding to the application — 
 (a) to satisfy himself that there existed a practical impossibility of 
 actual service, as otherwise, inasmuch as there was always a certain 
 amount of difficulty and delay in effecting service out of the jurisdic- 
 tion under Order XL, a plaintiff would always seek to obtain an 
 order for substituted service with the seriousi risk that the defendant 
 might never have notice of the proceedings, and judgment in default 
 of appearance might be given against him unjustly; (6) to satisfy 
 himself for the same reason that the method of substituted service 
 asked for by the plaintiff was one which would in all reasonable 
 probability, if not certainty, be effective to bring knowledge of the 
 writ or the notice of the writ (as the case might be) to the defendant. 
 
 English procedure had been laudably superior to the Continental 
 in not allowing "constructive service," such, e.g., by published 
 notices or advertisements whereby a defendant might be condemned 
 unheard because he had had no knowledge of the proceedings against 
 him. 
 
 In Porter v. Freundenberg the writ was issued for service within 
 the jurisdiction, the defendant being abroad at the time of the issue 
 of the writ. There could therefore be no order for substituted ser- 
 vice of that writ. Leave having now been given to issue a concurrent 
 writ and to serve notice out of the jurisdiction, that difficulty was 
 removed. The proper order to make in the circumstances in this 
 case, and also in Kreglinger v. Samuel & Bosenfeld, was to give the 
 leave to make substituted service and to refer both cases back to 
 Chambers for directions as to the mode of effecting it. Service of 
 the notice would be effected in the one case by substituted service 
 upon Barnes, and in the other upon Bonome, and such further terms 
 should be imposed in Chambers upon the plaintiff as to advertise- 
 ment or other means of communication and as to the period to be 
 given to the defendant for appearance as might seem proper. 
 
 In the case of In re Merten's Patent the motion to set aside the 
 appeal on the ground that the appellants were alien enemies must 
 
134 RECENT CASES. 
 
 be dismissed, but, in view of the peculiar circumstances, without 
 costs. The appellants were the respondents to a petition. They 
 were brought to the Court at the instance of another, because they 
 were the owners of the patent rights. The alien enemy appellants 
 were not the actors in the proceedings; these were initiated by the 
 petitioners, and notice was served upon the appellants for revocation 
 of the patent rights they had acquired. The appellants were in the 
 same position as a defendant to a suit who appealed from a judgment 
 given against him. In accordance with the view already expressed, 
 the appellants were entitled not only to .appear and be heard on this 
 motion, but also to have their appeal heard in the ordinary course, 
 despite the war. 
 
THE MORATORIUM. 
 
 [A debt falling within the moratorium is a good petitioning 
 creditor's debt in a bankruptcy petition.] 
 
 IN RE SAHLER; EX PARTE MUMFORD & CO. 
 
 King's Bench Division. [1914] W.N. 439. 
 
 In May, 1914, the debtor owed the petitioning creditors £101. On 
 9th September, 1914, he gave notice that he was about to suspend 
 payment. Under the moratorium the debt would not be payable 
 before 4th October. The petitioners presented a bankruptcy petition 
 on 11th September, 1914, contending that the debt was " a liqui- 
 " dated sum payable either immediately or at some certain future 
 " date " (see Bankruptcy Act, 1883, section 6 (1) (6), and Bankruptcy 
 Act, 1913, section 4 (1) (6)). 
 
 Horridge, J., and Rowlatt, J., held that the debt was a good 
 petitioning creditor's debt. 
 
 [A c.i.f. contract is not within the moratorium.] 
 
 HAPPE v. MANASSEH. 
 
 King's Bench Division. [1915] W.N. 137. 
 
 Dependant sold opium to plaintiff on 12th June, 1914, shipment from 
 Calcutta during July, payment cash against documents on arrival of 
 steamer. On 30th July defendant notified plaintiff that the opium 
 was on the steamer, which arrived in London on 17th August. In 
 consequence of a dispute as to the effect of the moratorium, the 
 defendant never tendered the shipping documents, and refused to 
 complete. Plaintiff did not dispense with tender or announce his 
 intention of repudiating. 
 
 Plaintiff brought an action against defendant and sued for the 
 difference in price. 
 
 Sankey, J., held that the moratorium did not apply to c.i.f. 
 contracts. (As to the nature of such contracts, see E . Clemens Horst 
 Company v. Biddell Brothers, 1912, A.C. 18.) Part of the c.i.f. 
 rate was for maritime freight, which was excepted from the mora- 
 torium. The moratorium, further, only applied to cases where the 
 payment was naked, not where to obtain the documents the purchaser 
 must perform the condition precedent of payment. Therefore, under 
 the above circumstances, the plaintiff was entitled to the damages 
 claimed. 
 
 135 
 
136 RECENT CASES. 
 
 [Where rent falls under the moratorium the landlord's right to 
 reeover possession of the premises is suspended.] 
 
 DURRELL v. GREAD. 
 
 King's Bench Division. [1914] W.N. 382. 
 
 On 24th June, 1914, defendant owed plaintiff four quarters' rent. 
 On 25th August, 1914 (i.e., during the moratorium), plaintiff com- 
 menced his action to recover the rent in arrear at midsummer, and 
 to recover possession of the premises under the usual proviso for 
 re-entry. The hearing was on 16th October (i.e., after the mora- 
 torium had expired). 
 
 Scrutton, J., held that, as to the rent, the action having regard 
 to the moratorium was commenced too soon. It was analogous to 
 an action for the price of goods sold commenced before the agreed 
 term of credit had expired. As to the claim for possession, the 
 proviso for re-entry was merely a security for the rent, and, as the 
 principal remedy was suspended, the auxiliary remedy must also be 
 held to be so. 
 
 [Where a distress for rent is made before the proclamation of the 
 moratorium, but the sale is delayed until after the pro- 
 clamation of the moratorium, the landlord's right to sell is 
 suspended; but his right to secure his possession of the 
 goods, e.g., by removal, remains unaffected.] 
 
 SHORTLAND v. CABINS, LIMITED, AND ANOTHER. 
 
 King's Bench Division. The Times, 12th March, 1915. 
 
 In this case the plaintiff claimed from the defendants, Cabins, 
 Limited, his landlords, and Mr. George Thorpe, their bailiff, damages 
 for excessive distress, for removing the goods seized during the mora- 
 torium, for trespass, for wrongfully excluding him from the premises 
 of which he was tenant, and for an injunction. 
 
 The plaintiff was the tenant of certain offices in the Strand, W.C., 
 at a rent of £120 a year, payable quarterly. The rent of the 
 premises, due on 24th June, 1914, was not paid, and on 25th July 
 the landlords, by their bailiff Thorpe, levied a distress upon the 
 plaintiff's goods therein. At the request of the plaintiff, under the 
 Law of Distress Amendment Act, 1888, the sale of the goods was 
 postponed until 8th August. On 10th August the goods seized were 
 removed from the premises for sale, but the sale was not carried out, 
 and the goods remained in the custody of the defendants' agents. 
 
SHORTLAND v. CABINS, LTD., AND ANOTHER 137 
 
 Shearman, J., in ruling that the plaintiff was not entitled to 
 damages for the removal of the goods, said that under the Moratorium 
 Proclamation the right to recover any debt exceeding £5 was sus- 
 pended, and it had been decided that the ancillary remedies for the 
 recovery of the money, including eviction and sale under a distress, 
 were also suspended. After a distress had been levied the landlord 
 was in the position of a gwasi-pledgee, and, though his right to sell 
 the goods seized was affected by the moratorium, his right to secure 
 his possession still existed. After the time for holding the goods 
 had expired no charge for remaining in possession could be made, and 
 in his opinion the defendants acted reasonably in removing the goods, 
 and were entitled to do so. 
 
COURTS (EMERGENCY POWERS) ACT, 
 
 1914. 
 
 [The appointment of a receiver in a debenture holder's foreclosure 
 action is not within the statute.] 
 
 IN BE FARNOL, EADES IRVINE & CO., LIMITED : 
 CARPENTER v. THE COMPANY. 
 
 Chancery Division. [1915] 1 Ch. 22. 
 
 On 2nd October, 1914, a debenture holder, as representative, issued 
 a writ against the company claiming (1) declaration of charge, (2) 
 proper accounts, (3) payment of amount secured, (4) foreclosure or 
 sale, (5) appointment of receiver and manager. On 30th October 
 plaintiff moved for the appointment of a receiver and manager. The 
 defendant submitted that both the writ and the notice of motion came 
 within the Courts (Emergency Powers) Act, 1914. 
 
 Warrington, J., held that the Act had no application. All the 
 things except " foreclose," prohibited by section 1 (1) (6) referred to 
 acts to be done by some person independently of and without an order 
 of the Court. Foreclosure was an Act of the Court in removing a 
 previously existing right of redemption. " Foreclose " here did not 
 mean " to commence an action for foreclosure." Therefore the issue 
 of the above writ was not prohibited. Nor did the Act prevent the 
 Court from appointing a receiver and manager in order to preserve 
 the property. Here no person entered into possession by way of 
 execution, but possession was taken by the Court (through its officer) 
 for the benefit of all parties. Therefore the defendants' objection 
 failed. 
 
 [A mortgagee may proceed as far as foreclosure nisi without 
 special leave.] 
 
 BEHAGG v. PALMER. 
 
 Chancery Division. [1914] W.N. 416. 
 
 Tub was a motion for judgment in foreclosure action, minutes in 
 usual form. 
 
 Warrington, J., held, referring to In re Farnol, Eades ds Co., 
 1915, 1 Ch. 22, that the Act did not apply to a foreclosure action to 
 
 138 
 
BURGESS v. O. H. N. GASES, LIMITED. 139 
 
 obtain ordinary judgment nisi, but only to the final destruction of 
 the equity of redemption. Therefore the proper course was to grant 
 the judgment nisi, inserting at the end the words, " but no order for 
 foreclosure absolute shall be made so long as the Courts (Emer- 
 " gency Powers) Act, 1914, is in force except by the judge in person." 
 This judgment was made after discussion with the other Chancery 
 judges. 
 
 [A forfeiture of shares falls within the statute, and may be 
 restrained by injunction.] 
 
 BURGESS v. 0. H. N. GASES, LIMITED. 
 
 Chancery Division. [1914] W.N. 422. 
 
 The plaintiff held 2000 not fully paid-up ordinary shares. On 27th 
 July, 1914, the directors made a further call of 5s. per share, 2s. 6d. 
 payable 24th August and 2s. 6d. payable 26th October. Plaintiff 
 did not pay, and on 28th October the directors passed a resolution, 
 properly exercising their normal powers under the articles, forfeiting 
 the shares to the company. The plaintiff moved for an injunction. 
 
 Neville, J., granted an injunction on two grounds. 
 
 Firstly, the call came within the moratorium, and so was not 
 payable until 4th November. Hence the directors' resolution of 28th 
 October referred to a debt not then due, and was consequently futile. 
 
 Secondly, the purported forfeiture was an attempt to take posses- 
 sion of personal property, and came within the Courts (Emergency 
 Powers) Act, 1914, section 1 (1) (b), and leave of the Court had not 
 been obtained. 
 
 [The Court of Appeal will be very slow to interfere with the 
 absolute discretion given to the judge to grant or refuse 
 leave to enforce a judgment.] 
 
 LYRIC THEATRE (LONDON), LIMITED v. LYRIC THEATRE, 
 
 LIMITED. 
 
 Court op Appeal. [1914] W.N. 461. 
 
 On 16th November, 1914, the Master made an order under Order 
 XIV., rule 1, on a summons (which included an application for leave 
 to enforce the judgment under the Courts (Emergency Powers) Act, 
 1914) for rent and possession of the premises, and gave leave to 
 enforce. On 19th November Scrutton, J., affirmed the order. 
 
 The Court of Appeal (Lord Cozens-Hardy, M.R., and Kennedy, 
 L.J.), on an appeal against the leave to enforce the judgment, held 
 that the Court of Appeal would be very slow to interfere with the 
 " absolute discretion " given to the judge and master by section 1 (2) 
 of the Act. 
 
140 RECENT OASES. 
 
 [An Order giving a plaintiff liberty to proceed to execution on a 
 judgment will not be disturbed on appeal, unless it is shown 
 that the absolute discretion vested in the Court was not 
 exercised upon legal grounds.] 
 
 THE PHILCO PUBLISHING CO. v. NOLAN. 
 
 Kjing's Bench Division, [1915] 49 Ir.L.T.Rep. 65. 
 
 Ireland. 
 
 This was am appeal from an order of Boyd, J., giving the plaintiffs 
 liberty to proceed to execution on, or otherwise to enforce, a judg- 
 ment for £21 6s. 8d. and costs entered in an action upon 5th January, 
 1915. The writ was issued on 17th November, 1914, and an appear- 
 ance was entered on 8th December. Judgment in default of defence 
 was marked upon 5th January, 1915. At the hearing of the 
 application to enforce the judgment the defendant's affidavit was 
 relied upon. This stated, inter alia, that his present inability to 
 pay the amount of the judgment debt was due to circumstances 
 attributable to the present war; that the order for the goods, for the 
 price of which the action was brought, was signed by the defendant 
 without taking much notice of the contents and without being aware 
 .of the content® of the document; that the order was for 1000 dozen 
 postcards, instead of, as the defendant intended, for 1000 postcards; 
 that the postcards were delivered upon 31st July, 1914, and con- 
 tained upon the face of them a note "Printed in Saxony"; that 
 in consequence of the said note the cards were unsaleable in Cahir, 
 a large military station, where the defendant carried on business, 
 many of his customers being soldiers. Under these circumstances 
 it was argued that the order of the Court should either have been 
 for payment by instalments or else time should have been given the 
 defendant. 
 
 Gibson, J., with whom Molony, J., concurred, said that it had 
 not been suggested that the judge who made the order went wrong 
 upon a question of principle. He made the order in the exercise of 
 his discretion. That order could not be disturbed unless it could be 
 shown that his discretion had not been exeroised upon legal ground®. 
 This had not been shown. Lyric Theatre, London (Limited) v. 
 Lyric Theatre, Limited [1914] W.N. 461, was in point. The appeal 
 must be refused. 
 
 [No appeal lies against the absolute discretion of the judge 
 exercised after due consideration.] 
 
 DE BINGHAM v. LONDON LIFE ASSOCIATION, LIMITED. 
 
 Court op Appeal. [1915] W.N. 165. 
 
 This was an ex parte motion for leave to appeal against an order of 
 Scrutton, J., allowing the defendants to proceed to execution on a 
 
EVANS v. MAIN COLLIERY CO. 141 
 
 judgment in their favour -with, respect to their counter claim. 
 Scrutton, J., had refused the plaintiff's application for leave to- 
 appeal. 
 
 The Oourt (Lord Cozens-Hardy, M.R. ; Phillimore', L.J. ; and 
 Joyce, J.) refused the application. No appeal lay under the Act 
 against the absolute discretion of the judge exercised by him after due 
 consideration. 
 
 [Application for leave to enforce a judgment must be made to the 
 Court whieh pronounced it. If it be the Court of Appeal, 
 that Court will refer the matter to a master for inquiry, 
 and upon his report deal with the application.] 
 
 EVANS v. MAIN COLLIERY COMPANY, LIMITED. 
 
 Court of Appeal. [1915] W.N. 10. 
 
 On 14th October, 1914, the Court of Appeal reversed a judgment of 
 Horridge, J., and thus £100 became payable by the plaintiff to the 
 defendants under the judgment of the Court of Appeal. The 
 defendants now asked for leave to issue execution or otherwise enforce 
 the judgment. 
 
 The Court of Appeal held, after consultation with the Master of 
 the Rolls, that, having regard to section 1 (1) (a) of the Act and r. 
 2 of the Courts (Emergency Powers) Rules, 1914, application was 
 properly made to the Court (which pronounced the judgment); that 
 the Court, having no machinery for investigating facts, would refer 
 it to a master to inquire into the facts, and upon his report would 
 deal with the application. 
 
 [A winding-up petition by a judgment creditor is neither a 
 proceeding to execution on, nor a proceeding to the 
 enforcement of a judgment, within the meaning of the 
 statute.] 
 
 IN THE MATTER OF TWO COMPANIES. 
 
 Court op Appeal. [1915] W.N. 96. 
 
 A judgment creditor for £1200 presented petitions for compulsory 
 winding up, without obtaining leave of the Court. 
 
 Astbury, J., held, distinguishing this case from In re Famol, 
 Fades & Co., 1915, 1 Ch. 22, that, when the appointment of a 
 receiver who might preserve the debtor's property was asked for, 
 there were proceedings by execution or otherwise for the enforcement 
 of the judgment debt, and, consequently, came within section 1 (1) 
 (a) of the Act, and so required leave of the Court. 
 
142 RECENT CASES. 
 
 But the Court of Appeal (Lord Cozens-Hardy, M.R. ; Phillimore, 
 L.J. ; and Joyce, J.) reversed this decision, and held that " execu- 
 " tion on the judgment " was a term of art, meaning a legal process 
 by which the creditor, qua judgment creditor and for his sole benefit, 
 by a proceeding in the same action sought to satisfy his judgment. 
 The petitioner here was a creditor within section 130 of the Companies 
 (Consolidation) Act, 1908, and a winding-up petition was not an 
 execution on judgment. The words " or otherwise (to the enforce- 
 " ment) " referred to equitable execution, and possibly to other cases, 
 but not to a winding-up petition which enured not for the sole benefit 
 of one creditor, but for all. 
 
 Hence a winding-up petition did not come within section 1 (1) of 
 the Courts (Emergency Powers) Act, 1914. 
 
 [A bankruptcy petition may be presented without leave of the 
 Court.] 
 
 IN BE SILBER. 
 
 Court of Appeal. [1915] W.N. 71. 
 
 The debtor committed an act of bankruptcy on 24th July, 1914. A 
 bankruptcy petition was presented on 22nd October, and debtor gave 
 notice to dispute on 7th January, 1915. On 14th January the 
 Registrar made a receiving order. He refused to stay proceedings 
 under section 1 (1) (a) (3) of the Courts (Emergency Powers) Act, 
 1914. 
 
 The Court of Appeal (Lord Cozens-Hardy, M.R. ; Swinfen Eady, 
 L.J. ; and Phillimore, L.J.) held tha^ sub-section (3) of section 1 of 
 the Act was exhaustive, and therefore sub-section (1) did not apply, 
 and the Registrar had an absolute discretion. 
 
 [Mortgagees in possession of personal property may sell the same 
 without leave of the Court.] 
 
 ZIMAN v. KOMATA REEFS GOLD MINING- COMPANY, LIMITED. 
 
 Court of Appeal. [1915] W.N. 121. 
 
 The plaintiff had deposited £5000 debentures with the defendants by 
 way of collateral security for a loan of £4000, and had signed the 
 usual memorandum of deposit. 
 
 On 14th November, 1914, defendants gave notice to call in the 
 loan and that they intended to realise the debentures. The plaintiff 
 contended that the matter came within section 1 (1) (6) of the Courts 
 
BARNARD v. FOSTER. 143 
 
 (Emergency Powers) Act, 1914, so that the defendants required the 
 leave of the Court. 
 
 The Court of Appeal (Lord Cozens-Hardy, M.R. ; Phillimore, L.J. ; 
 and Joyce, J.) held, affirming Lord Coleridge, J., that the defendants 
 came within the exception to section 1 (1) (6) as mortgagees in posses- 
 sion. The exception applied to personal as well as to real estate, 
 and there was no distinction as between mortgagees who took posses- 
 sion adversely and others. 
 
 [A stockbroker may, without leave of the Court, sell shares bought 
 for a client and not taken up by the client.] 
 
 BARNARD v. FOSTER. 
 
 King's Bench Division. [1915] W.N. 136. 
 
 On 30th July, 1914, the plaintiff, a stockbroker, on defendant's 
 instructions, bought 100 Canadian-Pacific shares for the mid- August 
 (13th August) account. On 31st July, and at various subsequent 
 dates, the Stock Exchange Committee, purporting to act under the 
 Stock Exchange Rules (r. 20), passed a series of resolutions, the total 
 effect of which was " that bargains open for the ordinary mid- August 
 " account be settled on 18th November." On 11th August the 
 plaintiff made specific demand in writing to the defendant, stating that 
 if payment were refused the 6 per cent, rate of interest allowed by the 
 Moratorium Proclamation of 6th August would come into effect. 
 Further demands were made by the plaintiff on 11th and 19th 
 November, and on the latter date the plaintiff gave notice that, if 
 the defendant did not take up the shares by 21st November, they 
 would be sold. This was done. 
 
 The plaintiff now claimed the difference between purchase and 
 selling price, and interest since 13th August at 6 per cent. 
 
 Sankey, J., held that the scrip was not a security within section 
 1 (1) (6) of the Courts (Emergency Powers) Act, 1914, and therefore 
 the plaintiff was entitled to sell it as he did. 
 
 The Stock Exchange Committee might prescribe the manner in 
 which contracts might be entered into and the mode in which they 
 might be completed, but they could not (under rule 20 or otherwise) 
 alter a vital term of the contract itself. The date for completion, 
 13th August, was vital, as also was the price. The moratorium 
 postponed the date, but under it interest became payable although 
 there had been no delivery. (As to the duty to pay before delivery, 
 see Stock and Share Auction and Advance Company v. Galmoye, 
 1887, 3 T.L.R. 808.) 
 
PART III. 
 
 EECENT STATUTES AND RULES OF COURT. 
 
EECENT STATUTES AND EULES OF COUET. 
 
 COURTS (EMERGENCY POWERS) (IRELAND) ACT, 1914. 
 
 [5 Geo. 5, ch. 19.] 
 
 An Act to amend the Courts (Emergency Powers) Act, 1914, in its A.D. 19 1 *- 
 application to Ireland. 
 
 [27th November, 1914.] 
 
 1. In the application of the Courts (Emergency Powers) Act, 1914, ^™™ d ™ ent 
 to Ireland " proceedings for the recovery of possession of lands or Q eo 5 yg_ 
 "tenements under section fifteen of the Summary Jurisdiction 14 & 15 y iot 
 " (Ireland) Act, 1851, or section eighty-six of the Landlord and Tenant e. 92. 
 "Law Amendment Act (Ireland), 1860," shall be substituted for 23 & 24 Vict. 
 " proceedings for the recovery of possession of tenements under the e. 154. 
 
 " Small Tenements Recovery Act, 1838." 1 & 2 Vict. 
 
 2. This Act may be cited as the Courts (Emergency Powers) Short title. 
 (Ireland) Act, 1914. 
 
 COURTS (EMERGENCY POWERS) RULES, 1914. 
 Courts (Emergency Powers) Act, 1914. 
 
 Representations having been made that, after experience of the 
 working of the Rules under the above Act, a saving of time and 
 expense to the parties might be reached by amendments, the Lord 
 Chancellor hereby directs that the Courts (Emergency Powers) Rules 
 shall be altered as follows : — 
 
 1. The following sub-rules shall be added to Rule 3 of the Courts 
 (Emergency Powers) Rules', 1914, namely: — 
 
 3 (5). No application under the Act is required for the issuing of 
 a Judgment Summons. 
 
 3 (6). Any such notice as in sub-rule (2) of this Rule mentioned 
 shall be in the form or to the effect set out in Form Ia in 
 the Schedule hereto, and the provisions of sub-rule (3) 
 and sub-rule (4) shall apply to such notice. And the 
 procedure indicated by such notice is hereby authorised 
 for the purposes of Rule 3. 
 147 
 
148 RECENT STATUTES AND RULES OF COURT. 
 
 2. The following Rule shall be added : — 
 
 15a. Jn any case where any debtor or other party to any proceed- 
 ings under the Rules is absent or abroad or cannot be 
 found or it is uncertain whether he is alive or dead or it is 
 otherwise difficult to serve him the Court may proceed on 
 such notice or intimation of the proceedings whether to 
 any other person or by advertisement or otherwise as the 
 Court shall in its absolute discretion think fit. And the 
 provisions of this Rule shall be in addition to and by way 
 of extension and enlargement of the ordinary powers and 
 practice of the Court as to proceeding ex parte and as to 
 substituted service. 
 
 (Signed) Haldane, C. 
 The 15th day of February, 1915. 
 
 Schedule. 
 
 Form Ia. — Form of Notice under Paragraph (a). 
 
 (Title op Proceedings.) 
 
 Take Notice, that on the occasion of the making of any judgment 
 or order herein for the payment or recovery of a sum of money I (we) 
 intend to make, without any further notice or on such notice only (if 
 any) as may be rendered necessary by the counter-notice hereinafter 
 mentioned, an application to the Court under the Courts (Emergency 
 Powers) Act, 1914, for leave of the Court to proceed to execution on 
 or otherwise for the enforcement of any such judgment or order. 
 
 If you desire to defend the action you should enter an appearance 
 in the action as directed by the Writ of Summons. 
 
 But if, while not desiring to defend the action, you wish to avail 
 yourself of the protection afforded by the Courts (Emergency Powers) 
 Act, 1914, you should, instead of entering an appearance, fill up, sign 
 and detach the subjoined form of counter-notice stating your desire 
 to avail yourself of the said protection and giving a postal address at 
 which notices may be sent to you, and should either file such counter- 
 notice at the Central Office (Room No. 70 or 71), or send it by post to 
 the Senior Clerk, Writ Department, Central Office, Royal Courts of 
 Justice, so that in either case it may be received there within 8 days 
 from the date hereof, or such other time as may be fixed for appear- 
 ance. 
 
 Should you fail to fill up, sign and file or send by post as aforesaid 
 the said counter-notice it will be assumed that you have no ground 
 under the said Act for opposing the enforcement of any judgment or 
 order obtained in the action, and the Court may give leave to enforce 
 the same on an ex parte application and without any further notice. 
 But should you fill up, sign and file or send by post as aforesaid the 
 said counter-notice there will be posted to you at the address stated 
 
COURTS (EMERGENCY POWERS) RULES, 1915. 149 
 
 in the counter -notice two days previously at least notice of any applica- 
 tion that may be made for leave to enforce any judgment or order 
 obtained in the action. 
 
 Note. — The effect of the above-mentioned Act is to prevent execu- 
 tion on or the enforcement of the judgment or order in question if 
 the Court is of opinion that you are unable immediately to make the 
 payment thereby directed by reason of circumstances attributable 
 directly or indirectly to the present war. (It is for you to show this 
 to the Court if it is the case.) 
 
 [Signature of Plaintiff or Solicitor.] 
 [Date.] 
 
 Counter- Notice. 
 
 (Title of Proceedings.) 
 
 I (we) [Give name.] 
 
 Defendant(s) in this action while not entering an appearance in or 
 defending the action desire to take advantage of the provisions of the 
 Courts (Emergency Powers) Act, 1914, to prevent the enforcement of 
 any judgment or order that may be made against me (us) for the 
 payment or recovery of a sum of money. And I give the postal 
 address following, namely : — 
 
 [Here state the address.] 
 
 as the postal address to which should be sent any notice of application 
 under the said Act for leave to enforce any such judgment or order. 
 
 Signed. 
 Date. 
 
 COUNTY COURTS (EMERGENCY POWERS) RULES, 1915. 
 
 The County Courts (Emergency Powers) Rules, 1915, dated 
 February 15th, 1915, made by the Lord Chancellor for County 
 Courts under the Courts (Emergency Powers) Act, 1914 (4 & 5 
 Geo. 5, c. 78). 
 
 Preliminary. 
 
 The following rules under the Courts (Emergency Powers) Act, 
 1914, shall apply to the County Courts and to the City of London 
 Court, which shall for the purposes of these rules be deemed to be a 
 County Court. 
 
 These Rules may be cited as the County Courts (Emergency 
 Powers) Rules, 1915, or each rule may be cited as if it had been one 
 
150 RECENT STATUTES AND RULES OF COURT. 
 
 of the County Courts (Emergency Powers) Rules, 1914 (herein called 
 the Emergency Rules), and had been numbered therein by the number 
 placed in the margin opposite such rule. 
 
 These Rules should be read and construed as if they were contained 
 in the Emergency Rules, and expressions used herein shall have the 
 same meaning as the like expressions used in those Rules; and any 
 rule referred to by number in these Rules shall be construed as refer- 
 ring to the rule so numbered in the Emergency Rules. 
 
 These Rules shall come into operation on the 16th day of February, 
 1915, and shall apply to all proceedings pending under the Emergency 
 Rules on that day. 
 
 Rules 3 and 4 of the Emergency Rules, and Form 2 in the Appendix 
 to the said rules, are hereby annulled, and the following rules shall 
 stand in lieu thereof : — 
 
 Judgment Summons and Order of Commitment. 
 
 1. — (1) A judgment summons may be issued as heretofore, and 
 no application under the Act for the purpose of obtaining leave to issue 
 such summons shall be required. 
 
 (1) Paragraph 1 of Rule 2 of the principal Rules shall not apply 
 to any case in which a creditor desires to issue a judgment summons 
 under Order XXV., Rule 29 or Rule 30, of the County Court Rules in 
 a court other than the court in which the judgment or order was 
 obtained. 
 
 2. Where an order of commitment has been made either before or 
 after the passing of the Act, the following provisions shall apply : — 
 
 (i) Unless the execution of the order of commitment has been 
 suspended for twenty-eight days or longer, pursuant to 
 Order XXV., Rule 46, paragraph 2, of the County Court 
 Rules, the order may be issued without leave at any time 
 within forty-two days from the date on which the order was 
 made, or, if the order was made before the date when 
 this Rule comes into operation, at any time within forty- 
 two days from that date : 
 
 (ii) If the execution of the order of commitment has not been 
 suspended, or has been suspended for less than twenty- 
 eight days, and in either case more than forty-two days 
 have elapsed since the day on which the order was made, 
 or, if the order was made before the date when this Rule 
 comes into operation. Since the day on which this Rule 
 comes into operation, the order shall not be issued without 
 leave of the judge granted on application made on notice 
 served in accordance with Rule 2, paragraph (ii) : 
 
 (iii) If the execution of the order of commitment has been sus- 
 pended for twenty-eight days or longer, the order shall not 
 be issued without leave of the judge granted on application 
 made on notice served in accordance with Rule 2, para- 
 graph (ii) : 
 
COURTS (EMERGENCY POWERS) RULES, 1915. 151 
 
 Rule 25 of the Emergency Rules is hereby annulled, and the follow- 
 ing rule shall stand in lieu thereof : — 
 
 Fees. 
 
 3. The following fees shall be payable under Schedule B, Part I., 
 of the Treasury Order regulating Fees in the County Courts, on pro- 
 ceedings under the Act and the Emergency Rules as amended by 
 these Rules, in lieu of all other fees heretofore prescribed on such 
 proceedings, viz. : — 
 
 On any notice of application or summons under — 
 
 Rule 1, paragraph 1 ; 
 
 Rule 2, paragraph (ii) ; 
 
 Rule 4 (Rule 2 of these Rules), paragraph (ii) or paragraph (iii); 
 
 Rule 5, paragraph 2; 
 
 Rule 7, paragraph 2; 
 
 Rule 11; 
 
 6d. in the £ or part of £ on the amount of the subject-matter of the 
 application or summons, not exceeding 2s. 6d. 
 
 Provided that where an order of commitment has before the coming 
 into operation of this Rule been made on the hearing of a judgment 
 summons served with a notice annexed thereto in accordance with 
 Rule 3, paragraph 1, of the Emergency Rules (which is annulled by 
 these rules), no fee shall be payable on a notice of application under 
 Rule 4 (Rule 2 of these Rules), paragraph (iii), for leave to issue the 
 order. 
 
 The fee on a notice of application or summons shall include draw- 
 ing, sealing, and issuing the order (if any), other than an order for 
 the appointment of a receiver, and the fee prescribed by paragraph 12 
 of Schedule B, Part I., of the Fees Order shall not be taken. 
 
 The court may remit or excuse in whole or in part any fees paid 
 or payable under this rule. 
 
 The 15th day of February, 1915. 
 
 (Signed) Haldane, C. 
 
 We, the undersigned, two of the Commissioners of His Majesty's 
 Treasury, do hereby, with the consent of the Lord Chancellor, order 
 that the several fees specified in Rule 3 of the foregoing rules shall be 
 taken on the proceedings therein mentioned in lieu of all other fees 
 on the proceedings therein set forth. 
 
 (Signed) Walter R. Rea. 
 Cecil Beck. 
 
 I concur in the above order as to fees. 
 
 (Signed) Haldane, C. 
 
152 RECENT STATUTES AND RULES OF COURT. 
 
 COUNTY COUETS (EMEEGENCY POWEES) EULES, 1915 (No. 2). 
 
 The County Courts (Emergency Powers) Eulbs, 1915 (No. 2), dated 
 March 22, 1915, made bt the Lord Chancellor for County 
 Courts under the Courts (Emergency Powers) Act, 1914 (4 & 5 
 Geo. 5, c. 78). 
 
 The following paragraph shall be added to Eule 21 of the County 
 Courts (Emergency Powers) Bules, 1914. 
 
 The forms in the Appendix, with the necessary modifications, may 
 be used for orders made under paragraph (a) or paragraph (6). 
 
 The 22nd day of March, 1915. 
 
 (Signed) Haldane, C. 
 
 Appendix. 
 
 4a. 
 
 Order on Application under Paragraph (a). 
 
 The Courts (Emergency Powers) Act, 1914. 
 
 In the County Court of 
 
 
 
 holden at 
 
 
 Between 
 
 No. of Plaint 
 
 A. B., 
 
 
 and 
 
 Plaintiff, 
 
 L. D., 
 
 
 
 Defendant. 
 
 On the 
 
 application of 
 
 
 [add, if so, and 
 
 upon hearing the Defendant] 
 
 It is ordered that the Plaintiff be at liberty to proceed to execution on 
 
 the judgment [or order] given [or made] against the Defendant in the 
 
 above-mentioned action [or matter] on the day of 
 
 for the payment of the sum of £ and costs; 
 
 [or It is ordered that the Plaintiff be at liberty to proceed to the 
 enforcement of the judgment [or order] given [or made] against the 
 defendant in this action [or matter] on the day of 
 
 for the payment of the sum of £ and costs by issuing the 
 
 order of commitment made on the day of .] 
 
 And it is ordered that the Plaintiff be allowed the sum of £ 
 for the fees and costs of this application, and that the said sum be 
 
COURTS (EMERGENCY POWERS) RULES, 1915. ]53 
 
 added to the costs of the proceedings hereby authorised to be taken. 
 [Add, if so ordered — 
 
 And it is further ordered that the warrant of execution [or order of 
 commitment] shall not be put in force if the sum mentioned below be 
 paid into Court on or before the day of 191 
 
 [or by instalments of £ for every days, the first payment 
 
 to be made on the day of 191 ].] 
 
 Dated this day of 191 . 
 
 Eegistrar. 
 Amount payable under the judgment [or order], £ 
 Costs of this application, - £ 
 
 To the Defendant. 
 
 6. 
 
 Order on Summons under Paragraph (6). 
 
 In the County Court of , holden at 
 
 In the Matter of the Courts (Emergency Powers) Act, 1914. 
 
 No. of Application 
 Between 
 A. B., Applicant, 
 
 and 
 
 G. D., Respondent. 
 
 Upon hearing the application of 
 [add, if so, and upon hearing the Respondent] It is ordered that, 
 notwithstanding the provisions of section 1, sub-section 1 (&) of the 
 above-mentioned Act, the Applicant be at liberty to exercise the follow- 
 ing remedy for the purpose of enforcing the payment or recovery of a 
 sum of money due to him from the Respondent [or in default of the 
 payment or recovery of a sum of money due to him from the Re- 
 spondent], that is to say — 
 
 [here state the remedy which the Applicant is to he at liberty to enforce, 
 according to examples in Schedule]. 
 
 [Here add conditions, if any, as, e.g. — 
 
 Unless the rent [or as the case may be] 
 due to the Applicant amounting to the sum of £ be paid 
 
 to the Applicant on or before the day of 
 
 191 [or by an instalment of £ on the day of 
 
 19 , and the balance by instalments of £ for every 
 
 days after that date]. 
 
 [or as the case may be.] 
 
154 RECENT STATUTES AND RULES OF COURT. 
 
 And it is ordered that the Applicant be allowed the sum of £ 
 for fees and costs on this application, and that the Respondent do pay 
 the said sum to the Applicant on or before the day of , 
 
 191 [or, if so ordered (see Rule 27), and that the said sum be added 
 to the costs of the proceedings hereby authorised to be taken].] 
 Dated this day of , 191 . 
 
 Registrar. 
 
 To the Respondent 
 
 (nammg him). 
 
 Schedule. 
 
 (a.) That the Applicant be at liberty to levy a distress for rent 
 amounting to £ due from the Respondent to him on premises 
 
 situate at and known as ; 
 
 or 
 
 (6.) That the Applicant be at liberty to take resume or enter into 
 possession of certain chattels held by the Respondent under a hire- 
 purchase agreement made between the Applicant and the Respondent ; 
 or 
 
 (c.) That the Applicant be at liberty to resume or enter into posses- 
 sion of certain property situate at ; or 
 
 (d.) That the Applicant be at liberty to exercise his right of 
 re-entry on certain property situate at and held by 
 
 the Respondent under him; or 
 
 (e.) That the Applicant be at liberty to foreclose on or to realise 
 a security for the sum of £ given by the Respondent to him ; or 
 
 (/.) That the Applicant be at liberty to forfeit a deposit of £ 
 made under a contract between him and the Respondent [state 
 nature of contract] ; or 
 
 (g.) That the Applicant be at liberty to enforce the lapse of a 
 certain policy of insurance for the sum of £ granted to the 
 
 Respondent by the Applicant : 
 
 [or as the case may be\. 
 
 COUNTY COURT RULE AS TO APPLICATIONS FOR CERTIFI- 
 CATES UNDER THE ARMY ACT, 1881, SECTION 115, SUB- 
 SECTION 4, AND THE ACTS AMENDING THE SAME. 
 
 ORDER L. 
 
 Proceedings under Acts conferring Jurisdiction on the Courts. 
 
 The following Rule shall stand as Order L., Rule 59. 
 
 The Army Act, 1881, 44 & 45 Vict. c. 58, s. 115, and the Acts 
 amending the same. 
 
 (1.) An application to a judge for a certificate under sub-section 4 
 of section 115 of the Army Act, 1881, and the Acts amending the 
 same (herein referred to as the Act), fixing the amount of payment 
 
APPLICATIONS FOR CERTIFICATES. 155 
 
 for any carriage, animal, vessel, or aircraft, may be made to any judge 
 mentioned in the said sub-section in accordance with the provisions of 
 this rule. 
 
 (2.) The application may be made either in or out of Court on 
 notice in writing according to the form in the Appendix, which shall be 
 served on the opposite party ten clear days at least before the hearing 
 of the application, unless the judge or registrar gives leave for shorter 
 notice. 
 
 (3.) Service of notice of the application may be effected in accord- 
 ance with Order LIV., Rules 2 and 3. 
 
 (i.) Where the notice of the application is to be served on the 
 Army Council, it may be served on the Permanent Secretary to the 
 War Office or on the Solicitor to the Treasury. 
 
 (5.) No affidavit in support shall be used, except by leave of the 
 judge, but the judge shall hear oral evidence tendered by either party. 
 
 (6.) On the hearing of the application, or at any adjournment 
 thereof, the judge shall fix the amount in accordance with the said 
 sub- section, and shall specify the amount in a certificate which shall 
 be signed in duplicate and sent to the parties ; but no order directing 
 payment shall be inserted on the certificate except in the cases men- 
 tioned in the next following paragraph and in paragraph 5 of the 
 Sixth Schedule to the Act. 
 
 (7.) If the judge orders any sum to be paid by way of costs to 
 the Army Council, pursuant to paragraph 4 of the Sixth Schedule to 
 the Act, and such sum exceeds the amount payable by the Army 
 Council as the value of the article requisitioned, the judge shall certify 
 the amount of the excess, and shall order the amount so certified to be 
 paid to the Army Council, and the order shall be enforceable in like 
 manner as a judgment of the County Court. 
 
 (8.) Subject to the provisions of the Act and this Rule, the practice 
 and procedure of the Court in an action, and in particular the practice 
 and procedure with respect to the summoning of witnesses, and with 
 respect to discovery and inspection of documents, shall, with the 
 necessary modifications, apply to proceedings on an application for a 
 certificate. 
 
 Appendix. 
 
 453. 
 
 Notice op Application for Certificate under the Army Act, 1881, 
 44 & 45 Vict. c. 58, s. 115, and the Acts amending the same. 
 
 In the County Court of , holden at 
 
 The Army Act, 1881, s. 115, and the Acts amending the same. 
 
 Between 
 
 A. B. {address and description), Applicant, 
 
 and 
 
 The Army Council, Respondents. 
 
 (or as the case may be.) 
 
156 RECENT STATUTES AND RULES OF COURT. 
 
 Take Notice — 
 
 That , of 
 
 intends to apply to the Judge at (state where application is to be made) 
 
 on the day of , 
 
 at the hour of in the noon, for a certificate fixing 
 
 the amount of payment for a certain carriage [animal, vessel, or air- 
 craft as the case may be)] furnished in pursuance of the Army Act, 
 1881, section 115, and the Acts amending the same. 
 Dated this day of 
 
 (Signed) 
 
 Applicant, 
 [or Solicitor for the Applicant]. 
 
 To the Registrar of the Court and 
 to the Army Council (or as the 
 case may be). 
 
 (Signed) 
 
 W. L. Selfe. 
 W. €. Smyly. 
 T. C. Granger. 
 H. Tindal Atkinson. 
 
 Submitted to the Lord Chancellor by the County Court Rules 
 Committee. 
 
 Approved by the Rules Committee of the Supreme Court. 
 
 (Signed) Kenneth Muir Mackenzie, 
 Secretary. 
 
 I allow this Rule, which shall come into force forthwith. 
 
 The 22nd day of March, 1915. 
 
 (Signed) E aidant, C. 
 
 A.D. 1915. 
 
 Regulation 
 of transfer 
 of British 
 ship to 
 unqualified 
 persons. 
 
 BRITISH SHIPS (TRANSFER RESTRICTION) ACT, 1915. 
 [5 Geo. 5, ch. 21.] 
 
 An Act to restrict the transfer of British 
 qualified to own British Ships. 
 
 Ships to Persons not 
 [16th March, 1915.] 
 
 1. A transfer made after the twelfth day of February nineteen 
 hundred and fifteen of a British ship registered in the United King- 
 dom, or a share therein, to a person not qualified to own a British 
 ship, shall not have any effect unless the transfer is approved by 
 the Board of Trade on behalf of His Majesty, and any person who 
 
CUSTOMS (WAR POWERS) ACT, 1915. 157 
 
 makes, or purports to make, such a transfer after the commencement 
 of this Act without that approval shall, in respect of each offence, 
 be guilty of a misdemeanour. 
 
 Application 
 2. This Act shall apply to British ships registered at foreign to ships 
 ports of registry and to British ships registered in any British registered at 
 possession other than those mentioned in the Schedule to this Act ^refTstey 
 as it applies to British ships registered in the United Kingdom. an( j British 
 
 possessions. 
 
 3. — (1) This Act may be cited as the British Ships (Transfer Short title, 
 Restriction) Act, 1915, and shall be read as one with the Merchant construction, 
 
 a-u- ■ a j. oni j. imA and duration. 
 
 Shipping Acts, 1894 to 1914. 
 
 (2) This Act shall have effect only during the continuance of the 
 present war. 
 
 Schedule. 
 British India. 
 The Dominion of Canada. 
 
 The Commonwealth of Australia (including Papua and Norfolk 
 Island). 
 
 The Dominion of New Zealand. 
 The Union of South Africa. 
 Newfoundland . 
 
 CUSTOMS (WAE POWERS) ACT, 1915. 
 
 [5 Geo. 5, ch. 31.] 
 
 An Act to amend the enactments relating to Customs during the A.D. 1915. 
 
 present war. 
 
 [16th March, 1915.] 
 
 1. — (1) Where any goods are prohibited either to be exported or Provision 
 carried coastwise, or any goods are prohibited to be exported to any with respect 
 named country or place, it shall not be lawful for any person to to shipment 
 ship as stores on any vessel any of the goods to which the prohibition p ro hibfted or 
 extends, except such quantity of any of. those goods as may be restricted 
 allowed to be so shipped by the proper officer of Customs and Excise goods. 
 as being reasonably required to be shipped at the port of departure 
 for use on board the vessel during the voyage on which it is about to 
 depart. 
 
 (2) If any person ships as stores any goods, or brings any goods 
 to any quay or other place with intent to ship the same as stores, 
 in contravention of this section, the goods shall be forfeited and he 
 shall for each offence be liable to a penalty of one hundred pounds. 
 
158 RECENT STATUTES AND RULES OF COURT. 
 
 Pre-entry of 
 ship's stores. 
 
 39 & 40 Vict, 
 c. 36. 
 
 Provision as 
 to coasting 
 ships depart- 
 ing without 
 clearance. 
 
 41 & 42 Vict, 
 c. 42. 
 
 Provision as 
 to exporta- 
 tion of goods 
 under licence. 
 
 Provision as 
 to declara- 
 tions as to 
 ultimate 
 destination 
 of exported 
 goods. 
 
 2. The power of the Commissioners of Customs and Excise under 
 section one hundred and thirty-nine of the Customs Consolidation 
 Act, 1876, by order to require due entry and clearance before 
 shipment shall apply to goods intended for shipment as stores on 
 any ship being goods subject to any prohibition or restriction out- 
 wards, as it applies to goods intended for exportation or carriage 
 coastwise. 
 
 3. Where the master of any coasting ship has rendered himself 
 liable to a penalty under section six of the Customs and Inland 
 Eevenue Act, 1878, by departing without due clearance of his ship, 
 the Commissioners of Customs and Excise may, for the purpose of 
 enforcing the said penalty, require the deposit in the hands of the 
 collector of Customs and Excise at any port where the ship is found 
 of such sum not exceeding one hundred pounds as they think fit, 
 and in default of payment of the sum so required to be deposited 
 the ship may be detained. 
 
 4. Where a licence to export any goodsi, being goods subject to 
 any prohibition or restriction outwards, authorises the exportation 
 thereof to a particular person or place or to a particular person at 
 a particular place named in the licence, the name of the person or 
 place, or both, as the case may be, shall be inserted in all invoices, 
 bills of lading, manifests and other documents/ relating to the goods, 
 and if this requirement is not complied with as respects any document 
 the person by whom or on whose behalf the document is made out 
 shall, if he is the exporter of the goods, be deemed to have exported 
 the goods without a licence, and, if any other person, be liable to a 
 penalty of one hundred pounds. 
 
 5. — (1) Where in pursuance of any order made by the Commis- 
 sioners of Customs and Excise under section one hundred and 
 thirty-nine of the Customs Consolidation Act, 1876, a person in the 
 course of making entry before shipment makes a declaration as to 
 the ultimate destination of any goods then, unless security has been 
 given by bond, the exporter shall, if so required by the Commis- 
 sioners of Customs and Excise, produce evidence to their satisfaction 
 that those goods have not reached a destination in any territory 
 which, under any Proclamation issued by His Majesty dealing with 
 trading with the enemy for the time being in force, is or is not treated 
 as enemy country, and if he fails to do so he shall be liable to a 
 penalty of treble the value of the goods or one hundred pounds at 
 the election of the Commissioners, unless he proves that they reached 
 such destination without his consent or connivance, and that he took 
 all reasonable steps to secure that the ultimate destination of the 
 goods should be the destination mentioned in the declaration. 
 
 (2) If the Commissioners of Customs and Excise have reason to 
 suspect that any such declaration as aforesaid is false in any material 
 particular, the goods may be detained until the Commissioners are 
 satisfied as to the truth of the declaration, and, failing such satis- 
 faction, may be treated as if they were goods subject to a prohibition 
 or restriction outwards. 
 
LEGAL PKOCEEDINGS AGAINST ENEMIES ACT. 159 
 
 6. Where the Commissioners of Customs and Excise have reason Power to 
 to suspect that the country of origin of any goods imported into the i mporte< j 
 United Kingdom is an enemy country within the meaning of the last goods of 
 preceding section, the goods may be seized as though they were enemy origin, 
 goods enumerated and described in the table of prohibitions and 
 restrictions inwards contained in section forty-two of the Customs 
 Consolidation Act, 1876, and in any proceedings! for the forfeiture 
 and condemnation thereof the country of origin of such goods shall 
 be deemed to be such an enemy country unless the contrary is proved. 
 
 7.— (1) This Act may be cited as the Customs (War Powers) ^^uetfon 
 Act, 1915, and shall be construed together with the Customs Con- and duration, 
 solidation Act, 1876, and any enactments amending that Act. 
 
 (2) This Act shall continue in force only during the continuance 
 of the present war. 
 
 LEGAL PROCEEDINGS AGAINST ENEMIES ACT, 1915. 
 
 [5 Geo. 5, ch. 36.] 
 
 An Act to facilitate Legal Proceedings against Enemies in certain A.D. 1915. 
 cases. 
 
 [16th March, 1915.] 
 
 1. — (1) Leave may be given to issue a writ of summons in the Provision 
 High Court for service on an enemy out of the jurisdiction or of wltn reB P eot 
 which notice is to be given to an enemy out of the jurisdiction if j saue( j aga inst 
 the court or judge is satisfied that the case is a case to which this enemy in 
 section applies, and the court or a judge may, on an application certain oases. 
 made at the time leave is so given or at any subsequent time, if 
 satisfied that the writ cannot promptly be served or brought to 
 the notice of the enemy defendant by any of the usual means, make 
 an order (in this Act referred to as an enemy service order) directing 
 substituted or other service of the writ or the substitution of notice 
 for service by means of advertisement or otherwise; and on that 
 order being complied with, all proceedings may be taken on the 
 claim as if the writ had been served on the enemy defendant by the 
 usual means. 
 
 (2) The Lord Chancellor may make euch rules as he thinks fit 
 for expediting proceedings' and regulating procedure generally in a 
 case where an enemy service order has been made and the enemy 
 defendant does not appear; and any rules so made shall have effect 
 as if they were included in the rules of court for the time being in 
 force. 
 
 (3) The court or judge, where an enemy service order has been 
 made and it appears not to be practicable to obtain the best evidence 
 of any document which is, in the opinion of the court or judge, 
 material to the case, may admit such other evidence thereof as 
 appears proper in the circumstances. 
 
 (4) The court or judge shall have power, where an enemy service 
 order has been made and the enemy defendant does not appear, to 
 
160 RECENT STATUTES AND EULES OF COURT. 
 
 order the plaintiff, though successful, to pay the whole or any part 
 of the costs of the proceedings, if the court or judge consider that 
 it is just to do so in the special circumstances of the case. 
 
 (5) The fact that, for the purpose of obtaining the benefit of 
 this section, a writ of summons has been indorsed only with a 
 claim for a declaration in accordance therewith shall not prevent 
 any other declaration or any consequential or other relief being 
 claimed in other proceedings, or prevent the case being dealt with, 
 although no such other declaration or consequential or other relief 
 is claimed. 
 
 (6) This section applies to cases where — 
 
 (a) the plaintiff is a British subject and is entitled for the time 
 
 being to bring an action in the High Court; and 
 (&) the defendant or one of the defendants is an enemy; and 
 
 (c) the writ is indorsed only with a claim for a declaration as 
 
 to the effect of the present war on rights or liabilities of 
 the plaintiff or defendant under a contract entered into 
 before the outbreak thereof ; and 
 
 (d) there is written evidence of the contract. 
 
 Interpreta- 
 tion. 
 
 2. For the purposes of this Act — 
 
 (a) the expression " enemy " means any persons or body of 
 persons of whatever nationality resident or carrying on 
 business in an enemy country, but does not include 
 persons of enemy nationality who are neither resident 
 nor carrying on business in an enemy country; and 
 
 (6) the expression " outbreak of war " shall, as respects any 
 enemy, be construed as referring to the date of the 
 outbreak of war with the enemy country in which the 
 enemy is resident or carrying on business; and 
 
 (c) the expression " British subject " includes a corporation 
 incorporated in His Majesty's Dominions. 
 
 Saving. 3. Nothing in this Act shall prejudice or interfere with any 
 
 powers of the court to give leave to issue a writ of summons or to 
 adjourn, postpone, or otherwise deal with, any proceedings on any 
 claim against an enemy, and the court or judge may, if it appears 
 on any proceedings in a case where an enemy service order has been 
 made that for any reason the case cannot properly be dealt with 
 under this Act, dismiss the case, without prejudice to any subsequent 
 proceedings in the same matter. 
 
 Application 
 to Ireland. 
 Short title. 
 
 4. In the application of this Act to Ireland the Lord Chancellor 
 of Ireland shall be substituted for the Lord Chancellor. 
 
 5. — (1) This Act may be cited as the Legal Proceedings against 
 Enemies Act, 1915. 
 
 (2) This Act shall not apply to Scotland. 
 
RULES UNDER ENEMIES ACT, 1915. 161 
 
 RULES UNDER THE LEGAL PROCEEDINGS AGAINST 
 ENEMIES ACT, 1915. 
 
 1. All applications! and proceedings under the Legal Proceedings 
 against Enemies Act, 1915 (in these Rules referred to as the Act), 
 shall be made and taken in the King's Bench Division of the High 
 Court of Justice to and before such Judge or Judges thereof, as the 
 Lord Chief Justice shall from time to time direct : Provided always 
 that such Judge or Judges may order that any such application 
 and/or proceeding shall be transferred to any other Division of the 
 High Court, subject to the consent of the President of that Division, 
 and thereupon, on such consent being obtained, the said application 
 and/or proceeding shall be so transferred, that any provisions of 
 these Rules or directions! given by the Lord Chief Justice thereunder 
 shall apply so far as they are not inconsistent with the practice of 
 that Division. 
 
 2. The indorsement of claim on any writ of summons, leave to 
 issue which is sought under the Act, shall set forth the declaration 
 which the Plaintiff seeks and give particulars of the contract in 
 respect of which such declaration is sought. The Judge shall have 
 power to make, or allow, any amendment of such indorsement at any 
 stage of the proceedings!. 
 
 3. The Lord Chief Justice may from time to time give directions 
 as to the practice and procedure to be adopted on applications and 
 proceedings under the Act. 
 
 4. Subject to the provisions of the Act and these Rules and any 
 directions thereunder the same practice and procedure may be adopted 
 in any application or proceeding under the Act as would or might be 
 adopted in any action or matter under the Rules of the Supreme 
 Court. 
 
 5. Where an enemy service order has been made and the enemy 
 defendant appears, nothing in these Rules shall apply to any pro- 
 ceedings taken after the appearance. 
 
 (Signed) Haldane, C. 
 The 16th of March, 1915. 
 
 M 
 
162 RECENT STATUTES AND RULES OF COURT. 
 
 A.D. 1915. 
 
 DEFENCE OF THE REALM (AMENDMENT) No. 2 ACT, 1915. 
 
 [5 Geo. 5, oh. 37.] 
 
 An Act to amend the Defence of the Realm Consolidation Act, 1914. 
 
 [16th March, 1915.] 
 
 Powers for 
 expediting 
 production 
 of war 
 material. 
 
 1. — (1) Sub-section (3) of section one of the Defence of the Realm 
 Consolidation Act, 1914 (which gives power to take possession and 
 use for the purpose of His Majesty's naval and military services 
 certain factories or workshops or the plant thereof), shall apply to 
 5 Geo. 5, u. 8. any factory or workshop of whatever sort, or the plant thereof ; and 
 that sub-section shall be read as if the following paragraphs were 
 added after paragraph (6) : — 
 
 " (c) to require any work in any factory or workshop to be 
 " done in accordance with the directions of the Admiralty 
 " or Army Council, given with the object of making the 
 " factory or workshop, or the plant or labour therein, 
 " as useful as possible for the production of war material; 
 "and 
 
 "(d) to regulate or restrict the carrying on of work in any 
 " factory or workshop, or remove the plant therefrom, 
 " with a view to increasing the production of war material 
 " in other factories or workshops; and 
 
 " (e) to take possession of any unoccupied premises for the 
 " purpose of housing workmen employed in the produc- 
 " tion, storage, or transport of war material." 
 
 (2) It is hereby declared that where the fulfilment by any person 
 of any contract is interfered with by the necessity on the part of 
 himself or any other person of complying with any requirement, 
 regulation, or restriction of the Admiralty or the Army Council under 
 the Defence of the Realm Consolidation Act, 1914, or this Act, or 
 any regulations made thereunder, that necessity is a good defence to 
 any action or proceedings taken against that person in respect of the 
 non-fulfilment of the contract so far as it is due to that interference. 
 
 (3) In this section the expression " war material " includes arms, 
 ammunition, warlike stores and equipment, and everything required 
 for or in connection with the production thereof. 
 
 Short title. 2. This Act may be cited as the Defence of the Realm (Amend- 
 
 ment) No. 2 Act, 1915. 
 
TRADING WITH THE ENEMY RULES. 163 
 
 THE TRADING WITH THE ENEMY (VESTING AND APPLICA- 
 TION OF PROPERTY) RULES, 1915, DATED JANUARY 11th, 
 1915, MADE BY THE LORD CHANCELLOR UNDER THE 
 TRADING WITH THE ENEMY ACT, 1914 (5 GEO. 5, CH. 12). 
 
 1. In these Rules — 
 
 The expression " the Act " means the Trading with the Enemy 
 Amendment Act, 1914. 
 
 The expression ' ' the custodian ' ' has the same meaning as in 
 the Act; and the expression " enemy " has a meaning 
 corresponding with that given to " enemies " in the Act. 
 
 The expression "property" means any real or personal pro- 
 perty, including any rights, whether legal or equitable, 
 in or arising out of property real or personal. 
 
 References to sections and sub-sections are references to sections 
 and sub-sections of the Act. 
 
 2.— (1) Applications under section 4 shall be by way of originating 
 summons and shall be made to the Chancery Division of the High 
 Court, and such applications and any subsequent applications shall 
 in general and except so far as hereby otherwise provided be made 
 and- dealt with mutatis mutandis in accordance with the practice of 
 that Division with regard to similar mattersi under the Rules of the 
 Supreme Court and otherwise. 
 
 (2) Any respondent to the originating summons shall not be 
 required to enter any appearance thereto and accordingly Rule 4e 
 of Order LIV. of the Rules of the Supreme Court shall apply thereto. 
 
 (3) In all cases where the originating summons is not taken out 
 by the custodian, he shall be named as a respondent thereto, and it 
 shall be served on him unless the Court shall in any case or class of 
 cases otherwise order. 
 
 (4) In general and except so far as the Court may otherwise order 
 the enemy to whom any property may be alleged to belong shall be 
 named as a respondent to any originating summons under section 4, 
 and any person or corporation holding or managing any property 
 alleged to belong to the enemy may also be named as a respondent 
 to the originating summons. 
 
 (5) Originating summonses under section 4 shall be entitled in the 
 matter of the Act and in the matter of the enemy or alleged enemy 
 in question and may be in the form or to the effect set out in the 
 Schedule hereto. 
 
 (6) Any powers of selling, managing, or otherwise dealing with 
 property that may be given to the custodian by any order made 
 under section 4 of the Act may from time to time be revoked, sus- 
 pended, varied, increased, added to, or otherwise dealt with as the 
 Court or a Judge shall from time to time think fit on application 
 made either under liberty reserved by the original order or otherwise. 
 
164 RECENT STATUTES AND RULES OF COURT. 
 
 2. On any application under section 4 the applicant must file an 
 affidavit or affidavits for the purpose of showing — 
 
 (a) that the enemy, whose property is proposed to be dealt with, 
 
 is an enemy ; 
 
 (b) the nature and extent of the property in which the enemy 
 
 is alleged to be interested; 
 
 (c) any special ground on which it is expedient that the property 
 
 should be vested in the custodian ; and 
 
 (d) in cases where the applicant is not the custodian or a 
 
 Government Department, the facts showing that _ the 
 applicant is a creditor of the enemy or otherwise entitled 
 to apply under section 4. 
 
 3. — (1) Any subsequent application with regard to any property 
 comprised in any originating summons under section 4 or vested in 
 the custodian may be made by ordinary summons entitled in the 
 same matters as the originating summons. 
 
 (2) In cases where any party has already appeared by a solicitor 
 any such ordinary summons may be served on that solicitor or in 
 case of a change of solicitors on the solicitor last appearing for that 
 party although no general appearance in the matter has been entered. 
 
 (3) Every subsequent application not made by the custodian shall 
 be served on him unless the Court shall in any case or class of cases 
 otherwise order. 
 
 4. — (1) Any application under section 5 (2) of the Act for pay- 
 ment out of property vested in the custodian of any debt or debts 
 shall, if made to the Court or Judge by whose order the property was 
 vested in the custodian, be made and dealt with as follows : — 
 
 The application shall be deemed a subsequent application for the 
 purpose of the last preceding rule. 
 
 (3) The Court or Judge may on the hearing of the application 
 direct all such accounts and inquiries as may be necessary or proper 
 for the purpose of ascertaining the total debts and claimsi having 
 priority to or ranking with the debt or debts proposed to be paid in 
 whole or part, and (if thought fit) the property available for the 
 payment of such debts and claims, and may for that purpose 
 direct the custodian or any party to issue such advertisements and 
 require such proof by statutory declaration or otherwise as may be 
 expedient. And the custodian may, if he think fit, carry out the 
 duties imposed on him by the proviso to section 5 (2) under the 
 direction of the Court. 
 
 (4) In directing any payment or payments under section 5 (2) 
 the Court or Judge shall act in accordance with the ordinary rules and 
 practice of the Chancery Division of the High Court in the adminis- 
 tration of estates but so nevertheless that the Court shall not be 
 bound to inquire into or take into account or to cause the custodian 
 to inquire into or take into account debts and claims against the 
 enemy to any greater extent than provided for by the proviso to 
 section 5 (2). 
 
TRADING WITH THE ENEMY RULES. 165 
 
 5. — (1) Any application under section 5 (2) of the Act for pay- 
 ment out of property vested in the custodian of any debt or debts 
 shall, if made to a Court in which judgment has been recovered 
 against an enemy as such Court, be made and dealt with to and by 
 that Court as follows : — 
 
 (2) It shall be made by summons in the proceeding in which 
 judgment has been recovered. 
 
 (3) Such summons shall be addressed to and served on the 
 custodian in addition to any other proper party and shall be returnable 
 and heard as the Court in question shall direct. 
 
 (4) If on the hearing of a summons under this rule it shall happen 
 either that the custodian makes no objection to making the payment or 
 some part thereof or if it shall otherwise appear clear to the Court 
 that the payment or some part thereof ought to be made and can be 
 made without prejudice to other persons owning debts or claims 
 against the enemy in question, then and in either of the said cases the 
 Court may make an order for payment accordingly but so neverthe- 
 less as not to prejudice or affect the duty of the custodian under the 
 proviso to section 5 (2). 
 
 (5) In any other case than those provided for by the last preceding 
 sub-rule and also in any case thereby provided for where a partial 
 payment only has been ordered the Court in which judgment has been 
 recovered shall not as such Court order any payment or any further 
 payment as the case may be but may and in general shall transfer the 
 application to be dealt with by the Court or judge by whose order the 
 property was vested in the custodian. 
 
 6. Any application under this Act whether original subsequent or 
 other may be proceeded with heard and dealt with by the Court or a 
 judge if thought fit in the absence of an enemy or any other party 
 who may be or appear to be abroad or whose whereabouts 
 may not be known or whose presence may otherwise be 
 difficult to secure and without service of any summons or notice 
 of summons on any such party or any intimation to such party other 
 than such if any as the Court shall think fit. And this sub-rule shall 
 be in addition to and by way of extension and enlargement of the 
 ordinary powers and practice of the Court as to proceedings ex parte 
 and as to substituted service. 
 
 7. The Court may at any stage of the proceedings on any applica- 
 tion under section 4 or section 5 order that the case shall thencefor- 
 ward be heard in private. 
 
 8. Any order made under section 4 or section 5 of these Rules 
 may, should subsequent circumstances render it just so to do, be 
 suspended discharged or otherwise varied or altered by the Court 
 which made such order. 
 
 9. The following fees shall be payable under these Rules that is 
 to say — 
 
 On any summons whether original or subsequent 2s. 6d. 
 
166 RECENT STATUTES AND EULES OF COURT. 
 
 Provided that the Court may remit or excuse either in whole or 
 part any court fees paid or payable under this rule. 
 
 10. The proceedings on any application under the Act shall so 
 far as not otherwise provided for by these Rules be conducted in 
 accordance with the ordinary practice dealing with similar matters 
 of the Court to which application is made. And the costs of all, 
 and incidental to all, such proceedings shall be in the discretion of 
 the Court. 
 
 11. In the case of any property within the jurisdiction of a 
 palatinate Court any original application which would under the fore- 
 going rules be made to the Chancery Division may if the applicant 
 think fit be made to the palatinate Court and if so made any subse- 
 quent proceedings shall also take place in that Court and the fore- 
 going rules shall mutatis mutandis apply to any such original and 
 subsequent proceedings. 
 
 11a. These Rules may be cited as The Trading with the Enemy 
 (Vesting and Application of Property) Rules, 1915, and shall come into 
 operation forthwith. 
 
 Schedule. 
 
 Form of Originating Summons under Section 4. 
 
 In the High Court of Justice, 
 
 Chancery Division. 
 
 Mr. Justice 
 In the matter of the Trading with the Enemy Amendment Act, 1914, 
 And in the matter of A. B. an Enemy within the Act. 
 
 Let A. B. of a person alleged to be an 
 
 enemy within the above Act and the Public Trustee of 
 the custodian for England and Wales under the above Act attend at 
 the chambers of Mr. Justice at the time specified in 
 
 the margin hereof [or on the day of 19 
 
 at o'clock in the noon] on the hearing of an applica- 
 
 tion of C. D. of who claims to be a creditor of the said 
 
 A. B. [or to be entitled to recover damages against the said A. B. or 
 to be interested in the property hereinafter referred to belonging to or 
 held or managed for or on behalf of the said A. B.~\ that the under- 
 mentioned real or personal property or rights in or arising out of 
 real or personal property may vest in the said custodian and that 
 there may be conferred on him such powers of selling managing and 
 otherwise dealing with the property as may seem proper. 
 
 The following constitutes the real or personal property or rights 
 to which this summons refers, namely [here give short description]. 
 
 Note. — It will not be necessary for you to enter an appearance 
 in the Central Office, but if you do not attend either in person or by 
 your solicitor at the time and place above mentioned [or named in the 
 endorsement hereon], such order will be made and proceedings^ taken 
 as the Judge may think just and expedient. 
 
TRADING WITH THE ENEMY RULES. 167 
 
 THE TRADING WITH THE ENEMY (SUSPECTED COUPONS) 
 RULES, 1915, MADE UNDER SECTION 7 OF THE TRADING 
 WITH THE ENEMY (AMENDMENT) ACT, 1914. 
 
 1. In these Rules — 
 
 The expression " the Act " means the Trading with the Enemy 
 (Amendment) Act, 1914. 
 
 The expression " enemy " has a meaning corresponding with 
 that given by the Act to the expression "enemies." 
 
 The expression "suspecting presentee" means any company, 
 municipal authority, or other body or person to whom 
 during the continuance of the present war a coupon or other 
 security transferable by delivery is presented for payment, 
 and who has reason to suspect that it is so presented on 
 behalf of the benefit of an enemy, or that since the com- 
 mencement of the present war it has been held by or for 
 the benefit of an enemy. 
 
 The expression " suspected, coupons " means any coupon or 
 coupons or other security or securities transferable by 
 delivery, or batch of such coupons or securities that may 
 during the currency of the present war be presented for 
 payment to a suspecting presentee. 
 
 The expression " suspected enemy " means the enemy on whose 
 behalf or for whose benefit the suspected coupons are sus- 
 pected of being presented or, as the case may be, by whom 
 or for the benefit of whom they are suspected of having 
 been held since the commencement of the present war. 
 
 2. Where a suspecting presentee desires under section 7 of the 
 Act to make a payment into Court of money due in respect of sus- 
 pected coupons, he shall make and file in the Chancery Division of the 
 High Court an affidavit intituled in the matter of the suspected 
 coupons (described so as to be distinguishable so far as may be) and 
 in the matter of the Act, and setting forth or indicating either in the 
 affidavit itself or in one or more exhibits thereto : — 
 
 (a) Short particulars of the suspected coupons with names, 
 numbers, dates, and amounts for the purpose of the 
 identification thereof, so far as reasonably practicable. 
 
 (6) The name, so far as known, of the party actually presenting 
 the suspected coupons, and his place of residence to the 
 best of the suspecting presentee's knowledge and belief. 
 
 (e) The circumstances producing suspicion in the mind of the 
 suspecting presentee, and the name of the suspected enemy 
 and his place of residence to the best of the suspecting 
 presentee's knowledge and belief. 
 
168 RECENT STATUTES AND RULES OF COURT. 
 
 (d) The submission of the suspecting presentee to answer all 
 
 such inquiries relating to the application of the money 
 paid into Court as the Court or a Judge may make or 
 direct. 
 
 (e) The place where the suspecting presentee is to be served 
 
 with any petition summons or order or notice of any 
 proceeding relating to the money paid in. 
 
 3. On making any payment into Court as aforesaid, the suspect- 
 ing presentee shall forthwith proceed to give, so far as may be, notice 
 thereof by prepaid letter through the post to the party actually 
 presenting the suspected coupons and to the suspected enemy or to 
 some person thought likely to be in communication with the suspected 
 enemy. 
 
 4. — (1) No petition or summons relating to the money paid in 
 shall be answered or issued unless the petitioner or applicant has 
 named therein a place where he may be served with any petition or 
 notice of any proceeding or order relating to the money paid in or 
 any income thereof. 
 
 (2) Service shall be made or such other notice or intimation given 
 as the Court or a Judge shall direct on or to such persons (if any) 
 as the Court or a Judge shall direct of any application in respect of 
 the money paid in or any income thereof : Provided that (by way of 
 extension of the powers and practice of the Court) the Court or a 
 Judge may if thought fit proceed in the absence of any such service, 
 notice, or intimation on or to any enemy (including the suspected 
 enemy) or other person who may be or appear to be abroad, or 
 whose whereabouts may not be known. 
 
 (3) Applications to deal with money paid into Court under the 
 Act shall be intituled in the same manner as the affidavit on which 
 the money was paid in. 
 
 5. Money paid in under section 7 of the Act and these Rules 
 may, on the request of the suspecting presentee when paying in or on 
 any subsequent application, be placed on deposit or invested in any 
 securities available for the investment of cash under the control 
 of the Court. 
 
 6. The proceedings and practice with reference to moneys paid 
 into Court under section 7 of the Act and the dealings therewith 
 shall, so far as not otherwise provided for by these Rules, be in 
 accordance with the ordinary practice of the Chancery Division with 
 reference to moneys paid into Court on affidavit under section 42 of 
 the Trustee Relief Act, 1893. 
 
 7. These Rules may be cited as " The Trading with the Enemy 
 (Suspected Coupons) Rules, 1915," and shall come into force forth- 
 with. 
 
TRADING WITH THE ENEMY RULES. 169 
 
 [Deaft.] 
 
 THE COUNTY COUKTS TRADING WITH THE ENEMY (APPLICA- 
 TION OF PROPERTY) RULES, 1915, DATED FEBRUARY 
 15th, MADE BY THE LORD CHANCELLOR FOR COUNTY 
 COURTS UNDER THE TRADING WITH THE ENEMY 
 AMENDMENT ACT, 1914 (5 GEO. 5, CH. 12). 
 
 Preliminary . 
 
 The following Rules under Trading with the Enemy Amendment 
 Act, 1914, shall apply to the County Courts and the City of London 
 Court (which shall for the purposes of these Rules be deemed to be 
 a County Court) in substitution for Rules 1 and 5 to 10 of the Trading 
 with the Enemy (Vesting and Application of Property) Rules, 1915, 
 dated January 11, 1915. 
 
 These Rules may be cited as the County Courts Trading with the 
 Enemy (Application of Property) Rules, 1915, and shall come into 
 operation on the 16th day of February, 1915. 
 
 Definitions. 
 1. In these Rules — 
 
 The expression "the Act" means the Trading with the Enemy 
 
 Amendment Act, 1914. 
 The expression " the custodian " has the same meaning as in 
 
 the Act; and the expression "enemy" has a meaning 
 
 corresponding with that given to " enemies " in the Act. 
 References to sections and sub-sections are references to sections 
 
 and sub-sections of the Act. 
 
 Applications under section 5, sub-section 2. 
 
 2. — (1) Any application under section five (2) of the Act for 
 payment out of property vested in the custodian of any debt or debts 
 shall, if made to a county court in which judgment has been recovered 
 against an enemy, be made to and dealt with by the court as 
 follows : — 
 
 (2) It shall be made by interlocutory application in the proceeding 
 in which judgment has been recovered. 
 
 (3) Notice of the application shall be addressed to and served on 
 the custodian and on every other person affected thereby four clear 
 days at least before the day fixed for the hearing of the application, 
 unless in any case the judge or registrar gives leave for shorter 
 service. Service shall be effected in accordance with the County Court 
 Rules as to service of notice of an interlocutory application. 
 
 (4) The application shall be made to the judge. 
 
170 RECENT STATUTES AND RULES OF COURT. 
 
 Evidence in Support of Application. 
 
 3. It shall not be necessary in the first instance for a creditor 
 to support the application by any affidavit or other evidence, except 
 such evidence, if any, as may be required to show the nature and 
 extent of the relief required by him. But the judge may in any 
 case make such requirements or give such directions as to evidence 
 on the part of any party as the case shall require. 
 
 Power to Hear Cases in Private. 
 
 4. The judge may at any sitage of the proceedings on any 
 application order that the case shall thenceforward be heard in private. 
 
 Orders on Application. Transfer to High Court. 
 
 5.— -(1) If on the hearing of any application under these Rules the 
 custodian makes no objection to making the payment or some part 
 thereof, or if it shall otherwise appear clear to the judge that the 
 payment of some part thereof ought to be made and can be made 
 without prejudice to other persons owning debts or claims against 
 the enemy in question, then and in either of the said cases the judge 
 may make an order authorizing payment accordingly, but so neverthe- 
 less as not to prejudice or affect the duty of the custodian under the 
 proviso to section five (2). 
 
 (2) In any other case than those provided for by the last preceding 
 sub-rule, and also in any case thereby provided for where a partial 
 payment only has been ordered, the judge of the court in which 
 judgment has been recovered shall not order any payment or any 
 further payment, as the case may be, but he shall, unless he is satis- 
 fied that the application should be dismissed, order the same to be 
 transferred to the judge of the High Court by whose order the 
 property was vested in the custodian, to be further dealt with by 
 him. 
 
 (3) Where any application is transferred pursuant to this rule, 
 the registrar shall transmit the record in accordance with Order 
 XXXni., Rule 7, of the County Court Rules. 
 
 Dispensing with Notice. Substituted Service. 
 
 6. Any application under these Rules 1 may be proceeded with and 
 heard and dealt with by the judge if thought fit in the absence of an 
 enemy or any other party who may be or appear to be abroad, or 
 whose whereabouts may not be known, or whose presence may other- 
 wise be difficult to secure, and without service of any notice on any 
 such party or any intimation to such party, other than such, if any, 
 as the judge shall think fit. And this sub-rule shall be in addition 
 to and by way of extension and enlargement of the ordinary powers 
 and practice of the court as to proceedings ex parte and as to sub- 
 stituted service. 
 
TRADING WITH THE ENEMY RULES. 171 
 
 Preparation, Filing, &c, of Notices. 
 
 7. A notice of an application shall be prepared by the applicant 
 and filed with the registrar, with as many copies as there are parties 
 to be served; Provided that any notice, with the necessary copies, 
 may, if the registrar so thinks fit, be prepared in his office ; and the 
 registrar shall examine, complete, seal, and where necessary sign 
 the same, and shall return the copies to the applicant for service. 
 
 Orders on Applications. 
 
 8. Where an order is made on an application under these Rules, 
 the order shall be prepared and sealed by the registrar and delivered 
 to the bailiff, who shall within twenty-four hours send the same, 
 by post or otherwise, to the custodian and to the party against 
 whom the order is made ; but it shall not be necessary for the party 
 in whose favour it is made to prove, previously to taking pro- 
 ceedings thereon, that it was posted or reached the opposite party. 
 
 Revocation or Variation of Orders. 
 
 9. Any order made under these Rules may, should subsequent 
 circumstances render it just so to do, be suspended, discharged, or 
 otherwise varied or altered on interlocutory application to the judge 
 of the court in which the order is made. 
 
 Fees. 
 
 10. The following fee shall be payable under Schedule B., Part I., 
 of the Treasury Order regulating Fees in the County Courts, on pro- 
 ceedings under these Rules, viz. : — 
 
 On any notice of application, 2s. 6d. 
 
 The fee prescribed by this Rule shall include drawing, sealing, 
 and issuing the order, and the fee prescribed by paragraph 12 of 
 Schedule B., Part I., of the Fees Order shall not be taken; but this 
 Rule shall not affect the fees payable on orders for substituted service. 
 
 The judge may remit or excuse in whole or in part any fees paid 
 or payable under this Rule. 
 
 Proceedings on Applications. 
 
 11. The proceedings on any application under these Rules shall, 
 so far as not expressly provided for by these Rules, be conducted 
 in accordance with the ordinary practice of the court in dealing 
 with similar matters. 
 
 Costs. 
 
 12. — (1) The costs of any application under these Rules shall be 
 in the discretion of the judge. 
 
172 RECENT STATUTES AND RULES OF COURT. 
 
 (2) The judge may either fix the amount of such costs, or allow 
 them on the scale applicable to an interlocutory application in the 
 action in which the application is made; provided that Column B of 
 the scale shall apply to all cases above twenty pounds to the exclusion 
 of Column C. 
 
 (3) Where the amount of the subject-matter does not exceed ten 
 pounds, there may be allowed for all work done by solicitor in relation 
 to the application— 
 
 If the amount exceeds £2, but does not exceed £5 3s. 
 If the amount exceeds £5, but does not exceed £10 5s. 
 
 (4) The judge may direct that any costs allowed shall be payable 
 forthwith, or that they shall be included in the sum recovered under 
 the judgment or order. 
 
 The 15th day of February, 1915. 
 
 (Signed) Haldane, C. 
 
 We, the undersigned, two of the Commissioners of Hi® Majesty's 
 Treasury, do hereby, with the consent of the Lord Chancellor, order 
 that the fees specified in Rule 10 of the foregoing Rules shall be taken 
 on the proceedings therein mentioned, in lieu of all other fees for the 
 proceedings therein set forth. 
 
 (Signed) Walter R. Rea. 
 Cecil Beck. 
 
 I concur in the above order as to fees. 
 
 (Signed) Haldane, C. 
 
 Loud Chancellor's Office, 
 
 Four Courts, Dublin, 
 
 4th February, 1915. 
 
 RULES MADE BY THE LORD CHANCELLOR OF IRELAND 
 UNDER THE TRADING WITH THE ENEMY AMENDMENT 
 ACT, 1914. 
 
 Trading with the Enemy (Vesting and Application of Property) 
 
 Rules, 1915. 
 
 Whereas by section five, sub-section (5) of the Trading with the 
 Enemy Amendment Act, 1914, it is provided that in Ireland the Lord 
 Chancellor of Ireland may by rules make provision for the practice 
 and procedure to be adopted for the purpose of this and the last 
 preceding section : 
 
 Now I, The Right Honourable Ignatius J. O'Brien, Lord Chan- 
 cellor of Ireland, in pursuance of the powers vested in me by sections 
 
RULES BY LORD CHANCELLOR OF IRELAND. 173 
 
 4 and 5 of the said Trading with the Enemy Amendment Act, 1914, 
 The Rules Publication Act, 1893, and all other powers thereunto 
 me enabling, do hereby make the Rules hereinafter set forth, and 
 certify that on account of urgency the said Rules should come into 
 immediate operation, and do make the said Rules to come into 
 operation forthwith. 
 
 1. In these Rules — 
 
 The expression " the Act " means the Trading with the Enemy 
 Amendment Act, 1914. 
 
 The expression " the custodian " means the person appointed by 
 the Board of Trade to act as custodian of Enemy property for Ireland ; 
 and the expression " enemy " has a meaning corresponding with that 
 given to " enemies " in the Act. 
 
 The expression " property " means any real or personal property, 
 including any rights, whether legal or equitable, in or arising out of 
 property real or personal. 
 
 References to sections and sub-sections are references to sections 
 and sub-sections of the Act. 
 
 2. — (1) Application® under section four shall be by way of 
 originating summons, and shall be made to the Chancery Division 
 of the High Court, and such applications and any subsequent applica- 
 tions shall in general and except so far as hereby otherwise provided 
 be made and dealt with mutatis mutandis in accordance with the 
 practice of that Division with regard to similar matters under the 
 Rules of the Supreme Court, Ireland, and otherwise. 
 
 (2) Any respondent to the originating summons shall not be 
 required to enter any appearance thereto, and accordingly Rule 5 of 
 Order LIV. of the Rules of the Supreme Court shall apply thereto. 
 
 (3) In all cases where the originating summons is not taken out 
 by the custodian, he shall be named as a respondent thereto, and it 
 shall be served on him unless the Court shall in any case or class 
 of cases otherwise order. 
 
 (4) In general and except so far as the Court may otherwise 
 order the enemy to whom any property may be alleged to belong 
 shall be named as a respondent to any originating summons under 
 section four, and any person or corporation holding or managing 
 any property alleged to belong to the enemy may also be named as 
 a respondent to the originating summons. 
 
 (5) Originating summonses under section four shall be intituled 
 in the matter of the Act and in the matter of the enemy or alleged 
 enemy in question and may be in the form or to the effect set out 
 in the Schedule hereto. 
 
 (6) Any powers of selling, managing, or otherwise dealing with 
 property which may be given to the custodian by any Order made 
 under section four of the Act may from time to time be revoked, 
 suspended, varied, increased, added to, or otherwise dealt with as 
 the Court or a Judge shall from time to time think fit on application 
 made either under liberty reserved by the original Order or otherwise. 
 
174 RECENT STATUTES AND RULES OF COURT. 
 
 3. On any application under section four the applicant must file 
 an affidavit or affidavits for the purpose of showing — 
 
 (a) that the enemy, whose property is proposed to be dealt 
 
 with, is an enemy; 
 (6) the nature and extent of the property in which the enemy 
 
 is alleged to be interested; 
 
 (c) any special ground on which it is expedient that the property 
 
 should be vested in the custodian ; and 
 
 (d) in cases where the applicant is not the custodian or a 
 
 Government Department, the facts showing that the 
 applicant is a creditor of the enemy or otherwise entitled 
 to apply under section four. 
 
 4. — (1) Any subsequent application with regard to any property 
 comprised in any originating summons under section four or vested 
 in the custodian may be made by ordinary summons intituled in the 
 same matters as the originating summons. 
 
 (2) In cases where any party has already appeared by a solicitor 
 any such ordinary summons may be served on that solicitor, or in 
 case of a change of solicitors on the solicitor last appearing for that 
 party although no general appearance in the matter has been entered. 
 
 (3) Every subsequent application not made by the custodian shall 
 be served on him unless the Court shall in any case or class of cases 
 otherwise order. 
 
 5. — (1) Any application under section five (2) of the Act for 
 payment out of property vested in the custodian of any debt or debts 
 shall, if made to the Court or Judge by whose order the property was 
 vested in the custodian, be made and dealt with as follows : — 
 
 (2) The application shall be deemed a subsequent application for 
 the purpose of the last preceding Rule. 
 
 (3) The Court or Judge may on the hearing of the application 
 direct all such accounts and inquiries as may be necessary or proper 
 for the purpose of ascertaining the total debts and claims having 
 priority to or ranking with the debt or debts proposed to be paid 
 in whole or part, and (if thought fit) the property available for the 
 payment of such debts and claims, and may for that purpose direct 
 the custodian or any party to issue such advertisements and require 
 such proof by statutory declaration or otherwise as may be expedient. 
 And the custodian may, if he thinks fit, carry out the duties imposed 
 on him by the proviso to section five (2) under the direction of the 
 Court. 
 
 (4) In directing any payment or payments under section five (2) 
 the Court or Judge shall act in accordance with the ordinary rules 
 and practice of the Chancery Division of the High Court in the 
 administration of estates but so nevertheless that the Court shall not 
 be bound to inquire into or take into account or to cause the custodian 
 to inquire into or take into account debts and claims against the 
 enemy to any greater extent than provided for by the proviso to 
 section five (2). 
 
RULES BY LORD CHANCELLOR OF IRELAND. 175 
 
 6. — (1) Any application under section five (2) of the Act for pay- 
 ment out of property vested in the custodian of any debt or debts 
 shall, if made to a Court in which judgment has been recovered against 
 an enemy as such Court, be made and dealt with to and by that Court 
 as follows : — 
 
 (2) It shall be made by summons in the proceeding in which judg- 
 ment has been recovered. 
 
 (3) Such summons shall be addressed to and served on the cus- 
 todian in addition to any other proper party, and shall be returnable 
 and heard as the Court in question shall direct. 
 
 (4) If on the hearing of a summons under this rule it shall happen 
 either that the custodian makes no objection to making the payment 
 or some part thereof, or if it shall otherwise appear clear to the Court 
 that the payment or some part thereof ought to be made and can be 
 made without prejudice to other persons owning debts or claims against 
 the enemy in question then and in either of the said cases the Court 
 may make an order for payment accordingly, but so nevertheless as 
 not to prejudice or affect the duty of the custodian under the proviso 
 to section five (2). 
 
 (5) In any other case than those provided for by the last pre- 
 ceding sub-rule and also in any case thereby provided for where a 
 partial payment only has been ordered the Court in which judgment 
 has been recovered shall not as such Court order any payment or any 
 further payment as the case may be but may and in general shall 
 transfer the application to be dealt with by the Court or Judge by 
 whose order the property was vested in the custodian. 
 
 7. Any application under this Act whether original subsequent 
 or other may be proceeded with, heard and dealt with by the Court 
 or a Judge if thought fit in the absence of an enemy or any other 
 party who may be or appear to be abroad or whose whereabouts may 
 not be known, or whose presence may otherwise be difficult to secure, 
 and without service of any summons on any such party or any intima- 
 tion to eiuch party other than such if any as the Court shall think 
 fit. And this sub-rule shall be in addition to and by way of extension 
 and enlargement of the ordinary powers and practice of the Court as 
 to proceedings ex parte and as to substituted service. 
 
 8. The Court may at any stage of the proceedings on any applica- 
 tion under section four or section five order that the case shall thence- 
 forward be heard in private. 
 
 9. Any order made under section four or section five of these 
 Rules may, should subsequent circumstances render it just so to do, 
 be suspended, discharged or otherwise varied or altered by the Court 
 which made such order. 
 
 10. The following fees shall be payable under these Rules, that 
 is to say : — 
 
 On any summons, whether originating, subsequent, or ordinary, 
 2s. 6d. 
 
176 RECENT STATUTES AND RULES OF COURT. 
 
 Provided that the Court may remit or excuse either in whole or 
 part any court fees paid or payable under this Rule. 
 
 11. The proceedings on any application under the Act shall so 
 far as not otherwise provided for by these Rules be conducted in 
 accordance with the ordinary practice dealing with similar matters 
 of the Court to which application is made. And the costs of all, 
 and incidental to all, such proceedings shall be in the discretion of the 
 Court. 
 
 12. These Rules may be cited as " The Trading with the Enemy 
 (Vesting and Application of Property) Rules, 1915," and on account 
 of urgency shall come into operation forthwith. 
 
 Ignatius J . O'Brien, C. 
 
 Schedule. 
 
 Form of Originating Summons under Section Four. 
 
 In the High Court of Justice, 
 
 Chancery Division. 
 
 In the matter of the Trading with the Enemy Amendment Act, 
 1914, And in the matter of A. B. an Enemy within the Act. 
 
 Let A. B. of a 
 
 person alleged to be an Enemy within the above Act and the Official 
 Assignee of the High Court in Ireland, the custodian for Ireland under 
 the above Act, attend at the chambers of at the time 
 
 specified in the margin hereof (or on the day 
 
 of , 19 , at o'clock in the 
 
 noon), on the hearing of an application of C. D. of , 
 
 who claims to be a creditor of the said A. B. (or to be entitled to 
 recover damages against the said A. B. or to be interested in the 
 property hereinafter referred to belonging to or held or managed 
 for or on behalf of the said A. B.) that the undermentioned real or 
 personal property or rights in or arising out of real or personal 
 property may vest in the said custodian, and that there 
 may be conferred on him such powers of selling, managing and other- 
 wise dealing with the property a® may seem proper. 
 
 The following constitutes the real or personal property or rights 
 to which this summons refers, namely (here give short description). 
 
 Note. — It will not be necessary for you to enter an appearance 
 in the Office of Judgments, Records and Writs, Four Courts, Dublin, 
 but if you do not attend either in person or by your solicitor at the 
 time and place above-mentioned (or named in the endorsement hereon), 
 such order will be made, and proceedings taken, as the Judge may 
 think just and expedient. 
 
ACT OF SEDERUNT TO REGULATE PROCEDURE. 177 
 
 ACT OF SEDERUNT TO REGULATE PROCEDURE UNDER THE 
 
 TRADING WITH THE ENEMY (AMENDMENT) ACT, 1914 
 
 (5 GEO. 5, CH. 12). 
 
 Edinburgh, 15th December, 1914. 
 
 The Lords of Council and Session, under and by virtue of the powers 
 conferred on them by the Trading with the Enemy (Amendment) 
 Act, 1914 (5 Geo. V. Ch. 12) (hereinafter referred to as "the 
 " Statute ") Enact and Declare as follows, viz. : — 
 
 1. Proceedings under the Statute shall be initiated by Petition 
 in common form presented to the Junior Lord Ordinary, with power 
 to the Lord Ordinary on the Bills to deal therewith in vacation or 
 recess. 
 
 2. Where the subject matter of any proceeding is of not more 
 than £50 in value it shall not be necessary to print or box papers 
 unless the Court shall otherwise order ; further, in such proceedings 
 no fee fund dues shall be payable. 
 
 3. — (a) Payment into Court under and in terms of Section 7 
 and Section 14 (3) of the Statute shall be made by consignation in 
 one or other of the five chartered banks in Scotland on a consignation 
 receipt in, or as nearly as may be in, the form given in the Schedule 
 hereto ; 
 
 (6) Such consignation receipt shall be transmitted forthwith to 
 the Custodian for Scotland at his office in H.M. New Register House, 
 Edinburgh; and 
 
 (c) Intimation by registered post letter shall be given at the same 
 time by the person consigning the money to the person who has 
 presented for payment the coupon or other security referred to in 
 Section 7 of the Statute. 
 
 And the Lords appoint this Act to be entered in the Books of 
 Sederunt, and to be printed and published in common form. 
 
 Strathclyde, I.P.B. - 
 
 Schedule. 
 
 Trading with the Enemy {Amendment) Act, 1914. 
 
 [Bank.] 
 [Date.] 
 
 Received on account of the Custodian for Scotland the sum of 
 
 consigned by [name and designation of -person con- 
 signing] to await the orders of the Court under section 7 of the 
 Trading with the Enemy Act, 1914, said sum being [describe fund] 
 of which payment has been demanded by [name and designation]. 
 
 [Signature for Bank.] 
 
 N 
 
PART IV. 
 
 RECENT PROCLAMATIONS AND ORDERS 
 IN COUNCIL. 
 
RECENT PROCLAMATIONS AND ORDERS 
 
 IN COUNCIL. 
 
 COUKTS (EMERGENCY POWERS) (SCOTLAND) ORDER, 1914. 
 
 At the Court at Buckingham Palace, the 28th day of November, 1914. 
 
 Present, 
 The King's Most Excellent Majesty in Council. 
 
 Whereas, under sub-section (4) of section two of the Courts (Emer- 
 gency Powers) Act, 1914, His Majesty has power by Order in Council 
 to provide, amongst other things, that that Act shall have effect 
 subject to such limitations as may be contained in the Order : 
 
 And whereas in pursuance of the power referred to an Order in 
 Council has been made, dated the 17th day of September, 1914, 
 and whereas it is desirable that the said Order in Council shall have 
 effect in Scotland subject to the modifications hereinafter set out : 
 
 Now, therefore, His Majesty is pleased, by and with the advice 
 of His Privy Council, to order, and it is hereby ordered, as follows : — 
 
 1. In the application to Scotland of the Courts (Emergency Powers) 
 Order, 1914, the expression "the recovery by civil diligence of any 
 ' ' penalty ' ' shall be substituted for the expression ' ' the levying of 
 " any fine " ; the expression " bail bond or bond of caution granted 
 ' ' in respect of any person charged with or convicted of any offence ' ' 
 shall be substituted for the word " recognizance " ; and the expres- 
 sion "decree of aliment" shall be substituted for the expression 
 " order of affiliation." 
 
 2. This Order may be cited as the Courts (Emergency Powers) 
 (Scotland) Order, 1914. 
 
 Almeric FitzRoy. 
 
 By the KING. 
 A PROCLAMATION 
 
 Relating to Trading with the Enemy. 
 
 GEORGE R.I. 
 
 Whereas by Our Proclamation dated the 9th day of September, 
 1914, called the Trading with the Enemy Proclamation, No. 2, 
 
 181 
 
182 RECENT PROCLAMATIONS, fee. 
 
 certain prohibitions, as therein more specifically set forth, were 
 imposed upon all persons therein referred to : 
 
 And whereas by our Proclamation dated the 8th day of October, 
 1914, the Trading with the Enemy Proclamation, No. 2, was amended 
 as therein more specifically set forth : 
 
 And whereas by Our Proclamation dated the 5th. day of November, 
 1914, it was declared that the aforesaid Proclamations, amongst 
 others, should apply to the state of war existing between Us and the 
 Sultan of Turkey : 
 
 And whereas it is desirable to extend the scope of the prohibitions 
 contained in the aforesaid Proclamations in the manner hereinafter 
 appearing : 
 
 Now, therefore, We have thought fit, by and with the advice of 
 Our Privy Council, to issue this Our Royal Proclamation, declaring 
 and it is hereby declared, as follows : — 
 
 1. Notwithstanding anything contained in paragraph 6 of the 
 Trading with the Enemy Proclamation, No. 2, transactions hereafter 
 entered into by persons firms or companies resident carrying on 
 business or being in the United Kingdom 
 
 (a) in respect of banking business with a branch situated outside 
 
 the United Kingdom of an enemy person firm or company, 
 or 
 
 (b) in respect of any description of business with a branch 
 
 situated outside the United Kingdom of an enemy bank, 
 
 shall be considered as transactions with an enemy: 
 
 Provided that the acceptance payment or other dealing with any 
 negotiable instrument which was drawn before the date of this Pro- 
 clamation shall not, if otherwise lawful, be deemed to be a transaction 
 hereafter entered into within the meaning of this paragraph. 
 
 2. The power to grant licences on Our behalf vested by para- 
 graph. 8 of the Trading with the Enemy Proclamation, No. 2, in a 
 Secretary of State, or the Board of Trade, may also be exercised by 
 the Lords Commissioners of Our Treasury. 
 
 3. If the Governor in Council of any British possession shall 
 issue a Proclamation extending the provisions of this Proclamation 
 to transactions by persons firms or companies resident carrying on 
 business or being in that possession such first mentioned Proclamation 
 shall have effect as if it were part of this Proclamation. 
 
 4. This Proclamation shall be read as one with the Trading with 
 the Enemy Proclamation, No. 2, and with Our Proclamation dated 
 the 8th day of October amending the same. 
 
 Dated 7th January, 1915. 
 
TRADING WITH THE ENEMY PEOCLAMATION 183 
 
 THE TRADING WITH THE ENEMY (OCCUPIED TERRITORY) 
 
 PROCLAMATION, 1915. 
 GEORGE R.I. 
 
 Whereas, as a result of the present war, certain territory forming 
 part of the territory of an enemy country is or may be in the effective 
 military occupation of Us or Our Allies, or of a Neutral State (in this 
 Proclamation referred to a* " territory in friendly occupation "), and 
 certain territory forming part of Our territory or that of an Allied 
 or Neutral State is or may be in the effective military occupation 
 of an enemy (in this Proclamation referred to as " territory in hostile 
 " occupation ") : 
 
 And whereas it is expedient in Our interest and in that of Our 
 Allies that the Proclamations relating to trading with the enemy 
 should apply to territory in friendly occupation as they apply to Our 
 territory or that of Our Allies, and should apply to territory in 
 hostile occupation as they apply to an enemy country : 
 
 Now, therefore, We have thought fit, by and with the advice of 
 Our Privy Council, to issue this Our Royal Proclamation declaring, 
 and it is hereby declared, as follows: — 
 
 1. The Proclamations for the time being in force relating to 
 trading with the enemy shall apply to territory in friendly occupation 
 as they apply to Our territory or that of Our Allies, and to territory 
 in hostile occupation as they apply to an enemy country. 
 
 2. Any references to the outbreak of the war in any Proclamation 
 so applied shall, as respects territory in friendly or hostile occupation, 
 be construed as references to the time at which the territory so 
 became in friendly or hostile occupation. 
 
 3. The certificate of any person authorised by a Secretary of 
 State to give such certificates that any territory is in friendly or 
 hostile occupation within the meaning of this Proclamation, or as 
 to the time at which any territory so became or ceased to be territory 
 in friendly or hostile occupation, shall, for the purposes of this 
 Proclamation, be final and conclusive. 
 
 4. Nothing in this Proclamation shall be taken to prohibit 
 anything which may be expressly permitted by Our licence or by a 
 licence given on Our behalf by a Secretary of State, or the Board of 
 Trade, or the Lords Commissioners of Our Treasury, whether such 
 licences be specially granted to individuals or be announced as apply- 
 ing to classes of persons, or to prohibit any special arrangements 
 which may be made by any such licence or otherwise with Our 
 authority for special treatment of any occupied territory or persons 
 in any such occupied territory entitled to such special treatment. 
 
 5. This Proclamation shall be called the Trading with the Enemy 
 (Occupied Territory) Proclamation, 1915. 
 
 Dated 16th February, 1915. 
 
184 EECENT PROCLAMATIONS, &c. 
 
 By the KING. 
 
 A PROCLAMATION 
 
 Prohibiting under Section 8 of " The Customs and Inland Revenue 
 " Act, 1879," and Section one op " The Exportation of Arms 
 "Act, 1900," and Section one op "The Customs (Exportation 
 "Prohibition) Act, 1914," the Exportation prom the United 
 Kingdom op Warlike Stores. 
 
 GEORGE R.I. 
 
 Whereas by section 8 of " The Customs and Inland Revenue Act, 
 " 1879," it is enacted that the exportation of arms, ammunition, and 
 gunpowder, military and naval stores, and any articles which We shall 
 judge capable of being converted into or made useful in increasing 
 the quantity of military or naval stores, provisions, or any sort of 
 victual which may be used as food for man may be prohibited by 
 Proclamation : 
 
 And whereas by section one of " The Exportation of Arms Act, 
 " 1900," it is enacted that We may by Proclamation prohibit the 
 exportation of all or any of the following articles, namely, arms, 
 ammunition, military and naval stores, and any article which We shall 
 judge capable of being converted into or made useful in increasing 
 the quantity of arms, ammunition, or military or naval stores, to any 
 country or place therein named whenever We shall judge such pro- 
 hibition to be expedient in order to prevent such arms, ammunition, 
 military or naval stores, being used against Our subjects or forces 
 or against any forces engaged or which may be engaged in military 
 or naval operations in co-operation with Our forces : 
 
 And whereas by section one of " The Customs (Exportation Pro- 
 "hibition Act, 1914," it is enacted that section 8 of the aforesaid 
 Customs and Inland Revenue Act, 1879, shall have effect whilst a 
 state of war in which We are engaged exists as if in addition to the 
 articles therein mentioned there were included all other articles of 
 every description : 
 
 And whereas it is further enacted by section ,2 of " The Customs 
 (Exportation Prohibition) Act, 1914," that any Proclamation or 
 Order in Council made under section 8, as so amended, of " The 
 Customs and Inland Revenue Act, 1879," may whilst a state of war 
 exists be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is enacted by section 2 of " The Customs (Expor- 
 " tatdon Restriction) Act, 1914," that any Proclamation made under 
 section one of " The Exportation of Arms Act, 1900," may, whether 
 the Proclamation was made before or after the passing of the Act 
 now in recital, be varied or added to by an Order made by the 
 Lords of the Council on the recommendation of the Board of Trade : 
 
 And whereas a Proclamation dated the 10th November, 1914, 
 
EXPORTATION (PROHIBITION) PROCLAMATION. 185 
 
 and various Orders, dated respectively the 20th November, the 5th, 
 the 11th and the 23rd December, 1914, and the 4th and the 8th 
 January, 1915, prohibiting the exportation of certain articles therein 
 referred to from the United Kingdom to certain or all destinations, 
 have been issued in pursuance of the aforesaid powers : 
 
 And whereas it is expedient that the said Proclamation and Orders 
 should be consolidated, with amendments and additions, and that such 
 Proclamation and Orders should be revoked : 
 
 And whereas the articles, other than arms, ammunition, or mili- 
 tary or naval stores hereinafter enumerated are articles which We 
 judge capable of being converted into or made useful in increasing 
 the quantity of arms, ammunition, or military or naval stores : 
 
 And whereas in order to prevent such arms, ammunition, or 
 military or naval stores being used against Our subjects or forces or 
 against any forces engaged or which may be engaged in military 
 or naval operations in co-operation with Our forces, We have deemed 
 it expedient to prohibit the exportation of the articles hereinafter 
 enumerated : 
 
 Now, therefore, We have thought fit, by and with the advice 
 of Our Privy Council, to issue this Our Royal Proclamation, declaring, 
 and it is hereby declared, that the above-mentioned Proclamation 
 and Orders be and the same are hereby revoked : 
 
 And We have further thought fit, by and with the advice aforesaid, 
 and in virtue and in exercise of the powers aforesaid, further to 
 declare, and it is hereby declared, as follows : 
 
 (A) That the exportation of the following goods be prohibited 
 to all destinations : — 
 
 Aeroplanes, airships, balloons and aircraft, of all kinds and their 
 component parts, together with accessories and articles recognisable 
 as intended for use in connection with aeroplanes, airships, balloons, 
 and aircraft, including : — gold beaters' skin ; shantung silk in the 
 piece; flax fabric suitable for aeroplanes] non-inflammable 
 " celluloid " sheet (or similar transparent material non-soluble in 
 lubricating oil, petrol or water); aeroplane dope; high tensile steel 
 tubes; aeroplane instruments (aneroids, barographs, revolution in- 
 dicators) ; aeroplane turnbuckles ; steel stampings ; magnetos ; aero- 
 plane engines and parts ; fusel oil (amyl alcohol) ; amyl acetate ; aceto- 
 cellulosesi; trephenyl phosphate; 
 
 Animals, pack, saddle and draught, suitable for use in war; 
 
 Cannon and other ordnance and machine guns, and parts thereof; 
 
 Carbons, suitable for searchlights ; 
 
 Carriages and mountings for cannon and other ordnance, and for 
 machine guns and parts thereof; 
 
 Cartridges, charges of all kinds, and their component parts; 
 
 Chemicals, drugs, dyes and dye stuffs, medicinal and pharma- 
 ceutical preparations, and tanning extracts, namely: — 
 
 Acetone ; 
 
 AcetylsaMcylic acid (aspirin); 
 
 Ammonium nitrate, perchlorate and sulphocyanide ; 
 
 Antipyrine (phenazone) ; 
 
 Anti-tetanus serum; 
 
186 RECENT PROCLAMATIONS, &c. 
 
 Barium chlorate; 
 
 Belladonna and its preparations and alkaloids ; 
 
 Calcium acetate and all other metallic acetates ; 
 
 Calcium nitrate; 
 
 Cantharides and its preparations ; 
 
 Carbolic acid; 
 
 Chloral and itsi preparations, including chloramid; 
 
 Coal tar distillation products, namely, benzol and cresol and the 
 fractions of the distillation products of coal tar between benzol and 
 cresol ; 
 
 Coal tar products for use in dye manufacture, including aniline 
 oil and aniline salt; 
 
 Collodion ; 
 
 Cresol, all preparations of (including cresylic acid) and nitro-cresol 
 (except saponified cresol) ; 
 
 Cyanamide; 
 
 Diethylbarbituric acid (veronal) and veronal sodium ; 
 
 Dimethylaniline ; 
 
 Dyes and dye stuffs manufactured from coal tar products ■ 
 
 Emetin and its salts ; 
 
 Ergot of rye, not including liquid extract or other medicinal pre- 
 parations of ergot; 
 
 Eucaine hydrochlor; 
 
 Gentian and its preparations ; 
 
 Henbane and its preparations; 
 
 Hydroquinone ; 
 
 Indigo, natural; 
 
 Ipecacuanha root; 
 
 Methylaniline ; 
 
 Neo-salvarsan ; 
 
 Nitric acid; 
 
 Nifcrotoluol ; 
 
 Novocain ; 
 
 Opium and its preparations and alkaloids ; 
 
 Paraffin, liquid medicinal; 
 
 Paraformaldehyde and trioxymethylene ; 
 
 " Peptone Witte " ; 
 
 Peroxide of manganese; 
 
 Phenacetin ■ 
 
 Picric acid and its components; 
 
 Potash salts, namely : — 
 Chlorate ; 
 Cyanide ; 
 
 Nitrate (saltpetre); 
 Permanganate ; 
 
 Protargol, not including silver proteinate; 
 
 Saccharin (including " saxin ") ; 
 
 Salicylic acid and salicylate of soda; 
 
 Salol; 
 
 Salvarsan ; 
 
 Santonin and its preparations; 
 
EXPORTATION (PROHIBITION) PROCLAMATION. 187 
 
 Sodium chlorate and perchlorate ; 
 
 Sulphonal ; 
 
 Sulphur ; 
 
 Sulphuric acid ; 
 
 Tanning, extracts for use in, the following : — 
 
 Chestnut extract ■ 
 
 Oakvvood extract; 
 Thorium nitrate; 
 Thymol and its preparations ; 
 Trional ; 
 Valonia ; 
 
 Compasses, other than ships' compasses; 
 Cotton waste of all descriptions; 
 Explosives of all kinds; 
 Field glasses and telescopes ; 
 
 Firearms, rifled, of all kinds, and their component parts; 
 Flax, raw; 
 Forage and food for animals, namely: — 
 
 Beans (not including haricot beans) ; 
 
 Brewers' and distillers' grains; 
 
 Brewers' dried yeast ; • 
 
 Buckwheat ; 
 Cakes and meals, the following, namely : — 
 
 Biscuit meal; 
 
 Calf meal; 
 
 Coconut or poonac cake; 
 
 Compound cakes and meal ; 
 Cottonseed cake, decorticated and undecorticated, and cotton- 
 seed meal; 
 
 Fishmeal and concentrated fish; 
 
 Gluten meal or gluten feed; 
 
 Ground nut cake and meal; 
 
 Husk meal; 
 
 Linseed cake and meal; 
 
 Locust bean meal; 
 
 Maize germ meal ; 
 
 Maize meal; 
 
 Meat meal; 
 
 Palmnut cake and meal ; 
 
 Rape seed cake and meal; 
 
 Soya bean cake and meal; 
 Dari; 
 Hay; 
 
 Hempseed ; 
 Lentils ; 
 Maize ; 
 
 Malt dust, culms, sprouts or combings; 
 Millet; 
 Offals of corn and grain, including: — 
 
 Bran and pollard; 
 
 Mill dust and screenings of all kinds; 
 
188 RECENT PROCLAMATIONS, &c. 
 
 Offals of corn and grain, including : — 
 
 Rice meal (or bran) and dust; 
 
 Sharps and middlings; 
 Patent and proprietary cattle foods of all kinds; 
 Peas (except split, tinned and bottled peas, packed in cardboard 
 boxes and similar receptacles); 
 
 Straw; 
 Glass for optical instruments ; 
 
 Grindery, the following articles of, used in the making of boots 
 and shoes : — 
 
 Brass rivets, for use by hand or machine; 
 
 Cutlan studs, for use by hand or machine; 
 
 Heel attaching pins, for use by hand or machine ; 
 
 Lasting tacks or rivets for use by hand or machine; 
 
 Steel bills, for use by hand or machine; 
 
 Heel tips; 
 
 Heel tip nails; 
 
 Hobnails of all descriptions; 
 
 Protector studs; 
 
 Screwing wire; 
 Harness and saddlery which can be used for military purposes; 
 Heliographs ; 
 
 Hemp, other than Manila hemp; 
 Hides of cattle, buffaloes and horses, and calfskins; 
 Hosiery needles 1 ; 
 Khaki woollen cloth; 
 
 Leather undressed or dressed, suitable for saddlery, harness, 
 military boots or military clothing; 
 
 Meat, namely, beef and mutton, fresh or refrigerated; 
 Periscopes ; 
 
 Projectiles of all kinds and their component parts; 
 Range finders and parts thereof; 
 
 Silk cloth, silk braid, silk thread, suitable for cartridges ; 
 Silk noils; 
 
 Spirits of a strength of not less than 43 degrees above proof; 
 Swords, bayonets and other arms (not being firearms) and parts 
 thereof ; 
 
 Wood, namely : — 
 
 Ash; 
 
 Ash three-ply wood; 
 
 Spruce ; 
 
 Walnut wood. 
 
 (B) That the exportation of the following goods be prohibited 
 to all destinations abroad other than British Possessions and Pro- 
 tectorates : — 
 
 Accoutrements, namely, web equipment, leather belts, leather 
 bandoliers, leather pouches, other leather articles of personal equip- 
 ment manufactured for military purposes; 
 
 Blankets, coloured, exceeding 3J lbs. in weight, known as 
 " woollen " blankets ; 
 
EXPORTATION (PROHIBITION) PROCLAMATION. 189 
 
 Boots, heavy, for men; 
 
 Camp equipment, articles of, including tents and their component 
 parts, ovens, camp kettles, buckets, lanterns, and horse rugs; 
 
 Carts, two-wheeled, capable of carrying 15 cwt. or over, and their 
 distinctive component parts; 
 
 Chemicals, drugs, medicinal and pharmaceutical preparations: — 
 
 Acetanilide ; 
 
 Aconite and its preparations and alkaloids; 
 
 Alcohol, methylic; 
 
 Alumina and salt® of aluminium; 
 
 Ammonia, liquified; 
 
 Antimony, sulphides and oxides of; 
 
 Benzoic acid (synthetic) and benzoates; 
 
 Bromine and alkaline bromides; 
 Coca and its preparations and alkaloids; 
 Copper, suboxide of ; 
 Copper sulphate; 
 Cresol (saponified); 
 Formic aldehyde; 
 Fulminate of mercury; 
 Glycerine, crude and refined; 
 
 Hexamethylene tetramin (urotropm) and its preparations; 
 Hydrobromio acid ; 
 Potash, caustic; 
 Potash salts, namely: — 
 
 Bicarbonate; 
 
 Bichromate ; 
 
 Carbonate ; 
 
 Chloride ; 
 
 Chrome alum ; 
 
 Metabisulphite ; 
 
 Prussiate; 
 
 Sulphate (including Kainit); 
 Sodium nitrate; 
 
 Tartaric acid and alkaline tartrates ; 
 Zinc sulphate; 
 Coal sacks ; 
 
 Draw plates, jewelled, for drawing steel wire; 
 Ferro alloys, including: — 
 
 Ferro-cbrome ; 
 
 Ferro-manganese ; 
 
 Ferro-molybdenum ; 
 
 Ferro-nickel ; 
 
 Ferro- titanium ; 
 
 Ferro-tungsten ; 
 
 Ferro-vanadium ; 
 
 Spiegeleisen • 
 Ferro-silicon ; 
 
 Graphite, including foundry (moulding) plumbago and plumbago 
 for lubricating; 
 
190 RECENT PROCLAMATIONS, &c. 
 
 Hemp, the following manufactures of : — 
 Cloth; 
 
 Cordage and twine, not including cordage or twine of Manila 
 hemp or reaper or binder twine; 
 Horse shoes; 
 Jute, raw; 
 
 Metals and ores, the following, viz. : — 
 Aluminium and alloys of aluminium ; 
 Antimony and alloys of antimony; 
 Bauxite ; 
 Chrome ore; 
 Cobalt ; 
 
 Copper un wrought and part wrought, all kinds, including 
 alloysi of copper (such as brass, gun metal, naval bras® and 
 delta metal, phosphor copper and phosphor bronze), copper 
 and brass sheetsi, circles, slabs, bare, pipes, ingots, scrap, 
 rods, plates, solid drawn tubes, condenser plates, copper 
 wire, brass wire, bronze wire, solder containing copper; 
 Lead, pig sheet or pipe (including solder containing lead) ; 
 Lead ore; 
 
 Manganese and manganese ore ; 
 Mercury ; 
 
 Molybdenum and molybdenite; 
 Nickel and nickel ore; 
 Scheelite ; 
 Selenium ; 
 Tungsten ; 
 Vanadium ; 
 Wolframite ; 
 
 Zinc and zinc ore (including zinc ashes, spelter, spelter dross, 
 and zinc sheets) ; 
 Mica (including mica splittings) and micanite; 
 Mineral jellies; 
 Mines and parts thereof ; 
 
 Oil blast furnace (except creosote and creosote oil); 
 Oil fuel, shale; 
 
 Oil, mineral lubricating (including mineral lubricating grease 
 and lubricating oil composed of mineral and other oils); 
 
 Oils, all vegetable (other than linseed oil, boiled and unboiled, 
 unmixed with other oil, and not including essential oils) ; 
 
 Oil, whale, namely train, blubber, sperm, or head matter, and 
 seal oil, shark oil, and Japan fish oil; 
 
 Oleaginous nuts, seeds and products, the following, namely: — 
 Castor beans; 
 Coconuts ; 
 Copra ; 
 Cotton seed; 
 
 Ground nuts (Arachides); 
 Linseed 
 Palm kernels; 
 Rape seed; 
 
EXPORTATION (PROHIBITION) PROCLAMATION. 191 
 
 Sesame seed; 
 Soya beans ; 
 Oleo oil, Premier jus, and animal tallow; 
 
 Petroleum, fuel oils (including turpentine substitute and paraffin 
 oil); 
 
 Petroleum, gas oil; 
 
 Petroleum spirit and motor spirit (including Shell spirit) ; 
 Pigskins, dressed or undressed ; 
 Portable forges; 
 
 Provisions and victuals which may be used as food for man, 
 namely : — 
 
 Animals, living, for food; 
 
 Barley and oats, including barley meal and pearled barley, 
 
 and oatmeal; 
 Butter ; 
 Cheese; 
 Eggs in shells; 
 Lard and imitation lard; 
 Malt; 
 
 Margarine ; 
 
 Sugar, refined and candy ; 
 Sugar, unrefined; 
 
 Wheat, wheat flour and wheat meal; 
 Rope (steel wire) and hawsers ; 
 
 Rubber (including raw, waste and reclaimed rubber) and goods 
 made wholly of rubber; including tyres for motor vehicles and for 
 cycles, together with articles or materials especially adapted for 
 use in the manufacture or repair of tyres; 
 Searchlights ; 
 Sheepskins, tanned; 
 
 Sheepskins, woolled, i.e., with the wool left on; 
 Signalling lamps of all kinds capable of being used for signalling 
 Morse or other code ; 
 
 Submarine sound signalling apparatus; 
 Surgical bandages and dressing (including buttercloth) ; 
 Telephone sets and parts thereof, field service telegraph and tele- 
 phone cable; 
 
 Torpedo nets; 
 Torpedo tubes; 
 Torpedoes and parts thereof; 
 Turpentine (oil and spirit); 
 
 Vessels, boats and craft of all kinds (including floating docks) 
 and their distinctive component parts ; 
 
 Waggons, four-wheeled, capable of carrying one ton and over 
 and their distinctive component parts; 
 
 Uniform clothing and military equipment; 
 
 Wire, barbed, and galvanised wire, and implements for fixing and 
 cutting the same (but not including galvanised wire netting) ; 
 Wire, steel, or all kinds; 
 Wool, raw (sheep's and lambs'); 
 Wool tops; 
 
192 RECENT PROCLAMATIONS, &c. 
 
 Wool noils; 
 
 Wool waste; 
 
 Woollen rags, applicable to other uses than manure, pulled or not; 
 
 Woollen and worsted cloth suitable for uniform clothing, not 
 including women's dress stuffs or cloth with patterns ; 
 
 Woollen and worsted yarns ; 
 
 Woollen jerseys, cardigan jackets, woollen gloves, woollen socks, 
 and men's woollen underwear of all kinds ; 
 
 (C) That the exportation of the following goods, be prohibited 
 to all foreign ports in Europe and on the Mediterranean and Black 
 Seas, other than those of France, Russia (except Baltic ports), Bel- 
 gium, Spain and Portugal: — 
 
 Armour plates, armour quality castings, and similar protective 
 material; 
 
 Bag® and sacks of all kinds (not including paper bags) ; 
 
 Bicycles, and their distinctive component parts; 
 
 Bladders, casings, and sausage skins; 
 
 Camphor ; 
 
 Chemicals, drugs, etc. — 
 
 Bismuth and its salts; 
 
 Iodine and its preparations and compounds ; 
 
 Mercury, salts and preparations of; 
 
 Nux Vomica and its alkaloids and preparations; 
 Chronometers and all kinds of nautical instruments; 
 Compasses for ships, and parts thereof, including fittings such 
 as binnacles; 
 
 Firearms, unrifled, for sporting purposes; 
 Flaxen canvas, namely : — 
 
 Hammock canvas; 
 
 Kitbag canvas ; 
 
 Merchant Navy canvas; 
 
 Royal Navy canvas ; 
 
 Tent canvas; 
 Goat skins, undressed; 
 
 Implements and apparatus designed exclusively for the manufac- 
 ture of munitions of war, for the manufacture or repair of arms or 
 of war material for use on land and sea, namely, plant for cordite 
 and ammunition factories, viz. : — 
 
 Cordite presses ; 
 
 Dies for cartridge cases ; 
 
 Gauges for shells or cartridges ; 
 
 Incorporators ; 
 
 Lapping machines ; 
 
 Rifling machines; 
 
 Wire- winding machines ; 
 India-rubber, sheet, vulcanised; 
 
 Intrenching tools and intrenching implements, namely, pick-axes 
 and grubbers whether of combination pattern or otherwise; spades 
 and shovels of all descriptions ; helves and handles for pick-axes, 
 
EXPORTATION (PROHIBITION) PROCLAMATION. 193 
 
 grubbers, spades and shovels; and machinery for trenching and 
 ditching ; 
 
 Jute yarns; 
 
 Jute piece goods; 
 
 Linen close canvas; 
 
 Linen duck cloth ; 
 
 Mahogany ; 
 
 Mess tins, and water bottles for military use ; 
 
 Metals and ores, the following, viz. : — 
 
 Copper ore; 
 
 Iron ore; 
 
 Iron, haematite pig; 
 
 Iron pyrites; 
 Motor vehicles of all kinds, including motor bicycles, and their 
 distinctive component parts and accessories! ; 
 
 Packings, engine and boiler (including slagwool) ; 
 Provision® and victuals which may be used as food for man, 
 namely : — 
 
 Cocoa powder; 
 
 Herrings, cured or salted, in barrels or cases, including dry 
 salted herrings and herrings in brine; 
 
 Tinned meats and extract of meat; 
 Railway material, both fixed and rolling stock; 
 Rosin; 
 
 Seeds, clover and grass; 
 Shipbuilding materials, namely : — 
 
 Boiler tubes; 
 
 Condenser tubes; 
 
 Iron and steel castings and forgings for hulls and machinery 
 of ships ; 
 
 Iron and steel plates and sectional materials for shipbuilding ; 
 
 Marine engines, and part® thereof; 
 
 Ships' auxiliary machinery; 
 Sounding machines and gear; 
 Telegraphs, wireless telegraphs and telephones, material for. 
 
 (D) That the export of the following article be prohibited to ports 
 in Denmark, the Netherlands and Sweden : — 
 
 Tin plates ; including tin boxes and tin oanisters for food packing. 
 
 Dated 3rd February, 1915. 
 
194 RECENT PROCLAMATIONS, &c. 
 
 ORDER IN COUNCIL UNDER SECTION 2 OF THE CUSTOMS 
 (EXPORTATION PROHIBITION) ACT (4 & 5 GEO. V. CH. 
 64), VARYING THE PROCLAMATION OF 3rd FEBRUARY, 
 1915. 
 
 At the Council Chamber, Whitehall, the 2nd day of March, 1915. 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by section 2 of the Customs (Exporta- 
 tion Restriction) Act, 1914, that any Proclamation made under section 
 one of the Exportation of Arms Act, 1900, may, whether the Pro- 
 clamation was made before or after the passing of the Act now in 
 recital, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under section 8 of the Customs and Inland Revenue 
 Act, 1879, and section one of the Exportation of Arms Act, 1900, 
 and section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, 
 should be amended by making the following amendments in and 
 additions to the same : — 
 
 (1) That the heading of " Draw plates, jewelled, for drawing 
 
 " steel wire " in the list of goods the exportation of 
 which is prohibited to all destinations abroad other than 
 British Possessions and Protectorates should be deleted, 
 and there be inserted in its place " Draw plates, jewelled, 
 " for drawing steel wire, and diamonds prepared for use 
 "therein." 
 
 (2) That the following articles should be added to the list of 
 
 goods the exportation of which is prohibited to all destina- 
 tions abroad other than British Possessions and Pro- 
 tectorates : — 
 
 Paraffin Wax; 
 Prussiate of Soda. 
 
 Now, therefore, Their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved. 
 
EXPORTATION (PROHIBITION) ORDER. 195 
 
 Whereof the Commissioners of His Majesty's Customs and Excise, 
 and all other persons whom it may concern, are to take notice and 
 govern themselves accordingly. 
 
 Almeric FitzRoy, 
 
 ORDER IN COUNCIL UNDER SECTION 2 OF THE CUSTOMS 
 (EXPORTATION PROHIBITION) ACT, 1914 (4 & 5 GEO. 5, 
 CH. 64), VARYING THE PROCLAMATION OF 3rd FEB- 
 RUARY, 1915, AS AMENDED BY THE ORDER IN COUNCIL 
 OF 2nd MARCH, 1915. 
 
 At the Council Chamber, Whitehall, the 18th day of March, 1915, 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by section 2 of the Customs (Exporta- 
 tion Restriction) Act, 1914, that any Proclamation made under section 
 one of the Exportation of Arms Act, 1900, may, whether the Proclama- 
 tion was made before or after the passing of the Act now in recital, 
 be varied or added to by an Order made by the Lords of the Council 
 on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under section 8 of the Customs and Inland Revenue 
 Act, 1879, and section one of the Exportation of Arms Act, 1900, 
 and section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas by an Order of Council, dated the 2nd day of March, 
 1915, the said Proclamation was amended and added to in certain 
 particulars : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, 
 as amended and added to by the said Order of Council, dated the 
 2nd day of March, 1915, should be further amended by making the 
 following amendments in and additions to the same : — 
 
 (1) That the heading " Thorium nitrate " in the list of goods 
 
 the exportation of which is prohibited to all destinations 
 should be deleted, and there should be substituted therefor 
 the heading " Thorium oxide, thorium nitrate, and other 
 " salts of thorium." 
 
 (2) That the heading " Salicylic acid and Salicylate of soda " 
 
196 RECENT PROCLAMATIONS, &c. 
 
 in the list of goods the exportation of which is prohibited 
 to all destinations should be deleted, and there be substi- 
 tuted therefor the heading " Salicylic acid, Salicylate of 
 " soda, and Methyl salicylate." 
 
 (3) That the following article should be added to the list of 
 
 goods the exportation of which is prohibited to all 
 destinations : — 
 
 Sheepgut. 
 
 (4) That the heading " All vegetable oils (other than linseed oil, 
 
 " boiled and unboiled, unmixed with other oil, and not 
 "including essential oik)" in the list of goods the 
 exportation of which is prohibited to all destinations 
 abroad other than British Possessions and Protectorates 
 should be deleted, and there be substituted therefor the 
 headings " Oils, all vegetable, and fate (other than 
 " linseed oil, boiled and unboiled, unmixed with other 
 " oil and not including essential oils)." 
 
 (5) That the heading " Oleo oil, Premier jus, and animal tallow " 
 
 in the list of goods the exportation of which is prohibited 
 to all destinations abroad other than British Possessions 
 and Protectorates should be deleted, and there be substi- 
 tuted therefor the heading " All animal oils and fats." 
 
 (6) That the heading ' ' Rubber (including raw, waste, and 
 
 " reclaimed rubber) and goods made wholly of rubber, 
 " including tyres for motor vehicles and for cycles, 
 " together with articles or materials especially adapted 
 " for use in the manufacture or repair of tyres " in the 
 list of goods the exportation of which is prohibited to all 
 destinations! abroad other than British Possessions and 
 Protectorates should be deleted, and there be substituted 
 therefor the heading " Rubber (including raw, waste, and 
 " reclaimed rubber, solutions containing rubber, jellies 
 ' ' containing rubber, or any other preparations containing 
 " rubber) and goods made wholly of rubber; including 
 " tyres for motor vehicles and for cycles, together with 
 " articles! or materials especially adapted for use in the 
 ' ' manufacture or repair of tyres. ' ' 
 
 (7) That the heading " Sheepskins, wooled, i.e., with the wool 
 
 " left on " in the list of goods the exportation of which 
 is prohibited to all destinations abroad other than British 
 Possessions and Protectorates should be deleted, and 
 there be substituted therefor the heading " Sheepskins, 
 " whether wooled or not." 
 
 (8) That the heading " Vessels, boats and craft of all kinds 
 
 " (including floating docks) and their distinctive component 
 " parts " in the list of goods the exportation of which is 
 prohibited to all destinations abroad other than British 
 Possessions and Protectorates should be deleted, and that 
 there be substituted therefor the words " Vessels, boats 
 " and craft of all kinds; floating docks and their dis- 
 " tinctive component parts." 
 
EXPORTATION (PROHIBITION) ORDER. 197 
 
 (9) That the following articles should be added to the list of 
 
 goods the exportation of which is prohibited to all destina- 
 tions abroad other than British Possessions and Pro- 
 tectorates : — 
 
 Chemicals, drugs, medicinal and pharmaceutical pre- 
 parations : 
 Ammonia and its salts, whether simple or compound, 
 other than ammonium nitrate, perchlorate and sul- 
 phocyanide (the exportation of which is already 
 prohibited to all destinations). 
 Ammonia liquor. 
 
 The compounds of aniline, except aniline salt (the 
 exportation of which is already prohibited to all 
 destinations). 
 Chloride of Tin. 
 Copper Iodide. 
 
 Tanning substances of all kinds (including extracts for 
 use in Tanning) except chestnut extract, oak-wood 
 extract, and valonia (the exportation of which is 
 already prohibited to all destinations). 
 Urea and its compounds. 
 Deer skins, dressed and undressed. 
 Goat skins, dressed and undressed. 
 Metals and ores, namely: — 
 Tin and tin ore. 
 Neat's foot oil. 
 Provisions and victuals which may be used as food for 
 man, namely : — 
 " Peas, except tinned and bottled peas and peas packed 
 "in cardboard boxes and similar receptacles." 
 
 (10) That the heading " Goat skins, undressed," in the list of 
 
 goods the exportation of which is prohibited to all foreign 
 ports in Europe and on the Mediterranean and Black Seas, 
 other than those of France, Russia (except Baltic ports), 
 Belgium, Spain and Portugal, should be deleted. 
 
 (11) That the exportation of the following goods should be 
 
 prohibited to all foreign ports in Europe and on the 
 Mediterranean and Black Seas, other than those of France, 
 Russia (except Baltic ports), Spain and Portugal: — 
 
 Provisions and victuals which may be used as food for 
 man, namely: — 
 Compressed and desiccated soups. 
 
 Now, therefore, their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved. 
 
 Whereof the Commissioners of His Majesty's Customs and Excise, 
 and all other persons whom it may concern, are to take notice and 
 govern themselves accordingly. 
 
 Almerie FitzRoy. 
 
198 RECENT PROCLAMATIONS, &c. 
 
 ORDER IN COUNCIL UNDER SECTION 2 OF THE CUSTOMS 
 (EXPORTATION PROHIBITION) ACT, 1914 (4 & 5 GEO. 5, 
 CH. 64), VARYING THE PROCLAMATION OF 3rd 
 FEBRUARY, 1915, AS AMENDED BY ORDERS IN COUNCIL 
 OF 2nd MARCH AND 18th MARCH, 1915. 
 
 At the Council Chamber, Whitehall, the 15th day of April, 1915. 
 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by Section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under Section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by Section 2 of the Customs (Exporta- 
 tion Restriction) Act, 1914, that any Proclamation made under 
 Section one of the Exportation of Arms Act, 1900, may, whether the 
 Proclamation was made before or after the passing of the Act now 
 in recital, be varied or added to by an Order made by the Lords of 
 the Council on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under Section 8 of the Customs and Inland Revenue 
 Act, 1879, and Section one of the Exportation of Arms Act, 1900, 
 and Section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas by Orders of Council, dated respectively the 2nd 
 day of March, 1915, and the 18th day of March, 1915, the said Pro- 
 clamation was amended and added to in certain particulars : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, as 
 amended and added to by the Orders of Council, dated respectively 
 the 2nd day of March, 1915, and the 18th day of March, 1915, should 
 be further amended by making the following amendments in and 
 additions to the same : — 
 
 (1) That the heading " Oil, mineral lubricating (including 
 
 " mineral lubricating grease and lubricating oil composed 
 " of mineral and other oils ") in the list of goods the ex- 
 portation of which is prohibited to all destinations abroad 
 other than British Possessions and Protectorates should 
 be deleted, and there should be substituted therefor the 
 heading "Lubricants." 
 
 (2) That the heading " Oil, whale, namely train, blubber, sperm 
 
 " or head matter, and seal oil, shark oil and Japan fish 
 
EXPORTATION (PROHIBITION) ORDER. 199 
 
 " oil," in the list of goods the exportation of which is pro- 
 hibited to all destinations abroad other than British 
 Possessions and Protectorates should be deleted, and there 
 should be substituted therefor the heading " Oil, whale 
 "(train, blubber, sperm), seal oil, shark oil, fish oil 
 " generally, and mixture or compounds of any of the 
 " foregoing." 
 
 (3) That the following article should be added to the list of goods 
 
 the exportation of which is prohibited to all destinations 
 abroad other than British Possessions and Protectorates : — 
 Alunite. 
 
 (4) That the following articles should be added to the list of goods 
 
 the exportation of which is prohibited to all foreign ports 
 in Europe and on the Mediterranean and Black Seas, 
 other than those of France, Russia (except Baltic Ports), 
 Spain, and Portugal: — 
 Anthracite. 
 
 Lacs of all kinds, including shellac, gum lac, seed 
 lac, stick lac, and other forms of lac, but not 
 including lac dye. 
 
 Now, therefore, their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved.. 
 
 Wihereof the Commissioners of His Majesty's Customs and Excise, 
 and all other persons whom it may concern, are to take notice and 
 govern themselves accordingly. 
 
 Almerie FitzRoy. 
 
 ORDER IN COUNCIL UNDER SECTION 2 OF THE CUSTOMS 
 (EXPORTATION PROHIBITION) ACT, 1914 (4 & 5 GEO. 5, 
 CH. 64), VARYING THE PROCLAMATION OF 3rd 
 FEBRUARY, 1915, AS AMENDED BY ORDERS IN COUNCIL 
 OF 2nd MARCH, 18th MARCH, AND 15th APRIL, 1915. 
 
 At the Council Chamber, Whitehall, the 21st day of April, 1915. 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by Section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under Section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by Section 2 of the Customs (Exporta- 
 tion Restriction) Act, 1914, that any Proclamation made under 
 
200 RECENT PROCLAMATIONS, &c. 
 
 Section one of the Exportation of Arms Act, 1900, may, whether the 
 Proclamation was made before or after the passing of the Act now 
 in recital, be varied or added to by an Order made by the Lords of 
 the Council on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under Section 8 of the Customs and Inland Revenue 
 Act, 1879, and Section one of the Exportation of Arms Act, 1900, 
 and Section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas by Orders of Council, dated respectively the 2nd 
 day of March, 1915, the 18th day of March, 1915, and the 15th day 
 of April, 1915, the said Proclamation was amended and added to in 
 certain particulars : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, as 
 amended and added to by the Orders of Council, dated respectively 
 the 2nd day of March, 1915, the 18th day of March, 1915, and the 
 15th day of April, 1915, should be further amended by making the 
 following amendments in and additions to the same : — 
 
 (1) That the heading " Oils, all vegetable, and fats (other than 
 
 " linseed oil, boiled and unboiled, unmixed with other 
 "oil and not including essential oils)" which was sub- 
 stituted by the Order of Council of the 18th day of 
 March, 1915, for the heading in the Proclamation of 
 "All vegetable oils (other than linseed oil, boiled and 
 " unboiled, unmixed with other oil, and not including 
 "essential oils) " in the list of goods the exporation of 
 which is prohibited to all destinations abroad other than 
 British Possessions and Protectorates, should be deleted, 
 and there be substituted therefor the heading " Oils, all 
 " vegetable, and fats (not including essential oils)." 
 
 (2) That the following article should be added to the list of goods 
 
 the exportation of which is prohibited to all foreign ports 
 in Europe and on the Mediterranean and Black Seas, 
 other than those of France, Russia (except Baltic Ports), 
 Spain, and Portugal: — 
 Binder twine. 
 
 Now, therefore, their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved. 
 
 Whereof the Commissioners of His Majesty's Customs and Excise, 
 the Director of the War Trade Department, and all other persons 
 whom it may concern, are to take notice and govern themselves 
 accordingly. 
 
 Almeric FitzRoy. 
 
EXPORTATION (PROHIBITION) ORDER. 201 
 
 ORDER IN COUNCIL UNDER SECTION 2 OF THE CUSTOMS 
 (EXPORTATION PROHIBITION) ACT, 1914 (4 & 5 GEO. 5, 
 CH. 64), VARYING THE PROCLAMATION OF 3rd 
 FEBRUARY, 1915, AS AMENDED BY ORDERS IN COUNCIL 
 OF 2nd MARCH, 18th MARCH, 15th APRIL, AND 21st 
 APRIL, 1915. 
 
 At the Council Chamber, Whitehall, the 26th day of April, 1915. 
 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by Section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under Section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by Section 2 of the Customs (Exporta- 
 tion Restriction) Act, 1914, that any Proclamation made under 
 Section one of the Exportation of Arms Act, 1900, may, whether the 
 Proclamation was made before or after the passing of the Act now 
 in recital, be varied or added to by an Order made by the Lords of 
 the Council on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under Section 8 of the Customs and Inland Revenue 
 Act, 1879, and Section one of the Exportation of Arms Act, 1900, 
 and Section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas by Orders of Council, dated respectively the 2nd 
 day of March, 1915, the 18th day of March, 1915, the 15th day of 
 April, 1915, and the 21st day of April, 1915, the said Proclamation 
 was amended and added to in certain particulars : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, as 
 amended and added to by the Orders of Council, dated respectively 
 the 2nd day of March, 1915, the 18th day of March, 1915, the 15th 
 day of April, 1915, and the 21-st day of April, 1915, should 
 be further amended by making the following amendments in and 
 additions to the same: — 
 
 (1) That the following articles should be added to the list of 
 goods the exportation of which is prohibited to all 
 destinations : — 
 
 Toluol and mixtures containing toluol. 
 
202 RECENT PROCLAMATIONS, &c. 
 
 (2) That the following articles should be added to the list of goods 
 the exportation of which is prohibited to all foreign ports 
 in Europe and on the Mediterranean and Black Seas, 
 other than those of France, Russia (except Baltic Ports), 
 Spain, and Portugal: — 
 
 Raw cotton. 
 
 Metal working machinery. 
 
 Now, therefore, their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved. 
 
 Whereof the Commissioners of His Majesty's Customs and Excise, 
 the Director of the War Trade Department, and all other persons 
 whom it may concern, are to take notice and govern" themselves 
 accordingly. 
 
 Almeric FitzRoy. 
 
 By the KING. 
 
 A Proclamation Revising the List of Articles to be Treated as 
 
 Contraband of War. 
 
 GEORGE R.I. 
 
 Whereas on the fourth day of August, 1914, We did issue Our 
 Royal Proclamation specifying the articles 1 which it was Our intention 
 to treat as contraband of war during the war between us and 
 the German Emperor; and 
 
 Whereas on the twelfth day of August, 1914, We did by Our 
 Royal Proclamation of that date extend Our Proclamation afore- 
 mentioned to the war between Us and the Emperor of Austria, King 
 of Hungary; and 
 
 Whereas on the twenty-first day of September, 1914, We did by 
 Our Royal Proclamation of that date make certain additions to the 
 list of articles 1 to be treated as contraband of war ; and 
 
 Whereas on the twenty -ninth day of October, 1914, We did by 
 Our Royal Proclamation of that date withdraw the said lists of con- 
 traband, and substitute therefor the lists contained in the schedules 
 to the said Proclamation ; and 
 
 Whereas it is expedient to make certain alterations in and addi- 
 tions to the said lists : 
 
 Now, therefore, We do hereby declare, by and with the advice of 
 Our Privy Council, that the lists of contraband contained in the 
 schedules to Our Royal Proclamation of the twenty-ninth day of 
 October aforementioned are hereby withdrawn, and that in lieu 
 thereof during the continuance of the war, or until We do give further 
 public notice, the articles enumerated in Schedule I. hereto will be 
 treated as absolute contraband, and the articles enumerated in 
 Schedule II. hereto will be treated as conditional contraband. 
 
PROCLAMATION— CONTRABAND OF WAR. 203 
 
 SOHEDULB I. 
 
 1. Arms of all kinds, including arms for sporting purposes, and 
 their distinctive component parts. 
 
 2. Projectiles, charges, and cartridges of all kinds, and their 
 distinctive component parte. 
 
 3. Powder and explosives specially prepared for use in war. 
 
 4. Ingredients of explosives, viz., nitric acid, sulphuric aoid, 
 glycerine, acetone, calcium acetate and all other metallic acetates, 
 sulphur, potassium nitrate, the fractions of the distillation products 
 of coal tar between benzol and cresol inclusive, aniline, methylani- 
 line, dimethylaniline, ammonium perchlorate, sodium perchlorate, 
 sodium chlorate, barium chlorate, ammonium nitrate, cyanamide, 
 potassium chlorate, calcium nitrate, mercury. 
 
 5. Resinous products, camphor and turpentine (oil and spirit). 
 
 6. Gun mountings, Umber boxes, limbers, military wagons, field 
 forges, and their distinctive component parts. 
 
 7. Range-finders and their distinctive component parts. 
 
 8. Clothing and equipment of a distinctively military character. 
 
 9. Saddle, draught, and pack animals suitable for use in war. 
 
 10. All kinds of harness of a distinctively military character. 
 
 11. Articles of camp equipment and their distinctive component 
 parts. 
 
 12. Armour plates. 
 
 13. Ferro alloys, including ferro-tungisten, ferro-molybdenum, 
 lerro-manganese, ferro- vanadium, ferro-chrome. 
 
 14. The following metals: — Tungsten, molybdenum, vanadium, 
 nickel, selenium cobalt, haematite pig-iron, manganese. 
 
 15. The following ores: — Wolframite, scheelite, molybdenite, 
 manganese ore, nickel ore, chrome ore, haematite iron ore, zinc ore, 
 lead ore, bauxite. 
 
 16. Aluminium, alumina and salts of aluminium. 
 
 17. Antimony, together with the sulphides and oxides of anti- 
 mony. 
 
 18. Copper, unwrought and part wrought, and copper wire. 
 
 19. Lead, pig, sheet, or pipe. 
 
 20. Barbed wire, and implements for fixing and cutting the same. 
 
 21. Warships, including boats and their distinctive component 
 parts of such a nature that they can only be used on a vessel of 
 war. 
 
 22. Submarine sound signalling apparatus. 
 
 23. Aeroplanes, airships, balloons, and aircraft of all kinds, and 
 their component parts, together with accessories and articles recognis- 
 able as intended for use in connection with balloons and aircraft. 
 
 24. Motor vehicles of all kinds and their component parts. 
 
 25. Tyres for motor vehicles and for cycles, together with articles 
 or materials especially adapted for use in the manufacture or repair 
 of tyres. 
 
 26. Rubber (including raw, waste, and reclaimed rubber) and 
 goods made wholly of rubber. 
 
 27. Iron pyrites. 
 
 28. Mineral oils and motor spirit, except lubricating oils. 
 
204 RECENT PROCLAMATIONS, &c. 
 
 29. Implements and apparatus designed exclusively for the manu- 
 facture of munitions of war, for the manufacture or repair of arms, 
 or war material for use on land and sea. 
 
 Schedule II. 
 
 1. Foodstuffs. 
 
 2. Forage and feeding stuffs for animals. 
 
 3. Clothing, fabrics for clothing, and boots and shoes suitable for 
 use in war. 
 
 4. Gold and silver in coin or bullion ; paper money. 
 
 5. Vehicles of all kinds, other than motor vehicle®, available for 
 use in war, and their component parts. 
 
 6. Vessels, craft, and boats of all kinds; floating docks, parte of 
 docks, and their component parts. 
 
 7. Railway materials, both fixed and rolling stock, and materials 
 for telegraphs, wireless telegraphs, and telephones. 
 
 8. Fuel, other than mineral oils. Lubricants. 
 
 9. Powder and explosives not specially prepared for use in war. 
 
 10. Horseshoes and shoeing materials. 
 
 11. Harness and saddlery. 
 
 12. Hides of all kinds, dry or wet; pigskins, raw or dressed; 
 leather, undressed or dressed, suitable for saddlery, harness, or 
 military boots. 
 
 13. Field glasses, telescopes, chronometers, and all kinds of 
 
 nautical instruments. 
 
 Dated 23rd December, 1914. 
 
 By the KING. 
 A PROCLAMATION 
 
 Adding to the List op Articles to be Treated as Contraband of 
 
 War. 
 GEORGE B.I. 
 
 Whereas on the twenty-third day of December, 1914, We did 
 issue Our Royal Proclamation specifying the articles which it was 
 Our intention to treat as contraband during the continuance of 
 hostilities until We did give further public notice, and 
 
 Whereas it is expedient to make certain additions to the lists con- 
 tained in the said Proclamation : 
 
 Now, therefore, We do hereby declare, by and with the advice 
 of Our Privy Council, that during the continuance of the war or 
 until We do give further public notice the following articles will be 
 treated as absolute contraband in addition to those set out in Our 
 Royal Proclamation aforementioned : — 
 
 Raw wool, wool tops and noils and woollen and worsted yarns. 
 Tin, chloride of tin, tin ore. 
 
ORDERS IN COUNCIL— BLOCKADE OF GERMANY. 205 
 
 Castor oil. 
 
 Paraffin wax. 
 
 Copper iodide. 
 
 Lubricants. 
 
 Hides of cattle, buffaloes, and horses; skins of calves, pigs, 
 
 sheep, goats, and deer; leather, undressed or dressed, 
 
 suitable for saddlery, harness, military boots, or military 
 
 clothing. 
 Ammonia and its salts whether simple or compound ; ammonia 
 
 liquor; urea, aniline, and their compounds. 
 
 And We do hereby further declare that the following articles will 
 be treated as conditional contraband in addition to those set in Our 
 Royal Proclamation aforementioned : — 
 
 Tanning substances of all kinds (including extracts for use in 
 tanning). 
 
 And We do hereby further declare that the terms ' ' foodstuffs " 
 and " feeding stuffs for animals " in the list of conditional contraband 
 contained in Our Royal Proclamation aforementioned shall be deemed 
 to include oleaginous seeds, nuts and kernels; animal and vegetable 
 oils and fats (other than linseed oil) suitable for use in the manu- 
 facture of margarine; and cakes and meals made from oleaginous 
 seeds, nuts and kernels. 
 
 Dated 11th March, 1915. 
 
 ORDER IN COUNCIL ESTABLISHING A BLOCKADE OF 
 GERMANY. 
 
 At the Court at Buckingham Palace, the 11th day of March, 1915. 
 
 Present, 
 
 The King's Most Excellent Majesty in Council. 
 
 Whereas the German Government has issued certain Orders which, 
 in violation of the usages of war, purport to declare the waters sur- 
 rounding the United Kingdom a military area, in which all British 
 and allied merchant vessels will be destroyed irrespective of the safety 
 of the lives of passengers and crew, and in which neutral shipping 
 will be exposed to similar danger in view of the uncertainties of naval 
 warfare ; 
 
 And whereas in a memorandum accompanying the said Orders 
 neutrals are warned against entrusting crews, passengers, or goods to 
 British or allied ships j 
 
 And whereas such attempts on the part of the enemy give to His 
 Majesty an unquestionable right of retaliation; 
 
 And whereas His Majesty has therefore decided to adopt further 
 measures in order to prevent commodities of any kind from reaching 
 
206 RECENT PROCLAMATIONS, &c. 
 
 or leaving Germany, though such measures will be enforced without 
 risk to neutral ships or to neutral or non-combatant life, and in strict 
 observance of the dictates of humanity; 
 
 And whereas the Allies of His Majesty are associated with Him 
 in the steps now to be announced for restricting further the com- 
 merce of Germany : 
 
 His Majesty is therefore pleased, by and with the advice of His 
 Privy Council, to order and it is hereby ordered as follows : — 
 
 I. No merchant vessel which sailed from her port of departure 
 after the 1st March, 1915, shall be allowed to proceed on, her voyage 
 to any German port. 
 
 Unless the vessel receives a pass enabling her to proceed to some 
 neutral or allied port to be named in the pass, goods on board any 
 such vessel must be discharged in a British port and placed in the 
 custody of the Marshal of the Prize Court. Goods so discharged, not 
 being contraband of war, shall, if not requisitioned for the use of 
 His Majesty, be restored by order of the Court, upon such terms 
 as the Court may in the circumstances deem to be just, to the person 
 entitled thereto. 
 
 II. No merchant vessel which sailed from any German port after 
 the 1st March, 1915, shall be allowed to proceed on her voyage 
 with any goods on board laden at such port. 
 
 All goods laden at such port must be discharged in a British 
 or allied port. Goods 1 so discharged in a British port shall be placed 
 in the custody of the Marshal of the Prize Court, and, if not requisi- 
 tioned for the use of His Majesty, shall be detained or sold under the 
 direction of the Prize Court. The proceeds of goods so sold shall be 
 paid into Court and dealt with in such manner as the Court may in 
 the circumstances deem to be just. 
 
 Provided that no proceeds of the sale of such goods shall be paid 
 out of Court until the conclusion of peace, except on the application of 
 the proper Officer of the Crown, unless it be shown that the goods 
 had become neutral property before the issue of this Order. 
 
 Provided also that nothing herein shall prevent the release of 
 neutral property laden at such enemy port on the application of the 
 proper Officer of the Crown. 
 
 III. Every merchant vessel which sailed from her port of departure 
 after the 1st March, 1915, on her way to a port other than a German 
 port, carrying goods with an enemy destination, or which are enemy 
 property, may be required to discharge such goods in a British or 
 allied port. Any goods so discharged in a British port shall be placed 
 in the custody of the Marshal of the Prize Court, and, unless they 
 are contraband of war, shall, if not requisitioned for the use of His 
 Majesty, be restored by order of the Court, upon isuch terms as the 
 Court may in the circumstances deem to be just, to the person 
 entitled thereto. 
 
 Provided that this Article shall not apply in any case falling 
 within Articles II. or IV. of this Order. 
 
 IV. Every merchant vessel which sailed from a port other than 
 a German port after the 1st March, 1915, having on board goods 
 which are of enemy origin or are enemy property may be required 
 
ORDERS IN COUNCIL— BLOCKADE OF GERMANY. 207 
 
 to discharge such goods in a British or allied port. Goods so dis- 
 charged in a British port shall be placed in the custody of the 
 Marshal of the Prize Court, and, if not requisitioned for the use of 
 His Majesty, shall be detained or sold under the direction of the 
 Prize Court. The proceeds of goods so sold shall be paid into Court 
 and dealt with in such manner as the Court may in the circumstances 
 deem to be just. 
 
 Provided that no proceeds of the sale of such goods shall be paid 
 out of Court until the conclusion of peace except on the application 
 of the proper Officer of the Crown, unless it be shown that the goods 
 had become neutral property before the issue of this Order. 
 
 Provided also that nothing herein shall prevent the release of 
 neutral property of enemy origin on the application of the proper 
 Officer of the Crown. 
 
 V. — (1) Any person claiming to be interested in, or to have 
 any claim in respect of any goods (not being contraband of war) 
 placed in the custody of the Marshal of the Prize Court under this 
 Order, or in the proceeds of such goods, may forthwith issue a writ 
 in the Prize Court against the proper Officer of the Crown and apply 
 for an order that the goods should be restored to him, or that their 
 proceeds should be paid to him, or for such other order as the cir- 
 cumstances of the case may require. 
 
 (2) The practice and procedure of the Prize Court shall, so far 
 as applicable, be followed mutatis mutandis in any proceedings conse- 
 quential upon this Order. 
 
 VI. A merchant vessel which has cleared for a neutral port from 
 a British or allied port, or which has been allowed to pass having 
 an ostensible destination to a neutral port, and proceeds to an enemy 
 port, shall, if captured on any subsequent voyage, be liable to 
 condemnation . 
 
 VII. Nothing in this Order shall be deemed to affect the liability 
 of any vessel or goods to capture or condemnation independently of 
 this Order. 
 
 VIII. Nothing in this Order shall prevent the relaxation of the 
 provisions of this Order in respect of the merchant vessels of any 
 country which declares that no commerce intended for or originating 
 in Germany or belonging to German subjects shall enjoy the protec- 
 tion of its flag. 
 
 Almeric FitzRoy. 
 
 NOTICE TO IMPORTERS AND EXPORTERS. 
 
 1. The attention of importers and exporters is directed to the 
 provisions of His Majesty's Proclamation dated the 9th September, 
 relating to Trading with the Enemy. By paragraph 5 (7) of this 
 Proclamation all persons resident, carrying on business, or being in 
 His Majesty's Dominions are warned " not directly or indirectly to 
 " supply to or for the use or benefit of, or obtain from an enemy 
 " country or an enemy any goods, wares, or merchandise, nor directly 
 
208 RECENT PROCLAMATIONS, &c. 
 
 "or indirectly to supply to or for the use or benefit of, or obtain 
 " from any person any goods, wares, or merchandise, for or by way 
 " of transmission to or from an enemy country or an enemy ; nor 
 " directly or indirectly to trade in or carry any goods, wares, or 
 " merchandise destined for or coming from an enemy country or an 
 " enemy." It is further provided by paragraph 3 that the expression 
 " enemy " in the Proclamation means " any person or body of persons 
 " of whatever nationality resident or carrying on business in the 
 " enemy country, but does not include persons of enemy nationality 
 " who are neither resident nor carrying on business in the enemy 
 " country. In the case of incorporated bodies, enemy character 
 " attaches only to those incorporated in any enemy country." 
 
 2. With a view to preventing breaches of this Proclamation it 
 is hereby notified that the Commissioners of His Majesty's! Customs 
 and Excise have been authorized by His Majesty's Government to 
 require Certificates of Origin or Declarations of Ultimate Destination 
 respectively to be presented in respect of all goods, wares, or mer- 
 chandise imported into or exported from the United Kingdom in 
 trade with any foreign place in Europe or on the Mediterranean or 
 Black Seas, with the exception of those situated in Russia, Belgium, 
 France, Spain, and Portugal. 
 
 3. Declarations of Ultimate Destination will consequently be 
 required until further notice in respect of all exports, without regard 
 to value of consignments, to all the foreign places referred to above. 
 
 4. For the present, however, Certificates of Origin will not be 
 required in respect of imports of foodstuffs, of timber of any kind 
 (including pit-props), strawboard, wood pulp, iron ore, granite, ice, 
 tar, or carbide of calcium, or in respect of any imports from places 
 other than those situated in Norway, Sweden, Denmark, Holland, 
 Switzerland, and Italy, or in respect of individual consignments not 
 exceeding £25 in value. The Certificates and Declarations referred 
 to must be in the form prescribed by the Schedules I. and II. hereto. 
 
 5. Any goods, wares, or merchandise imported from the above- 
 mentioned foreign places, except as provided in paragraph 4, un- 
 accompanied by Certificates of Origin will be detained by the Com- 
 missioners of Customs and Excise until the requisite certificates are 
 produced. The Commissioners are, however, authorized in such cases, 
 and at their discretion, to allow delivery of the goods on the security 
 of a deposit or of a bond to the amount of three times the value of 
 the goods with a view to the production of the necessary certificates 
 within a prescribed period, provided that they see no reason for sus- 
 pecting that the goods emanante from an enemy country. 
 
 6. Goods, wares, or merchandise sought to be exported to any 
 foreign places in Europe or on the Mediterranean or Black Seas, with 
 the exception of those situated in Russia, Belgium, France, Spain, 
 and Portugal will not be allowed to be shipped until Declarations of 
 Ultimate Destination in the form prescribed have been lodged with 
 the proper Customs' authority. 
 
 7. A single Declaration of Ultimate Destination may be used to 
 cover any number of consignments by the same exporter from the 
 same port by the same ship at the same time. 
 
NOTICE TO IMPORTERS AND EXPORTERS. 209 
 
 8. Declarations of Ultimate Destination must be made by the 
 actual exporter or by some responsible representative of the actual 
 exporter (or in the case of a Limited Company by a Director, Secre- 
 tary, Manager, or other responsible officer) having a personal and 
 first-hand knowledge of the enquiries made and of the facts stated 
 in the Declaration. Carrying Agents are not regarded as competent 
 to make the Declaration. 
 
 9 . The following goods will be exempt from these requirements : — 
 
 (a) Goods imported under licence; 
 
 (6) Goods shipped for the United Kingdom on or before the 
 
 19th November and hitherto exempted; 
 (c) Goods in respect of which Customs export entries have 
 
 been accepted before the publication of this Notice. 
 
 Board of Trade, 
 
 7th November, 1914. 
 
 Schedule I. 
 
 Form of Certificate of Origin. 
 
 I , hereby certify that Mr. 
 
 (Producer, Manufacturer, Merchant, Trader, etc.), residing at 
 
 in this town has declared before me that the merchandise 
 designated below, which is to be shipped from this town to , 
 
 consigned to (Merchant, Manufacturer, &c.) in the 
 
 United Kingdom, has not been produced or manufactured in enemy 
 territory, and that he has produced to my satisfaction invoices or 
 other trustworthy documents in proof thereof. 
 
 Number and 
 
 description 
 
 of cases. 
 
 Marks. 
 
 Numbers. 
 
 Weight 
 
 or 
 Quantity. 
 
 Total Value. 
 
 Contents. 
 
 This certificate is valid only for a period of not more than 
 from the date hereof. 
 
 (Signature of person declaring.) 
 
 (Signature of Consular Authority issuing Certificate, and date.) 
 
210 RECENT PROCLAMATIONS, &c. 
 
 Schedule II. 
 Form of Statutory Declaration. 
 
 I, of 
 
 do solemnly and sincerely declare as follows : — 
 
 I have made all necessary inquiries in order to satisfy myself as 
 to the ultimate destination of the goods, particulars! of which are set 
 out in the Schedule below, to be exported by me, or on my behalf, 
 on board to and consigned to 
 
 of , and do hereby declare that 
 
 to the best of my knowledge and belief none of such goods are 
 intended for consumption in, or for transit through, any State at 
 present at war with His Majesty, and I make this declaration con- 
 scientiously believing the same to be true and by virtue of the 
 Statutory Declarations Act, 1835. 
 
 Schedule. 
 
 Number and 
 
 description 
 
 of cases. 
 
 Marks. 
 
 Numbers. 
 
 Weight 
 
 or 
 
 Quantity. 
 
 Total Value. 
 
 Contents. 
 
 Declared before me this day of 
 
 (Signature of Commissioner of Oaths or Justice of the Peace.) 
 
 (Signature of Declarant.) 
 
 [Note. — This notice was varied on 26th April, 1915. See Appendix, infra, 
 and Supplement to the London Gazette of 26th April, 1915.] 
 
 EXPORT AND IMPORT LICENCES. 
 
 New Treasury Department Set Up. 
 
 The Treasury have announced that, in view of the complexity and 
 volume of work involved in dealing with applications for export and 
 import licences during the war, a Department under the Treasury, 
 to be called the War Trade Department, has been formed to replace 
 
BANKING LICENCES. 211 
 
 the Committee on Trade with the Enemy, so far as this work is 
 concerned. At the request of the Prime Minister, Lord Emmott has 
 consented to act as Director of this Department, and Sir Nathaniel 
 Highmore will be the secretary. 
 
 The War Trade Department will deal with all applications for the 
 grant of export and import licences, and will embrace an Intelligence 
 Division, which will serve as a clearing-house for all war commercial 
 information. 
 
 The remainder of the work of the Trading with the Enemy Com- 
 mittee (relating to the movements of funds and other questions in 
 which the Treasury is mainly concerned) will be transferred to the 
 Treasury, and will be performed by Sir Arthur Thring, the Parlia- 
 mentary counsel, and his staff. 
 
 Exporters and others concerned are informed that all applications 
 for licences to export prohibited and restricted goods, and all applica- 
 tions in respect thereof which have hitherto been sent to the Com- 
 missioners of Customs and Excise, should be sent to the offices of the 
 new Department, addressed as follows : — The Secretary, War Trade 
 Department, 4 Central Buildings, Westminster, London, S.W. 
 
 The forms can be obtained on application either personally or in 
 writing at this address, and arrangements are in progress for the 
 issue of the forms of application at the Custom House, London, and 
 at the offices of the Customs and Excise in certain places in the 
 country. Due notice will be given as soon as these arrangements 
 have been completed. 
 
 BANKING LICENCES. 
 
 In pursuance of the powers conferred upon them by section 2 of 
 the Proclamation relating to Trading with the Enemy, dated the 7th 
 day of January, 1915, the Lords Commissioners of His Majesty's 
 Treasury hereby permit persons, firms or companies resident, carry- 
 ing on business or being in the United Kingdom, notwithstanding 
 anything contained in section 1 of the said Proclamation to enter into 
 transactions in respect of banking business with any establishments of 
 
 the Imperial Ottoman Bank, 
 the National Bank of Turkey, 
 
 situate in France, Cyprus, or Egypt, or situate in any part of the 
 Turkish Dominions which may for the time being be occupied by the 
 forces of His Majesty or His Majesty's Allies. 
 
 This permission may be modified or revoked at any time by the 
 Lords Commissioners of His Majesty's Treasury. 
 
 T. L. Heath. 
 
APPENDIX. 
 
APPENDIX. 
 
 A.— PROOF OF WAR. 
 
 War within the British Dominions, as distinguished from war 
 outside the realm, is a fact which must be proved like any other 
 fact (In re Kok, 1879, 9 Buchanan, 62; In re Fowrie, 1900, 17 
 Buchanan, 173). The fact that the Courts are able to sit is not 
 conclusive evidence that a state of war does not exist (Ex parte 
 Marais, 1902, A.C. 109) ; and the existence of war in one part of 
 the country is no ground for the presumption of its existence in 
 other parts of the country (per Cockburn, C.J., in B. v. Nelson 
 and Brand, 1867). 
 
 B.— THE DOCTRINE OF NON-INTERCOURSE. 
 
 In Bobson v. Premier Oil and Pipe Line Company, limited, 
 and Others, reported in The Times of 7th May, 1915, Pickford, 
 L.J., in his judgment, said that the prohibition at common law of 
 intercourse with an alien enemy was not limited to commercial 
 intercourse or trading. The prohibition of intercourse was not so 
 limited by Lord Stowell in The " Hoop," 1 Ch. Rob. 196, and 
 The " Cosmopolite," 4 Ch. Rob. 8. Lord Stowell's statement of 
 the law had been followed in several English cases, and also in 
 America by Story and Kent. The English cases were reviewed in 
 The " Panariellos," 1915, 31 T.L.R. 326, in which the President 
 of the Probate, Divorce, and Admiralty Division adopted Lord 
 Stowell's view (p. 29, supra). There was no English case which 
 threw doubt upon it. It was argued that the statements of the 
 English judges were all dicta not necessary for the decision of the 
 cases in which they were made. But even on the assumption that 
 this was the case, they were dicta of such high authority that the 
 Court of Appeal would hesitate to differ from them; and the view 
 of that Court was that they were correct. The limitation sug- 
 gested in Kershaw v. Kelsey, 1869, 97 Am. Dec. 124 (pp. 28, 29, 
 supra), was not to be found in any English decision. In that case 
 Gray, J., stated the law correctly when he said that the law of 
 nations as judicially declared prohibited all intercourse between 
 citizens of two belligerents which was inconsistent with the state of 
 
 215 
 
216 APPENDIX. 
 
 war between their countries. But the Court of Appeal differed from 
 him when he held that nothing came within that principle except 
 commercial intercourse. Without deciding whether the principle 
 extended to intercourse, if such there was, which could not possibly 
 tend to detriment to this country or advantage to the enemy, the 
 opinion of the Court was that all intercourse which could tend to 
 such detriment or advantage, whether commercial or not, was incon- 
 sistent with a state of war, and therefore forbidden. 
 
 C— TRANSACTIONS WITH ENEMY BRANCH IN ENGLAND. 
 
 The judgment of Swinfen Eady, L.J., in Wolf & Sons v. Carr, 
 Parker & Co., Limited, reported in The Times of 30th April, 1915, 
 strengthens the doubt expressed on p. 25, supra, as to the extent 
 of the validity of transactions with an enemy branch establishment 
 in this country. In that case the plaintiffs appealed from a judg- 
 ment of Lawrence, J., in which he held that they were not entitled 
 to sue, as they were alien enemies. The partners in the plaintiff 
 firm were Germans, resident in Germany, and having their principal 
 place of business at Stuttgart. But they had also branches in other 
 countries, and in particular one at Independence Mills, Manchester, 
 in respect of which this action was brought. There they carried on 
 the business of cotton waste manufacturers; and they sued the 
 defendants, who were cotton waste spinners at Haslingden, to recover 
 £1342 8s. 6d., partly for goods sold and delivered, and partly as 
 damages for breach of contract. 
 
 In his judgment Swinfen Eady, L.J., said that all the contracts 
 in respect of which the action was brought were entered into before 
 the war, and either all the breaches occurred before the war or, 
 if not, there certainly had been a general refusal by the defendants 
 to accept goods on 12th September, 1914. The plaintiffs were alien 
 enemies, and prima facie would be unable to sue, unless they could 
 rely upon and bring themselves within the terms of the Proclama- 
 tions which had been issued. They relied upon the Proclamation 
 of 9th September, 1914, which was in very different terms from that 
 issued on 5th August. They said — (1) That their place of business 
 in Manchester was a branch, and that under the terms of the Procla- 
 mation, although alien enemies, they were entitled to carry on 
 business at the branch; and (2) that if they carried on business 
 there they must necessarily have the right, as part of the carrying 
 on of the business, to sue for debts arising from the carrying on of 
 it. In other words, they said that the right to trade carried with 
 it the right to sue to enforce trade debts. The fifth clause of the 
 Proclamation prohibited certain dealings with the enemy under 
 penalty of punishment, and the sixth clause provided as follows : — 
 
 " Provided always that where an enemy has a branch locally 
 " situated in British, allied, or neutral territory, not being neutral 
 
VOTES BY ENEMY SHAREHOLDERS. 217 
 
 " territory in Europe, transactions by or with, such branch shall not 
 " be treated as transactions by or with an enemy." 
 
 That was the clause upon which reliance was placed by the 
 plaintiffs. Various questions had arisen in the case, but in his 
 opinion, leaving open the question whether the business carried on 
 in Manchester constituted a branch or not within the meaning of 
 the Proclamation, and also leaving open the question whether a 
 licence to trade carried with it a licence to sue, he was satisfied 
 that there was nothing in clause 6 of the Proclamation which enabled 
 the plaintiffs to recover where otherwise, as alien enemies, they 
 would not be entitled to do eo. On the outbreak of war the con- 
 tracts between the plaintiffs and the defendants became illegal con- 
 tracts and were dissolved, and there had since then been no transac- 
 tion between the parties within the meaning of clause 6. 
 
 The plaintiffs' contention was that clause 6 enabled an enemy to 
 sue in respect of obligations entered into before the war. In his 
 opinion it did not. The plaintiffs, therefore, were not suing in respect 
 of any transaction authorised by or coming within the clause of the 
 Proclamation, and consequently were not entitled to maintain the 
 action under its provisions. The appeal must therefore be dis- 
 missed. 
 
 D.— VOTES BY ENEMY SHAREHOLDERS. 
 
 In Sobson v. Premier Oil and Pipe Line Company, Limited, 
 and Others, reported in The Times of 7th May, 1915, the Court of 
 Appeal held that the employment of a British subject as proxy to 
 exercise the voting power of an enemy was an intercourse between 
 him and the enemy which was prohibited. The plaintiff sued on 
 behalf of the shareholders in the defendant company (other than 
 such as were defendants) for a declaration that certain named 
 defendants had not been validly appointed directors. The plaintiff's 
 motion was to prevent them from acting, and the company from 
 permitting them to act, as directors until the trial. At a meeting 
 of the company's preference shareholders to elect five directors 
 the chairman had rejected votes in respect of a large block of 
 shares tendered by a proxy on behalf of a German company, the 
 Direction der Disconto-Gesellschaft. If the votes had not been re- 
 jected, five persons other than the defendants named would have 
 been elected directors. Two questions of law were raised, namely, 
 (1) whether an enemy, such as the German bank, could during war 
 exercise a right of voting in respect of shares in an English com- 
 pany, or whether that right was suspended by war ; and (2) whether, 
 if the German bank itself could not exercise the right, such right 
 could be exercised on behalf of a branch of the German bank within 
 an exception contained in Article 6 of the Trading with the Enemy 
 Proclamation, No. 2, or within a licence granted to it by the Home 
 Secretary in pursuance of the Aliens Restriction, No. 2, Order in 
 
218 APPENDIX. 
 
 Council of 10th August, 1914 (see pp. 38, 39, 40, supra). It 
 appeared that the shares referred to originally belonged partly to 
 an Austrian company in Vienna and partly to a German firm in 
 Berlin. But many months before the war they had been transferred to 
 the London branch of the Direction der Disconto-Gesellschaft to 
 secure advances made by that branch for sums far in excess of the 
 value of the shares. The proxy in respect of such shares was 
 given to one of the sub-managers of the London branch. Sargant, 
 J., held that the weight both of reason and authority was against 
 the reception of votes tendered by a proxy in this country on behalf 
 of an alien enemy; nor was the case of the German bank improved 
 by the disclosure that they were only mortgagees, and that the 
 mortgagors were two alien enemies not. carrying on business here. 
 He dismissed the motion. The Court of Appeal affirmed his judg- 
 ment. Swinfen Eady, L.J., after stating that the prohibition of 
 intercourse between citizens of the belligerents was not limited to 
 commercial intercourse, but included all intercourse, whether com- 
 mercial or not, which could tend to the detriment of this country 
 or the advantage of the enemy (see note B, supra), said that this 
 transaction had such a tendency, the proposed exercise of the votes 
 having for its purpose the obtaining control or management, or a 
 large voice in them, of a British trading company which owned large 
 property in the enemy's country. That this might be to the detri- 
 ment of the interests of this country and the advantage of the enemy 
 could not be doubted. The rejection of the votes might also be 
 justified on the narrower ground that this was a commercial trans- 
 action. Commercial intercourse wag not limited to making contracts 
 between an alien enemy and a British subject. Such a transaction 
 as this, directed to obtaining the control of a trading company, was 
 commercial. The employment of a British subject as proxy to 
 exercise the voting power of an enemy was an intercourse between 
 him and the enemy which was prohibited. Further, whatever might 
 be the proper definition of a branch or transactions with a branch 
 within the meaning of Article 6 of the Trading with the Enemy 
 Proclamation, No. 2, it was clear that this was not such a transaction 
 with a branch. Nor did the Home Secretary's licence authorise 
 such a transaction; it was not argued that it did. 
 
 E.— DEFENCES NOT PLEADABLE BY AN ENEMY. 
 
 It is no defence to an action for debt brought against an alien 
 enemy that he has paid the debt to the Treasury of his own State 
 under an ordinance confiscating debts due to British subjects (Wolff 
 v. Oxholm, 1817, 6 M. & S. 92). An alien enemy cannot plead as 
 a defence his enmity to the Government in whose Courts he is sued 
 (Dorseu v. Kyle, 1869, 96 Am. Dec. 617; Robinson & Go. v. Con- 
 tinental Insurance Company of Mannheim, [1914] W.N. 393). 
 
INDIRECT EFFECT OF WAR ON A CONTRACT. 219 
 
 F.— INDIRECT EFFECT OF WAR ON A CONTRACT. 
 
 Berthould v. Schweder & Co., reported in The Times of 29th 
 April, 1915, illustrates the indirect effect of war on a contract. In 
 that case the plaintiff claimed from the defendants, who were 
 members of the London Stock Exchange, £360 for commission pay- 
 able under an agreement made between the parties on 12th March, 
 1914. By the agreement the plaintiff agreed to act as a " half- 
 " commission man " for the defendants, and the defendants agreed 
 to pay him half commission on all business introduced by him. The 
 contract provided, inter alia (a), that the plaintiff should be entitled 
 to draw, on pay day of each settlement of the London Stock Exchange, 
 £40 minimum on account of his share of commission; (6) that the 
 agreement should remain in force until 31st December, 1914; (c) 
 that if the share of the plaintiff should not on 31st December, 1914, 
 amount to £40, he should not be considered a debtor to the de- 
 fendants, but should retain that amount in settlement of his share 
 of commission to that date. The plaintiff entered into his employ- 
 ment, and was duly paid his amount of minimum commission down 
 to the end of July, 1914, when the Stock Exchange was closed 
 because of the war. The defendants refused to pay the plaintiff 
 any further commission. The agreement did not contain any term 
 stipulating that the Stock Exchange should remain open. The Stock 
 Exchange did not re-open until 4th January, 1915. But the plaintiff 
 attended at the defendants' office until 31st December, 1914, and in 
 the circumstances claimed that the agreement in effect entitled him 
 to a salary of £80 a month whether the war was going on or not. 
 The plaintiff had bound himself to the defendants and could not go 
 elsewhere. But Ridley, J., in giving judgment for the defendants 
 with costs, said that in his opinion, upon the principles referred to 
 in Erett v. Henry, 1903, 2 K.B. 740, it was an implied term of 
 the agreement sued upon in the action that to entitle the plaintiff 
 to remuneration the Stock Exchange should remain open for business. 
 
 The recent case of Associated Portland Cement Manufacturers, 
 Limited, v. William Gory & Son, Limited, reported in The Times 
 of 15th May, 1915, illustrates the rule that a contract is not dissolved 
 because the outbreak of war makes its performance more costly or 
 difficult. 
 
 In that case the plaintiffs sued the defendants for £145 19s. 4d. 
 as damages for breach of contract or as money paid under protest. 
 
 In March, 1910, the defendants, who were shipowners, entered 
 into a contract lasting till 1916 to provide the plaintiffs, a firm of 
 cement manufacturers, with tonnage for the carriage of cement from 
 the Thames to Rosyth, the plaintiffs being under contract to supply 
 cement to the contractors to the Government for works at the Rosyth 
 naval base. When the war broke out the plaintiffs agreed to pay 
 6d. per ton extra ; but in December, 1914, the defendants said they 
 would not continue unless they received another 2s. a ton, the then 
 market rate of freight. This was paid by the plaintiffs under 
 
220 APPENDIX. 
 
 protest, and they now claimed payment of the difference as damages 
 for breach of contract. 
 
 The defendants pleaded that the contract was entered into in 
 contemplation of peace conditions and that they were absolved from 
 liability under the restraint of princes clause in the agreement; 
 and they set up the provisions of the Defence of the Realm Amend- 
 ment, No. 2, Act, 1915. 
 
 In his judgment Rowlatt, J., said that the defendants did a large 
 trade in carrying coal southwards from the Forth to the Thames, and 
 it was only on that ground that the defendants could carry the cement 
 at a freight of 2s. 2d. a ton. In December, 1914, after the war had 
 been in progress for some time, the defendants claimed that they 
 could no longer carry out the contract, and that they were discharged 
 from its obligations, or, at any rate, they said that the contract was 
 suspended. A ship was, in fact, supplied by the defendants to carry 
 cement at a higher rate, and this action was brought by the plaintiffs 
 to recover back that higher rate of freight. 
 
 The question was whether the defendants were entitled to claim 
 that the contract was suspended as a whole and not merely whether 
 they were excused from carrying a particular cargo. The defendants' 
 fleet consisted of twenty-one ships, in addition to seven ships under 
 permanent charter. There had been since the war a considerable 
 requisitioning of ships by the Government. At one time as much 
 as one-half of the defendants' tonnage was requisitioned. It was 
 not that half of the ships which carried cement were requisitioned, 
 because many of the defendants' ships were too big for this trade. 
 The defendants pointed out that that did not make much difference 
 to them ; because although the coal ships which carried the cement 
 were not taken, yet other ships of the defendants were taken, and 
 that threw a greater strain upon the ships which carried the cement. 
 Further, some of the ships which the defendants chartered were 
 requisitioned while in their hands. The supply of tonnage was 
 scarce and freights were high. 
 
 The fact that the defendants carried coal from the Forth to 
 London was an important element in inducing them to enter into this 
 contract. The places from which they usually carried the coal — 
 namely, Bo'ness and Grangemouth — had been closed ; that led to a 
 congestion at the ports where coal could be loaded, and that caused 
 loss of time on the voyage. The third fact was that numerous 
 restrictions had been placed upon ships going from the Thames to 
 the Forth. Ships had to anchor at night between Southend and the 
 Sunk Head light-buoy. Further, ships could not use the accustomed 
 channels, and lights were often extinguished. There was also delay 
 in the Forth because vessels had to be examined, and on two occasions 
 vessels were not allowed to pass under the Forth Bridge. These 
 delays added some four days to the time usually occupied on the 
 voyage. 
 
 Finally, there was the danger attending the voyage. It was 
 generally known that there were great dangers, every one employed 
 in the trade being paid 25s a week war bonus. The defendants' 
 ships, after this dispute, very largely went this voyage, notwith- 
 
INDIRECT EFFECT OF WAR ON A CONTRACT. 221 
 
 standing these difficulties, without the cement, and brought back coal 
 in very many instances. 
 
 The defendants contended that upon these facts they were dis- 
 charged from their obligation by reason of the exception of restraint 
 of princes. 
 
 No doubt the defendants had been seriously hampered in their 
 supply of ships by the action of the Government, but it seemed to 
 him (the learned judge) that the exception of restraint of princes 
 meant something more than that. It must be shown that the action 
 of the Government had prevented the voyage from being made at all, 
 and that was not shown by proving that the Government had requisi- 
 tioned some of the defendants' ships or made it more difficult for the 
 ships to proceed upon the voyage. 
 
 The defendants further relied upon Taylor v. Caldwell, 3 B. & S. 
 826, and Krell v. Henry, 1903, 2 K.B. 740. But the rule in Taylor 
 v. Caldwell applied when the specific thing, the existence of which 
 lay at the foundation of the contract, no longer continued to exist. 
 Krell v. Henry decided that it was necessary to look at the surround- 
 ing circumstances to see what was the foundation of the contract. 
 He (the learned judge) had been asked to say that the return coal 
 trade lay at the root of the contract to carry cement from the Thames 
 to the Forth. It was sufficient to state the contention to show that 
 it was not so. No doubt the defendants were willing to enter into 
 the contract at a cheap rate, because the shipsi were carrying coal on 
 the return voyage, but that was not sufficient to show that that coal 
 trade lay at the root of the contract as between the plaintiffs and the 
 defendants. 
 
 The next question for consideration was whether the parties had 
 impliedly stipulated that the contract was made on the understanding 
 that there would be peace, and that they were therefore released by 
 the requisition of the Government, restraints of princes, and dangers 
 of navigation. Contracts were made every day contingent upon there 
 being no war. The parties in this case, however, did not do that ; they 
 evidently did not contemplate when they made the six years' forward 
 contract that there would be war, but he could not say that they con- 
 tracted on the basis that there would be peace, and therefore he did 
 not think the defendants had made good this ground for suspending 
 the contract. 
 
 The last contention of the defendants was that they*were justified 
 in suspending the contract by reason of section 1, sub-section 2, of 
 the Defence of the Realm (Amendment, No. 2) Act, 1915, which 
 provided that " where the fulfilment by any person of any contract 
 " is interfered with by the necessity on the part of himself or any 
 " other person of complying with any requirement, regulation, or 
 " restriction of the Admiralty . . . that necessity i® a good 
 " defence to any action or proceedings taken against that person in 
 " respect of the non-fulfilment of the contract so far as it is due to 
 "that interference . ' ' 
 
 It had been argued that the section was merely declaratory of the 
 common law. He (the learned judge), however, could not agree with 
 that narrow construction of the section. It seemed to him that the 
 
222 APPENDIX. 
 
 8ection introduced a statutory exception, and that it applied wherever 
 it could be shown that the Government had interfered with the carry- 
 ing out of a contract. He agreed, however, that the section afforded 
 no protection to the defendants in the present case. 
 
 The question was whether the whole contract was suspended, and 
 before he could say that he must find that the whole contract was 
 incapable of fulfilment owing to the Government's interference. He 
 could not hold that the section came into operation when as a fact 
 the defendants' ships did proceed to the Forth, although not carrying 
 the plaintiffs' cement. The section did not relieve the defendants 
 from their obligation to carry out their contract as a whole. There 
 would therefore be judgment for the plaintiffs. 
 
 G.— EXPORT OF COAL PROHIBITED. 
 An Order in Council of 6th May, 1915, provides — 
 
 (1) That on and after May 13 " anthracite " shall be deleted 
 from the list of goods the exportation of which is prohibited to 
 all foreign ports in Europe and on the Mediterranean and Black 
 Seas, other than those of France, Russia (except Baltic Ports), Spain, 
 and Portugal. 
 
 (2) That on and after May 13 the exportation of " coal (includ- 
 " ing anthracite and steam, gas, household, and all other kinds of 
 coal) and coke " be prohibited to all destinations abroad other than 
 British Possessions and Protectorates and Allied Countries. 
 
 H.— MODIFIED RULES FOR IMPORTS AND EXPORTS. 
 
 In a Supplement to the London Gazette, published on 26th April, 
 1915, the Board of Trade have issued a notice to importers and 
 exporters modifying in some respects previous notices. 
 
 It is now notified that importers may be required to produce 
 certificates of origin, issued by His Majesty's consular officers, and 
 exporters to make declarations of the ultimate destination of their 
 goods. Statutory declarations hitherto made before justices of the 
 peace or commissioners of oaths will no longer be required. 
 
 For the present, the notice goes on, certificates of origin will not 
 be required in respect of imports of the bona fide personal and house- 
 hold effects of persons entering this country, of foodstuffs, of timber 
 of any kind and of other articles mentioned, or in respect of any 
 imports from places other than those situated in Norway, Sweden, 
 Denmark, Holland, Switzerland, and Italy, or in respect of goods 
 imported from an allied country by way of a neutral country on a 
 
TREASURY EMBARGO ON CAPITAL ISSUES. 223 
 
 through bill of lading or by through postal parcel or in respect of 
 goods of enemy origin imported under licence. 
 
 The notice is to take effect as from May 3, 1915. 
 
 I.— TEEASURY EMBARGO ON CAPITAL ISSUES. 
 
 m 
 On 18th January, 1915, the Treasury issued a notice to the effect 
 that in the present crisis all other considerations must be subordinated 
 to the paramount necessity of husbanding the financial resources of 
 the country with a view to the successful prosecution of the war. 
 Accordingly the Treasury wished it to be understood that until further 
 notice it felt it imperative in the national interest that fresh issues of 
 capital should be approved by the Treasury before they were made. 
 Treasury approval would be governed by the following general 
 conditions : — 
 
 (1) Issues 1 for undertakings carried on or to be carried on in the 
 
 United Kingdom would only be allowed where it was shown 
 to the satisfaction of the Treasury that they were advisable 
 in the national interest. 
 
 (2) Issues or participations in issues for undertakings carried on 
 
 or to be carried on in the British Empire overseas would 
 only be allowed where it was shown to the satisfaction of 
 the Treasury that urgent necessity and special circum- 
 stances existed. 
 
 (3) Issues or participations in issues for undertakings carried on 
 
 or to be carried on outside the British Empire would not 
 be allowed. 
 
 (4) The Treasury would not in ordinary cases insist upon the 
 
 above restrictions where issues were required for the 
 renewal of Treasury bills or other short instruments held 
 here and falling due of foreign or colonial Governments 
 or municipal corporations or railways or other under- 
 takings. 
 
 AH applications should be made in the first instance to the 
 Treasury. 
 
 The Treasury are not prepared to approve any dealings on the 
 Stock Exchange in new issues which have not been approved by the 
 Treasury before they are made. 
 
 J.— THE MORATORIUM AND INTEREST ON BANK DEPOSITS. 
 
 The case of /. & P. Coats, Limited, v. Direction der Discowto- 
 Gesellschaft, reported in The Times of 18th May, 1915, raised the 
 question as to the interest payable on deposits with banks, which 
 became subject to the moratorium,. It also shows incidentally that 
 alien enemies' in this country can avail themselves of the moratorium. 
 
224 APPENDIX. 
 
 On 25th July, 1914, the plaintiffs deposited with the defendants 
 £50,000, to be repayable on 14th August, 1914, with interest at 
 3£ per cent, per annum; and on 28th July, 1914, they deposited 
 £30,000 on the same terms. On 14th August, 1914, demand was 
 made for repayment; but repayment of the principal sums was not 
 made until 31st October, 1914. Interest was paid by the bank on 
 the two sums, at the rates fixed by the deposit notes, up to 14th 
 August, 1914. The plaintiff# claimed that they were entitled to 
 interest from 14th August, 1914, to 31st October, 1914, at the rate of 
 6 per cent, per annum, as fixed by the terms of the Proclamations ; 
 while the defendants contended that they were only liable to pay 
 interest for that period at the rate fixed by the deposit notes, which 
 they paid. The plaintiffs sued for the difference between the two 
 sums. 
 
 In his judgment Bailhaehe, J., said that these deposits fell within 
 the class of payments to which the Proclamation applied ; and it pro- 
 vided that payments postponed thereunder should, " if not other- 
 " wise carrying interest, and if specific demand were made for pay- 
 " ment, and payment was refused, carry interest, until payment at 
 " the Bank of England rate current on August 7, 1914." It was 
 these words, " if not otherwise carrying interest," that gave rise to 
 the contest between the two parties. The bank said that this was 
 a debt which carried interest at the rate according to the contract 
 under which the money was deposited, and that this rate was not 
 affected by the moratorium. On the other hand, the plaintiffs said 
 that the debt carried interest at the agreed rate to August 14, and 
 afterwards, when demand was made, the debt came under the pro- 
 visions of the moratorium, as to the rate of interest it prescribed. 
 
 The argument for the plaintiffs came to this — that the words 
 " if not otherwise carrying interest " must be read as if they were 
 " when not otherwise carrying interest "; so that when the agreed 
 interest ceased to operate after August 14, then the rate fixed by 
 the moratorium came into effect. It was further argued that if the 
 plaintiffs were not entitled to the rate fixed by the Proclamation, and 
 since they were no longer entitled to the agreed rate, they would 
 not be entitled to any interest at all. 
 
 But this was not the true construction of the Proclamation. At 
 the time of the issue of the Proclamation the deposits were carrying 
 interest otherwise than by virtue of the Proclamation — that was, by 
 reason of the contract contained in the deposit notes. It was quite 
 true that if, in ordinary times, payment had been demanded on 
 August 14 and then refused, the contractual rate of interest would 
 have ceased, and if an action had been brought against the bank it 
 would not have been open to the bank to say that the contractual 
 rate was still running, and the plaintiffs would have been entitled 
 to a higher rate. At the same time, if these deposits, though only 
 providing in terms for interest to August 14, had been left with the 
 bank, the contractual rate would have continued to run. 
 
 The Proclamation meant this — where at the time of its issue there 
 was a debt which was, by agreement between the parties, carrying 
 
LATEST EXPORTATION (PROHIBITION) ORDER. 225 
 
 interest, the Proclamation, while not interfering with the contractual 
 rate of interest, but allowing that to run, postponed the date of pay- 
 ment fixed by the contract. Where the parties had no agreement 
 at all, they were to be paid the bank rate. The result was that a 
 person who had made an agreement for interest on deposits might be 
 in a worse position than one who had not. But that was the con- 
 clusion to which he (the learned judge) had come. The defendants, 
 by virtue of the Proclamation, and the terms of the deposit notes, 
 were bound only to pay the rate fixed by agreement, and not the 
 bank rate. There would, therefore, be judgment for the defendants, 
 with costs. 
 
 K.— LATEST EXPORTATION (PROHIBITION) ORDER IN 
 COUNCIL. 
 
 At the Council Chamber, Whitehall, the 20th day of May, 1915. 
 
 By the Lords of His Majesty's Most Honourable Privy Council. 
 
 Whereas it is provided by section 2 of the Customs (Exportation 
 Prohibition) Act, 1914, that any Proclamation or Order in Council 
 made under section 8 of the Customs and Inland Revenue Act, 1879, 
 as amended by the Act now in recital, may, whilst a state of war 
 exists, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas it is provided by section 2 of the Customs (Exportation 
 Restriction) Act, 1914, that any Proclamation made under section 
 one of the Exportation of Arms Act, 1900, may, whether the Pro- 
 clamation was made before or after the passing of the Act now in 
 recital, be varied or added to by an Order made by the Lords of the 
 Council on the recommendation of the Board of Trade : 
 
 And whereas by a Proclamation, dated the 3rd day of February, 
 1915, and made under section 8 of the Customs and Inland Revenue 
 Act, 1879, and section one of the Exportation of Arms Act, 1900, 
 and section one of the Customs (Exportation Prohibition) Act, 1914, 
 the exportation from the United Kingdom of certain Warlike Stores 
 was prohibited : 
 
 And whereas by subsequent Orders of Council the said Proclama- 
 tion was amended and added to in certain particulars : 
 
 And whereas there was this day read at the Board a recommenda- 
 tion from the Board of Trade to the following effect : — 
 
 That the Proclamation, dated the 3rd day of February, 1915, as 
 amended and added to by subsequent Orders of Council, should be 
 further amended by making the following amendments in and addi- 
 tions to the same : — 
 
 (1) That the following article should be added to the list of goods 
 the exportation of which is prohibited to all destinations : — 
 
 Coal Tar, crude. 
 
 (2) That the heading " The compounds of aniline, except aniline 
 Q 
 
226 APPENDIX. 
 
 " salt " (which goods are prohibited to be exported to all destinations 
 under the heading " Coal tar products for use in dye manufacture, 
 " including aniline oil and aniline salt " in the aforesaid Proclama- 
 tion) included by the Order of Council of the 18th day of March, 
 1915, in the list of goods the exportation of which is prohibited to 
 all destinations abroad other than British Possessions and Pro- 
 tectorates, should be deleted. 
 
 (3) That the following articles should be added to the list of goods 
 the exportation of which is prohibited to all destinations abroad other 
 than British Possessions and Protectorates : — 
 
 Chemicals, drugs, Medicinal and Pharmaceutical preparations : — 
 
 Magnesium Chloride, 
 Oxides and salts of cobalt, 
 Oxalic acid, 
 Phosphorus. 
 
 Manufactures of Aluminium. 
 
 Maps and plans of any place within the territory of any 
 belligerent, or within the area of the military operations, 
 on a scale of four inches to the mile or on any larger scale, 
 or reproductions on any scale by photography or otherwise of 
 such maps or plans. 
 
 (i) That the heading " India-rubber, sheet, vulcanised " (which 
 goods are prohibited to be exported to all destinations abroad other 
 than British Possessions and Protectorates in virtue of the Order of 
 Council of the 18th day of March, 1915) in the list of goods the 
 exportation of which is prohibited to all foreign ports in Europe and 
 on the Mediterranean and Black Seas, other than those of France, 
 Russia (except Baltic ports), Belgium, Spain and Portugal, should 
 be deleted. 
 
 (5) That the following articles should be added to the list of goods 
 the exportation of which is prohibited to all foreign ports in Europe 
 and on the Mediterranean and Black Seas, other than those of France, 
 Russia (except Baltic ports), Spain and Portugal: — 
 
 Lignum vitse, 
 
 Rice and Rice Flour. 
 
 Now, therefore, Their Lordships, having taken the said recom- 
 mendation into consideration, are pleased to order, and it is hereby 
 ordered, that the same be approved. 
 
 Whereof the Commissioners of His Majesty's Customs and Excise, 
 the Director of the War Trade Department, and all other persons 
 whom it may concern, are to take notice and govern themselves 
 accordingly. 
 
 Aimer ic FitzRoy. 
 
COUNTY COURT RULE FOR CERTIFICATES. 227 
 
 -COUNTY COURT RULE AS TO APPLICATIONS FOR CER- 
 TIFICATES UNDER THE ARMY ACT, 1881, SECTION 115, 
 SUB-SECTION 4, AND THE ACTS AMENDING THE SAME, 
 AND THE NAVAL BILLETING, &c, ACT, 1914. 
 
 ORDER L. 
 
 Proceedings under Acts conferring Jurisdiction on the Courts. 
 
 Order L, Rule 14, and Order L, Rule 59 (dated the 22nd day of 
 March, 1915) are hereby annulled, and the following Rule shall 
 stand as Order L, Rule 14: — 
 
 The Army Act, 1881, 44 & 45 Vict. c. 58, sec. 115, and the Acts 
 amending the same. The Naval Billeting, &c, Act, 1914. 
 
 (1.) An application to a judge for a certificate under sub-section 
 4 of section 115 of the Army Act, 1881, and the Acts amending and 
 extending the same (herein referred to as the Act), fixing the amount 
 of payment for any carriage, animal, vessel, or aircraft, may be 
 made to any judge mentioned in the said siub-section in accordance 
 with the provisions of this rule. 
 
 (2.) The application may be made either in or out of Court on 
 notice in writing according to the form in the Appendix, which shall be 
 served on the opposite party ten clear days at least before the hearing 
 of the application, unless the judge or registrar gives leave for 
 shorter notice. 
 
 (3.) Service of notice of the application may be effected in accord- 
 ance with Order LIV., Rules 2 and 3. 
 
 (4.) Where the notice of the application ia to be served on the 
 Army Council, it may be served on the Permanent Secretary to the 
 War Office or on the Solicitor to the Treasury. 
 
 (5.) No affidavit in support shall be used, except by leave of the 
 judge, but the judge shall hear oral evidence tendered by either 
 party. 
 
 (6.) On the hearing of the application, or at any adjournment 
 thereof, the judge shall fix the amount in accordance with the said 
 sub-section, and shall specify the amount in a certificate which shall 
 be signed in duplicate and sent to the parties; but no order directing 
 payment shall be inserted in the certificate except in the cases men- 
 tioned in the next following paragraph and in paragraph 5 of the Sixth 
 Schedule to the Act. 
 
 (7.) If the judge orders any sum to be paid by way of costs to the 
 Army Council, pursuant to paragraph 4 of the Sixth Schedule to the 
 Act, and such sum exceeds the amount payable by the Army Council 
 as the value of the article requisitioned, the judge shall certify the 
 amount of the excess, and shall order the amount so certified to be 
 
228 APPENDIX. 
 
 paid to the Army Council, and the order shall be enforceable in 
 like manner as a judgment of the County Court. 
 
 (8.) Subject to the provisions of the Act and this Kule, the 
 practice and procedure of the Court in an action, and in particular 
 the practice and procedure with respect to the summoning of wit- 
 nesses, and with respect to discovery and inspection of documents, 
 shall, with the necessary modifications, apply to proceedings on an 
 application for a certificate. 
 
 (9.) This Rule shall apply to cases in which the provisions of the 
 Act are by the Naval Billeting, &c, Act, 1914, extended to the im- 
 pressment of any carriage, animal, vessel, or aircraft for the purposes 
 of any naval forces ; and in any such case the words " the Admiralty" 
 shal} be substituted for the words " the Army Council " or " the 
 " War Office," wherever they occur in this Rule or in the form in 
 the Appendix. 
 
 Appendix. 
 
 453. 
 
 Notice of Application fob Certificate under the Armt Act, 1881, 
 44 & 45 Vict. c. 58, sec. 115, and the Acts amending and 
 extending the same. 
 
 In the County Court of , holden at 
 
 The Army Act, 1881, sec. 115, and the Actsi amending and 
 extending the same. 
 
 Between 
 A. B. 
 {address and description) 
 
 Applicant, 
 and 
 The Army Council Respondents. 
 
 (or as the case may be.) 
 Take Notice — 
 
 That , of , intends, to apply 
 
 to the Judge at {state where application is to be made) 
 
 on the day of , 
 
 at the hour of in the noon, for a certificate 
 
 fixing the amount of payment for a certain carriage [animal, vessel, 
 or aircraft {as the case may be)] furnished in pursuance of the Army 
 Act, 1881, section 115, and the Acts amending and extending the 
 
 Dated this day of 
 
 {Signed) 
 
 Applicant. 
 [or Solicitor for the Applicant.] 
 
 To the Registrar of the Court and to the 
 Army Council {or as the case may be.] 
 
GAENISHEE ORDERS DURING WAR. 229 
 
 Submitted to the Lord Chancellor by the County Court Kules 
 Committee. 
 
 (Signed) Wm. L. Selfe. 
 W. G. Smyly. 
 Robert Woodfall, 
 T. G. Granger. 
 H. Tindal Atkinson. 
 
 Approved by the Eules Committee of the Supreme Court. 
 
 (Signed) Kenneth Muir Mackenzie, 
 
 Secretary. 
 
 I allow this Rule, which shall come into operation forthwith. 
 
 The 19th day of May, 1915. 
 
 (Signed) Haldane, C. 
 
 M.— GARNISHEE ORDERS AND THE COURTS (EMERGENCY 
 POWERS) ACT, 1914. 
 
 In Keats v. Connolly, 1915, W.N. 174, the Court of Appeal, 
 affirming the judgment of Scrutton, J., held that there was no need 
 to obtain leave to issue a garnishee order nisi. Merely to obtain 
 such an order was not " to proceed to execution on or otherwise to 
 " the enforcement of " a judgment within the meaning of section 1 (1) 
 of the Courts (Emergency Powers) Act, 1914. Leave will, however, 
 be necessary when the order is made absolute. But this decision has 
 left open the important question whether the judgment debtor is 
 entitled to be heard at all. It may inconvenience the judgment 
 debtor if the debt is not paid to him. But Bankes, L.J., pointed out 
 that the Act does not protect against inconvenience of this kind. 
 The Act is intended to protect people who have to make a payment, 
 but whose means of doing so have been diminished by the war. 
 
 N.— RULE, DATED 13th MARCH, 1915, MADE BY THE LORD 
 CHANCELLOR UNDER THE TRADING WITH THE ENEMY 
 AMENDMENT ACT, 1914 (5 GEO. V. c. 12), AS TO LODG- 
 MENT OF MONEY IN COURT. 
 
 When, under the Trading with the Enemy (Suspected Coupons) 
 Rules, 1915, a suspecting presentee desires to lodge in Court money 
 due in respect of suspected coupons, he shall annex to the prescribed 
 
230 NEW SUSPECTED COUPONS RULE. 
 
 affidavit a schedule (an office copy of -which shall be left at the pay 
 office) setting forth — 
 
 (a) his own name and address, 
 
 (6) the ledger credit, intituled in the matter of the suspected 
 coupons (describing them so as to be distinguishable so far 
 as may be) to which the funds are to be placed in the pay 
 office books, 
 (c) the amount to be lodged, 
 and, 
 
 if investment of the money be desired in securities available for 
 the investment of cash under the control of the Court, a statement 
 accurately describing the security or securities selected for such 
 investment. 
 
 In the absence of such a statement, the money will be 
 placed on deposit. 
 
 This rule shall (nothwithstanding anything contained in the 
 Supreme Court Funds Rules to the contrary) authorise the paymaster 
 to invest such money in accordance with such statement. 
 
 Baldane, C. 
 
 We certify that this rule is made with the concurrence of the 
 Commissioners of His Majesty's Treasury. 
 
 Cecil Beck. 
 Walter E. Rea. 
 Dated March 13, 1915. 
 
 0.— ADDITIONS TO LIST OF ABSOLUTE CONTRABAND. 
 
 A Royal Proclamation of 27th May, 1915, addsi the following to 
 the list of articles which will be treated as absolute contraband : — 
 
 Toluol, and mixtures of toluol, whether derived from coal tar, 
 petroleum, or any other source; 
 
 Lathes and other machines or machine tools capable of being 
 employed in the manufacture of munitions of war ; 
 
 Maps and plans of any place within the territory of any belligerent, 
 or within the area of military operations, on a scale of four miles to 
 one inch or on any larger scale, and reproductions on any scale by 
 photography or otherwise of such maps or plans. 
 
 In addition, " and all other metallic acetates " after the words 
 " calcium acetate " are deleted from the list of articles made absolute 
 contraband by the Proclamation of December 23, 1914; and linseed 
 oil is henceforth to be treated as conditional contraband. 
 
INDEX. 
 
PAGE 
 
 INDEX. 
 
 Act of Sederunt under the Trading with the Enemy 
 (Amendment) Act, 1914— 
 
 Court to which application to be made, - 177 
 
 fee fund dues, 177 
 
 form of consignation receipt, 177 
 
 procedure by petition, 177 
 
 where unnecessary to print or box papers, 177 
 
 Actions by and against Alien Enemies— 
 
 See Proceedings bt and against Alien Enemies. 
 
 Advocate— 
 
 See Counsel. 
 Affreightment, Contract of— 
 
 dangers and difficulties owing to war no excuse for breach 
 
 of, 219-222 
 
 deviation or delay owing to war, 73 
 
 effect of war on contracts of, 46, 72, 73, 75, 219 et seq. 
 
 excepted from the moratorium, - 88 
 
 liability of shipowner for damages for delay caused 
 
 by trading with the enemy, 35 
 
 liability of shippers or consignees for freight to neutral 
 
 carrier of goods to or from enemy country, 37 
 
 repudiation of charter party, because intended to run 
 
 blockade or carry contraband, 37 
 
 where allowance made for freight in respect of enemy 
 
 goods, 75 
 
 Agency- 
 actions by agents for enemy principals, 48 
 as affected by war, 46, 47, 48 
 attorney and client, "- 48 
 general, 47 
 insurance, 51 
 payments to enemy agents, 31, 45, 47, 48 
 special, - 47 
 
 233 
 
234 INDEX. 
 
 Alien Enemy— page 
 
 a co-plaintiff, 64, 124-126 
 
 bankruptcy of, 67 
 
 cannot plead his own enmity as a defence, 218 
 
 cannot set up payment to Treasury of his own State, 
 
 when sued for debt here, - 56, 218 
 
 categories of, 8 
 
 contracts made with, during war, 20 et seq. 
 
 contractual capacity of British wife of, - 26 
 
 definition of, 7,8 
 
 effect of assignments of debts and choses in action by, 53 
 
 example of special licence to, 38-40 
 
 executed contracts made with, before war, 44, 45 
 
 executory contracts made with, before war, 45 et seq. 
 
 meaning of, 7, 8, 30-31, 59 
 
 legal position of, when domiciled in British, allied, or 
 
 neutral territory, 24-26, 41-43, 110-111, 122-124, 126 et seq. 
 restrictions on carrying on banking here, 38-40, 42 
 
 right to appeal, -64, 126 etseq., 131, 132 
 
 right to defend, 64, 126 et seq., 131 
 
 right to sue, 26, 41-43, 63, 64, 122-124, 126 et seq., 129 
 
 self -redress by, 27, 44 
 
 transfers of negotiable instruments by, 53 
 
 Alien Friends- 
 certain Turkish subjects regarded as, 8, 9 
 rights of, 128 
 
 Aliens Restriction Act, 1914— 
 
 effect of compliance with Orders under, 26, 42-43, 122-124, 129 
 
 Aliens Restriction (Consolidation) Order, 1914— 
 
 compliance with requirements gives enemy title to sue, 
 
 26, 42-43, 122-124, 129 
 
 Appeal, Right of— 
 
 of alien enemy, -64, 126 etseq., 131, 132 
 
 under Courts (Emergency Powers) Act, 1914, 99-100, 139-141 
 
 Arbitration- 
 effect of war on contract containing usual clause, - 84 
 
INDEX. 235 
 
 Armenians— PAG e 
 
 legal position of, - 8, 9 
 
 Army Act, 1881— 
 
 County Court Rule as to applications for certificates under 
 
 section 115, - 154-156, 227-229 
 
 Assignments by Alien Enemy- 
 invalidity of, of personal property, 57-58, 62-63 
 
 Attorney — 
 
 power of, not necessarily revoked by war, 48 
 
 relation of client and, generally terminated by war, 48 
 
 Austria-Hungary— 
 
 declaration of war with, 
 
 Bailments- 
 war and, 84 
 
 Bank Notes— 
 
 of Scottish, and Irish banks legal tender, 103 
 
 Banking Business- 
 example of special licence to enemy banks in this country, 38-40 
 licences for transactions with certain Turkish banks, 211 
 
 moratorium and interest on bank deposits, 223 et seq. 
 
 restrictions as to alien enemies here carrying on, 38-40, 42 
 
 with enemy outside United Kingdom forbidden, 30-31, 181-182 
 
 Bankruptcy — 
 
 admission of alien enemy's claim, but payment of dividend 
 
 reserved, - - 44 
 
 debt within moratorium valid to found petition for, 87, 135 
 
 emergency powers of Court as to, 100 
 
 of alien enemy, 67 
 
 petition for, requires no leave of the Court, 100, 142 
 
236 INDEX. 
 
 Bills of Exchange— page 
 
 granted by prisoners of war for necessaries, 32, 33 
 
 indorsee an alien enemy in enemy territory, 52, 53 
 
 indorsee an alien enemy residing here, 16 
 
 indorsee a British subject resident in enemy territory, 21 
 
 moratory law as to, 86-87, 89, 90, 91, 92 
 
 prohibitions during present war in reference to, 31, 34 
 
 recent statutory provisions as to delay in presentment 
 
 and bills lost owing to present war, 85 
 
 rights of a British, allied, or neutral holder in due course, 
 
 21,31,33,52-53 
 statutory provisions as to transfers by an enemy of, 53 
 
 taken by indorsees after notice of a state of war, 21 
 
 where a bona fide transaction is not trading with the 
 
 enemy, 31,33,52-53 
 
 Bills of Exchange Act, 1914— 
 
 delay in presentment for payment excused, if due to war, 85 
 
 duration of Act, 85 
 
 provision as to bills of exchange lost owing to war, 85 
 
 Bills of Lading— 
 
 See Affreightment. 
 
 Bills (Re-acceptance) Proclamation- 
 provisions of, 86-87 
 And see Moratorium. 
 
 Blockade- 
 not illegal to run a, where Great Britain neutral, 37 
 of Germany, 205-207 
 pacific, distinguished from wax, 3, 4 
 repudiation of contract on ground of, - 37 
 
 Branches- 
 banking, of enemy outside United Kingdom, 25, 30 
 insurance, of enemy, 25, 30, 50, 51, 117 
 mere agencies not, 25 
 transactions with enemy, 24, 25, 30, 31, 50, 51, 216-217 
 
INDEX. 
 
 237 
 
 British Ships (Transfer Restriction) Act, 1915— PA oe 
 
 text of, - 156-157 
 
 Capital- 
 approval of Treasury necessary for fresh issues of, 
 conditions of such approval, 
 
 223 
 223 
 
 Charter-Party— 
 
 See Affreightment. 
 
 C.I.F. Contracts- 
 effect of war on, 
 not within moratorium, 
 
 72, 73, 118 
 88, 135 
 
 Coal- 
 
 export of, prohibited, 
 
 222 
 
 Commercial Intercourse- 
 forbidden with enemy, 
 not limited to contracts, 
 
 20, 21, 28, 29 
 218 
 
 Commission, Agreement for— 
 
 effect of war on, 
 
 219 
 
 Companies — 
 
 See Corporations. 
 
 Consul — 
 
 of neutral State in enemy country acquires enemy char- 
 acter by trading therein, - - 15-16 
 
 Continuous Voyage— 
 
 doctrine of, 
 
 34-35 
 
 Contraband- 
 absolute, 
 
 conditional, 
 
 doctrine of continuous voyage, 
 
 list of, 
 
 not illegal to trade in, if Great Britain be neutral, 
 repudiation of contract on ground of carrying, 
 
 202-204, 205, 230 
 
 204, 205, 230 
 
 34-35 
 
 203-205, 230 
 
 37 
 
 37 
 

 
 PAGE 
 
 219 
 
 et 
 
 seg. 
 6-7 
 
 
 20, 
 
 , 21 
 
 21 
 
 et 
 
 seg. 
 
 - 
 
 22 ; 
 
 , 23 
 21 
 
 238 INDEX 
 
 Contracts- 
 indirect effect of war upon, 
 varying effect of war upon, 
 
 Contracts with Alien Enemies— 
 
 A. made during war, generally illegal and void, 
 
 exceptions to this rule, 
 
 (1) contracts of necessity of prisoners of war, 
 
 (2) licensed contracts, 
 
 (3) possible exception of contracts not of a com- 
 
 mercial or financial nature, 28-9, 215-216 
 
 (4) ransom contracts (formerly), 22 
 
 (5) where enemy domiciled in British, allied, or 
 
 neutral territory, 24-27 
 
 B. made and executed before war, generally suspended 
 
 only, - 44, 45 
 
 C. made before war and executory, general rules, - 45, 46 
 particular contracts, 46-60 
 See Affreightment, Agency, Insurance, Leases, Mortgages, 
 
 Negotiable Instruments, Partnership, Shares, and 
 Debentures. 
 
 Contracts with Persons not Enemies- 
 cases on effect of war upon, 118-121, 219-222 
 general effect of war on, 72 et seg. 
 provisions as to war in, -74, 119-120 
 statutory defence, 80, 220, 221, 222 
 war may make such illegal, 72-76 
 war may render performance impossible, 76 et seg. 
 where parties did not contemplate risks of war, 72, 83, 120-121 
 See Impossibility of Performance, Illegality. 
 
 Corporations- 
 acquisition of enemy character by commercial domicile, 18 
 effect of supplementary incorporation, 18 
 enemy debenture holders, 55-56 
 enemy directors, 56 
 enemy shareholders, .55 56 
 test of nationality of, 17, 18, 107-110 
 transfers of interests in, by enemy, 57-58 
 votes by enemy shareholders, 217-218 
 
INDEX. 239 
 
 Cotton- 
 
 PAGE 
 
 export of, prohibited, 202 
 
 Counsel- 
 alien enemy can defend by, 64 
 
 County Court Rule as to Applications for Certificates 
 under Army Act, 1881, section 115, and amend- 
 ment Acts— 
 
 application to be made by notice in writing, 155, 227 
 
 costs, 227-228 
 
 form of notice, 155-156, 228 
 
 practice and procedure, 228 
 
 service of notice, 155, 227 
 
 County Courts (Emergency Powers) Rules, 1915, 
 England— 
 
 additional rule to the Principal Rules, 152-154 
 
 fees, 151 
 
 forms, 152-154 
 
 judgment summons and order of commitment, 150 
 And see Courts (Emergency Powers) Rules, England. 
 
 Coupons — 
 
 payment of suspected, 
 rules as to suspected, 
 
 Courts (Emergency Powers) Act, 1914— 
 
 appeal under, 
 appointment of receiver, 
 bankruptcy proceedings, 
 cases on, 
 
 circumstances for suspending execution of decree, 
 Court to which application to be made, 
 Grown debts, 
 
 defender in undefended cause opposing application to pro- 
 ceed with diligence, - 99 
 difficulties of interpreting sub-section 1 of section 1, 95 
 discretion of Court, -99, 100, 139-141 
 
 
 
 
 57 
 
 
 
 167-169 
 
 99, 
 
 100 ; 
 
 , 139-141 
 
 
 
 96, 
 
 138 
 
 
 
 100, 
 
 142 
 
 
 
 138-143 
 
 », 
 
 - 
 
 -98 
 
 , 99 
 
 
 - 
 
 96, 
 
 141 
 96 
 
240 INDEX. 
 
 Courts (Emergency Powers) Act, 1914— continued— PAG e 
 
 expenses of unopposed application, 99 
 
 extension of Irish judgment to England, 96-97 
 
 forfeiture of sihares, 96, 139 
 
 form of Order under, 98 
 
 garnishee orders, 229 
 
 general discussion of, 94 et seq. 
 
 mortgagee's foreclosure action, - 96, 138-139 
 
 not available in favour of alien enemies, 101 
 
 pawnbroker's rights to deal with pledges, 101 
 
 proceedings for the recovery of small tenements, 100 
 
 proceedings in removings and ejections, 100 
 
 sale by mortgagees in possession of personality, 97, 142, 143 
 
 sale by stockbroker of client's shares, 97, 143 
 
 ultra vires rules under, 101 
 
 Courts (Emergency Powers) Order, 1914— 
 
 limits application of the Act, 97 
 
 Courts (Emergency Powers) (Scotland) Order, 1914— 
 
 limits application of Act, - 97, 98 
 
 text of, - 181 
 
 Courts (Emergency Powers) Rules, England- 
 additional rules, 148, 149 
 forms, 148-149 
 no application to Court required for issuing a judgment 
 
 summons, 149 
 
 procedure where service of notice impossible, 148 
 
 ultra vires nature of certain rules, - 101 
 
 Crown, The— 
 
 debts due to, are within Courts (Emergency Powers) 
 
 Act, 1914, 96 
 
 debts due to, fall within the moratorium, 89 
 
 decides when war is at an end, 103 
 
 determines whether there is peace or war, 6 
 
 power of, to grant licences to trade with the enemy, 37 
 
 Currency and Bank Notes Act, 1914— 
 
 discussion of, 101-103 
 
 C# 
 
INDEX. 241 
 
 Currency and Bank Notes (Amendment) Act, 1914— PAGE 
 
 provisions of, 102 
 
 Custodian, The 
 
 duties of, - 57, 58 
 
 institution of, 57 
 
 not an assignee of a disputed debt, 69 
 
 powers of, 57 
 
 Customs (War Powers) Aet, 1915 — 
 
 duration of Act, 159 
 
 power to seize imported goods of enemy origin, 159 
 
 pre-entry of ship's stores, 158 
 
 provision as to coasting ships departing without clearance, 158 
 provision as to declarations as to ultimate destination of 
 
 exported goods, 158 
 
 provision as to exportation of goods under licence, 158 
 provision with respect to shipment as stores of prohibited 
 
 or restricted goods, 157 
 text of Act, 157-159 
 
 Cyprus- 
 British territory, 31 
 
 Debentures— 
 
 For legal position of enemy debenture holders, see Shakes and 
 Debentures in Corporations. 
 
 DebtS- 
 alien enemy's right of payment only suspended, 44 
 assignment by enemy of, 53 
 custodian not an assignee of disputed, 69 
 illegality of payment of, to enemy in enemy country, -31, 45 
 payment to enemy's agent here, - 31, 45 
 payment to neutral of an enemy's, -33, 112-113 
 recovery of enemy's, 69, 164-165, 169-172, 174-176, .177 
 right to sue alien enemy for, 27, 51, 52 
 
 Defence of the Realm (Amendment), No. 2 Act, 1915— 
 
 gives statutory defence to actions on contracts, 80 
 
 not declaratory of common law, 221-222 
 
 text of, - 162 
 
 R 
 
242 INDEX. 
 
 Designs— page 
 
 licences to pay fees for enemy for registration or renewal 
 
 of, here, 38 
 
 licences to pay fees for same purpose in enemy country, 38 
 
 Distress— 
 
 
 
 effect of moratorium on, 
 
 -91, 
 
 136-137 
 
 leave of Court necessary, 
 
 94 
 
 , 95, 98 
 
 Domicile- 
 
 
 
 abandonment of, 
 
 
 -13, 14 
 
 acquired, 
 
 
 11-13 
 
 as test of enemy character, 
 
 
 9 el seq. 
 
 civil, 
 
 
 10-13 
 
 commercial, 
 
 
 -13, 14 
 
 differences between civil and commercial, 
 
 
 -13, 14 
 
 evidence of, 
 
 
 -12, 13 
 
 exceptions to the rule that domicile determines enemy 
 
 character, - 16, 17 
 
 flagrante hello abandonment of, 14 
 
 in occupied territory, 19 
 
 of a corporation, 18 
 
 of origin, 10 
 
 Egypt— 
 
 not enemy territory, 31 
 
 Emergency Powers of the Court- 
 applicable to forfeiture of shares, 96 
 bankruptcy proceedings, 100, 142 
 cases on, - 138-143 
 Crown debts, 96 
 garnishee orders, 229 
 nature of, - 94-95, 98, 100 
 new powers given to Scottish Courts, 98 
 not applicable to pawnbrokers' rights to deal with their 
 
 pledges, 101 
 
 not available in favour of alien enemies, 101 
 
 proceedings for the recovery of small tenements, 100 
 
INDEX. 243 
 
 Emergency Powers of the Court— continued— PAGE 
 
 proceedings in removings and ejections in the case of 
 
 certain subjects, 100 
 
 to. what cases applicable, 94-96, 139 
 
 to what cases inapplicable, 96-97, 100, 138, 141-143 
 And see Courts (Emerghnot Powers) Act, 1914. 
 
 Enemy Character- 
 domicile as test of, 9 et seq. 
 of a corporation, 17, 18, 107-110 
 how a British subject may acquire, 8, 15 
 how a neutral may acquire, 8, 15, 16 
 temporary, 23 
 
 Enemy Property, Vesting: and Application of— 
 
 English County Court Rules, 169-172 
 
 English High Court Rules, 163-166 
 
 general provisions, 57, 58 
 
 Irish Court Rules, 172-176 
 
 Scottish Act of Sederunt, 177 
 
 Enemy Territory — 
 
 definition of, in present war, 31 
 
 meaning of 4, 5 
 
 occupied, 5, 31, 183 
 
 Exportation (Prohibition) Proclamation— 
 
 of 3rd February, 1915, 184-193 
 
 Exportation (Prohibition) Orders— 
 
 of 2nd March, 1915, 194-195 
 
 of 18th March, 1915, 195-197 
 
 of 15th April, 1915, 198-199 
 
 of 21st April, 1915, 199-200 
 
 of 26th April, 1915, 201-202 
 
 of 6th May, 1915, 222 
 
 of 20th May, 1915, 225-226 
 
 of 2nd June, 1915, vii.-ix. 
 
 Exporters and Importers— 
 
 See Imports and Exports. 
 
244 INDEX. 
 
 Extension of Judgments— page 
 
 no leave of Court required, - 96-97 
 
 Foreclosure— 
 
 where leave of Court unnecessary, 96, 138-139 
 
 Freight- 
 licences to pay enemy, - - 38 
 payment in respect of maritime, not within moratorium, 88, 135 
 where allowed for enemy goods, 75 
 And see Affreightment for effect of war. 
 
 Garnishee Orders- 
 no leave of Court necessary for, when nasi, 229 
 
 Germany — 
 
 blockade of, 205-207 
 
 declaration of war with, 5 
 
 service of notice of writ on alien enemy there, 
 
 67-69, 70-71, 132-134 
 
 Goods- 
 prohibited from being exported, 
 
 185-193, 194, 195-197, 198-199, 199-201, 201-202, 
 
 222, 225-226, vii.-ix. 
 prohibited from being imported, 33 
 
 sale of, effect of war on, 60, 72-73, 74, 79, 84, 118-120 
 
 Goods, Exportation of— 
 
 prohibitions and restrictions on, 
 
 184-202, 222, 225-226, vii.-ix. 
 
 Greeks- 
 legal position of Turkish subjects who are, 8, 9 
 
 Hague Convention of 1907— 
 
 as to legal rights of belligerents, 19, 20 
 
 different interpretations of its provision, 19 
 
 no part of British law at present, 20 
 
 public statement of British view in 1911, 19 
 
INDEX. 245 
 
 Hire-purehase Agreements— PAGE 
 
 effect of requisition of goods held under, 80, 121 
 
 Illegality- 
 created by legislation, 72 73 75 
 created by war, 74. 
 effects of partial, 75-76 
 
 Imports and Exports— 
 
 licences, 210, 211 
 
 modified rules as to, 222-223 
 
 notice as to, 207-210 
 
 Impossibility of Performance- 
 circumstances under which war dissolves a contract owing 
 
 to > 78 et seq. 
 
 commercial impossibility created by war has no effect, 76, 77 
 effects of partial impossibility, 82 
 
 specific rights already acquired, 81-82 
 
 Insurance— 
 
 by British subject domiciled in neutral territory, with 
 British underwriter in connection with trading with 
 the enemy, - 15 
 
 exception implied in every British insurance against 
 
 capture, 49 
 
 of British goods by British underwriter against capture by 
 
 the enemy, 18 
 
 of enemy property before war, 48-50 
 
 of enemy property in time of war, 25, 30, 32 
 
 of goods in furtherance of trading with the enemy, 36, 49 
 
 of licensed trading with the enemy, 41, 76 
 
 implied power of, in a licence to trade with the enemy, 41 
 
 prohibitions against transactions with enemy, 25, 30, 32 
 
 "restraint of princes," interpretation of, 85, 220-221 
 
 transactions forbidden with enemy branch, wherever 
 
 situated, 25, 30, 32 
 
 And see Life Assurance. 
 
246 INDEX. 
 
 Interest — page 
 
 on bank deposits under moratorium, 223-225 
 
 rules of moratorium as to, - 86, 87, 89, 90, 91 
 
 on contracts suspended by war, 61-62 
 
 Interest on Contracts suspended by War — 
 
 agreement after peace to pay interest for such, time, - 61 
 
 if expressly stipulated for, recoverable, 61 
 
 not recoverable as damages, 61, 62 
 
 not suspended when debtor and creditor reside in same 
 
 country, 61 
 
 Ireland- 
 appeal under Courts (Emergency Powers), Act, 1914, 99, 140 
 
 bank notes legal tender, 103 
 Courts (Emergency Powers) (Ireland) Act, 1914, 100-101, 147 
 
 Crown debts, - 89, 96 
 
 effect of moratorium, 87 
 
 enemy's right to sue, - 43, 122-123 
 
 extension of judgment to England, 96-97 
 
 form of Order under section 1 (1) of Courts (Emergency 
 
 Powers) Act, 1914, 98 
 
 legal proceedings: against Enemies' Rules, xi. 
 
 practice as to moratorium, 93 
 
 summary proceedings for recovery of land, 100 
 
 distress for non-payment of rent under moratorium, 
 
 
 
 91, 
 
 136-137 
 
 effect of war on, 
 
 
 51,77 
 
 leave of Court necessary for distress, 
 
 94 
 
 =, 95, 98 
 
 moratorium and condition of re-entry, 
 
 90, 
 
 91, 136 
 
 Legal Proceeding's against Enemies Act, 1915— 
 
 
 
 cases to which applicable, 
 
 
 70 
 
 constructive service allowed, 
 
 
 70 
 
 costs, 
 
 
 71 
 
 definitions, 
 
 
 71 
 
 enemy service order, 
 
 
 70 
 
 evidence of documents, 
 
 
 71 
 
 gives declaratory action on contracts with enemies, 
 
 
 70 
 
 not applicable to Scotland, 
 
 
 72 
 
 Rules of Court, 
 savings, 
 
 
 161 
 71 
 
 summary of, 70-72 
 
INDEX. 247 
 
 Legal Proceedings against Enemies Rules— PAG e 
 
 applications and proceedings to be in King's Bench 
 
 Division, - 161 
 
 indorsement of claim, 161 
 
 ordinary practice and procedure to be adopted, 161 
 
 Rules not applicable to proceedings after enemy appears, 161 
 For Directions of the Lord Chief Justice as to Procedure, see 
 p. x. ; and for Irish Rules, see p. xi. 
 
 Legal Tender- 
 new, 101-103 
 new, does not abrogate the old, 103 
 new, does not alter the common law as to, 103 
 postal orders no longer, 102 
 
 Licences by the Crown— 
 
 construction of, 40, 41 
 
 effect of, to enemy banks here, 40 
 
 express, 41 
 
 general, 37, 38 
 
 implied, 41-43 
 
 no immunity from seizure by allies, 43 
 
 powers of Crown, 37 
 
 special, 37-40 
 
 Treasury Department deals with, 210-211 
 
 Life Assurance— 
 
 assured's right to equitable value of policy forfeited 
 
 through failure to pay premium owing to war, 50 
 
 effect of war on, 50-51 
 
 failure to pay premium owing to war avoids policy, 50 
 
 provisions of Courts (Emergency Powers) Act, 1914, 94, 95, 98 
 transactions with enemy branch here, 24-25, 30, 51 
 
 where payment or tender of premium to agent resident in 
 
 same territory binds company, 51 
 
 Moratorium- 
 available in favour of an alien enemy, - 94, 223-225 
 calls upon shares, - 92, 139 
 cases on, 92-93, 135-137 
 Crown debts, - 89 
 banking transactions, 87, 92, 223-225 
 bankruptcy petitions, 87-88, 135 
 
248 INDEX. 
 
 Moratorium — continued, page 
 
 Bills (Ke-aoceptance) Proclamation, - 86-87, 89, 90, 92 
 
 distress, 91 
 
 does not apply to contracts made after 4th August, 1914, 86 
 
 effect of, S7-88 
 
 exceptions (fco, 88-89, 92, 135 
 
 First General Proclamation, 87,88-89,90 
 
 interest on bank deposits, 223-225 
 
 interest under, 86-87, 89, 90, 91, 92, 93 
 
 Last General Proclamation, 91-92, 135-136 
 
 only applies to contractual obligations, 92 
 
 practice of the Courts, - 92-93 
 
 recognition of foreign moratory law, 92 
 
 rent, 90-91, 136 
 
 Scottish view of, 88 
 
 Second General Proclamation, 87-89, 90 
 
 Stock Exchange transactions, 92, 143 
 
 Third General Proclamation, 89 
 
 Mortgages— 
 
 foreclosure orders nisi, - 96, 138-139 
 
 not suspended by war, 52 
 
 remedy not suspended, 51-52 
 
 Nationality— 
 
 as test of enemy character, 7-8, 16 
 
 Negotiable Instruments- 
 effect of war on, - 52-53 
 And see Bills of Exchange. 
 
 Neutral- 
 acquisition of enemy character by a, 8, 15, 16 
 how an alien enemy may acquire the character of a, 
 
 9, 17, 24, 110-111 
 how a British subject may acquire the character of a, 15 
 
 Neutral Territory— 
 
 in enemy occupation, 5, 31, 183 
 
 transactions with enemy in, - 24-25, 30-31 
 
INDEX. 
 
 Non-intercourse with the Enemy— PAG e 
 
 doctrine of, 20, 28-29, 215-216 
 
 possible limitation, 28-29, 216 
 
 Occupied Territory— 
 
 domicile in, 19 
 
 legal position of, 5, 31 
 
 Trading with the Enemy Proclamation as to, - 183 
 
 Partnership— 
 
 effect of war on, 53-55 
 
 statutory provisions in present war, 53-54 
 
 Patents- 
 licences to pay fees for grant or renewal of, on behalf of 
 
 an enemy here, 38 
 licences to pay fees to obtain grant or renewal of, in an 
 
 enemy country, 38 
 
 Pawnbrokers- 
 right to deal with pledges unaffected by Courts (Emer- 
 gency) Powers Act, 1914, 101 
 
 Plea of Alien Enemy — 
 
 cannot be pleaded by alien enemy himself, 218 
 oiroumstances under which the Court has refused to allow, 66 
 
 in Prize Court, - 64 
 
 may be waived by consent, 65 
 must be specially pleaded to an action on a contract legal 
 
 in its inception, 65 
 
 not favoured by the Court, 66 
 
 possible judicial notice of, 65 
 
 strictest proof necessary of, 65-66 
 
 summary application to stay execution on, refused, 64 
 
 where British subject a co-plaintiff, 64 
 
 Postponement of Payments Act, 1914— 
 
 duration of, 86 
 
 summary of, 86 
 
250 INDEX. 
 
 Prescription— page 
 
 whether it runs during war, 61 
 
 Prisoners of War- 
 bills granted by, for necessaries, -22, 23 
 contracts of service with, - 23, 24 
 
 Proceeding's by and against Alien Enemies- 
 alien enemy a co-plaintiff, • - 64, 124-126 
 alien enemy's 1 right to defend, 64, 126, 131 
 alien enemy's right to sue, 
 
 17, 25, 26, 42-43, 63-64, 107-111, 122-125, 126, 129 
 
 bankruptcy proceedings, - 67 
 
 British subject's right to sue, 27, 64, 126, 130-131 
 
 defence of alien enemy not favoured by Court, 66 
 
 defences not pleadable by alien enemy, 218 
 
 plea of alien enemy, - - 65, 66 
 
 proof of hostile alienage, - 65, 66 
 
 service on alien enemies, 67-70, 132-134 
 where plaintiff becomes an enemy after action commenced, 64, 66 
 
 See Legal Proceedings against Enemies Act, 1915 ; Service on 
 Alien Enemies. 
 
 Proclamations of a Moratorium- 
 bills (re-acceptance), provisions of, 86-87 
 final, provisions of, 91-92 
 first general, provisions of, 87, 88-89 
 second general, provisions of, 89 
 third general, provisions of, 89-90 
 And see Moratorium. 
 
 Public Debts- 
 contractual obligations of a State conquered and annexed 
 
 by this country do not pass to it, 63 
 
 Parliamentary annuities to enemies, 62 
 
 to alien enemies not confiscable, 62 
 
 transfer by enemies of, 62-63 
 
 Receiver, Appointment of— 
 
 emergency powers of Court as to, ,96, 138 
 
INDEX. 251 
 
 Registration of Alien Enemy— page 
 
 effect of, as to right to sue, 17, 26, 42-43, 122-124 
 
 effect of not complying with. Aliens Restriction Orders, 42-43 
 not necessarily conclusive evidence of an implied licence 
 
 to reside here, 41 
 
 Rent- 
 application of Courts (Emergency Powers) Act, 1914, to, 95 
 
 distress for unpaid, 91, 136-137 
 
 effect of war, - - 77 
 
 moratorium and, 90-91, 136-137 
 
 right to recover possession for non-payment of , 90-91, 136-137 
 
 "Restraint of Princes"— 
 
 interpretation of, - 85, 220-221 
 
 Sale, Contract of— 
 
 effect of war on, 60, 72-73, 74, 79, 84, 118-120, 216-217 
 
 when effected by an agent during war, 47-48 
 
 Scotland- 
 Accountant of Court the custodian, 57 
 Act of Sederunt under the Trading with the Enemy 
 
 (Amendment) Act, 1914, 177 
 
 circumstances for suspending execution of decree, 99 
 
 contracts with enemies during war, 21 
 Courts (Emergency Powers.) (Scotland) Order, 1914, 97-98, 181 
 defender in undefended cause opposing application for 
 
 diligence, 99 
 Edictal citation, 70 
 effects of partial impossibility of performance, 82 
 enemy's right to sue, - 43, 123-124 
 expenses of unopposed application for diligence, 99 
 heritable creditors, 97 
 impossibility of performance, - 76, 81 
 interest on contracts suspended by war, 61 
 Legal Proceedings against Enemies Act, 1915, in- 
 applicable to, 72 
 moratorium, 94 
 negotiable instruments, - 21, 33 
 
252 
 
 INDEX. 
 
 Scotland — continued — 
 prescription, 
 
 proceedings in removings and ejections, 
 Scottish bank notes legal tender, 
 stay of execution, 
 eisting of action, 
 trading with the enemy, 
 
 PAGE 
 
 61 
 100 
 103 
 98 
 66 
 33 
 
 Securities held by Enemies- 
 definition of, 
 statutory provisions, 
 
 58 
 57-58 
 
 Service, Contract of— 
 
 with, alien enemy in this country, 
 with prisoner of war, 
 
 Service on Alien Enemies- 
 American practice, 
 by advertisement, 
 constructive, 
 
 Court of Appeal's judgment, 
 edictal citation, 
 enemy service order, 
 general discussion of, 
 in County Court cases, 
 on enemy's agent here, 
 on enemy's manager here, 
 Eules of Court, 
 statutory provisions, 
 substituted service, 
 
 
 
 16 
 
 , 43 
 
 
 
 23-24 
 
 
 
 
 52 
 
 
 
 -69 
 
 , 70 
 70 
 
 
 
 132-134 
 
 
 
 
 70 
 
 
 
 
 70 
 
 
 
 67-70 
 
 
 
 67, 
 
 170 
 
 -69, 
 
 126-127, 
 
 133 
 
 
 69, 
 
 127, 
 
 133 
 
 67-69, 132-133, 
 
 168, 
 
 170 
 
 
 69 
 
 , 70, 
 
 159 
 
 67-69, 
 
 132-133, 
 
 170 
 
 Shares and Debentures in Corporations- 
 dividends and interest on, not payable to alien enemies 
 
 during war, - 55-56 
 
 forfeiture of, for non-payment of calls, may be restrained 
 by injunction under Courts (Emergency Powers) Act, 
 1914, 96, 139 
 
 of alien enemies not forfeitable, - 55-56 
 
 position of enemy shareholders and directors, 55-56 
 
 statutory provisions, 57-58 
 
INDEX. 253 
 
 Solicitor— PA0E 
 
 alien enemy can appear and defend by, 64, 131 
 
 relation of client and, generally terminated by war, - 48 
 
 Statutes of Limitations— 
 
 ■whether time runs ■whilst the right of action is suspended 
 
 by war, 60-61 
 
 Stock Exchange Transactions- 
 effect of war on, 219 
 
 moratorium, and, 92, 143 
 
 stockbroker's right to sell client's shares, 97, 143 
 
 StOCkS- 
 statutory provisions as to enemy's, 56-57 
 
 Sugar— 
 
 importation of, forbidden, 33 
 
 Suspected Coupons- 
 payment of, 58 
 Kules of Court as to, 167-168 
 statutory provisions, - 58 
 And see the Trading with the Enbmt (Suspected Coupons) Rules, 
 1915. 
 
 Syrians- 
 legal position of, 8, 9 
 
 Togoland— 
 
 territory in friendly occupation, - 31 
 
 Trade Marks- 
 licences to pay fees for enemy for registration or renewal 
 
 of, - 38 
 
 licences to pay fees for registration or renewal of, in enemy 
 
 country, 38 
 
254 INDEX. 
 
 Trading- with the Enemy— page 
 
 a crime, 29 
 
 cases on, 112-117 
 
 contracts in furtherance of, void, 36 
 
 forbidden by common law, 20, 28-29, 215-216 
 
 distinguished from contracting with the enemy, 29 
 
 excepted transactions, 33, 36, 113-117 
 
 general discussion of, 29 et seq. 
 penalties imposed by the trading with, the Enemy Act, 
 
 1914, -29, 30 
 
 what constitutes it, 30-33, 112-113 
 
 when it amounts to high treason, 29 
 
 Trading- with the Enemy Act, 1914— 
 
 oases on, 54 
 
 penalties, - 29-30 
 power of Board of Trade to apply for receiver in certain 
 
 cases, 54 
 
 power to inspect books and documents, 59. 
 
 transactions prohibited, 30-33, 112-113 
 
 Trading with the Enemy Amendment Act, 1914— 
 
 conditions as to incorporation of new companies, 59 
 
 constitution of office of Custodian of enemy property, 57 
 
 Custodian in England and Wales, 57 
 
 Custodian in Scotland, _ 57 
 
 Custodian not an assignee of a disputed debt, 69 
 
 duty of trustees for enemies to notify Custodian, 57-58 
 
 general discussion of, 56-60 
 
 holding and dealing with property by Custodian, - 57, 69 
 
 invalidity of assignment of debts, &c, by enemies, 53 
 
 invalidity of transfers of shares, &c, by enemies, 58 
 
 payment of dividends, &c, payable to enemies, 57 
 
 power to vest property in Custodian, 69 
 
 recovery of debts from enemies, 69 
 right to pay into Court sums due on coupons suspected of 
 
 being enemy property, 58 
 
 Rules of Court, England, - 163 et seq. 
 
 Rules of Court, Ireland, 172 et seq. 
 
 Rules of Court, Scotland, 177 
 
INDEX. 255 
 
 Trading- with the Enemy (Amendment) Act, 1914- 
 
 And see Trading with the Enemy (Application op Property) 
 County Court Rules, England ; Trading with the Enemy 
 (Suspected Coupons) Rules, England ; Trading with the 
 Enemy (Vesting and Application op Property) Rules, 
 England ; Trading with the Enemy (Vesting and Applica- 
 tion op Property) Rules, Ireland ; Act op Sederunt under 
 the Trading with the Enemy Amendment Act, 1914. 
 
 Trading- with the Enemy Proclamations— page 
 
 of 9th September, 1914, comments on, 33 et seq. 
 
 of 8th October, 1914, not retrospective, 30, 117 
 
 provisions of, - 30, 32 
 
 transactions allowed, 50, 117 
 
 of 26th October, 1914, 33 
 
 of 7th January, 1915, text of, 181-182 
 
 of 16th February, 1915, as to occupied territory, text of, 183 
 
 And see Trading with the Enemy Proclamation, No. 2. 
 
 Trading with the Enemy Proclamation, No. 2— 
 
 a mere agency here not a branch locally situated here, 25 
 banking transactions, 25, 30, 31, 181-182, 211 
 
 definition of enemy, 30 
 
 definition of enemy country, 31 
 
 distinguishes domicile from temporary residence, 31 
 
 extent of validity of contracts permitted, 24-27 
 
 insurance transaction®, 25, 30, 32, 50, 117 
 
 payment to a neutral of enemy's debts, -33, 112-113 
 
 payments allowed, 27 
 
 payments arising out of a transaction not a transaction, 27 
 
 transactions permitted, 24, 25, 38, 50, 113-117 
 
 transactions prohibited, 30-33 
 transactions with enemy branches, 
 
 24, 25, 30, 31, 50, 117, 181-182, 216-217 
 
 Trading with the Enemy (Application of Property) 
 County Courts Rule, 1915, England— 
 
 applications for payment out of enemy property, 169 
 
 costs, : 171 
 
 definitions, - 169 
 
 dispensing with notice of application, 170 
 
256 INDEX. 
 
 Trading" with the Enemy (Application of Property) 
 
 County Courts Rule, 1915, England— continued^- PAOE 
 
 evidence in support of application, 170 
 
 fees, 171 
 
 orders on application, 170, 171 
 
 power to hear cases in private, 170 
 
 preparation, filing, &c., of notices, 171 
 
 proceedings on applications, 171 
 
 revocation or variation of orders, 171 * 
 
 substituted service, 170 
 
 transfer to High Court, 170 
 
 Trading with the Enemy (Suspected Coupons) Rules, 
 1915, England- 
 affidavit to be filed, 167 
 applications to deal with money paid into Court, 168 
 definitions, 167 
 dispensing with notice, 168 
 investment or deposit of money paid into Court, 168 
 matters to be set forth in affidavit, 167-168 
 notices to be given, 168 
 proceedings and practice with reference to money paid into 
 
 Court, 168 
 
 schedule to be annexed to affidavit, 229-230 
 
 Trading with the Enemy (Vesting and Application of 
 Property) High Court Rules, 1915, England- 
 applications to a Palatinate Court, - 166 
 affidavits to be filed, 164 
 Court to which application to be made, 163, 165 
 definitions, 163 
 fees, 165-166 
 form of originating summons, 163, 166 
 mode of application under section 4 of Act, 163 
 mode of application under section 5 (2) of Act, 165 
 notices, 165 
 parties to be named as respondents, 163, 164 
 power to hear cases in private, 165 
 practice of Chancery Division to be followed, 163 
 proceedings on applications, 164, 166 
 revocation or variation of orders, 163, 165 
 service, 165 
 subsequent applications, 164 
 
INDEX. 257 
 
 Trading: with the Enemy (Vesting and Application of 
 
 Property) Rules, 1915, Ireland— PAGE 
 
 affidavits to be filed, 174 
 
 applications under section 5 (2) of Act, 174, 175 
 
 Court to which applications to be made, 173, 174 
 
 definitions, 173 
 
 fees, 175-176 
 
 form of originating summons, 173, 176 
 
 mode of application under section 4 of Act, 173 
 
 mode of application under section 5 (2) of Act, - 175 
 
 parties to be named as respondents, 173 
 
 power to hear cases in private, 175 
 
 practice of Chancery Division to be followed, 173, 174 
 
 proceedings in absence, 175 
 
 proceedings on applications under section 5 (2) of Act, 174 
 
 revocation and variation of orders, 173, 175 
 
 subsequent applications, 174 
 
 Turkey- 
 declaration of war with, 5 
 friendly status of certain subjects of, 8, 9 
 
 Ultra Vires- 
 certain Courts (Emergency Powers) Rules, 101 
 
 Wages- 
 alien enemy's right to sue for, 16, 43 
 not within moratorium, 88 
 prisoner of war may sue for, 23-24 
 where British or neutral crew entitled to, in case of 
 
 contraband trade, 74-75 
 
 where seamen entitled to extra, on account of war, 83, 120-121 
 
 War- 
 declaration of, 5 
 definition of, - - 4 
 distinguished from pre-belligerent acts, 4, 5 
 effect of, on contracts with persons not enemies, 
 
 72 et seq., 118-121, 219-222 
 
 s 
 
258 INDEX. 
 
 War — continued — „,„„ 
 
 rAGE 
 
 existence of, without formal declaration, 5, 6 
 
 imminence of, not war, 4 
 
 judicial notice of, 6 
 
 proof of, within the realm, 215 
 
 termination of, 103 
 
 varying effect of, upon contracts, 6, 7 
 
 what does not amount to, 3, 4 
 
 with Austria-Hungary, 5 
 
 with Germany, 5 
 
 with Turkey, - 5 
 
 Winding-up Petitions- 
 no leave of Court necessary, 96, 141-142 
 
Royal 8vo, pp. 500. Price IS/- net. 
 
 THE LAW OF 
 
 CONTRACT DURING WAR 
 
 WITH LEADING CASES, STATUTES, AND 
 ORDERS IN COUNCIL 
 
 BY 
 
 WILLIAM FINLAYSON TROTTER, 
 
 ADVOCATE AND BARRISTER-AT-LAW. 
 
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 LONDON AND EDINBURGH: 
 
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