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Joseph F. (Joseph Fitz) Randolph.

A treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) online

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Online LibraryJoseph F. (Joseph Fitz) RandolphA treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) → online text (page 76 of 125)
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Payment and possession of any part of a bill by the acceptor dis-
charges him.^23 g^^^ jf jjg p^yg rj prjp^ which has not been ac-
cepted, he will be liable afterwards to the bona fide holder of an
accepted part, and his remedy will be against the person to whom
payment has been improperly made.^-* In general, payment of one
part discharges all, except as to the indorsers and acceptors who
have indorsed or accepted other parts.^-^ But it is sufficient, if
the payment of one part shows on its face that the others are
satisfied thereby.^-^ The holder, who demands payment from the
acceptor of an unaccepted part, is entitled to receive it on giving
security; ^^^ and, in like manner, he may receive payment on loss

ECUADOR (Code Com. as in Spain, 505); MEXICO (Code Com. art. 397);
PERU (Code Com. art. 400); SALVADOR (Code Com. art. 45S); SPAIN
(Code Com. art. 505).
3 22 CHILI (Code Com. art. 720).

323 ARGENTINE REPUBLIC (Code Com. art. 770); SWEDEN (lixch. Law,
§ 9); URUGUAY (Code Com. art. 797).

324 ARGENTINE REPUBLIC (Code Com. art. SG5); BELGIUM (Code Na-
poleon); BOLIVIA (Code Com. art. 398); BRAZIL (Code Com. art. 400);
CHILI (Code Com. art. 719); COLOMBIA (Code Com. art. 457); COSTA
RICA (Code Com. art. 450); ECUADOR (Code Com. as in Spain); FRANCE
(Code Com. art. 148); GREECE (Code Nap.); HAYTI (Code Nap.> HOI -
LAND (Exch. Law, art. IGl); ITALY (Code Com. art. 233); LOWER CA:.^-
ADA (Civ. Code, art. 2315); MEXICO (Code Com. art. 39.5); NICARAGUA
(Code Com. art. 279); PERU (Code Com. art. 458); PORTUGAL (Code Com.
art. 382); RUSSIA (Exch. Law, art. 626); SALVADOR (Code Co^n. ait. 456);
SAN DOMINGO (Code Nap.); SPAIN (Code Com. art. 503); TURKEY (C»de
Nap. 105); URUGUAY (Code Com. art. 883); VENEZUEIA (fJode Com.
art. 64).

325 AUSTRIA (Exch. Law, art. 67); GERMANY (Ex-h. Lavr, art. 67t;
SWITZERLAND (Obhg. R. 784); URUGUAY (Code Com art. 798).

326 ARGENTINE REPUBLIC (Code Com. art. 864); BELGIUM (Code Nap.
147); FRANCE (Code Nap. art. 147); GREECE (Code Nap.); HAYTI (Code
Nap. 144); HOLLAND (Exch. Law, art. 160); ITALY (Code Com. art. 232);
PORTUGAL (Code Com. art. 381); SAN DOMINGO (Code Nap.); TURKEY
(Code Nap. 104); URUGUAY (Code Com. art. 882); VENEZUELA (Code Com.
arts. 5, 63).

327 BELGIUM (Code Nap.); BOLIVIA (Code Com. art. 399); COLOMBIA
(Code Com. art. 458); COSTA RICA (Code Com. art. 451); DENMARK
(Exch. Law, §§ 61, 62); ECUADOR (Code Com. as in Spain); FRANCE

(429)



§ 243 FORM PARTS OR COPIES. (Cll. 7

of the original bill without producing the other parts, on proving
his property and giving security.^^® And if, after offering security,
payment is refused, the bill should be protested, and demand of a
duplicate bill made upon the indorser.^-^

In Russia there are special provisions for obtaining possession
and payment of a bill, where the holder has never had the original
in his possession, but has only a copy.^^° And many foreign stat-
utes provide for the giving and indorsing of copies in lieu of the
original.^^^ Some statutes require that it be noted on the copy

(Code Com. arts. 150, 151); GREECE (Code Nap.); GUATEMALA (Ord.
Bilbao, § 27); HAYTI (Code Nap.); HUNGARY (Exch. Laws, §§ 120, 121);
ITALY (Code Cora. arts. 236, 237); MEXICO (Code Com. art. 396); NICA-
RAGUA (Code Com. art. 2S0); PERU (Code Com. art. 459); SALVADOR
(Code Com. art. 457); SAN DOMINGO (Code Nap.); SPAIN (Code Com. art.
504); TURKEY (Code Nap. 107, 108); URUGUAY (Code Com. arts. 900-904);
VENEZUELA (Code Com. arts. 66-70).

3 28 ARGENTINE REPUBLIC (Code Com. arts. 8S3-8S5); AUSTRIA (Exch.
Law, arts. 73, 74); BELGIUM (Code Nap.); FRANCE (Code Com. art. 152);
GERMANY (Exch. Law, arts. 73, 74); GREECE (Code Nap.); HAYTI (Code
Nap. 149); ITALY (Code Com. art. 238); LOWER CANADA (Civ. Code, art.
2316); NICARAGUA (Code Com. arts. 282, 283); PERU (Code Com. art. 466);
PORTUGAL (Code Com. art. 384); SALVADOR (Code Com. art. 461); SAN
DOMINGO (Code Nap.); SWEDEN (Exch. Law, §§ 70, 71); TURKEY (Code
Nap. 109); VENEZUELA (Code Com. arts. 66-70).

320 ARGENTINE REPUBLIC (Code Com. arts. 885, 887); BELGIUM (Code
Nap. 153, 154); COLOMBIA (Code Com. arts. 461, 464); COSTA RICA (Code
Com. arts. 454-457); ECUADOR (Code Com. as in Spain); FRANCE (Code
Nap. arts. 153, 154); GREECE (Code Nap.); HAYTI (Code Nap. 150. 151);
ITALY (Code Com. arts. 239, 240); MEXICO (Code Com. arts. 399-402);
NICARAGUA (Code Com. arts. 280-284); PERU (Code Com. art. 467); SAL-
VADOR (Code Com. arts. 460-163); SAN DOMINGO (Code Nap.); SPAIN
(Code Com. arts. 507-510); TURKEY (Code Nap. 110, 111); URUGUAY (Code
Com. arts. 900-904); VENEZUELA (Code Com. arts. 66-70).

830 RUSSIA (Exch. Law, arts. 583, 584); SWEDEN (Exch. Law, §§ 67, 60).

831 ARGENTINE REPUBLIC (Code Com. art. 772); AUSTRIA (Exch. Law,
arts. 70-72); BOLIVIA (Code Com. art. 360); CHILI (Code Com. art. 629);
COLOMBIA (Code Com. art. 395); COSTA RICA (Code Com. art. 384);
ECUADOR (Code Com. as in Spain); GERMANY (Exch. Law, arts. 70, 72,
74, 76); MEXICO (Code Com. art. 331); NICARAGUA (Code Com. art. 247);
PERU (Code Com. art. 397); SALVADOR (Code Com. art. 392); SPAIN (Code
Com. art. 437); SWITZERLAND (Oblig. R. 789); URUGUAY (Code Ck)m.
art. 790); VENEZUELA (Code Com. art. 6).

(430)



Ch. 7) FOREIGN STATUTES. § 243

where the copy ends and the original indorsements begin.^^^ And
in some countries payment cannot be made at all on a copy without
production of at least one of the original parts.^^^

33 2 HUNGARY (Exch. Law, § 24); SWEDEN (Exch. Law, § 68); SWITZER-
LAND (Oblig. R. 787).

333 BOLIVIA (Code Com. art. 397); CHILI (Code Com. art. 720); COL-
OMBIA (Code Com. art. 4G0); COSTA RICA (Code Com. art. 453); ECUA-
DOR (Code Com. as in Spain); MEXICO (Code Com. art. 398); NICARAGUA
(Code Com. art. 281); PERU (Code Com. art. 461); SALVADOR (Code Com.
art. 459); SPAIN (Code Com. art. 506).

(431)



§ 244 CAPACITY — CIVIL RESTRICTIONS. (Ch. 8



CHAPTER VIII.
CAPACITY.



I. Civil R-estrictions.
n. Alien Enemies.

III. Idiots and Lunatics.

IV. Drunkards.
V. Infants.



I. Civil Restrictions.

§ 244. General Principles.

245. Civil Restrictions— Merchants.

246. Clergy— Soldiers— Farmers.

247. Felons— Bankrupts— Indians.

General Principles.

§ 244. In general, all persons who can make a legal contract can
become parties to commercial paper. Want of capacity may be
either natural^ legale or political^ according as it proceeds from
mental unfitness or from the requirements of local or public law.
Naturally incapable are idiots, lunatics, and all persons of unsound
or insufficient understanding. Legally incapable are infants, mar-
ried women, and corporations, so far as their power is restricted by
law. And these laws are, in some degree, based on presumptions
of natural incapacity. Politically incapable are alien enemies, and,
to a certain extent, public officers and state and municipal govern-
ments.

It is to be observed at the outset that the making of a note or the
drawing of a bill of exchange is an admission of the payee's capacity
to receive it.* So, the drawing of a bill of exchange admits the

1 Esley V. People, 23 Kan. 510, where the note was made to a state. So,
as to a coi-poration payee's existence, Goodrich v. Reynolds, 31 111. 490;
especially at suit of a bona fide holder for value, Camp v. Byrne, 41 Mo.
525; Nashua Fire Ins. Co. v. Moore, 55 N. H. 48; and notwithstanding a
general prohibition against doing business as a foreign corporation. Shook
V. Manufacturing Co., 61 Ind. 520.
(432)



Ch. 8) TRADE RESTRICTIONS. § 245

payee's capacity at that time to indorse it.' And in like manner
an acceptor admits, and is estopped from denying, as against a bona
fide purchaser of the accepted bill, the drawer's capacity at tfvat
time to bind himself as drawer.' So, an indorser cannot question
the capacity of a subsequent, though not immediate, indorsee to
acquire a note or bill.*

The questions of capacity and autJiority of parties to make, ac-
cept, and transfer negotiable paper are governed by substantially
the same rules of law that control other contracts.

Trade Restrictions — Merchants.

§ 245. No restrictions upon the capacity of a person to enter into
a mercantile contract by reason of the character of his trade or oc-
cupation now exist in the United States, although it was once thought
that none but merchants were capable of binding themselves by
a contract under mercantile law. The mercantile character of a
party to commercial paper is now of no importance either in this
country or in England.^ And in these countries all persons, who

2 Collis V. Emett, 1 H. Bl. 313; Drayton v. Dale, 2 Barn. & C. 293; Phil-
lips V. Im Thnrn, IS C. B. (N. S.) 694; Brown v. Donnell, 49 :Me. 421; Night-
ingale V. Withington, 15 Mass. 272. And this is true where the payee is
known by the maker to be fictitious. Lane v. Krekle, 22 Iowa, 399. But
the insanity of the payee and indorser may be set up in defense by the
maker. Burke v. Allen, 29 N. H. 106; Peaslee v. Robbins, 3 Mete. (Mass.)
164.

3 Cooper V. Meyer, 10 Barn. & C. 408. So held as to a married woman's
capacity. Smith v. Marsack, 18 Law J. C. P. 65; and that of a bankrupt,
Braithwaite v. Gardiner, S Q. B. 473; and that of a corporation, Halifax v.
Lyle, 3 Exeh. 464.

■» National Pemberton Bank v. Porter, 125 Mass. 333.

B Chit, Bills, 20; Story, Bills, § 71; Story. Prom. Notes, § 61; Bromwich
V. Lloyd, Lutw. 503. In Fairly v. Roch, Id. 891, it was held on demurrer
that an allegation of a custom of merchants as to bills of exchange ap-
plicable to "any merchant or other person" was too general;, but in Brom-
wich V. Lloyd, supra, it was said by Treby, C. J., that no allegation of cus-
tom was necessary, and that the law of mercantile bills of exchange "at
first extended only to merchants, strangers trading with English merchants,
and aftei-wards to inland bills between merchants trading one with another
in England, and after that to all traders and dealers, and of late to all per-
sons trading or not."

RAND.C.P.— 28 (433)



§ 245 CAPACITY CIVIL RESTRICTIONS. (Ch. 8

are sui juris and have capacity and understanding sufficient for a
valid contract, are competent to become parties to a bill of ex-
change, note, or check."

By foreign laws, however, distinctions were formerly made, and
in some cases still exist, in favor of merchants, and to the ex-
clusion of clergymen and other professional men, soldiers, and other
enumerated classes of the inhabitants. Thus, in Germany, a person
not otherwise capable of making a legal contract may, as a mer-
chant^ possess the power to contract and even to become a party
to commercial paper; and all commercial paper is presumed to be
made in a mercantile transaction, unless the contrary be expressed
on its face.'^ In Spain, and in some of the Spanish-American states,
bills and notes by persons who are not merchants have no mer-
cantile character, and amount only to certificates of indebtedness,
and are subject only to ordinary courts and procedure. An ex-
ception is made, however, as to drawer and acceptor, but not in-
dorser, where the consideration is shown to have been a mercantile
transaction.^ The like rule and exception prevail in Bolivia, saving,
however, the holder's rights against other parties who are merchants,
and remain liable according to mercantile law.® In Hungary the
j)0wer of drawing bills of exchange is conferred on merchants,
manufacturers, and mechanics of full age, and registered as such in
the commercial court. Bills drawn by other citizens or upon them
are not commercial paper.^° In Denmark and in Switzerland all
persons who are of full age, and competent to acknowledge a debt,
can draw, accept, and indorse bills.^^ In Chili all persons capable

6 Chit. Bills, 20; Sarsfield v. Witherly, 2 Vent. 295; Hodges v. Steward.
12 Mod. 36, 1 Salk. 125.

7 Thijl, Wechselrecbt, 118, 119. But in Prussia, althougli an infant is ca-
pable of making a mercantile contract, his bill of exchange requires the ap-
proval of the court. Id. By the German exchange law (article 1), all per-
sons who are capable of making a contract can draw or accept a bill of ex-
change.

8 SPAIN (Code Com. art. 434); COLOMBIA (Code Com. art. 392); COSTA
RICA (Code Com. art. 381); ECUADOR (Code Com. art. 434); PERU (Code
Com. art. 391); SALVADOR (Code Com. art. 389).

BOLIVIA (Code Com. art. 367).

10 HUNGARY (Exch. Law, art. 10). All persons, however, capable of ac-
quiring any right can acquire right to a bill of exchange (Id. art. 7).

11 DENMARK (Exch. Law, art. 4); SWITZERLAND (Oblig. R. 720), except

(434)



Ch. 8) FELONS. § 247

of making a legal contract are capable of drawing or accepting a
bill of exchange.^^



Clergy — Soldiers — Farmers.

§ 246. By St. 57 Geo. III. c. 99, spiritual persons are forbidden
to trade. And it has been held under this act that a joint-stock com-
pany, in which was a beneficed clergyman, could not bring an action
as indorsee of a bill of exchange.^^ The Russian law declares all
religious persons incompetent;^* the Hungarian law, all clergymen
of any religion and all members of religious orders.^ ^ In Hungary,
too, all persons in active military service are incapable of drawing
a bill of exchange.^® So, in Servia, all soldiers and military per-
sons under the rank of sublieutenant, their bills of exchange having
force only as acknowledgments of debt.^^ So, in Russia, all soldiers
in the lower military grades. ^^

In Servia, too, farmers cannot draw or accept a bill of exchange.^^
So, in Russia, farmers who do not own land and have no trading
license.^"

Felons — Bankrupts — Indians .

§ 247. In England an attainted felon cannot take a bill or note
by indorsement.^^ Nor can a bankrupt before receiving his dis-
charge, although it might be held otherwise after a long lapse of
years.^^ But, if a bill of exchange has been transferred by a bank-
rupt before petition filed, his indorsement afterwards will be lawful

that summary procedure is confined to merchants and mercantile compa-
nies.

12 CHILI (Code Com. art. 622).

18 Hall V. Franlilin. 3 Mees. & W. 259, now remedied by 1 & 2 Vict c. 10.

14 RUSSIA (Exch. Law, art. 546).

IB HUNGARY (Kxch. Law, art. 11).

16 HUNGARY (Exch. Law, art. 11).

17 SERVIA (Code Com. arts. 76-78).

18 RUSSIA (Exch. Law, art. 546).

19 SERVIA (Code Com. arts. 76-78).

20 RUSSIA (Exch. Law, art. 546).

21 Bullocli V. Dodds, 2 Barn. & Aid. 258.

22 Pitt V. Chappelow, 8 Mees. & W. 616.

(435)



§ 247 CAPAvJITY CIVIL RESTRICTIONS. (Ch. 8

to make the transfer perfect.-^ And in such case his assignee may
be directed by the court to complete the transfer by an indorse-
ment without recourse.-*

Under the United States bankrupt act of 1867, it has been held
that a check, drawn before an assignment in bankruptcy, but not
presented until afterwards, will not transfer the fund,^^ But a
bankrupt may draw on his own check money deposited in bank after
petition in bankruptcy filed.- "^ So, the pledgee of a bond may sell it
notwithstanding the bankruptcy of the pledgor.^'^ The effect of
bankruptcy as a transfer of commercial paper, or by way of defense
other than for want of original capacity on that ground, will be
considered in a later part of this work. The United States bank-
rupt acts have given rise to few questions relating to the capacity
of a party to make commercial paper. As regards his power to
transfer such paper, it is rather a question of property left in him
than of capacity.

As to Indians, the statutes provide that "no agreement shall be
made by any person with any tribe of Indians or individual Indians
not citizens of thf United States for the payment or delivery of any
money or other thing of value, * * * in consideration of serv-
ices for said Indians relative to their lands or to any claims growing
out of, or in reference to, the annuities, installments or other moneys,
claims or demands or thing under laws or treaties with the United
States or official acts of any officers thereof or in any way connected
with or due from the United States," without prescribed formalities
and official approval. ^^ But an Indian's note is valid, if not shown
to be within the statute.-^

23 Smith V. Pickering, Peake, 69; Hersey v. Elliot, 67 Me. 526.

24 Ex parte Mowbray, 1 Jac. & W. 428.

2 5 First Nat. Bank of Mt. Joy v. Gish's Assignees, 72 Pa. St. 13.

2« Mays V. Bank, 64 Pa. St. 74.

2 7 Jerome v. McCarter, 94 U. S. 734.

28 U. S. Rev. St. § 2103.

29 Ke-tuc-e-mun-guah v. McClure, 122 Ind. 541, 23 N. E. 1080.

(43G)



Ch. 8) WHO ARE ALIEN ENEMIES. § 248



II. Alien Enemies.

248. Who are Alien Enemies.

249. Principles Applied to American Civil War.

250. Contracts between Alien Enemies— Insurance.

251. Agency— Partnership.

252. Contracts, When Valid.

253. Commercial Paper.

254. Drawee an Alien Enemy.

255. Payee or Indorsee an Alien Enemy.



"Who are Alien Enemies.

§ 248. It has been said that for political reasons alien enemies
are incapable of becoming parties to commercial paper. And this
incapacity extends for the protection of the state to all contracts
between citizens of the state and their alien enemies pending the
continuance of a war. "Every resident of a hostile place or coun-
try, even though a subject, is regarded as an alien enemy." ^° This
applies indiscriminately to all persons within the belligerent lines,
excepting, of course, such as are actually there in the service of their
own government in a military capacity or otherwise.^ ^ Thus, a nat-
uralized citizen of the United States, domiciled in England, is an
alien enemy as to American citizens during war with England,^ ^
although immediately upon his departure for this country he would
cease to be so.^^ In like manner, a British subject, who is a nat-
uralized citizen of a neutral state, is to be regarded in England as
an alien enemy while voluntarily residing in the enemy's country.'*
But a note made by a British subject to the citizen of a neutral state
residing in an enemj-'s country may be sued upon in the English
courts.^'' And the subject of a neutral state taken prisoner on an

30 Whart. Confl. Laws, § 737a.

81 Hennen v. Oilman, 20 La. Ann. 241.

32 The Francis, 1 Gall. 614, Fed. Cas. No. 5,034, Story, J., saying In this
case: "For all commercial purposes it is quite immaterial which is the na-
tive or adopted country of a party. He is deemed a merchant of the coun-
try whore he resides and carries on trade."

33 The Indian Chief, 3 C. Rob. Atlm. 12.
84 O'Mealey v. Wilson, 1 Camp. 4S2.
SBHouriet v. Morria, 3 Camp. 303.

(437)



§249 CAPACITY ALIEN ENEMIES. (Ch. 8

enemy's vessel, and brought to England, is no longer to be regarded
as an alien enemy, but may contract and sue like other citizens in
England.'' A foreign corporation is an alien enemy under the same
circumstances as an individual.'^ As a person takes his character
of enemy or neutral in general from the place where he is found, it
follows that a British citizen domiciled in a neutral country may
lawfully trade in that country with the citizens of another country
at war with Great Britain.'^

Principles Applied to American Civil War.

§ 249. The principles relating to alien enemies apply to their full
extent to the Civil War in the United States, as regarded citizens of
the two belligerent sections.''* The beginning and end of the war
have been judicially determined by the courts in various parts of
the country. Thus, it has been held that the war ended east of
the Mississippi river upon the president's proclamation of June 13,
1865; *° and in South Carolina, that the war extended from the 19th
day of April, 1861, to April 1, 18G6." Citizens of seceded states

3 6 Sparenbnrgh v. Bannatyne, 1 Bos. »& P. 1G3; Rex v. Depardo, 1 Taunt.
28.

3 7 Society for Propagation of the Gospel v. Wheeler, 2 Gall. 132, Fed. Cas.
No. 13,156. In time of peace, however, a foreign corporation, like any
other foreign citizen, may make and enforce contracts in other states, un-
less excluded by the statutes or policy of such state. Williams v. Cres-
well, 51 Miss. 817. So, a promissory note made by an Indian is valid.
Rubideaux v. Vallie, 12 Kan. 28.

3 8 Chit. Bills, 19; Bell v. Rcid, 1 Maule & S. 726.

39 Montgomery v. U. S., 15 Wall. 395; Prize Cases, 2 Black, 667; Short-
ridge V. Macon, Chase, 136. Fed. Cas. No. 12,812; Hennen v. Gilman, 20
La. Ann. 241; Bonneau v. Dinsmore, 23 How. Prac. (N. Y.) 397; Sanderson
V. Morgan, 25 How. Prac. 144, 39 N. Y. 231; McStea v. Matthews, 3 Daly (N.
Y.) 349; Philips v. Hatch, 1 Dill. 571, Fed. Cas. No. 11,094; Ensley v. U.
S., 6 Ct. CI. 282; Cutner v. U. S., Id. 415; Brown v. Hiatt, 1 Dill. 381,
Fed. Cas. No. 2,011; Lacy v. Sugarman, 12 Heisk. (Tenn.) 351. In the
words of Grier, J., in the Prize Cases, 2 Black, 667: "It is not necessary
to constitute war that both parties should be acknowledged as independent
nations or sovereign states. A war may exist where one of the belligerents
claims sovereign rights as against the other."

<o Semmes v. Insurance Co., 36 Conn. 543.

41 Gooding v. Yarn, Chase, 286, Fed. Cas. No. 5,539.
(438)



C-ii. 6^ CONTRACTS BETWEEN ALIEN ENEMIES. § 250

were, however, not alien enemies before the secession of their states.*'
In Texas it has been held that intercourse between its citizens and
those of the state of Illinois was lawful until the passage of the
act of congress of July, ISGl.*^ And in Greenbrier county, Va.,
which was excepted from the operation of this act, a sale of personal
property at a later period to a bona fide purchaser was held to be
valid."

A note is not presumed to have been made between alien enemies
because secured by a mortgage dated six months later, which showed
the parties to be then resident in different belligerent sections.*^ But
a citizen of Savannah or Memphis, after such city had been brought
within the federal lines, was the alien enemy of a citizen of Ala-
bama, although intercourse between both of the cities referred to and
ihe rest of the United States had been prohibited by the president's
proclamation of April, 1863.** On the other hand, it has been held,
in a case regarding the statute of limitations, that a citizen of New
Orleans was an alien enemy, even when the city was occupied by
United States troops.*^ But a contract made between a British
subject domiciled in New Orleans and a loyal citizen of the United
States residing there, but acting as agent for an alien enemy, has
been held to be void.*^ This has also been held to be the case with
a contract between a Danish subject domiciled in New York and an
alien enemy who was temporarily there, but resided in Texas.**

Contracts between Alien Enemies — Insurance.

§ 250. It is a general rule that all contracts between alien ene-
mies during war are void,'^*' But existing and continuing contracts

*2 U. S. V. Six Boxes of Arms. 1 Bond, 446, Fed. Cas. No. 16,295.

43 McCormick v. Arnspiger, 3S Tex. 569.

44 Hawver v. Seibert, 4 W. Va. 586.

4 5 Hyatt V. James, 2 Bush (Ky.) 463.

46 Ensley v. U. S., 6 Ct. CI. 2S2; Cutuer v. U. S., Id. 415; Lacy v. Sugarman,
12 Heisk. (Tenn.) 354. And see U. S. Stat. July 2, 1S64, § 4.

4T Perkins v. Rogers, 35 Ind. 124.

4 8 Montgomery v. U. S., 15 Wall. 395.

49 Habricht v. Alexander, 1 Woods, 413, Fed. Cas. No. 5.SS6.

soByles, Bills, 70; Chit. Bills, IS; 1 Daniel, Neg. Inst. 221; 1 Edw. Bills
& N. § 44; 1 Pars. Notes & B. 151; Story, Bills, § 99; Story. Prom. Notes, §
04; Wheat. Int. Law, 392; Whart. Confl. Laws, § 497; Willison v. Patteson,

(439)



§ 250 CAPACITY ALIEN ENEMIES. (Ch. 8

are suspended and not annulled by war.'*^ If goods are delivered
after the war has come to an end, upon a sale made during the war,
this is a war contract, and void as such, and no action lies for the
goods. ^^

On the other hand, a contract of insurance is not annulled, but
merely suspended, by the war.^^ So, if insurance premiums are not
paid during the war, payment made and accepted after it is ended
will revive the contract of insurance.^* But, where the payment of
the premium is made a condition precedent in the policy, its non-
payment will work a forfeiture although made unavoidable by the
outbreak of the war.'*'* And in such case the tender of the unpaid
premium after the close of the war will not revive the policy."® If,
however, the premiums were tendered during the war to a local agent
residing in the same country, the policy wall not be forfeited, and
recovery may be had upon the death of the person insured during the



Online LibraryJoseph F. (Joseph Fitz) RandolphA treatise on the law of commercial paper; containing a full statement of existing American and foreign statutes, together with the text of the Commercial codes of Great Britain, France, Germany and Spain (Volume 1) → online text (page 76 of 125)