determination has been that insurance on enemies' ships during the war is unlawful; it might be going too far to say all trading withi enemies is unlawful, for that general doctrine would go a great way, even where only English goods are exported, and none of the enemies' imported, which may be very beneficial. I do not go on a foundation of that kind, and there have been several insurances of this sort during the war which a determination upon that point might hurt.' This however is but a doubtful opinion as to the legality of such insurances, and not very favorable to them. In Plancke v. Fletcher, Lord MANSFIELD is certainly reported to have said, 'It is indifferent whether the goods were English or French, the risk insured extends to all captures,' which seems at first to go a great way towards giving effect to insurances against British capture. But we must suppose this to have been said because the defendant did not press the objection; and if the party acquiesced, the expression gives no more weight to the case than belongs to any of the other cases which have been cited, such as Bermon v. Woodbridge, Eden v. Parkinson, and Tyson v. Gurney, in which the question was not raised at all. On the other hand, the cases of Brandon v. Nesbitt and Bristow v. Towers certainly proceed on the ground of alienage. There is no express declaration therefore of the Court of King's Bench, either for or against the legality of such insurances, and the question comes now to be decided for the first time. We are all of opinion that to insure enemies' property was at the common law illegal, for the reasons given by the two foreign jurists (Bynkershoek and Valin) to whom I have referred. If this be so, a contract of this kind entered into previous to the commencement of hostilities must be equally unavailing in a court of law, since it is equally injurious to the interests of the country; for if such a contract could be supported, a foreigner might insure previous to the war against all the evils incident to war. But it is said that the action is suspended, and that the indemnity comes so late that it does not strengthen the resources of the enemy during the war. The enemy however is very little injured by captures for which he is sure at some period or other to be repaid by the underwriter. Since the case of Bell v. Potts, it has been universally understood that all commercial intercourse with the enemy is to be considered as illegal at common law [though previous to that case a very learned judge (Mr. Justice BULLER, in Bell v. Gitson, 1 Bos. & Pull., 345) appears to have entertained doubts on that subject], and that consequently all insurances founded on such intercourse are also illegal. Why are they illegal? Because they are in contravention of his Majesty's object in making war, which is by the capture of the enemies' property, and by the prohibition of

any beneficial intercourse between them and his own subjects to cripple their commerce. The same reasoning which influenced the Court of King's Bench in their decision in Bell against Potts, seems decisive in the present case. For it being determined that during war all commercial intercourse with the enemy is illegal at common law, it follows that whatever contract tends to protect the enemy's property from the calamities of war, though effected antecedent to the war, is nevertheless illegal. It has been supposed that the doctrine which has prevailed respecting ransom bills tends to favor these insurances; but no action was ever maintained upon a ransom bill in a court of common law until the case of Ricord v. Bettenham, 3 Bur., 1734; 1 Bl., 563, and I have the authority of Sir Wm. Scott for saying, that in the Admiralty Court the suit was always instituted by the hostage. The case of Ricord v. Bettenham, however, certainly 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 (Doug., 641), and after argument, the Court of King's Bench held that it might be sustained. But in Anthon v. Fisher (Doug., 649, 650, in notes), the contrary was expressly determined upon a writ of error in the Exchequer Chamber. I forbear to enter into the arguments suggested at the bar in favor of the defendant, that the law will not enforce a contract founded on a transaction detrimental to the public policy of the state. The ground upon which we decide this case is, that when a British subject insures against captures, the law infers that the contract contains an exception of captures made by the government of his own country; and that if he had expressly insured against British capture, such a contract would be abrogated by the law of England. With respect to the argument insisted upon by way of answer to the public inconvenience likely to arise from permitting such contracts to be enforced, viz., that all contracts made with an enemy enure to the benefit of the King during the war, and that he may enforce payment of any debt due to an alien enemy from any of his subjects, we think it is not entitled to much weight. Such a course of proceeding never has been adopted; nor is it very probable that it ever will be adopted, as well from the difficulties attending it, as the disinclination to put in force such a prerogative. The plaintiff, I am sorry to say, is not entitled to a return of premium, because the contract was legal at the time the risk commenced, and was a good insurance against all other losses but that arising from capture by the forces of Great Britain.

"Judgment for the defendant."

ANTOINE v. MORSHEAD.

COMMON PLEAS, 1815.

(6 Taunton, 237.)

A British prisoner in France drew five bills of exchange on his son in England -the defendant--made payable to certain of his fellow-prisoners, also British subjects. The payees endorsed the bills to the plaintiff, a French banker at Verdun, and they were accepted by the defendant.

In a suit, after the close of the war, held, that the plaintiff could recover on the bills.

This was an action upon five bills of exchange, all drawn by the father of the defendant, a British subject, on the 12th of September, 1806, while he was detained a prisoner at Verdun in France during the late war with that country, payable, some to Tyndall, some to Estwicke, both British subjects in like manner detained prisoners there, at one year after date, indorsed to the plaintiff, who was a French subject and a banker at Verdun, and accepted by the defendant. The cause was tried at Guildhall at the sittings after Easter term, 1815, before C. J., when it was contended on the part of the defendant, that it would be treason to pay the bills, by the statute 34 G. 3, c. 9, §§ 1, 4. GIBBS, C. J., refused to hear the objection: he did not know to what extent it might be carried, but if it could be supported to its full extent, many of our miserable fellow-subjects detained in France must have starved. It was also objected, that this being a contract with an alien enemy, was not merely suspended during the war, but absolutely void; the Chief Justice thought otherwise, and the jury found a verdict for the plaintiff.

Vaughan, Serjt., on a former day in this term moved for a rule nisi on both these objections, when, it being suggested on the part of the plaintiff, that the statute 34 G. 3, c. 9, had expired at the peace of 1800 and never been re-enacted, the court gave time to ascertain that fact, and that being found to be the case, Vaughan now moved upon the second objection only, namely, that the indorsement of the bill to an alien enemy was void. For this he cited Anthon v. Fisher, where it is held that no action can be maintained by an alien in the courts of this country on a ransom bill, because it is a right claimed to be acquired by him in actual war. Lord Ashburton's argument in Ricord v. Bettenham, 3 Burr., 1734, which decision is overruled by Anthon v. Fisher, is to be called in aid. If a bond be given to an

alien enemy, it is good quoad the obligor, that is, it enures only for the benefit of the Crown. And if so of a bond, the law must be the like on a bill of exchange. So is it of contracts of insurance made with an alien enemy. Flindt v. Waters, 15 East., 266, Lord ELLENBOROUGH, C. J., says the defense of alien enemy may go to the contract itself, on which the plaintiff sues, and operate as a perpetual bar; though in that case the contracting party having become an enemy after the contract, it was held to be only a temporary suspension of the right to sue, but he showed a disposition to confirm the cases of Brandon v. Nesbitt, 6 T. R., 23, and Bristow v. Towers, 6 T. R., 35. No case has decided that a contract made with an alien enemy in time of war may be ever afterwards enforced. Chief Baron Gilbert lays it down, that upon the plea of alien enemy the right of the plaintiff is forfeited to the crown, as a species of reprisal upon the state committing hostility.

GIBBS, C. J.:-"It will not be useless to consider what legal propositions can be deduced from the cases cited on behalf of the defendant, and to try how far they are applicable to the present case. 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? I can recollect but two principles from the cases cited by the counsel for the defendant, and they are principles on which there never was the slightest doubt. First, that a contract made with an alien enemy in time of war and that of such a nature that it endangers the security, or is against the policy of this country, is void. Such are policies of insurance to protect an enemy's trade. Another principle is, that however valid a contract originally may be, if the party become an alien enemy he cannot sue. The Crown, during the war, may lay hands on the debt, and recover it, but if it do not, then, on the return of peace the rights of the contracting alien are restored, and he may himself sue. No other principle is to be deduced. The first may be laid out of the case, for this was not in its creation a contract made with an alien enemy. The second question is, whether the bill came to the hands of the plaintiff by a good title? Under the circumstances of this case, not meaning to lay down any general rule beyond this case, I am of opinion that the indorsement to the plaintiff conveyed to him a legal title in this bill, on which the king might have sued in the time of the war,

and he not having so done, the plaintiff might sue after peace was proclaimed."

HEATH, J., was absent.

CHAMBRE, J.—“I am perfectly of the same opinion, and it would be of very mischievous consequence if it were otherwise."

DALLAS, J.-" This is not a contract between a subject of this country and an alien enemy, nor is it a contract of that sort to which the principle can be applied. That principle is, that there shall be no communication with the enemy in time of war, but this is a contract between two subjects in an enemy's country, which is perfectly legal.

SECTION 32.-RANSOM BILLS.

"Ruled refused."

CORNU v. BLACKBURNE.

KING'S BENCH, 1781.

(2 Douglas, 640.)

A French captor had ransomed a British vessel, taken a hostage, and was then in turn captured by British cruisers; but he concealed the ransom bill, and afterward sued upon it. Held, that he could recover in the action.

This was the case of an English vessel and cargo captured by a French privateer and ransomed and a hostage taken as security; but the privateer was in turn captured by two English frigates and taken into an English port. The ransom bill was concealed, however, by the first captor, and not given up; and the present suit is on the ransom bill. This document is as follows:

"No. 66. Registered the present ransom bill at the Admiralty office, Boulogne, the 25th October, 1779, and delivered in double to Captain Robert Cornu, commanding, the cutter, the Princesse de Robecq privateer, of this port, by me underwritten Chief Register. Signed, Merlin, Boulogne.'-We the underwitten Robert Cornu of Boulogne, commander of the ship the Princesse de Robecq, privateer of Boulogne, and Thomas Finchett of Liverpool, master of the ship the Dolly of Liverpoole, have agreed as followeth, viz.-That I, Robert Cornu, commander of the said privateer, acknowledge to have ransomed the said ship the Dolly of Liverpoole, belonging to John Blackburne, burgher of Liverpoole, burthen 105 tons, on the 6th of June, in the year 1780, at the heighth of Edinburgh, going from Lynn to Liverpoole in England, under English colours, and passport of said England, loaded with wheat, for the account of John Blackburne, burgler of Liver