The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

BIBLIOGRAPHY

Declaration of War and its Immediate Effects. -- Anis, Du droit de déclarer la guerre ( 1909); * Baker and McKernan, Laws of Warfare ( 1919), 1 ff. (for citations from the authorities); Bellat, La déclarationde guerre

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leading case on this subject. For a note on this important case, which was decided in 1857, see Scott, Cases, 602.

The leading case on the dissolution of commercial partnerships is Griswold v. Waddington (Court of Errors of N. Y., 1819), 16 Johnson, 438 and Evans, 477 or Scott, 604. The leading case on ordinary contracts is Ex parte Boussmaker (Chancery, 1806), 13 Vesey Jr. 17, and Scott, 549. In Hoare v. Allen (Sup. Ct. of Pa., 1789), 2 Dallas, 102, 602, it was held that interest on a mortgage due a British subject residing in London in 1773 did not run during the Revolutionary War. But this decision is in conflict with Ex parte Boussmaker (see above). In Hanger v. Abbott ( 1867), 6 Wallace, 532, and Evans, 497 or Scott, 613, our Supreme Court that held the Statute of Limitations did not run whilst the right of action is suspended by war.

In N. Y. Life Ins. Co. v. Stathem ( 1876), 93 U. S. 24, and Scott, 617, our Supreme Court decided that non-payment of premiums, due to the outbreak of the war, annuls a life insurance policy "in which time is material and of the essence of the contract"; but that the insured is "fairly entitled to have the equitable value of his policy," i.e. the amount of the premiums actually paid, minus the value of the insurance enjoyed.

In Kershaw v. Kelsey (see above) Justice Bray thus summarized the law governing intercourse between enemy subjects as judicially declared in Great Britain and the United States:

It "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 or contract which tends to increase his resources; and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or by orders for the delivery of either, between the two countries, directly or indirectly, or through intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission or by insurances upon trade or with the enemy. Beyond the principles of these cases the prohibition has not been carried by judicial decision. . . .

"At this age of the world," he continued, "when all the tendencies of the law of nations are to exempt individuals 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."

Consequently, the Supreme Court of Massachusetts unanimously decided that the plaintiff, the owner of a sugar plantation in Mississippi, might recover unpaid rent, etc., on land which he had leased to the defendant, a citizen of Massachusetts, (luring the Civil War. "It is perhaps not too much to say that this is the leading American case on this subject. It has been repeatedly cited and followed." Scott, 538 n. (ed. of 1902).

On the Effect of War on Contracts, Corporations, etc., see especially: Baker and McKernan, Laws of Warfare ( 1919), 68-122, 270-373, 831 ff. (for citations); Baty, Int. Law in So. Africa ( 1900), ch. 6, in 31 Law Quar. Rev. ( 1915), 30-49, and in J. C. L. ( Aug., 1908); Baty and Morgan, War: Its Conduct and Legal Results ( 1915), particularly Pt. IV, chs. 1-5; * Bentwich, War and Private Property ( 1907), ch. 5, and in 9 A. J. ( 1915), 352 ff. and 642 ff.; Borchard,

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