nion, the verdict for the plaintiffs was to stand for an amount to be determined by arbitration. If the court was of a contrary opinion, a verdict was to be entered for the defendants accordingly, and on such issues as the court should direct, and for the plaintiffs on the other issues.

James Wilde, Q. C. (with whom was Unthank), for the plaintiffs.—Since the case of Esposito v. Bowden, 29 L. T. 295, it may be considered as settled that a declaration of war puts an end to all contracts between British subjects and foreigners, which are to be performed in the enemy's

country.(a) The judgment *must, therefore, be for the defend*577] ants upon the demurrer to the sixth plea. Upon the special

case, the question will be whether there was a breach of the charterparty before the declaration of war; and that question is altogether independent of that decided in Esposito v. Bowden. By the charterparty the charterers were to be allowed a certain number of lay days, and ten days additional at 57. per day. The Lavinia arrived at Odessa on the 6th of February, 1854. On the 14th of March she had completed the discharge of her outward cargo, and was ready to load under the charter on the 15th. On the 28th, war was declared between this country and Russia; and it was known at Odessa on the 6th of April. The breach relied on is, that, on being informed that the Lavinia was ready to load, the charterers' agents informed the master that the contract had been ceded to Kellner, and referred him to Kellner for a cargo. This took place before the date of the declaration of war. No cargo being provided, the master waited until the lay days expired, and then sailed away. [WILLIAMS, J.-When do you say that a breach occurred?] When the defendants renounced the contract, and the master, acting upon that renunciation, applied to Kellner for a cargo. In Reid v. Hoskins and Avery v. Bowden, 6 Ellis & B. 953 (E. C. L. R. vol. 88), there was no renunciation of the contract by the defendants below, or acceptance of such renunciation by the plaintiffs below, before the date of the declaration of war.(b) [COCKBURN, C. J.-Notwithstanding the cession by the charterers of the benefit of the contract to Kellner, would it not have been competent to them afterwards to furnish a cargo?] If any one had provided a cargo, the plaintiff would have sustained no damage. But here, the charterers profess to

(a) In delivering the judgment of the Court of Exchequer Chamber in that case, Willes, J., says: "It is now fully established, that, inasmuch as the presumed object of war is, as much to cripple the enemy's commerce as to capture his property, a declaration of war imports a prohibition of commercial intercourse and correspondence with the inhabitants of the enemy's country, and that such intercourse, except with the license of the crown, is illegal." "The sovereign of this country has the right to proclaim war, with all its consequences; enforcing or mitigating them either generally or in particular instances, as may be thought best by her government. One of those consequences, not removed or dispensed with by any treaty, order in council, or license, or by any special circumstances of necessity in the particular case, is, that trade and dealing with the enemy, unless expressly permitted, are forbidden."

(b) See Reid v. Hoskins, 4 Ellis & B. 979 (E. C. L. R. vol. 82), 5 Ellis & B. 729 (E. C. L. R. vol. 85); Avery v. Bowden, 5 Ellis & B. 714.

be no longer bound by the charter-party; and Kellner also re[*578 fuses to ship a cargo. [COCKBURN, C. J.-The mere fact of the defendants having arranged with Kellner for furnishing a cargo, does not amount to a renunciation of the contract. We must look at the whole facts. As late as the 18th of April, the master is in communication with the Messrs. Buba about the loading.] In Hochster v. De La Tour, 2 Ellis & B. 678 (E. C. L. R. vol. 75), the plaintiff declared on an agreement to employ him as a courier, from a day subsequent to the date of the writ,-averring that, from the time of the agreement, till the refusal by the defendant after mentioned, he (the plaintiff) was ready and willing to perform his part of the contract; and alleging for breach, that, before the day for the commencement of the employment, the defendant refused to perform the agreement, and discharged the plaintiff from performing it, and wrongfully wholly put an end to the agreement. Upon motion in arrest of judgment, it was held, that a party to an executory agreement may, before the time for executing it, break the agreement, either by disabling himself from fulfilling it, or by renouncing the contract, and that an action will lie for such breach before the time for the fulfilment of the agreement; and that it sufficiently appeared on the face of the declaration that there was on the part of the defendant, not merely an intention to break the contract, of which intention he might repent, but a renunciation communicated to the plaintiff, on which the plaintiff was entitled to act; and, consequently, that the plaintiff was entitled to judgment. So, here, the defendants have no right to affect to absolve themselves from the contract by ceding their rights under it to another. [COCKBURN, C. J.-They do not absolve themselves from the contract: on the contrary, their very assertion that they have transferred their rights under it to another, keeps the contract *alive.] They absolutely ignore the [*579 master's claim on them for a cargo, and refer him to Kellner; and the master thereupon addresses himself to Kellner. Their letter of the 18th of April expressly speaks of their having ceded the charterparty, with all its rights and obligations," to Kellner. That is, in effect, saying that they will have nothing further to do with the contract. [WILLIAMS, J.-Could the master have refused to receive a cargo from Kellner within the lay days?] That would depend upon whether or not he had attorned to Kellner. [COCKBURN, C. J.-Would the master of the Lavinia have been justified in sailing away immediately upon his receiving the intimation from Messrs. Buba that they had ceded their rights under the charter-party to Kellner?] It is submitted that he would: he was not bound to receive a cargo from anybody else. [COCKBURN, C. J.-Was he not bound to wait for the lay days to run out?] No. Reid v. Hoskins, and Avery v. Bowden, show that the renunciation must be acted upon at the time. [COCKBURN, C. J.— No doubt, where the contract is entirely repudiated.] It is difficult to

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reconcile Hochster v. De La Tour with the cases in the Exchequer Chamber. Here, the renunciation was complete at the time; or, at all events, it became so when the master went to Kellner. A contract is broken when the party incapacitates himself from performing it: Lovelock v. Franklyn, 8 Q. B. 371 (E. C. L. R. vol. 55). [COCKBURN, C. J. -I do not find that the master ever foregoes his claim upon the charterers for a cargo.] If once there was a complete renunciation, acted upon by the master, he had no power afterwards to waive the breach. [COCKBURN, C. J.-Avery v. Bowden, 5 Ellis & B. 714 (E. C. L. R. vol. 85), is a distinct authority to show that the charterer's saying "I cannot perform the contract," does not amount to a breach until the expiration of the time stipulated by the contract for its performance. It is no renunciation: he *does not affect to say that he thereby *580] gets rid of his obligation. In that case, the defendant by a charter-party agreed to load a cargo on board the plaintiffs' ship at Odessa. To a count for not loading, the defendant pleaded, that, before the cause of action arose, war was declared between Great Britain and Russia, which rescinded the contract. It appeared, that, after the ship had arrived, and before the declaration of war, the defendants' agent had repeatedly told the master that he, the agent, had no cargo for the ship, and that he had better go away: but the master continued to require a cargo till the declaration of war was known at Odessa, which was before the ship's laying days had expired: and it was held, that the refusal of the agent before the time for loading had expired, not being acted on as a renunciation of the contract, was not a cause of action, and that the plea was therefore proved.] Bubas' last letter clearly shows that they intended to repudiate all obligation to load under the charter-party. In Cort v. The Ambergate Railway Company, 17 Q. B. 127 (E. C. L. R. vol. 79), it was held, that, on a contract for the manufacturing and supply of goods from time to time, to be paid for after delivery, if the purchaser, having accepted and paid for a portion of the goods, gives notice to the vendor not to manufacture any more, as the purchaser has no occasion for them, and will not accept or pay for them, the vendor having been desirous and able to complete the supply, such vendor may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the contract. Lord Campbell there says: "Was there not evidence that the defendants refused to accept the residue of the chairs? If they had said, Make no more for us, for we will have nothing to do with them,' was not that refusing to accept or receive them according to the contract?" *Here, there was, it is submitted, an absolute renun*581] ciation of the contract by the agents of the charterers, acted upon by the master by his placing the vessel at the disposal of Kellner, and consequently a complete breach before the date of the declaration of war.

Bovill, Q. C., contrà.-The case is disposed of by Avery v. Bowden, 5 Ellis & B. 714 (E. C. L. R. vol. 85), 6 Ellis & B. 953 (E. C. L. R. vol. 88). [He was stopped by the court.]

COCKBURN, C. J.-I am clearly of opinion that this case falls within the principle of the decisions of the Exchequer Chamber in Avery v. Bowden, and Esposito v. Bowden. There was no breach before the day upon which the declaration of war between this country and Russia took place. The defendants, therefore, are entitled to judgment.

CRESSWELL, J.-I am entirely of the same opinion. The sixth plea is disposed of by the judgment of the Exchequer Chamber in Esposito v. Bowden; and the defendants are entitled to our judgment on the special case upon the authority of Avery v. Bowden and Reid v. Hoskins.

WILLIAMS, J.-Not only do I agree with my Lord and my Brother Cresswell that this case is governed by the decisions in Avery v. Bowden, Reid v. Hoskins, and Esposito v. Bowden, but I feel bound to add that I dissent entirely from every word of Mr. Wilde's argument.

WILLES, J.-I also think that the defendants are, as well upon principle as upon authority, entitled to our judgment both upon the demurrer to the sixth plea and upon the special case.

The Rapid, 1 Gall. 295; The St. Lawrence, Id. 467; The Joseph, Id. 545.

After a declaration of war, an American citizen cannot lawfully send a vessel to the enemy's country to bring away his property; and if he does, the property may be captured and condemned as enemy property: The Rapid, 8 Cranch, 155.

Judgment for the defendant.

executory contracts between the citizens or subjects of the two nations at war: The Francis, 1 Gallis. 448; Brown v. The United States, 8 Cranch, 110.

No valid contract, express or implied, except for the payment of ransom money, can arise or subsist between a citizen of this country and the enemy, without the permission of government: Griswold v. Waddington, 16 Johns.

A state of war puts an end to all 438.

*582]

*EMERY v. CLARK. June 5.

A discharge of the principal under the insolvent debtors act, 1 & 2 Vict. c. 110, does not exonerate him from the claim of a surety on a bond, in respect of payments subsequently made under it by the latter.

THIS was an action of debt for money paid by the plaintiff for the defendant, and for money found due from the defendant to the plaintiff on accounts stated between them.

The defendant pleaded,-first, never indebted,-secondly, that, before the commencement of this suit, to wit, on the 13th of July, 1854, by the order and adjudication then made by the judge of the county court of Essex, pursuant to the acts then in force for the relief of insolvent debtors in England, at the county court of Essex holden at Chelmsford, before the said judge on that day, he the defendant was duly and pursuant to the acts then in force for the relief of insolvent debtors in England, discharged of and from the said several causes of action in the declaration mentioned, and each and every of them, which said order remained in force thitherto.

Issue having been joined upon these pleas, the following case was, pursuant to a judge's order made by consent, stated for the opinion of the court:

By a certain bond, dated the 19th of July, 1852, and on that day duly executed by the several obligors therein named, being the abovenamed defendant and plaintiff, one John Edie, and one W. L. Clark, these four persons became held and firmly bound to William Hopkinson in the sum of 1000l., to be paid to the said William Hopkinson, or to his certain attorney, executors, administrators, or assigns, for which payment they the defendant, the plaintiff, John Edie, and W. L. Clark, *bound themselves, and each of them, and any two and any three *583] of them, their and each of their heirs, executors, and administrators, jointly, severally, and respectively, firmly by the said bond.

The said bond was subject to a certain condition thereunder written for (amongst other things) the payment by the said obligors to the said William Hopkinson of the debt or principal sum of 5227., with interest for the same at the rate of 51. per cent. per annum, by certain instalments and on certain days in the said condition mentioned; and also, until the whole of such principal sum and interest should be fully paid and satisfied as in the said condition mentioned, from time to time duly and punctually paying to the National Provident Institution in the said condition mentioned (amongst other sums) the annual premium of 67. 108. 8d. at least fifteen days before the last day on which the same was to be paid, in order to keep on foot a certain policy of assurance in the said condition mentioned.

[A copy of the bond and condition was set out in the case.]

The plaintiff and the said John Edie and William Lewis Clark