Whereas, consequently, the capture of the Leif Gundersen for the aforementioned reasons is justified; and whereas, finally, in the register of the dossier nothing proves that the Leif Gundersen was in the service of the enemy state itself and should on this account be considered as having lost the character of a neutral vessel:

Decides:

The capture of the Norwegian four-masted bark Leif Gundersen, together with its rigging, fittings, equipment and supplies of every nature effected on May 10, 1917, by the French naval authorities, is declared good and valid and the value thereof shall be paid to the rightful claimants of the proceeds of prizes in conformity with the laws and regulations.

The objects and the effects being the personal property of the captain and the crew shall be restored to the rightful claimants.

*

THE INDUSTRIE.

(Sasebo Prize Court, 1905. 2 Hurst & Bray's Russian and Japanese Prize Cases [1913] 323.)

The Industrie, owned by a German subject, J. Block, was chartered by an American, R. R. MacDiarmid, the proprietor of the Chefoo Daily News, a paper expressing pro-Russian views. She sailed from Shanghai to Tsushima, returned to Shanghai, and then proceeded to cruise in the neighborhood of the Japanese fleet, where she was captured. She had on board a German subject purporting to act as correspondent of the Chefoo Daily News but both he and the master in their evidence before the court were disposed to accept the suggestion that the ship was under contract of sale to the Russian Government, and that any news obtained would be supplied to the Russian authorities.

The owner made a claim for the release of the ship, and the case came before the Sasebo Prize Court, which gave judgment condemning the ship on July 13, 1905.

*

The conclusion of the court is as follows:

To watch one of the belligerents and report military secrets to the other constitutes unneutral service, and International Law allows the condemnation of vessels employed for such a purpose. The claimant alleges that the Industrie was reporting for the Chefoo Daily News, that that newspaper was not under the patronage of the Russian government, and that the reporter on board the vessel was an ordinary newspaper correspondent, who watched impartially the movements of both the Japanese and the Russian fleets. But the Chefoo Daily News is a small paper which first appeared about the time of the outbreak of the Russo-Japanese War, and had not sufficient means to send out. a ship for its own purposes. It is also notorious that the newspaper

advocated the Russian cause, and deliberately gave publicity in its columns to anything disadvantageous to Japan. Moreover, in answer to the question whether he did not think it true that the Chefoo Daily News was an organ of the Russian government, Bannier said, “I did not know that before but your question makes me think it is possible that the Chefoo Daily News is receiving the patronage of the Russian government, as it is a small paper. At any rate, I cannot affirm that the newspaper is not receiving patronage of the Russian government." He also answered another question as follows: "I think that my reports would be transmitted to the Russian consul at Chefoo or Shanghai and thence to the Russian government. I did not know that when I left Shanghai, and my intention was to report all that I saw, not only of the Japanese, but also of the Russian fleet. I think, therefore, that all my reports might assist the Russian government." From these statements of Bannier, from similar statements of Uddine, the master, and from the fact that there was no vessel of the Russian fleet to be seen in the Eastern seas at that time, it is reasonable to infer that the Russian government took advantage of the fact that the Chefoo Daily News was a neutral paper, subsidized it, and sent the vessel to watch the Japanese fleet and to report military secrets,; whilst ostensibly collecting news for the paper, and that the claimant knew of the scheme. The ship must, therefore, be held to have been employed to watch the movements of the Japanese fleet and to report them to the enemy. Consequently, she must be condemned. The other arguments of the claimant need not be dealt with.

Decision is therefore given as above.12

12 On appeal of the Higher Prize Court, the decision was affirmed, that tribunal saying:

"For the above reasons it is clear that this ship attempted to discover military secrets, and was employed by the enemy; and, therefore, the Prize Court was right in condemning her." Page 330.

The Quang-Nam, 2 Hurst & Bray's Russian and Japanese Prize Cases, 343 (1905, 1906), belonged to a French company and was therefore a neutral ship. It was captured in a locality where information might be had as to Japanese defences. The court found that the charter party was not on board, and that the movements previous to capture did not suggest an ordinary mercantile voyage.

The Sasebo Prize Court held on the facts as found, that the ship was employed by the enemy government, and was therefore liable to condemnation. "When a ship," the court said, "though neutral, has taken part in reconnoitering the defences and the movements of a squadron for the assistance of the enemy, as in this case, her condemnation is allowed by international law. For these reasons, this ship should be condemned."

On appeal, the Higher Prize Court held that: "The Prize Court was therefore right in holding that this vessel was engaged in the duty of reconnoitering the condition of our defences and the movements of our fleet in the interests of the enemy, and in condemning her accordingly."

In commenting upon these cases Mr. J. A. Hall says, in his Law of Naval Warfare (2d Ed., 1921) p. 244, note: "The same principles would apply in the case of neutral aircraft in private ownership."

SECTION 2.-RELATIONS WITH INSURGENTS

DE WUTZ v. HENDRICKS.

(Court of Common Pleas, 1824. 2 Bing. 314.)

The plaintiff had proposed to raise a loan for the Greeks in arms against the government of the Porte. For this purpose he lodged with the defendant, a stockbroker, an instrument which was alleged to be a power of attorney, signed abroad by the exarch of Ravenna, but which turned out to have been fabricated in London; and the defendant, at his request, procured to be engraved certain scrip receipts, bearing a stamp. Suspicions having arisen as to the accuracy of the plaintiff's representations, the project for a loan failed, and the defendant refused to return to the plaintiff these papers, except upon receiving commission for scrip; which commission the plaintiff offered to pay, provided the defendant would transfer to the plaintiff the scrip on which he claimed commission. No scrip, however, had ever been raised.

The plaintiff having in vain offered to comply with all other demands made by the defendant, sued in trover for the papers specified above, when the jury (at the trial before Best, C. J., London sittings after Trinity term last), being led to believe that the whole transaction was a fraud on the part of the plaintiff, found a verdict for the defendant.

Pell, Serjt., now moved for a new trial, on the ground that the circumstance of the plaintiff having been engaged in a fraudulent transaction (admitting such to have been the case) did not deprive him of property in his own papers. If, instead of papers, he had deposited a box of jewels with the defendant, could it be contended that the defendant would have any right to retain them on this pretence. The principle was the same with respect to the papers, however small their value; but in truth they were of some value, inasmuch as an allowance would have been made at the stamp-office for the useless stamps.

BEST, C. J. It occurred to me at the trial that it was contrary to the law of nations (which in all cases of international law is adopted into the municipal code of every civilized country), for persons, in England to enter into engagements to raise money to support the subjects of a government in amity with our own, in hostilities against their government, and that no right of action could arise out of such a transaction. I stated my opinion to the counsel for the defendant, but he did not ask for a nonsuit, so I permitted the cause to proceed. In consequence of what I said, a note has since been sent me of a

case that occurred lately in chancery, in which the Lord Chancellor is reported to have said that English courts of justice will afford no assistance to persons who set about to raise loans for subjects of the king of Spain to enable them to prosecute a war against that sovereign. Had I been aware that my opinion was supported by such high authority (although the counsel for the defendant would not take the objection), I should have nonsuited the plaintiff.

On further consideration, I think that my opinion at the trial was right, and on that ground we ought not to grant a new trial. It appeared that placards had been stuck up in the city, stating that the plaintiff was not authorised by the Greek government to raise any money, and that he had been informed that on account of what was stated in these placards no money could be raised for him. The power of attorney, which it was pretended was sent from Greece, was proved to have been manufactured in this country, but by whom it was executed did not appear. I told the jury that, with respect to the power of attorney, there was no evidence that any instrument of that description had ever come to the hands of the defendant; for by power of attorney in the declaration, must be understood an instrument duly executed as a power of attorney. I further said, that if the plaintiff was attempting a fraud on the public by raising money on the false pretence of pledging the Greek governinent for its repay'ment, and in furtherance of that attempt delivered these papers to the defendant, he could maintain no action to recover them back. The jury, to my entire satisfaction, found for the defendant.

The rest of the court concurred, and Pell took nothing.

KENNETT et al. v. CHAMBERS.

(Supreme Court of the United States, 1852. 14 How. 38, 14 L. Ed. 316.)

Mr. Chief Justice TANEY delivered the opinion of the court.18 This is an appeal from the decree of the District Court of the United States for the District of Texas.

The appellants filed a bill in that court against the appellee, to obtain the specific execution of an agreement which is set out in full in the bill; and which they alleged was executed at the city of Cincinnati, in the state of Ohio, on or about the 16th of September, 1836. Some of the complainants claim as original parties to the contract, and the others as assignees of original parties, who have sold and assigned to them their interest.

The contract, after stating that it was entered into on the day and year above mentioned, between General T. Jefferson Chambers, of the Texan army, of the first part, and Morgan Neville and six others,

13 The statement of the case is omitted.

who are named in the agreement, of the city of Cincinnati, of the second part, proceeds to recite the motives and inducements of the parties in the following words:

"That the said party of the second part, being desirous of assisting the said General T. Jefferson Chambers, who is now engaged in raising, arming, and equipping volunteers for Texas, and who is in want of means therefor; and, being extremely desirous to advance the cause of freedom and the independence of Texas, have agreed to purchase of the said T. Jefferson Chambers, of his private estate, the lands hereinafter described."

And after this recital follows the agreement of Chambers, to sell and convey to them the land described in the agreement, situated in Texas, for the sum of twelve thousand five hundred dollars, which he acknowledged that he had received in their notes, payable in equal instalments of four, six, and twelve months, and he covenanted that he had a good title to this land, and would convey it with general warranty. There are other stipulations, on the part of Chambers, to secure the title to the parties, which it is unnecessary to state, as they are not material to the questions before the court.

After setting out the contract at large, the bill avers, that the notes given, as aforesaid, were all paid; and sets forth the manner in which the complainants, who were not parties to the original contract, had acquired their interest as assignees; and charges that, notwithstanding the full payment of the money, Chambers, under different pretexts, refuses to convey the land, according to the terms of his agree

ment.

It further states, that they are informed and believe that he received full compensation, in money, scrip, land, or other valuable property, for the supplies furnished by him, and in arming and equipping the Texan army referred to in the said contract, and which it was in part the object of the said parties of the second part to assist him to do, by the said advances made by them, as before stated, and which said advances did enable the said Chambers so to do.

To this bill the respondent (Chambers) demurred, and the principal question which arises on the demurrer is, whether the contract was a legal and valid one, and such as can be enforced by either party in a court of the United States. It appears on the face of it, and by the averments of the appellants in their bill, that it was made in Cincinnati, with a general in the Texan army, who was then engaged in raising, arming, and equipping volunteers for Texas, to carry on hostilities with Mexico; and that one of the inducements of the appellants, in entering into this contract and advancing the money, was to assist him in accomplishing these objects.

The District Court decided that the contract was illegal and void, and sustained the demurrer and dismissed the bill; and we think that the decision was right.