all events, he chose, on the whole, to acquiesce in it, and in his bill to foreclose the stock, presented before the civil commission, he makes no claim but that of holder of the mortgage, affirming and claiming under Nelson's title throughout. And in his answer to the present bill he nowhere hints that Nelson was guilty of any bad faith in the transaction, or made any agreement to hold the stock for him, or in any other way than as a bona fide purchaser thereof. And it is hardly correct to say that Nelson incurred no obligation in the transaction. He agreed to pay the whole amount immediately in case of failure to pay any instalment after the receipt by the company of the net quarterly earnings. And this condition was not in the nature of a penalty, as surmised by the appellees; but was of the substance of the contract. So that, on failure to pay or tender the money received by him, or by the company, on account of the stock purchased, the whole debt became due and payable as a personal obligation of Nelson.

But, at all events, the stock was actually sold and transferred, and became the property of Nelson, and was possessed by him. The contract was an executed contract, and that transaction cannot now be impeached.

The next question relates to the character of the instrument given by Nelson to Pepper as security for the payment of his notes. Was it a conditional sale, or was it a mortgage? On this question hardly a doubt can be raised. The court is asked by the appellant, under the circumstances of the case, which the appellant asserts to have been unconscionable on Nelson's part, to consider the instrument as a conditional conveyance of the stock, and not a mortgage. But the court has no power over the transaction to make it other than, or different from, what the parties themselves made it. If it is a mortgage, it is the duty of the court to declare it a mortgage; and if it is a mortgage it has, perforce, all the incidents and privileges of a mortgage; and that it is a mortgage there is no room for question. The principal engagement is contained in the note, which creates a debt as soon as earnings or dividends are received. The other instrument is secondary, and is intended as security for the payment of the note. The appellee himself, in his proceedings before the civil commission, treats his claim, as a debt, and the instrument of

security as a mortgage. He calls it a mortgage; and the doctrine of "once a mortgage always a mortgage," applies to it.

Then, being a mortgage, whether of real or personal property, the mortgagor has an equity of redemption, unless it has been extinguished in some legal way. The great question of the cause is, whether the equity of redemption has been extinguished.

It is unnecessary to decide whether the mortgage was one of real or of personal estate, or whether it was a legal or only an equitable mortgage. As no attempt has been made to cut off the equity of redemption, in any other manner than by legal proceedings, the question is reduced to the simple one, whether those legal proceedings are valid and effectual for the purpose.

It is objected that the court or civil commission was not legally established; but it is not necessary to determine that question, as the proceedings themselves were fatally defective. The defendants in the proceedings (the appellees here) were within the Confederate lines at the time, and it was unlawful for them to cross those lines. Two of them had been expelled the Union lines by military authority, and were not permitted to return. The other, Benjamin May, had never left the Confederate lines. A notice directed to them and published in a newspaper was a mere idle form. They could not lawfully see nor obey it. As to them, the proceedings were wholly void and inoperative.

This leaves the equity of redemption in the mortgaged property unextinguished; and it is, therefore, the right of the appellees to redeem it.

In the opinion of the court, the whole principal and interest of the notes have become due and payable, and a redemption and retransfer of the stock should be decreed only on condition of the payment of principal and interest in full, after giving to the appellees credit for the sums received by the appellant; legal interest on each side to be allowed.

The decree of the Circuit Court, therefore, will be so far modified that, instead of requiring the appellant to forthwith transfer the stock, as directed in the decree, he be decreed to transfer it to the defendants, Miriam W. Nelson and Benjamin May, respectively, as therein directed, upon payment by the appellees to the appellant of the amount which shall be found to be due to him on the said two notes, after taking and stating the account

in the said decree afterwards directed; neither party to recover costs of the other in this appeal.

where bills are drawn by prisoners of paid to him personally in the debtor's war for subsistence or for their ransom; Antoine v. Moorhead, 6 Taunt. 237; Vattel, Droit des Gens, B. 3, Ch. 16, sec. 264; Cornu v. Blackburne, Doug. 641; Yates v. Hall, 1 T. R. 73; Goodrich v. Gordon, 15 Johns. 6; Griswold v. Waddington, 16 Johns. 451; Kershaw v. Kelsey, 100 Mass. 561. But, contra, see Havelock v. Rockwood, 8 T. R. 269; Potts v. Bell, Id. 548. It is also unlawful for one having goods in an enemy's country, at the outbreak of war, to withdraw them to the country of the owner; certainly, unless it be done promptly. If left an unreasonable time, they become impressed with the character of enemy's goods, and are lawful prize: The Rapid, 8 Cranch 155; The Wm. Bagaley, 5 Wal. 377; The Hampton, Id. 372. So, the contract of partnership is dissolved, or, at least, suspended, by the state of war: Griswold v. Waddington, 15 Johns. 57; s. c., on appeal, 16 Johns. 438; The Wm. Bagaley, 5 Wal. 377. It is unlawful to complete contracts with an enemy after war breaks

country, or to an agent authorized to receive it residing there, but appointed before the war. See Conn v. Penn, 1 Pet. C. C. 524-5; The United States v. Grossmayer, 9 Wal. 72.

It is unlawful to correspond with an enemy by letter: Griswold v. Wadding-· ton, 16 Johns. 473, referring to the action of the Continental Congress in June 1778, and citing from its Journal, vol. 4, p. 254; so, doubtless, would it be to use for any private unlicensed purpose the telegraph, carrier pigeons, balloons, signals, or communications in newspapers, directed to, or intended to reach, an enemy.

out.

To this rule the following case was held to be an exception. Where A. contracted with B. to deliver to him lumber, and war supervened between their respective countries, before the contract was fully executed, held, that B. might pay a balance due for lumber delivered, in pursuance of the contract, in B.'s own country, to A.'s agent residing there, although such delivery took place after the war broke out: Buchanan' v. Curry, 19 Johns. 137. It could not benefit the enemy that A. delivered the lumber here; and, though it might benefit him if the price paid were to be transmitted to him by his agent, still it must be presumed it would not be so transmitted, but that the agent would retain it here while the war lasted. On the same principle it has been held, that it is not unlawful to pay a debt to an enemy, flagrante bello, provided it be

From the same principles, it follows, that interest ceases to accrue upon contracts during the continuance of a war between the countries of the parties to them: Hoare v. Allen, 2 Dal. 102; Foxcraft v. Nagle, Id. 132; McCall v. Turner, 1 Call 133; Brewer v. Hastie, 3 Call 22; Paul v. Christie, 4 H. & MeH. 161; Conn v. Penn, 1 Pet. C. C. 523; Denniston v. Imbrie, 3 Wash. C. C. 396; Ward v. Smith, 7 Wal. 447; Bigler v. Waller, 3 Chicago Leg. News 26; Yeaton v. Berney, Id. 82; Tucker v. Watson, Am. Law Reg. (N. S.) 220. So, statutes of limitation are suspended as to such contracts: Wall v. Robson, 2 N. & McC. 498; Moses v. Jones, Id. 259; Nicks] v. Martindale, Harper (S. C.) 138; Ogden v. Blackledge, 2 Cranch 272; Hopkirk v. Bell, 3 Cranch 54; Hanger v. Abbott, 6 Wal. 532; Jackson Ins. Co. v. Stewart, 6 Am. Law Reg. (N. S.) 732; Conn. Ins. Co. v. Hall, 7 Am. Law Reg. (N. S.) 606; Semmes v. Ins. Co., 8 Am. Law Reg. (N. S.) 673. To the rule respecting interest there are some exceptions:— Where the hostile creditor resides in the debtor's country, or has an agent there authorized to receive the debt; and where the debt was made payable at a particular place in the debtor's country,