shall be deemed to continue as it was at the time of shipment till the actual delivery; this arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist, all goods shipped in the enemy's country would be protected by transfers, which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property cannot be converted in transitu, and in that sense I recognize it as the rule of this Court. But this, as I have said, arises out of a state of war, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of peace. The transfer must, therefore, be considered as not invalid in point of law at the time of the contract; and being made before the war, it must be judged according to the ordinary rules of commerce. (The Vrow Margaretha, 1 Rob. 337.)

Property sent from a late hostile colony cannot change its character in transitu, although the owners become British subjects by capitulation before capture. The Negotie en Zeevaart sailed from Demerara for Middelburgh, in Holland, 30th Jan., 1781, about six weeks after the hostilities against Holland. Demerara surrendered to the British forces on the 14th March; the Negotie was captured at sea on the 25th of March. "The terms of capitulation," says Lord Stowell (1 Rob. 111), "were very favourable; the inhabitants. were to take the oath of allegiance, to be permitted to export their own property, and to be treated, in all respects, like British subjects, till his Majesty's pleasure could be known; and although this was in the first instance only under the proclamation of the captor, still that being accepted, it took complete effect. These terms were afterwards confirmed by the King; there

was, therefore, as strong a promise of protection as could be, and recognized and confirmed by the supreme authority of the state. Under these circumstances, the Judge of the Admiralty thought the claim so strong that he actually restored; and it was not his opinion alone. On appeal, however, the Lords were of opinion that property sailing after declaration of hostilities, and before a capitulation, and taken on the voyage, was not protected by the intermediate capitulation. It was not determined on any ground of illegal trade, nor on any surmise that when the owners became British subjects, the trade in which the property was embarked became, ex post facto, illegal; nor was it at all taken into consideration that Demerara had again become a Dutch colony at the time of adjudication. It was declared to be adjudged on the same principles as if the cause had come on at the time of capture. It was not on any of these grounds, but simply on the ground of Dutch property, that condemnation passed. The ship sailed as a Dutch ship, and could not change her character in transitu. This was the dictum of a great law lord then present-Lord Camden." See also The Dankebaar Affrican (1 Rob. 107), and The Jan Frederick (5 Rob. 128).

All the cases to which reference has been made were cases of bonâ fide transfers, but in many instances a belligerent, finding it impossible to protect his own trade under his own flag, transfers it to a neutral fraudulently; that is, either nominally or without a reservation of its solid advantages to himself, or actually for a time, with a condition that the neutral shall restore it on the conclusion of peace. All these colourable transfers are held to be illegal, and the circumstances of them are as various as may

be expected from the ingenuity of men, who have great interests at stake. The cases arising upon these and other frauds are almost all mere questions of evidence, turning solely on the construction which the transaction can be made to bear, by the acuteness of the captors on the one hand in tracking the deceit, and by the dexterity of the claimants on the other, in eluding the investigation.

"A sale made by an enemy to neutrals in time of war must be an absolute unconditional sale, and not a mere transfer evidently made to cover the property during the war." (The Anoydt Gedacht, 2 Rob. 137.) The illegality of transfer during or in contemplation of war is for the sake of the belligerent right; and to prevent secret transfers from the enemy to neutrals in fraud of that right, and upon conditions and reservations which it might be impossible to detect,any equity of redemption or other defeasance will be considered to keep the title still in the enemy. (The Sechs Geschwistern, 4 Rob. 100.)

Reservations of risk to the neutral consignors, in order to protect belligerent consignees, are uniformly treated by the Admiralty Court as fraudulent and invalid. The principal case on this point is that of The Sally (5 Rob. 300). The cargo, which occasioned the question in the case of the Sally, had been shipped during the last war, ostensibly on the account of American merchants: the master deposed as to his belief, that it would have become the property of the French Government upon being unladen. The sale, therefore, had obviously been completed, and the pretext of an American risk and account was merely to evade that capture to which the cargo would have been subject, if it had sailed avowedly as French pro

of

perty the Court said, "It had always been the rule of the prize court, that property going to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu is to be considered as enemy's property. When the contract is made in time of peace, or without any contemplation of a war, no such rule exists. But in a case like the present, where the form of the contract was framed directly for the purpose obviating the danger apprehended from approaching hostilities, it is a rule which unavoidably must take place. The bill of lading expresses account and risk of the American merchants; but papers alone make no proof, unless supported by the deposition of the master. Instead of supporting the contents of his papers, the master deposes, 'That on arrival, the goods would become the property of the French government,' and all the concealed papers strongly support him in this testimony: the evidentia rei is too strong to admit of further proof. Supposing it to become the property of the enemy on delivery, capture is considered as delivery: the captors, by the right of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property." (Per Sir P. Arden, M.R., in the Sally Griffiths, 3 Rob. 302.) But if a shipment be made in peace, and not in expectation of war, and the contract lays the risk of the shipment on the neutral consignor, the legal property will remain until the end of the voyage in the consignor. In the leading case of the packet De Bilboa (2 Rob. 133), which was that of a shipment at the risk of the consignor until delivery, as having been made before the war, Lord Stowell said, "The statement of the claim sets forth

that these goods have not been paid for by the Spaniard; that would go but little way,-that alone would not do; there must be many cases in which British merchants suffer from capture, by our own cruizers, of goods shipped for foreign account before the breaking out of hostilities. It goes on to state, that according to the custom of the trade, a credit of six, nine, or twelve months, is usually given, and that it is not the custom to draw on the consignee till the arrival of the goods; that the sea risk in peace, as well as war, is on the consignor; that he insures and has no remedy against the consignee for any accident that happens during the voyage.' Under these circumstances, in whom does the property reside? The ordinary state of commerce is, that goods ordered and delivered to the master are considered as delivered to the consignee, whose agent the master is in this respect; but that general contract of the law may be varied by special agreement, or by a particular prevailing practice, that pre-supposes an agreement amongst such a description of merchants. In time of profound peace, when there is no prospect of approaching war, there would be unquestionably nothing illegal in contracting that the whole risk should fall on the consignor, till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not; it would not be at all illegal, that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shipper. In time of war, this cannot be permitted, for it would at once put an end to all captures at sea; the risk would in all cases be laid on the consignor, where it suited the purpose of protection. On every contem

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