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Nathaniel L. v. Waddington

15 Johns. 57 Court N.Y. Sup. Ct. English

Delivered by Spencer, J.

Contents

Majority

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Nathaniel L. & George Griswold against Henry & Joshua Waddington.

Headnote

a partnership ^residing ént‘'countries' least, suspend-/«cj° breaking cut pf those counfecT of a stati* render^ niega* betweenC°Uthe citizen? of the hostile nations.
If such partnershiP expire by its own limitation dur"ifstenceo/the with&enecesp%¡°f fj0™| °/nthe dissolu-
. Ti!® d<^ath> insanity, or bankruptcy of works a disappartnership,
This was an action of assumpsit, on the copias in which the defendant, Joshua Waddington, was taken. The cause was tried before Mr, J. Van Ness, at the New-York sittings, in November, 1816.
The defendant, Joshua Waddington, was an American citizen residing in New-York, and the defendant, Henry Waddington, a British subject residing in London, The defendants had been in partnership together, and carried on their business at London, under the firm of Henry Waddington fy Co.; and at New-York, under the firm of Joshua Waddington #• Co. The plaintiffs were citizens of the United States, resident in New-York, and the demand sought to be recovered in this action, was a balance of account arising on transac- . ' ° tions between the plaintiffs and Henry Waddington, or the n f TT ITT 77. p y-7 . , 1 firm oi Jti. rvaddtngton <y Co* during the late war between this country and Great Britain, Evidence was produced on the part of the defendants to show that a dissolution of the partnership between them took place on the 31st of December, 1813, anterior to the transactions in question, but there was no proof that any public notice of dissoA v * lution had been given, or that the fact was generally known, or known to the plaintiffs. The plaintiffs, to prove the existence of a partnership, produced an affidavit made by J. Waddington in the district court of the southern district of New-York, on the 9th of March, 1813, annexed to a petition presented to that qourt for the '
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purpose of obtaining a remission of the forfeiture and penal-veg incurrec[ by the importation of goods from England by J. Waddington fy Co. in the year 1812, pursuant to the act of congress of the 2d of January, 1813, in which he stated, “ that the said firm of J. Waddington Co. is composed of this deponent, H. Waddington, and R. S. Newby, who. are all citizens of the United States, and that their business is conducted in Great Britain by the said H. Waddington, who also conducts the firm of H. Waddington fy Co. ; which last mentioned firm is composed of himself and this deponent.” It was stated by the attorney who drew the petition and affidavit, that he had no particular instructions from the defendant, J. Waddington, and that he had several petitions to prepare at that time, which the parties were anxious to get forward, and which occasioned a great press of business.
' The case contained letters, bills of exchange, and accounts,, showing the particulars of the transactions on which the claim of the plaintiffs was founded, and evidence offered as to the permission of the government of the United States to its citizens to write letters, and to remit bills of exchange to Great Britain, during the late war, which was objected to,. but admitted; and the evidence of witnesses offered to show the modern practice and usage of nations as to this kind of intercourse, which was objected to, and overruled by the judge. But it is necessary to state those facts only which relate to the points decided by the court.
The jury found a verdict for the plaintiffs, for 17,757 dollars and 8 cents, subject to the opinion of the court, on a case made, with liberty to either party to turn the case into .a special verdict, with power to the court to grant a new trial, or a venire de nova. -
Griffin, for the plaintiff.
The existence of a copartnership between the defendants, at the time when war intervened between the United States and Great Britain., will not be denied. (1.) Was that partnership dissolved by the war; or otherwise, before the plaintiff’s right of action accrued ? There is no legal evidence of a dissolution. The
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letters between the partners were not competent evidence of such a fact. They are not even admissible to support any equitable defence. This court will not be influenced by equitable considerations. There is no peculiar hardship in the case, as regards J. Waddington. The plaintiifs had long dealt with the firm, and must have relied much on the credit of the partner here. A partnership, though dissolved by mutual consent, between the parties, may still exist as it regards third persons, unless some act is done to make known the dissolution to the rest of the world. The manner in which this is to be done has been much discussed. It is now settled, that there must be a notice in the Gazette to all the world; and a special notice to all persons who have been in the habit of dealing with the firm. (Ketcham v. Clark, 6 Johns. Rep. 144 . Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300 .) That any such notice has been given, or that there has been a dissolution de facto, of the partnership, will not be pretended. Then the question is, did the intervention of the war, ipso facto, and of course, put an end to the co-partnership ? War, unhappily for mankind, is an event of very frequent occurrence; but we do not find it mentioned in any adjudged case, or enumerated by any elementary writer, among the causes of a dissolution of the contract of co-partnership. Death, bankruptcy, insanity, decree of a court of equity on the ground of misconduct of one of the partners, are the only causes of dissolution mentioned in the books. If there is not to be found in any volume of reports, nor in any treatise on the law of partnership, in England, France or Holland, a dictum in support of the position that war dissolves this contract, it must be a strong circumstance in support of the claim of the plaintiffs. “ Non-usage,” says Lord Coke, “ where there is no example, is a great intendment that the law will not bear it.” (Co. Litt. 81, b.) Partnerships between citizens of different countries, as between the merchants of England and of Holland, of Spain and Portugal, must have been frequent during wars between the respective countries. The continuance of partnerships between the subjects of two countries, after war has intervened, is recognised in the English reports, without any animadversion; and had they been
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deemed unlawful and void, they would not have been passed over without some reprehension* In the case of M'Connel v. Hector, (3 Bos. & Pull. Rep. 113.) in the C. B. (in 1802,) though it was decided that a petition by a British subject, resident in Snglimd, for a partnership debt, where his partners, who were also British born subjects, resident in the enemy’s country, would not support a commission of bankruptcy, yet there is pot the least suggestion that the contract of partnership was unlawful, or had ceased to exist in consequence of the war. In Fayle v. Bourdillon, (3 Taunt. Rep. 546.) the agents who effected a policy of insurance on a licensed voyage, brought an action on the policy, and averred the interest to be in three partners in trade, one of whom resided in Glasgow, and the other in the country of the enemy of Great Britain. Shepherd and Vaughan, arguendo, tor the plaintiffs, lay down the position, which is not- contra-dieted by the counsel for the defendant, nor by the court, that a British subject, though resident in an enemy’s country, may still be a subject, for all the purposes of being a partner in a house of trade in Great Britain, and of trading, as from that house ; as he may be, on the other hand, an alien enemy, so far as he mixes himself with the commercial transactions of a house of trade in an enemy’s Country; and that the partnership firm in Great Britain might lawfully import the goods or insure them, though the same would not be lawful in the partnership firm at Gothenburgh.
Again; we find cases of joint shipments, made by one partner -residing at home, and the other partner resident abroad, in the enemy’s country, where, in case of capture, the share of the partner residing in the enemy’s country has been condemned, and the share of the other partner acquitted ; thereby recognising a joint or co-partnership interest, existing during the war, between persons, one of whom is in the enemy’s country. (The Citto, 3 Rob. Adm. Rep. 38. The Francis, 1 Gallis’ Rep. 618. per Story, J., affirmed on appeal, 8 Cranch, 335 .) In the case of The Jonge Klassina, (5 Rob. Adm. Rep. 297.) though not a case of partnership, yet Sir William Scott says, that “ a man may have mercantile concerns in two countries $ and if he acts as a merchant of both, he must be liable to be considered as a
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subject of both, with regard to the transactions originating respectively in those countries.” Mr. Ravie, in that case, had a great manufacturing establishment at Birmingham, and had obtained a license to import certain goods from Holland, where he had a mercantile establishment, under the firm of Ravie & Co. of Amsterdam. Though it was held, that the license did not extend to protect shipments in the name of Ravie & Co., yet there is not the least suggestion as to the operation of war on such commercial connections in an enemy’s country. Chitty, in his Treatise on the Law of Nations, &c. referring to the cases, lays it down as a general rule, that the maintaining a mercantile connection, or commercial establishment, in a hostile country, merely renders the property, connected with that establishment, liable to seizure ; he does not say that such a connection, or partnership, is illegal, and ipso facto,'void. In the case of Ten Eyck v. Seaman, as decided imthe court of chancery, on the 31st day of July, 1799, Chancellor Livingston held, that the war (of 1776) between Great Britain and the United States, did not dissolve the partnership, and decreed that Seaman should account to his partner, Ten Eyck ; and this decree was never reversed. (The counsel read a MS. note of the case.)
Again ; the defendants, notwithstanding the intervention of the war, elected to continue their partnership, at all events, to January, 1813 ; and the affidavit of H. W., made in March, 1813, shows, in addition to the letters, that the partnership was still subsisting. This written declaration, under the oath of the party, is the highest possible evidence of the fact. It is stronger even than that of a record. There cannot, then, be the slightest doubt of the continuance of the partnership, and the want of any advertisement or notice of its dissolution, is additional evidence of its continuance.
Dyes a war, then, vi et armis, dissolve a partnership which the parties have agreed shall continue, notwithstanding the war ? If the war has that operation, it must be either to protect the interest of the individual citizen, or from principles of public policy. Individuals are the best judges of their own interests, and if they elect to continue such a connection, there is no reason for compelling them to dis
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solve it. On what principle of public policy is such a cori{ract to be destroyed ? Public policy may demand a prohibition of all trade with the enemy. It may forbid intercourse. But if partners elect to continue their connection, under all the disadvantages of a state of war, and subject to all the consequences which may arise, in case of a violation of the allegiance they owe to their respective countries, why may they not be permitted to take the chance of war, and share the eventual profit or loss ? Private contracts, especially those of partnership, are solemn things, and though private rights must yield to public necessity, yet that necessity must be of the most imperious nature. Commercial intercourse between nations, of which partnerships form important links, has a most powerful influence in softtening the asperities and mitigating the evils of war, that greatest of all human calamities. All commercial intercourse that does not interfere with belligerent rights, and which must, of necessity, be extremely limited, ought to he tolerated, notwithstanding the war. And the evidence in this case, shows that our government have allowed letters and bills of exchange to be remitted to British subjects, during the war. Many practices, formerly deemed lawful in war, have been abrogated, as cruel and inconsistent with the manners of a more enlightened and civilized age. It is true, that Bynkershoeck, in his treatise, advocates the rights of war, in all their extent. It is a treatise by the hand of a master, but, like the laws of Draco, it is written in blood. With that writer, every thing is lawful against an enemy ; the use of poison, fraud, and deceit of every kind. He admits, that the conqueror has the power of life and death over the vanquished; may put his prisoners to death, or reduce them to slavery. Vattel and Martens are of a contrary opinion. Lord Ch. J. Eyre, in Sparenburgh v. Bamsatyne, (1 Bos. & Pull. 170.) says, “Modern civilization has introduced great qualifications to soften the rigours of war; and allows a degree of intercourse with enemies, and particularly with prisoners, which can hardly be carried on without the assistance of our courts of justice. It is not, therefore, good policy to encourage those strict notions which áre insisted on, contrary to morality and public conveni-
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ence.” In Clark v. Morey, ( 10 Johns. Rep. 69 .) Kent, Ch. J. says, “ the rigour of the old rules of war no longer exists, as Bynkershoeck admits, when wars are carried on with the moderation which the influence of commerce inspires.” Again ; “ since the time of Grotius, continued and successful efforts have been made to strengthen justice, to restrain the intemperance of war, and to promote the intercourse and happiness of mankind.” It will, perhaps, be said, on the other side, that to allow this commercial intercourse, relaxes the sinews of war, diminishes patriotism, and encourages or facilitates traitorous correspondence with the enemy. But what harm can result from a partnership between a manufacturer of Birmingham, and another in Pennsylvania ; or between a farmer of Devonshire, and one in Massachusetts ? Does war dissolve all kinds of co-partnership, between the subjects of belligerent powers ? Does it suspend or destroy the matrimonial contract ? Cannot a husband correspond with, or afford support to his wife, residing in the country of his enemy?
Again, it will be said, all trade with an enemy is unlawful. Trading with an enemy consists, (1st.) in buying from an enemy, as in Potts v. Bell, (8 Term. Rep. 548.) and the Hoop, (1 Rob. Adm. Rep. 165.) (2d.) In selling to an enemy, as in 2 Roll. Abr. 173. referred to by Lord Mansfield, in Gist v. Mason, (1 Term. Rep. 84.) who says, he knew of no case which prohibited, even a subject from trading with the enemy, except two, the short note in Roll. Ab. and a case referred to by Lord Hardwicke in King William’s time, of carrying corn to. the enemy. In Henkle v. Royal Exchange Assurance Company, (1 Vesey, 320.) Lord Hardwicke says, “ no determination has been, that insurance on enemies ships during the war is unlawful; it might be going too far to say, all trading with enemies is unlawful.”
(3.) Where the trade is such as necessarily leads to personal intercourse, as in the case of the Rapid, (1 Gallis. Rep. 295.) and the St. Lawrence, (1 Gallis. Rep. 467.) where the vessels were fitted out here, and sent to the enemy’s country. But a partnership may exist, without any buying from, or selling to an enemy, or even without any epistolary or personal intercourse whatever between the
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parties during war, if they have sufficient confidence in each other.
Again, it will he said, that no contract can be lawfully made with an enemy. There is a wide difference between saying, after war has commenced, that no contract shall be entered into with an enemy, and dissolving a contract already existing. Suppose the case of landlord and tenant an Englishman holding land in this state, under, an act of our legislature, which he has leased. Does not the contract continue ? Does not rent accrue to the lessor, during war, though the right of action to enforce the payment of it is suspended ? (Bradwell v. Weeks, 1 Johns. Ch. Rep. 206 , 208.) An alien enemy, who is compelled to leave the country, may appoint an attorney to act in his name, and to collect debts due to him anterior to the war. (1 Emerigon, 567. Clark v. Morey, 10 Johns. Rep. 69 . Bell v. Chapman, ibid. 183 .) The power of attorney is not revoked by the war; and an agent so appointed, may sell the property of his principal and convert it into money. If an alien enemy may lawfully have an attorney or agent to act for him, why may he not have a partner? The 10th article of the treaty of the 19th November, 1795, (2 U. S. L. 476.) between Great Britain and the United States, declares, that neither the debts due to individuals of the two countries, respectively, nor monies in the public funds, nor in public or private banks, shall, in the event of war, he sequestered or confiscated, “ it being unjust and impolitic, that debts and engagements, contracted and made by individuals having confidence in each other, and in their respective governments, should ever be destroyed or impaired by national authority, on account of national differences.” This is declaratory of the Sense of the two nations of the modern law on the subject: it is one of the permanent articles of the treaty; and being prospective, and intended to have its operation in all future wars, it was not abrogated by the intervention of the late war. (Vattel, B. 3. ch. 10. s. 175. Levine v. Taylor, 12 Mass. Rep. 8 , 10.) Suppose the defendants to be bankers, keeping their banking house in London, the shares of J. W. in such house, could not be sequestered or confiscated. His share of the accruing profits of the business, could not
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be forfeited, nor impaired by the war, and after the restoratian of peace, he might file his bill in the English court of chancery for his share of the profits, which would be decreed to be paid to him, as vyas done by Ch. Livingston, in the case of Ten Eyck v. Seaman. As it regards this case, the defendants were mere bankers; they received the money of the plaintiff on deposit. The claims of J. W. to his share of profits, and his liabilities, it is true, remain suspended, during the war; but they revive in full force, on the return of peace. The same treaty of 1794, (art 26.) provides, that in case of rupture between the two nations, “ the merchants and others of each nation, residing in the dominions of the other, shall have the privilege of remaining and continuing their trade so long as they behave peaceably, and commit no offence against the laws.” “ And in case the respective governments should think proper to order them to remove, twelve months are allowed for that purpose, for their removal with their families, effects and property.” This article, though not permanent, shows the great melioration of the practice of nations in war, under the influence of superior civilization.
2. Was there any illegality in the transactions, in regard to the contract on which this action is founded, which ought to defeat the plaintiff’s recovery ? This is a most ungracious defence on the part of any debtor. It was not unlawful for the plaintiffs to direct their funds to be placed in the. hands of the defendants, or to remit bills to them, for the purpose of being collected. The'gfsi of the action, is to recover money received by the defendants, to the use of the plaintiffs. (Here the counsel entered into an examination of the particulars of the transaction, the facts and arguments as to which it is not thought necessary to state, as they were not taken notice of by the court.) The following cases were cited: the Samuel, 4 Rob. Adm. Rep. 233, in note. 2 Hen. Bl. 378. 11 East, 265. 3 Bos. & Pull. 335. 1 Campb. N. P. Rep. 65. 3 Campb. N. P. Rep. 303. 1 Bos. & Pull. 170, 171. 345. 353. 8 Term Rep. 562. 4 Burr. 2069. 1 Wm. Bl. 633. 2 Gallison's Rep. 210 . 3 Johns. Cases 130. 3 Term Rep. 418. 454. 5 Taunt. 181. Cowper, 341.
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3. The judge oil the trial, admitted improper evidence., or*d rejected proper testimony.
Wells and T. A. Emmet, contra.
(1.) War, by that state of things which it necessarily produces, ipso facto, dissolved the contract of partnership. A partnership implies the joint exercise of labour and skill, as well as the joint employment of capital, in a lawful trade or business. This contract may be dissolved by its own limitation, or the terms on which it was created; by mutual consent; by an act inconsistent with the partnership, or by the operation of law, or the happening of certain events. Wherever‘the joint skill and labour which were to be exercised, or the funds that were to be used, for the mutual benefit of the partners, can no longer be so employed, it follows, from principles of natural justice, that the partnership is at an end. “ Partnership,” says Domat, (B. 1. Tit. 8. sect. 5. n. 10.) “ whether universal or partial, may be dissolved,”—“ not only by the express consent of all the partners, but tacitly, as if the commerce in which they dealt happens to be prohibited.” “ So, of a partnership, the commerce of which ceases to be free, as if the partnership was for the farm of some lands, taken by the enemy in time of war.” (Ibid. n. 11.) Where a partnership is dissolved by the operation of law, or by events over which the parties, have no control, no notice of that dissolution is necessary. Thus the death, bankruptcy, or lunacy of one partner, dissolves the contract. In case of. death or lunacy, the skill and labour of the deceased, or insane partner, is taken away by the visitation of heaven. In the case of bankruptcy, the joint fund is severed, and can no longer be employed for the joint benefit of the partners. So, a voluntary assignment by one partner of his interest, produces the same effect. In all these cases, the law works a dissolution, and where it does so, it is legal notice to all the world. The other partner is not bound t© give any notice of the event which has produced such dissolution. The principle which results from this view of the ..contract is, that wherever a state of things occurs, inconsistent with the relative rights and duties of the parties, there is an end to the contract. Wherever, therefore, by •operation of law, partners cannot, consistently" wdth their
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duty, or from physical incapacity, contribute their mutual skill and labour for their common benefit, the contract necessarily ceases to exist. War puts an end to the contract, because all intercourse, at least of a commercial kind, is prohibited. All trading with an enemjr, without the license or permission of the government, is unlawful. Constant or frequent intercourse between the parties, is essential to the due management of their joint concerns. The intimate and close connection which subsists, requires a concert of views, a constant mutual intelligence, co-operation, and communication. During war, almost all commercial business, to be carried on with safety or success, demands correct information, not only as to the state of markets, but as tp political measures and events, and the operations of war. The sole and exclusive object of a commercial partnership, being trade, the intercourse between the partners must be for the purposes of trade. If trade with an enemy is unlawful, every thing subservient to that object, must be also unlawful. If the end and tire means are both illegal, the contract cannot legally exist.
That all trade, or commercial intercourse between belligerents, is unlawful, we shall show, (1.) from the public law of nations ; (2.) from the maritime law o England; (3.) from the common law of England ; (4.) from the law of the United States, as settled by the highest tribunals of the country. But we shall first answer some authorities cited, and conclusions drawn from them by the counsel for the plaintiffs. In M'Connel v. Hector, (3 Bos. & Pull. 113.) this question, as to the legality of the partnership, did not arise. The point was, as to the sufficiency of the debt, to support the commission of bankruptcy ; and it is a principle of the bankrupt law, that the commission cannot be supported, unless on a debt which can be sued for in a court of justice. And the petitioning creditor, being one of three partners, two of whom resided in the enemy’s country, could not maintain an action during war. In Fayle v. Bourdillon, (3 Taunt. 546.) the position relied on is merely the argument or opinion of counsel; it was a mere question about a license. In the case of the Citto, the voyage was from a Spanish port to Guernsey, in 1796, and Mr. Botoden’s part of the cargo was con
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demned, because he resided in Holland. The Jonge Klassina was alSo a license case, and though Ravie’s residence was at Amsterdam, yet the property being shipped by him from Holland, as a Dutch merchant, was condemned. As to the case of Ten Eyck v. Seaman, there being no report, nor any authentic account of it, it is impossible to know the extent of its authority. Emerigon, and the case of Clark v. Morey, and Bell v. Chapman, go no further than to say, that when, after war breaks out, a subject of one of the belligerent powers, is compelled to leave the country of the other, he may leave a power of attorney, to take care of the effects he may leave behind, and to collect debts then due. In the case of the Francis, ( 8 Cranch, 335 .) the goods were Shipped in Scotland, before knowledge of the war, by a house of trade there, to a house in this country, and though proof of American property was offered, the goods were condemned.
That trading with an enemy is unlawful, is a principle tobe found in the writings of every publicist, (Grotius, lib. 3. ch. 4. s. 8. Vattel, lib. 3. ch. 5. s. 69, 70. Bynk. Quest. Jur. Pub. ch. 3. Mably, Droit Public de l'Europe, tom. 6. p. 356. ch. 11. div. 12.) Bynkershoeck is clear and explicit on this point. “ There can be no doubt,” says he, “ but that, from the nature of war itself, all commercial intercourse ceases between enemies.” Again ; “ although trading with the enc, iny be not specially prohibited, yet it is forbidden by the mere operation of the law of war.” (Valin liv. 3. tit. 6. Art. 3. Le Guidon, ch. 2. s. 5. Pothier, Trait. des. Ass. n. 92.) The same principle is to be found in the maritime and commercial law of England. (Marsh on Insurance, 32. 85. Parke on Insurance, 314, 315, 316. The Hoop, 1 Rob. Adm. Rep. 196.) Sir William Scott, in the case of the Hoop, lays it down as a principle, to be found in the law of almost every country of Europe, “ that all trading with a public enemy, unless with the permission of the sovereign, is interdicted.”
Again; in the case of the Cosmopolite, (4 Rob. Adm. Rep. 10.) he says, “ It is perfectly well known, that by war, all communication between subjects of the belligerent coun-
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tries must be suspended, and that no intercourse can. legally be carried on between the subjects of the hostile states, but by the special license of their respective governments.” Wifr, in its very nature, is a state of violence. It is an exertion of force against force. It is inconsistent with those speculative notions of modern refinement, that would make enmity and friendship, war and peace, co-existent between the same persons. If war is justifiable, it is a right of destruction ; and, as long as it endures, the rule, which cuts off all commercial intercourse between enemies, must be its law.
Again ; trading with an enemy was, at an early period, an indictable offence, in the English court of admiralty. (Cosmopolite, 4 Rob. 10 , 11. in note. Bl. B. p. 76.) Thus, trading with Scotland, in 13 Edw. 2 . though under a license from the guardians or keepers of the truce, was held an of-fence, and the license void. (16 Vin. Ah. 599. Prerog. L. a. pl. 3.) And, in King William's time, it was held to be a misdemeanour at common law, to carry corn to the enemy in time of war. (1 Term Rep. 85. Gist v. Mason.) There is not an elementary writer, who suggests a different doctrine. . The Abbé Mably himself, while he reprobates the severity of the rule, admits it to be the general law. Against all these authorities are cited some loose observations of Lord Hardwicke, and Lord Mansfield. We are disposed to respect even the errors of those great men ; but, in fact, • they have not expressed the opinions imputed to them. They may have had doubts, whether it was not good policy to tolerate some intercourse with the enemy, and, principally, insurances of enemy’s property. In 1748, Lord Mansfield, when solicitor general, advocated this policy in parliament; but he did not attempt to defend its legality. Parliament, however, thought differently.; and passed an act, (21 Geo. 2. ch. 4.) declaring such insurances void, and annexing certain penalties. The act was declaratory, and the penalties cumulative, and, being temporary, expired with the peace of Aix la Chapelle, in 1748. In the war of 1756, which terminated in the treaty of Paris, 1763, and, during the American war, there was no act existing; but it was revived in 1793, (33 Geo. III. ch. 27.) and is declaratory, superadding certain penalties. Trading with an enemy
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is not a statute offence, but is a misdemeanour at common law. Lord Mansfield, when he came to the bench, in 1756, brought with him his peculiar notions, as to the poUcy of tolerating the practice of insuring enemy’s property. ■ This opinion of his lordship, as to the policy of allowing a. trade with the enemy, or insuring enemy’s' property, has-been mistaken for his opinion as to the law ; and the lustre of his talents, and his ascendancy in the court of King's’ Bench, were calculated to continue the delusion. During his time, the question, as to the legality of such insurances, was never agitated ; for he frowned on every attempt to set up the illegality as a defence, which he considered as dishonest, and against good faith. (Per Buller, J. 1 Bos. & Pull. 354. Bell v. Gilson.) And such was the deference paid to his known opinions on the subject, that no one presumed to raise the objection. He put it altogether on the ground of expediency, and its being for the interest of Great Britain. He never ventured to reason on the legality of the practice. It was not until after his death, that this question was raised. (Here the counsel went into a critical examination of all the cases decided in the English courts. Thelusson v. Fletcher, Doug. 315. Bernon v. Woodbridge, Id. 781. Planche v. Fletcher, Id. 251. Anther v. Fisher, Id. 648. note. Gist v. Mason, 1 Term Rep. 84. Bell v. Gibson, 1 Bos. & Pull. 354. Potts v. Bell, 8 Term Rep. 548. Brislow v. Towers, 6 Term Rep. 35. Brandon v. Nesbett, 6 Term Rep. 23. Furtado v. Rogers, 3 Bos. & Pull. 191. Killner v. Mesurier, Id. 407. Brandon v. Curling, Id. 410. Lubbock v. Potts, 7 East, 449.) In Potts v. Bell, Lord Kenyon, speaking of the very learned and luminous argument of Sir John Mcholl, in that cause, says, “ that the reasons which he had urged, and the authorities he had cited, were so many, so uniform, and so conclusive, to show, that a British subject’s trading with an enemy was illegal, that the question might be considered as finally at rest.” “ That it was-now taken for granted, that it was a principle of the common law, that trading with an enemy, without the king’s license, was illegal in British subjects.” The doctrines of the courts are, then, united on the common law principle j ahd the universality of the rule, as understood in Great Bri
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tain, can no longer be doubted. (See, also, Park on Ins. 36. Marsh. on Ins. 31. 43.) In the case ex parte Boussmakher, (13 Vesey, 71.) Lord Eldon would not permit an alien enemy to prove his debt, under a commission of bankruptcy, “ If it had been a debt, arising on a contract with an alien enemy, it could not,” he said, “ possibly stand ; for the contract would be void. The policy of avoiding contracts with an enemy was sound and wise.” If the plaintiff had applied to prove his debt, under a commission of bankruptcy, in England, he would not have been heard. Why should he receive a different measure of justice here ?
As to the law of this state, the express adjudications in the highest court of our own country, leave no doubt.[2] In the case of the Julia, Luce, ( 8 Cranch, 181 . 193.) Story, J. in delivering the opinion of the court, lays „it down “as a fundamental proposition, that, strictly speaking, in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of government, or in the exercis.e of the rights of humanity.” And, he adds, “ no contract is considered as valid between enemies, at least so far as to give them a remedy in the courts of either government.'” “ Nor is there any -difference between a direct intercourse between the enemy countries, and an intercourse through the medium of a neutral port. The latter is as strictly prohibited as the former.” (S. P. The Aurora, 8 Cranch, 203 . The Sally, Porter, 381. The Lawrence, Webb, Id. 434. The Joseph, Sargeant, 451. The Venus, Id. 253.)
If any case could exist in which the general principle of the law could be relaxed, it was that of the Rapid; ( 8 Cranch, 155 .) yet Johnson, J. in delivering the opinion of the court, lays down the rule, in still stronger and sterner language. “ In the state of war,” says he, “ nation is known to nation only by their armed exterior; each threatening the other with conquest or annihilation. The individuals who compose the belligerent states, exist, as to each other’,, in a state of utter occlusion. If they meet, it is only in combat.” This doctrinp, he says, is supported by the re
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cords of appeals in prize courts, established during the revolutionary war. “ Certain it is, that it was the law of England, before the revolution, and, therefore, constitutes a part of the admiralty and maritime jurisdiction conferred on the court in pursuance of the constitution.” “ The object, policy, and spirit of the rule is, to cut off all communication, or actual locomotive intercourse, between individuals of the belligerent states. Negotiation, or contract, therefore, has no necessary connection with the offence. Intercourse, inconsistent with actual hostility, is the offence against which the operation of the rule is directed; and by substituting this definition for that of trading with an enemy, an answer is given to tpe argument.” “ The ground,” says J. Story, in the case of the Rapid, “ upon which a trading with the enemy is prohibited, is not the criminal intentions of the parties engaged in it, or the direct and immediate injury to the state. The principle is extracted from a morp enlarged policy, which jocks to the general interests of thp nation, which may be' sacrificed under the temptation of unlimited intercourse, or sold by the cupidity of corrupt avarice.” Again; in the Emulous, (1 Gallis. Rep. 571.) he says, “ no principle of national or municipal law is better settled, than that all contracts with an enemy, made during war, are utterly void. This principle has grown hoary under the reverent respect of centuries, and cannot now be shaken, without uprooting the very foundations of national law.” These cases clearly show, that the intercourse essential to a partnership, cannot be maintained ; that it would' be criminal. For what purpose, then, can the contract exist ? If not for a lawful purpose, it cannot exist at all. How can it continue between parties, whose paramount duties are in direct hostility to each other ? There can be no communication between the partners, direct or indirect, oral or written, without the permission of government; and that license can only be for a particular purpose. How, them could the business of this partnership be carried on ? The house of trade was confined to England, the enemy’s .country. - It could not trade with the United States. It could not trade with a neutral country, without its property being liable to capture; if by an American cruizer, the whole
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would be condemned; if by a British cruizer, the half, or share of J. W. (The Rugen, 1 Wheat. Rep. 74 . The Julia, 8 Cranch, 181 .) Nay, it is the duty of each partner, in the event of war, to seize the property of each other, as an enemy, when he meets it on the ocean, if armed with authority for that purpose. The duty they owe to their respective countries forbids the performance of the contract of partnership.
Even in the cáse of a neutral partner in a hostile house, his property partaking of the hostile character, must share the fate of the enemy’s, and is liable to condemnation as prize. The trade may be hostile, as well as the persons who carry it on. (The Vigilantia, 1 Rob. Adm. Rep. 12. case of Mr. Coopman referred to. Susa. 2 Rob. 208 . Portland, 3 Rob. 40 . Jonge Klassina, 5 Rob. 265 . The Antonia, Johanna, 1 Wheat. 168 . The Frances, 8 Cranch, 335 .) In the case of the San Jose Indiano, (2 Gallis. Rep. 268.) J. Story adopted the doctrine as laid down by Sir William Scott, with the highest approbation; and held that the property of a person may have a hostile character, though he is resident in a neutral country. That a house of trade, established in the enemy’s country, rendered the property of all the partners liable to condemnation as prize, though some of them resided in a neutral country. The case of the Citto was cited to show, that a court of admiralty would distinguish between the neutral and belligerent property. But the property, in that case, was not shipped from an enemy’s country, and the court condemned the property, on the ground of a domicil, in the country of the enemy. Now, if this be the effect of a hostile trade, upon a neutral; if that makes it the property and trade of an enemy, how can a co-belligerent be concerned in such trade ? This strikes at the very foundation of the contract of partnership, for the trade, to be carried on by the firm, is unlawful. The case of the Franklin, Dana, (6 Rob. Adm. Rep. 127.) shows the distinction between the concern of a neutral in a belligerent house of trade, and. that of a belligerent in a neutral house. The partnership, as regarded the partner in England, was held illegal, because the property was sent to the enemy’s country, and his share was condemned, but the share of the partner in America, who, being neutral, might lawfully send his pro-
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perty to France, was restored. The conclusion to be ¿rawn from this case is strong. If the trade, where one partner is belligerent, is unlawful Avhen carried on with his enemy, must not the joint trade, where both partners are belligerents, necessarily be with an enemy ? Both must act unlawfully in carrying on their trade.
Again;' alien enemies are under a further disability; they cannot sue in the courts of either country. An alien enemy cannot be heard in a court of justice. He has no persona standi injudicio.[2] (Bell v. Chapman, 10 Johns. Rep. 183 . J. ex dem Johnston v. Decker, 11 Johns. Rep. 418 .) In the language of Sir Wm. Scott, (The Hoop. 1 Rob. 201 .) “ a state in v,'hich contracts cannot be enforced, cannot be a state of legal commerce.” The partnership contract cannot be enforced in either country; and the property of the house is liable to seizure in both. Can a partnership legally exist under these disabilities ? The incapacity to sue, demonstrates that the contract is unlawful. The disability is co-eval with its existence. It is idle to speak of a contract and of obligations which it imposes, when it cannot lawfully be enforced. There can be no valid contract, Avithout a remedy to enforce it. In Bradwell v. Weeks, ( 13 Johns. Rep. 1 .) the court of errors decided, that an alien enemy can acquire no light, flagrante bello, by mere operation of law. But we do not press that decision, because, if we concede that the law has been misunderstood, it does not interfere with the argument. There was no contract, in (hat case, express or implied. It was a right acquired, if at all, by the mere operation of law, AA'hich cast the estate upon the party who happened, at the time, to be an alien enemy, and he might well be allowed to come, after peace was restored, to ask for the property.
This is not like the case of debts contracted before a Avar, where the capacity to sue was co-eval with the contract, and the remedy is only suspended, during war. Here Avas no -remedy existing at the time the contract Avas made; and
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that which had no existence cannot be revived, even by the genial influence of peace. But it is said, that the 10th artide of the treaty of 1794, provides for such a case, and saves the right of the party. But we look in vain for such healing efficacy, such a restorative power in that treaty. By the law of nations, the property of an enemy, on the breaking out of war, may be sequestered or confiscated ; and Mr. Pitt, in 1793, brought a bill into parliament to protect French property from the operation of the general law. The object of the framers of the treaty of 1795 was merely to protect British property from sequestration or confiscation, in case of a war; not to legalise a trade during its existence. This court, in Jackson v. Decker, evidently so understood the treaty. The 26th article had expired, and our government, in fact, did not act on the principle of that article.
2. The partnership was, in fact, dissolved on the 31st of December, 1812. It had expired by its own limitation on the 31st of December, 1810, but was continued, by agreement, for two years longer. It expired, then, by efflux of time, during a war which superseded the necessity of a public notice, and which, if required, must have been given in London, in the enemy’s country. Had H. W., in fact, published a notice of the dissolution there, there could have been no ground for this suit; and we contend, that the war rendered such a notice unnecessary. It must have^been the joint act of both partners, between whom the war had placed an impassable gulf. But it is said the defendants, afterwards, elected to continue the concern, and the affidavit of J. W. of the 9th of March, 1813, is adduced as evidence of such consent. That affidavit was made in reference to the time when the goods were purchased in England and shipped. At most, it is an accidental mistake, committed in the hurry of business, which ought to produce no injurious consequence. Besides, if the doctrine for which we contend, as to the operation of war on an existing partnership be correct, the parties could not elect to continue the connection during the war. Though you may not find a case in the books in which it has been expressly decided that war puts an end to a contract of partnership, that silence affords no
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argument against the doctrine which is a necessary corollary from the law of nations. The international law does not notice or decide on this particular case. It merely pro^ nounces on the character of the individuals, and of their transactions. Elementary writers on the municipal law do not speculate or theorize ; they merely digest into systematic form the various adjudications of the courts of law. If no adjudged case is to he found, it is because the parties, like gamesters, relied on their mutual honour, and would not bring their claims before a court of justice.
3. The cause of action arises out of a trading with the enemy; and the contract, whether express or implied, is, therefore, void. Personal intercourse is not essential to constitute an illegal trade ; nor is buying and selling. In the case of the Rapid, there was no personal intercourse or traffick. No matter how, or from whence, the money was sent. It is enough that it was deposited by the plaintiff in the hands of an enemy, without the permission of government. Remitting a bill of exchange is equivalent to sending money. (Here the counsel examined the facts of the cáse, in regard to the transaction, and remarked on the authorities cited to this point.)
Colden, in reply.
1. It is said that there can be no contract, express or implied, no intercourse whatever, personal or .epistolary, between belligerents, without the license of government. This may have been the ancient law of nations, the rule of a barbarous age. But it cannot be denied that in modern times the cruel rigours, the inhuman practices of war have much abated, and been greatly softened.. This spirit of humanity has extended not only to the treatment of prisoners, and to the disposition of the property of the vanquished, but as to intercourse between individuals whose countries are at war. The modern law of nations prohibits only that intercourse which affords aid to the enemy, or adds to his strength and resources. The illegality of the intercourse with an enemy depends on the nature of it; whether, in the language of the act against treason, you give aid-and comfort to the enemy. We admit thata direct- trade with an enemy is unlawful; and that the insurance of
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such trade is, also, unlawful and void. For the sake of argument, it might, also, be admitted, that there can be no express contract with an enemy; but it does not, therefore, follow that there can be no implied contract. The cases of The Rapid, The Julia, The Hiram, and Potts v. Bell, were all cases of a direct trade with an enemy. Story, J. in his opinion, (1 Gallis. Rep. 308, 309.) refers to the case of theHoop, and those cited in that of Potts v. Bell, which are all cases of a direct trade or intercourse. Not content with these, he refers back 600 years, to the reign of Edw. II. and the Black Book of the admiralty, which he mistranslates. The words, “ entrecommunent, venderá, ou achatentfi &c. do not mean intercourse generally, but merely that there can be no commercial intercourse, or interchange, by buying and selling, without the license of the king or his admiral. He refers, also, to the Jonge Pieter,( 4 Rob. 79 .) where the question was, whether there was a trading with the enemy ; whether the goods were shipped by a British subject to the enemy, through a neutral country. Valin, (liv. 3. tit. 6. art. 3.) also, whom he cites, speaks only of a direct trade, and in prohibited goods ; and as to the barbarous doctrine of Bynkershoek, founded on the Roman law, we have the opinion of an eminent statesman and jurist of our own country, (Hamilton; Camillus, No. 20.) that nothing can be more horrid or detestable, and that if such pretended rights ever did exist as a part of international law, they have given way to milder and more equitable usages, which constitute the customary law of nations, at the present day.
Lord Hardwicke, Lord Mansfield, and Lord Kenyon, in their times, were of opinion, that all intercourse with an enemy was not unlawful; but that there might be a restricted intercommunication, and even a trade to a certain extent. Such, also, was the opinion of J. Davis, in the ease of the Hiram, and of Judge Peters, in his charge to the grand jury in Pennsylvania, the 7th of October, 1813, and of Chancellor Livingston, in. the case of Ten Eyck v. Seaman. Thus we have the opinions of distinguished judges and jurists in Great Britain, and in our own country, that some species of intercourse with an enemy is lawful. Because a direct trade, or an express contract with an enemy, is not
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allowed, does it follow that no equitable rights can accrue, nor any obligations arise between individuals whose respeclive countries are at war ? Suppose funds sent forward to London before war, but which do not arrive until after war has commenced, does no contract or obligation arise between the person who receives the funds in England, and the owner in this country ? Can the former be allowed, when called to account, on the restoration of peace, to say, “ No : I owe you nothing; the war dissolved all obligations of justice towards you Suppose, also, a remittance made to England from a neutral country for the benefit of a citizen of the United States during the war : could not the American citizen, after the war, maintain an action against the person who received his money in England ? Good faith is to be observed even with an enemy. (Grotius, lib. 3. ch. 23. Puff. L. N. b. 8. ch. 7. sect. 16.) Emerigon, (1 Trait. des Ass. 567.) says, that, at the present day all the sovereigns of Europej for the benefit and security of commerce, have relaxed the rigor of the ancient law, and that a foreigner quitting the country, on the breaking out of war, may leave his power of attorney, to collect his debts. “ Les creances que l’Etranger a chez nous, lors de la declaration de guerre, subsisted en leur entier. S’il est forcé de se retirer, il lui est loisible de laisser sa procuration á un ami pour exiger ce qui lui est dü, et pour actionner ses debiteurs en Justice.’ In the case, ex parte Boussmaker, which has been cited, would not the foreigner have been allowed, after the war was over, to bring an action for money had and received against the assignees of the bankrupt, for the dividends which had come to their hands ? In Kensington v. Inglis, (8 East, 273.) where, under a license, goods were imported from Spain in an enemy’s ship, a suit on the policy of insurance was sustained in the name of the British subject, though a trustee for an enemy. Suppose, after peace, the Spanish owner had brought an action against his English agent, to recover the amount received by him from the insurers, would the defendant have been allowed to allege that there could be no implied contract, on account of the War ? If all intercourse was unlawful, if no implied contract, no equitable obligation, could arise during war, that would bo a good defence. In Brad-
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well v. Weeks, ( 1 Johns. Ch. Rep. 206 .) Chancellor Kent says, “ By the modern law of nations, and by the law of the land, of which the law of nations is also a part, an alien enemy does not forfeit his rights of property. In many cases, he is entitled even to sue for his own rights, as when he is permitted to remain in the country, or is brought here as a prisoner of war, or when, perhaps, he is ordered out of the country, in consequence of the war. He is recognised in our courts, in the character of executor ; (Brooks v. Phillips, Cro. Eliz. 684.;) and in all cases his property is protected and held in trust for him until the return of peace.” Again, he says, “ without some special act of the government, an alien enemy is no otherwise affected, in his former capacity, as an alien friend, to hold, acquire, and transmit property, than in the cases to which I have alluded.” The plaintiff’s claim is founded on a transaction which does not necessarily imply any intercourse with enemies. The fund- was in Antigua, when war intervened, and was transferred from thence to London. This might very well take place without any intercourse. It certainly cannot be criminal intercourse, if it did not aid or comfort the enemy.
Then, does war dissolve a partnership, or merely limit its operations, so far as they may prove prejudicial to belligerent rights ? War, it is true, may give the parties an election to dissolve the contract. But if they make such election they must give notice of it, or abide the legal consequence of want of notice. If there is no election by either party to dissolve the connection, it must continue limited and restrained to all lawful objects. If the sole object of the partnership was a trade between the two countries, its operations must, of course, be suspended by the intervention of war. In the case put by Domat, of a partnership for a particular trade, which becomes unlawful, that destroys the whole subject of the contract. Because war may dissolve a contract of charter-party, it does not follow that it puts an end to a partnership. The cases are different. Where the partnership is general, each partner may carry on business in his own country, or with neutral nations, so far as it may be lawful. The business of a partnership may be carried on without any intercourse whatever between
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the partners ; as where there is an active and a dormant partner. Intercourse between partners is not essential or absolutely necessary. It must depend on the nature and objects of the partnership. The parties, it is true, may be subjected to the consequence of being sued, without having the right to sue; but that does not render the partnership illegal. That the partnership did, in fact, exist in 1813, is proved by the affidavit of J. W., and any suggestion of a mistake is wholly inadmissible. In case of bankruptcy, a legal proceeding takes place, and the party is declared a bankrupt; and until he is so declared, the partnership continues. So in the case of lunacy, there must be an inquisition of lunacy, and an inquest found. The mere fact of lunacy does not, of itself, put an end to the partnership. In the case put, of an assignment of a partner’s interest in the concern, suppose a debt contracted with the firm, without any knowledge of the assignment, will not the firm be liable ? Notice of the fact, or of the dissolution, is essential.
2. The remittance of the bill of exchange, in this case,, was innocent. The funds were already in the enemy’s country; it was a direction to transfer them from the hands of one enemy to those of another. To remit specie would be very different. That could not be done without a direct trade. In the case of Potts v. Bell, the goods were purchased with a bill drawn in England on Amsterdam, yet the objection of its being illegal to draw such a bill, was never suggested.
Again; the government of the United States gave, at least, a tacit consent to our citizens to remit bills to England. There may be a tacit, as well as an express consent of the government. (Puff. b. 8. ch. 7. s. 16. Barbeyrac's note. 4 Rob. 195 . 2 Campb. N. P. 44.) A license may be presumed. Though congress alone can declare war, yet the conduct of the war belongs to the executive of the nation. It is always a question of state policy, whether trade with the enemy is to be allowed. Our government certainly countenanced this intercourse ; and courts of justice are not to pronounce on the policy of the measure.
Again; admitting that the transaction was unlawful during the war, the defendants, being fund holders, cannot set
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up that illegality as a defence. (2 Path. Oblig. translated by Evans, notes, p. 8 —1 6.)

delivered the opinion of the court. This cause has given rise to several novel and important questions; and when the interesting results, growing out of these questions, are duly estimated, it is impossible to approach them without great solicitude and anxiety.

In considering this cause, I have found it unnecessary to decide some of the points which were ably discussed by the counsel; for having arrived at a satisfactory conclusion on one of them, which must be decisive as to the plaintiff’s claim, T have considered it unnecessary to express any opinion on the others.

Upon the fullest reflection which I have been able to give to the subject, my opinion is, that the declaration of war between the United States and Great Britain produced a suspension during the war, or, ipso facto, a dissolution of the partnership previously existing between the defendants, so that the one is not responsible upon the contract, express or implied, of the other. It will be perceived that this proposition assumes the fact that the partnership between the defendants had not become dissolved by the efflux of time, or the acts of either of the partners, although this point is, in itself, very questionable. . The better conclusion from the evidence is, that the partnership expired by its own limitation during the war ; and the existence of the war would, at all events, dispense with the public notice which is, in general, necessary to the valid dissolution of a partnership.

The case discloses that the firm of Henry Waddington & Co. consisted of Henry and Joshua Waddington ; that Henry is a British subject, resident, before and during the war, in London, conducting the partnership concerns there, whilst the defendant was resident here. The negotiations which gave rise to the present suit took place in England, and exclusively with Henry Waddington, during the late war between this country and Great Britain.

It was admitted on the argument, and so the fact undoubtedly isj that the proposition I have advanced is neither supported nor denied by any judicial decisions or elementary

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writer of the common law; but, if I mistake not, it is supported by the strongest reasons, and by necessary analogy with adjudged cases.

The first inquiry is, what are the objects and ends of partnerships. They are entered into with the view, that, with the joint funds, skill, and labour of the several partners, the interests of the concern may be advanced and promoted. There may be, and frequently are, different inducements influencing each partner: one may have more capital and credit; another may have more skill, activity, and experience. The one may choose to be a dormant and inert-partner, furnishing an equivalent for the services and skill of the other, and leaving the business entirely to his control and management. But unexplained as this partnership is, we must understand it to be, an union with a view to the employment of the joint capital, labour, and skill of both the partners, for the purposes of internal and external commerce between this country and Great Britain. That the object of the partnership embraced both these objects of internal and external trade, would seem to be unquestionable from the local position of the partners.

That the death, insanity, and bankruptcy of one of the partners operates as a dissolution, was not questioned in the argument; and a respectable elementary writer, Mr. Watson, is of opinion that the marriage of a feme sole partner would produce the same consequence. The cases of Pearce v. Chamberlain, (2 Ves. 33.) and Sayer v. Bennet, (Watson, 382.) and several other cases cited by. him, all go to establish the general principle, that death, insanity, and bankruptcy, work a dissolution of partnerships ; and they proceed on the principle, that the other partners are not bound to admit the representatives of a deceased or insane partner, into the concern, the confidence having been originally placed in the personal skill and assistance of those no longer able to afford it.

• Let these principles be applied to thp present case, and it would seem that the same result is inevitable. In what situation did the war put the defendants, as regarded each other ? Most undeniably, the two nations, and all their citizens, or subjects, became enemies of each other, and the.

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consequence of this hostility was, that all intercourse and communication between them became unlawful. This is not only the acknowledged principle of the law of nations, but is also a part of the municipal jurisprudence of every country. I need not cite cases in support of a position, which has so repeatedly been recognised in the English courts, and in our own, possessing as well admiralty as common law jurisdiction. Another consequence of the war was, that the shipments made by each of the partners would be liable to capture and condemnation, by the cruizers of the government of the other; and another very serious evil attended them : no debts contracted in the partnership name could be recovered in the courts of either nation ; they not having, in the language of the law, a persona standi injudicio, whilst they were amenable to suits in the courts of both nations. (The Hoop, 1 Rob. 201 .) It is true, the same disability to sue for debts due the firm antecedent to the war, would exist. This, however, does not weaken the objection ; it remains still an important item, in considering whether a partnership exists, when the new debts created are to be liable to the same disability. It appears, that Joshua Waddington is a citizen of the United States ; and it has been already mentioned that Henry Waddington is a British born subject. They owed different allegiances, and it became part of their duty to lend all their aid, in a vigorous prosecution of the war, the one to the United States, and the other to Great Britain; and, it appears to me, that it would not comport with policy or morality, that the law should imperiously continue a connection, when, by its very continuance, it would afford such strong inducements to a violation of that fidelity which each owes to his government.

Again ; all communication and intercourse being rendered unlawful, and it being a well-established principle, that either partner may, by his own act, dissolve a partnership, unless restrained to continue it for a definite period, by compact, in what manner could such intentions be manifested during the war ? It might, indeed, be made known to the public of one of the countries, but it could not be notified to the public of the hostile country; and thus, unless the war

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produced a dissolution, he would be responsible, notwithsj-an(jj[ng he had the desire to dissolve the connection, merely from inability to make known that determination ; an inability, produced by events utterly uncontrollable. When the objects and intentions of an union of two or more individuals, to prosecute commercial business, are considered ; when it is seen that an event has taken place, without their fault, and beyond their control, which renders their respective nations, and along with them, the defendants themselves, enemies of each other; that all communication and intercourse has become unlawful; that they can no longer cooperate in the conduct of their common business, by affording each other advice, and are kept hoodwinked, as to the conduct of each other; that the trade itself, in which they were engaged, has ceased to exist; that if they enter into any contracts, they are incapable of enforcing their performance, by an appeal to the courts; that their allegiance leads them to support opposite and conflicting interests ; I am compelled to say, that the law cannot be so unjust as to pronounce, that a partnership, so circumstanced, when all its objects and ends are prostrated, shall continue ; and, with the clearest conviction upon my mind, and in analogy to the cases to which reference has been made, I have come to the conclusion, that the partnership between the defendants was, at least, suspended, and I incline to the opinion, that it was, ipso facto, dissolved by the war, and, consequently, that the defendant, J. W., is not liable to this action.

Much stress was placed upon an affidavit, made by thé defendant, Joshua Waddington, in March, 1813, annexed to a petition presented to the district court, to obtain the remission of the forfeiture, incurred by the importation of goods from England, by Joshua Waddington fy Co. in 1812, in which he states that Henry Waddington conducts the firm of Henry Waddington Co. and that firm is composed of Henry Waddington, and the defendant; and it has been insisted, that this is an admission of the existence of the firm at that time. Ithas not been shown, that Joshua Waddington has done any one act, as a partner, after the war; and if the affidavit amounts to an admission, it is a mistake of the law upon the subject, and does not affect him. It has not been

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shown, that, in point of fact, the plaintiffs ever knew of this affidavit, or were misled by it. Had the defendant even promised to pay the demand claimed by the plaintiffs, if there was no prior liability, the promise would have been a nudum pactum. There is, however, strong reason to believe, from the evidence of Mr. Ogden, that the mistake in the law was entirely attributable to the hurry of the moment, and that it did not originate with Joshua Waddington ; but, I think, that the affidavit, construed in reference to the subject matter of it, does not mean to say that the partnership then existed, but that the goods belonged to that firm, when they were shipped, and when they arrived.

It has, too, been strongly put, that the plaintiffs contracted this debt with the firm, on the faith that Joshua Wadding-ton was a partner, and that he ought to have publicly communicated the dissolution of the partnership. I am perfectly satisfied that J. Waddington has acted in good faith; there is no pretence that he has done any thing to mislead the plaintiffs, or the public, unless his silence be so considered. If the law worked a suspension, or dissolution, of the partnership, every person dealing with Henry Waddington was bound to take notice of that fact; and, with the old dealers of the firm, there was knowledge of all the material facts, which enter into the determination of the cause.

Judgment for the defendant.