ter v. Freudenberg, [1915] 1 K. B. 857, the true test of a person being an alien enemy was the place where he resided or carried on business. It might be that the defendant could not claim specific performance of the agreement, but in the present proceedings the plaintiff had failed to discharge the onus of proof which was upon him.

The plaintiff appealed. The appeal was heard before the full Court of Appeal on March 23, 26, 1917. * * *

Lord COZENS-HARDY M. R. (after stating the facts). In these circumstances the purchaser claims the return of his deposit on several grounds. He contends that Müller was an alien enemy on June 2, and that therefore the contract was illegal. Eve, J., held that this fact had not been proved, and, this being the sole point raised before him, he dismissed the action. I cannot agree with this view. I think there is a presumption of fact that a man who left Tilbury on the evening of May 26 for Flushing reached Germany before June 2, and that in the absence of any other evidence a jury would be justified in finding that he did reach Germany before June 2. He was not an alien enemy while he was in England. He did not become such the moment he left our shores.

The meaning of "alien enemy" has from time to time varied. "Nationality" and "domicil" have both been treated as the critical test. The question was elaborately discussed in the full Court of Appeal in Porter v. Freudenberg, [1915] 1 K. B. 857, and it was held that neither domicil nor nationality is the true test. That decision is final so far as this Court is concerned. Residence in Germany, not merely crossing the German frontier from Holland, made him an alien enemy. Intention to reside is not sufficient. Residence implies a certain lapse of time. But, having regard to the abandonment of his British residence and to the fact that he was resident in Hamburg at least from August, if not earlier, I think it is right to hold that on June 2 Müller had become an alien enemy. The point taken before Eve J. cannot, in my opinion, be supported. This, however, by no means disposes of the case. (I only mention residence because there is no suggestion of carrying on business apart from residence.)

I attach great weight to the power of attorney of May 20. At that date it is beyond dispute that Müller was not an alien enemy. The authority conferred upon White was complete and irrevocable. No further "intercourse" with Müller was needed. White could not be interfered with in reference to the sale. White's position was, having regard to the provisions of the Conveyancing Acts, practically the same as if Müller had conveyed the property to White upon trust for sale. Lord Parker, in the passage to which I shall refer lower down, seems to me to assert that a trust for sale may be executed although the sole beneficiary is an alien enemy. The transaction is not a trading with the enemy within the mischief of the common law, or within the mischief of the Proclamation of September 9, 1914. Par. 3 adopts the rule in Porter v. Freudenberg, [1915] 1 K. B. 857, by stating it in a positive and also in a negative form. The expression "enemy" means any person resident or carrying on business in an enemy country, but does not include persons of enemy nationality who are neither resident nor carrying on business in the enemy country. Par. 5 (1) applies only to a payment during the continu

ance of the war. Par. 5 (9) has no application if, as I hold, the power of attorney was the only contract or obligation with or for the benefit of Müller.

But can it be said that the power of attorney was necessarily revoked when Müller became an alien enemy? I think not. It is true that most agencies, involving as they do continuous intercourse with an alien enemy, are revoked, or at least suspended. But such considerations have no bearing upon a special agency of this nature. Mr. Galbraith called our attention to a case decided in 1897 in the Supreme Court of the United States. Williams v. Paine, 169 U. S. 55, 18 Sup. Ct. 279, 42 L. Ed. 658. A power of attorney granted by an officer and his wife resident in Pennsylvania to convey land in the city of Washington was held not to be revoked by the war, in which the grantors of the power took an active part with the Confederates, but to be well executed notwithstanding the war.

It must not be forgotten that a contract for sale of land stands in a peculiar position. It is for many purposes to be regarded as an equitable conveyance. The objection taken by the purchaser is not really as to title, but only as to conveyance. Time was not of the essence of the contract. The legal estate if not got in by a deed, executed by Mr. White, as I think it might be, could probably be got in by an application under the Trustee Acts, and certainly by an appiication under the Trading with the Enemy Amendment Act, 1916, § 4. If an order were made under that section all difficulty would be removed.

The recent case in the House of Lords of Daimler Co. v. Continental Tyre and Rubber Co. (Great Britian), [1916] 2 A. C. 307, is not a direct decision upon the points raised in the present case. But I have derived great assistance from the observations of Lord Parker, [1916] 2 A. C. 347. He points out: "I see no reason why a company should not trade merely because enemy shareholders may after the war become entitled to their proper share of the profits of such trading. I see no reason why the trustee of an English business with enemy cestuis que trust should not during the war continue to carry on the business although after the war the profits may go to persons who are now enemies, or why moneys belonging to an enemy but in the hands of a trustee in this country should not be paid into Court and invested in Government stock or other securities for the benefit of the persons entitled after the war. The contention appears to me to extend the principle on which trading with the enemy is forbidden far beyond what reason can approve or the law can warrant. In early days the King's prerogative probably extended to seizing enemy property on land as well as on sea. As to property on land, this prerogrative has long fallen into disuse. Subject to any legislation to the contrary or anything to the contrary contained in the treaty of peace when peace comes, enemy property in this country will be restored to its owners after the war just as property in enemy countries belonging to His Majesty's subjects will or ought to be restored to them after the war. In the meantime it would be lamentable if the trade of this country were fettered, businesses shut down, or money allowed to remain idle in order to prevent any possible benefit accruing thereby to enemies after peace. The prohibition against doing

anything for the benefit of an enemy contemplates his benefit during the war and not the possible advantage he may gain when peace.

comes."

The weight attributable to those observations is greatly increased by the circumstance that Lord Parker's judgment was formally approved of and concurred in by Lord Mersey, Lord Kinnear and Lord Sumner.

The result is that in my opinion the plaintiff is not entitled to demand a return of his deposit, and the appeal fails.

[Concurring opinions were delivered by SwINFEN, EADY, BANKS, WARRINGTON and BRAY, JJ. A dissenting opinion was delivered by SCRUTTON, J.]

8. THE KRONPRINZESSIN CECILIE.

NORTH GERMAN LLOYD v. GUARANTY TRUST CO. (Circuit Court of Appeals of the United States, First Circuit, 1916. 238 Fed. 668, 151 C. C. A. 518.)

Appeals from the District Court of the United States for the District of Massachusetts; Clarence Hale, Judge.

Libel by the Guaranty Trust Company of New York against the steamship Kronprinzessin Cecilie, claimed by the North German Lloyd, together with libels by Charles W. Rantoul, Jr., by Maurice Hanssens, and by the National City Bank of New York against the same vessel. From a decree dismissing the libels (228 Fed. 946), libelants appeal. Reversed as to the libel by the Guaranty Trust Company of New York and National City Bank of New York, and affirmed as to the libels of Charles W. Rantoul, Jr., and Maurice Hanssens.

DODGE, Circuit Judge. The careful and detailed statement of the material facts involved in these cases which is found in the opinion of the District Court (228 Fed. 946) will render direct reference unnecessary to the evidence in the record, except in a few instances. 'As to the facts there is little or no controversy.

1. From Bremen, the home port of this German steamship and her ultimate port of destination on the voyage here in question, her owner, a German corporation, sent a wireless message to her master on July 31, 1914, at 2:45 p. m. This message he received on board the ship, at sea, at 10 p. m., on the same day, by the ship's time11:45 p. m. by Greenwich time. The message consisted of the peremptory order, "Turn back to New York," prefaced by the statement, "War has broken out with England, France, Russia." This statement meant, as is not disputed, and it was understood by the master to mean, that war had actually broken out between Germany and each of the other countries named. Neither at the time it was sent nor at the time it was received was the statement true as to either of said countries. Not only had no war been declared between Germany and any of them, but no actual state of war existed between Germany and any one of them. It was not until midnight on the same day that Germany notified Russia that she would mobil

ize unless Russia demobilized within 12 hours, and not until 7 p. m. on the next day that war between Germany and Russia was declared; nor did that declaration make it certain that France or England would be involved.

When the master received the above message, his ship had considerably more than half completed her voyage from New York towards Plymouth in England and thence to Cherbourg in France, the ports at which delivery of the specie shipments on board her had been undertaken according to the bills of lading given for them at New York on July 27. She was a little more than 1,000 miles from Plymouth, the nearer of the two. The message was sent and received in a form such as prevented its above meaning from becoming known to any one but the master, and permitted such meaning to be ascertained by him only through the use of means long before carefully prepared, to be availed of in case the emergency indicated should occur, and kept on board the ship under seal for two years, the seal to be broken by the master only in case he received a message of the character given this message in its untranslated form.

The master obeyed the order to turn back instantly, before revealing the substance of the message to any other person on board. Nine minutes after its receipt the ship was headed for New York, instead of for Plymouth, and the voyage undertaken by the bills of lading had been abandoned. Not until after this had been done did the master inform the subordinate officers and the cabin passengers that he had done it.

A master is ordinarily the owners' representative for the purpose of effecting the safe carriage and delivery undertaken by the ship, and as such a stranger to the cargo. But circumstances of unexpected emergency may without doubt occur during a voyage, such as will change his ordinary relations towards ship and cargo, and, because a discretion must needs be exercised in order to avert or minimize extraordinary peril, threatening all the interests concerned, will make him, for the purpose of exercising it, the common representative of said interests alike. Though a measure adopted by him in the exercise of a discretion so required of him would otherwise be in violation of pending contracts of affreightment, the consent of all concerned will be implied from the fact that in adopting it he has acted as the representative as much of one interest as of any other, and neither will have the right to complain of it as a breach of contract. In the opinion of the District Court the turning back of this ship as above was a discretionary measure taken by the master under circumstances of the kind above referred to, and therefore leaving the owners of these three shipments of specie no right to complain of it as a breach of the contract to deliver their specie at Plymouth or Cherbourg.

The owner of the ship had the burden of proving circumstances actually existing at the time, sufficient to justify such an exercise of discretion on the master's part, present to his mind when he turned back, and also an actual exercise of such discretion by him in view thereof. I have been unable to agree with the finding below that

this burden was sustained. As to the circumstances present to the master's mind, it is not contended that he would have turned back, except for the message received from the owner, and, so far as the message conveyed to him an untrue statement of facts, it can have no weight in this connection. Whether or not actually existing circumstances are shown which would have justified abandonment of the voyage is further considered below. But that any actual exercise of discretion by the master has been shown, in the sense necessary for the application of the above principles, I am in any case unable to believe.

The owner's discretion to turn the ship back appears from the evidence to have been a specific and unqualified order, leaving the master no choice but to obey. Whether or not, as between him and the owner, disobedience might have been excused by the presence of circumstances then known to the master, but necessarily unknown to the owner, such as made obedience expedient, need not be considered, there being no suggestion that there were any such circumstances. If this was the case, no responsibility for results caused by obedience could fall upon the master. By assuming to direct from Bremen, as it did, the course which the ship should take, her owner assumed, for itself and its ship, all such responsibility, and lost all right to charge the master with any share thereof.

It is said that the owner's message was not a mere order, but informed the master also of facts for his guidance, indicating that the owner still relied upon his discretion, not expecting unreasoning obedience. It is said, further, that the master turned back, not only in compliance with the owner's direction to do so, but in accordance with the dictates of his own prudence and sagacity; i. e., in the exercise of his discretion as master under an emergency.

But this requires, in my opinion, a view not justified by the evidence both of the character of the message itself and of the master's action upon it. The statement of facts contained in the message, if true, would have of itself required abandonment of the voyage to Plymouth and Cherbourg; and no independent judgment as to its truth by the master was possible. There can be no doubt that the owner meant him to act upon it as if it were true. Coupled as i was in the message with the unqualified order to turn back, I can see no reason to doubt that the instant obedience given that order by the master was the only course really left open to him, or intended to b left open to him, by the message; there being, as has been no suggestion of any reasons against turning back which the owne could not itself have already considered, and might therefore hav demanded an independent judgment on the master's part.

state

That the above was the view taken at the time by the mast himself appears from the terms of the first communication from hi to the owner after July 31; i. e., his report in writing to the own from Bar Harbor, dated August 21, 1916. This was sent 17 da after his arrival there on August 4th, and 2 months before the fi of these libels was filed. In it, after stating the latitude and lon tude reached upon the voyage from New York at the time the ow er's message of July 31st was received, he said: "Here we recei