It results from these conclusions that the several judgments and the decree in the cases before us, being in favor of the plaintiffs for the whole sum assured, must be reversed, and the records remanded for further proceedings. We perceive that the declarations in the actions at law contain no common or other counts applicable to the kind of relief which, according to our decision, the plaintiffs are entitled to demand; but as the question is one of first impression, in which the parties were necessarily somewhat in the dark with regard to their precise rights and remedies, we think it fair and just that they should be allowed to amend their pleadings. In the equitable suit, perhaps, the prayer for alternative relief might be sufficient to sustain a proper decree; but, nevertheless, the complainants should be allowed to amend their bill, if they shall be so advised.

In estimating the equitable value of a policy, no deduction should be made from the precise amount which the calculations give, as is sometimes done where policies are voluntarily surrendered, for the purpose of discouraging such surrenders; and the value should be taken as of the day when the first default occurred in the payment of the premium by which the policy became forfeited. In each case the rates of mortality and interest used in the tables of the company will form the basis of the calculation.

The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be proceeded with according to law and the directions of this opinion.

Mr. Chief Justice WAITE. I agree with the majority of the court in the opinion that the decree and judgments in these cases should be reversed, and that the failure to pay the annual premiums as they matured put an end to the policies, notwithstanding the default was occasioned by the war; but I do not think that a default, even under such circumstances, raises an implied promise by the company to pay the assured what his policy was equitably worth at the time. I therefore dissent from that part of the judgment just announced which remands the causes for trial upon such a promise.

Mr. Justice STRONG. While I concur in a reversal of these judgments and the decree, I dissent entirely from the opinion filed by a majority of the court. I cannot construe the policies as the majority have construed them. A policy of life insurance is a peculiar thing. Its obligations are unilateral. It contains no undertaking of the assured to pay premiums: it merely gives him an option to pay or not, and thus to continue the obligation of the insurers, or terminate it at his pleasure. It follows that the consideration for the assumption of the insurers can in no sense be considered an annuity consisting of the annual premiums. In my opinion, the true meaning of the contract is, that the applicant for insurance, by paying the first premium, obtains an insurance for one year, together with a right to have the insurance continued from year to year during his life, on payment of the same annual premium, if paid in advance. Whether he will avail himself of the refusal of the insurers, or not, is optional with him. The payment ad diem of the second or any subsequent premium is, therefore, a condition precedent to continued liability of the insurers. The assured may perform it or not, at his option. In such

a case, the doctrine that accident, inevitable necessity, or the act of God, may excuse performance has no existence. It is for this reason that I think the policies upon which these suits were brought were not in force after the assured ceased to pay premiums. And so, though for other reasons, the majority of the court holds; but they hold, at the same time, that the assured in each case is entitled to recover the surrender, or what they call the equitable, value of the policy. This is incomprehensible to me. I think it has never before been decided that the surrender value of a policy can be recovered by an assured, unless there has been an agreement between the parties for a surrender; and certainly it has not before been decided that a supervening state of war makes a contract between private parties, or raises an implication of one.

Mr. Justice CLIFFORD, with whom concurred Mr. Justice HUNT, dissenting.

Where the parties to an executory money-contract live in different countries, and the governments of those countries become involved in public war with each other, the contract between such parties is suspended during the existence of the war, and revives when peace ensues; and that rule, in my judgment, is as applicable to the contract of life insurance as to any other executory contract. Consequently, I am obliged to dissent from the opinion and judgment of the court in these cases.

6. HORLOCK v. BEAL.

(House of Lords. [1916] 1 App. Cas. 486.)

A British ship during a voyage for which a British seaman had signed articles, being in a German port when war was declared between the United Kingdom and the German Empire, was immediately detained, and some months later the crew were imprisoned. The ship was still detained and the crew imprisoned when this action for an allotment of wages was commenced.

* * *

Earl LOREBURN. My Lords, this is a case of great importance at the present time. A seaman had the misfortune to be serving on a British ship which entered the port of Hamburg on August 2, 1914. The ship was detained by the German authorities when on August 4 war broke out.

Ever since that date the ship and the crew have been detained in Germany. We do not know whether the ship has been condemned or not, but we know that she has been kept and her crew imprisoned. From August 4 till November 2 they were kept as prisoners on their own ship, and on November 2 were removed to other places of confinement.

In these circumstances this seaman's wife sues on an allotment note. Her right to recover admittedly depends on the question, Was the seaman entitled to his wages for the period from August 2 to April 10, 1915? His contract of service required him to serve on the ship Coralie Horlock for a voyage not exceeding two years in

duration. These articles were signed on May 21, 1914. An allotment note was issued in favour of the present plaintiff for a monthly payment of £4. 15s.

In my view the first question to be decided is whether or not, and at what date, the performance of this contract of service became impossible, which means impracticable in a commercial sense. It was at first possible that she might be released in accordance with a practice which has been common in former wars and is recommended, though not required, by the Hague Convention.

But the removal of the crew from their ship and their imprisonment elsewhere, and the lapse of time, made it clear that whatever hope there may have been of restoration could no longer be entertained. Looking back upon what happened, we may think that there. never was any hope. Or we may think that there was a period of suspense during which it was not determined whether there should be, in accordance with common practice, a release on both sides of ships so situated. There is hardly anything to help us, except the fact that the men were detained on their own ship till November 2. On the whole it seems to me that there was a period of suspense, and, judging as best I can, I take November 2 as the date. It is a surmise, but the opposite view also is a surmise on what is a question of fact.

Assuming this to be so, does that impossibility of performance dissolve the contract of service and disentitle the seaman to wage from that time onwards? The law, both as it is found in the statute book and as it has been administered in Admiralty Courts, has always been in some respects peculiarly tender and benevolent towards seamen in regard to their contracts of service, though in earlier days with a notable exception embodied in the maxim that freight is the mother of wages. That was a cruel exception, which has been removed now by Act of Parliament. Yet it has always to be remembered in scrutinizing the older decisions, because what prevented freight from being earned might prevent wages from being recoverable.

Is there, then, either in any Act of Parliament or in admiralty law, any rule which prescribes the effect of such a detention by the enemy as makes the performance of a contract of service impossible? There is no proof of condemnation by a Court.

We were referred to section 158 of the Merchant Shipping Act. That section tells us what is to be done in regard to wages if there is a wreck or loss of the ship. In my opinion these words refer to physical loss. It is true that a ship is lost to her owner in a real sense when she has been captured and condemned by a competent Court. It was argued that she may be actually lost to her owner by a prolonged detention. But if I am right in thinking that both the words used in this section, namely, "wreck" and "loss," refer to the ship herself and to her physical condition, then they have no bearing on this case. I will merely add that the Court of Appeal in The Olympic, [1913] P. 92, did not decide anything inconsistent with this view. They merely used the frustration of the voyage as a test by which to

MIL.L.-21

determine whether or not the physical injury inflicted amounted to "wreck."

Coming to the law as administered in admiralty, three cases were cited with a view of showing that prolonged detention of a ship and its crew by a foreign Power did not dissolve a seaman's contract of service. Two of these authorities are in 4 East, namely, Beale v. Thompson, 4 East, 546, 1 Dow, 299, and Pratt v. Cuff, 4 East, 43, the former of which was affirmed in this House more than a hundred years ago, but there is no record to show on what grounds. The third is a case at nisi prius, Delamainer v. Winteringham, 4 Camp. 186. They are cases in which ships and crews were confined for a long time but were ultimately released, and the interrupted voyage completed so as to earn freight and therefore wages. It was held that wages continued to be payable throughout. This could be supported, and was supported in the judgments, on the ground that both employers and employed treated the service as not terminated by the temporary interruption, though there are passages in the judgments which admit of a broader interpretation. There is no distinct authority for the proposition that if a seaman is willing to fulfil his contract he is still entitled to wages, though the performance of it has been made impracticable on both sides by a prolonged captivity. Accordingly neither statute nor admiralty law provides special guidance, and I must recur to the common law. The contract was for service on a ship for a voyage within a period of two years. Both ship and crew were forcibly detained; the contemplated service became impracticable, so far as I can judge, on November 2, 1914. Had the ship and crew been released on November 2, I do not think common law would have treated the contract of service as ended, and I do not think the chance of her release was ended before November 2.

In my opinion, neither party was any longer bound by that contract from that date. If they were bound, it must mean that wages were to be paid, without any service in return, for the entire duraton of this war, or, in the present case, till the expiry of two years from the commencement of the service. The Napoleonic war after the rupture of the Peace of Amiens lasted for eleven years. I think it was an implied term of this service, subject to any special law affecting seaman, that it should be practicable for the ship to sail on this voyage, in that sense which disregards minor interruptions and takes notice only of what substantially ends the possibility of the service contemplated being fulfilled. Both employer and employed made their bargain on the footing that, whatever temporary interruption might supervene, the ship and crew would be available to carry out the adventure.

Accordingly I think that the appeal should be allowed in respect of the period after November 2. I learned with satisfaction that provision is to be made for cases of this kind from public funds. It cannot, of course, affect the decision of a court of law, but it is in accordance with the spirit which has always influenced both courts. of law and the Legislature in dealing with a deserving class of men. The shipowners in this case have brought it before the Courts in

order to settle the law, which has been in doubt, and are not open to any reflection.

* * *

[Additional opinions were rendered by Lords ATKINSON, SHAW, PARMOOR and WRENBURY.]

7. TINGLEY v. MÜLLER.

(Court of Appeals. [1917] 2 Ch. 144.)

The defendant, a German by birth but for many years resident in England, although never naturalized, being about to proceed to Germany, executed a power of attorney on May 20, 1915, by which he appointed his solicitor his attorney to sell his leasehold house and to execute such transfers and deeds as were necessary. The power of attorney was made irrevocable for twelve months. On May 26 the defendant obtained a Government permit from the police to travel to Tilbury with the object of embarking for Germany by way of Flushing, and started on that day. On June 2, 1915, the leasehold premises were sold to the plaintiff by public auction, and a deposit was paid and an agreement signed by him.

* * *

There was no evidence as to the date when the defendant reached Germany, but it was on some date between May 26 and June 11, 1915. At this latter date it appeared from letters received by his solicitors that he was then resident in Hamburg.

On the plaintiff learning from the answers to requisitions on title that the defendant was a German by birth, and then (as the plaintiff alleged) voluntarily resident in Germany, he refused to proceed with the contract of sale on the ground that it was a transaction prohibited by the Trading with the Enemy Acts, 1914, and at common law. He further claimed a return of the deposit of £100. and the costs of investigating the title.

The defendant by his defence pleaded that the sale was binding on the plaintiff, that he had been ordered by the British Government to leave England, and did not admit that at the date of the agreement he had been, or now was, voluntarily or otherwise resident in Germany, or an alien enemy. He expressed his willingness that the moneys payable to him under the agreement should be paid to and received by the Public Trustee as custodian under the Trading with the Enemy, Acts, 1914 to 1916, or otherwise dealt with as the Court might direct. The defendant also thereby offered to consent to any order under the Trustee Act, 1893, or otherwise, vesting the premises in the plaintiff which might be necessary or advisable for the purpose of carrying the agreement into effect.

The action was tried before Eve, J., on January 17, 1917, who held that it failed and must be dismissed with costs. His Lordship said that on the facts he could not draw the inference desired by the plaintiff, and that his claim was quite misconceived. The plaintiff had not established the fact that the defendant was an alien enemy. The defendant was not an alien enemy merely by reason of his being a German by birth; it was necessary to prove that he was resident in Germany at the date of the agreement for sale. According to Por