CO129-415 - Governor Sir May - 1914 [12] — Page 18

Hon. Colonial Secretary,

1.

There are two questions

15

2.

(a) the legal position with regard to leases made

to enemy subjects before the war, and

(b) the question of policy as to how far that posit-

ion should be varied by legislation.

In my opinion such leases have not been determined, for the following reasons:-

(a)

Generally speaking contracts made before war are

innocent, though the right of enforcement may be

suspended: Jansen v. Driefontein Consolidated Mines

Ltd. (1902) A.C.484.

(b)

(i)

(c)

(d)

Leases do not fall within any of the established

exceptions to the above rule, i...

-

Contracts as in aid of the enemy, e.g. insur-

ance against capture: Furtado v. Rogers

(1802) 3 B & P. 191.

(ii) Contracts incapable of suspension, @g.

partnerships: Griswold ■. Waddington (Am .),

(1818) 16 Johnson's Reps 438.

(iii) Contracts involving dealings with the enemy,

•.g. shipping goods from an enemy port;

Esposito v. Bowden, (1867), 7 F & B 763.

A lease to an enemy subject even after the outbreak

of war is valid if both parties were resident in

our territory: Kershaw v. Kelsey, (Am.), (1868)

100 Mass. 561. In that case, which has been follow

ed in other American decisions, the lessee, an

enemy subject, was expelled by the other belliger-

ent, which makes it remarkably like the present

case.

Such being the position at common law, Section 10 of the Alien Enemies (Winding up) Ordinance, 1914, prevents the passing of that Ordinance from affect-