of membership in the corporation of the defendants of which the plaintiff is deprived, this Court could give no relief even as a Court of Equity, since the proper remedy is by mandamus to restore him to such rights, of which the Supreme Court alone has jurisdiction. So that the only jurisdiction the Court could exercise would be to order a repayment of, or in other words, enable the plaintiff to rescind the contract and recover back past payments made by him, upon the ground that being past payment of an entire consideration, the defendants have either refused to perform their part of such contract or thrown such obstacles in the way of the plaintiff's performance of those conditions which would enable him to claim the advantage of it, as to entitle him to be restored to the condition in which he was before it was made.

Even assuming, however, that the policy was an entire contract to insure for a life time defeasible on non-payment was a condition subsequent and entitled to greater favor than a condition precedent, and that the present is a case of releasing the rigors of the law in regard to performing such condition. The policy and its acceptance constituted something more than a contract; they conferred a membership of the corporation of the defendants, and gave the plaintiff a right to share of the profits of the defendants, including such very payments.

The defendants were a partnership, whose business it was to receive compensation for entering into contingent obligations, which either formed the capital by means of which such obligations were to be discharged, or profits to the partners, in case they exceeded the amount necessary to discharge such obligations. The plaintiff, by becoming a member, was adopted as a partner in an existing partnership, agreeing to contribute to its capital the sums necessary to entitle him to a continuance of the contract which made him a member, which at the same time formed the consideration for such continuance, he receiving back as a member of such partnership while he continued to contribute a share of the very sums so contributed by him as profits. But he also agreed that a failure to continue such contributions should deprive him of his membership and all right to reclaim as an individual with whom the partnership has made an unfulfilled contract the sums paid as a consideration therefore. It is manifest that such a relation stands on an entirely different footing as to the relaxation of the strict performance of conditions from that of a mere obliged or obligee. The whole business for which the partnership was formed must end, if every one availed himself of obstacles to a performance on his part to insist on the continuance of the contract. As it was entirely a matter of option with the insured to continue the contract of the company, the latter could not know why he had failed to perform the condition, by whose performance they were to be notified of such election, and would be at a loss, in entering into new and similar obligations to know on what to rely for the means of discharging them. This would be so entirely subversive of the purposes, mode of operation, and vitality of such a partnership, that such a relaxation of the rule would defeat the whole value of the contract and could not be supposed to have entered into the contemplation of the parties to it. The waiver of all right to claim such relaxation in any event is by implication as much a part of such contract as if it had been expressly stipulated in it.

But assuming this policy to be a mere contract between strangers to

each other, and that this court could make a decree or judgment available and binding on the parties, and that unexpected obstacles difficult to overcome were an excuse for the want of strict performance of the condition subsequent contained in such policy, the question still remains whether the existing state of war between the Government of this country and the insurgents, Confederate States as they termed themselves, was a justifiable excuse for the non-payment of the premiums in question. Such an excuse has two aspects-first, the physical impossibility of paying such sums, by reason of the difficulty of communication between the two parts of the country; and secondly, the prohibition of any dealings by the inhabitants of the loyal States with the rebels, or those inhabiting the country over which their dominion extended. I do not think the complainant undertakes to allege that the payment of such sums was physically impossible. Its allegations are merely that "communication was suspended," a very indefinite phase, and "that all payments of premiums were impossible." It does not state how or why they were impossible, whether the plaintiff ever possessed the means to pay, or whether he made any effort. Possibility too often depends upon the will, the means and the effort to accomplish an end, for the court judicially to know that there were insurmountable obstacles to a payment, without which it is not to be considered legally impossible. (Beebe vs. Johnson, 19 Wend. Rep., 500.)

The history of the war shows, that however difficult and circuitous the mode was, such payments were feasible. I apprehend the plaintiff is not at liberty to substitute his own conclusion as to an impossibility for a statement of the facts which he considered as producing it so as to enable the court to judge of the impossibility. A mere state of war does not necessarily produce it physically, and can only do so when such is its legal effect.

It is, perhaps, a question not entirely free from difficulties, how far the performance of conditions subsequent by an obligee to prevent a contract from being forfeited or rescinded during a state of war, between the Government of such obligee and that of the obligor in the country of the latter is lawful. Of course no action can be maintained during a state of war by an alien enemy, nor while it subsists can any valid commercial contracts be made between the subjects of hostile powers. (Griswold vs. Waddington, 16 J. R., 438.)

But contracts made before can be enforced after such war, which only suspends the right of action, has ended. It has been held that it was not unlawful for a citizen of the United States within its territory to perform, during a war with a foreign Power, an act in pursuance of a contract made before such war for the benefit of a subject of such foreign Government. (Buchannan vs. Curry, 19 J. R., 237. How far this would extend to the act of an alien enemy or his agent within the United States to prevent a contract for his benefit with citizens of the United States from lapsing, is perhaps open to discussion. Or although such alien enemy might not be allowed to perform such acts during such war, perhaps a neutral merely domiciled in the country of the enemy might; although his goods, equally with those of an alien enemy, are liable to capture and condemnation by the adverse belligerent. (Elbers vs. United States Ins. Co., 16 J. R., 128.) But whatever may be the settled law on the subject, it does not aid the present plaintiff, who must be held, if he were allowed to tender the

amount during the war, and was not prevented by invincible necessity from doing so, not tɔ have a sufficient excuse for not doing so; or else if such necessity was created by the illegality of dealings between subjects of belligerent governments during the war, he is not entitled to avail himself of a common calamity, which operated equally on both parties. He could not, in the latter case, be placed in a better light than if the Legislature of the State had rendered the payment and reception of such premiums illegal, and subsequently repealed such an enactment. In such cases both parties are deprived of a right in order to meet a public necessity, and although such vis major may excuse the performance of a covenant, it cannot be the performance of a condition which is to keep alive a contract. It is the State that in such cases, confiscates for and sacrifices to the public interest, not the other contracting party, who makes, forfeits all the benefits of the contract, if continued. It has been deemed necessary even to provide, by express statute, that the continuance of a war between the United States and a foreign power should be no part of the Statute of Limitations, where the plaintiff had been a citizen of the country so at war with the United States. (2 Rev. Stat., 295, § 32; Code of Procedure § 103.)

For the several reasons, therefore, that no judgment can be given by the Courts to affect the rights of parties; that the partnership of the plaintiff with the defendants was terminated by his non-contribution of capital or profits, contrary to the terms of the partnership agreement, and there is no equity which entitles him to be restored; that he has not stated obstacles to the performance of the conditions required of by him, so as to enable the Court to pass upon their sufficiency, and that a mere state of war between the existing authorities of the country in which he resided and the United States formed no excuse for not complying with such condition.

I think judgment should be rendered for the defendants, with the usual leave to plaintiff to amend.

INTEROCEANIC COMMUNICATION-ATLANTIC AND PACIFIC SHIP CANALS AND RAILROADS.

On March 13, 1866, the United States Senate called upon the Secretary of the Navy to furnish, through a report of the Superintendent of the Naval Observatory, an account of the various proposed lines of communication between the Atlantic and Pacific oceans-especially by Tehauntepec, Honduras, Nicaragua, Panama and Atrato-with a statement of the relative merits of the routes "as practicable lines for the construction of a ship canal." The object was to obtain such accurate knowledge in the premises as would prevent the waste of money on infeasible plans. In response to this call, Rear Admiral Davis has presented a report which admirably sums up the whole case, and lays before the country in succinct form a full digest of all surveys and other accounts of the countries in question. We give below his account of the more important routes under their respective heads, in order that the argument

and objection for and against each may be fairly seen. The route of the Isthmus of Darien is praised above all others, and at the same time that the Admiral declares that that route has not been satisfactorily explored, he still gives it as the result of all his inquiries that "it is to the Isthmus of Darien that we are first to look for the solution of the great problem of an interoceanic canal."

At the outset of the report, Tehauntepec and Honduras are excluded from consideration because they "posess little merit as a practicable route for a ship canal." Thus the only localities discussed at length are the last named three, Nicaragua, Panama and Atrato ;—

NICARAGUA.

There has been a time when the transit from ocean to ocean, on a line following the river San Juan del Norte, either in its bed or on its banks, crossing Lake Nicaragua and thence to the Pacific, has enjoyed special favor and attention. From Greytown to the lake the mode of proceeding has been the same in most of the plans. It has included the improvement of the navigation of the river San Juan, where possible, by excavations in its bed and by the construction of dams, which, with the rapids of the river, were to be passed by the means of locks and canals. But, from the lake to the Pacific outlet, various branches have been proposed. Three of these pass through lake Managua; a fourth terminates at Brito; a fifth at San Juan del Sur; a sixth proceeds by the Sapoa river to Salinas Bay; a seventh, keeping in the southern part of the State of Nicaragua, proposes to cut from the river San Juan through the State of Costa Rica to Nicoya gulf. Only two of these routes have been carefully surveyed, those terminating in Brito and San Juan del Sur.

There are so many difficulties attending all these routes, which detract from their "relative merits as practicable lines for a ship canal," that I should feel authorized, under ordinary circumstances, to pass over this region in a few words; but so much has been said and written about it by eminent authorities that I feel called upon to present some descriptive

details.

A variety of circumstances have concurred to concentrate public opinion and favor upon this route. I refer particularly to the accidental settlement of Greytown; to the establishment of a transit through Nicaragua ; the actual navigation of the San Juan river and of Lake Nicaragua; the connection of eminent names, including that of the present French Empercr; and the agricultural and mineral wealth of the Chomtales region. And to these circumstances may be added the advances seemingly made by nature in offering the water communications of San Juan and the lakes, which reduce the isthmus to one-tenth of its whole breadth. Extravagant expectations have been fostered, and hasty schemes have been formed, including extensive plans of colonization-schemes that never have reached maturity.

The late Admiral Fitz Roy, in the first paper which he presented to the Royal Geographical Society on the isthmus of America, entered into a careful examination of this line and its branches, and maturely considered the value of the statements made by its advocates, and the feasibility of the project with reference to the natural difficulties to be overcome. conclusion at which he arrived was unfavorable.

The

I take the pains to cite the authority of this distinguished hydrographer, because it will be received with the highest respect by all who are acquainted with his useful labors and great abilities. It is not worth while to follow him over the same ground; to discuss the statements of Mr. Bailey, on the data of the French Emporor, or to dwell upon the unfavorable conditions arising from climate, earthquakes, volcanoes, etc. I will base what I have to say upon the report of the survey made by Messrs. Childs and Ray, in the years 1850-'51, for the American Atlantic and Pacific Ship Canal Company.

The line selected by Colonel Childs proceeds from Lake Nicaragua by a short and easy route to the harbor of Brito. It traverses the lake directly to its outlet at Fort San Carlos; it employs slack water navigation on the San Juan river for a distance exceeding ninety miles, and then pursues a canal, independent of the river, to the harbor of San Juan del Norte. This plan of operation requires fourteen locks to descend from the lake to the Pacific ocean, and fourteen locks to descend from the lake to the Caribbean sea, in which last enumeration are included light locks at dams on the San Juan. There are seven dams on the river. Costly improvements, possessing the character of artificial harbors, will be necessary at the two points of departure from the lake. The seaports of Greytown and Brito, at the two ends of the line, will require costly and extensive improvements in the way of excavations, piers, jetties, breakwaters, &c. The total length of the line is a little more than one hundred and ninety-four (194) miles. It may be safely asserted that no enterprise, presenting such formidable difficulties, will ever be undertaken with even our present knowledge of the American isthmuses. Still less is it likely to be entered upon while such strong and well founded hopes are entertained by the promoters of the union of the Atlantic and Pacific oceans of finding elsewhere a very much easier, cheaper and more practicable route for a canal, in every way suited to the present demands of commerce and navigation. The relative merits of the Nicaragua route as "a practicable line for the construction of a ship canal" do not require further consideration.

I have taken Childs' survey as a standard. I will therefore mention that it is regarded by Squier and other competent authorities as the authentic and reliable survey of the Nicaragua route; and, further, that in March, 1852, his drawings, reports and estimates were submitted to the examination of Colonels Abert and Turnbull, United States engineers. Squier's language in regard to the survey is very emphatic; he says, "Childs' survey is the only one to be accepted as conforming to modern engineering requirements." Childs' report was further submitted by the Earl of Malmesbury to English engineers, who also questioned its author personally. They reported that, "presuming Colonel Childs' data and statements to be correct, the harbor of Brito is, in size and shape, unworthy of this great ship navigation."

CHIRIQUI.

The next line in the order of our enumeration is Panama; but there lies between Nicaragua and Panama another isthmus which has been