Marine Office: "Threatening danger of war. Touch at no port [of] England, France, Russia." On the same day Germany declared war on Russia. On August 2, Germany demanded of Belgium passage for German troops, and seized two English vessels with their cargoes. Explanations were offered of the seizures, but the vessels were detained. The German Army entered Luxembourg, and there were skirmishes with French troops. On August 3 Germany was at war with France, and at 11 P. M., on August 4, with England. On August 4 some German vessels were detained by England, and early on the fifth were seized as prize, e. g., Prinz Adalbert [1916] P. 81. No general history of the times is necessary. It is enough to add that from the moment Austria declared war on Servia the great danger of a general war was known to all.

With regard to the principles upon which the obligations of the vessel are to be determined it is plain that, although there was a bill of lading in which the only exception to the agreement relied upon as relevant was “arrest and restraint of princes, rulers or people," other exceptions necessarily are to be implied, at least unless the phrase restraint of princes be stretched beyond its literal intent. The seeming absolute confinement to the words of an express contract indicated by the older cases like Paradine v. Jane, Aleyn, 26, has been mitigated so far as to exclude from the risks of contracts for conduct (other than the transfer of fungibles like money,) some, at least, which, if they had been dealt with, it cannot be believed that the contractee would have demanded or the contractor would have assumed. Baily v. De Crespigny, L. R. 4 Q. B. 180, 185. Familiar examples are contracts for personal service, excused by death, or contracts depending upon the existence of a particular thing. Taylor v. Caldwell, 3 Best & Smith, 826, 839. It has been held that a laborer was excused by the prevalence of cholera in the place where he had undertaken to work. Lakeman v. Pollard, 43 Maine,

463. The same principles apply to contracts of shipment. If it had been certain that the vessel would have been seized as prize upon reaching England there can be no doubt that it would have been warranted in turning back. See Mitsui & Co., Limited, v. Watts, Watts & Co., Limited, [1916] 2 K. B. 826, 845. The Styria, 186 U. S. 1. The owner of a cargo upon a foreign ship cannot expect the foreign master to run greater risks than he would in respect to goods of his own nation. The Teutonia, L. R. 4 P. C. 171. The San Roman, L. R. 5 P. C. 301, 307. And when we add to the seizure of the vessel the possible detention of the German and some of the other passengers the proposition is doubly clear. Cases deciding what is and what is not within the risk of an insurance policy throw little light upon the standard of conduct to be applied in a case like this. But we see no ground to doubt that Chief Justice Marshall and Chief Justice Kent would have concurred in the views that we express. Oliver v. Maryland Insurance Co., 7 Cranch, 487, 493. Craig v. United Insurance Co., 6 Johns. 226, 250, 253. See also British & Foreign Marine Ins. Co., Limited, v. Samuel Sanday & Co., [1916] A. C. 650.

What we have said so far we hardly suppose to be denied. But if it be true that the master was not bound to deliver the gold in England at the cost of capture it must follow that he was entitled to take reasonable precautions to avoid that result, and the question narrows itself to whether the joint judgment of the master and the owners in favor of return was wrong. It was the opinion very generally acted upon by German shipowners. The order from the Imperial Marine Office if not a binding command at least shows that if the master had remained upon his course one day longer and had received the message it would have been his duty as a prudent man to turn back. But if he had waited till then there would have been a question whether his coal would hold out. Moreover if

he would have been required to turn back before delivering, it hardly could change his liability that he prophetically and rightly had anticipated the absolute requirement by twenty-four hours. We are wholly unable to accept the argument that although a shipowner may give up his voyage to avoid capture after war is declared he never is at liberty to anticipate war. In this case the anticipation was correct, and the master is not to be put in the wrong by nice calculations that if all went well he might have delivered the gold and escaped capture by the margin of a few hours. In our opinion the event shows that he acted as a prudent man.

We agree with the counsel for the libellants that on July 27 neither party to the contract thought that it would not be performed. It was made in the usual form and, as we gather, charged no unusual or additional sum because of an apprehension of war. It follows, in our opinion, that the document is to be construed in the same way that the same regular printed form would be construed if it had been issued when no apprehensions were felt. It embodied simply an ordinary bailment to a common carrier subject to the implied exceptions which it would be extravagant to say were excluded because they were not written in. Business contracts must be construed with business sense, as they naturally would be understood by intelligent men of affairs. The case of The Styria, 186 U. S. 1, although not strictly in point tends in the direction of the principles that we adopt.

Decree reversed.

MR. JUSTICE PITNEY and MR. JUSTICE CLARKE dissent, upon grounds expressed in the opinions delivered by Circuit Judges Dodge and Bingham in the Circuit Court of Appeals-238 Fed. Rep. 668.

244 U. S.

Argument for Plaintiffs in Error.

CHICAGO LIFE INSURANCE COMPANY ET AL. v. CHERRY.

ERROR TO THE APPELLATE COURT FOR THE FIRST DISTRICT OF THE STATE OF ILLINOIS.

No. 171. Argued April 18, 1917. Decided May 7, 1917.

In an action on a sister state judgment a state court may inquire whether there was personal jurisdiction in the prior proceedings, notwithstanding the question was raised by the judgment defendant and affirmatively decided against him after full hearing both in the trial court which rendered the judgment and in the appellate courts of the same State to which he took the case for review. The claim that a money judgment by a state court violates due process for want of jurisdiction over the defendant's person is not sustainable if the jurisdiction was questioned by him by plea in abatement and by proceedings in the state courts of review, and sustained after fair hearings before the judgment became finally effective. A judgment rendered in such circumstances, being sued upon in the courts of another State, was sustained upon the ground that the matter of personal jurisdiction could not be reopened. Held, that no violation of due process was involved, since the original judgment satisfied due process and the reason assigned for upholding it, if erroneous, amounted only to a mistake concerning the law of the State in which the judgment was rendered.

A decision of a state court upholding a judgment of another State raises no question in this court under the Full Faith and Credit Clause.

What documentary matter should be filed with the declaration in an action in a state court upon a sister state judgment is a local question not reviewable by this court.

190 Ill. App. 70, affirmed.

THE case is stated in the opinion.

Mr. Charles A. Atkinson, with whom Mr. Chilton P. Wilson and Mr. Charles J. O'Connor were on the briefs, for plaintiffs in error:

Argument for Plaintiffs in Error.

244 U. S.

The decisions of the Tennessee courts to the effect that they had jurisdiction over plaintiffs in error do not preclude the courts of Illinois from examining the record facts in the Tennessee courts to determine the question of jurisdiction. D'Arcy v. Ketchum, 11 How. 165; Haṛkness v. Hyde, 98 U. S. 476; Haddock v. Haddock, 201 U. S. 572; Thompson v. Whitman, 18 Wall. 457; Sheldon v. Wabash Ry. Co., 105 Fed. Rep. 785; Gilman v. Gilman, 126 Massachusetts, 26; and other cases. A court cannot acquire jurisdiction by the mere assertion of it. Gould v. Glass, 19 Barb. 179; Harkness v. Hyde, supra; In re Eichoff, 101 California, 600; Williamson v. Berry, 8 How. 495; Brown on Jurisdiction, 2d ed., § 26. In raising the question plaintiffs in error merely filed pleas to the jurisdiction of the person; they entered no general appearance. In a suit upon a judgment recovered in another State against a foreign corporation there is no presumption of jurisdiction arising from the judgment alone. Galpin v. Page, 18 Wall. 350; Settlemier v. Sullivan, 97 U. S. 444. The rule of res judicata is inapplicable; it applies only where the court has jurisdiction of both the person and the subject-matter.

The Tennessee decisions were based upon the peculiar statutes of that State (Code of Tennessee, §§ 4543, 4545) which provide for service of process upon any agent of a foreign corporation found within the county where the suit is brought "no matter what character of agent such person may be," or, if such agent cannot be found, the one who represented the corporation at the time the transaction out of which the suit arose took place. It is submitted that these provisions are unconstitutional in that they authorize the service of process and a method of acquiring jurisdiction without an opportunity to the defendant to be heard, and thus deprive plaintiffs in error of their property without due process of law. Scott v. McNeal, 154 U. S. 34; Thompson v. Whitman, supra;