Whether a pre-existing contract is dissolved or not by the war depends upon whether it is essentially antagonistic to the laws governing a state of war. If it is of a continuing nature, as in the case of a partnership, or of an executory character merely, and in the performance of its essential features would violate such laws, it would be dissolved; but, if not, and rights have become vested under it, the contract will either be qualified, or its performance suspended, according to its nature, so as to strip it of its objectionable features, and save such rights. The tendency of adjudication is to preserve, and not to destroy, contracts existing before the war.25
89. In this country a convict can in most jurisdictions, unless prohibited by statute, make contracts, and sue and be sued thereon.
At common law a person convicted of treason or felony was said to be civilly dead. He was not incapable of contracting, and his contracts could be enforced against him; but he could not invoke the aid of the courts for their enforcement.26 The subject is now regulated in England by statutes, which declare convicted felons incapable of making any contract, and provide for the transfer of their property to trustees, who are given power to make contracts in regard to it.27
Ins. Co. v. Hillyard, 37 N. J. Law, 444, 18 Am. Rep. 741; Wright v. Graham, 4 W. Va. 430; Habricht v. Alexander, 1 Woods, 413, Fed. Cas. No. 5,886; De Jarnette v. De Giverville, 56 Mo. 440. See "War," Dec. Dig. (Key-No.) § 15; Vent. Dig. §§ 64-79.
22Brooke v. Filer, 35 Ind. 402; Blackwell v. Willard, 65 N. C. 555, 6 Am. Rep. 749; Semmes v. Insurance Co., 36 Conn. 543, Fed. Cas. No. 12,651. See "War," Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 26-86; "Insurrection," Cent. Dig. § 3.
23 See cases in preceding notes.
24 Dorsey v. Thompson, 37 Md. 25; McVeigh v. United States, 11 Wall. 259, 20 L. Ed. 80; Mixer v. Sibley, 53 I11. 61; McNair v. Toler, 21 Minn. 175. See Clarke v. Morey, 10 Johns. (N. Y.) 69. See "War," Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 26-86.
25 Mutual Ben. Life Ins. Co. v. Hillyard, 37 N. J. Law, 444, 18 Am. Rep. 741; Griswold v. Waddington, 15 Johns. (N. Y.) 57; Semmes v. City Fire Ins. Co., 36 Conn. 543, Fed. Cas. No. 12,651; Bank of New Orleans v. Matthews, 49 N. Y. 12; Cohen v. Insurance Co., 50 N. Y- 610, 10 Am. Rep. 522; Washington University v. Finch, 18 Wall. 106, 21 L. Ed. 818; Whelan v. Cook, 29 Md. 1; Dorsey v. Kyle, 30 Md. 512, 96 Am. Dec. 617; Dorsey v. Thompson, 37 Md. 25. See "War," Dec. Dig. (Key-No.) § 10; Cent. Dig. §§ 26-86.
With us the common-law rule is not recognized to any extent, and a convict undergoing a sentence of imprisonment, or even awaiting execution of a sentence of death, may, in the absence of statutory' restrictions, enter into contracts, and sue or be sued thereon.28 In some states, however, there are statutes declaring that a sentence of imprisonment in the penitentiary shall suspend all civil rights, and if for life shall render the convict civilly dead; and such statutes have been construed to impose the same consequences as civil death at common law.29 In some states, also, the statutes provide, as in England, for the transfer of the convict's property to trustees, with power to administer it and make contracts in regard to it.80 The disability continues only during the imprisonment, and upon his receiving a pardon or serving out his sentence the convicted person is restored to the control of his property and his power to contract.31