“ The exportation of lead was never prohibited by the Treasury Department during the war between China and Japan. There was no change in the law or the policy of this government subsequently to the making of the contract, by which its performance was excused. The exportation of the lead was legal when the contract was made, and continued to be so after the execution of such contract, although the deputy collector mistakenly refused to grant the clearance unless the lead was taken off the vessel. ”

“ In September, 1894, the trading company applied to Fitch for a rate upon a proposed shipment of pig lead from New York to Yokohama, Japan, and informed him that it was of vital importance that the lead should be transported promptly, and go forward by the earliest possible steamer, without delay, in order to enable the trading company to fulfil a proposed agreement, which it was about to make for the sale of the lead in Japan, and which would require its delivery there at a fixed date. ”

“ It is legal to export articles which are contraband of war; but the articles, and the ship which carries them, are subject to the risk of capture and forfeiture. The Santissima Trinidad, 7 Wheat. 283, 340, 5. L. ed. 454, 468. Neither any law of the United States, nor any provision of international law, was violated by the making of this contract, nor by an attempt to export the lead pursuant to its provisions. ”

“ It would be in the highest degree disadvantageous to all interested in the railroad company, as well as to the public having occasion to do business with it, if the same power which the company possessed to make special contracts for transportation should not be given to and exercised by the receivers of the company in continuing to run the road in substance as a going concern, so far as these kinds of contracts are concerned. ”

“ Appellant urges, however, that, as Fitch was also agent for the steamship company, his contract, if there was one, to forward by the steamship sailing October 30, was in behalf of the steamship company. Fitch had never received any direct or independent appointment or authority from the Northern Pacific Steamship Company to act as its agent. His only authority as agent of that company was created by the contract made between the two companies. By that agreement the railroad company was to have the exclusive right (with certain exceptions) to appoint agents in the United States, etc. ”

“ The line of railroad in the possession of the receivers extended from Duluth, Minnesota, to Tacoma, Washington. The receivers had contracts with various carriers reaching points on their line, by which through bills of lading were issued from and to points not upon the line of the receivers' railroad, where the freight passed over some part of that line in transit. Among the carriers with whom the receivers had such arrangements was the Northern Pacific Steamship Company. This was an English company, operating a line of steamers between Tacoma and points in Japan and China, including Yokohama. ”

“ The case does not come within the principle of Brewster v. Kitchell, 1 Salk. 198, where it was said that, if one covenants to do a thing which is lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed. ”