), p. 17, note) was restored by Sir William Scott in 1807 on the
ground that her voyage was _contingent_ not _continuous_. The ship had
been captured on a voyage from Bordeaux, destined ultimately to Bremen,
but with orders to touch at a British port and to resume her voyage if
permitted. The _Mercurius_ (Edwards 53; Roscoe English Prize Cases
(1905), p. 15) was restored by the same judge in 1808 on the ground of
an "_honest intention_" to procure a license before trading with the
enemy.]

One justice concurred on the main point at issue, namely, that there
appeared to be "sufficient proof in the present case of an honest
intention to pass a bond at Algoa Bay not to take the goods to Delagoa
Bay except with the permission of the proper authorities.... The
presumption of an intention of trading with the enemy, arising from the
fact that the ship was carrying enemy's goods consigned to Delagoa Bay
and destined for the enemy's country, is entirely rebutted by the
conduct of all the parties interested in the ship. The claim for the
restitution of the ship must consequently be allowed."[19]

[Footnote 19: Decision at Cape Town, March 13, 1900, Chief Justice, Mr.
Justice Buchanan concurring.]

One justice dissented from this opinion and argued that "as soon as war
broke out, it became the duty of the master to decline to convey any
goods which, from the papers in his possession, appeared to be the
property of enemy consignees." It was contended by this justice that
"his contract of affreightment could not be fulfilled" in any event, and
he should have been aware of this fact. Further, it was urged that there
was not convincing evidence to "establish that there was no intention on
the part of the master of the ship to trade with the enemy, except with
the permission of the proper authorities. In the circumstances, such a
defense must be established by very clear proof; ... although there is
no reason whatever to impute any disloyal intention, or _mala fides_, ...
the proof of non-liability on this ground has not been made out." On
the contrary, it was insisted, in this dissent from the leading opinion,
"there seems to be an absence of proof that it was not the intention ...
to deliver these goods to the consignees unless prevented from doing
so by some competent authority; and this cannot be regarded as
equivalent to proof that [the master] intended to apply for and obtain a
license before engaging in intercourse which, in t