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Later he quotes Bynkershoek to the effect that 'legality of commerce and the mutual use of Courts of Justice are inseparable. It is doubtful whether the learned judge is right in basing the prohibition of intercourse upon the procedural disability, for the prohibition is certainly as old as the thirteenth year of Edward II's reign (2 Rolle's Abridgement 173, Guerre), when the enemy was Scotland.

The reports during the Napoleonic wars afford instances of the operation of the plea of alien enemy both against alien enemies and against persons suing on their behalf. In one case, however, R. v. De Manneville-, a writ of habeas corpus was granted to an alien enemy to recover his daughter aged eight months from the hands of the mother.

To come to more recent times, the new3 factor is the system of registration created by the Orders in Council made under the Aliens Restriction Act, 1914. What is the effect of registration? Does it confer any privilege, or does it merely impose restrictions ? Mr Leslie Scott discusses this question on pp. 19–23 of the first edition of The Effect of War on Contracts. It fell to the lot of Sargant J. in Princess Thurn and Taxis v. Moffitto to give the first High Court decision upon the point, and his judgment has since received the approval of the full Court of Appeal. In that case the action was pending at the outbreak of war, and the plaintiff is stated (pp. 59 and 61) to have resided in the United Kingdom. She had complied with the Orders in Council, and the defendant's application to stay all proceedings on the ground that she was an alien enemy was refused. Had she a domicile in this country or was she merely temporarily in the country at the outbreak of war? Her husband, a subject of Austria-Hungary, was ‘abroad and probably engaged in fighting against this country. From the passage in Hall's International Law (6th ed., p. 388) which Sargant J. quotes with approval, it would seem that, in the opinion of the learned judge, registration removes the procedural disability, not merely in the case of a plaintiff having a civil or commercial domicile, but also in the case of an alien enemy who merely happens to be here at the outbreak of war and is 'allowed to remain... during good behaviour.' It will be noticed that a married woman can acquire this ‘registration status' independently of any act on the part of her husband.

1 See, on the question of residence, Boulton v. Dobree (1808) 2 Camp. 163, and Alciator v. Smith (1812) 3 Camp. 144, in neither of which does Wells v. Williams (supra) appear to have been cited. 2 (1804) 5 East, 221. 3 See, however, 43 Geo. III. c. 155, S. 22.: [1915] 1 Ch. 58.

It seems to be safe to state that the effect of the new system of compulsory registration is that, without complying with it, civil or commercial domicile in this country will have no effect in removing the disability of an alien.

(1) Plaintiff in action pending at the date of the outbreak of war. Is such a plaintiff in any better position than one who issues his writ during time of war? Oppenheim? states that ‘if during time of peace a defendant obtains an opportunity to plead, and if subsequently war breaks out with the country of the plaintiff, the defendant may not plead that the plaintiff is prevented from suing,' citing Shepeler v. Durant, but it is submitted that this statement is not borne out by the cases.

In Le Bret v. Papillon), an action on a French judgment, the plaintiff had exhibited his bill against the defendant, when subsequently war broke out between their respective countries. The defendant pleaded (inter alia) that the plaintiff was now an alien enemy, to which the latter replied that that did not matter, as he was not an alien enemy when he exhibited his bill. The Court held that the plaintiff was 'barred from further having or maintaining his action. But in Venbryen v. Wilson4 a motion to stay judgment and execution, on the ground that the plaintiffs had become enemies since the verdict, was refused.

In Shepeler v. Durant (supra) the plaintiff, a subject of, or resident in, Russia, suing in the Court of Common Pleas upon a contract for the sale of goods, delivered his declaration on

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1 International Law (2nd ed.), Vol. 11. p. 133.
2 (1854) 14 C. B. 582.
3 (1804) 4 East, 502.

4 (1808) 9 East, 321.

the 15th March, and on the 23rd the defendant obtained an order to plead. On the 28th war was declared against Russia, and the defendant took out a summons to stay proceedings on the ground that the plaintiff had become an alien enemy, or, in the alternative, for leave to plead such a plea in abatement. In April the summons was refused on the ground that the defendant, by the terms on which he had obtained on the 23rd March an order for time to plead, namely, to plead issuably, was by the rules of pleading then in force precluded from entering such a plea as that of alien enemy. No authorities whatever are cited in the report, and it is submitted that the case turns purely on an obsolete rule of pleading, and is of no authority at the present day.

In November of the same year, in the Queen's Bench, the defendant in the case of Alcinous v. Nigreu? pleaded that the plaintiff, a Russian, was an alien enemy, was residing in the kingdom without the licence, safe-conduct, or permission of the Queen, and ‘has become such enemy as aforesaid since the last pleading in the action. On demurrer the Court (Lord Campbell C.J., Coleridge, Wightman, and Erle JJ.) upheld the sufficiency of the plea. No cases are cited, and the plaintiff's counsel is not reported to have argued the point taken successfully in Shepeler v. Durant (supra).

Alcinous v. Nigreu (supra) may not be very clear as to the circumstances of the plaintiff's residence here, but it certainly follows Le Bret v. Papillon (supra), and casts doubt upon Shepeler v. Durant (supra). In the cases reported since the outbreak of the present war it does not even seem to have been suggested that an alien enemy plaintiff who has delivered a statement of claim in time of peace may—for that reasoncontinue his action during the war, and Von Hellfeld v. Rechnitzera, where the pleadings were closed on July 31, 1914, and the plaintiff, an alien enemy, was not allowed to proceed with his action, is direct authority to the contrary. It is submitted, therefore, that the fact that the writ was issued or the pleadings closed before the outbreak of war, does not enable 1 (1854) 4 E. and B. 217. ? The Times Newspaper, December 11, 1914. an alien enemy plaintiff to continue his action during the war. The outbreak of war after verdict and before judgment, despite Venbryen v. Wilson (supra), must also, it is submitted, put a stop to further proceedings

(2) Defendants. English authority on the position of a defendant alien enemy is scarce, and the Attorney-General's recent argument before the full Court of Appeal turned largely on the position of felons, outlaws, and attainted persons as declared in a series of decisions which he cited. Bacon's Abridgement, 7th ed., vol. 1. at p.183, and Albrecht v. Sussmann?, give some authority for saying that an alien enemy could bring a bill of discovery to assist him in his defence, and therefore that he could not repel an action by pleading that he was an alien enemy. Bailhache J. in Robinson v. Continental Insurance Co. of Mannheim3 pointed out that to allow an alien enemy defendant to set up such a plea was 'to injure a British subject and to favour an alien enemy, and to defeat the object and reason of the suspensory rule. It is to turn disability into a relief.' He refused the defendant's summons to stay all proceedings, fortifying his judgment by the passage from Bacon's Abridgement referred to above and by certain American decisions, and his judgment has since received the approval of the full Court of Appeal.

C. Some Doubtful Points. (1) Interned Alien Enemies. It does not seem necessary to give any separate consideration to the case of (1) Prisoners of war in the narrowest sense, i.e. members of the armed forces (including reservists) of the enemy captured on the field of battle or at sea, nor to the case of (2) Prisoners of war in a somewhat wider sense, i.e. members of the armed forces of the enemy (including reservists) who were resident or temporarily in this country at the outbreak of war and were then interned. The question of their procedural status is not likely to give much difficulty, and some light is shed upon it by the cases we are about to cite. There is, however, another class of alien enemy prisoners which requires detailed consideration, i.e. (3) interned civilians.

1 Petersdorff's Abridgement (sub tit. Abatement and Alien Enemy) contains a number of cases on Pleadings. See also infra. 3 (1813) 2 V. and B. 323.

3 [1915] 1 K. B. at p. 159.

Class (2) can fairly be described as prisoners of war. Class (3) are being so described, and it seems probable that they are correctly so described. The Home Secretary stated in the House of Commons on November 26, 1914, that he was advised that they are prisoners of war. The Douglas (Isle of Man) coroner, in opening the inquests upon the German prisoners shot in the course of a riot there, also referred to them as prisoners of war?

That being so, what help can be obtained from the law reports as to the procedural status of the persons in class (3) during time of war? Let us take two typical cases. (i) A, an alien enemy merchant, registered himself in the first week of August, 1914, in accordance with the Aliens Restriction Act, and continued to carry on business until he was arrested and interned in October, not in respect of an offence but in accordance with the general policy of the Executive at that time. At the time of his arrest a customer, B, owed him £500. A's business is now being carried on by his managing clerk in frequent consultation by correspondence with A. Can A sue B to-day for £500 ?

(ii) X, an alien enemy hairdresser, similarly registered himself and continued to carry on his business until he was similarly arrested and interned in October. A few days before, some foolish youths display their patriotism by smashing up X's shop and doing damage to the extent of £50. Can X sue his aggressors to-day for £50 ?

Neither of these cases is at all fanciful. Similar circumstances are almost certain to occur. Now let us consider the authorities. There seem to be several ways of approaching the question.

(a) We may make a start by saying that A and X were residing here per licentiam et sub protectione regis when the causes of action accrued to them, and that therefore they get the benefit of the doctrine expressed in Wells v. Williams (supra)

1 The Times Newspaper, November 26, 1914.

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