« EdellinenJatka »
and are allowed to sue, unless anything has happened subsequently to suspend the right of action. Now it will be noticed in Lord Raymond's report of Wells v. Williams that Serjeant Wright takes the point that the plaintiff in that case ' came here sine salvo conductu.' He admitted that an alien enemy who comes here with 'safe-conduct may maintain an action. But unless there is a safe-conduct, “though it be per licentiam et protectionem, he cannot maintain an action.' 'For by the same reason a captive or prisoner of war may maintain an action.' His contention upon the absence of a safe-conduct was overruled, but we may note his argument, which may be expressed thus: ‘Unless you make a safe-conduct an essential, there is nothing to prevent even a prisoner of war from bringing an action.'
Too much stress cannot be laid upon the precise words used, but there is an expression in the judgment in the same case which should be noted: 'If he has continued here by the king's leave and protection... without molesting it or being molested by it, he may be allowed to sue, for that is consequent on his being in protection. Certainly a hostile act by A or X would suspend his right of action. Can the arrest and internment be called a molestation by the Government? It is difficult to see what acts of molestation Chief Justice Treby had in his mind. Possibly he was thinking of reprisals in the event of English subjects being badly treated in the enemy country.
(6) Again, it may be argued on the ground of necessity that interned civilians should be under no procedural disability. They were allowed to remain and to carry on their business, and the law impliedly gave them those means of protecting their persons and property which are open to all persons living within the protection of the King. As Coke says in the passage before quoted: ‘For an Alien'(i.e. that is in league) 'may trade and traffick, buy and sell, and therefore of Necessity he must be of Ability to have personal Actions.'
(c) On the other hand, we may ignore their status at the time of the arrest and internment, and treat them as ordinary prisoners of war. What then would be their position?
In 1779, in the case of Three Spanish Sailors?, a motion was made for a writ of habeas corpus to be directed to the commander of a sloop of war to bring up three Spanish seamen, alleged to be wrongfully detained as prisoners of war. The Court (Gould, Blackstone, and Nares, JJ.) refused the writ, saying 'these men upon their own shewing are alien enemies and prisoners of war, and therefore not entitled to any of the privileges of Englishmen; much less to be set at liberty on a habeas corpus. The story as related by them is not much to the credit of Captain L.; but we can give them no redress.' Upon this case it was argued in Maria v. Hall (infra) that 'the writ of habeas corpus is only a summary mode of obtaining the same remedy which might otherwise be had by an action of trespass; and if a prisoner of war cannot maintain trespass, there is no reason why he should maintain any other action.'
Maria v. Hall was a case brought in 1800 against the master of a ship by a Spanish sailor, upon a contract for wages for working the ship home to this country. It appears that he was captured abroad and then put on board the ship to be conveyed to England. The defendant pleaded that the plaintiff was an alien enemy, born in foreign parts, &c. The case is reported in 2 Bos. and P. 236 merely on a motion for security for costs, but in R. v. Depardo? a report of the argument in Maria v. Hall is appended in the form of a note. Heath J. says that the Court of Common Pleas was divided in opinion in Maria v. Hall.
In 1797, in the case of Sparenburgh v. Bannatyne4, a prisoner of war at St Helena had entered into a contract with the defendant, the captain of the ship Caledonia, with the consent of the commanding officer at St Helena, to serve as a seaman and work the ship home to London. On arrival in London he was taken into custody as a prisoner of war, and now sued to recover his wages. He was met by the plea of alien enemy. The Court (Eyre C.J., Heath and Rooke JJ.) gave judgment in his favour, the first mainly on the ground that, being originally 1 2 W. Black. 1324.
3 (1807) 1 Taunt. 26. 3 1 Taunt. at p. 28.
4 i Bos. and P. 163.
a neutral subject, his hostile character was temporary and ceased when he was captured, but the last two have a good deal to say about the status of a prisoner of war. Heath J. says (p. 171): 'Officers on parole must submit like other men of their own rank; but according to such doctrine' (urged by the defendant) 'they must starve, for they could gain no credit if deprived of the power of suing for their debts.' Later he says: “If a prisoner of war is in confinement, he is protected as to his person; if he is on parole, he requires further protection than what relates merely to his person. He then cites a case of one Mississippi Law 'to shew that a prisoner at war may sue and be sued,' and later says: “If a prisoner of war can be sued, there is no reason why he should not sue.' Rooke J. prefers to take his stand upon the reasons given by Eyre C.J., but adds: 'An enemy under the King's protection may sue and be sued: that cannot be doubted. A prisoner of war is, for certain purposes, under the King's protection, and there are many cases where he can maintain an action. He then puts the case of an officer on parole who wishes to raise money by pledging a jewel.
On the whole, therefore, we incline to the conclusion that A and X in the two cases put can sue during their internment, and if their evidence is necessary they must apply to the military authorities for permission to attend in court. Approaching the matter from the first point of view, rights of action became vested in them at a time when they had the capacity to sue; provided they have committed no offence, no'molestation' of the Government, they are still within the King's protection, and should be allowed to sue either on that ground or for the reason given in the passage cited from Coke. Approaching it from the standpoint of prisoners of war, there is considerable authority for stating that even they are within the King's protection.
Incidentally it may be mentioned that the enemy shipowner who was allowed to appear as a claimant in the Prize Court in the case of The Möwel was interned.
*  P. I at p. 4.
(2) Counterclaim. Can an alien enemy make a counterclaim? In the recent judgment of the full Court of Appeal, Lord Reading C.J. says that he can appear and be heard in his defence and take all such steps as may be deemed necessary for the proper presentment of his defence.' Is a counterclaiming defendant to be regarded as a plaintiff or as a defendant taking all steps 'necessary for the proper presentment of his defence'? 'A counterclaim is to be treated,' said Bowen L.J. in Amon v. Bobbett (1899) 22 Q. B. D. at p. 548, for all purposes for which justice requires it to be so treated, as an independent action.' Justice seems to require that an alien enemy defendant should not be allowed to make a counterclaim, at any rate qua counterclaim, and so Bailhache J. thinks in Robinson's case?. But is there any reason why in those cases in which the subjectmatter of the counterclaim could have supported a plea of setoff, the defendant should not be allowed to plead it as a set-off, without prejudice to his right to bring an action for any balance on the conclusion of peace? It is submitted that this course should be open to him. See Owners of SS. Sampan v. Owners of SS. Fiume, C. A., February 23, 19152.
(3) Costs. In cases where an alien enemy is allowed to sue, he is of course in the same position as to recovering costs as any other plaintiff. But how stands the case of a successful alien enemy defendant, who is not of the class of alien enemy that would be allowed to be a plaintiff, e.g. one 'commorant' in enemy territory ? Bailhache J. suggested in Robinson's case (supra) that this difficulty could be met by suspending the defendant's right to issue execution. This would, however, in nine cases out of ten be penalising the defendant's solicitor, and it would seem juster and more convenient to give the solicitor a charge on the costs recovered and allow them to be paid to him.
(4) Practice. Where the plaintiff is, or has become, an alien enemy and does not fall within any of the classes of alien enemies privileged to sue, what is the modern practice when
1  1 K. B. at p. 159. ? Lloyd's List, Feb. 22, 23, 24, 1915.
the plea is set up? Formerly, the plea of alien enemy was usually pleaded in abatement, whether the plaintiff was at the time of the issue of the writ an alien enemy?, or had since become so (Harman v. Kingston)2. Pleas in abatement were abolished by R. S. C., Order XXI, r. 20, and in general the modern equivalent is an application to stay proceedings. The modern practice concerning the plea of alien enemy does not appear to be settled as yet. In Princess Thurn and Taxis v. Moffitt (supra), where the writ was issued in time of peace, the defendant's application was for a stay of all proceedings, but in Von Hellfeld v. Rechnitzer (supra), where the plaintiff had become an alien enemy since the pleadings were closed, Sargant J., on the action coming on for trial, dismissed it, with costs, without prejudice to his right to bring an action after the termination of the war, the plaintiff having previously made an unsuccessful application to Neville J. to suspend the proceedings until the war was over. (In that case the plaintiff had left the country with a permit since the outbreak of war and had gone to Amsterdam.) It would seem that in the case of an alien plaintiff who has become an enemy since the writ was issued, one of two things may happen: (1) The proceedings may be stayed on the defendant's application, and the plaintiff can move to have the stay removed when peace is concluded; or (2) if the action comes on for trial, it may be dismissed, reserving to the plaintiff the right to begin a fresh action after the termination of the war. Whether the case of the plaintiff who is an unprivileged alien enemy when he issues his writ is at all different, remains to be seen. Alternative (1) is more in accordance with the rule of suspension which the full Court of Appeal has laid down in the case of a plaintiff appellant4. In the case of Netherlands South African Ry. Co. v. Fischers, the
1 Petersdorff's Abridgement (sub tit. Abatement, and see note on p. 482).
2 (1811) 3 Camp. at p. 152.
4 In re Merten's Patent (1915] I K. B. 857 (C. A.); Actien-Gesellschaft für Anilin etc., and the Mersey Chemical Works, Ltd. v. Levinstein, Ltd. (1915) 31 T. L. R. 225 (C. A.).
6 (1901) 18 T. L. R. 116.