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 Möwe1 was interned.

1 [1915] P. 1 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 case1. 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 [1915] 1 K. B. at p. 159.

2 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 enemy1, 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 proceedings3. 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 appellant1. In the case of Netherlands South African Ry. Co. v. Fischer5, the 1 Petersdorff's Abridgement (sub tit. Abatement, and see note on P. 482).

2 (1811) 3 Camp. at p. 152.

8 Bullen and Leake (6th ed.), pp. 522 and 579.

In re Merten's Patent [1915] 1 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.).

5 (1901) 18 T. L. R. 116.

jury found that at the time of the issue of the writ the plaintiffs were 'adhering to the king's enemies,' which was fatal to their action of libel, but the case is an unsatisfactory one, and cannot be said to contribute anything to the elucidation of the scope of, or practice on, a plea of alien enemy.

(5) Waiver of a plea of alien enemy. This course was followed by the defendant underwriter in the case of Janson v. Driefontein Consolidated Mines, Ltd.1, but it is very unlikely that a defendant would be allowed to do this again. (See the remarks of Lord Davey at p. 499.) In fact, in view of Trading Proclamation No. 2, § 5 (1) 'Not to pay any sum of money to or for the benefit of an enemy,' it seems impossible to have any doubt on the point.

D. Summary.

Perhaps it is not too rash to attempt a summary of the present position.

(1) As plaintiff, or person in the position of plaintiff, an alien enemy cannot during time of war institute proceedings in an English court, or carry on proceedings pending at the outbreak of war; unless

(a) he is in this country (whether domiciled or not), and, having registered under the Aliens Restriction Act, 1914, and the Orders in Council thereunto, continues to comply therewith; or

(b) he is suing in connexion with a commercial transaction, in respect of which either he2 or his correspondent in this country 3 holds a licence to trade from His Majesty's Government; or

(c) (a very unlikely case) he is a prisoner of war suing in respect of a contract for services rendered during the war; or (d) he has come to this country 'under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in the King's peace pro hac vice' (The Hoop, supra);

(e) if he is merely a nominal co-plaintiff with a British subject,

1 [1902] A. C. 484.

2 Usparicha v. Noble (1811) 13 East, 332.

3

Kensington v. Inglis (1807) 8 East, 273; Flindt v. Scott (1814) 5 Taunt.

who is the real plaintiff and the only one substantially interested in the action, the proceedings will not be stayed (Mercedes Daimler Motor Co., Ltd., and Daimler Motoren-Gesellschaft v. Maudslay Motor Co., Ltd.)1.

(The alien enemy claimant in the Prize Court stands in a different category: see The Möwe2, where a new rule of practice was made, and compare The Père Adam3.)

(2) As defendant, an alien enemy (whether in this country or not) can be sued during war in proceedings commenced before or after the outbreak of war, and is entitled to be represented by solicitor and counsel, and to have all the ordinary privileges of, and be subject to all the ordinary liabilities of, a defendant; except that

(a) (perhaps) he cannot counterclaim but may plead his claim pro tanto as a set-off. See Owners of SS. Sampan v. Owners of SS. Fiume, C. A., February 23, 19154;

(b) (perhaps) he cannot execute a judgment for costs during the war;

(c) (certainly) he cannot claim the benefit of the provisions of the Courts (Emergency Powers) Act, 1914, (see sect. I (7));

(d) R.S. C., Order XI,r.8 (service abroad) has been suspended as to Germany by Order of the Lord Chancellor dated November 26, 1914, but it may be inferred from the judgment of the full Court of Appeal in Porter v. Freudenberg and Kreglinger v. S. Samuel and Rosenfeld that, without adopting any continental theories of 'constructive service,' the Court will, whenever reasonably possible, make an order for substituted service.

(3) Bankruptcy. (a) As creditor, an alien enemy may prove for a debt, the dividend being either reserved during the war or handed over to the custodian under the Trading with the Enemy Amendment Act, 1914 (Ex parte Boussmaker). It seems probable that he cannot petition.

1 (1915) 31 T. L. R. 178. Compare Actien-Gesellschaft für Anilin, etc., and the Mersey Chemical Works, Ltd. v. Levinstein, Ltd. (supra).

2 [1915] P. 1.

3 (1778) I Hay and Marriott, 141.

4 Lloyd's List, Feb. 22, 23, 24, 1915.

5 [1915] I K. B. 857 (C. A.).

(1806) 13 Ves. 71.