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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.?, 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 he? or his correspondent in this country3 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  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.)
(The alien enemy claimant in the Prize Court stands in a different category: see The Möwe?, where a new rule of practice was made, and compare The Père Adams.)
(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;
(6) (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. 1 (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 Rosenfeld5 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) 1 Hay and Marriott, 141. 4 Lloyd's List, Feb. 22, 23, 24, 1915. 5 (1915) 1 K. B. 857 (C. A.). 6 (1806) 13 Ves. 71.
(6) As debtor, he may be made bankrupt, and may apply for and obtain his discharge (In re Levy).
(4) As appellant, an alien enemy plaintiff (unless coming within the privileged exceptions) cannot appeal, and, if notice of appeal has been lodged before the outbreak of war, the hearing of the appeal will be suspended until the termination of war. On the other hand, an alien enemy defendant has the same right of appeal as any other defendant (In re Merten's Patent)
No attempt has been made to consider the questions raised in, and it is to be hoped) finally settled by, the cases of Continental Tyre and Rubber Co. (Great Britain), Ltd. v. Daimler Co., Ltd., and The same v. Thomas Tilling, Ltd., nor to discuss the interpretation of Art. 23 (h) of Hague Convention No. IV, which can admit of no doubt in the mind of an English lawyer, although it was exhaustively examined by the Attorney-General and the full Court of Appeal, and necessarily so, as creating an international obligation.
1 The Times Newspaper, January 30, 1915. 2  1 K. B. 857 (C. A.).
3  W. N. 44. [See (1916] 2 A. C. 307 and remarks in Chapter VI of this book.]
PROCEDURAL CAPACITY OF ALIEN ENEMIES (continued)
Reprinted from Law Quarterly Review, XXXIV. 134 (April, 1918).
In April 1915', an attempt was made to state the procedural position of the alien enemy. Much has happened since then, and an estimate of the manner in which the courts have faced this question during the past three years seems to be due.
The alien enemy as plaintiff has been the subject of a number of decisions. In Porter v. Freudenberg, &c. the full Court of Appeal, after quoting Lord Lindley's statement in Janson v. Driefontein Consolidated Mines3 that 'the subject of a State at war with this country, but who is carrying on business here or in a foreign neutral country, is not treated as an alien enemy,' proceeded to elaborate the other side of the definition by stating (p. 869) that
'For the purpose of determining civil rights a British subject or the subject of a neutral state, who is voluntarily resident or who is carrying on business in hostile territory, is to be regarded and treated as an alien enemy, and is in the same position as a subject of hostile nationality resident in hostile territory.'
Most of the subsequent decisions are in the nature of glosses upon these two halves of the definition.
(a) Alien enemies in British territory. The Princess Thurn and Taxis case4 had already decided that an alien enemy resident in the United Kingdom, and duly registered under the Aliens Restriction Act and Order of 1914, could maintain an action. Does internment make any difference? In Schaffenius v. Goldberg5 an alien enemy resident and duly registered in the United Kingdom, but not interned, entered into a contract in March 1915 with the defendant for the manufacture of goods 1 L. Q. R. XXXI. 154.
2 (1915) 1 K. B. 857 (C. A.). 3  A. C. at p. 505.
4 (1915) 1 Ch. 58. 6 (1916) 1 K. B. 284 (C. A.).
and advanced money to him. In July 1915, the plaintiff was interned, and the defendant refused to have any further dealings with him on the ground that he was an alien enemy. It was contended for the defendant that internment operated as a revocation of the licence to remain in this country, which, as appears from the Princess Thurn and Taxis case and the old cases on which it rests, is essential to the right of the enemy to sue. Younger J., however, refused to hold that internment put the plaintiff ex lex and decided that the contract was not affected by the plaintiff's internment, and that he was entitled to maintain any action competent to him in respect thereof. This decision was upheld by the Court of Appeal.
In Nordman v. Rayner1, where the contract was entered into before the war, the plaintiff's internment only lasted a month, whereupon he was released, being found to be an Alsatian of French extraction and anti-German sympathies. The case is interesting upon the effect of the internment in rendering it difficult, if not impossible (as was alleged), to perform the contract, but adds nothing to Schaffenius v. Goldberg from the procedural point of view.
These are, however, both cases of ‘innocent’internment. As Younger J. said in Schaffenius's case”, “it is common knowledge amongst us that the internment of a civilian enemy does not necessarily connote any overt hostile attitude on his part.' Supposing, however, that he was imprisoned on account of some overt hostile act or some serious offence against the Defence of the Realm Regulations, or interned upon some definite suspicion of a 'hostile attitude,' might it not be said that he has forfeited the King's protection, which, as is stated in Wells v. Williams3, lasts only while ‘he has continued here... without molesting the Government or being molested by it'? 'Innocent' internment, as we have seen, does not amount to molestation by the Government, but it may fairly be argued that 'criminal' internment both constitutes molestation by, and results from molestation of, the Government. This point 1 (1916) 33 T. L. R. 87.
? (1916) 1 K. B. at p. 295. 3 (1697) 1 Ld. Raymond, 282; 1 Salk. 46; 1 Lutw. 34.