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(b) As debtor, he may be made bankrupt, and may apply for and obtain his discharge (In re Levy)1.

(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)2.

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.3, 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 [1915] 1 K. B. 857 (C. A.). 3 [1915] W. N. 44. [See [1916] 2 A. C. 307 and remarks in Chapter VI of this book.]

CHAPTER III

PROCEDURAL CAPACITY OF ALIEN ENEMIES (continued)

Reprinted from Law Quarterly Review, XXXIV. 134 (April, 1918).

IN April 19151, 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.2 the full Court of Appeal, after quoting Lord Lindley's statement in Janson v. Driefontein Consolidated Mines 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 case 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. Goldberg 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 2 [1915] I K. B. 857 (C. A.). [1915] I Ch. 58.

1 L. Q. R. XXXI. 154.

3 [1902] A. C. at p. 505.
[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 case2, '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. Williams, 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 2 [1916] 1 K. B. at p. 295.

1 (1916) 33 T. L. R. 87.

3 (1697) I Ld. Raymond, 282; 1 Salk. 46; 1 Lutw. 34.

appears to be still open, and it will be noted that both in Schaffenius's and in Nordman's cases the innocent or colourless character of the internment as a mere act of general policy is insisted on.

(b) Repatriation. If internment has no effect upon the procedural position, what is the effect of repatriation ?

In Tingley v. Müller1, the defendant Müller, an alien enemy resident in London, not interned, but not allowed to move beyond a certain radius without a permit, gave to his solicitor on May 20 a power of attorney to sell certain leasehold premises. On May 26, having obtained a police permit to travel to Tilbury with the object of embarking for Germany by way of Flushing, he started upon that journey. On June 2 the leasehold premises were sold by public auction to the plaintiff, and an agreement was signed. From letters from the defendant to his solicitors it was inferred that on June 11 he had reached Hamburg. The case was argued before a full Court of Appeal, who, reversing Eve J. on this point, held that the proper inference was that on June 2 (the material date) the defendant had reached and was resident in Germany (although many Germans in course of repatriation are believed to have found more pressing business in Holland), and was therefore an alien enemy. The Court further held that the power of attorney, being expressed to be irrevocable for twelve months, and having been given at a time when the donor was not an alien enemy, was not avoided by his subsequent change of status; and that the agreement of sale did not involve any intercourse with the defendant, and could therefore be legally carried out by the attorney, so that the plaintiff's qualms of conscience were ill-founded, and his claim for a declaration that the agreement was void ab initio or dissolved by the defendant's change of status was refused. Scrutton L.J., however, delivered a strong dissenting judgment, holding that the contract of June 2 was one purported to be made with an alien enemy, and the interposition of an English agent did not cure the defect. He expressed the opinion that Müller became an alien enemy the [1917] 2 Ch. 144 (C. A.).

1

moment he left England, as at that time he lost his acquired English commercial domicile, and thereupon his national character, determined by allegiance, reverted.

(c) Alien enemy in allied or neutral territory. In Janson's case1 Lord Lindley stated obiter 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,' and this dictum was followed in the case of In re Mary, Duchess of Sutherland, Bechoff, David & Co. v. Bubna2. The plaintiff firm consisted of three partners carrying on business in Paris, and, at the time of the issue of the writ, all resident in Paris. One of them was a German subject who, after the issue of the writ and two days before war between this country and Germany broke out, left Paris for Spain, where he had since resided. Warrington J. refused an application to stay the proceedings based on the ground that one of the plaintiffs was an alien enemy, and the Court of Appeal, although the case does not appear to have been argued to a conclusion, were evidently in sympathy with the judgment of the Court of first instance.

Will the position of the enemy plaintiff who is resident or carrying on business in a neutral country be adversely affected by being associated with, or interested in, a firm carrying on business in an enemy country?

The Scottish case of Gebruder van Uden v. Burrell3 raises this somewhat curious point, and the decision must be of considerable persuasive authority. The pursuers were J. and C. van t' Hoff, residing and carrying on business in Rotterdam, and presumably Dutch subjects. The defender was a Glasgow shipowner, and the dispute arose out of a chartering transaction of 1907. J. and C. van t' Hoff were also individually interested in two firms carrying on business severally at Duisberg, registered under German law, and at Antwerp, registered under Belgian law. These two firms were independent of the Rotterdam firm, and were in no way concerned with the subject2 (1915) 31 T. L. R. 394 (C. A.).

1 Supra.

3 [1916] S. C. 391.

MCN.

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