matter of the action. J. and C. van 't Hoff were individually interested in each of the firms as partners, but in each case there were other partners. In these circumstances it was held by the First Division of the Court of Session that the pursuers were alien in the sense of the Trading with the Enemy Act, 1914, and relative Proclamations, and their action was stayed until after the termination of the war. A defendant enemy subject resident in Vienna, at the time of action brought and when last heard of, is unable to take third-party proceedings, for in so doing he is an actor, and comes under the procedural disability of the alien enemy plaintiff1. What constitutes 'voluntary residence'? Clearly internment in Ruhleben, or as a prisoner of war in an enemy country, does not. But in the case of Scotland v. South African Territories, Ltd.2 Darling J. interpreted as 'voluntary residence' a certain measure of detention in enemy territory not amounting to complete captivity. The plaintiff was the defendant company's manager in German South-West Africa upon the outbreak of war, and although subject to a measure of internment, and presumably unable to leave the country, he was able to protect the defendant company's interests and preserve their business. Darling J. held that the plaintiff was an alien enemy during his residence in German South-West Africa and could not recover his salary in respect of that period. (d) Alien enemies by statute. The Trading with the Enemy (Extension of Powers) Act, 1915, creates a species of enemy sub modo by authorizing His Majesty to publish Statutory Lists of persons or bodies of persons in allied or neutral countries, who are by reason of enemy nationality or association to be deemed to be 'enemies' for the purpose of the Trading with the Enemy Acts. In pursuance of the power so conferred upon the Crown have been issued the "Trading with the Enemy (Statutory List) Proclamations,' containing the 'Statutory 1 Halsey & another v. Löwenfeld (Leigh & Curzon Third Parties) [1916] 2 K. B. 707 (C. A.). 2 (1917) 33 T. L. R. 255. List' of such persons and bodies of persons which is subject to frequent amendments and additions. The list is not confined to persons in neutral countries, and contains a number of names of persons and bodies of persons in allied countries. What is the effect of the 'Statutory List,' and the statute and proclamations on which it rests, upon the procedural status of persons and bodies of persons appearing on it? Trading contracts with them by persons resident, carrying on business, or being in the United Kingdom, are plainly illegal and unenforceable, as are any of the transactions forbidden by the Trading with the Enemy Proclamation No. 2 of September 9, 1914, and the Trading with the Enemy Acts to be entered into with enemies proper. But it would seem that persons on the 'Statutory List' are not thereby converted into alien enemies for all procedural purposes and so debarred from suing in an English court upon a contract, say, for professional attendance, or to recover a legacy, or upon a tort unconnected with the forbidden transactions. It is true that the prerogative of the Crown in the definition and treatment of enemies is wide, but no attempt is made to brand persons on the 'Statutory List' as alien enemies, and the 'Statutory List' rests, not upon prerogative, but upon statute. It is submitted, therefore, that persons and bodies of persons on the 'Statutory List' are not subject to the procedural disabilities of alien enemies as such. (e) Corporations. The Daimler Co.'s case, which has already been discussed in the Law Quarterly Review1, is even more important in the new light that it throws upon the real nature of this class of juristic person than in the dicta it contains upon enemy character. We are now bound to consider where 'the brain and the heart' of the corporation lie, who are the real controllers of the corporate activity. The dicta in the Daimler Co.'s case (and there are probably few reported cases in which obiter dicta will so nearly amount to binding law as the judgment of Lords Parker and Sumner in this case) laid down certain broad principles, the application of which is now being worked out. 1 L. Q. R. XXXI. 170, XXXII. 340, XXXIII. 76. In re Hilckes, ex parte Muhesa Rubber Plantations, Ltd.1, is an illustration. The company sought to prove in the bankruptcy of Hilckes, an interned German subject, and formerly the commercial agent of the company in German East Africa. The secretary and directors and a majority of the shareholders, both in number of persons and of shares, were resident in England, and it could not be contended that 'the brain and the heart' of the company were situate elsewhere than in England, though a small minority of the shares were held in enemy countries. But the whole of the company's property was in a German colony, and its business was carried on there. Hence it was argued, and held by Horridge J., that the company 'traded in and had in fact a commercial domicil in a German colony,' so that it came within proposition 6 of Lords Parker and Sumner in the Daimler Co.'s case: 'A company registered in the United Kingdom but carrying on business in an enemy country is to be regarded as an enemy.' The Court of Appeal, however, reversed this decision and admitted the company's proof, holding that the ownership of property in an enemy country and the management and cultivation of that property up to the outbreak of war through a commercial agent did not constitute the company an alien enemy. There was no evidence as to what had happened on the estate since the outbreak of war, but clearly the situation is one in which care would be necessary to prevent a breach of the law against trading with the enemy a breach which might also bring the owner of the property within the disqualifications attaching to proposition number 6 above mentioned. In this connexion reference should be made to The Lützow2 as to the effect of the existence of a branch of a neutral company in an enemy country in affecting the character of the goods of the neutral company shipped before the outbreak of war. (f) Although internment, or at any rate 'innocent internment,' does not destroy the alien enemy's ordinary procedural capacity, there is, however, one remedy previously referred to3 2 [1918] A. C. 435. 1 [1917] I K. B. 48 (C. A.). 3 L. Q. R. XXXI. 164; p. 39 of this book. which is denied to an alien enemy when interned, namely, the writ of habeas corpus. In Weber's case1, an interned alien enemy applied for a writ of habeas corpus, and the argument turned on the question of nationality. The Divisional Court, the Court of Appeal, and the House of Lords held that Weber had not ceased to be of German nationality, and the writ was refused. The point that he was a prisoner of war, and for that reason not entitled to a writ of habeas corpus, was not taken. Meanwhile, in the course of Weber's litigation, Liebmann's case was decided by a Divisional Court consisting of Bailhache and Low JJ.2 Liebmann was served with a document entitled 'notice of intended internment of an alien enemy,' informing him 'that it is intended to intern you as a prisoner of war.' He applied without success to the Home Office Advisory Committee to exempt him from internment, was interned, and now applied for a writ of habeas corpus on the ground (not material for present purposes) that by reason of his discharge from German nationality he was not an alien enemy, though admittedly not a British subject. The Crown took the preliminary point that Liebmann was a prisoner of war, and that therefore the Court had no jurisdiction to grant a writ of habeas corpus to him, and upon the authority of the Three Spanish Sailors, previously discussed3, and other two cases-all three being cases where the prisoners of war were men who had been taken in arms fighting against this country-the objection was upheld, having regard to the methods of warfare now in vogue. The reasoning by which this result was reached is obscure. It is not denied that an alien enemy at large is entitled to a writ of habeas corpus, but once interned, it is argued, he became a prisoner of war and disentitled to the writ. Internment, however, was the very act for which redress was claimed, and the legality of which was challenged. The Crown, therefore, by doing the act which came into question ipso facto put that act out of question. [1916] 1 K. B. 280, n.; [1916] 1 A. C. 421. See pp. 14-16 of this book for further remarks upon Weber's and Liebmann's cases. 2 [1916] 1 K. B. 268. 3 L. Q. R. XXXI. 164; p. 39 of this book. There may be a way out, but it must be confessed that to us the reasoning underlying the judgment on this point looks uncommonly like a petitio principii. The Aliens' Restriction Act, 1914, and Orders thereunder, contained no express power to intern and, in the event of the failure of the preliminary objection, the Crown was thrown back upon common law prerogative1. On the whole, the development of the law regulating alien enemies as litigants during the past three years reflects credit upon the vigour and flexibility of the English common law and its ability to 'rise to the occasion' and adapt old principles to meet new needs. The help of the legislature was invoked in the Legal Proceedings against Enemies Act, 1915, to obviate, in cases where a British subject desires to obtain from the Court a declaration as to his rights and liabilities upon a pre-war contract (of which there is written evidence) with an enemy, certain difficulties in the way of serving the writ of summons and of obtaining the best evidence of a material document. Summary. We are now in a position to repeat the summary appearing in Law Quarterly Review, xxxI. pp. 167–9, in April 1915, and make the necessary amendments and additions, citing only the new references: (A) As plaintiff, or person in the position of plaintiff, an alien enemy cannot during the war institute proceedings in an English court or carry on proceedings pending at the outbreak of war, (i) unless he is in the United Kingdom, whether domiciled or not, and has duly complied with the Aliens' Restriction Act, 1914, and the Orders thereunder, even though he may be in internment, at any rate if the internment is merely in pursuance of general policy2; or (ii) (probably) unless he is resident in a neutral or allied country3; or 1 See also Forman's case (1917) 34 T. L. R. 4. 2 Schaffenius v. Goldberg [1916] 1 K. B. 284 (C. A.). 3 In re Mary, Duchess of Sutherland (1915) 31 T. L. R. 394 (C. A.). |