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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.

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

In Tingley v. Müller?, 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

1 [1917] 2 Ch. 144 (C. A.).

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 casel 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. Bubna?. 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. Burrell 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 ť' 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 subject1 Supra.

2 (1915) 31 T. L. R. 394 (C. A.). 3 [1916] S. C. 391.

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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 plaintiff?.

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.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 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.

1 Halsey & another v. Löwenfeld (Leigh & Curzon Third Parties) (1916] 2 K. B. 707 (C. A.).

2 (1917) 33 T. L. R. 255.

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 Review?, 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.?, 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 Lützowa 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 1 [1917] 1 K. B. 48 (C. A.).

2 (1918] A. C. 435. 3 L. Q. R. XXXI. 164; p. 39 of this book.

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