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

(iv) unless 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'; or

(v) unless he is merely a nominal co-plaintiff with a British subject or other person who is not disqualified as a plaintiff and who is the real plaintiff, and the only one substantially interested.

But an interned alien enemy is not entitled to a writ of habeas corpus to try the cause of his internment.

(B) 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, and be subject to all the ordinary liabilities, of a defendant;

except that

(i) he cannot counterclaim, but may plead his claim pro tanto as a set off® ;

(ii) he cannot take third-party proceedings> ; (iii) he cannot execute a judgment for costs during the war;

(iv) he cannot claim the benefit of the Courts (Emergency Powers) Act, 1914 (see s. 1 (7)).

(v) In cases to which the Legal Proceedings against Enemies Act, 1915, applies, the rules of substituted or other service of a writ of summons and the rules of evidence may at the discretion of the Court be relaxed in favour of a British subject as plaintiff who would otherwise be inconvenienced or prejudiced by the absence of the alien enemy from the jurisdiction.

(C) 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 the war. On the other hand, an alien enemy defendant has the same right of appeal as any other defendant, whether he is sued under the Legal Proceedings against Enemies Act or otherwise.

1 Liebmann's case (1916) 1 K. B. 268. 2 Re Stahlwerk, etc. [1917] 2 Ch. 272.

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

(D) Bankruptcy. (i) As creditor, an alien enemy cannot petition or prove for a debt, unless he comes within the privileged exceptions mentioned at (A) above?.

(ii) As debtor, he may be made bankrupt and may apply for and obtain his discharge.

ADDENDUM The past eighteen months have produced very little requiring to be added to the foregoing remarks.

Porter v. Freudenberg?, and the two other cases heard together with it, had stopped short at a full Court of Appeal, and the House of Lords had had no occasion for an investigation of the procedural capacity of enemies. In the Daimler Co.'s case there were other fish to fry. At last in June 1918 that House got their opportunity and took it 3. The wealth of authorities examined, the length of the report (eighty-five pages in the Incorporated Council's report), and the amount of research involved (compared with which the point actually decided was small) would in a by-gone age have earned for the case the title of “The Case of the Enemy Partner' instead of the prosaic Rodriguez v. Speyer Brothers. Before the war the plaintiffs were a firm carrying on business as bankers in London and consisting of six partners, of whom four were British subjects, a fifth a subject of the United States of America and the sixth a German subject resident in Germany. (It must be assumed that the last was the only one resident in enemy territory.) Upon the outbreak of war the sixth became an 'enemy resident^,' and in consequence the partnership was ipso facto dissolved. It then became necessary to get in the assets, and in the course of doing so a writ was issued against the defendant in the name of the plaintiff firm 'which had the same effect as if the names of the individual partners had been set out.' In reply to an application by the defendant to set aside upon a plea of alien enemy a judgment which had been obtained in default of appearance, the plaintiffs contended inter alia that the disabling effect of the plea only operated where the enemy was a substantial plaintiff, suing in his own right, and did not apply, e.g. to a plaintiff who was merely joined for the sake of conformity or who was suing en autre droit. The House by a majority (Lord Finlay L.C., Viscount Haldane and Lord Parmoor; Lord Atkinson and Lord Sumner dissenting) accepted this contention and refused to give effect to the plea of alien enemy when the result 'would be to inflict hardship not on the enemy but on British and neutral partners.' This raised the wider question of the true nature of the plea. Is it a rule of public policy capable of modification when its application would militate against the public interest? The majority in the House of Lords answered this question in the affirmative, but the two dissentients preferred to regard the character of alien enemy as implying an inherent personal disability, firmly rooted in precedent and to be applied without consideration of its effects. Their lordships' examination of the authorities, medieval and modern, presents a most instructive record of the development of the plea.

1 In re Wilson; Ex parte Marum (1915) 84 L. J. (K. B.) 1893. In re Hilckes (supra) where the Court of Appeal found it unnecessary to say anything about Ex parte Boussmaker (1806) 13 Ves. 71. 2 (1915] 1 K. B. 857 (C. A.).

3 [1919] A. C. 59. 4 See p. 60 of this book.

We saw in the case of In re Mary, Duchess of Sutherland on p. 49 above that there was a strong inclination to treat an enemy subject resident in a neutral country as exempt from the disabilities of the alien enemy litigant. This view now receives some confirmation from the judgment of Eve, J. in the cases of In re Grimthorpe's Settlement: Lord Islington v. Countess Czernin, and Beckett v. Countess Czernin?, where the learned judge directed certain income to be paid to the Countess, an enemy subject, then resident in Rome, so long as she resided in allied, neutral, or British, territory. Her husband was apparently still resident in Austria, and in October 1914 upon their joint petition they had obtained a decree of separation a mensa et thoro.

1 [1918] W. N. 16.

Princess Thurn and Taxis v. Moffitti and Schaffenius v. Goldberg1 were recently followed in the Divorce Court, where Horridge J. allowed a husband who was an enemy subject, domiciled in England, registered and interned, to petition for dissolution of marriage.

1 Supra. 2 Kraus v. Kraus & Orbach (1919) 35 T. L. R. 637.

CHAPTER IV

EFFECT OF WAR ON CONTRACTS

GENERAL PRINCIPLES

In this chapter and the next we propose to consider some of the general principles governing the effect of war upon contracts and purported contracts either between parties separated by the line of warl or between parties who are both on this side of the line of war.

We shall find it convenient to adopt the following classification, always bearing in mind that though for the lack of a better and for the sake of brevity we use the word ‘resident,' it includes, and indeed will more often denote, a person carrying on business, and often implies no more than voluntary and temporary presence in a particular country: A. Contracts between British and Enemy Residents: (1) in existence at the date of the outbreak of war,

(a) when a right of action has already then accrueda;

(6) when no right of action has then accrued; (2) attempted to be made during war. 1 The expression ‘line of war' appears to have been imported from the United States of America. Janson's case and the Duchess of Sutherland's case, quoted in Chapter III at pp. 49 and 57, afford some authority for saying that the imaginary line is drawn round the several enemy territories and not round the British Empire.

2 The use of the expressions 'executed contract' and 'executory contract' has been avoided in attempting to analyse the effect of the outbreak of war upon contracts, because, with the greatest respect for the many eminent judges and text-book writers who use them in this connexion, they seem to us not merely to be unhappy for the reason pointed out by Mr Edward Jenks in the Digest of English Civil Law, Book II, Part I. p. 93, but to have led to some confusion of thought during the past five years. 'Executed' means 'performed,' but in this expression it is used to mean “performed by one party only'; a contract which is 'executed' or 'performed by both parties' (the natural meaning of the term) has become a matter of history and has no concern for the lawyer. 'Executory' means still to be performed, but in this expression it is used to mean 'still to be performed by both parties.' In neither case is the term adequate to convey the meaning assigned to it by those who use it. On the other

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