The present policy of the courts seems to be in favor of continuing an action which has been brought by an alien enemy plaintiff who is domiciled in enemy country, rather than of dismissing such action and requiring such plaintiff to commence a new action at the end of the war.1 It has been suggested that such an action should be stayed or continued unless the custodian of alien enemy property wishes the case to proceed for his benefit.2 The duty of the court to continue the action rather than to dismiss it is especially clear where the effect of dismissing the action or the alien enemy application therein will be in effect to deny his right forever.3 If an alien enemy claims an interest in the distribution of a fund, his application for the fund should not be dismissed, and, on the other hand, the fund should not be paid over to him; but the amount due to him should be retained for distribution after the termination of the war.4 Such an order will be made if an interest in a policy of life insurance or a beneficial certificate is claimed by a nonresident alien enemy.5 In a proceeding in bankruptcy, a claim by an alien enemy creditor will be allowed and the dividend will be reserved for payment after the termination of the war, unless the legislative or executive makes some other provision.6 If a nonresident alien enemy claims the estate of the decedent as the heir or next of kin, the proper procedure is to continue the case until after the war, rather than to dismiss the application of the alien, on the one hand, and award the estate to adverse claimants or to order the estate paid over to the alien enemy, on the other hand.7 If an action or proceeding has been adjudicated by the trial court, an appeal therefrom will not be dismissed,8 especially if the effect of dismissing the appeal of a nonresident alien enemy would be to terminate his right of action.9 If a judgment has been rendered before the outbreak of the war in favor of one who becomes a nonresident alien enemy on the outbreak of the war, a proceeding in error to review such judgment peed not be continued,10 and the court, on affirming the judgment, may order that the amount of such judgment be paid to the clerk of the court, to be transferred to the custodian of alien property without prejudice to the rights of persons other than nonresident alien enemies, to show a right to the fund or to some portion thereof.11

7 Taylor v. Albion Lumber Co., 170 Cal. 347, 168 Pac. 348.

8 Rodriguez v. Speyer [1910], A. C. 59.

9 Posselt v. D'Espard, 87 N. J. Eq. 571, 100 Atl. 893.

10 Posselt v. D'Espard, 87 N. J. Eq. 571, 100 Atl. 893.

1 Speidel v. N. Barstow Co., 243 Fed. 621; The Oropa, 255 Fed. 132; Plet-tenberg-Holthaufl Co. v. Kalmon, 241 Fed. 605.

2 Nord Deutsche Ins. Co. v. John L.

Dudley, Jr., Co., 169 N. Y. Supp. 303 [affirmed, 169 Supp. 1106].

3 Ex parte Boussmaker, 13 Ves. 71; Taylor v. Albion Lumber Co., 176 Cal 347, L. R. A. 1918B, 185, 168 Pac. 348; Welditschka v. Supreme Tent, - Ia. - , 170 N. W. 300; In re Thiede's Estate, 102 Neb. 747, 169 N. W. 435.

4 Ex parte Boussmaker, 13 Ves. 71; In re Henrichs' Estate, - Cal. - , 179 Pac. 883; Weiditschka v. Supreme Tent, - Ia. - , 170 N. W. 300.

5 Weiditschka v. Supreme Tent, - la. - , 170 N. W. 300.

Whether the rule that an action in which a nonresident alien enemy seeks relief during war, will be continued until the termination of the war, is the proper solution of the problem which is thus presented, is doubtful. When this question was first decided by the courts, their decision was influenced largely by the theory that every subject of a belligerent power was at war with every subject of the adversary belligerent power; and the result which was reached under this theory looked solely to the respective interests of the two parties. At modern law the theory of personal hostility between the subjects of the belligerents has been abandoned and the interests of the state are primarily to be considered in determining the right of nonresident alien enemies. It may be doubted whether the rights of the state in the courts of which a nonresident alien enemy attempts to prosecute an action against one who is domiciled in such state require either a dismissal or continuance of such action. The rule which forbids an alien enemy to sue is not intended for the benefit of the debtor, to enable him to appropriate to his own use money or other property which belongs to an alien enemy; but it is intended solely to benefit the state by preventing commercial intercourse and by preventing the withdrawal of funds which may directly or indirectly aid the hostile power. In many cases the effect of a continuance for the period of a protracted war will be the loss of the debt, and if the state wishes to confiscate such debt, the loss will eventually fall upon the state and not upon the alien enemy. The appointment of a custodian of alien enemy property would seem to make it possible that in these cases the action might be prosecuted to final judgment, and the judgment itself might be collected; the funds then being held subject to the order of such custodian.12 Unless such provision can be made so that the funds can not be withdrawn by the nonresident alien enemy, the present solution is probably the best available.

6 Ex parte Boussmaker, 13 Ves. 71. 7 In re Henrichs' Estate, - Cal. - ,

179 Pac. 888.

8 Taylor v. Albion Lumber Co., 176 Cal. 347, L. R. A. 1918B, 186, 168 Pac. 348; In re Thiede's Estate, 102 Neb. 747, 169 N. W. 435.

9 Taylor v. Albion Lumber Co., 176

Cal. 347, L. R. A. 1918B, 185, 168 Pac. 348.

lO Birge-Forbes Co. v. Heye, 248 Fed. 636 [certiorari granted, 246 U. S. 676, 62 L. ed. 9331.

11 Birge-Forbes Co. v. Heye, 248 Fed. 636 [certiorari granted, 246 U. S. 676, 62 L. ed. 933].