There are certain exceptions to the rule that a nonresident alien enemy can not prosecute an action during the continuance of the war. These exceptions are based on the general theory that where a right is secured to an alien enemy which from its nature ought to be recognized at any time, the courts should not be closed to him.1 Since a valid contract may be made during war, with an alien enemy for the repair of a vessel which is sent to bring home exchanged prisoners and the like, and since repairs of this sort ordinarily could not be obtained on credit if the party who furnished them could not recover during the continuation of the war, a nonresident alien enemy may maintain an action of this sort during the war.2 If a right is secured to an alien enemy by international agreement which by its terms is intended to be operative in war, as by one of the Hague conventions,3 the nonresident alien enemy may be heard in court for the purpose of enabling him to assert such right.

12 For such an order in a proceeding in error, see Birge-Forbes Co. v. Heye, - U. S. - , 40 Sup. Ct. Rep. 160, 6 U. S. Sup. Ct. Adv. Op. [1919-1920], 188.

1McNair v. Toler, 21 Minn. 175; Heiler v. Goodman's Motor Express, Van & Storage Co., 92 N. J. L. 415, 106 Atl. 233; Burnside v. Matthews, 54 N.

Y. 78; Barns v. Gleason Coal & Coke Co., - W. Va. - , 98 S. E. 158.

2 Casseres v. Bell, 8 T. R. 166.

3 Casseres v. Bell, 8 T. R. 166.

See to the same effect, Openheimer v. Levy, 2 Strange, 1082; Derrier v. Arnaud, 4 Mod. 405; Wells v. Williams, 1 Ld. Raym. 282.

1 Crawford v. William Penn, Peters C. C. 106; The Mowe [1915], Prob. 1.