This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The reasons which have led the court to deny the right of a nonresident alien enemy to maintain an action as plaintiff, have no application to cases for which relief is sought by a resident subject against a nonresident alien enemy. It is, of course, impossible to obtain personal services upon a nonresident alien enemy except in the rare cases in which he is brought into the country as a prisoner of war or comes on some special mission. It is possible that in these cases the circumstances under which he enters the country might prevent legal process from being served upon him. In many cases, however, property which belongs to the alien enemy is situated in the country of a belligerent power in whose courts it is sought to enforce a mortgage or lien upon such property or to seize it by attachment and the like. It is held by practically all the courts that such relief will not be denied to the resident plaintiff merely because the defendant is a nonresident alien enemy.1 Even if the alien enemy was domiciled in the country before the outbreak of the war, and returned to his own country in anticipation of hostilities, an action may be brought against him if jurisdiction can be obtained as by seizure of his property and the like.2
2 Crawford v. William Penn, Peters C. C. 106.
3 The Mowe , Prob. 1.
This question was raised but not decided in The Chile [19141, Prob. 212.
1 England. Porter v. Freudenberg fl915], 1 K. B. 857.
United States. McVeigh v. United States, 78 U. S. (11 Wall.) 259, 20 L. ed. 80; Ludlow v. Ramsey, 78 U. S. (11 Wall.) 581, 20 L. ed. 216; Washington University v. Finch, 85 U. S. (18 Wall.) 106, 21 L. ed. 818; Watts v. Unione Austriaca Di Navigazione, etc., 248 U. S. 9, 63 L. ed. - [reversing, 229 Fed. 136]; The Kaiser Wilhelm II, 246
Fed. 786, L. R. A. 1918C, 795 [reversing decree, 230 Fed. 717].
Florida. Russ v. Mitchell, 11 Fla. 80.
Illinois. Harper v. Ely, 56 111. 179; Seymour v. Bailey, 66 111. 288.
Kentucky. Buford v. Speed, 74 Ky. (11 Bush.) 338.
Maryland. Dorsey v. Kyle, 30 Md. 512, 06 Am. Dec. 617.
Massachusetts. Riddell v. Fuhrman, - Mass. - , 123 N. E 237.
Minnesota. McNair v. Toler, 21 Minn. 175.
Missouri. De Jarnette v. De Giver-ville, 56 Mo. 440.
"The authorities are clear and unanimous, so far as we are aware, to the effect that the utmost extent of the inhibition against the appearance of alien enemies in courts is that they can not be parties plaintiff. They are thus prohibited on the grounds shortly stated that our courts will give no assistance to proceedings which, if successful, would lead to the enrichment or profit of an alien enemy and hence be an aid and comfort to his country in the prosecution of its war; and also that one confessing himself hostile to our country and in a state of war with it can not be heard if he sues in our courts to invoke in aid of his rights the benefit and protection of the laws of our nation, which in another field he is seeking to overthrow. As was said in Daimler Co. v. Continental Tyre & Rubber Co. , 2 A. C. 307, 344, this in common with other rules against trading with the enemy 'is a belligerent's weapon of self-protection'. It is at bottom a principle of public policy. Even that principle has been somewhat relaxed recently in England, where for the benefit of British subjects it seemed necessary to join with them as plaintiffs an alien enemy. Rodaiguez v. Speyer Brothers [19191, A. C. 59. This principle and the grounds upon which it rests fail utterly of application when the enemy alien is a defendant and not an active petitioner in our courts. Therefore It was said In Watts, Watts A Co., Ltd., v. Unione Austriaca Di Navigazione, 248 U. S. 21, 30 Sup. Ct. 1. 2 (63 L. ed. - ): 'A suit may be brought in our courts against an alien enemy.'
"That statement Is rested on the authority of McVeigh v. United States ( II Wall.), 259, 267. 20 L. ed. 80. and of Dorsey v. Kyle,. 30 Md. 512, 96 Am.
Dec. 617, in both of which decisions the question was discussed and definitively settled. The matter was reviewed at length in a comprehensive and exhaustive judgment by Lord Chief Justice Reading, speaking for the court of appeal in Porter v. Freudenberg , 1 K. B. 857. The history of the common law on the subject there is treated fully, as well as in Rodaiguez v. Speyer Brothers , A. C. 59. It would be superfluous to go over the older decisions in view of the complete analysis of them in these recent judgments. There is not a shred of authority to support the contention that in general an alien enemy can not be a party defendant or respondent in our courts in time of war. This conclusion is in harmony with Hutchinson v. Brock, 11 Mass 119, where an enemy alien was demandant in a writ of right and was therefore in the position of a party plaintiff." Riddell v. Fuhrman, - Mass. - , 123 N. E 237. "The law of nations, as judicially declared, prohibits all intercourse between citizens of the belligerents which is inconsistent with the state of war between their countries. No transaction in furious to their own government may be entered into or continued by them Ordinary commercial intercourse Is therefore incompatible with a state of war, since every act and contract which tends to increase the enemies' resources is absolutely interdicted, and this Includes every kind of trading or commercial dealing, whether by transmission of money or goods, or order for the delivery of either, directly or indirectly, or by contracts in any form looking to or involving such transmission. Every such contract made during war is Illegal and void. Since, however, aid to the enemy Is the touchstone of illegality, discrimination is permitted in the case of contracts made before the outbreak of war. Further performance which enures to the aid of or involves any dealing with the enemy is illegal. If from its character the contract is incapable of suspension it is dissolved. But where such interruption of performance does not go to the root of the transaction, the contract is merely suspended during the war. The alien enemy is not civiliter mortuus; he is merely in a state of suspended animation. When the war ends the mutual obligations of performance and right of action revive. Where, therefore, such a contract has been entered into with an alien enemy before the outbreak of the war and has been performed on his side, the war merely suspends his remedy: in other words, he can not sue upon it during the existence of hostilities. If, on the other hand, performance of the contract is on the side of the other party, he can enforce the contract (particularly such as require for performance payment of money only) in the courts of his own country during the continuance of war. provided, of course, a cause of action has accrued. The reason why the rule debarring action on the part of an alien enemy plaintiff can have no application where the parties are reversed is plain. The rule is based upon the obvious ground that it is contrary to public policy for the courts of a belligerent country to render any assistance to an alien enemy to enforce rights, which, but for the war, he would be entitled to enforce to his own advantage and to the detriment of his opponent. It is apparent, therefore, that to hold that a subject's right of action against an alien enemy in his own country is sua-pended, would be to defeat the very object of the suspensory rule and to turn a disability into a relief." Watts v. Unione Austriaca Di Navigazione, 224 Fed. 188 [quoted in Compagnie Universelle, etc., v. United States Service Corporation, 84 N. J. Eq. 604, 05 Atl 1871.
It has been held that the reasons which justify a court in permitting a resident plaintiff to maintain such an action against a nonresident alien enemy, including one who has voluntarily left the country in whose courts such relief is sought, do not apply to a case in which the defendant has been forcibly expelled from the country; and in such a case it has been held that a decree which is rendered while such persons are forcibly prevented from returning is void.3
While it has been said that the same rule should apply to an action in which the nonresident alien enemy is a plaintiff, that is applied to an action in which he is defendant,4 the courts have ordinarily regarded the two classes of cases as very different in principle.5 If the nonresident alien is plaintiff, he is ordinarily the only person who will be inconvenienced by dismissing the action or by continuing it: and, accordingly, the courts are, as a rule, unwilling to allow the case to proceed to final judgment during the war.6 If, on the other hand, the nonresident alien is a defendant, the person who will be inconvenienced by the dismissal or continuance of the action is the resident subject who seeks relief, and in a case of this sort, the only question to be considered is whether the hardship of seizing the property of a nonresident alien enemy by judicial proceedings in which he can not be represented unless he has appointed an attorney before the outbreak of the war, is a sufficient reason for refusing prompt and speedy justice to the resident subject.7
Contra, Haymond v. Camden, 22 W. Va 180.
2 Ludlow v. Ramsey, 78 U. S. (11 Wall.) 581, 20 L. ed. 216: Dorsey v. Kyle, 30 Md 512. 06 Am. Dec. 617.
Contra, Haymond v. Camden, 22 W. Va 180.
3 Dean v. Nelson, 77 U. S. (10 Wall.) 158. 19 L. ed. 026.
4 The Oropa, 255 Fed. 132.
Wherever an alien enemy may appoint an attorney at law to represent him, he may appear and defend, although the war is not yet terminated;8 and it is error for the court to strike his answer from the files and to refuse to permit him to make such defense as he could have made if he had not been an alien enemy.9 If a judgment is rendered which affects the alien enemy adversely, his appeal therefrom is regarded as a defensive measure rather than as the institution of a new action; and accordingly a nonresident alien enemy may appeal.10