provided by sections 3, 4 and 10 does not include a license to an ally of an enemy, to prosecute a suit on a note given before the war, and that an attorney at law does not come within the act authorizing a license to be issued to him to prosecute a suit for his enemy client. Hungarian Credit Bank vs. Titus, 169 N. Y. Supp. 926; 175 App. Div. 504. 160 N. Y. S. 1076; 182 App. Div. 826.

The Court Said: "This license is issued to the plaintiff's attorney to act on behalf of the plaintiff by continuing as their attorney in the prosecution of this suit, providing, however, that any money or property collected under this license shall be held by the licensee subject to the order of and report to the Alien Property Custodian and shall be subject to his supervision and direction.

"It would appear that this license was granted under subsection "a" of Section 5 of the Trading with the Enemy Act. This section provides, among other things, that the President may grant licenses special or general, temporary or otherwise, and for such period of time, and containing such provisions and conditions as he shall prescribe, to any person or class of persons to do business as provided in subsection "a" of section 4 of the act, and to perform any act made unlawful without such license in section 3 of the act, and to file and prosecute applications under subsection "b" of section 10, and may revoke or renew such licenses as he sees fit, and that the President may exercise this power or authority through such officer or officers as he shall direct. Subdivision "a" of this section 4 relates exclusively to insurance companies, and section 10 relates only to applications for patents. Neither of these specifically authorized the granting of a license to prosecute a suit. A reading of the Trading with the Enemy Act will not disclose any provision authorizing the granting of a license such as plaintiff's attorney herein has obtained. The only provision for authorizing the maintenance of a suit by an enemy or an ally of enemy is to be found in the third paragraph of subdivision "b" of Section 7." *****

"It will be observed that this license was issued to the attorney instead of to the plaintiff. It is our opinion that an

attorney at law cannot be deemed to come within the purview of the act, so as to be licensed as an attorney to prosecute a suit for his client. What these sections mean is that, if an enemy or ally such as the plaintiff, has been licensed to do business under this act, he may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted within the United States under such license, and it is in such cases only that an enemy or ally of enemy can prosecute an action during the existence of the war. In the license referred to, "to do business," applies to the party, such as the plaintiff, to do its banking business, and, having received such license, such party as the plaintiff, for instance, could then maintain any suit or action so far as the same arises solely out of the business transacted within the United States under the said license. It is not the attorney that is to be licensed to do business; that is, to act as the attorney for the enemy, the plaintiff. The attorney is not doing any business which requires a license to do business. He is an officer of the Supreme Court, and can only be retained by an enemy to prosecute such suits as have been described above."

"There is no evidence that the plaintiff has obtained any license to do business under these provisions, and, if he had, it would not make any difference, because this action does not arise solely out of business transacted within the United States under any such license. All of the transactions occurred long before the war, before the passage of these acts, and most of them outside the United States."

"This court has held in Rothbart vs. Herzfeld, 179 App. Div. 865, 167 N. Y. Supp. 199, affirmed March 19, 1918, 119 N. E.-, that the proper remedy is a stay of such action, and that the Trading with the Enemy Act of 1917 does not permit the prosecution of any suits in the courts during the war, except in cases provided in such act. We, therefore think, that the application should be granted, and the plaintiff stayed from a further prosecution of this action." Hungarian Credit Bank vs. Titus, 169 NYS 926, 175 App. Div. 504; affirmed 182 App. Div. 826.

Vide, note 6, Section 4; note 7, Sec. 5; note 24, Section 7, and note 8, Section 10.

15. Alien Held to Have Standing in Court After Issuance of Federal License to Trade With Enemy.

In an action on a protested check drawn after issuance by Federal Government of license to trade with the enemy, it was held that the Trading with the Enemy Act, no longer applied, and that alien enemies had the legal right to maintain the action, notwithstanding the government was still technically at war.

"It is the appellee's contention, however, that inasmuch as Unger and Burmister were German subjects, and the United States was still at war with Germany when the check was presented for payment and this action instituted, the application of the common-law rule prohibiting an alien enemy from suing in the courts of the country with which his own country is at war compels a dismissal of the action. But the Trading with the Enemy Act defines enemies for the purpose of trade and fixed their status, and its provisions on that subject are exclusive and controlling since it was clearly within the power of Congress to do this, and, if this act had the effect of modifying the common law in any particular, the latter would necessarily give way. So, whether Unger and Burmister, German subjects residing in Mexico, were alien enemies within the meaning of the common law, or whether they came within the exception to that rule which permits an alien enemy residing in the country or who may come into it by license of its sovereign to maintain an action, is immaterial, since the license, 'to trade and communicate with all persons with whom trade and communication is prohibited by the Trading with the Enemy Act', issued in conformity with and pursuance of this act, had the effect of giving them the right to sue in the courts of this country and of setting aside by implication any rule of the common law which may have denied them such right, for the act of Congress must unquestionably govern the matter.

"The fact that the general license to trade was issued during the existence of only a technical state of war months after victory had been won and actual hostilities ceased, when the reason for the rule denying enemies the right to sue in the

courts of this country no longer applied, would indicate that it was the intention of the government that the business of the country should not be further hampered by such restrictions.

"The order sustaining the plea in abatement upon the ground that the original plaintiffs were alien enemies, and therefore without status in the courts of the country, at the time the action was filed, as well as that dismissing the action, was error."

Gardanier et. al. v. Celada, 24 Ariz. 185, 207, Pac. 875. 16. Alien Enemy. Disability to Sue, When. May Prosecute or Defend, When. Rules Stated and Discussed.

The Supreme Court of Kentucky in the case of Rau vs. Rowe, 184 Ky. 841 213, S. W. 226, held that defendants were not barred of their right to appeal from judgment adverse to them by the declaration of war between their country and the United States, prior to rendering of the judgment, for the rule that the liability of an alien to suit comes with the right to all means of defense, includes appeal as one of the means to defense. The court, discussing the rule, said:

"From the multitude of cases found on this subject the following general principles seem to have received full recognition in England, Canada, and the United States: First -That a person of enemy nationality resident in his own country can neither institute an action in the courts of the country with which his own is at war, during the continuance of the war, nor prosecute one instituted before its commencement, but such disability continues only while he is abiding in his own country, and consequently does not exist where he is permitted to enter and remain in the country in which suit is brought, unless while therein he is carrying on trade with the enemy country, is a spy, or has been guilty of other acts of hostility. Brandon v. Nesbill, 2 Eng. Rul. Cas. 649; Robinson v. Cont. Ins. Co., 1 K. B. (Eng.), 155; Dumenko v. Swift Canadian Co., 32 Ont. L. Rep. 87; Dougler v. Hollinger Gold Mines, 34 Ont. L. Rep. 78; Crawford v. The William Penn, Pet., C. C. 106, Fed. Cas. No. 3372; Russ v. Mitchell, 11

Fla. 80; Seymour v. Bailey, 66 Ill. 288; Perkins v. Rogers, 35 Ind. 124, 9 Am. Rep. 639; Dorsey v. Thompson, 37, Md. 25; Levine v. Taylor, 12 Mass. 8; DeJarnette v. De Giverville, 56 Mo. 440; Sanderson v. Morgan, 39 N. Y. 231; Wilcox v. Henry, 1 Dall. 69, 1 L. Ed. 41."

"Second-That where during the pendency of an action, the plaintiff becomes an alien enemy the court is without legal authority to render judgment; and in such state of case a judgment rendered in a cause commenced before the beginning of the war can have no legal validity. In some jurisdictions the rule is that, where an action has been commenced before the war, the proceeding will be only suspended; but if instituted after the beginning of the war it will be dismissed. In yet other jurisdictions it has been held that where the plaintiff becomes an alien enemy after the institution of the action, it should be continued on the docket or dismissed without prejudice. Hutchinson vs. Brock, 11, Mass. 119; Bell vs. Chapman, 10 Johns (N. Y.) 183; Korzinske vs. Harris, Cont. Co., 18 Quebec Pr. Rep. 97; Whelan vs. Cook, 29 Md. 1; Howes vs. Chester, 33 Ga. 89; Stumpf vs. A. Schreiber Brewing Co. (D. C.), 242 Fed. 80. Third-That the liability of an alien enemy to be sued carries with it the right to use all the means and appliances of defense that might be employed by a resident citizen of the country in which the action is brought. In other words, although the existence of war closes the courts of each belligerent to the citizens of the other, it does not prevent the citizens of one belligerent, when sued, from taking proceedings for the protection of their own property against the citizens of the other when sued by the latter, for the reason of policy which suspends the right of action of an enemy alien during the war cannot and does not apply where the suit is not by one of the enemy to collect his own resources, but to subject the property of the alien to a demand asserted against him. As said in Russ v. Mitchell, 11 Fla. 80: "It would be revolting to the rules of justice which govern a court to drag therein a party and then say to him, "Although you are properly before the court you are an alien enemy and shall not be heard, yet judgment shall be rendered against you."

Rau vs. Rowe, 184 Ky., 841; 213 S. W. 226.