as well to proceedings of this kind, instituted for the purpose of creating an agency or representative of an alien enemy in order that such representative can bring suit to recover money or property for the alien, as to a suit brought directly for such recovery." Galveston H. and S. S. A. Ry. Co. v. Blankfield, (Texas), 211 S. W. 808. 29. Alien Enemy Cannot During Existence of War Obstruct the Operation of Our Laws for Benefit of the Citizens by Absence in Enemy Country. "The question raised by this case is whether it is the duty of the trustee now to obey the order to distribute the income from one-third of the trust estate to certain of the beneficiaries, American citizens, and whether it would be protected in doing so if, within three years allowed by the statute, the decree should be set aside and a different construction given the will. The controversy is whether they can compel the trustee to pay it to them now or whether they must wait three years for it." **** "The trustee raises another rather novel question, unsupported by authority in this state, which is, that as to the defendants domiciled in Germany and Austria, owing to a state of war existing between those countries and ours, and which in a technical sense still continues, the provision of Section 12 of the (Illinois) Act, was impossible of performance by reason of non-communication by mail between these countries, depriving such defendants of access to our courts, and that the Chancery Court did not acquire jurisdiction over them by virtue of Section 19 of the act, and cannot obtain jurisdiction until after such state of war ceases." *** "We cannot conceive it to be the law anywhere that the rights of a citizen shall be held in suspension and unenforceable in our courts, because some alien enemies, domiciled within enemy territory, and, therefore, not accessible for service of process, may have some interest subject to adjudication in our courts. If such were the law, it would work an injustice to our citizens for the benefit of the country's enemies by depriving the citizen of the benefit of the remedial relief to which he may be entitled. It would seem consistent and logi cal to hold, as we do, that no alien enemy can, during the existence of a state of war, obstruct by his absence in enemy country the operations of our laws as to the rights of citizens domiciled within the state, but that such citizen may revoke such laws and enforce judgments and decrees relating to them, subject to the right of legal challenge when peace is restored between the warring factions." "As to the contention of the trustee that, as Section 19 of the statute gave the defendants the right to be heard to contest the bill within three years, as non-resident parties by publication, and they might do so successfully, and the trustee would not be protected, the court held that the decree directing distribution is "binding upon the trustee and is a protection to the trustee for any money which it may lawfully pay. out to the parties as in said decree directed." Chapman vs. Northern Trust Co. 219, Ilis. App. 492, citing Wilson vs. Regents, 46 Col. 100; Butterrick vs. Kennedy, 46, Neb. 264, affirmed in 296 Ills. Sup. Ct. 3, 53; vide s. c. 293, Ills. 383. 30. American Partner of German Co-Partnership May Sue. An action by a member of a partnership of which the alien enemy was a partner prior to dissolution as the effect of war, is not subject to stay, especially in view of Section 7, (b) of the Trading with the Enemy Act. Siemond vs. Schmidt, 168, N. Y. S. 935. 31. Austrian-Hungarian Resident May Sue for Torts. Under the President's Proclamation No. 1417, dated December 11, 1917, (See Addenda P and Q), a native of Austria-Hungary, who resides within the United States, may sue for damages in tort, notwithstanding the existence of war. Krachanake vs. Acme Mfg. Co. 95 S. E. 851, 175 N. C. 435. "The statement is often made by law writers that an alien enemy cannot sue, and upon the ground that to permit a recovery would strengthen and add to the resources of the hostile government, but when reference is had to the facts, it is found that the principle is predicated upon residence in the country at war with ours, and that it has no application to an alien enemy resident here, who may be interned and held as a prisoner of war without right to apply for the writ of habeas corpus, and whose property may be taken into custody. See note to Daimler vs. Continental Fire Ins. Co., Anno, Cases, 1917 C 193." 32. German-Born Residents of New Jersey, Not Naturalized, May Sue. Residents of New Jersey, born in the German Empire, and not naturalized citizens of the United States, who had not been interned by the war department, held not enemies within the meaning of the Act, so they could not defend suit for specific performance of the sale of realty. Tortoriello vs. Seghorn, (N. J. Eq.), 103 Atl. 393. 33. German Subjects, Resident Here, Not Stayed in Suit to Enjoin Wrecking New Jersey Corporation in Which They Were Interested as Stockholders. In view of the tolerant keynote of the President's Proclamation, a suit by an individual complainant, who had taken out his first naturalization papers, and a German corporation, against persons charged with having deliberately set about to wreck a New Jersey corporation in which complainants were interested as stockholders, will not be stayed on the grounds the complainants were alien enemies. Posselt vs. D'Espard, 87 N. J. Eq. 571, 100 Atl. 893. 34. Alien Residents. Contract Between, Not Void by Reason of War. Where alien residents of this country engaged in a contract by which one undertook to sell the other German marks and between the making of the contract and time for its performance war was declared, on April 6, 1917, it was held in an opinion by the plaintiff to recover the sum paid the defendant, because of the non-performance of his guarantee to deliver the marks at the time stipulated, that the plaintiff was entitled to recover, the contract not being void by reason of war. Kannengiesser vs. Israelowitz, 107, Misc. Rep. 349, 176 N. Y. Supp. 535. The Court in the case, supra, said: "The only question presented for the trial court's determination was as to the legality of the contracts. Decision was rendered in favor of defendant, and from the judgment entered thereon this appeal is prosecuted. The learned counsel for defendant neither here nor in the court below based his contention of the invalidity of the contract of guaranty upon any act of the Congress of the United States or upon any proclamation of the President thereof prohibiting commercial intercourse with an alien enemy, but relied solely upon the ground that its object was to further transactions which are against the interests of the United States in the war with Germany, and that upon the principles of the common law it is void as against public policy. "Surely there was nothing in the contract as to where the vendor was to procure the marks, nor was there anything before the court to show that the German money in question could not have been obtained in this country at the time stipulated for its delivery. The reasoning of the learned trial court, in view of this situation, that the vendor was free to obtain the money from Germany, and the presumption is that directly or indirectly it was to be procured therefrom, is based upon a false hypothesis, namely, that the vendor intended to do an illegal act. The presumption of law is to the contrary, viz: That a person intends to act legally. Illegality is never presumed. Richards vs. Wiener Co., 207 N. Y. 65, 100, N. E. 592. **** The conclusion drawn by the learned justice that, because commercial intercourse between citizens of belligerent countries is thus prohibited in times of war, it should not be tolerated between resident aliens, as it tends to aid and comfort an enemy, is contrary to the weight of judicial authority. In Kershaw v. Kilsey, 100 Mass. 564, 573, 97 Am. Dec. 124, 1 Am. Rep. 142, cited with approval in Briggs v. United States (143 US. 346), the court said: "The the trading or transmission of property or money which is prohibited by international law is from or to one of the countries at war. An alien enemy residing in this country may contract and sue like a citizen. **** When a creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the amount of the debt, throughout the war, payment there to such creditor or his agent can in no respect be construed into a violation of the duties imposed by a state of war upon the debtor; it is not made to an enemy, in contemplation of international or municipal law and it is no objection that the agent may possibly remit the money to his principal in the enemy's country; if he should do so, the offense would be imputable to him, and not to the person paying him the money.'" Kannengiesser vs. Israelowitz, 176 N. Y. S. 535; 107 Misc. Rep. 349. 35. Non-Resident Enemy Can Maintain Suit Under California Code. Rights Suspended During War Only. In an action of damages for wrongful death brought by the administrator, on behalf of the mother of the deceased, a non-resident alien and subject of Austria, it was held that the action could be maintained under Section 377 of the Code of Civil Procedure (Cal.), and, whether 1970 of the Civil Code fails to cover the case of a non-resident alien was immaterial, the court not intimating it would exclude such alien; and if a state of war existed between the United States and AustriaHungary, though not then declared, it would not warrant a forfeiture of the mother's rights, but the rights of a nonresident alien enemy would be simply suspended until the cessation of hostilities. Taylor vs. Albion Lumber Co. 19, 1917), 176 Cal. 347, 168 Pac. 348. 36. Remedies Collection of Debts. (October "Declaration of war is not alone s ufficient, ex proprio vigore, to suspend remedies for the collection of debts and dues between citizens and subjects of an enemy nation. |