Bell v. Chapman — 10 Johns. 183

Majority

p. 185

Bell against Chapman.

NEWYORK,

May, 1813.

Headnote

A plea that the plaintiff is an alien ene= my, residing in the enemy’s country, &c. may conclude either' in abatement or in bar, tho* as the disability of the plaintiff is temporary, it would seem that the plea ought to conclude la abatement.

pleaded inbar ment, &theC not abate a the return of aUen’s right of action *s only suspended during the war.

THIS was an action on a covenant contained in a lease. The defendant, after praying oyer of the lease, pleaded non estfactum, as of May term, 1811. Continuances were entered on the roll, until August term, 1812, with an award of a venire, returnable, at the Clinton circuit, on the 29th of June, 1812. The cause being called, and jury sworn, the following plea, puis darrein continuance, was put in by the defendant, and set forth in the postea; “And the said David Chapman, by his attorney aforesaid, comes and saith that the said Robert Adair Bell ought not further to have or maintain his aforesaid action against the said D. C., because he saith that the said R. A. B. is an alien, bom in foreign parts, to wit, in Ireland, out of the allegiance of the state of I\ew~ York, or of the United States of America, and within the aliogiance of a foreign sovereign, to wit, the King of Great Britain and Ireland, and that the said R. A. B. before and at the time of exhibiting his bill in this behalf, was, and now is, inhabiting and commorant in Ireland, under the government of the united kingdom of Great Britain and Ireland and their dependencies, and \ e 7 that after the time when the said instrument m writing, in the said declaration mentioned is supposed to have been made and delivered, and before the last continuance of the plea aforesaid, that is to say, after the first Monday of May last, from which day until the first Monday of August next, in the term of August, unless the justices, &c. some or one of them, at a circuit court, to be held at the court-house, in the town of Plattsburgh, in and for the county of Clinton, should first come, on Monday the 29th of June, in the year 1812, the said action is continued, to wit, on the eighteenth day of June aforesaid, a public war has been commenced, and is now carried on between the king and government of the united kingdom of Great Britain and Ireland and their dependencies, and the government of the United States of America;

p. 186

and that the said R. A. B. is an enemy of the said government of the United States of America, and adhering to the enemies thereof, at Ireland aforesaid, to wit, at the town of Peru, in the county °f Clinton aforesaid, and this the said D. C. is ready to verify: wherefore he prays judgment, if the said R. A. B. ought further to have or maintain his aforesaid action thereof against him,” &c. “And hereupon the jurors, &c. are altogether discharged from giving any verdict,” &c. 1

To this plea the plaintiff demurred, and the defendant joined in demurrer.

Crary, in support of the demurrer,

cited 2 Chitt. Pl. 435, Stra. 1081. 2 Ld, Raym. 1243. Com, Dig. Abatement, E. Tidd’s Prac. 579.

Z. R. Shepherd, centra,

cited 2 Ld. Raym. 282. 4 East, 502. 2 Chitt. Pl. 425.

The plea puis darrein continuance avers that the plaintiff was, at the commencement of the suit, and still is, commorant in Ireland ; and that since the last adjournment he has become an alien enemy, being an alien, born within the allegiance of the King of Great Britain, with whom we are at war, and the plea concludes in bar of the action. There is no doubt that the plea is a valid one in the case of the alien’s residence in the enemy’s country, and the plea may be pleaded either in abatement or in bar, for the precedents are both ways. (Rast. Ent. tit. Ejectment, 7. tit. Trespass per Alien, 1. Cornn. Tab. tit. Abatement, 7. tit. Bar in Divers Actions, 87. Wells v. Williams, 1 Lutw. 34, 35. West v. Sutton, 1 Salk. 2.) This plea conforms precisely to the opinion of the K. B. in Le Bret v. Papillon, (4 East, 502.) in concluding in bar of the further maintenance of the suit. As the disability of the plaintiff is but temporary in its nature, (for a state of perpetual war is not to be presumed,) the good sense and logic of pleading would seem to be in favour of the plea concluding in abatement, when the cause of action is not void or extinguished. But whether the plea be in the one form or the other is, perhaps, not material, for the judgment thereon would not be a bar to a new action on the return of peace. A judgment is no bar to a new suit, unless it involves

p. 187

the merits of the controversy, or be founded on matter which affords a permanent avoidance, or discharge. But hte present plea only bars the palintiff, in his character of alien enemy comrnorant abroad, bom prosecuting the suit. It does not so much as touch the merits of the action. In a late case in chancery, (Ex parts Boussmaker, 13 Ves. 71.) Lord Erskine declared tint the alien’s right of action, in such a case, was only suspended • by the war, and that if the contract was originally good, the remedy would revive on the return of peace. This was even the ancient doctrine, according to Lord Coke, who said (Co. Litt. 129. b.) that ”■ true ii is an alien enemy shall maintain neither real nor personal action, donee terns fuerinl communes, that is, until both nations be in peace.” It is also admitted by the best modem authorities, on the law of nations, that the plea of alien enemy is only a temporary bar to the recovery of private debts, and that the right of action returns with the return of peace. (Bynk. Quest. Jur. Pub. b. 1. c. 7. Vattel, b. 3. c. 5. s. 77.)

There is, then, no well founded objection to the plea, and the defendant is entitled to judgment.

Judgment for the defendant,^[1]

(a) (a) See Clark v. Morey, ante, 69. Buckley v. Lyttle, et al., ante, 117.