power at war with us. When the allegiance determines, his character of enemy determines also. As a prisoner at war, he does not differ with any other prisoner who is in custody for an offence committed by him, and for which he is answerable. If he be a natural born subject of this realm, and commit an act of hostility against it, he is a traitor; but yet he remains a subject of this country. Therefore a neutral, who becomes a prisoner of war, immediately ceases to be an enemy; and though, as long as he continues in actual hostility, he is disabled to sue, notwithstanding his birth, his disability does not continue until the war is concluded. As to the argument that a benefit will result to the enemy from allowing such a person to sue during the war, it is a policy perhaps doubtful, and certainly remote. For the above reasons, the court refused to grant a new trial, and set aside the verdict which had been obtained by the plaintiff in the case cited". It seems doubtful if peace does not restore an alien's right to sue on a contract made before, or during the war (21).

P Sparenburgh v. Bannatyne, 1 B. &. P. 163.

Except

(21) Porceau v. Hartley, 23 Geo. 3. Action on a ransom bill. Plea, alien enemy in bar; that at the time of exhibiting the bill it was peace. thereto.

replication, Dubitatur, if

Demurrer peace restores alien's right to

Wood, for the demurrer.-An alien friend may maintain an action, but not an alien enemy. Declaration of war is not necessary; hostility is sufficient. Salk. 46. Co. Lit. 129. Rast. Ent. 252. 605. Carter 49. Bro. Abr. Denizen & Alien, pl. 16. 20. Wells v. Williams, 1 Ld. Raym. 282. 1 Lutw. 34. where the replication says he was in England

sue, on contract made during

war.

That alien is

indebted to

plaintiff.

Except in the above case, and that of a ransom bill,

an action will not lie either by or in favor of an alien enemy, at all events, until peace is restored; and, therefore,

a Record v. Bettingham, 3 Bur. 1374.

at the time of making the obligation. Alien enemy may be pleaded as well in bar, as abatement. Peace prior to the action docs not entitle the plaintiff.-The matter is forfeited, and the right of action transferred to the crown. The remedy, if any, is in the Court of Admiralty. The municipal law gives none. The case of Record and Bettenham is the first on a ransom bill. In that case the jurisdiction was not controverted; for it was held that an alien enemy had no remedy at all, not that he had none in this court. All that was admitted was, that the plaintiff ought to have remedy somewhere. The question since has been more thoroughly sifted, and consistent with the cases of Lecour v. Eden, and Lindo v. Rodney, this action cannot be maintained. The question on these pleadings is, whether after peace, an enemy may not bring an action on a contract made during the war. The contract is yoid; and if so, no action can ever

be brought on it.

Sir Thomas Davenport, contrà. The only question is, whether alien enemy is in disability of the person, or makes the contract void. Co. Lit. 129, 130. b. like the case of outlawry. If we get over this difficulty of the disability, Record v. Bettenham will apply; because it was clearly held in that case, that there is a remedy of some sort here, and all over Europe, which is enough to shew that the contract was not void.

Wood, in reply. Lord Coke is speaking of contracts made before the war; at least he does not expressly speak of contracts during war, and if he did, it would be contradicting what he says before.

Lord MANSFIELD. This is involved in the general question. By the maritime law, all commerce with the enemy is a cause of confiscation. In a case which happened during a famine in France, in King William's time, carrying corn was thought by the judges a misdemeanor; but nobody would prosecute. In the instance court of Admiralty,

therefore, in an action on a policy of insurance brought in the name of an English agent for his principal, an alien, if such interest appear on the record by plea, as it may, a replication that the alien is indebted to the plaintiff in more than the value of the property insured cannot be supported'.

Brandon v. Nesbitt, 6 D. & E. 23.

Admiralty, an alien enemy is equally disabled.

If it were a civil suit, I should have no doubt but the peace restored the capacity of suing.

BULLER, J. The only question on this record, besides the general question, is, whether a contract made during war may be sued for after peace.. But the general question is open, and it must stand.

over.

YY 4

CHAPTER XX,

OF PLEAS, &C, IN DISCHARGE, BY STATUTE,

Pleas in disdischarge by statute, dis

PLEAS in discharge by statute are, first, in discharge

of the plaintiff's right to sue, as, by the bank. tinguished. ruptcy of the plaintiff, which shews that right to be in his assignees, or of the defendant, which discharges him from all causes of action that accrued before he became a bankrupt, or afterwards, in cases provided for by Sir Samuel Romilly's late act of parliament, 49 G. 8. c. 121. s. 8.; secondly, they are such as entirely discharge the plaintiff's remedy, either for his whole demand, as, the statute of limitations, 21 Jac. 1. c. 19, or for part of his demand only, leaving him a remedy for the balance due where there are cross demands, as, the statutes of set off, 2 G. 2. c. 22. s. 11. and 8 G. 2. c. 24, s. 4.; thirdly, they are such as do not entirely discharge the plaintiff's remedy as to any part of his demand, but partly discharge his remedy for the whole of his demand, as the insolvent debtors' acts, which preclude him from having execution against the defendant's person, though the future effects remain liable; or the court of conscience acts, which take away his remedy in the superior courts

only,

only, by obliging him to have recourse to an inferior jurisdiction. These several pleas will require a sepa

rate consideration.

Bankruptcy in the defendant, or plaintiff, may be Plea of bankpleaded in bar in assumpsit. The plea of bankrupty ruptcy in de fendant, or in the defendant is much the most common, as the plaintiff. claims of a bankrupt are generally made by his assignees. A compendious form of pleading the defendant's bankruptcy is given by the statute 5 G. 2. c. 30. s. 7. to enable a bankrupt to protect himself from actions brought against him after his discharge, without running the risk of involving himself in the intricacies of special pleading; which he was subject to before that statute, when it was customary for him to set forth all the circumstances necessary to support the commission, and entitle him to his certificate. But the statute does not apply to pleading the bankruptcy of the plaintiff, any more than the reasons for which the statute was made. Nor is any particular form of plea given by Sir Samuel Romilly's late act, in cases provided for by that act.

must be

pleaded.

Bankruptcy in the defendant cannot be taken advan- Bankruptcy tage of under the general issue; for that only puts in in defendant issue the merits of the complaint, and the right to sue upon it only is discharged by the bankruptcy, not the debt itself, as, in the case of the statute of limitations; and as that still remains due in conscience, so as to be sufficient consideration for a new promise made by the defendant; he may or may not wish to take advantage

* Com. Dig. tit Bankrupt, D. 35. Trueman v. Fenton, Cowp. 544.