045-NLR-NLR-V-18-BOYSEN-et-al.-v.-ABEYSEKERA.pdf
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Present; Shaw J.
BOYSEN et al. v. ABEYSEKERA.
39—C. R. Colombo, 41,193.
Alien enemy residing in Ceylon with Governor'# permission—Right to sue.
Alien enemies residing in Ceylon with the permission of theGovernor may me in the Courts of this Island as if they weresubjects of His Majesty.
rp HE facts appear from the judgment.
Allan Drieberg, for the appellant.—Section 466 of the CivilProcedure Code expressly gives alien enemies residing in Ceylon thepower to sue in our Courts. The domicil, and not nationality, isthe test of an alien's right to sue. Counsel cited a case reported inthe Times newspaper (London) of January 20, 1915. and PrincessThurn of Taxis v. Moffitt.
His Excellency the Governor, by his notifications in the Gazetteof August 14, 1915, and September 25, 1915, has allowed Germansubjects resident in Ceylon certain rights of trading.
No appearance for the respondent.
Cut. adv. vult.
March 3, 1915. Shaw J.—
On September 21, 1914, an action was commenced in .the Courtof Requests, Colombo, by George Boysen aud Emil Rickerston, twoGerman subjects residing and trading in Colombo, against D. C. W.Abeysekera to recover the sum of Rs. 300, being balance of an accountfor goods sold and delivered. At that time a state of war existedbetween His Majesty and the country of which the plaintiffs weresubjects. The goods in respect of which the action was broughthad been sold and delivered prior to the outbreak of war. Section466 of the Civil Procedure Code (Ordinance No. 2 of 1889) providesas follows:. “ Alien enemies residing in Ceylon with the permissionof Hie Governor and alien friends may sue in the Courts of thisIsland as if they were subjects of His Majesty.
On August 14, 1914, the Governor issued the following notifica-tion in the Gazette: “It is hereby notified that "German subjectsresident within the Colony are authorized to trade for the purposeof disposing of their present stocks and of fulfilling their existing *
* 31 The Times L. R. 43.
1915.
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1915.
Shaw J.
Boysen v.Abeywkera
engagements. British subjects are authorized to pay .to Germansubjects resident in Ceylon such amounts as may be due to suchGerman subjects/'
This was followed by a further notification from His Excellencypublished in the Gazette on September 25: " It is hereby notifiedthat the limitations upon the trading rights accorded to Germansubjects resident in the Colony under the Government notificationpublished in the Government Gazette No. 6,648 of August 14, 1914,are hereby removed, and that German subjects resident in theColony are authorized to continue to reside within the Colony andcany on their trade or business free from the said limitations/1
On August 6t August 14, and September 21 proclamations wereissued by .the Governor forbidding certain trading with .the enemy.These, however, only apply to persons resident or carrying onbusiness in the enemy country, and do not affect the present case.
It has been held in England in Princess Thurn of Taxis v, Moffitt,reported in 31 The Times Law Reports 43, that the subject of anenemy State who was registered under the Aliens Restriction Act,1914, as an alien and a subject of .the enemy State is entitled to suein ihe King’s Courts. This decision was cited with approval by theCourt of Appeal in England, reported in the Times newspaper ofJanuary 20, 1915. Under the English law alien enemies have nocivil rights or privileges, unless .they are here under .the protectionand by permission of the Crown. See Blackstone’n CommentariesHt ed., VI, p. 373.
Section 46G of our Civil Procedure Code seems to me to be intendedto apply here the English law as stated by Blackstone.
The question therefore in the present case is whether the plaintiffswere at the time they brought these proceedings resident in theColony with the permission of the Governor.
I think they were; .the notification in the Gazette of August 14that German subjects resident within the Colony were authorizedto continue to .trade for certain purposes, and that British subjectswere authorized to pay to them such amounts as might be due.seems to me to amount .to an authorization and permission for suchGerman subjects to remain in the Colony, and the subsequentnotification of September 25 seems .to me to confirm their positionand .to extend their rights to trade.
The subsequent internment of German subjects for the purposesof the public safety does not seem to me to take away any rightsgiven them by .the .two notifications I have referred to.
I therefore think that these proceedings were properly brought,and that the Commissioner of Requests was wrong in his decisionof the preliminary issue. The case will .therefore be sent back to himwith instructions to frame and try issues on the merits.
Sent baek.