HAGENBECK et al. v. VAITILINGAM et al

001-NLR-NLR-V-18-HAGENBECK-et-al.-v.-VAITILINGAM-et-al.pdf

THE
NEW LAW REPORTS OF CEYLONVOLUME XVIII
[Full Bench.}
Present: Wood Benton C.J., Pereira J., and De Sampayo A.J.
HAGENBECK et al. v. VA1TILINGAM et al.
354—D. C. Colombo, 35,008.
Action bp an alien enemp before outbreak of tear—Right to maintainaction after outbreak of tear—Inherent power of the SupremeCourt—Civil Procedure Code, t. 4.
An action instituted by a person who in the course of it becomesan alien enemy by reason of the outbreak of hostilities betweenHU Majesty the King and the Power to which he is anbject cannotbe continued by that person. In the absence of provision in theCivil Procedure Code to meet such a case, the Supreme Court madea special order, under section 4 of the Code, that the case be struckoff all the rolls of the District Court and be treated as if it hadnever been instituted.
A
PPEAL from u judgment of the Acting Additional District Judge,Colombo (T. F. Garvin. Esq.).
The facts are set out in the judgment of Wood Benton C.J
This case was reserved for argument before a Full Bench byWood Benton C.J. and De Sampayo A.J.
Bawa, K.C. (with him F. dc Saram and F. H. B Koch), forplaintiffs, appellants.—The effect of the war is only to suspend thefurther prosecution of the action. A contract entered into by analien enemy before the war can be enforced after the war terminates,and during the war the contract is only suspended. It is inequitableto hold that if the action was instituted he loses all rights underthe contract when the war breaks out, but that if he had notcome to Court he could sue after the war is over. Dismissal of theaction can only be based on the ground that the property of theplaintiffs was confiscated to the Crown, but here the dismissal a’
1914b
1J. H. A 99908-500(8/60)
( •2 )
1&t* the action would accrue to the benefit of the defendants. The *.Bagcnberh p. District Judge was wrong in dismissing the plaintiffs’ action iFoaltogether/ Counsel cited Le Bret v. Pa-piUon,’ Robinson £ Co. v.
Continental Insurance Co. of Mannheim,a Timm and Taxis (Princessof) v. Moffitt* Vanbrynen v. Wilson^ Leake on Contracts 3B®,
1 Halsbury SO, ez’parie Boussmaker.5
The plaintiffs .though alien enemies have a locus stand1 before theCourts, at least for the purpose of getting an order that the case betaken off the roll until their right of action reaves. See Robinson£ Co. v. Continental Insurance Co. of Mannheim.2 In ex parteBoussmaker an enemy creditor was ^Slowed to claim in bankruptcyproceedings. In Vanbrynen ». Wilson4 a plaintiff who becameafter verdict an alien enemy was allowed to issue writ.
At this afftge Mr. Bawo, K.C., accepted the suggestion of theBench that, acting under section 4 of the Civil Procedure Code, theSupreme Court shall give the plaintiffs the right to institute a freshaction on the contract after the war. He also agreed that prescrip-tion was to run till the date of the new action.
Hayley, for first defendant, respondeut, agreed to the orderproposed* He referred .to Alcinous v. Nigreu.*
B. F. de 8ilvot for the second defendant, respondent.
Cur. ath milt.
November 24, 1914. Wood Rentox C.J.—
Although all parties to this appeal ultimately expressed theirwillingness to accept a suggestion made by the Bench as to thenature of the order by which it should be disposed of, it is, 1 think,desirable that we should give our opinion on the important questionof law involved in the case. The plaintiffs, the appellants—JolinHagenbeck and Bruno Werlick—who carried on business underthe firm name of John Hagenbeck, instituted this action on Septem-ber 6, 1912, against the first defendant-respondent, who was theirbroker, for the recovery of money alleged to be due to them onan agreement entered into between them and him. The originalsecond defendant was sued in this action as the surety of the first,but died after action brought. The present second and thirddefendants-respondents. his executors, have been substituted forhim on the record. On the outbreak of war on August 5 lastbetween Great Britain and Germany the plaintiffs’ action wasstill awaiting trial in the District Court of Colombo, and on -June22 it had been fixed for trial on August 18. On that date counselfor the plaintiffs stated that John Hagenbeck, the first plaintiff,a German subject, had been ordered to leave the Island and had
(1804) 1 East $02.* (1808) 9 East $21.
(1014) (unreported).5 (1806) 13. Vesey 71.
8 (1914) {unreported).* (1854) 4 Ellis and Blackburn 217.
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done so, and that the second plaintiff, who was also a German I9t4.subject, had not been resident in Ceylon *’ for some time past,”and in view of the hostilities between England and Germany, hemoved that the case should be taken ofl; the trial roll until a state Uugenbcek v.of peace existed between the two belligerent powers. The learned Vanning***District Judge permitted the plaintiffs’ counsel to verify thesecircumstances by affidavit. The motion was opposed by counselfor the defendants and the District Judge, after argument on bothsides, dismissed the plaintiffs’ action with costs, nnrl allowed thedefendants’ counsel to withdraw a claim in weconvention, whichhod been pleaded in the answer, with liberty bo i$-institute it if soadvised. The plaintiffs appeal.
The law applicable to the facts of this case does not appear tome to be doubtful. The contract on which the plaintiffs sue wasentered into, and the action itself was instituted, prior to theoutbreak of war. The contract, therefore, is valid, and when thewar is ended it can be enforced.1 An alien enemy, however,unless recognized in some way by the Sovereign,* or, where be isresident in a dependency, by the representative of the Sovereignthere, cannot maintain an action in any of our Courts so long ashostilities last. In the recent case of Robinson <* Co. a. ContinentalInsurance Co. of Mannheim * Bailhache J. held that an alien enemymay be sued in our Courts during the continuance of hostilities,and that this liability conferred on the alien enemy the correlativeright to defend himself by all proper forms of legal process *andto appear by counsel. This decision, however, merely grafts anexception upon the general rule as to the disability of alien enemiesto appear before the Courts, and leaves the rigour of thatgeneral rule otherwise entirely unaffected. The plaintiffs in thepresent case have in no way been recognized by the Sovereign.
On the contrary, it is admitted that the first plaintiff was expelledfrom the Colony shortly after the war began, and the second is notresident here. In these circumstances, it is conceded that theycould neither institute an; fresh action on their contract, liowevcrvalid it may be, nor proceed to enforce it in our Courts by activesteps, till hostilities have ceased. But the question for determina-tion here is whether they have such a locus standi as will enablethem to move the Court that the case should be taken off the rolluntil their right of action is revived.
In my opinion this question must be answered in the negative.
Apart from authority, this result flows directly from the principlethat, while a state of war exists, an alien enemy is incapable ofmaintaining an action in a court of law. If the learned DistrictJudge had acceded to the plaintiffs’ application, the effect of his
1 See The Hoop, (1799) 1 Rosace, Prize Cases, 104.
See Thum and Taxis (Princess of) t. Moffitt, (1924) (unreported).
(29X4) (unreported).
6
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1W4. order would* have been t8 enable them to maintain their action byWooj keeping themselves before the Court as litigants and their actionftBNXON C.«f. itself as a pending case.. But the authorities are conclusive on theHagenbeek v. point. I may notice, in the first place, the cases relied upon byVaitUingam counsel for the plaiutiffs *iu support of the appeal. Thurn andTaxis (Princess of} v. Moffit1 and Robinson d Co. v. ContinentalInsurance Go- of Mannheim1 are dearly distinguishable. In theformer the alien was recognized, and the application to si.-vyproceedings was made, not by the alien plaintiff, but by the subjectdefendant. I may observe in passing that the fact that the defend-ant in this case applied only for a “ stay of proceedings ” doesnot by any means involve the consequence that, if the stay hadbeen granted, the action could have been proceeded with by theplaintiff at the dose of the war. In English practice the term “ stayof proceedings ” while it sometimes means only their ” suspension ”until something else happens,2 is more frequently used sis meaning“ to restrain or stop the proceedings definitely.”2 The case ofRobinson d Co. v. Continental Insurance Co. of Mannheim 1 merelypresents an exception to the general rule. It would clearly havebeen inequitable to hold that an alien enemy is liable to be sued,and at the same time refuse him a persona standi in judicio for thepurposes of his defence. In Vanbrynen v. Wilson4 the Court refusedon a summary application to stay judgment and execution becausethe plaintiffs, after verdict, had become alien enemies, even althoughthe defendant offered to bring the money recovered by the verdictinto Court. Whatever remedy, if any, the defendant might havehad at law was, however, reserved to him. The Court only declinedto give him summary relief. It may be, although it is unnecessaryat present to decide the point, that where a plea of alien enemybecomes available, to a defendant after judgment has been recoveredagainst him, the judgment may fairly be recognized as imposingon the defendant a fresh liability, which could be enforced by anaction of the judgment itself when hostilities have ceased. Thelast case to which it is necessary to refer is ex parte Boussmakcrswhere the claim of an alien enemy in bankruptcy was allowed to berecorded in order to preserve the alien enemy’s right to share inthe fund on the restoration of peace. The order in this case wasmade ex parte, and was expressly based on the ground that, unlesssomething of this kind were done, the fund itself would be distribut-ed, and the claimants would have no remedy at the end of the war.
With these exceptions the authorities present no difficulty. Inhe Bret v. Papillon 6 an alien ami; at the time of action broughtbecame an alien enemy before plea. The defendant set up theplea, to which I will refer more particularly in a moment, of alienage,
1 (1914) (unreported).4 (1808) 9 East 881.
See R. S. C. Order 68. link 1G.& (1808) 13 Vesey 71.
See Stroud s. o. “ Stay 11; and see ShaMcton 6 (1804) 4 East £08.
a. Swift. (1913) 8 Q. B. 304.
( s )and judgment was given that the plaintiff ‘should be^defiarred fromfurther having or maintaining his action. Counsel for .the plaintiffsin this case contended that this order operated merely as a suspension
of the proceedings in the action. But the case of Le Bret v. Papfllonif closely examined, at once disposes *of this contention. Theplaintiff was an alien amy when he sued. The defendant pleadedthat he ought not to have or maintain his action because be wasbefore, and at the time of, exhibiting his bill, and that he now is, analien enemy, and concluded that he ought to be debarred fromhaving or maintaining his action. The plaintiff /eplied that at thetime of exhibiting his bill he was an alien apiy and prayed forjudgment. The defendant demurred. The Court* held that theplea was technically incorrect, inasmuch as the plaintiff, being’an alien amy at the date of the institution of the action, was thenentitled to have and maintain it. but that us it clearly appearedfrom the record that he had subsequently to the institution of thesuit become au alien enemy he ought to be debarred from furtherhaving or maintaining his action. The effect of the words whichI have placed in italics clearly is that while the plaintiff had alocus standi when he sued, that locus standi was permanently takenaway from him, so far as the particular action was concerned, onthe outbreak of war. That this was the law is clear both from theform of pleas in abatement in which the defendant prayed “ judg-ment of the writ and declaration, ” and “ that .the same may bequashed, M and from such cases as Alcinonx u. Nigrcu* from whichit appears that effect was given to the plea of alien enemy byjudgment for the defendant.
On these grounds I am of opinion that the plaintiffs had no locusstandi to apply to the District Judge for the order, the refusal ofwhich forms the subject of this appeal. This interpretation of the.law is in accordance with .the rules in force in English Prize Courts.
have endeavoured to show in a recent judgment3 that an alieivenemy cannot be heard in any prize cause till he has shownaffirmatively by affidavit that he has been in some way legallyrecognized by or on behalf of the Sovereign.
But, while I think that the decision of the learned District Judgeis right in substance, in view of the effect attached in our procedureto the dismissal of an action, I should propose to deal with thepresent case under section 4 of the Civil Procedure Code. Wemay, I think, fairly consider that we are in presence of an applicationby the District Court .to make whatever order .the peculiar circum-stances in which the parties are placed require. Even if section 4be not applicable literally, we have sufficient inherent powers topermit of its application by way of analogy. I would quash allthe proceedings in the District Court from and after August 18r
i (1804) 4 East »02.s (1M4) 4 Ellis and Blackburn 217.
3 S.S. Ileichenfcls (1914). 17 .V. h. U. 482.1914b
Wood
Rbotoh C.J.
Haymbedc r.Vaittlingmn
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1914*1914, and dirqpt that this action should be struck off the rollsof
^oodthe District Court as if it had never been instituted, and thatit
Rbntoh C.J. should not in any way be revived at the close of the present war.Hagenbeek e* No costs of the action or #of the appeal shall be due to or payableVaiHUngamby either side. ^This order shall, however, be without prejudice
to whatever rights or remedies, if any, the parties may havein
regard to either the original contract or the defendants’ claim inreconvening
Pereira J.—
This is an appeal from an order of the District Judge dismissingthe plaintiffs’ claim with costs on the ground that the plaintiffs ‘are alien enemies and cannot therefore be allowed a locus standiin judicio. The plaintiffs are subjects of the German Emperor,while the defendants arc British subjects, and since the institutionof this action war has been declared between His Majesty the Kingand the German Emperor, and the question is whether by reasonof that fact the plaintiffs have not lost their status in Court, andhave thus become incapacitated to continue this action. Thedefendants had made a claim in reconvention, but they have beenallowed to withdraw it with leave to institute a fresh action inrespect of it, and nothing more need therefore be said here about it.There is abundant authority for the proposition that alien enemycannot sue or maintain an action. Indeed, the learned DistrictJudge notes in his judgment that “ it is couceded that an alienenemy has no status in Court. ” Kent, in his work on InternationalLaw, says that an alien enemy cannot “ sue or sustain, in thelanguage of the civilians, a persona in judicio; ”l and TraversTwiss, citing from the judgment in the cass of The Hoop (Tides onthe Law of Nations 109). lays down:“In the law of almost
every country .the character of an alien enemy carries with it adisability to sue or to sustain, in the language of the civilians, apersona standi in judicio. “ “ But, “ he adds, “ the right of an aliento enforce a contract which is suspended whilst he is an alien enemywill revive sr soon as he is again clothed with the character of analien friend. “ Thus far the law is clear, and the particular questionfor decision in the present case is as to the form that the order shouldtake in an action commenced before the outbreak of hostilitieswhen it is made clear to the Court that as a result of the outbreakof hostilities the plaintiff has become liable to disabilities as analien enemy.
In Brandon v. Nesb.it,- after plea taken, the Court held thatjudgment must be given for the defendant on the ground that anaction would .not lie either by or in favour of an alien enemy, andjudgment was entered accordingly. Apparently the action wascommenced after the outbreak of hostilities, but the order madev Kent’s (Um.. 2nd ed.. j>. IS?.3 0 T R. 23 Eng. Rep., vol. 301. p. 410.
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effectually terminated proceedings so far da that particular action *#14.was concerned. The case cited by the District Judge is perhapsj
more in point (Le Bret v. Papittm1). There, although .there was
plea and counterplea on the question as to whether the plaintiff v^iuUngcmiwas an alien enemy at the time of action brought, the judgmentproceeded on the footing that the plaintiff was. at any rate at thedate of judgment, an alien enemy, and therefore incapable of main*tefafog further his suit. The judgment was .that the plaintiff “ bebarred fom further having or maintaining his action. ” The effectof this judgment was no doubt to terminate the litigation so faras .that particular suit was concerned. Before proceeding further,
should like to say a word about two cases of very recent datecited in the course of the argument in appeal. In tile case of thePrincess Thum and Taxis v. Moffttt the defendant applied to aJudge of the Chancery Division of the High Court of Justice inEngland, in which the action had been brought, that all proceedingsby the plaintiff in the action might be stayed on the ground, interalia, that the plaintiff was an alien enemy mu1 thereby disentitledto relief in that Court. It appeared that since the action was begunthe plaintiff hod duly registered herself as un alien and Hungarianunder Act 4 and 5 George V. ch. 12, and it was urged oft her behalfthat having complied with the Law of England and come under theprotection of the Government she was entitled to sue in .the Courtsof that counfay. Mr. Justice Sarjant adopted that view, inasmuchas the Act referred to with the Proclamations under it amounted toa command to stay in England and within a partic’ilar area, dndthe plaintiff had by her registration under the Act acquired thelight to enforce her claim notwithstanding the state of Avar nowexisting. The case )ias no application whatever to .the present.
The case of Robinson & Co. o. Continental Insurance Co. of Mann-heim is even less applicable to the present case. There, the defendants,who were admittedly alien enemies, were sued in the King’s Benchfor a loss under a marine insurance policy, and they applied that allproceedings against them be stayed during the present war os theywere alien enemies, and Mr. Justice Bailhache, having , discussed thereason for the rule that an alien enemy could not sue as plaintiff inthe English Courts and could not proceed with an action, pendiugin those Courts, observed as follows:“ But to hold that a subject’s
right of suit is suspended against an alien enemy is to injure aBritish subject and to favour an alien enemy, and to defeat .the objectand reason of the suspensory rule. It is to turn a disability into arelief. To allow an action against an alien enemy to proceed, and torefuse to allow him to appear and defend himself, would be opposedto the fundamental principles of justice. ” The rule and exceptionare here set forth in plain terms, and it is clear that in the presentcase we are concerned, not with the exception, but with the rule.
1 4 East 502 Eng. Rep,, vol. 102. p. 923.
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***** Now, wbile on the one hand .the District Judge dismissed thePshbukaJ* plaintiffs* claifh with costs, on the other the plaintiffs claimed thatthe action be merely struck off the trial roll, to be restored at theyaUUingam termination of hostilities. The latter order, in my opinion, couldon no account be made. The moment war was declared theplaintiffs became disentitled to sustain, as shown above, a personastandi in judicio, and to allow the action merely to be struck offthe trial roil, to be restored thereafter, would be tantamount’ toallow the plaintiffs to sustain a persona standi m judicio in theinterval; in other words, to be before the Court as parties to anaction. On the.otner hand, under our procedure, which does notallow of non-suit, a decree of dismissal is a bar to the institutionof a fresh action on .the original cause of action (section 207, CivilProcedure Code). That being so, the plaintiffs would be.prejudicedby the present decree, if they have in law the right (as to theexistence of which I do not feel called upon to express an opinionhere) to institute a fresh action after the termination of hostilities.The order should be one which, while it effectually and conclusivelyterminates the action, should conserve to the plaintiffs the right(if any),that I have referred to. Such an order is not provided forby the Code, and therefore it is, I think, open to us .to call in aidthe provision of section 4 of the Code in formulating an order.That section provides for the giving by the Supreme Court t6District Courts of special orders and directions on matters ofprocedure and practice for which no provision is made by the Code.I think that the section is sufficient authority to the Supreme Court,in the absence of provision in the Code itself, to make a special orderwhen the exigencies of a case call for it.
For these reasons I agree to the order proposed by my Lord theChief Justice.
De Sampayo A.J.—
There is no doubt as to the incapacity of an alien enemy eitherto institute or to prosecute actions in British Courts during thecontinuance of hostilities. The right, however, to sue on a contractmade before the wav is not extinguished, but is only suspended, Andrevives in full force on the restoration of peace. This incapacityappears to me to be based, not so much on the loss of persona standiin judicio, as on .the principle that the Courts will not ssist analien enemy to enforce rights against the subjects of the country.In the recent case of Robinson & Co. v. Continental InsuranceCo. of Mannheim. Mr. Justice Bailhacbe stated the matterthus:” I take i.t that the reason why an alien enemy when plaintiff
canno.t proceed with his action against a British subject duringhostilities is founded upon the assumption that when two countriesare at war all the subjects of each country are at war, and thatit is contrary to public policy for the Courts of this country to
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lender any assistance to an alien enemy to enforce rights whichbut for the. war he would be entitled to enforce to his ownadvantage and to the detriment of a subject of this country/*Accordingly it was held in that case that the suspensory rule didnot apply to the converse cose where tlxe alien enemy was thedefendant, and that the alien enemy had a status in Court for thepurposes of defence. That being so, and the present action havingbeen instituted before the outbreak of the war, the only question is.How is the suspension of the further prosecution vof the action to beeffected? It is curious that no previous case is available t-o showthe precise form of order to be made in similar circumstances,except what may be gathered from Le Bret v. Papillon/ In thatcase the defendant had argued that the plaintiff should be barredfrom having and maintaining the action, which in the old systemof pleading would have resulted in the extinguishment of the wholeright of action, but the Court held, and so ordered, that the plaintiffshould only be barred from further having or maintaining his action.It may be that the result of this order under the old system put anend to the pending action, but it is clear that it did not extinguishthe right of action of the plaintiff, and that it was expressly intendedto leave untouched the plaintiff’s right to enforce his claim on therestoration of peace. In this action the District Judge entered anabsolute decree of dismissal. Under our Civil Procedure the effectof such a decree is to disentitle the plaintiff to bring another actionat any time hereafter on the same cause of action. This pointwas brought to the notice of the District Judge, but he said that theordinary consequence of the loss of status by a plaintiff after actionbrought was the dismissal of the action, and he added , “if thequestion is to be decided upon the’broad ground of the interestsand convenience of the respective parties, I think the verdict mustbe for the defendants, who are British subjects, and, who cannotdirectly or indirectly be held responsible for the circumstanceswhich make it impossible for the plaintiffs to proceed.” This amountsto saying that the defendants being British subjects may justly befor ever relieved of their actual liability. Obviously this cannotbe the right way of dealing with the matter. The English Courtsappear to act more in accordance with the fundamental principleof justice. The rule of international lav/ in question is not intendedto be for the benefit of private individuals, but in the interest of theState, so that the enemy may not, by enforcement of claims, besupplied with means to prosecute the war. Indeed, if aw undoubt-edly is the case, an alien enemy may bring his action after therestoration of peace, it is impossible to see any valid reason whyone who has brought his action before the commencement ofhostilities should be in a worse position. I have already referredto the case of T,c Jtrrt t. Papillon/ Other cases appear to me even:
Db Sanpai*
A.JT.
Hagcnbeck
Vaitilingam
i (J*04 4 Bast
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***** to recognize some degree of status and to grant some measure ofjbai».u.vn relief. For instance, in Harman v. Kingston’ the defence of alienenemy was rejected because it bad not been properly pleaded inHagenbtck v. due time. In ex parte Boussmaker 9 the Court allowed a claim inVuitiltiujam bankruptcy to be entered in favour of an alien enemy, and onlyreserved the payment of dividends. It will be borne in mindthat the admission of a claim in bankruptcy is of the nature of ajudgment for the amount claimed. In Vanbrynen v. Wilson,3where plaintiff had recovered judgment, .the Court refused to stayexecution even though the defendant offered to bring the moneyintoNCourt. It is true that the Court, while refusing to give tin*defendant the summary relief asked for, referred him to whateverother remedy he might have at law, but .the effect of the refusalwas to leave the alien enemy as plaintiff on the record, with ajudgment in his favour which he might or might not be able duringthe existence of hostilities to execute.
I think in this case we should find a way to give effect to thesuspensory rule without destroying altogether the right of action.
I am inclined to think that the appropriate order would he to stayproceedings. This is in fact what was applied for in the recent casesof Robinson & Co. v. Continental Insurance Co. of Mamiheim andPrincess Thum and Taxis v. Moffitt (supra). These cases turned uponother points, but no exception was taken to the form of order asked for.It .may be that in England a stay of proceedings sometimes involvestheir complete termination so far as those proceedings themselvesare concerned. If that be so, then it seems to me that that form oforder would he all the more appropriate, since it would enable theparty to commence proceedings afresh at the proper time. It issignificant that in the first of the above cases Mr. Justice Bailhachecontemplated the contingency that the alien enemy defendant,against whom the action was held to be capable of being proceededwith, might ultimately have an order for costs, and with regard tothat he suggested that the difficulty might be met by suspendingthe execution of the order. This, again, seems to me .to illustratethe fact that the Court in certain circumstances will accord to thenlie^ enemy some measure of aid, though the enforcement of anyrelief granted will be suspended.
However, I agree to the order proposed by my Lord the ChiefJustice, as it substantially carries out the suspensory rule withoutextinguishing the entire remedy.
Varied.
♦
1 (1811) S Camp. 150 and 158.9 (180$) 18 Vts. fun. 71.
9 (1808) 9 East 821.