Dorsey v. Kyle

Alvey, J., delivered the opinion of the Court. Upon a careful examination of the several records before us, we fail to discover any sufficient ground 'for sustaining the motions of the appellant to strike out the judgments of condemnation. “ Every person who doth not reside in this State, and every person who absconds, may be made a defendant in an attachment,” is the provision in our law in regard to defendants in attachments, (1 Code, Art. 10, seo. 2;). and the term citizen-, used in the formula of the affidavit prescribed by the 4th section of the Article of the Code referred to, is to be taken as synonymous with inhabitant or permanent resident. Risewick vs. Davis, 19 Md., 93 . It is not, therefore, every person who can claim to be a citizen of, or to have domicil in the State, that can be relieved from the process of attachment.

In contemplation of the attachment law, the domicil may be in this State, while the actual residence is in another. Matter of Thompson, 1 Wend., 43 ; Frost vs. Brishin, 19 Wend., 14 ; Haggert vs. Morrgan, 1 Seld., 428; and Risewick vs. Davis, 19 Md., 96 , where the New York cases here referred to are cited and approved. That the appellant was a non-resident, within the meaning and true construction of the attachment law, we think, is clear beyond doubt. It is insisted, however, that because the appellant was in "Virginia during the late war, and had. allied himself with the cause of the Southern States and joined the Confederate army, he thereby became an alien enemy, and that consequently “ all legal remedies were suspended during the period of hostilities.” While it may be conceded that, by his own voluntary act, the appellant did assume the attitude of an alien enemy to this State and the Government of the United States, yet we cannot for a moment accede to the proposition that all legal remedies were therefore suspended in our own Courts, as against him or his property remaining within the jurisdiction of this- State.

Such a proposition is as novel in jurisprudence ⁵¹⁹ as it would be unjust to creditors. There is no precedent of authority, or principle, known to us, that gives it the least sanction. The case of Griswold vs. Waddington, 15 John., 57 , and same case in 16 John., 438 , in error, relied on by the appellant, does not in any manner tend to support such a proposition. That was a case growing out of dealings and transactions that had taken place between citizens of hostile countries during the pendency of war, and in contravention of the law of the land.

And the proposition there affirmed was, that no valid contract can exist, nor any promise arise by implication of law from any transaction with an enemy during the existence of hostility; and if, after the war has ceased, an action is brought against a citizen upon any contract arising out of such illicit intercourse, the defendant may set up the illegality of the transaction as a defence. This, as was shown by the elaborate discussion and great research of Chancellor Kent, in the case referred to, is a rule firmly established by universal authority. But that is altogether a different proposition from the one involved in the cases before us. Here, the contracts upon which the proceedings were taken, had an antecedent existence to the war, and were made and grew out of transactions with the appellant when he was a resident citizen of the State, and the question is, whether they can be legally enforced in the Courts of this State, in the absence of the appellant, against his property by attachment.

As a general rule, an alien enemy is not allowed to maintain suit in the Courts of the country with which he is, at the time, in hostility. This, however, is a personal disability, of a temporary duration, and is founded upon reason and policy, and, to some extent, upon the necessity of the case. But no such reason or policy forbids judicial proceedings against an alien enemy, in favor of a friendly citizen; and it is, therefore, asserted by good authority, that while an alien enemy may not sue, he may be sued at law. Bac.

Abr. Alien, D. Hence we know of no such thing as a plea by the defendant of his own alien enmity to the government in whose Courts ⁵²⁰ lie is sued. The plea of alien enemy goes only to the disability of the plaintiif. It is not a matter of privilege, but a disability that suspends the right to maintain an action in the Courts of the country to which the party is an enemy.

And if a party, though an alien enemy, be suable at all, it is difficult to suggest a good reason why the same