Dorsey v. Thompson

Alvey, J., delivered the opinion of the Court. Much of the argument in this case, on the part of the appellant, has been addressed to the question-, whether, at the time of the institution of this suit, and during the period within which certain proceedings were had, of which he now complains, he was liable to be sued in the Courts-of this State, he being at the time, as be alleges, an alien enemy of the Government of the United States, and, consequently, of the State of Maryland. . It has been very zealously argued by the appellant’s counsel, that, inasmuch as the appellant left his residence in this State and joined the Confederate army, before tbe institution of the suit, and remained within the Confederate lines until after the close of the war, his status was that-of an alien enemy to the Government of the United States, and that, as a legal consequence of such status, he was not liable to be sued in the Courts of the country against which he was engaged in hostility. That during the state of war all right of action by those remaining in the country to which he was hostile was suspended as against him, and that, consequently-, the proceedings ta*ken in' this case, so far as they attempt to affect him, were without warrant of law, and are, therefore, nugatory and void.

Now assuming, for the sake of the argument, that the appellant’s status was that of alien enemy, as he contends, does it follow, as a necessary legal consequence, that he was exempt from all liability of suit in the Courts of the belligerent country, by the citizens and friends of that country, to affect his rights and estate remaining within its jurisdiction ? To maintain this proposition, so •sweeping, and so disastrous in its consequences to the rights of the friendly citizen of the country whose Courts are invoked for relief,' no authority whatever has been produced, nor are we aware of any established principle upon which it can be maintained. On the contrary, ³⁹ reason and convenience would seem strongly to militate against it. It is certainly true, that an alien enemy is incapable of suing and maintaining a suit, either at law or in equity, in the Courts of the country to which he is hostile, during the state of hostilities ; but this disability is personal to the plaintiff, and is designed to take from the enemies of the government the benefit of its Courts.

Daubigney vs. Davallon, 2 Anst., 462; Sparenburgh vs. Bannatyne, 1 Bos. & Pul., 163; Society, &c. vs. Wheeler, 2 Gall., 105; 1 Daniel Ch Pra. and Plea., 58; Story’s Eg. Pl., sec. 53. There may be auxiliary reasons for the rule founded on policy; but in reference to this Judges have not agreed in opinion. In the case of Sparenburgh vs. Bannatyne, 1 Bos. & Pul., 170, Chief Justice Eyre, in speaking of the ground upon which the plea of’alien enemy is founded, said: “As to the ground of policy which has been taken in argument for the defendant, namely, that a benefit would result to the enemy from the plaintiff’s recovering, it is a policy, perhaps doubtful, certainly remote, and which I do not hold to be satisfactory.

I take the true ground upon which the plea of alien enemy has been allowed is, that a man, professing himself hostile to this country, and in a state of war with it, cannot be heard if he sue for the benefit and protection of our laws in the Courts of this country. We do not allow even our own subjects to demand the benefit of the law in our Courts, if they refuse to submit to the law and jurisdiction of our Courts. Such is the case of an outlaw.” The plea of alien enemy, however, is greatly disfavored by the Courts, and all presumptions are generally indulged against it; (8 T. Rep., 166; 2 Gall., 127 ; and where the disability of alien enemy occurred before judgment, and to a scire facias on the judgment the plaintiff’s disability was pleaded, the plea was disallowed because it had not been availed of to the original ⁴⁰ action; the plaintiff having heen allowed to recover judgment, his disability could not he set up to defeat execution on it. West vs. Sutton, 2 Ld.

Raym., 853. The defence is technical, .and is only allowed when formally and strictly pleaded to the maintenance of the suit. 1 Chit. Pl., 234. But whether the ground of the defence of alien enemy be the possible benefit that might result to the enemy from allowing the plaintiff to recover, or the want of claim or right to the use of the Courts of the country by the plaintiff, in consequence of his status as an enemy, the reason that creates the disability of. the party as plaintiff does not apply to him as defendant.

As plaintiff,the party attempts to exercise a privilege that he has forfeited, at least for the time; hut, as defendant, he is sought to he made amenable for what justice may require- of him. The mode and manner of acquiring jurisdiction, and making the proceedings binding on him, is another and a different question from that of his total exemption from suit pending hostilities. This depends upon the remedial processes of the Courts ; and, as is well known, they-are generally wholly inadequate during a state of actual war in suits in personam, to furnish the foundation for exercising jurisdiction over alien enemies residing in the enenay’s territory. But still these enemies are liable to be sued, if within the reach of process. - Indeed, that an alien enemy is liable to be sued in the Courts of the hostile country would seem to he a settled principle of law.

It has heen so' expressly decided by this Court in the case of Dorsey vs. Kyle, 30 Md., 512 ; ami it has heen recently so decided by the Supreme Court of the United States, in the case of McVeigh vs. U. S., 11 Wall., 259, 267 . In this latter case, the Court said: “ Whatever -may he the extent of the disability of an alien enemy to sue in the Courts of the hostile country, it is clear that he is liable to he sued, and this carries ⁴¹ with it the right to use all the means and appliances ol defence.’' Bacon's Abr., tit. Alien, D., is quoted from, in which it is said that an alien enemy may be sued at law, and may have process to compel the appearance of his witnesses. See also Albretcht vs. Sassmann, 2 Ves. & B., 323.

Having thus shewn that, conceding the legal status oi the appellant to be that of an alien enemy, there is nothing in that status to exempt him from suit in the Courts of this State, except the difficulty of rendering him amenable to the process of the Courts, we shall now proceed to examine the nature of the case and the manner in which jurisdiction was acquired by the Court to pass the several orders of which the appellant complains on this appeal. The bill in this case was filed on the 3d of December, 1863, by three of the daughters of the late Chief Justice Thomas B. Dorsey,' against the appellant and others; its objects being, 1st. To obtain an account of the estate of the deceased from the surviving executor and trustee, John T. B. Dorsey, the appellant, and the executrix of Win. H. G-.

Dorsey, deceased, who was co-executor and trustee with the appellant, under their father’s will; 2d. For the reino val of the appellant from his position of trustee, because of his absence from the State, and consequent neglect of the trusts, and to have other trustees appointed; and, 3d. To obtain a decree for the sale of all the residue of the real estate of the testator, the late Judge Dorsey, not specifically devised ; the proceeds to be distributed according to the devises, directions, and trusts set forth in the will. The appellant was tiie devisee of the one-fifth part of all the residue of the real estate, thus prayed to be sold; and, by a separate clause in the will, the two executors were authorized and empowered to sell, at such time as they should deem it expedient or necessary, all the real and personal estate of ⁴² their testator that had not been specifically devised or bequeathed by his will.

This power had been hut partly executed ; a considerable portion of the residue of the real estate remaining unsold at the time of filing the bill. The three daughters, complainants, were each entitled to .one-fifth of this residue of t.he testator’s estate, to be held in trust, and invested for their use and benefit; the appellant being the trustee appointed by the will to hold and invest the one-fifth for his sister, Mrs. Thompson, one of the complainants. To fully execute these trusts created for the three daughters, it is apparent that all the lands embraced in the power of sale were required to he sold, and that such was the design and intention of the testator. There had been a failure to execute the power, and one of the executors was dead, and the other absent beyond the jurisdiction of the State, at the time the bill was filed.

The appellant was alleged to be a non-resident, and was proceeded against as a non-resident defendant, ‘by order of publication in the usual form, and as authorized and directed by the statute law of the State. The order was duly published once in each of four sucsive weeks before the 1st of February, 1864, as required, warning the appellant, and. other absent defendants, to appear and answer on or before the 1st* of May, 1864. This order of publication was not heeded by the appellant, because, as he alleges, he was, at the time, within the lines of the Confederate States, a power at war with the United States, and that it was unlawful for him either to receive or obey the notice thus attempted to be given; and that, consequently, all the proceedings had in the cause, so far as he is concerned, are without efi'ect and void, the Court failing to acquire jurisdiction to decree against him. This position of the appellant would be entirely correct and unanswerable, if he had been a citizen or resident of any of the Confederate States at the commencement of ⁴³ the war.

But that was not the case with the appellant. At the commencement of the war he was a resident citizen of this State; and it was not until about the 1st of July, 1861, and after hostilities had commenced, that he voluntarily left the State and went to Virginia, one of the Confederate States, and afterwards joined the Confederate army. These facts are fully disclosed in records brought into this Court by the appellant himself, in one of which was involved the validity of the order of sale passed in this cause. Dorsey vs. Garey, 30 Md., 489 ; Dorsey vs. Kyle, 30 Md., 512 ; Dorsey vs. Dorsey, 30 Md., 522 .

On these facts appearing in the case of Dorsey vs. Dorsey, just referred to, this Court decided that the appellant was subject to the notice given hv publication, and that lie was hound by the proceedings taken in the cause, as any other non-resident defendant would be, notwithstanding his allegation that he was at the time within the Confederate lines, and that be could not in fact receive the notice. That the presumption of notice, resulting from the due publication of the order of Court, was such as to confer upon the Court power and jurisdiction to decree upon the subject-matter of the suit, that subject-matter itself being within the jurisdiction of the Court. Indeed, without such presumption and such power, the rights of creditors, and the rights of cestuis que trust, would, in many cases, he utterly sacrificed and lost. Subsequently, the case of Johnson vs. Robinson & Pearre, 34 Md., 165 , came into this Court, and in that case was involved the validity of a notice by publication, the defendant intended to be affected by it having left the State, and being at the time engaged in the Confederate service.

The notice there was held to be ineffectual ; but it was so held in deference to and upon the authority of the decision of the Supreme Court of the ⁴⁴ United States, in Dean vs. Nelson, 10 Wall., 158 , where the doctrine was announced, without limitation or qualification, that such notice, to affect a party so situated, was an idle form, and therefore a mere nullity. By a more recent decision, however, of the same learned 'tribunal, the principle of the case of Dean vs. Nelson has been materially modified; and the doctrine as last announced, in Ludlow vs. Ramsay, 11 Wall., 581 , is, that notice by publication is effectual, when duly authorized and regularly given, as against a party voluntarily absenting himself from his home within the Federal or Union lines, and going into the Confederate lines to engage in hostilities against the government of his domicil. The Court say, át p. 589 of the Report: “But if, as in this case, a party voluntarily leaves his country or his residence for the purpose of engaging in hostilities against the former, he cannot be pérmitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of his inability to return or to hold communication with the place