Opinion
01-25-1823
Bagwell v. Babe
Nicholas, for the appellant. Leigh and Upsher, for the appellee.
[Syllabus Material]
SYLLABUS
This was an action of assault and battery brought in the county court of Accomack, by George Babe against Charles Bagwell.
The declaration is in the usual form. The defendant filed two pleas: First, " that he, the said George, at the time of issuing the original writ of him, the said George, in this cause, was a subject of the King of Great Britain, then waging and carrying on war against this state, and the citizens thereof; and this, he the said Charles is ready to verify."
The second plea is, that as to the coming with force and arms, and also as to the battery and wounding aforesaid of him the said George, the said Charles is not guilty; and as to the residue of the trespass, assault and imprisonment, that he the said Charles was duly commissioned lieutenant colonel commandant of the 99th regiment of militia in the county of Accomack; and the said George Babe being a subject of the King of Great Britain, then at war with the United States, and the said George Babe not having become a citizen of the United States, " and being a suspicious man, who the said Charles Bagwell judged would have carried information of the military strength of his regiment to the enemy, at that time hovering on and near to the limits of the said 99th regiment, the said Charles, by virtue of his authority as commanding the said regiment, gently laid his hands upon the said George, and arrested him, and took his body in custody and detained him in execution, until he was discharged; which is the residue of the trespass, assault, and imprisonment aforesaid, & c."
The plaintiff demurred to the first plea, and concludes his demurrer by saying 'and for cause of demurring in law to the said plea, the said George Babe sheweth to the court here the cause following, to wit: that long before the declaration of the present war between the United States of America, and the Kingdom of Great Britain, viz: in the year, he the said George, migrated from the Kingdom of Great Britain aforesaid, to the United States of America; and has constantly resided in the United States of America since that time to the present day; and this he is ready to verify."
As to the second plea, the plaintiff replied, that the said Charles did not arrest and imprison the said George, for the cause and in the manner, as he in pleading hath above alleged.
The defendant joined in demurrer to the first plea, and joined issue on the replication to the second plea.
On the trial of the issue in fact, the jury found a verdict for $ 225 damages; and the court sustained the demurrer to the plea of alien enemy. The court gave judgment accordingly for the plaintiff, and the defendant appealed to the superior court of law for the county of Accomack.
The superior court affirmed the judgment of the county court; and the defendant appealed to this court.
Nicholas, for the appellant.
Leigh and Upsher, for the appellee.
It was contended for the appellant, that the court erred in sustaining the demurrer. The plea of alien enemy is a good and valid defence. The demurrer is a general one, and therefore no exception can be taken to the form of the plea. But the demurrer itself is irregular, because it brings forward a new matter of fact, viz: that the plaintiff was commorant in this country before the war; which is wholly incompatible with the idea of a demurrer. But, even if this fact were regularly pleaded, it could afford no protection to the plaintiff, from arrest. As an alien enemy he is liable to arrest, unless he is protected by a safe conduct, and without it, he will not be protected. When a plaintiff, by his replication, means to rely on a special license to remain in the country, he ought to allege that fact specially. He ought to have replied that fact, instead of demurring.
1 Bac. Abr. 139.
Wills v. Williams, 1 Ld. Raymond, 282.
1 Chitty's Plead. 550.
The counsel for the appellee admitted that the plea of alien enemy applies to all sorts of actions, whether real, personal, or mixed; but, an alien enemy coming into the commonwealth under a safe conduct, may maintain a personal action; or, if he come hither by license of government, and live under its protection, and war afterwards break out, he may maintain such action; otherwise, if he be commorant in his own country. By license, is not meant an express license in each individual case; but general permission. If this be not doubted in England, much less can it be doubted here, where our laws, state, and federal, give aliens in time of peace, not only permission to come to our country, but an invitation to come, and promise them the utmost favor.
Co. Litt. 128.
Wills v. Williams, 1 Salk. 45; 1 Ld. Raym. 282.
Daubigny v. Davallon, 2 Anstr. 467.
It was formerly a question, whether the plaintiff must set forth, in his replication to the plea of alien enemy, the facts which entitled him, though an alien enemy born, to sue; or whether the defendant must, in his plea, set forth all the facts which negative the plaintiff's right to sue. But it is now settled, that in such case, the defendant must plead all the facts that negative, and the plaintiff is not driven to reply the facts that sustain his right of suing. " The plea" (says Lord Kenyon,) " must negative every presumption, that can arise in favor of the plaintiff's right to sue; as, that he came without a safe conduct, & c."
1 Chitt. Plead. 238; Casseres v. Bell, 8 T. R. 166.
The coming without safe conduct, is put for illustration; the plea, for the same reason, should state that the alien came, and remains without license or permission; and so the approved form of pleading alien enemy, is, that the plaintiff came into the country, and still remains, without letters of safe conduct, and without license or permission; or, that he is living out of the commonwealth, in his own country, adhering to the enemy.
2 Chitt. Plead. 425, 6.
The plea in this case, therefore, is clearly naught. It only states, that the plaintiff was a subject of the King of Great Britain, and an alien enemy, that nation being then at war with our's; without stating, that he came and remained here without a safe conduct, and without license or permission, or that he was commorant in his own country, adhering to our enemy.
The demurrer to the plea is general, though it affect to set forth a special cause; which, however, exactly indicates the defect of the plea.
OPINION
Brooke, Judge.
The court is of opinion, that the superior court correctly sustained the demurrer of the plaintiff, to the first plea of the defendant. Since the consequences of war have been greatly mitigated, especially as to non-combatants, the decisions of courts against alien enemies, have been less rigid. In the case of Clarke v. Morey, the cases have been well reviewed. The plea in the case before the court, does not negative nor affirm all the facts, that were necessary to bar the plaintiff's action. It does not negative the license of the plaintiff to remain in the country, by virtue of the act of Congress, entitled, an act respecting alien enemies; nor does it affirm, that he had been ordered off by the executive of the United States, in pursuance of that act. Until such order, the act gives permission to the alien to remain, though his sovereign be at war with us. The other issues being found for the plaintiff, the judgment is to be affirmed.
10 Johns. Rep.