ALIEN-ENEMY-AT-LAW.

Auckland Star, Volume L, Issue 167, 15 July 1919, Page 5

ALIEN-ENEMY-AT-LAW.

COULD NOT HOLD SHARES. COMPANY'S CLAIM FAILS. An interesting judgment concerning the rights of enemy aliens to sue and be sued was given in the Magistrate's Court by Mr J. \V. Poynton, S.M., this morning. The ease was that in which the British Petroleum Development Co., Ltd. (Mr lnder), proceeded against Henry Ranisch and Beatrice Kanisch (Dr Fitchett) for allotment moneys on shares in a company. The defendant Kanisch, the judgment stated, "was born in Bohemia, his parents being Austrian subjects, and was naturalised in New Zealand. His wife was of British parentage. They applied separately for tshares in a registered company" and paid deposits of £G2 10/ on his part for 500 shares, and £12 10/ on his wife's part for 100 .-hares. This was on January 21, 1918. The defendants were now being sued for 7/(i per share allotment moneys. The defence set up was that the defendant Kanisch, being an alien enemy, could not hold snares in any company in New Zealand, and hie wife, who wae also an alien enemy by virtue of her marriage with hiru, was in the same position. The defendants further coun-ter-claimed for the amounts paid by them as deposits on the shares. Hie Worship held that although for many years naturalised in New Zealand, the defendant was deemed to be an alien i enemy by emergency war legislation, and as such was forbidden to hold shares on stock in a company in New Zealand. This also applied to his wife, so that neither could be made to pay the money claimed. In England, the judgment continued, an alien enemy could not sue in any Court, nor if sued, could he counterclaim. In New Zealand, the rights ot Austrian and German subjects to sue and defend actions are preserved by a proclamation that appeared in. the "Gazette" on August 19, 1914. The question to decide was whether this proclamation applied to tlie defendant, wlio had since then been, by emergency legislation, deemed to be an alien enemy. If not, a most peculiar position arose. Although a naturalised British subject, he and his wife are in a much more disadvantageous position than his countrymen who had not taken the oath ot allegiance to His Majesty. "I think that being deemed to be an enemy ■alien," his Worship continued, "he would be in the same position as other unnaturalised Austrian subjects in New Zealand, and that therefore both he and his wife can sue or counter-claim when sued. There remains the last question: Can the deposits be recovered? Aβ a rule money paid voluntarily with a full knowledge of the facts is not recoverable merely upon the ground that it was paid under a mistake as to the law, or as to the effect of the circumstances under which it was paid. But the circumstances in this case are different. Neither of the parties understood the ' position and could not be said to have known of the important fact that the contract was void ab initio, and not merely voidable. This was unlike some of the authorities on the point. It would be easy to bring' about restitutio in integrum. The company has the shares and can dispose of them. The defendants in no way deceived the company, but made a full disclosure of their position and did not, on finding out the legal position, persist in an illegal contract. It appeal's to mc, but not witaout conwderable doubt, that the money paid on these shares is recoverable. Judgment is for the defendants on both claims, and also on the counter-claim, I with costs on the full amount."

The security for appeal was fixed at £20.