
    Samuel Parkinson versus Philip Wentworth, Jun.
    A plea of alien enemy should show either that the plaintiff is an alien born, and here without safe conduct, or, if a citizen, that he is resident with the enemy; and it should pray judgment that the action be barred until, &c.
    To an action of assumpsit in the Common Pleas, July term, 1812, the defendant filed the following plea jotezs darrein continuance, viz.; “ And now the said P., by his attorney, comes and defends, &c., and says that the said S. to his said action ought not to be answered, because he says that, since the last imparlance of the said action, viz., on the 18th day of June, in the year of our Lord 1812, the United, States of America declared war against his majesty George the Third, king of the united kingdom of Great Britain and Ireland, which war still continues; that the said S. is an alien, and a subject of, and under allegiance to, the said king, now an enemy to the United States; and the said S. is to this same enemy adhering. And this, &c., wherefore,” &c.
    The plaintiff demurred specially to the said plea, assigning these causes,— 1. “ That the said plea begins and concludes in abatement, whereas it should have begun and concluded in bar; 2. That it is not alleged in said plea that the plaintiff is not under protection of the government of the United States, and without safe conduct from the same, or that he is living without the United States.”
    
      G. Sullivan for the plaintiff.
    
      Selfridge for the defendant.
   By the Court.

The plea is certainly bad in point of form. It should have concluded by praying judgment that the plaintiff be barred of his action until, &c. The plea ought also to have averred, either that the plaintiff was alien born, and here without protection or safe conduct from the United States, or, if not an alien born, that he was resident with the enemies of the United States.

* Since, however, the point is of a public nature, the [ * 27 ] defendant may plead anew, paying costs of the action to this time. 
      
      
         If a neutral become an enemy pending the suit, this should be pleaded in abatement, as it only suspends the action. — 1 Chitty, 514, 7th ed. — 3 Chitty, 911. — 15 East, 260. — Harmer vs. Kingston, 3 Camp. 153. — Levine vs. Taylor, 12 Mass. Rep. 8. — Hutchinson vs. Brock, post, 119. — Langdon § Al. vs. Potter, post, 113. — It seems the plea in many cases may be either in bar or in abatement. — 1 Chitty, 481 514.—3 Chitty, 911, 7th ed.
     