The subjects of countries at war with our's, have no persona standi here.
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Stephen Arnauld merchant in Rouen, and Gordon his factor, pursue Wiliam Boick, merchant in Edinburgh, for the price of a parcel of hats, and some counterfeit pearl sent home to him. Boick alleged, The Caudebeck hats were disconform to his commission, and not of the size and fineness required; and therefore, by the ædilitium edictum, he ought to take them back again, or actione quanti minoris deduct proportionally a part of the price. Answered, He could not reclaim now, seeing he had accepted them without any protestation or complaint, and paid for them at the custom-house at Leith, and had disposed and sold of the hats. And this being admitted to the pursuer's probation, and coming in this day to be advised; Boick alleged, No process at Arnauld's instance, because, being a subject of the French King's, with whom we are at war, they can pursue no action during the dependence and continuance of the war; for hostes publici, as they have not jura commerciorum, so neither have they legimam personam standi in judicio, nor jus persequendi actiones. And, if this were the cause of a Scotsman pursuing a Frenchman before the Parliament of Paris, he would not only be denied action, but the sum would be confiscated to the public; which is not here craved. Answered, Whatever the authors of the war may deserve, or merchants may suffer by captures of their ships and goods at sea, yet it is hard to extend it to private persons craving their just debts, the denying whereof is against the faith of trade; and by the late act of Parliament 1703, allowing an indirect trade with France for importation of wines, this rigour seems to be dispensed with. The Lords refused to sustain process at the French merchant's instance. Then Gordon produced a bill of exchange giving him right to the sum, which the Lords likewise repelled; because the summons was not pursued in his name on that proper right of his own, but only as factor for Arnauld, and would not let him transform his summons thus by way of reply.
Fol. Dic. v. 2. p. 84. Fountainhall, v. 2. p. 230.
