January 25.
Judge Brooke,
delivered the opinion of the court.
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 *276been greatly mitigated, especially as to non-combatants, the decisions of courts against alien enemies, have been less rigid. In the case of Clarke vs. 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 j 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.