COUNSEL: Lawson Walton, Q.C. (G. P. Macdonell, with him), for the defendants

Pollard, for the plaintiff

 

SOLICITORS: For defendants: Austin & Austin.

For plaintiff: Busk & Mellor.

 

JUDGES: Lawrance and Wright, JJ.

 

DATES: 1893 Nov. 22.

 

 

Limitations, Statute of – Personal Action – International Law – Ambassador, Immunities and Privileges of – Debtor – Absence beyond Seas – Service of Writ out of the Jurisdiction – 21 Jac. 1, c. 16 – 4 & 5 Anne, c. 16, s. 19 – 7 Anne, c. 12, s. 3 – Rules of the Supreme Court, 1883, Order XI.

 

Whilst the ambassador of a foreign State is in this country and accredited to the Sovereign, the Statute of Limitations (21 Jac. 1, c. 16) does not begin to run against his creditors.

 

The immunity of the ambassador of a foreign State from process in the Courts of this country extends for such a reasonable period after he has presented his letters of recall as is necessary to enable him to wind up his official business and prepare for his return to his own country, and he is not deprived of the immunity by reason that his successor is appointed before that period has elapsed. The Statute of Limitations does not begin to run against his creditors during such period.

 

By 4 & 5 Anne, c. 16, s. 19, where in certain specified actions a defendant is beyond the seas when the cause of action arises, the plaintiff shall be at liberty to bring his action after the defendant’s return, so that he brings it, after the defendant’s return, within the time limited by 21 Jac. 1, c. 16.

 

Order XI. of the Rules of the Supreme Court enables plaintiffs, by leave, in certain cases to serve a writ, or notice of a writ where the defendant is neither a British subject nor in British dominions, out of the jurisdiction:-

 

Held, that Order XI. has not the effect of annulling the right of a plaintiff, under 4 & 5 Anne, c. 16, to bring his action after the defendant’s return from beyond the seas within the time limited by 21 Jac. 1, c. 16.

 

SPECIAL CASE stated, under an order of the Court made by consent, in an action.

 

The action was brought by Musurus Bey, as executor of Musurus Pacha, deceased, claiming the delivery of certain Turkish bonds in the possession of the defendants, who were the executrix and executors of Paul Gadban, deceased.

 

The defendants consented to judgment for the plaintiff on the claim; but they counter-claimed, as such executrix and executors, and as assignees of W. C. Watson, for a debt of about 3000l. for money alleged to have been advanced by Paul Gadban and W. C. Watson to Musurus Pacha.

 

The plaintiff replied (inter alia) that the defendants’ claim was barred by the Statute of Limitations (21 Jac. 1, c. 16), and the facts stated in the special case were to be taken as admitted for the purpose of raising for the decision of the Court the question [*534] whether the debt for which the defendants counter-claimed was, or was not, so barred.

 

Those facts, so far as it is material to state them for the purposes of this report, were as follows:–

 

The plaintiff’s testator, Musurus Pacha, was ambassador from the Sultan of Turkey to Her Majesty the Queen from 1856 until December 7, 1885, when on presentation of his letters of recall he ceased to be such ambassador, being succeeded by Rustem Pacha in the same month. During all that time he resided in England, and he incurred the liabilities in respect of which the counter-claim was brought whilst exercising his ambassadorial functions, and prior to 1876. He continued residing in England from December 7, 1885, until the month of February, 1886. On leaving England, he went to Turkey, where he resided until his death in 1890.

 

More than six years elapsed after December 7, 1885, and after the month of February, 1886, before the bringing of the counterclaim. No writ was ever taken out by the defendants, either against Musurus Pacha or against the plaintiff as his executor, in respect of the subject-matter of the counter-claim, nor any other proceeding taken, until the bringing of the counter-claim.

 

Lawson Walton, Q.C. (G. P. Macdonell, with him), for the defendants. The debt in respect of which the defendants have counter-claimed is not barred by the Statute of Limitations. The statute, at any rate until the death of Musurus Pacha in 1890, never began to run against the defendants. Whilst he was the ambassador of a foreign State to the Queen, no writ could be issued against him, or process served upon him. That state of things continued until he presented his letters of recall on December 7, 1885, and after that date the same protection continued until his return to his own country in February, 1886, the interval being a reasonable time to allow him to settle his own private affairs in this country, to terminate and hand over to his successor the pending official business of the embassy, and generally to arrange for his return. After he returned the statute did not begin to run, because he was out of the jurisdiction. The ground of the immunity enjoyed by an ambassador from being [*535] sued in the Courts of the country to which he is accredited, is that he is out of the jurisdiction of those Courts. He is constructively “beyond the seas,” and the doctrine of extra-territoriality prevents him from being subject to process, because in the theory of international law he is under the protection of, and responsible solely to, his own Sovereign, and it would be an affront to his Sovereign if process were issued against the ambassador in the Courts of a Sovereign to whom he owes no allegiance. The protection extends for a reasonable time until he returns to his own country. Those propositions are laid down by various writers of authority on international law, of which the following may be referred to: Vattel’s Law of Nations (translated by Chitty), pp. 488, 491, 499; Bar’s Private International Law (translated by Gillespie, 2nd ed.), p. 1091, s. 520; Wheaton’s International Law (2nd ed. by Lawrence), p. 392. There are also authorities in the English Courts to the same effect. In Taylor v. Best (1), in an action brought against an ambassador, he appeared, pleaded, joined issue, and applied for a special jury to try the action. Afterwards he asked for a stay of proceedings on the ground of his privilege, and that application was refused, but only on the ground that he was estopped at that stage from setting up his privilege. That case, therefore, which may be relied on for the plaintiff here, is no authority that the action might have been brought against the ambassador in the first instance. The contrary was held, and the propositions above stated were affirmed, in Magdalena Steam Navigation Co. v. Martin. (2) Lord Campbell, in delivering the judgment of the Court, said(3): “The question raised by this record is, whether the public minister of a foreign State, accredited to and received by Her Majesty, having no real property in England, and having done nothing to disentitle him to the privileges generally belonging to such minister, may be sued against his will in the Courts of this country for a debt.” The Court held that he could not be sued. A person is “sued” by issuing a writ against him, and whether the writ be served upon an ambassador or not, there is equally an affront to the Sovereign whom he represents.

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94; 28 L. J. (Q.B.) (N.S.) 310.

 

(3) 2 E. & E. at p. 111. [*536]

 

[WRIGHT, J. In Duke of Brunswick v. King of Hanover (1) no one seems to have doubted that the Chancellor could issue a writ against the King of Hanover.]

 

That was a peculiar case because the King of Hanover was also a British peer, and he had land within the jurisdiction. The statute 7 Anne, c. 12, s. 3, is declaratory of the common law with respect to an ambassador’s immunity from process. Sect. 3 enacts “that all writs and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador .... or the servant of such ambassador .... may be arrested and imprisoned, or his or their goods or chattels may be distrained, seized, or attached, shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatsoever.” That statute has the effect of annulling the writ altogether. Lord Campbell, in Magdalena Steam Navigation Co. v. Martin (2), was of this opinion, because he says(3): “The writs and processes described in the third section are not confined to such as directly touch the person or goods of an ambassador, but extend to such as, in their usual consequences, would have this effect.” If no writ could be issued against the ambassador, then there was no “cause of action” within the Statute of Limitations (21 Jac. 1, c. 16), which by s. 3 makes the period of limitation begin to run from the “cause of such actions or suit.” It is essential to the existence of a cause of action that there should be a person capable of suing and a person capable of being sued: Douglas v. Forrest (4), judgment of Best, C.J, at p. 704; Flood v. Patterson (5); Boatwright v. Boatwright (6); Murray v. East India Co. (7), judgment of Abbott, C.J., at pp. 214, 215; In re Crosley, Munns v. Burn. (8) This is not a case to which Order VIII., r. 1, applies (which provides for the renewal of a writ when the defendant has not been served therewith). It is not a case in which there is a good cause of action, and therefore the writ can be issued, but there is no one on whom

 

(1) 6 Beav. 1; 2 H. L. 1.

 

(2) 2 E. & E. 94; 28 L. J. (Q.B.) (N.S.) 310.

 

(3) 2 E. & E. at p. 114.

 

(4) 4 Bing. 686.

 

(5) 29 Beav. 295.

 

(6) Law Rep. 17 Eq. 71.

 

(7) 5 B. & A. 204.

 

(8) 35 Ch. D. 266. [*537]

 

it can be served. Here there was no power to issue the writ at all.

 

Before Musurus Pacha left this country he was “beyond the seas” within the meaning of 21 Jac. 1, c. 16, s. 7 (which provides that plaintiffs who are “beyond the seas,” when the cause of action arises, may bring their action within the statutory period from the date of their return), and of 4 & 5 Anne, c. 16, s. 19, which provides that where a defendant is “beyond the seas” when the cause of action arises, the plaintiff “shall be at liberty” to bring his action within the statutory period from the date of the defendant’s return. The technical legal sense of the expression “beyond the seas” is capable of including the case of a person constructively out of the kingdom, though physically within it: see Her Highness Ruckmaboye v. Lulloobhoy Mottichund. (1) After Musurus Pacha left the country, the defendants clearly were under no obligation to sue in order to prevent the Statute of Limitations from barring their claim, because he was then undoubtedly beyond the seas, within 4 Anne, c. 16, s. 19. It will be contended that those provisions have been in effect repealed by Order XI., which enables a plaintiff, with the leave of the Court, to serve a notice of a writ out of the jurisdiction, where the defendant is neither a British subject nor in British dominions, and that the Statute of Limitations could have been saved by proceeding under rule 6 of that order. But it was never intended by Order XI. to cast upon creditors any new obligation with respect to the Statute of Limitations. The rules are intended to deal with procedure; the granting of leave to serve notice of a writ out of the jurisdiction is discretionary only, and the creditor is not bound to avail himself of the procedure in order to save the statute.

 

Pollard, for the plaintiff. The Statute of Limitations ran against the defendants whilst Musurus Pacha was still an ambassador – i.e., up to the time he presented his letters of recall. The privilege of an ambassador is personal only, protecting his person and his goods. He is capable of making a valid contract in the country in which he is ambassador. There

 

(1) 8 Moo. P. C. 4, at p. 20. [*538]

 

was nothing to prevent the defendants, or the persons whom they represent, from issuing a writ in respect of the debt which is the subject of the counter-claim, and renewing it from time to time so as to save the statute. The point did not arise in Magdalena Steam Navigation Co. v. Martin (1), because the action was brought against the ambassador, and he appeared in person and pleaded his privilege. If Lord Campbell in that case meant to say that no writ could be issued, his dicta in that respect were obiter; but the judgment, it is submitted, tends to shew that, in the opinion of the Court, there was no breach of the privilege of an ambassador in the mere issuing of a writ. The fair result of the judgment is that an ambassador cannot be “cited and impleaded” – as by service of the writ upon him and consequent proceedings – in the Courts of the country to which he is accredited. Lord Campbell says(2): “Mr. Bovill, being driven from his supposition that the writ in this case might be sued out only to save the Statute of Limitations, by the fact that it had been served upon the defendant, and by the allegation in the plea that it was sued out for the purpose of prosecuting this action to judgment, strenuously maintained,” &c. It is clear, therefore, that the question whether the statute could have been saved by merely issuing the writ, without serving it, was not intended to be dealt with. The fact that the writ had been served, and subsequent proceedings taken for the purpose of prosecuting the action to judgment, are the reasons given by Lord Campbell for holding that the plea of privilege was good. Again he says(3), in dealing with the statute 7 Anne, c. 12, which also only applies to proceedings against the person and goods of the ambassador: “The writs and processes described in the third section are not to be confined to such as directly touch the person or goods of an ambassador, but extend to such as, in their usual consequences, would have this effect. At any rate, it never was intended by this statute to abridge the immunity which the law of nations gives to ambassadors that they shall not, be impleaded in the Courts of the country to

 

(1) 2 E. & E. 94; 28 L. J. (Q.B.) (N.S.) 310.

 

(2) 2 E. & E. at p. 113.

 

(3) 2 E. & E. at pp. 114, 115. [*539]

 

which they are accredited. An argument was drawn from the course pursued in some instances of setting aside bail bonds given by persons having the privilege of ambassadors, or their servants, on filing common bail. This, perhaps, is as much as could reasonably be asked on a summary application to the court, but does not shew that the action may not be entirely stopped by a plea regularly pleaded to the jurisdiction of the Court.” This reference to the proceeding of setting aside bail bonds, on a plea to the jurisdiction raising a further point, shews that Lord Campbell thought that the mere issuing of a writ, unless there is an arrest or a seizure of the goods, is not a violation of the ambassadorial privilege. That part of the judgment could not have been given if the Court intended to decide that the writ could hot have been issued, though it were not served. The passage, also(1), in which Lord Campbell points out the consequences of allowing an ambassador to be impleaded shews clearly that his mind was directed only to the case of a writ issued and served and proceedings taken to prosecute the action to judgment. He says: “The trial may last many days, and his personal attendance may be necessary to instruct his legal advisers. Can all this take place without ‘coactio’ to the ambassador? Then, what benefit does it produce to the plaintiffs? There can be no execution upon it whilst the ambassador is accredited, nor even when he is recalled? if he only remains a reasonable time in this country after his recall.” The last sentence is obiter. If the privilege does extend to a reasonable time after the ambassador’s recall, it is only the personal privilege in respect of his person and goods specified in 7 Anne, c. 12. The judgments in Taylor v. Best (2) are also wholly inconsistent with the proposition that the mere issuing of a writ is a violation of the privilege. They establish that the privilege only exists where it is sought to compel an ambassador, “in invitum,” to engage in litigation which may ultimately result in the coercion of his person, or the seizure of his personal effects; but they assume that any proceeding which does not bring about those results may be taken against him. The judgments,

 

(1) 2 E. & E. at p. 114.

 

(2) 14 C. B. 487. [*540]

 

both in Taylor v. Best (1) and Magdalena Steam Navigation Co. v. Martin (2), were unnecessary if the mere issuing of a writ was a violation of the privilege. If Musurus Pacha himself had brought the action to recover these bonds, the bringing of the counter-claim could not have been a violation of the privilege, because he would have submitted himself to the jurisdiction of the Court. That proposition is established with respect to actions brought by a sovereign, than whom an ambassador has, at any rate, no higher privilege, and it is inconsistent with the theory that the mere filing of the counter-claim would be a violation of the privilege. The passages which were cited from the treatises of writers on international law have reference only to an ambassador’s immunity in respect of process which will affect his person or his goods. Douglas v. Forrest (3), and the other authorities cited to establish that there must be a person capable of being sued in order to constitute a cause of action, were cases in which there never had been a defendant within the jurisdiction, and they have no application to this case. As to the doctrine of extra-territoriality, if it applies, and if the contract must be taken to have been made out of the jurisdiction, it was still to be performed within the jurisdiction, and the defendants might have issued a writ, applied for leave to serve it out of the jurisdiction, and had it renewed from time to time, because it could not be served. But there are express decisions that the expression “beyond the seas” in 21 Jac. 1, c. 16, and 4 & 5 Anne, c. 16, must be taken literally; a person to whom it applies must be physically and in fact beyond the seas: King v. Walker (4); Strithorst v. Graeme. (5)

 

As to the period between the time when Musurus Pacha presented his letters of recall and his return to Turkey, it is submitted that the defendants clearly could have sued him. He was in England about two months after his successor was appointed, and there cannot be two ambassadors from Turkey in this country accredited and privileged at the same time. After Musurus Pacha’s return to Turkey, the defendants could have

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94; 28 L. J. (Q.B.) (N.S.) 310.

 

(3) 4 Bing. 686.

 

(4) 1 W. Bl. 287.

 

(5) 2 W. Bl. 723. [*541]

 

obtained leave to serve a notice of a writ upon him out of the jurisdiction under Order XI., and so have saved the statute. It is submitted that the statute 4 & 5 Anne, c. 16, must be taken to have been superseded by Order XI.

 

Lawson Walton, Q.C., replied.

 

WRIGHT, J., delivered the judgment of the Court (Lawrance and Wright, JJ.). My brother Lawrance desires me to state the conclusion at which we have arrived. As to the contention of the plaintiff’s counsel, that there could not be two persons at once entitled to the privilege of an ambassador, it appears to me not to be consistent with good sense, as applied to the facts of the present case, and to be inconsistent with Marshall v. Critico. (1) In that case, the person who claimed the privilege had, some months previous to his arrest, been dismissed by his Government from his appointment in this country, and his successor appointed. It was a much stronger case than this, yet no one suggested that the mere fact of there being two persons at the same time who claimed the privilege was an objection. Lord Ellenborough, in refusing to allow the privilege, did it simply on the ground that the State by whom the ambassador was accredited had dismissed him from his office, and, therefore, that he was disentitled to claim the privilege of an ambassador. The existence of the general privilege of an ambassador – namely, that he is exempted from being sued in the Courts of the country to which he is accredited – has not been seriously contested. It was said that there is no English authority for the proposition that the privilege continues until the return of the ambassador to his own country, or, at any rate, so long as he is reasonably and properly occupied in winding up the affairs of his embassy and preparing to return there. We think that there is sufficient authority in the text-books which were cited to shew that the privilege may continue in the manner which the defendant’s counsel contended for; and, even if there were no authority to that effect, we should come to the same conclusion on

 

(1) 9 East, 447. [*542]

 

principle. In Taylor v. Best (1), however, the proposition was suggested in argument, and supported by the authority of an American case, Dupont v. Bichon (2), where it was held, by the Supreme Court of Pennsylvania, that a chargé d’affaires is entitled to privilege from arrest until his return to his own country, although he has been for some months superseded by a minister plenipotentiary, the delay of the chargé d’affaires in returning to his own country being occasioned by official business. It is to be observed that in Taylor v. Best (1) the Court did not dissent from that proposition when it was suggested to them. Further, we do not thing there is anything in the facts stated in the special case to rebut the presumption that the privilege continued until the return of Musurus Pacha to his own country. With regard to the important question raised as to the Statute of Limitations, it seems really to depend upon what is the proper view to take of three cases: Douglas v. Forrest (3), Taylor v. Best (1), and Magdalena Steam Navigation Co. v. Martin. (4) To some extent, the point raised to-day is new. It is this: Admitting that Musurus Pacha, whilst he retained his privilege, could not have been sued to judgment or execution, still it is said that a writ could have been issued against him for the purpose of avoiding the application of the Statute of Limitations, and, therefore, that the statute began to run whilst he was in England. We think, on the whole, that we ought to follow the indication of opinion of Lord Campbell in Magdalena Steam Navigation Co. v. Martin (4), to the effect that the statute 7 Anne, c. 12, prohibits and makes null and void the issue of any writ or process against an ambassador, and not merely writs or processes in the nature of writs of execution. We think, also, that the view taken by Best, C.J., in Douglas v. Forrest (3) is applicable. He says (at p. 704): “Cause of action is the right to prosecute an action with effect; no one has a complete cause of action until there is somebody that he can sue;” and it seems to us that, so long as the debtor is in the position that nothing can be done against his person or his

 

(1) 14 C. B. 487.

 

(2) 4 Dallas, 300.

 

(3) 4 Bing. 686.

 

(4) 2 E. & E. 94; 28 L. J. (Q.B.) (N.S.) 310. [*543]

 

goods, a writ cannot be issued against him in such a sense that he could be sued with effect. For these reasons, we are of opinion that the Statute of Limitations did not begin to run during the time Musurus Pacha was in England.

 

Another point, to my mind of still more importance, was made for the plaintiff. Musurus Pacha, after his return to Turkey in February, 1886, was beyond the seas until the date of the defendants’ counter-claim, and therefore, primâ facie, the statute would not, during that time, begin to run against the defendants. It was argued, however, that by reason of the jurisdiction given, or given effect to, by Order XI. of the Rules of the Supreme Court, it would have been possible at any time since 1883, when Order XI. came into force, to issue a writ for service out of the jurisdiction, and obtain leave to serve it, or a copy of it, upon the ambassador out of the jurisdiction. It was said that, if this had been done, Musurus Pacha would have been bound, at any rate in regard to any assets he had in this country, by a judgment obtained against him, and that the Statute of Limitations could have been saved. We were invited to hold that Order XI. ought to be so construed as to nullify the effect of 4 & 5 Anne, c. 16, s. 19, which, in favour of plaintiffs, suspends the running of the Statute of Limitations whilst the defendant is beyond the seas. We have come to the conclusion that we ought not to hold that Order XI. was intended to nullify that long-established right of plaintiffs. We do not consider it necessary or proper in this case to attempt to settle what is the precise effect of giving leave to serve notice of a writ upon a foreigner out of the jurisdiction. That question in its relation to the statute of Anne may be a very difficult one to determine. In the absence of any authority on the point, we are of opinion that we ought not, in this Court, to hold that Order XI. has the effect contended for of altering the rights of plaintiffs under the statute of Anne, but that we ought to leave it to the Court of Appeal to hold, if necessary, that so important a change has been effected by the giving, under Order XI., of what is apparently intended to be an auxiliary, rather than an original, jurisdiction.

 

We are, therefore, of opinion that the Statute of Limitations [*544] has not run out as against the defendants in respect of their counter-claim, and that upon the question now before us for our determination there must be judgment for the defendants.

 

Judgment for the defendants on the question of the Statute of Limitations; case left part heard on other questions.(1)

 

(1) The case was left part heard because there appeared to have been some misunderstanding between counsel for the respective parties as to whether other points of law raised by the pleadings should, or should not, be determined on the argument of the special case, and the Court thought that further time should be given to enable the facts necessary to raise those points to be agreed upon, if possible, and inserted in the special case.