COUNSEL: Pollard, for the plaintiff

Lawson Walton, Q.C., and G. P. Macdonell, for the defendants.

 

SOLICITORS: For plaintiff: Busk & Mellor.

For defendants: Austin & Austin.

 

JUDGES: A. L. Smith and Davey, L.JJ.

 

DATES: 1894 May 23.

 

 

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 Anne, c. 16, s. 19 (Folio Edition, 4 & 5 Anne, c. 3) – 7 Anne, c. 12, s. 3 – Rules of the Supreme Court, 1883, Order XI.

 

The immunity of an ambassador from process in the Courts of this country extends not merely to the time during which he is accredited to the Sovereign, but to 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 duly accredited before that period has elapsed.

 

While the immunity of an ambassador from process exists, it is not competent for any person to sue out a writ against him (even though it be not served) or to renew such a writ if issued, and consequently the Statute of Limitations does not begin to run against his creditors during such period.

 

Order XI. of the Rules of the Supreme Court which enables plaintiffs, by leave, in certain cases to serve a writ, or notice of a writ, out of the jurisdiction where the defendant is neither a British subject nor in British dominions, has not the effect of annulling the right under 4 Anne, c. 16, to bring an action against a person after his return from beyond the seas within the time limited by 21 Jac. 1, c. 16.

 

APPEAL from a judgment of the Queen’s Bench Division, reported [1894] 1 Q. B. 533, on a special case stated under an order of the Court made by consent in an action. [*353]

 

The principal question was as to the right of the plaintiff, as executor of Musurus Pacha, to set up the Statute of Limitations in answer to a claim by the defendants for money lent by them to Musurus Pacha while ambassador in London, accredited by the Sultan of Turkey to and received by Her Majesty as such.

 

The facts on which the claim was based are stated in the judgments of the Lords Justices.

 

1894. May 10. Pollard, for the plaintiff, in support of the appeal.

 

Lawson Walton, Q.C., and G. P. Macdonell, for the defendants.

 

Cur. adv. vult.

 

 

1894. May 23. A. L. SMITH, L.J.,, read the following judgment. This is an appeal from the judgment of my brothers Lawrance and Wright(1), who held that the executor of Musurus Pacha could not set up the Statute of Limitations in answer to a claim, made against him by Messrs. Gadban & Watson, for money lent by them to his testator nearly twenty years ago, viz., in the year 1873. Musurus Pacha, for some thirty years prior to December 7, 1885, on which day he presented his letters of recall, was ambassador in London accredited by the Sultan of Turkey to and received by Her Majesty as such.

 

He left England two months afterwards, viz., in February, 1886, having been engaged during the interval in winding-up and handing over his official business, and settling his own affairs. He then returned to Turkey, where he resided until his death in 1890, having appointed the plaintiff his executor.

 

It must be taken, for the purposes of this case, that in the year 1873 Musurus Pacha, whilst ambassador in London, borrowed of Messrs. Gadban & Watson, who were then trading in partnership, the sum of 3107l., and that this debt has never been paid.

 

After the death of Musurus Pacha his executors, in the month of November, 1891, came to this country, and engaged Mr. Gadban to collect certain bonds of the nominal value of 28,000l., and other moneys belonging to the estate of his testator, and this action is brought, the writ being issued on October 12, 1892,

 

(1) [1894] 1 Q. B. 533. [*354]

 

to recover from Mr. Gadban’s executors the bonds and moneys which Mr. Gadban had collected in his lifetime pursuant to his agreement with the plaintiff.

 

Mr. Gadban’s executors do not dispute that they are in possession of these bonds and moneys; but they assert that they are, as against the plaintiff, who as executor is suing them in this country, entitled to be paid the 3107£. lent in 1873, which is still unpaid; and the real point in this case is whether the debt of Musurus Pacha is or is not barred by the Statute of Limitations.

 

It cannot be disputed, as this debt of 3107£. was contracted in this country in 1873, and as the present claim to be paid it (whether raised by counter-claim or independent cross-action is immaterial) was not raised till December, 1892, that primä facie the Statute of Limitations is an answer, for the six years would have run out in 1879; but this is an exceptional case, and it is said that, as Messrs. Gadban & Watson had no cause of action against Musurus Pacha for the money lent in 1873 before he left this country in February, 1886, for until then he was not capable of being sued in the Courts of this country, he being an ambassador thereto, and as since then he has continuously lived beyond seas, the Statute of Limitations did not begin to run until his executor took these proceedings in this country.

 

Mr. Pollard, who argued the case for the plaintiff, the executor of the ambassador, having strenuously urged the technical point raised in the amended special case(1), proceeded to minimise as best he could the recognised privileges and immunities of an ambassador accredited to this country.

 

He did not assert, for this would have been useless, that Musurus Pacha could have been effectively sued during the period he was de facto ambassador in London, for the case of Magdalena Steam Navigation Co. v. Martin (2), which has never since been doubted, settled that he could not, as during that period he was exempt from the jurisdiction of the Courts of this country.

 

He said, however, and in this I agree, that no case had actually

 

(1) So much of the judgments as related to this point has been omitted.

 

(2) 2 E. & E. 94. [*355]

 

decided that a writ could not be sued out against an ambassador, if it were not served, and he asserted that this unserved writ, as I will call it, might have been sued out prior to 1879 by Messrs. Gadban & Watson, and kept alive by renewal every six months until Musurus Pacha ceased to be ambassador and became a private gentleman in 1886; and that the Statute of Limitations began to run from the date when this unserved writ might have been sued out, which constituted a cause of action, which was long prior to six years before the making of the present claim.

 

He also argued, if wrong as to this, that Musurus Pacha could have been effectively sued to judgment by suing out and serving a writ upon him during the two months between December 7, 1885, and February, 1886, whilst he was making ready to leave this country, and that a cause of action arose then which was also more than six years prior to the present claim; and lastly, he said, even if wrong upon both these points, and no cause of action arose until after Musurus Pacha had left the country in February, 1886, a cause of action arose then, for Musurus Pacha, after his return to Turkey, might have been sued by Messrs. Gadban & Watson by means of the procedure which permits notice of a writ to be served upon a foreigner resident out of the jurisdiction for breach of contract to be performed within it (Order XI.), and that the cause of action therefore arose in February, 1886, which was more than six years before the present claim; so, whichever way it was taken, he said a cause of action had arisen to Messrs. Gadban & Watson more than six years before they set up their claim to the 3107£. in 1892, and therefore it was statute-barred.

 

There are three statutes applicable to this case.

 

The 21 Jac. 1, c. 16, s. 3, which enacts that all actions of debt shall be commenced and sued within six years after the cause of action and not after, with an exception in sect. 7 that plaintiffs if beyond seas may bring such actions within six years after their return.

 

The 4 & 5 Anne c. 3, s. 19(1), which enacts that if persons are beyond seas at the time of the accrual of the cause of action against them, plaintiffs shall be at liberty to bring such actions

 

(1) Ruffhead, 4 Anne, c. 16. [*356]

 

within six years after the defendant’s return from beyond seas; and, lastly, the 7 Anne, c. 12, which by s. 3 declares that “all writs and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador, authorized and received as such by Her Majesty, her heirs or successors, may be arrested and imprisoned, or his goods and 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.”

 

The writs and processes mentioned in the Act 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 as was held in the Magdalena Steam Navigation Co. Case (1) above cited. This case renders it unnecessary to resort to text-writers, and to other cases prior thereto, for it lays down in clear and unambiguous language the principles upon which an ambassador is free from being impleaded in the Courts of this country.

 

Lord Campbell, in delivering the considered judgment of the Court of Queen’s Bench, which consisted of himself, Wightman, Erle, and Crompton, JJ., used this language of an ambassador: “He does not owe even a temporary allegiance to the sovereign to whom he is accredited, and he has at least as great privileges from suits as the Sovereign whom he represents. He is not supposed even to live within the territory of the Sovereign to whom he is accredited, and, if he has done nothing to forfeit or to waive his privilege, he is for all juridical purposes supposed still to be in his own country.” These being the principles upon which an ambassador is independent of the civil jurisdiction of the country to which he is sent, in my judgment it is clearly inconsistent with them to hold that an ambassador, who has at least as great privileges of exemption from suits as the Sovereign whom he represents, can, even apart from the 7 Anne, c. 12, have a writ sued out against him commanding him in the name of Her Majesty to appear in her Courts to answer the claim of one of her subjects, even although such writ is not to be served.

 

Moreover, what jurisdiction is there to sue out a writ in the

 

(1) 2 E. & E. 94. [*357]

 

form of a writ for service in this country against a Turk resident in Turkey, or to serve such a writ upon a Turk in Turkey? And yet this was and is the true legal position of Musurus Pacha, from the date he first became an ambassador in London till he died in Turkey in 1890.

 

If, however, such a writ were sued out, in my judgment it could not be renewed from six months to six months as proposed in this case, for such a renewal is only to be had when the Court or judge is satisfied that reasonable efforts have been made to serve the defendant, or for other good reason (Order VIII., r. 1.) This order clearly contemplates the case where there is a defendant capable of being sued and served when the writ is issued, but who cannot be found, or there is some other good reason for the renewal of such a writ, and it does not apply to a case like the present when there is no such defendant at all when the writ is sued out. In my opinion, when the Court or judge ascertained that the writ which they or he were asked to renew had been sued out against an ambassador accredited at the time to this country, their duty would be to refuse the application for renewal, and to hold that the writ, as in my judgment it would have been, had been improvidently issued.

 

I am aware that it may be said that this view may work a hardship upon a creditor of an ambassador, and that therefore there is “good reason” for granting the renewal; but in my opinion the true answer is given by Lord Campbell in the above-named case(1), that “those who cannot safely trust to the honour of an ambassador, in supplying him with what he wants, may refuse to deal with him without a surety, who may be sued; and the resource is always open of making a complaint to the government by which the ambassador is accredited.”

 

For these reasons, in my judgment, it is not competent either to sue out a writ against an ambassador, even though it is not to be served, or to renew it, and therefore Messrs. Gadban & Watson had no cause of action against Musurus Pacha prior to December 7, 1885, when he presented his letters of recall. There is another ground which is also fatal to the contention of the plaintiff. It has been held that as on the one hand there

 

(1) Magdalena Steam Navigation Co. v. Martin, 2 E. & E. 94, at p. 115. [*358]

 

cannot be a cause of action within the meaning of the Statute of James from which the six years will commence to run unless there be a person in existence capable of suing (Murray v. East India Co. (1)), so on the other hand there can be no such cause of action until there is somebody who can be sued: Douglas v. Forrest. (2) “Cause of action,” says Best, C.J., “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.” As Messrs. Gadban & Watson had no such person, at any rate down to December 7, 1885, the statute had not commenced to run before that date.

 

As to the second point, viz, that Messrs. Gadban & Watson had an effective cause of action against Musurus Pacha during the two months between December, 1885, and February, 1886, in my judgment it was decided in the Magdalena Steam, Navigation Co. Case (3) that this is not so. It was there held that there could be no execution against an ambassador while he is accredited, nor even when he is recalled, if he only remains a reasonable time in this country after his recall, and that is precisely what Musurus Pacha did in the present case. During these two months Musurus Pacha was in the same position as he was ill before his recall as to immunity from being sued. It was said that this was obiter. I do not think so; but, even if it be, in my judgment, considering the position of an ambassador, it is good law and sound sense. This point therefore fails the plaintiff.

 

I now come to consider the last point. It cannot, I think, be doubted that the Queen’s Bench Division correctly held that the 4 and 5 Anne c. 3, s. 19, which suspends the running of the Statute of Limitations, if the cause of action occurred whilst the defendant was beyond seas, till he returns, is an enactment passed in favour of plaintiffs, as indeed is s. 7 of the Statute of James, though now restricted by s. 10 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97). It is in my judgment impossible to hold that a rule of practice and procedure, which Order XI. is, repeals the provisions of a statute. By the

 

(1) 5 B. & A. 204, at p. 214.

 

(2) 4 Bing. 686, at p. 704.

 

(3) 2 E. & E. 94. [*359]

 

4 & 5 Anne, c. 3, s. 19, plaintiffs in the position of Messrs. Gadban & Watson are to have six years after their debtors return from beyond seas in which to prosecute their claims. If Order XI. is to be read as repealing the statute, in my judgment it must at the same time be held to be ultrö vires; but the truth is that this order does nothing of the kind. It gives the Court or a judge, in its or his discretion, power to allow service of a writ of summons, or notice of a writ out of the jurisdiction, in certain specified cases; but this rule in no way conflicts with the statute, which enacts that if a cause of action accrues against a person beyond seas the plaintiff shall have six years, within which to bring his action, after the defendant’s return. The rule has nothing whatever to do with the privilege conferred by the 4 & 5 Anne upon plaintiffs. In the case of Wilding v. Bean (1) which was cited, the Court were not dealing with a case like the present, and the dictum of the Master of the Rolls, reported in 64 Law Times Reports, 41, that the plaintiff was entitled to keep the writ alive upon the chance of his eventually finding the defendant in this country, does not appear in the LAW REPORTS; but even if it did it is not applicable to the present case.

 

For these reasons the last point also fails the plaintiff. The Queen’s Bench Division were in my judgment right when they held that the plaintiff could not set up the Statute of Limitations to the claim of Messrs. Gadban & Watson. This appeal must be dismissed with costs.

 

DAVEY, L.J., read the following judgment. In this action the plaintiff, who is the executor of Musurus Pacha, sues to recover from the defendants, who are the executors of Paul Gadban, certain bonds deposited with their testator and a sum of money due from them in respect thereof. The plaintiff’s cause of action is admitted, and under the consent order of Kennedy, J., of February 28, 1893, the bonds and sum of money have been brought into Court “to abide further order by judge at trial of counter-claim.”

 

The order also contains the following: “The defendants

 

(1) [1891] 1 Q. B. 100. [*360]

 

consent also that judgment is to be entered for the plaintiff on the action for the delivery to him of the said bonds and 158£. 15s. 10d. and costs, but on condition that the bonds and money in Court shall be applied so far as may be necessary towards the satisfaction of such judgment (if any) as the defendants may recover in the said counter-claim.” That counter-claim is for 3107£., moneys alleged to have been advanced by Paul Gadban and William Clarence Watson, formerly trading in co-partnership, prior to the year 1874, in defence to which the plaintiff relies on the Statute of Limitations. The principal question which has been argued before us is whether the debt claimed is barred by the statute.

 

The question is a curious one, and of some general interest. Not the least singular feature is that it is the representative of the ambassador who wishes to limit and minimise the privilege. I need not recapitulate the facts relating to Musurus Pacha which have been fully stated by my learned brother. On those facts Mr. Pollard contends: (1.) That to issue a writ without serving it would have been no breach of the ambassador’s privilege, and that, therefore, a writ might have been issued for the purpose of saving the statute, and have been renewed from time to time.

 

(2.) That at any rate during the two months or more that Musurus Pacha remained in this country after his recall the writ might have been issued and served.

 

(3.) That after his return to Turkey the writ might have been served on him abroad under Order XI., and that, therefore, the statute began to run from at least that time, or (in other words) that Order XI. has had the effect of repealing the provisions of 4 Anne, c. 16, s. 19.

 

I am against the argument on each of these contentions.

 

With regard to the first, it is in my opinion sufficient to refer to the 3rd section of 7 Anne, c. 12, which makes all writs and processes, whereby the person of any ambassador or other public minister may be arrested or imprisoned, or his goods and chattels may be distrained, seized, or attached, utterly null and void.

 

It has been decided in Magdalena Steam Navigation Co. v. [*361] Martin (1) that this section applies not only to writs of execution against the property or person of a privileged person, but also to writs which lead up to and would in ordinary course have the consequence of attaching his goods or person. If so, I am of opinion that a writ of summons in an action is of that character, and that the effect of the statute (which is said to be declaratory only of the common law) is to make such a writ void and of no effect. Mr. Pollard is quite right in saying that the writ had been served in the Magdalena Case (1), and that all that it was necessary to decide was that that service was bad. But the grounds upon which the decision was based in Lord Campbell’s judgment go beyond that point, and in my opinion shew a total want of jurisdiction of the Court to entertain the action at all. Lord Campbell, at p. 111, states the principle to be that for all juridical purposes an ambassador is supposed still to be in his own country, and he concluded his judgment in these words: “It certainly has not hitherto been expressly decided that a public minister duly accredited to the Queen by a foreign State is privileged from all liability to be sued here in civil actions; but we think that this follows from well-established principles.” These passages, in my opinion, correctly state the legal principles on which the exemption is founded, and are in accordance with the course of decisions in our Courts: see, for example, the latest case of The Parlement Belge (2) in the Court of Appeal, in which it was said (I am reading from the marginal note, which is fully borne out by the judgment) that as a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign State to respect the independence of every other sovereign State, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory. I am unable to think that the issue of a writ in an action which action the Court has no jurisdiction to entertain,

 

(1) 2 E. & E. 94.

 

(2) 5 P. D. 197. [*362]

 

and which writ, therefore, the Court has no jurisdiction to issue, can prevent the statute running.

 

I agree with and will not repeat what has been said by my learned brother on the practical difficulty of supposing that the leave of the Court would be given to the renewal of such a writ.

 

I am therefore of opinion that Gadban & Watson, or Gadban or his executors, could not have properly issued a writ against Musurus Pacha or (in other words) had no right of action against him while he was ambassador. The doubts suggested in Taylor v. Best (1) cannot in my opinion be supported.

 

The answer to the next point, that the writ might have been served on Musurus Pacha while he was still in this country, is given by Wright, J., and in addition to the authority cited by him I may refer to Lord Campbell’s judgment in the Magdalena Case (2), in which he says of such a writ (p. 114): “There can be no execution upon it while the ambassador is accredited, nor even when he is recalled, if he only remains a reasonable time in this country after his recall.” Paragraph 2 of the reply avers that “Musurus Pacha remained in England only for the purpose of making the necessary preparations for his departure, and no longer than was necessary for the purpose.” Nothing to the contrary is stated in the special case, and there is nothing from which we can infer that he stayed longer than a reasonable time. I am therefore of opinion that the privilege continued until his return to Turkey, as it appears to me it would be almost an outrage on common sense to say that the privilege ceases the moment he has presented his letter of recall. In handing over the affairs of the embassy to his successor the ex-ambassador is still engaged on his sovereign’s business, and must have a reasonable time allowed for that purpose. The last point is one of some novelty and, if I may be permitted to say so, of some boldness. In the first place, Order XI. does not purport to repeal the Statutes of Limitation, or any of them, or say anything about them. If repeal there be, therefore, it is not by express words, but must be implied from the inconsistency of the provisions of the order with the provisions of the statute in question.

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94. [*363]

 

This must, in order to effect a repeal, be a necessary implication. Now, I do not see any necessity in the case. Order XI. provides a means by which litigants may, in certain cases, with the leave of the Court, serve a writ upon a defendant out of the jurisdiction. The statute of 4 Anne, c. 16, s. 19, in effect provides that the Statute of Limitations shall not run against a defendant who is beyond the sea. Where is the inconsistency? A plaintiff has the alternative right. He may either apply for leave to serve the writ abroad, or he may wait till his defendant comes within the jurisdiction. I ought, however, to add, that I should hesitate some time before I expressed any opinion, that the judges under a power to make rules relating to the practice and procedure of the Courts could repeal the Statutes of Limitations, although they are no doubt part of the lex fori. Could they, for example, say that the time for recovery of debts shall be for five years instead of six? It is unnecessary, however, to say more about this, as in my opinion the point does not arise.

 

I am, therefore, of opinion that this appeal should be dismissed with costs.

 

Appeal dismissed.