COUNSEL: Hon. Frank Russell, K.C., and H. F. F. Greenland, for the appellant.

Tomlin, K.C., for the defendant Pedro Suarez.

 

SOLICITORS: For appellant: Nelson, Son & Plews.

For respondents: Darley, Cumberland & Co.

 

JUDGES: Swinfen Eady, Warrington and Scrutton L.JJ.

 

DATES: 1917 Nov. 19, 20; Dec. 5.

 

 

International Law – Ambassador – Privilege – Waiver – Administration Action – Submission to Jurisdiction – Order for Payment into Court – Service – Writ of Sequestration – Leave to issue – Removal from Diplomatic List – Evidence – Rules of Supreme Court, 1883, Order XLII., rr. 4, 24 – Diplomatic Privileges Act, 1708 (7 Anne, c. 12), s. 3.

 

A Minister of a foreign State in England was sued for an account as administrator to an intestate’s estate, and in such proceedings waived his diplomatic privilege, instructed solicitors to accept service of the originating summons therein, and obtained an order for an account against the plaintiff in the action. Subsequently after ceasing to be such Minister he set up the Diplomatic Privileges Act, 1708, as a defence to an application against him for sequestration for non-compliance with an order for payment into Court of trust moneys:–

 

Held, by Swinfen Eady and Warrington L.JJ., that an Ambassador or public Minister can with the consent of his Government [*177] effectually waive his privilege and that the Minister's immunity had ceased.

 

Taylor v. Best (1854) 14 C. B. 487 followed.

 

Dictum of Lord Talbot in Barbuit’s Case (1737) Cas. t. Talb. 281 explained.

 

Held, by Scrutton L.J., doubting the authority of Taylor v. Best, that the Minister was estopped by his conduct from alleging the invalidity of the proceedings in the action.

 

A letter from the Foreign Office under the hand of an Assistant Secretary of State stating that a foreign Minister’s name has been removed from the Diplomatic List is sufficient evidence that the Minister has ceased to hold diplomatic office at the date of the letter.

 

Under Order XLII., rr. 4 and 24, the Court has power to direct a sequestration to issue for non-compliance with an order for payment of money into Court notwithstanding that the order directing payment within a fixed time has not been served on the defendant pursuant to Order XLIII., r. 6, if the Court is satisfied that the defendant knew of the order and is evading service of it.

 

Decision of Eve J. affirmed.

 

APPEAL from a decision of Eve J.

 

The facts, which are taken substantially from the written judgment of Swinfen Eady L.J., were as follows:–

 

Francisco Suarez died intestate on February 10, 1897, possessed of considerable property. Whether he was domiciled here was a matter in dispute, an inquiry as to domicil not having yet been answered. On February 23, 1900, letters of administration to his estate were granted to defendant Pedro Suarez as the attorney of and for the use and benefit of the plaintiff, Nicholas Suarez. The plaintiff and the defendant each claimed to be one of the next of kin of Francisco, and as such entitled to a share of his personal estate. The defendant Pedro Suarez, in and prior to January, 1914, was the duly accredited Minister for the Republic of Bolivia in England, and so continued until some time shortly prior to September 21, 1917.

 

In January, 1914, the plaintiff was desirous of having the estate administered by the Court and ascertaining definitely of what it consisted, and who were the parties entitled to a share of it, and it would appear that the defendant then also took the view that such a course was desirable. Accordingly, on January 26, 1914, the plaintiff issued an originating summons asking for an account [*178] and that the personal estate might be administered by the Court. A copy of this summons was sent to the defendant’s solicitors on the same day, and in answer they wrote as follows:–

 

“28th January, 1914.

 

Dear Sirs,

 

Re Francisco Suarez, deceased.

 

We have yours of the 26th inst. enclosing copy of originating summons issued by you in this matter. Our client Colonel Suarez is perfectly willing to have the estate administered by the Court; in fact he was considering taking the same step himself, and if you will let us have the originating summons we will endorse thereon our acceptance of service.

 

Yours truly,

 

Hyland, Atkins & Roger.”

 

Accordingly the original summons was sent to them, and they wrote upon it the following memorandum:–

 

“We accept service of this summons on behalf of Pedro Suarez, and undertake to enter an appearance thereto in due course.

 

Dated 29th January, 1914.

 

Hyland, Atkins & Roger.

 

81, Cannon Street, E.C.”

 

In due course they entered an appearance.

 

The originating summons came on for hearing before Joyce J. on July 10, 1914, when Mr. Tomlin, K.C., appeared for the defendant Pedro Suarez. The hearing of the summons was adjourned until July 14, 1914, at the desire of the defendant’s counsel, to enable him to take the personal instructions of the defendant as to claiming privilege as Minister for the Republic of Bolivia.

 

On July 14, 1914, Mr. Tomlin, K.C., stated to the Court that defendant Pedro Suarez waived his privilege, and the order for administration was accordingly made on that date. The judge added as co-defendant one Hugo Boger, directed the usual accounts and inquiries, and gave the conduct of the accounts and inquiries thereby directed to the new defendant, Hugo Boger. The plaintiff appealed from this order so far as it gave the conduct to Boger, and the defendant Pedro Suarez gave notice to the plaintiff and [*179] the defendant Boger, pursuant to Order LVIII., r. 6, of the Rules of the Supreme Court, of his intention to contend that the order of Joyce J. should be varied by the insertion therein of a direction that an account be taken of the personal estate of Francisco Suarez, deceased, come to the hands of the plaintiff as agent for the defendant Pedro Suarez, the administrator of the said Francisco Suarez, or otherwise, or the hands of any other person or persons by the order or for the use of the plaintiff as such agent or otherwise, and of a submission by the plaintiff to account as aforesaid; or, in the alternative, in the event of the plaintiff refusing to submit to account, that this action might be dismissed with costs.

 

The appeal and cross-contention were disposed of on July 30, 1914, when the order of Joyce J. was varied and effect given to the contentions of each party – Boger was to be at liberty to attend in chambers upon the taking of the accounts and inquiries, but did not have the conduct of them, and, the plaintiff, by his counsel, submitting to account, an additional account was directed, namely, an account of the personal estate of the intestate come to the hands of the plaintiff as the attorney of the defendant Pedro Suarez or to the hands of any other person or persons by the order or for the use of the plaintiff. It appeared that the defendant, after obtaining letters of administration, had appointed the plaintiff his attorney to collect moneys due to the estate abroad.

 

The position, therefore, was that the defendant had appeared voluntarily without the summons having been served upon him, that he expressly waived any diplomatic privilege on the hearing of the summons, and that he came in under the proceedings and took the benefit of them, and himself claimed and obtained an order for the plaintiff to account.

 

In January, 1915, questions arose whether the defendant Pedro should waive his privilege in respect of another proceeding, and on January 29, 1915, his solicitors wrote to plaintiff’s solicitors that the defendant was prepared to write to the President of Bolivia and ask him whether in such other proceeding the President would consent to waiver of privilege. This letter, which in terms referred to the fact that the President had authorized the defendant to [*180] waive his privilege in the administration action, was (so far as material) as follows:–

 

“81, Cannon Street, E.C., 29 January, 1915.

 

Messrs. Darley, Cumberland & Co.

 

Dear Sirs,

 

Suarez v. Suarez.

 

Your client is misinformed. The President of Bolivia authorized Colonel Suarez to waive the privilege in the case of the administration of Francisco Suarez’ estate, but he has not done so in any other matter. Colonel Suarez informs us that the view of the Diplomatic Corps is that they cannot themselves waive the privilege, which attaches to their respective countries, the consent of whose ruler they must obtain, and we believe this is the correct view under International law.

 

. . . . . .

 

Yours truly,

 

Hyland, Atkins & Roger.”

 

The accounts were taken under the administration order; the defendant filed accounts, made affidavits, and was cross-examined upon them. The result was that large sums appeared to be due from him. By a subsequent order dated July 3, 1916, an inquiry as to domicil was added. The defendant lodged one sum of 3698l. in Court, in pursuance of an order against him to that effect, and he also voluntarily lodged 19,500l. Consols in Court. A surcharge was brought in against him and proceeded upon, and, on the conclusion of his cross-examination before Eve J., he submitted to be surcharged on his accounts as administrator with the sum of 16,269l. 4s. 9d.; and by an order made by Eve J. on January 30, 1917, the defendant was ordered to pay that sum into Court, with a provision that no steps were to be taken to enforce the order if the amount was paid into Court by the instalments therein mentioned, the first of which was payable on or before February 21, 1917, and the last of which was payable on or before July 20, 1917. No part of this amount had been paid into Court by the defendant, although he was personally present in Court when the order was made.

 

On March 5, 1917, the defendant was personally served with an order to attend before the Master on March 9, 1917, for examination [*181] as to his means. On March 7, 1917 (the defendant being then in default in respect of the first instalment), an order was made for the defendant to pay into Court the 16,269l. 4s. 9d. on or before March 14, 1917. The next day, March 8, 1917, he left this country, and there was no evidence that he had since returned, and he had not made any further payment into Court. On the same March 8 the defendant’s solicitors forwarded to the plaintiff’s solicitors a copy of a letter they had received from their client in the following terms:–

 

“81, Cannon Street, E.C., 7 March, 1917.

 

“Messrs. Nelson, Son & Plews, 31, Budge Row, E.C.

 

“Dear Sirs, – As you are aware, during the last three years I have been trying to obtain evidence from Bolivia in regard to the cases, and that [ sic ] all the documents that have been sent to me have gone astray. In view of this, I have requested the Bolivian Government to grant me leave to go personally and obtain all the documents and particulars I require. This leave has been granted me, allowing me three months commencing from the 1st inst., and as the time is so very short, and as it is necessary to avail myself of the first steamer going out, I am unable to attend the Court on Friday the 9th inst. I should therefore be greatly obliged to you if you would express my regrets to the Master, assuring him that it is quite unavoidable. As time at my disposal is so very short, I shall not be able, as I had intended, to make out a written statement in regard to my financial standing, but I will endeavour to send it to you from Bolivia.

 

Yours faithfully,

 

Pedro Suarez.”

 

The three months’ leave mentioned in this letter would expire on June 1. There was no evidence that this leave was ever extended.

 

On March 10, 1917, a summons was issued by the plaintiff under the Courts (Emergency Powers) Acts, 1914 – 1916, for leave to proceed to execution, or otherwise for the enforcement of payment of the sum of 16,269l. 4s. 9d. so directed to be paid into Court by the defendant Pedro Suarez, and that the plaintiff might be at liberty to issue a writ of sequestration against the property and effects of the defendant. [*182]

 

On March 26, 1917, the summons came on to be heard before Eve J., and the defendant then asserted his immunity from process by way of execution and set up the Diplomatic Privileges Act, 1708 (7 Anne, c. 12), as an answer to the application. In these circumstances Eve J., in a considered judgment delivered on May 23, after discussing the authorities, declined to make any order on the summons except that it should stand over generally with liberty to restore in the event of the defendant ceasing to hold an office to which the immunity he asserted attached. The case is reported in [1917] 2 Ch. 131.

 

On September 21, 1917, Sir Walter Langley, the Assistant Under-Secretary at the Foreign Office, wrote to the plaintiff’s solicitors that he was directed by Mr. Secretary Balfour to inform them that His Majesty’s Chargé d’Affaires at La Paz had then ascertained and reported by telegraph that the Bolivian Government had terminated the appointment of Colonel Suarez as Bolivian Minister at the Court of St. James’s, and that his name had accordingly been removed from the Diplomatic List.

 

On October 23, 1917, the summons was restored and the plaintiff renewed his application before Eve J. His Lordship thereupon granted the plaintiff’s application, and in the course of his judgment said that, although the diplomatic privilege did not cease for a reasonable time after the diplomatic mission was determined, this was not a case in which, in his opinion, the defendant ought to have any further time granted to him. He had departed secretly from this country after an order for payment had been made against him, and was a fugitive from justice. He deliberately remained outside the jurisdiction, and had done nothing to meet the order. There was not a shred of evidence to show that the granting of the order would interfere with the defendant’s service to his country. The learned judge also rejected the defendant’s contention that the proceedings in the action were wholly void, and held that he had power to direct a sequestration to issue notwithstanding that the order directing payment into Court within a fixed time had not actually been served on the defendant.

 

The defendant appealed, and the appeal was heard on November 19, 20, 1917. [*183]

 

Hon. Frank Russell, K.C., and H. F. F. Greenland, for the appellant.

 

1. We contend that Eve J. had no jurisdiction to direct a sequestration to issue, because the whole proceedings are null and void by virtue of the Diplomatic Privileges Act, 1708, s. 3. (1) This section totally prohibits the issue of all writs and processes whatsoever against Ambassadors or foreign Ministers. The section is not confined to writs of execution: Magdalena Steam Navigation Co. v. Martin. (2) Moreover, s. 4 of the statute(1) imposes pains and penalties on persons issuing such processes, and it is settled law that where a statute not only declares an act void but also imposes a penalty on persons doing such acts the word “void” cannot be construed as voidable: Gye v. Felton. (3) The Court had therefore no jurisdiction at all to entertain the action: Musurus Bey v. Gadban (4); Magdalena Steam Navigation Co. v. Martin. (5)

 

2. The waiver by the appellant of his diplomatic privilege was wholly ineffectual. The proceedings were null and void throughout, and a nullity cannot be waived: Barbuit’s Case. (6) Consent of parties cannot give the Court a jurisdiction which it does not possess: Foster v. Usherwood (7); In re Aylmer. (8)

 

(1) By the Diplomatic Privileges Act, 1708, it is provided, s. 3: “And to prevent the like insolences for the future be it further declared by the authority aforesaid that all writs and processes that shall at any time hereafter be sued forth or prosecuted whereby the person of any ambassador or other publick minister of any foreign prince or state authorized and received as such by her Majesty her heirs or successors or the domestick or domestick servant of any such ambassador or other publick minister may be arrested or 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.”

 

By s. 4 it is provided “And .... in case any person or person shall presume to sue forth or prosecute any such writ or process such person and persons and all attorneys and sollicitors prosecuting and solliciting in such case and all officers executing such writ or process being thereof convicted .... shall be deemed violators of the laws of nations and disturbers of the public repose and shall suffer such pains penalties and corporal punishment as the said lord chancellor lord keeper and the said chief justices or any two of them shall judge fit to be imposed and inflicted.”

 

(2) (1859) 2 E. & E. 94.

 

(3) (1813) 4 Taunt. 876.

 

(4) [1894] 2 Q. B. 352, 361.

 

(5) 2 E. & E. 112.

 

(6) Cas. t. Talb. 281.

 

(7) (1877) 3 Ex. D. 1, 3.

 

(8) (1887) 20 Q. B. D. 258, 262. [*184]

 

[SWINFEN EADY L.J. Has Taylor v. Best (1) ever been overruled?]

 

That case is no doubt to the contrary effect, but it was a very special case: In re Republic of Bolivia Exploration Syndicate. (2) It is the only case in the books in which a waiver has been held good. The judgment in Taylor v. Best (1) was based on the opinions of the jurists as to the law of nations and must be read in the light of the decisions prior to its date. Moreover, in that case the Ambassador was only one of several defendants against whom a joint cause of action had arisen. Both Jervis C.J. and Maule J. emphasize the injustice which would have been done in that case to the other defendants if the action had been stayed against the privileged defendant. (3) The Magdalena Case (4) shows that a writ cannot be issued against an Ambassador at all. After that decision there is not much left of Taylor v. Best (1): In re Suarez. (5)

 

[SWINFEN EADY L.J. It looks from the passage at p. 111 of the Magdalena Case (4) as if Lord Campbell C.J. thought that the privilege could be waived.]

 

That suggestion has been explained by Astbury J. as referring to the passage in Coke (6) dealing with forfeiture by crime: In re Republic of Bolivia Exploration Syndicate. (7)

 

[WARRINGTON L.J. Lord Campbell’s view appears to have been that s. 3 of the statute of Anne was merely a statement of the law of nations.]

 

The position under the law of nations was necessarily modified in England after the passing of a statute which not only declared the proceedings to be null and void, but also imposed penalties for their inception.

 

[SWINFEN EADY L.J. referred to Mighell v. Sultan of Johore (8) as showing that a foreign Sovereign can submit to the jurisdiction.]

 

The case of a foreign Sovereign is different from the case of an Ambassador. There is no statutory prohibition of process against a foreign Sovereign. We submit that Taylor v. Best (1) was wrongly

 

(1) 14 C. B. 487.

 

(2) [1914] 1 Ch. 139, 156.

 

(3) 14 C. B. 520, 521, 523.

 

(4) 2 E. & E. 94.

 

(5) [1917] 2 Ch. 131, 137.

 

(6) 4 Co. Inst. 153.

 

(7) [1914] 1 Ch. 139, 149.

 

(8) [1894] 1 Q. B. 149, 159. [*185]

 

decided, and that even with his Sovereign’s consent an Ambassador cannot waive his privilege under the statute.

 

[SWINFEN EADY L.J. referred to Marshall v. Critico. (1)]

 

There is nothing in that case to show that the whole of the res gestae did not happen after the Minister in question ceased to hold office.

 

[SWINFEN EADY L.J. Lord Ellenborough in that case pointed out that the privilege was that of the Sovereign, not of the Minister.

 

SCRUTTON L.J. referred to The Parlement Belge. (2)]

 

We rely on the dicta of Davey L.J. in Musurus Bey v. Gadban (3) to show that the true view is that there is no jurisdiction or cause of action at all. The Sovereign can waive his own privilege, but he cannot waive his Ambassador’s privilege in contravention of the statute. If the parties submit to the jurisdiction of a Court which in fact has no jurisdiction the Court is merely in the position of an arbitrator.

 

3. If waiver is possible at all it must be with the consent of the Sovereign: United States v. Benner. (4) But there is no evidence in the present case that the Sovereign’s consent to waiver was actually obtained.

 

[SWINFEN EADY L.J. Must we not assume that what the Minister did was done with his Sovereign’s permission?]

 

The Court cannot in punitive proceedings for contempt act on inference.

 

4. Assuming that there was an effective waiver of privilege, it was only a waiver to the extent of enabling Joyce J. to make an order for accounts and inquiries, and the waiver did not extend to proceedings for enforcing any resulting liability. Taylor v. Best (5) shows that there must be no coercion of a foreign Minister, but suggests that a case might be prosecuted up to judgment only. The Court cannot make an order to enforce process unless it is shown that the defendant has waived his privilege with knowledge for the purpose of the particular process.

 

5. The letter from the Foreign Office is not sufficient evidence

 

(1) (1808) 9 East, 447.

 

(2) (1880) 5 P. D. 197, 207, 208.

 

(3) [1894] 2 Q. B. 352, 361, 362.

 

(4) (1830) 1 Baldwin, 240.

 

(5) 14 C. B. 487, 521, 522. [*186]

 

that the defendant has ceased in fact to be a public Minister. It is based on mere hearsay.

 

[SWINFEN EADY L.J. The statement in the letter that the defendant’s name has been removed from the Diplomatic List is important on this point: Mighell v. Sultan of Johore. (1)

 

SCRUTTON L.J. referred to Foster v. Globe Venture Syndicate. (2)]

 

6. If the Foreign Office letter is sufficient evidence that the defendant has ceased to be a foreign Minister it contains no evidence of the date when he so ceased. The Court cannot infer that he ceased to be a Minister at any date earlier than September 21, 1917, the actual date of the letter. The privilege of an Ambassador continues for a reasonable time after he ceases to hold office: Magdalena Steam Navigation Co. v. Martin (3); Musurus Bey v. Gadban. (4) In the present case barely a month had expired since the date of the letter before Eve J. made the order under appeal. A month is not a reasonable time within the decisions.

 

7. The last point is a purely technical one. A writ of sequestration to enforce compliance with an order for payment of money into Court issues under Order XLIII., r. 6. This rule imposes two conditions – first, that the order to be enforced must specify a time for the performance thereof, and, secondly, that the order must be duly served on the person ordered to make the payment. The order of January 30, 1917, did not fix any time for the payment into Court, and the order of March 7, 1917, which limited a time, was admittedly never served on the defendant, nor is there any evidence that it came to his knowledge. There has therefore been no contempt shown of either order. Sequestration is clearly a process of contempt: Pratt v. Inman (5); and the Court cannot in cases of contempt infer that the second order ever came to the knowledge of the defendant. It must be proved that the defendant is in contempt, and this has not been done.

 

Maugham, K.C., and Meyrick Beebee, for Cyril Hartree (serving with His Majesty’s Forces), for the respondents. There are many cases in the books in which the Court has construed the word “void” in Acts of Parliament as voidable. Thus in Gowan v.

 

(1) [1894] 1 Q. B. 149.

 

(2) [1900] 1 Ch. 811.

 

(3) 2 E. & E. 94.

 

(4) [1894] 2 Q. B. 352.

 

(5) (1889) 43 Ch. D. 175, 179. [*187]

 

Wright (1) it was held that the non-compliance with the requirements of s. 27 of the Debtors Act, 1869 (32 & 33 Vict. c. 62), that a judge’s order for judgment made by consent of the defendant in a personal action shall be filed within twenty-one days after the making thereof, “otherwise the order and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be void,” only rendered such an order and judgment void as against the creditors of such defendant, and not as against himself; see also Maxwell on the Interpretation of Statutes, 4th ed. pp. 317-318. In Gye v. Felton (2) the statute there considered only dealt with the rights of infant apprentices who could not protect themselves: see also Rex v. Inhabitants of Hipswell. (3)

 

As to the contention that the proceedings are void under the statute of Anne, there is overwhelming authority that s. 3 of the Act is merely declaratory of the then existing law of nations: Triquet v. Bath (4); Heathfield v. Chilton (5); Viveash v. Becker (6); Novello v. Toogood. (7)

 

[SCRUTTON L.J. referred to Parkinson v. Potter (8) as explaining the decision in Novello v. Toogood. (7)]

 

If the section was declaratory of the existing law, then it cannot have been intended to place an Ambassador in a better position than a King. The Court must look at the statute, and the circumstances under which it was passed, to see whether s. 3 is germane to the matter in question. The section was, it is submitted, intended to be declaratory of the common law with regard to proceedings in invitum: Taylor v. Best (9); Magdalena Steam Navigation Co. v. Martin (10); The Parlement Belge. (11) Being, therefore, merely declaratory of the common law, the ambit and scope of the statute must be ascertained. Its scope was not, it is submitted, to take away the right of an Ambassador to assent to the jurisdiction, but to deal with proceedings in invitum. Its ambit was confined to something in the nature of insolence or something

 

(1) (1886) 18 Q. B. D. 201.

 

(2) 4 Taunt. 877, 880.

 

(3) (1828) 8 B. & C. 466.

 

(4) (1764) 3 Burr. 1478.

 

(5) (1767) 4 Burr. 2016.

 

(6) (1814) 3 M. & S. 284.

 

(7) (1823) 1 B. & C. 554.

 

(8) (1885) 16 Q. B. D. 152.

 

(9) 14 C. B. 487.

 

(10) 2 E. & E. 94.

 

(11) 5 P. D. 197. [*188]

 

done in invitum. It was not intended, for example, that a solicitor who received instructions to act for an Ambassador should be liable to pains and penalties under s. 4 of the Act. Sect. 3 does not extend to a case where an Ambassador assents to or invites the jurisdiction of the Court. There was no insolence here when the defendant entered an appearance to the summons. Non constat that there was anything in invitum when the originating summons was issued.

 

Taylor v. Best (1) has definitely decided that a writ sued out against a Minister is not per se void, and that if he consents to the proceedings they may continue. That case is of high authority and has never been overruled, and should be followed in this case. The statute of Anne does not apply where there is a voluntary assent to the jurisdiction.

 

As to the dictum of Campbell C.J. in Magdalena Steam Navigation Co. v. Martin (2), that “The writs and processes described in the 3rd 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,” it is to be observed that the action there was for calls, and therefore of a hostile character. An originating summons for administration issued against an Ambassador is not an action which in its nature would necessarily have the effect of touching his property or person, and is not therefore included in the writs and processes referred to in s. 3 of the statute. This is not a case in which the defendant was not interested in the subject-matter of the action. He may be entitled to a distributive share of the estate. It might be of importance to him that he should be able to appear as a defendant to the action: Duke of Brunswick v. King of Hanover. (3)

 

[SCRUTTON L.J. Has the case of an Ambassador engaged in trade ever come before the Courts?]

 

Taylor v. Best (1) is the only case. There Drouet was so engaged. In an administration action it is not the Minister’s goods which are aimed at. That distinguishes the present case from Magdalena Steam Navigation Co. v. Martin. (2) Barbuit’s Case (4) is relied

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94, 114.

 

(3) (1844) 6 Beav. 1, 39; S. C. on appeal (1848) 2 H. L. C. 1, 25.

 

(4) Cas. t. Talb. 281. [*189]

 

on in support of the contention that waiver by a Minister of his privilege is ineffectual. But it is impossible to ascertain the desires of a Sovereign except through his accredited Minister.

 

Then it is said that the waiver extended only to the making of the order for accounts and inquiries. But the answer to that contention is that the waiver continues until the position of the Minister is altered by a distinct claim of privilege. In the present case it is not stated when the defendant ceased to be a Minister.

 

[WARRINGTON L.J. The letter of the Foreign Office is sufficient.]

 

As to the objection that leave to issue a writ of sequestration ought not to be granted because the order of March was not served on the defendant, Order XLIII., r. 6, enables a person to issue a writ of sequestration without obtaining any order. But the Court can order a writ of sequestration to issue under Order XLII., rr. 4 and 6. In one sense sequestration is a proceeding for contempt, but it is also a form of execution.

 

[WARRINGTON L.J. The reason for the rule is that you cannot issue a writ of fi. fa. to enforce payment into Court.]

 

Where the writ is issued by the order of the Court the conditions of Order XLIII., r. 6, do not apply. Thus a writ of sequestration to enforce payment of costs can issue notwithstanding that the order for the payment of such costs does not fix a time for payment: In re Lumley. (1) The report in Knill v. Dumergue (2) does not state whether the order for payment limited a time.

 

As to want of service, if the writ issues by order personal service of the order directing service is not necessary: In re Deakin. (3) The practice is to dispense with personal service of the application for the issue of a writ of sequestration where the person has disobeyed an order of the Court with full knowledge of its having been made and is keeping out of the way to avoid service: Rex v. Wigand. (4) The circumstances here were amply sufficient to enable the judge below to direct that the writ of sequestration should issue. The summons was taken out for payment within four days. Contemporaneously an order was made on February 27, 1917, for the defendant to attend before the Master to be examined as to his means. It is clear that he was aware of

 

(1) [1894] 2 Ch. 271.

 

(2) [1911] 2 Ch. 199.

 

(3) [1900] 2 Q. B. 478.

 

(4) [1913] 2 K. B. 419. [*190]

 

this. He was personally served with the order. On March 5 he was at his solicitors’ office, and on March 8 he left the country and has not returned. The reasonable inference is that, the order of January 13 not having been obeyed, he knew that application was being made for payment of the 16,269l. 4s. 9d.

 

The order of the judge below was right and should be affirmed.

 

H. F. F. Greenland in reply. The cases in which it has been held that the statute of Anne is declaratory have been cases in which it has been endeavoured to deprive persons of their privilege under the law of nations on the ground that they were not domestic servants of an Ambassador within the words of the statute. In the Magdalena Case (1) Lord Campbell said: “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 which they are accredited.” Service v. Castaneda (2) shows that in the opinion of Knight Bruce V.-C. there might be persons who might rely on the statute of Anne for the privilege although they were not strictly within it. There is no authority for the proposition of the respondents that the express words of the statute are capable of being modified by the law of nations ascertained from the opinions of the jurists. Taylor v. Best (3) is not a decision on the statute at all. The statute is not referred to in the judgments except incidentally in reference to the position of domestic servants of an Ambassador. The case appears to have been argued and decided on the assumption that the statute applied only to writs of execution. This assumption has since been decided in the Magdalena Case (1) to be unfounded.

 

It is said that an administration summons is not a process within the statute of Anne. But it is a process which may lead to the payment of money. It is just as probable as in any other case that money will be ordered to be paid by the defendant.

 

The question of sequestration for non-payment of costs rests on an entirely different basis. Order XLIII., r. 7, is a substitute for the old practice of issuing a subpoena for costs followed by a writ of sequestration as a matter of course.

 

Cur. adv. vult.

 

(1) 2 E. & E. 94, 115.

 

(2) (1845) 2 Coll. 56, 59.

 

(3) 14 C. B. 487. [*191]

 

1917. Dec. 5. The following written judgments were delivered:–

 

SWINFEN EADY L.J. This is an appeal from an order of Eve J. made on October 23, 1917, giving leave to issue a writ of sequestration against the defendant, Pedro Suarez, for not paying into Court 16,269l. 4s. 9d., a portion of trust moneys received by him, which, by an order dated January 30, 1917, he was ordered to pay into Court, and which by a supplemental order dated March 7, 1917, he was ordered to pay into Court on or before March 14, 1917.

 

The defendant, Pedro Suarez, contends that as a former Minister of the Republic of Bolivia he was and is exempt from civil process. The answer to which by the plaintiff is that the defendant’s diplomatic position has long since ceased to exist, and that while the defendant was Minister, by the direction or with the consent of his Government, he expressly waived his diplomatic privilege, and voluntarily came in under the present proceedings and took advantage of them to obtain an order against the plaintiff to account.

 

The facts of the case are not in dispute. The defendant, Pedro Suarez, is a defaulting administrator, who has received large sums of money forming part of the estate of Francisco Suarez, deceased, and absconded. The judge below stated that he was not to be believed on his oath. Indeed, his counsel frankly stated that the appeal had not any merits, but, nevertheless, that he was entitled to succeed in point of law. [His Lordship then stated the facts down to the order of the Court of Appeal of July 30, 1914, varying the order of Joyce J., and continued:] It was not disputed that the defendant had waived his privilege so far as he could do it, but one contention raised was that he could only do it with the consent of his Government, and it had not been shown that he did obtain this consent. The first answer to this argument is that while he was Minister credit must be given to his acts, and it must be assumed that in the course which he took he was acting in accordance with the instructions of his Government. But the further answer is he did in fact obtain the authority of his Government, and his solicitors so informed the plaintiff in writing. [His Lordship stated the subsequent facts down to Sir Walter Langley’s letter of September 21, 1917, and continued:] Thus the defendant no longer possessed any diplomatic privilege, and does not appear [*192] to have been in England since March 8, 1917. It is not a case in which a claim is made for a reasonable time to wind up the affairs of his legation. The defendant has not made any affidavit on this application, and it is not suggested that ample opportunity has not already been given him to wind up the business of the legation. Why, therefore, should not a writ of sequestration be issued to compel obedience to the orders of the Court? It was contended on behalf of the appellant that by virtue of 7 Anne, c. 12, s. 3, the proceedings taken against him were null and void, and that a Minister could not waive his privilege, and that any purported waiver was ineffective. It must, however, be remembered that s. 3 of the statute of Anne was merely declaratory of the common law, as its language shows. The recitals in the Act show the circumstances under which the Act was passed. They are well known and need not be repeated here. Sect. 3 provides: “And to prevent the like insolences for the future be it further declared” – not “be it further enacted.” It has been frequently pointed out by many eminent judges that s. 3 of the Act was declaratory of the common law, and must therefore be construed according to the common law, of which the law of nations must be deemed a part. It was so pointed out by Lord Mansfield in Triquet v. Bath (1), by Lord Ellenborough in Viveash v. Becker (2), by Abbott C.J. in Novello v. Toogood (3), by Jervis C.J. and Williams J. in Taylor v. Best (4), by Lord Campbell in Magdalena Steam Navigation Co. v. Martin (5), and in the case of The Parlement Belge. (6)

 

The exemption from process accorded by the law of nations to Sovereigns and to Ambassadors and foreign Ministers, being for their benefit, may be waived by or with the permission of the Sovereign, in accordance with the maxim Quilibet potest renunciare juri pro se introducto. In Mighell v. Sultan of Johore (7) it was pointed out by the Court of Appeal that a foreign Sovereign might submit to the jurisdiction, Lord Esher adding (8): “everybody knows and understands that”; and the time when he can be

 

(1) 3 Burr. 1480.

 

(2) 3 M. & S. 284.

 

(3) 1 B. & C. 554.

 

(4) 14 C. B. 487.

 

(5) 2 E. & E. 94.

 

(6) 5 P. D. 197.

 

(7) [1894] 1 Q. B. 149.

 

(8) Ibid. 159. [*193]

 

said to elect, whether he will submit to the jurisdiction, is when the Court is being asked to exercise jurisdiction over him – for example, when he enters an appearance to a writ. And if a Sovereign can submit to the jurisdiction, why cannot an Ambassador or other foreign Minister with the consent of his Sovereign? Indeed, it may be for the benefit of such an one to come in and have some question determined in the Courts of the country to which he is accredited. In the present case, if the defendant had been honest, the proceedings might have established his right to a share of a large fund. It was held by the Court of Common Pleas in 1854 in Taylor v. Best (1) that a Minister might waive his privilege, and the Court there refused to set aside proceedings taken against M. Drouet, a public Minister, accredited by the King of the Belgians to the Court of St. James’s. His attorney had given an undertaking to appear in the action, had duly entered an appearance, and had pleaded, and, after notice of trial, had obtained a rule for a special jury, and the Court refused his application to stay or set aside the proceedings. The doubt raised in that case – and stated by Maule J. to be – whether an Ambassador or public Minister can be brought into Court against his will by process not immediately affecting either his person or his property and have his rights and liabilities ascertained and determined was afterwards settled in favour of the Ambassador in the case of Magdalena Steam Navigation Co. v. Martin. (2) But the actual decision in Taylor v. Best (1) that a Minister may with the consent of his Sovereign waive his privilege notwithstanding the provisions of the statute of Anne has never been questioned from that time to the present. It was affirmed by Lord Campbell in Magdalena Steam Navigation Co. v. Martin (3), where he said, speaking of a public Minister: “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.” The contention on behalf of the defendant was founded upon a dictum of Lord Talbot in Barbuit’s Case (4); but the passage referred to merely means, as the context shows, that, the privilege being for the sake of the Prince by whom an Ambassador is sent, the Ambassador cannot renounce such privilege and protection

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94.

 

(3) 2 E. & E. 111.

 

(4) Cas. t. Talb. 281. [*194]

 

without the consent of the Government which sent him: see also Wilson v. McIntosh. (1) This point, therefore, fails.

 

It was further urged on behalf of the appellant that as the order of March 7, 1917, fixing a definite date for payment was never served upon him it was irregular to issue a writ of sequestration. In support of this contention reliance was placed upon the terms of Order XLIII., r. 6, which provides for the issue of a writ of sequestration after due service of a judgment or order. The plaintiff, however, was not proceeding under this rule, which provides for the issue of a sequestration as of course, and without obtaining any order for the purpose. The plaintiff’s application for leave to issue a writ of sequestration was made under Order XLII., rr. 4 and 24. The Court may dispense with service of the order altogether if it is satisfied that the defaulter knows of the order and is keeping out of the way. The object of requiring service is to establish that the person ordered to do something has been fully informed of what he is required to do. The Court has full jurisdiction to dispense with service of an order in proper cases. Here the defendant was personally present in Court when the order of January 30, 1917, was made, and indulgence was shown him, at his request, by giving him an opportunity of paying by instalments at fixed dates, all long since expired, and no payment whatever has been made. The defendant is in contempt, and, by keeping away, prevents any attachment of his person. A writ of sequestration is a process of execution against the estate which is said to have been first issued by Lord Keeper Bacon, and was resorted to by reason of the infirmity of the process of contempt, which is merely personal. The proceedings on a writ of sequestration are in rem, not in personam: see Tatham v. Parker. (2) There are many reported instances of the Court ordering the issue of a writ of sequestration when the defendant keeps out of the way and so prevents personal service of any order being effected upon him: see Hyde v. Hyde (3), Allen v. Allen (4), and Rex v. Wigand. (5)

 

In my opinion the order of Eve J. was quite right, and this appeal fails.

 

(1) [1894] A. C. 129.

 

(2) (1853) 1 Sm. & Giff. 506, 514.

 

(3) (1888) 13 P. D. 166.

 

(4) (1885) 10 P. D. 187.

 

(5) [1913] 2 K. B. 419. [*195]

 

WARRINGTON L.J. This is an appeal by the defendant, Pedro Suarez, from the order dated October 23, 1917, giving leave to issue a writ of sequestration by reason of his failure to comply with an order of January 30, 1917, that he should lodge in Court 16,269l., part of the estate of an intestate in his hands as administrator, and a subsequent, order dated March 7, 1917, directing lodgment on or before a fixed date or afterwards within four days after service.

 

The first question is whether at the date of the order of October 23 the defendant was entitled to claim the privilege against legal process of a Minister of a foreign State. He had been the accredited Minister in this country of the Republic of Bolivia, but on September 21 the Foreign Office, by letter under the hand of one of the assistant secretaries, informed the plaintiff’s solicitors that His Majesty’s Chargé d’Affaires at La Paz had ascertained and reported by telegraph that the Bolivian Government had terminated his appointment as Bolivian Minister at the British Court, and that his name had accordingly been removed from the Diplomatic List. In my opinion this letter is for the purposes of the present matter sufficient evidence of the fact that at the date of that letter the defendant had ceased to hold the office of Minister. The privilege may, however, continue for a reasonable time after the Minister ceases to hold office in order that he may wind up the affairs of the legation and transfer them to his successor: Musurus Bey v. Gadban. (1)

 

In the present case, however, it is idle to suggest that on this ground the privilege still subsisted on October 23. The four-day order was made in the presence of the defendant’s solicitors on March 7. On March 5 he had been personally served with an order to attend on March 9 to be examined as to his means. On March 8 he disappeared, and the plaintiff has heard nothing of him since. It is, in my opinion, clear that if it could be said in this case that there was any period of grace at all it had come to an end long before October 23, and that he did not then enjoy any privilege from process.

 

But it is said that by virtue of the Act of 7 Anne, c. 12, all the proceedings on which the order appealed from was made were

 

(1) [1894] 2 Q. B. 352. [*196]

 

void by reason of the existence of the privilege at the date of their institution – that the privilege cannot be waived – and there was no jurisdiction to make the order appealed from.

 

On the facts there is no question that the defendant deliberately, and after consideration for which opportunity was afforded him and with the consent of his own Government, submitted to the jurisdiction Further, he obtained on appeal a modification in his favour of the original judgment. He complied with it by carrying in and verifying the necessary accounts. He paid and transferred moneys and Consols into Court, and on the order for payment of the 16,269l. 4s. 9d. into Court being made he obtained the indulgence of being allowed to pay by instalments. The waiver in point of fact of the ambassadorial privilege is clear.

 

That in law an action which the privilege would have rendered impossible of prosecution may be continued effectually if the privilege is not insisted on was decided in 1854 by the Court of Common Pleas in Taylor v. Best (1) The same point is assumed in the judgment of Lord Campbell C.J. in Magdalena Steam Navigation Co. v. Martin (2), decided in 1859. The dictum of Lord Talbot in Barbuit’s Case (3) is, when properly understood, not adverse to this view. The context shows that the Lord Chief Justice is referring only to waiver with the consent of the Ambassador’s Government.

 

The decision in Taylor v. Best (1) has never been overruled or questioned on this point; and in my opinion, even if we thought it wrong, this Court ought not after this length of time to overrule it. But I see no reason to doubt that the decision was correct.

 

There can, I think, be no question that independently of the statute the privilege of being free from process in this country, whether it be that of a Sovereign of another State or of an Ambassador of such a Sovereign, was capable of being waived, and that proceedings could validly be prosecuted if the privileged defendant submitted to the jurisdiction. It has frequently been pointed out by judges of great eminence that s. 3 of the statute of Anne, on which the present question turns, is merely declaratory of previously

 

(1) 14 C. B. 487.

 

(2) 2 E. & E. 94.

 

(3) Cas. t. Talb. 281. [*197]

 

existing law. It appears by the preamble that the object was to preserve sacred and inviolable privileges which Ambassadors and other public Ministers have at all times been possessed of. Under these circumstances it would be a strange result if the effect of the statute were to alter the nature of the ambassadorial privilege to introduce a distinction between the case of a Sovereign himself and his Ambassador, and to render absolutely void as against the latter every action although it may be his desire, and, indeed, to his advantage, to submit to the jurisdiction. In my judgment the statute should be construed so as to maintain the privilege as it existed when it was passed and to render void only those writs and processes which are “sued forth or prosecuted” against the will of the privileged person.

 

Some reliance was placed on an expression of Davey L.J. in Musurus Bey v. Gadban (1) to the effect that there is a total want of jurisdiction to entertain an action against a person enjoying the privilege. The learned Lord Justice was not in that case considering the effect of waiver at all, but only the question whether the immunity of an Ambassador from action prevented the Statute of Limitations from running during the continuance of such immunity. The statement of the learned Lord Justice has no bearing on the present question.

 

I am of opinion, therefore, that the action was effectively prosecuted, and that the Court, notwithstanding the ambassadorial character of the defendant, had jurisdiction to make all the orders it made up to and including those on which the order for the issue of the writ of sequestration was founded. The last-mentioned order itself, being the order appealed from, was made when the privilege no longer existed, and was, in my opinion, properly made.

 

But a technical objection is taken on the ground that no time was fixed for payment by the order of January 30, and that the order of March 7 was not served. This objection would have been a good one if a writ of sequestration were issued under Order XLIII., r. 6; but in my opinion the absence of service does not prevent the Court from directing the issue of the writ in a proper case: see Rex v. Wigand. (2)

 

(1) [1894] 2 Q. B. 352, 361.

 

(2) [1913] 2 K. B. 419. [*198]

 

On the whole, in my opinion the appeal fails and must be dismissed.

 

SCRUTTON L.J. Pedro Suarez appeals from an order of Eve J. dated October 23, 1917. That order provides that as the Court is of opinion that Pedro Suarez has been guilty of a contempt of Court in not complying with two orders dated January 30, 1917, and March 7, 1917, by which he was ordered to pay into Court money which he held as representing the estate of a dead man, an order for sequestration shall issue against his estate.

 

Pedro Suarez objects to the order on two grounds: first, that he was when the proceedings were commenced the public Minister of the Republic of Bolivia accredited to this country, and therefore any process against him was null and void; secondly, that the first order for payment into Court does not specify a time for payment, and the second order, which does specify a time, was not served on him. To his claim of ministerial privilege it is replied that he was not when the order appealed from was made the public Minister of Bolivia, and that while he was such Minister he submitted to the Jurisdiction with the assent and on the instructions of the Republic of Bolivia.

 

Mr. Russell, who appeared for Pedro Suarez, frankly opened his case as one entirely destitute of any merits. It appears that when it was proposed to administer the estate of Francisco Suarez, of parts of whose property both Nicolas and Pedro Suarez had possession, an originating summons was issued on January 26, 1914, by Nicolas Suarez, Pedro Suarez being a defendant, and on January 28 Pedro Suarez’ solicitors, in stating their willingness to accept service of the summons, wrote that Pedro Suarez was willing to have the estate administered by the Court – in fact, he was considering taking some step himself. On January 29, 1915, his solicitors wrote that the President of Bolivia had authorized Pedro Suarez to waive his privilege in the case of the administration of Francisco Suarez. In these proceedings it was ascertained that Pedro Suarez had in his hands a large sum of money belonging to the estate. On January 30, 1917, he was ordered to pay 16,269l. into Court, the order not to be enforced if, on named dates, he paid in specified instalments of this sum. He [*199] did not pay the first instalment, and he was on March 7, 1917, ordered to pay the whole sum into Court within four days. On March 8, 1917, he left the country, concealing his whereabouts from the Court. On September 21, 1917, the Foreign Office, through whom this Court obtains conclusive information as to the status of foreign dignitaries and their accredited representatives to this country (Mighell v. Sultan of Johore (1); Foster v. Globe Venture Syndicate (2)), informed the Court that the Bolivian Government had terminated the appointment of Colonel Suarez as Bolivian Minister at the British Court. It is therefore at a time when he has been six months absent from this country, and at least a month after his appointment as Minister has ceased, that he claims a privilege as Minister, having waived that privilege when he was Minister. Mr. Russell said quite accurately that his case had no merits in fact. But it was said that, however lacking in merits he was, he was in 1914 a public Minister, and that the statute of Anne (7 Anne, c. 12) had prescribed that all writs and processes which shall hereafter be sued forth whereby the person of any public Minister of any foreign State may be imprisoned or his goods be seized – “shall be deemed and adjudged to be utterly null and void to all intents, constructions, and purposes whatsoever.” The whole proceedings, therefore, were said to be null and void.

 

There are a large number of cases in which similar words have been construed by the Courts. This Court, in the recent case of In re New Zealand Shipping Co. and Société des Ateliers et Chantiers de France (3), has held that in contracts the Court will support an agreement, which by its express terms is void in certain events, by refusing to allow a person, who has by his own act brought one of those events to pass, to allege an invalidity caused by his own wrong. Thus where a lease is void on breach of a covenant the Court has not allowed the person who broke the covenant to allege the invalidity his breach has created. The effect of this is to make the lease not void but voidable at the option of the innocent party.

 

In numerous statutes, for a bewildering variety of reasons, the Courts have held transactions to be valid which the Legislature

 

(1) [1894] 1 Q. B. 149.

 

(2) [1900] 1 Ch. 811.

 

(3) [1917] 2 K. B. 717. [*200]

 

has apparently enacted to be invalid for all purposes whatsoever; while in other cases they have held that the words “void for all purposes” have what appeared to be their plain and ordinary meaning. The cases are collected in Maxwell on the Interpretation of Statutes, 5th ed. pp. 337-348. But one of the reasons where the Courts have declined to make a transaction void is where there is a personal estoppel against a party interested in and alleging invalidity. This is the reason given by Lord Cairns in President and Governors of Magdalen Hospital v. Knotts (1) for the numerous cases in which it has been held that corporation leases made by statute “utterly void” could yet not be invalidated by the corporation during the life of the head of the corporation by whom they were made. I am content to decide this case on that ground, for if ever there was a case where a man should be prevented from alleging the invalidity of a process it is where he has assented to its issue, taken part in the proceedings for three years, thus gaining time, and only alleged its invalidity when he is otherwise not entitled to the protection of an Ambassador or protected from a writ. But as on many of the general questions argued before us I have felt, and still feel, considerable doubts, I desire to say (1.) that in my opinion the nature and extent of the effect of appearing to a process which was null and void when it was issued may require close consideration in future cases. The effect of the Sovereign’s appearing has been very carefully limited (see South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord (2)), and I should desire to reserve my liberty to consider how exactly a writ issued without the consent of an Ambassador, and therefore apparently a nullity (see Musurus Bey v. Gadban (3)), is made an effective writ by the consent of the defendant and the extent to which it becomes effective. In this case I think the facts prevent this defendant from raising this point. (2.) I am not at all satisfied, in view of the way the greater part of the reasoning in Taylor v. Best (4) has been treated in subsequent cases (Magdalena Steam Navigation Co. v. Martin (5); Musurus Bey v. Gadban (3)), that Taylor v. Best (4)

 

(1) (1879) 4 App. Cas. 324, 333.

 

(2) [1898] 1 Ch. 190.

 

(3) [1894] 1 Q. B. 533; [1894] 2 Q. B. 352.

 

(4) 14 C. B. 487.

 

(5) 2 E. & E. 94. [*201]

 

can be treated, in a case where it has to be considered, as a satisfactory authority for anything.

 

The first point taken by the defendant in my opinion fails.

 

On the second point, the writ of sequestration is founded on contempt of an order, and cannot be issued without leave of the Court unless an order naming a time for the doing an act has been served on the defendant and disobeyed. But in this case the writ is issued with the leave of the Court, and Eve J. has found that Pedro Suarez knew about the two orders for payment and has left the country to evade service of the second order and payment of the sum in question. I should come to the same conclusion. The latter finding, that Pedro Suarez is evading service, is, within the decision of the Court of Appeal in In re Tuck (1), enough to justify the issue of the writ.

 

The appeal, in my opinion, fails, and must be dismissed with costs.

 

Appeal dismissed.

 

(1) [1906] 1 Ch. 692.