COURT OF APPEAL In re SUAREZ. SUAREZ v. SUAREZ. [1914 S. 278.] [1918] 1 Ch. 176 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 intestates 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 Barbuits 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 Ministers 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 defendants 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 defendants 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 plaintiffs 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
defendants solicitors forwarded to the plaintiffs
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 plaintiffs
solicitors that he was directed by Mr. Secretary Balfour to inform them that
His Majestys Chargé dAffaires 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. Jamess, 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
plaintiffs 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
defendants service to his country. The learned judge also rejected
the defendants 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: Barbuits 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 Campbells 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 Sovereigns 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
Ambassadors 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 Sovereigns consent to waiver was actually obtained. [SWINFEN EADY L.J. Must we not assume that what the Minister did
was done with his Sovereigns 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
defendants 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 Majestys 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
judges 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 Ministers goods
which are aimed at. That distinguishes the present case from Magdalena Steam
Navigation Co. v. Martin. (2) Barbuits 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 defendants 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 Langleys
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. Jamess. 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 Barbuits 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 plaintiffs 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
plaintiffs solicitors that His Majestys Chargé
dAffaires 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 defendants 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 Barbuits 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 Ambassadors 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 Sovereigns 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. |