De Haber against the Queen of Portugal, 1851.

WADSWORTH against THE QUEEN OF SPAIN.

DE HABER against THE QUEEN OF PORTUGAL.

PROCEEDINGS IN THE COURT OF QUEEN'S BENCH ON MOTIONS FOR

PROHIBITIONS BEFORE LORD CAMPBELL, L.C.J., PATTESON, WIGHTMAN, AND ERLE, JJ., MAY 10TH AND 28TH, 1851. (Reported in 17 Q.B. 171, 20 L.J. N.S. Q.B. 305; 16 Jur. 164.)

Proceedings having been taken in actions against the reigning sovereigns of Spain and Portugal respectively to attach, under the custom of foreign attachment in the City of London, moneys in the hands of third parties alleged to be the property of such sovereigns

Held by the Court of Queen's Bench on rules for prohibitions—

Action against Foreign Sovereign.—Attachment.-Law of Nations.

No action can be maintained in this country against a foreign sovereign for any act done by him in his public capacity as representing his nation(1), nor can his goods in this country be attached. Such proceedings are contrary to the law of nations recognised and enforced in our municipal courts.(2) (Dicta of Selden and Bynkershoek, disapproved.) Prohibition.-Foreign Attachment.

A prohibition would go to restrain the Lord Mayor's Court of London from proceeding in such an action to attach the goods of a foreign sovereign under the custom of foreign attachment, and such prohibition might be granted on behalf of the sovereign without any appearance in the action, or to the garnishee even after he had pleaded nil habet, or to å stranger.(3)

This process of foreign attachment can only be resorted to when the cause of action arises within the local jurisdiction of the court from which the process issues. (4)

(1) See The Parlement Belge, 5 P.D. 197, and Mighell v. Sultan of Johore, 1894 1 Q.B. 149, which decides that our municipal courts have no jurisdiction over an independent foreign sovereign, unless he submits to it. A previous case as to suing a foreign sovereign, Duke of Brunswick v. The King of Hanover, is reported in 6 St. Tr. Ñ.S. 34, and various cases on the question are there collected.

(2) See Triquet v. Bath, 3 Burr., 1478; De Wutz v. Hendricks, 2 St. Tr. N.S. 125, and authorities there collected, 126n.

(3) See Mayor of London v. Cox, L.R. 2 H.L. 239. (4) See ibid.

These two cases, which came before the Court on rules for prohibitions, and in which judgment was delivered at the same time, arose out of attempts to enforce claims against the reigning sovereigns of Spain and Portugal by attaching funds belonging to them in this country under the custom of foreign attachment in the City of London. (a)

(a) The custom of foreign attachment in the City of London dates from very early times, and is analogous to the Scotch "arrestments,' the French saisie arrêt," and other proceedings in rem ad fundandam jurisdictionem in the Cape Colony and other countries whose jurisprudence is based on the Roman Law. See Mayor, &c., of London v. Cox, L.R. 2 H.L. 239.

The custom has frequently been certified, but not always in the same form, to the Superior Courts

WADSWORTH AGAINST THE QUEEN OF
SPAIN.

The first case related to the unpaid interest on the public debt of Spain. This interest had fallen into arrear, and had

by the Recorder of London, by word of mouth, in accordance with the ancient rights of London. In an old case of 22 Edw. 4. 306, pl. 11, Roll. Abr. 554, it was thus certified :

"That if a plaint be affirmed in London before, &c., against any person, and it be returned nihil, if the plaintiff will surmise that another person within the City is a debtor to the defendant in any sum, he shall have garnishment against him to warn him to come in and answer whether he be indebted in the manner alleged by the other; and if he comes and does not deny the debt, it shall be attached in his hands; and after four defaults recorded on the part of the defendant, such person shall

De Haber against the Queen of Portugal, 1851

formed the subject of diplomatic corre- arrears of interest on Spanish bonds, and spondence between the Foreign Office and proceeded to attach, under the custom of the Government of Spain in the years foreign attachment in the City of Lon1825 and 1830, and from that year onwards don, the sum of 10,000l., which was in the with brief intervals. In 1847 Lord hands of Joaquin Scheidnagel, President Brougham, on behalf of the Spanish bond- of the Spanish Financial Commission in holders, presented a petition to the House London, and Messrs. Martin and Stone, of Lords, and Lord George Bentinck intro- | bankers, which sum he alleged to be the duced a motion in the House of Commons property of the Queen of Spain. asking for reprisals against Spain (Hansard, vol. 91, pp. 319, 1149, and vol. 93, pp. 1285-1307).(a)

De Haber against the Queen of Portugal, 1851.

interest was due and payable on certain days
now past.
"T. P. WADSWORTH.

"Sworn at the Lord Mayor's

Court Office, London, this 30th day of December 1850. Before me,

"G. ASHLEY."

On the same day Scheidnagel, as garnishee, was served with the following notice :-

"WADSWORTH v. QUEEN OF Spain. "Take notice that, by virtue of an action entered in the Lord Mayor's Court, London, against Her Most Christian Majesty Doña Isabel Segundar Queen of Spain, defendant, at the suit of Thomas Page Wadsworth, plaintiff, in a plea of debt upon demand of 20,000l., I do attach all such moneys, goods and effects as you now have, or which hereafter shall come into your hands or custody, of the said defendant, to answer the said plaintiff in the plea aforesaid: and that you are not to part with such moneys, goods or effects without licence of the said Court.

64

The bond or certificate mentioned in the plaintiff's affidavit (so far as the terms are material) was afterwards proved as follows:

"Public Debt of Spain.

Great Book of
the active debt.

Five per cent.
consols."

"The bearer of this certificate is entitled to an annuity of ten hard dollars, equivalent to fifty-four francs or two pounds two shillings and sixpence sterling, representing a capital of two hundred hard dollars, one thousand and eighty francs, or forty-two pounds ten shillings sterling, by virtue of the law decreed by the Cortes and sanctioned by Her Majesty the Queen Regent Isabel II., the 16th November 1834, and of the in the name of her august daughter Doña treaty concluded between the Minister Secretary of State for the finance department, and M. Ardoin, banker, of Paris, the 6th December of the same year.

"The said annuity will be payable in Madrid, Paris, or London, at the option of the bearer, half yearly, on the 1st May and 1st November in each year, on presentation of the dividend warrant then due: in Paris at the rate of five

"CHAS. SEWELL, Serjeant-at-Mace. "GEO. ASHLEY, plaintiff's attorney, Lord Mayor's Court Office, "Old Jewry." francs forty centimes per hard dollar, and in The record further showed a return London at four shillings and three pence sterby the Serjeant-at-Mace that he had at-ling, also per hard dollar. tached the defendant the Queen of Spain by the said 10,000l. in the hands of Scheidnagel as garnishee; and that the defendant was thereafter solemnly called at three Courts and did not appear; that at the fourth Court the plaintiff prayed process, and that Scheidnagel, the garnishee, should be warned to appear on 17th January to show cause why the plaintiff ought not to have execution of the 10,000l. then in the garnishee's hands. The garnishee Scheidnagel thereafter appeared and pleaded Nil habet, that he did not owe or detain from the said defendant the sum of 10,000l., or any part thereof, and Thomas Paterson of Liverpool, merchant, filed a bill of proof praying to be admitted to prove that the 10,000l. was his property, and that

"The bearer has the option of causing this certificate to be definitely converted into an extract of inscription, payable in Madrid.

"To this certificate are attached forty dividend warrants. and If at the end of twenty years

before the date of the attachment the defendant had given him an order to receive the same when paid to the garnishee.

An attachment was obtained in the same form against Messrs. Martin and Stone, the bankers with whom the 10,000l. was deposited. They put in the same plea of Nil habent, and Paterson the same proof claiming the sum.

On January 29th application was made to the Recorder of the Lord Mayor's Court to dissolve the attachments on common bail (a) being filed on behalf of the Queen of Spain, on the ground that a foreign independent sovereign could not be held to bail, which application was refused.

(a) See below, p. 336n.

it should not have been withdrawn from circulaversion into an extract of inscription, forty new tion either by means of redemption or of condividend warrants shall be delivered on the presentation of this certificate with the dividend warrant preceding that which latest becomes due."

The instrument was dated "Madrid, 10th December 1834," and purported to be subscribed by the Secretary of State for Foreign Affairs, the Count Toreno, and by the director of the Royal Sinking Fund

El Director de la Real Caja de Amortizacion") and of the Great Book, “Anto.

Barata."

De Haber against the Queen of Portugal, 1851.

government of her kingdom, and that the defendant was the reigning sovereign of Spain, and entitled to all the rights, prerogatives and privileges appertaining to such sovereignty, and that the said bonds and certificates were made by the Queen Regent of Spain in her sovereign character only, for and on account of the kingdom of Spain, and as an act of state in the government thereof, and not for or in respect of any private or personal debt due by the said Queen Regent, or the Queen of Spain, to T. P. Wadsworth, and that Her Majesty was domiciled in Spain out of the jurisdiction of the Court, and was recognised by Her Majesty Queen Victoria as reigning sovereign of the kingdom of Spain, and that that kingdom was in peace and amity with the Crown of Great Britain.

It was also stated on affidavit that, under the laws and customs of London, no plea could be put in on behalf of the defendant, and no demurrer or other proceeding on the part of the garnishees, to raise the question of the jurisdiction of the Mayor's Court to cite the Queen of Spain, or attach her money; nor could the question of the Queen of Spain's liability to the plaintiff be decided, unless special bail were put in on her behalf to pay the sum that the plaintiff might recover, or render herself to prison to be committed to the Poultry or Giltspur Street Compter. Counsel cited The Duke of Brunswick v. The King of Hanover, (a) and contended that the sovereign of a foreign realm could not be sued in an action which required that she should put in special bail to answer in a court of this country for an act of state; and, consequently, that proceedings could not go on against the garnishees.

Lord CAMPBELL, L.C.J.: Must there be an affidavit of debt to commence a suit in the Lord Mayor's Court?

Randell (with Chambers): There must, by the custom.

A rule nisi was granted.

May 10th, 1851.
ARGUMENT AGAINST RULE.
Hoggins, Welsby, and Locke showed
cause.(b)

Hoggins: The case is within the jurisdiction of the Lord Mayor's Court, because the dividends are payable in London. It is not necessary for the plaintiff to state this in his affidavit of debt if he states it

(a) 6 St. Tr. N.S. 33; 6 Beav. 1.

(b) Gurney attended on behalf of the City of London to watch the proceedings, lest the custom of foreign attachment should be infringed.

in the plaint. The affidavit is unnecessary, and no part of the proceedings in the Court. Banks v. Self (a) and Hatton v. Isemonger. (b)

Lord CAMPBELL, L.C.J.: The affidavit is intended to show the cause of action. It seems to be evidence against the plaintiff, as far as it goes.

Hoggins: The proceeding in question is against a garnishee according to the custom of foreign attachment. Assuming that in some stage of the case the Queen might interpose, and allege something to defeat the action, a prohibition cannot go. If a prohibition lay under the present circumstances, the party complaining would have no remedy; for which reason privilege, of attorneys or others, is not allowed to oust the Court of jurisdiction in foreign attachment; Turbill's case, (c) Gilb. Com. Pleas, 209, Ridge v. Hardcastle.(d) Bohun's Privilegia Londini, 253 et seq., 3rd ed. It is enough, for the purpose of instituting a foreign attachment, to show that the garnishee, being within the City, has funds of the defendant; and, if the garnishee does not come in and establish anything that may discharge him, which the defendant also is at liberty to do, then, according to the certificate of the Recorder of London, cited in note (1) to Turbill's case, (c)

judgment shall be, that the plaintiff shall have he (the garnishee) "shall be quit against the judgment against him" (the garnishee), “and that other, after execution sued out by the plaintiff."

Lord CAMPBELL, L.C.J.: The garnishee's payment is taken to be a payment by the defendant.

PATTESON, J. Surely the foundation of all this proceeding is a debt as to which the Court has jurisdiction over the defendant. As you argue, if there were funds in the City belonging to the Queen of England, there might be an attachment against the garnishee.

Hoggins: In Banks v. Self,(e) cited and acted upon in Harington v. Macmorris, (f) the defendant pleaded a recovery against him as garnishee in a suit against the plaintiff, defendant being debtor to plaintiff at the time; and on demurrer it was objected that the suit against the now plaintiff in the Court below was not shown to have been brought for a debt arising within the jurisdiction; but the Court of Common Pleas held this no valid objection, and gave judgment for the de

fendant.

(a) 5 Taun. 234 (note).

(b) 1 Str. 641, and see below, p. 70.
(c) Wms. Saund. 67.
(d) 8 T.R. 417.
(e) 5 Taun. 234, note.

De Haber against the Queen of Portugal, 1851.

Lord CAMPBELL, L.C.J.: The question there was, whether it must positively appear on the pleadings that the Court had jurisdiction; it was not said that the want of jurisdiction, if averred, might not have

"it does not appear that the debt arose within by the Queen Regent, and of a treaty conthe jurisdiction;"