Action.
20
Sect. 5.
Diplomatic Officers.
against his will even in respect of private commercial transactions (i); and the privilege extends (k) to his family and suite, attaches (l), secretaries of legation (m) and other secretaries, his domestic servants, if bond fide employed as such (n), his goods, and his house.
Limits of privilege.
No privilege was held to exist where a servant lived away from the embassy, and his goods were not necessary for the convenience of the ambassador (o), nor where a chaplain did no duty (p); and an interpreter (q) and a land waiter at the customs have been held unprivileged (r).
Consuls.
A consul does not enjoy the same exemption (s).
Waiver.
The privilege may be waived as in the case of a foreign Sovereign (t).
Sect. 6.—Alien Enemies.
Right to sue and be sued suspended during hostilities.
26. On grounds of public policy an alien enemy (u) is not permitted to maintain an action in our Courts during the progress of hostilities (a) unless resident in the country by licence, or under protection of the Crown (b). An action commenced by him before the outbreak of war cannot be continued after its outbreak (c), nor can any other person maintain an action on his behalf while hostilities last (d).
- (i) See the Diplomatic Privileges Act, 1708 ( 7 Anne, c. 12); De Haber v. Queen of Portugal (1851), 17 Q. B. 196; Magdalena Steam Navigation Co. v. Martin (1859), 28 L. J. (Q. B.) 310. An English subject accredited is privileged unless an opposite condition is imposed at the time of his appointment (Macartney v. Garbutt (1890), 24 Q. B. D. 368).
- (k) As to the limits of the privilege generally, see Magdalena Steam Navigation Co. v. Martin, supra, and cases cited below.
- (l) Parkinson v. De Potter (1885), 16 Q. B. D. 152, 157.
- (m) Taylor v. Best (1854), 14 C. B. 487, 523; Hopkins v. De Robeck (1789), 3 Term Rep. 79.
- (n) Ex parte Cloete (1891), 65 L. T. 102; Fisher v. Begrez (1832), 2 L. J. (EX.) 13; Delvalle v. Plomer (1811), 3 Camp. 47; Darling v. Atkins (1769), 3 Wils. 33; Lockwood v. Coysgarne (1765), 3 Burr. 1676; Triquet v. Bath (1764), 3 Burr. 1478; Heathfield v. Chilton (1767), 4 Burr. 2016.
- Compare also Binkreshack de Foro Legatorum, where it is said that " a person in debt cannot be taken into the service of a foreign minister in order to protect him."
- (o) Novello v. Toogood (1823), 1 B. & C. 554.
- (p) Seacomb v. Bowlney (1743), 1 Wils. 20.
- (q) Malachi Carolino's Case (1744), 1 Wils. 78.
- (r) Masters v. Manby (1757), 1 Burr. 401.
- (s) Viveash v. Becker (1814), 3 M. & S. 284, 298.
- (t) See p. 19, ante.
- (u) As to who is an alien enemy, see title Aliens, and Janson v. Driefontein Consolidated Mines, Ltd., [1902] A. C. 484; Sorensen v. Reg., The Baltica (1857), 11 Moo. P. C. 141; Albrecht v. Sussmann (1813), 2 V. & B. 323; O'Mealey v. Wilson (1808), 1 Camp. 482; McConnell v. Hector (1802), 3 Bos. & P. 113.
- (a) De Wahl v. Braune (1856), 1 H. & N. 178; Brandon v. Nesbit (1794), 6 Term Rep. 82; Bristow v. Towers (1794), 6 Term Rep. 35; Ricord v. Bettenham (1765), 3 Burr. 1734; Anthon v. Fisher (1783), 2 Dougl. 649, n.
- (b) Alcinous v. Nigreu (1854), 4 E. & B. 217; Casseres v. Bell (1799), 8 Term Rep. 166; Daubigny v. Davallon (1794), 2 Anstr. 462; Wells v. Williams (1697), 1 Salk. 46; Sylvester's Case (1703), 7 Mod. Rep. 150; Boulton v. Dobree (1808), 2 Camp. 163.
- (c) Le Bret v. Papillon (1804), 4 East, 502.
- As to staying execution where an alien friend becomes an alien enemy after verdict but before execution, see Vanbrynen v Wilson (18,08), 9 East, 321.
- (d) Brandon v. Nesbitt (1794), 6 Term Rep. 23; Bristow v. Towers (1794), 6
