which he has acted as agent for a foreign sovereign, the suit would not be perfect as to parties unless the foreign sovereign were formally a defendant, and by making him a party an opportunity is afforded him of defending himself instead of leaving the defence to his agent, and he may come in if he pleases. In such a case, if he refuses to come in, he may perhaps be held bound by the decision against his agent." Duke of Brunswick v. King of Hanover, 1844, 6 Beav. 39.

So far as this doctrine is sound, it applies now to the supreme court; and it certainly is sound as to the first portion, which deals with cases where the court is called on to distribute a fund. The second portion however, which deals with cases where persons have acted as agents for foreign sovereigns, ought to have been expressed in a more guarded manner. If the plaintiff can establish a right in the nature of property or hypothecation to the money or things which the agent holds in his hands within the realm, the matter falls under the same principle as the class of cases in which the court has to distribute a fund. There is in fact a fund within the jurisdiction, the rights in which the court cannot refuse to declare and carry into effect, without a denial of justice similar in kind to that which would take place if the court refused to deliver land to one claiming it by a title superior to that of a foreign sovereign, or to foreclose a mortgage of land against a foreign sovereign. And there would be this further circumstance in favour of exercizing the jurisdiction, that it would be unnecessary to sue the foreign sovereign, because the movables could be reached through the agent, who would be protected against his principal by the judgment. But if the plaintiff only claims by virtue of an obligation alleged to exist on the part of the foreign sovereign or state, he can no more pursue that claim indirectly through the agent than he could do so directly; and he is defeated by the refusal or omission of the foreign sovereign or state to appear and consent to be bound,

Attempts were made in the following cases to apply the latter part of lord Langdale's doctrine, as quoted in § 183; but in none of them was relief ultimately obtained, it being held in all that no right in the nature of property or hypothecation to the money or things in the agent's hands had been established. Smith v. Weguelin, 1869, L. R., 8 Eq. 198, Romilly: Larivière v. Morgan,

decided in favour of the plaintiff by Malins and on appeal by Hatherley, 1872, L. R., 7 Ch. Ap. 550, but reversed on further appeal, 1875, L. R., 7 E. & I. A. 423, by Cairns, O'Hagan and Chelmsford: Twycross v. Dreyfus, 1877, L. R., 5 Ch. D. 605; Hall, affirmed by Jessel and James. In Gladstone v. Musurus Bey, 1862, 1 H. & M. 495, Wood, the plaintiffs obtained an interim injunction against the Bank of England as stakeholders, but the case is not traceable further. In Gladstone v. Ottoman Bank, 1863, 1 H. & M. 505, Wood, the plaintiffs did not rely on any right to money or things in England, but attempted in vain to restrain the Ottoman Bank from enjoying in Turkey the benefit of an act of state of the Turkish sultan, which they alleged was in violation of their rights. They must have equally failed, as the judge pointed out, if they had made a similar complaint of a British act of parliament.

In Vavasseur v. Krupp, 1878, L. R., 9 Ch. D. 351; Jessel, affirmed by James, Brett and Cotton; a foreign sovereign was allowed to remove certain shells, which were his property, out of the country, notwithstanding that the plaintiff claimed to have them destroyed in protection of his patent, infringed by the sovereign's agent.

§ 184. "All writs and processes that shall at any time hereafter be sued forth or prosecuted, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by her majesty her heirs or successors, or the domestic or domestic servant of any such ambassador or other public 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." St. 7 Anne, c. 12, s. 3.

"Provided and be it declared that no merchant or other trader whatsoever, within the description of any of the statutes against bankrupts, who hath or shall put himself into the service of any such ambassador or public minister, shall have or take any manner of benefit by this act." Ib., s. 5.

This is the statute passed in consequence of the Russian ambassador having been taken from his coach and imprisoned by a private suitor, and its third section, above quoted, has always been deemed to be merely declaratory of the common law. So far indeed as concerns an ambassador or public minister himself, the immunity extends further than is expressed in that section. Not only is his person privileged from arrest, and his goods or chattels from seizure, but he cannot be sued at all, even for the purpose of obtaining against him

a judgment which may be enforced by execution after he has ceased to be entitled to the privilege.

Magdalena Steam Navigation Company v. Martin, 1859, 2 E. & E. 94; Campbell, Wightman, Erle, Crompton.

Nor can he be made a defendant as representing his sovereign or state, with the view of giving him an opportunity to appear and defend the rights of such sovereign or state, when they may be adjudicated on pursuant to lord Langdale's doctrine quoted in § 183. Gladstone v. Musurus Bey, 1862, 1 H. & M. 495, Wood.

Nor, when a foreign sovereign or state is made a defendant in such a case as last mentioned, can the writ be served on the ambassador or minister as a means of bringing it to the knowledge of such sovereign or state.

Stewart v. Bank of England, 1876, W. N. 1876, p. 263, Jessel.

So far as concerns the servants mentioned in the statute, the following quotations illustrate the principles of decision.

"To constitute a person domestic servant it is not essential to show that he resides in the house, but if you had shown that this party was a chorister, and in such a situation that the Bavarian ambassador required his attendance from time to time in order to assist in the performance of the religious service of the embassy, I should consider that he was on this ground entitled to some of the privileges of a domestic servant": Bayley, in Fisher v. Begrez, 1832, 1 C. & M. 124. Bolland spoke to the same effect, adding, what no doubt Bayley also meant, "if such person attends at the chapel": ib., p. 127. Although he says that he is liable to be called on at any time, he does not show that he has ever actually been called upon by the ambassador to perform any services": Bayley, in Fisher v. Begrez, 1833, 2 C. & M. 243.

By the term "domestic," which is distinguished in the statute from "domestic servant," any person belonging to the family or suite of the ambassador or minister must be understood. And it is the doctrine of public international lawyers, though no occasion for applying it seems yet to have arisen in England, that the privilege accorded to the family, suite and servants is that of the ambassador or minister, who may waive it for them, unless indeed they have not

been appointed by him but by his sovereign or state, but who cannot waive his own privilege, because it concerns the dignity of his government and the convenient transaction of its affairs.

It is laid down by similar authority that where an ambassador or minister is a subject of the country in which he is accredited, he enjoys the privilege of exterritoriality only in what relates to his public functions.

§ 185. Consuls and their family and servants are not entitled to the benefit of § 184.

Barbuit's Case, 1738, Forrester's Cases temp. Talbot, 281, Talbot.

CHAPTER XI.

TORTS.

WHEN damages are claimed in respect of what is alleged to be a tortious act or omission, the selection of a law by which to decide is free from all question about the voluntary submission of the parties to the law of any country, such as arises in cases of contract, because there has been no dealing in which the parties have concurred. Another contention may be made, suggested by or imitated from what takes place in contract, namely that the defendant has voluntarily submitted himself to the law of the country in which he has acted or omitted to act, either by the very act or omission, or, if he does not belong to that country, by having entered it. But such reasoning would prove too much, for it would equally cut all the knots of private international law by referring every question to the special laws of the country where the fact which gave rise to it occurred. The truth is that by entering a country, or acting in it, you submit yourself to its special laws only so far as legal science selects them as the rule of decision in each case. Or, more truly still, you give to its special laws the opportunity of working on you to that extent. The operation of the law depends on the conditions, and where the conditions exist the law operates as well on its born subjects as on those who have brought themselves under it. The international law of torts may therefore best be considered independently of the ideas suggested by contract, and previously to that part of the subject.

Starting from the fact that according to the general notions on jurisdiction the forum delicti and the forum rei are equally competent in cases of tort, we have to enquire which of them is the primary