(2)
On the 21st November, 1873, a notice of communications with the Government of this colony by defendant was served on the plaintiff, and with the King of Annam, to which that the Court would be moved on the 24th of the same month for an order to dissolve the injunction on two grounds:
1st. That the Dang Wee, the vessel seized, was a ship of war belonging to the service of H.M. Tu Duc, King of Annam.
2nd. That the said ship had been attached under process subsidiary to a personal action commenced in this Court against the King, over whom, it was submitted, this Court has no jurisdiction.
The negotiations ended in a compromise between the parties; and on the 4th March a notice of motion on behalf of the defendant was filed to be heard on the 6th.
This notice is so important that I must read it (See Appendix A).
On the 20th of the same month a summons was issued, not under protest, by Mr. Stephens as defendant's attorney, calling on Messrs. Caldwell and Brereton to show cause before the Judge in Chambers upon whose instructions an appearance had been entered for the defendant by them, why the proceedings taken should not be set aside, and why His Majesty should not be defended in the said proceedings by his attorney, Mr. Stephens.
Was not this an absolute submission by Mr. Stephens as attorney for the defendant to the jurisdiction of this Court? I think I may say that this is submission No. 1.
A sum of $1,000 was paid into Court to answer costs, after a large number of affidavits had been filed, and after some hearings in Court, Mr. Drummond then, of counsel for Mr. Stephens, on the 28th November abandoned the summons. The costs of Messrs. Caldwell and Brereton of and incident to the motion were agreed to be paid out of the $1,000 paid into Court by Mr. Stephens, the balance to be paid to Mr. Stephens. These terms, with an order that all the affidavits should be taken off the file, were embodied in an order.
The notice of motion being by defendant shows that he was the active party. The words of the notice are pregnant with meaning as being a full submission by the King to the jurisdiction of the Court in the cause.
The order is emphatically by consent, which precludes all appeal or subsequent decision adverse to it. Its protest of the status of the defendant in its terms is an admission that his rights and status as prince are abandoned for the purposes of this cause.
I must say that I was not well satisfied with the unsustained attempt at that time to supersede Mr. Brereton as defendant's attorney.
The effect of the abandonment of the motion, and payment of costs of motion, was an acknowledgment by Mr. Stephens, and those who instructed him including the King, that Messrs. Caldwell and Brereton properly represented the King in the suit.
The motion to discharge the foreign attachment made on the instructions of Messrs. Caldwell and Brereton, of which notice had been given on the 20th November, then came on for argument.
I know of no words from which the submission by the defendant to the jurisdiction of this Court could be inferred more fully than are to be found in this notice and order.
Many affidavits were filed on each side, and the two questions raised on the motion were argued at very great length, occupying ten full days, by Mr. Kingsmill for the defendant, and Mr. Hayllar, Q.C., and then Acting Attorney-General, for the plaintiff, and I directed the motion to stand over for consideration.
All these were emphatically, as to the amount of indebtedness by the King to the plaintiff, absolutely, and irrevocably admitted by the defendant.
I thought the case so important and difficult that in the hope that, whatever my decision might be, it might be reviewed by the highest authority, I desired the learned counsel to give me the substance of what each said in writing.
The attachment on the Dang Wee was, as the result of the order discharged, and the benefit of the order was taken by the defendant, the King, whose agent took possession of her for him absolutely.
(3)
This order having been made on the 11th February, the defendant's now attorneys take no action till on the 10th of March. On their ex parte application in Chambers, the defendant obtained liberty to put in his answer within ten days, without prejudice to his right as a sovereign prince, and to the writ of foreign attachment.
On the 16th March, 1875, the defendant filed his answer, in which he alleged his right as a sovereign prince, and took issue on the questions raised in the plaintiff's petition, claiming that the Dang Wee is a public ship belonging to the naval establishment of Annam.
The parties came to no conclusion at Annam; the King paid no money to the plaintiff; and after ineffectual efforts to arrange, the parties returned to Hongkong - the King having failed to do any part of what, by his consent, the Court had ordered him to do.
From the 15th March, when the defendant filed his answer, up to the 14th April last, both parties awoke into excessive activity - an activity never before in my experience exceeded in any cause.
The Court was moved in pursuance of notice of motion on the 14th April, 1874, to carry out the order of the 6th March, 1874, in Appendix B, that the Dang Wee should be again attached; and an order for the re-attachment of the Dawy Wee was made by consent (See Appendix "C") - and a new writ of foreign attachment was then issued on which the Dang Wee was attached a second time.
The plaintiff did not proceed further in his suit, and the defendant, so far as I can see, took no step until January, 1875, and the Court could not act spontaneously.
On the 25th Jan., 1875, Messrs. Stephens and Holmes again intervened in the action by notice of motion (See Appendix D).
On the 11th February, 1875, an order in the terms of the notice of motion on behalf of the King was without objection made (See Appendix E).
This order is important. It recognises for a second time Messrs. Caldwell and Brereton as having been up to that date the properly appointed attorneys of the defendant.
It was also a recognition of the submission by the defendant to the jurisdiction of this Court, being for the purposes of this suit only.
And here I must say that Messrs. Caldwell and Brereton appear to me to have conducted this case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince.
Three summonses were ripe for hearing in April. Mr. Justice Snowden has had the goodness to give an accurate and clear history of the proceedings from the filing the answer up to and including his decision of the 3rd of May, the subject of the present petition of appeal of which we have now to dispose.
I have read that statement which will be read presently. I believe it to be entirely accurate. I am clearly of opinion that the order of the 3rd of May last, now under appeal, must be confirmed.
In the course of his argument on the appeal, the learned Attorney General contended that early on the cause the Court had failed in its duty to communicate with the Government of this Colony, and also with the King of Annam.
It was impossible for the Court to have shown more anxiety than it displayed to obtain information, and the intervention by the Government was not forthcoming.
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