(9)
128
(8)
3rd, and to raise the question of Jurisdiction by a direct substantive motion, but he declined to do so.
This I regret, as it raises the appearance of making use of merely technical grounds to get rid of a difficult and important subject.
These are the only conditions under which the Court in suits of foreign attachment can award costs or damages.
It always remains open to an aggrieved Defendant to bring an action for damages, though far be it from me to suggest such a course in the present case. Moreover, I was strongly of the opinion that the Defendant had submitted to the Jurisdiction of the Court repeatedly. Without pointing out the instances at length, I content myself with referring to those enumerated by his Lordship, as to which I entirely concur in all he has said. All these reasons and circumstances led me to the opinion I had come to that the defendant had, to use Mr. Hayllar's words, submitted over and over again to the Jurisdiction of the Court. I am anxious to avoid being supposed for one moment to be expressing an opinion as to the merits of the suit originally, about which I think there is great room for doubt; and especially as to the points raised on behalf of the defendant; I only say that I think they could be ascertained and decided.
This summons sought to raise the important subjects of the jurisdiction of the Court, and the question of damages, whilst an order of the Court amounting to an order that the suit should proceed to trial was outstanding and not complied with, viz., an order that the suit should be set down for hearing, and also whilst other summoners were outstanding to the spirit of which it was at variance. Both Sir J. Smale and myself had, after much consideration, come to the conclusion that a trial was the only way by which the very difficult points in contention could be ascertained and decided.
This was by no means our wish, and I now proceed to state the grounds on which I dismissed the summons of April 14th by the order of May 3rd.
[technical grounds. I say "technical" because the Court could no doubt have amended the summons so as to get rid of the order to set down for hearing had it pleased to do so. As I pointed out before, I think that I had full power to act alone in this matter and that the absence of the Chief Justice cannot affect the validity of the order of May 3rd.]
How could the Court decide without a trial whether the King of Annam was a private trader or not? Whether the Dang Wee is a vessel of war belonging to the Annamese Government, or an armed merchant vessel, or whether Paul Nguen Dac was the real owner of the Dang Wee and real debtor or the King in his trading capacity?
The most conflicting and contradictory affidavits had been put in; and it was not probable that the Court would undertake to decide such grave questions by the light of so-called admissions on the record and doubtful affidavits. Nor, notwithstanding quotations from text books and decisions not exactly in point, could the Court refuse to give the greatest weight to the language of Sir R. Phillimore in his judgment in the case of the Charkich, reported in vol. 42, Law Journal, A.D., p. 36, where he says "No principle of International Law, and no decided case, and no dictum of Jurists of which I am aware, has gone so far as to authorize a Sovereign Prince, to assume the character of a trader, when it is for his benefit, and when he incurs an obligation to a private subject, to throw off, if I may so speak, his disguise and appear as a Sovereign, claiming for his own benefit, and to the injury of a private person for the first time, all the attributes of his character."
The conclusions and arrangements made have been arrived at by a process of compromises and by that alone—compromises of which (if the learned Attorney General was not a party to it) his client reaps the benefit. To give the defendant costs would be to decide on the merits of the suit without allowing the Plaintiff an opportunity to establish his claim. For these reasons, I am of opinion that the order of May 3rd was good, and that this appeal must be dismissed with costs.
The learned Attorney-General did not attempt to grapple with an opinion of such high authority, expressed in language so pertinent to the facts of this case, nor did he attempt to reconcile it with his argument. It was yet more improbable that when, by a compromise, the subject matter of any such trial was out of the jurisdiction of the Court, the Court would entertain that very question of jurisdiction for the sole purpose of enabling the defendant indirectly to maintain a claim for costs under sub-section 4 of section 82, which he might make directly and successfully too, provided he could show that the defendant had caused the writ to be set aside or a judgment reserved or varied, meaning, I suppose, a judgment on the subject matter of the attachment.
As to the application for costs and damages under section 82, sub-section 4, I cannot see how, for reasons already pointed out, the conditions of the Code have been complied with; the defendant has not caused the writ to be set aside nor any judgment given in the suit to be varied.
NB.—In the judgment as it was originally printed, Paul Nguen Dac Hau was stated to have sworn in an affidavit that he bought the Commodore, and that its name was changed to the Dang Wee, which still belonged to him and a partner. This is an error. It was so stated in the Petition by mistake. The statement founded on this error has been struck out.
APPENDICES.
(APPENDIX A.) [Notice of Motion, 4th March, 1874.] Take Notice that this Honorable Court will be moved before the Honorable John Smale on Friday the 6th day of March instant, at 11 o'clock in the forenoon or so soon after as Counsel can be heard by Mr. Henry Kingsmill Counsel on behalf of His Majesty Tu Duc King of Annam for an order that the Foreign attachment made herein be dissolved forthwith upon the parties consenting to an order as follows:-
1.—The attachment on the steamer shall be dissolved forthwith.
2.—On the payment at Huey of the amount due by the defendant to the plaintiff, all proceedings in this action shall be discontinued, such amount to be ascertained at Huey.
3.—On the payment of the ascertained amount, the plaintiff shall pay the defendant's costs.
4.—The amount due to be ascertained within 3 months and the ascertained amount to be paid within 6 months, such time to commence from the date of the order.
5.—If the amount found to be due shall not be ascertained and paid as aforesaid, then the defendant shall pay to the plaintiff the amount claimed in the writ of summons issued herein together with interest at the rate of 12 per cent. per annum commencing from the 13th October, until payment and all the costs incurred by the plaintiff.
6.—All expenses incurred by the plaintiff or his agent proceeding to and on his returning from Huey to ascertain the amount due shall be borne by him.
The order to be without prejudice as to the question whether the defendant is or is not an independent Sovereign Prince.
Dated this 4th day of March, A.D., 1874,
CALDWELL AND BRERETON,
Defendant's Solicitors. To the Registrar of the Supreme Court, Hongkong.
(APPENDIX B.) [Order 6th of March, 1874, made on notice Appendix A.]
ascertained at Huey; that on the payment of the ascertained amount, the plaintiff shall pay the defendant costs in this suit; that the amount due be ascertained within 3 months and the ascertained amount be paid within 6 months, such time to commence from the date of this order; that if the amount found to be due shall not be ascertained and paid as aforesaid, then the defendant shall pay to the plaintiff the amount claimed in the writ of summons issued herein, together with interest at the rate of 12 per cent. per annum, commencing from the 13th October, 1873, until payment, and all the costs incurred by the plaintiff; and that all expenses incurred by the plaintiff or his agent proceeding to and on his returning from Huey to ascertain the amount due shall be borne by the plaintiff.
Dated this 6th day of March 1874,
By the Court,
W. H. ALEXANDER,
Registrar.
(APPENDIX C.) [Order of second Foreign attachment of the "Dang Wee."]
A question having been raised whether the parties who represented the defendant in this Court were duly authorised by the King of Annam, both parties consenting.
The Court does order that the foreign attachment suspended be renewed and that the Dang Wee be restored to the custody of the Court upon the foreign attachment as if the order of the 6th March, 1874, had not been made.
Let all parties and persons have liberty to proceed by themselves or their agents to Annam and make such arrangement there as they shall respectively be advised and come to.
Let the proceedings thus suspended be subject to the further order of this Court.
THOS. C. HAYLLAR,
Counsel for the Plaintiff. HENRY KINGSMILL,
Counsel for the Defendant.
(APPENDIX D.)
A summons in the common Form issued by Messrs. Stephens and Holmes dated 25th January, 1875 to Messrs. Caldwell and Brereton to show cause why the former should not be appointed defendant's attorneys in this cause in the stead of the former upon payment to Messrs. Caldwell and Brereton of their costs in this suit.
(APPENDIX E.)
On hearing Mr. Henry Kingsmill Counsel for the defendant, and the Honorable Thomas Child Hayllar Counsel for the plaintiff, and by consent of the parties, the defendant protesting that his rights and status of an independent Sovereign Prince are not affected hereby otherwise than for the purposes of this cause, it is ordered that the attachment on the steamer shall be dissolved forthwith; that on the payment at Huoy of the amount due by the defendant to the plaintiff, all proceedings in this action shall be discontinued, such amount to be ascertained at Huoy.
[Order made on summons in Appendix D] Upon the application of Counsel for the defendant, and upon reading two affidavits of Lai Dui, filed respectively the 26th day of January, and 2nd day of February, 1875. It is hereby ordered that Messrs. Stephens and Holmes be...