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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.
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.
My opinion was 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 on the merits of the suit originally, about which I think there is great room for doubt; and especially as to the points raised in behalf of the defendant; I only say that I think them at this late period in the suit out of time and out of place.
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 summonses were outstanding, to the spirit of which it was at variance. Both Sir J. Saale 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.
As I have 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 Nguyen Duc was the real owner of the Dang Wee and real debtor? or the King in his trading capacity?
Many difficult questions arising out of it could not be satisfactorily settled, as to the merits of the suit, without a long and costly trial, the first incident of which must be a commission to take the evidence of Mr. Schwever in Paris, and remembering that an order of the Court that a trial should take place had been granted on the application of the defendant himself, I think that I was right in dismissing the summons on 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 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.
The conclusions and arrangement were not varied.
N.B.-In the judgment as it was originally printed, Paul Nguyen 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 his partner. This is an error. It was so stated in the Petition by mistake. The statement founded on this error has been struck out.
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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 this 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 made on Notice of Motion, Appendix A.]
Upon 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 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.
(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 shew 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.)
[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 appointed defendant's attorneys in this cause...
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