A.
(10.)
appointed attorneys for the defendant in this Cause IN THE STEAD of Messrs. Caldwell and Brereton, UPON PAYMENT to the said Messrs. Caldwell and Brereton of the costs incurred by them up to this date in or in relation to the said cause.
JOHN SMALE, Chief Justice. (APPENDIX F.)
(Translation.)
Uu, the Minister of the Mercantile Marine of the Kingdom of Annam respectfully makes this communication to His Lordship the Chief Justice of the British Colony of Hongkong and prays His Lordship to favor it with his perusal. I received letters from Ho-Man-Chung, Assistant Commander of the steamer Dang Wee reporting that the repairs of the steamer have of late been nearly completed, but that she was arrested and her workmen stopped on account of a suit which was brought by the head partner of Messrs. Landstein & Co.'s firm against the said steamer before your Lordship's Court for heavy debt contracted by Un-Tak-Han, a Messenger of the 9th Rank, with the said head partner who now detains the steamer for the repayment of the debt, &c.
From enquiry I found that John Jack was the owner who sold her to us at a suitable price of $91,000 which was duly paid in full, and of this there is documentary proof. In the 23rd and 24th year of Tu Duc, Lai Fai, her first Commander and Ng Wang her second Commander were commissioned to proceed in the steamer to Hongkong where they had the presumption to stand security for Un-Tak-Hao, in the purchase of a small steamer, and for the private negotiation of a loan with Messrs. Landstein & Co., for the buying of some Ginseng. The Master of that firm wrote to us asking for the reimbursement of the debt which had been privately contracted by those two officers. This was a private transaction and not a public one, and the debt was not incurred for the purchase of the Dang Wee steamer, which is the property of our Government and not of Un-Tak Hau.
The circumstances of the case were set forth in a letter which was forwarded to His Excellency the Governor through Wo Ku the 1st Commander of the Dang Wee steamer, then bound to your port for repairs, on a certain day in the 1st month of last year, and we presume His Excellency perused its contents.
Now the steamer is implicated in a suit and up to the present time, which is fully one year, her repairs have not been completed.
According to the reports of Wo Ku and of another officer who has returned, the suit was trumped up by Chau-Yu-Yee (Schwerer?) a capitalist in Messrs. Landstein & Co. with the assistance of Monogham, the Engineer of the steamer Dang Wee, and Dumphy the Superintendent of her repairs, who acted as spies and used their influence in the case.
How is it that the head partner of Messrs. Landstein & Co. who is at present absent, did not serve us previous notice? The whole matter looks suspicious in fact.
As we are living at a distant part of the ocean, we have no means of knowing what evidence was given and in what manner the lawyers, Messrs. Caldwell and Kingsmill, defended the case. As hitherto our Government steamers bound to your port, on public service, were indebted to the British officers for protection, I beg your Lordship, when the case against the steamer Dang Wee is brought before your Court for trial to speedily decide it impartially, and to bring to light the fact that the debt left unpaid was contracted by Un-Tak-Hao, Lai-fai and Ng-Wang, and is their private debt and by no means a public one.
As Lai-Tin, Vice-President of the Board of Revenue, attended by Un-Fai-Kwan, a Clerk of the same Board and Acting Deputy of the steamer Dang Wee, proceeds to your port to act as Royal Commissioner and 1st Commander of the Dang Wee for the purpose of Superintending the affairs of the steamer, I have instructed these officers to lay before your Lordship this Communication setting forth the circumstances of the case, and I beg your Lordship to distinguish the truth from the falsehood and to decide the case impartially and according to the various accounts set forth in my Despatch, so that the steamer may be able to return early to our Country for service after completion of repairs.
For your doing so I will ever be under obligation to your Lordship. I have now obtained the facts in connection with the debt which was privately contracted by Un-Tak-Hau, Lai-Fai, and Ng Wang, whom I have ordered to repay the money which is hereafter left to be settled by them with the head of Messrs. Landstein & Co. In conclusion I beg to express my wish that your Lordship may enjoy the happiness of the season.
A respectful Communication. 4. 1. 27th year of Tu Duc.
(APPENDIX G.)
(Answer by the Registrar of the Supreme Court)
The Supreme Court Hongkong, May, 1874.
SIR,
I have the honor to acknowledge the receipt by the Chief Justice of Your Excellency's letter dated the 4th day of the first month of the 27th year of the reign of H. M. Tu Duc.
1.-I am directed to state that it is contrary to the Law and custom of England for a Judge to receive any communication by letter, all communications must be made in the presence of the parties whose interests are intended to be affected thereby. Considering however that the customs here are not known in Annam, I am to reply to Your Excellency's letter.
2.That letter contains various statements of circumstances which you doubtless understand to be accurate, but it is contrary to English Law that any statements however accurate can be accepted by the Judge unless they are proved by the solemn declaration of persons who would be subject to criminal prosecution by the Court in case the statements should not be true, whatever reliance therefore you may place on the statements made to you, and repeated in your letter the Judge must disregard them entirely, and is bound by inflexible Law to dispose of the case of Landstein against His Majesty Tu Duc now litigated before him according to facts deposed to and hereafter to be deposed to in this Supreme Court and the Law of England as applicable to those facts.
3.That case or suit was commenced in due form by a petition by Landstein the plaintiff.
A copy of that petition accompanies this letter marked A, to which Your Excellency is referred.*
The petition contained a statement that Landstein a merchant in Hongkong sued the defendant His Majesty Tu Duc the King of Annam in, and for the balance due for goods sold and delivered to the defendant and otherwise, that the cause of action arose within the jurisdiction of this Court and that H. M. Tu Duc was entitled to moneys in the hands of Heard & Co., and to the Dang Wee then lying in the harbour of this Colony in the possession of Ng qu and Ho Vau Tung.
A copy of this affidavit accompanies this letter marked B.*
The said sum of $159,799.19 thus so far appears to be due from H. M. Tu Duc to Landstein as to enable him Landstein to have security on all the effects of H. M. in this Colony until it shall be proved according to the Law of England whether that sum or any part of it is due.
In his capacity of merchant or trader. It sets forth an agreement dated the 20th of January of the Christian era 1870, (about four years ago) entered into between Lai How and Ng Wob, mandarins, ambassadors, and agents of His Majesty Tu Duc, and that thereby the steamship Commodore was sold to H. M. Tu Duc for the price of $66,000, that that ship was duly delivered to and accepted by H. M. Tu Duc, and that His Majesty had changed the name of this ship Commodore to the Dang Wee, and that under that name that vessel has since very frequently been used by H. M. Tu Duc for the purposes of trade or profit with cargoes of merchandise on board for sale.
5. Upon this affidavit taken as proof until disproved that H. M. Tu Duc owed that sum to Landstein, this Court was compelled by the obligation of doing justice to grant a writ of foreign attachment.*
A copy of the agreement was annexed to the petition, a copy thereof marked A. 1,* accompanies this letter to which Your Excellency is referred.
The same petition further alleged the sale and delivery to H. M. Tu Duc of divers merchandise, and claims thereon which Landstein alleges not to have been paid for.
Annexed to the petition were two accounts, One-A2* being the account in respect of the sale of the Commodore, on account of which the plaintiff alleges that a sum of $83,885.13 is now due to him. The other A3* being an account in respect of merchandise and charges on account of which the plaintiff alleges that a sum total of $91,033.59 is due, copies of these two accounts are accompanying this letter.
In substance the petition states that H. M. Tu Duc has actually received value from Landstein to the total amount shown by the two accounts.
The petition asks the Court to decree payment to the plaintiff by the defendant of the said sums, making the sum of $174,918.72.
4.-When such a petition is filed it becomes the duty of the party against whom a claim is made to appear in Court and deny the claim. In a case in which the party sued is not in the Colony the law provides a remedy, H. M. Tu Duc not being in the Colony that remedy was applied in reference to H. M. as it would be against any ordinary absent person. That remedy is called a writ of foreign attachment. The proceeding was as follows:-
Mr. Erdmann the managing clerk of the plaintiff Landstein made oath and solemnly declared that H. M. Tu Duc was then justly and truly indebted to the plaintiff Landstein in the sum of $159,792.19 the purchase money of the steamship Commodore and alterations thereon.
A copy of this writ of foreign attachment marked U accompanies this letter.*
6. Under this writ the sheriff who is an officer of this Court seized the ship the Dang Wee and holds it as security so far as it will extend that the plaintiff Landstein shall have the proceeds of the sale of it in part payment of the sum provisionally proved due until the defendant H. M. Tu Duc shall prove that nothing is due or as security for so much as shall ultimately be proved due.
7.-An Annamese officer named Ho Voa Teong instructed Lawyers to defend the rights of H. M. Tu Duc, and for him Mr. Kingsmill an advocate before the Court contended.
1st. That H. M. Tu Duc was an Independent Sovereign.
2nd. That the ship was not a trading ship, and that on one or both these grounds the steamer ought to have been set free.
On the part of Landstein the contrary was contended by Mr. Hayllar his advocate.
8.-Whilst the Court was considering the matter an agreement was come to on behalf of Landstein on the one part and of H. M. Tu Duc on the other part.
Copy of this agreement marked D is herewith sent and by consent it was arranged that the steamer should be freed and sent back to Annam.
9.-This agreement was most satisfactory to the Court. It placed the whole decision of the matter in the Royal Judgment of H. M. the King of Annam, Landstein asserted that he was quite satisfied with the agreement and the case was left in that state out of deference and respect for H. M., which was proper.
10.-It seems however that Un Fai Kwan had claimed to act for H. M. the King in this matter, but his Lawyers and advocate retired from that claim. However he went it seems to Annam and made representations, which induced H. M. U to send Lai Tin to Hongkong with letters to H. E. the Governor of this Colony and to the Chief Justice.
* These Documents are long and unnecessary for this Judgment,
own my part