SUPREME COURT, 5th July.
BEFORE THE HON. CHIEF JUSTICE (SIR JOHN SMALE) AND MR. JUSTICE SNOWDEN.
LANDSTEIN v. THE KING OF ANNAM. This cause had come on for argument before the full Court on a petition of appeal against an order made by Mr. Justice Snowden on the 3rd of May, by which order all proceedings in the cause had been in effect put an end to.
Counsel lately argued the various questions raised in the petition at length, and the Court took time to consider its decision.
Judgment was now given on the appeal by the Chief Justice and Mr. Justice Snowden at length.
The Chief Justice delivered the following judgment: --
This is a suit by Mr. Landstein, a merchant in this Colony, against His Majesty Tu Duc, King of Annam, sued in his private capacity, commenced by writ of summons dated 14th October, 1873, being suit No. 1 under the new Code of Procedure.
On the writ is endorsed the subject matter of the plaintiff's claim, being for a balance in the whole of $159,792.19, and the relief sought is the payment of that sum to the plaintiff.
Mr. Erdmann, the managing clerk to the plaintiff, who was then absent, made affidavit that the defendant was absolutely indebted to the plaintiff in $159,792.19 in the usual form, and a writ of foreign attachment was issued, as of course, out of the office by the Registrar under which the defendant's steamer Lang Wee, then in this harbour, was seized by the sheriff on the 14th October, 1873.
The plaintiff filed his petition in the manner and form prescribed by the New Code on the 27th October, 1873, in which he briefly stated his case. He stated an agreement in writing, dated 20th January, 1870, between the plaintiff and Lai How, and Ng Woh, therein described as mandarins and ambassadors on behalf of the defendant, which the plaintiff set out in a schedule to the petition. By that agreement, after reciting the purchase by the two mandarins on behalf of the King of the steamship Commodore, with certain alterations to be made in her, then in this harbour, at the price of $66,000, it was agreed that upon the repairs, &c., therein specified being made, the two mandarins on defendant's behalf would pay to the plaintiff the said $66,000, either at Annam, or in Hongkong. That the ship so repaired and equipped had been long ago delivered to and accepted by the defendant. The petition, by an error of the pleader, stated that the name of the Commodore was changed, and that she was afterwards called the Lang Wee. The petition also stated that the vessel was used by the defendant for the purposes of trade or profit, having very frequently put into the harbour of Hongkong with cargoes of merchandise on board for sale, and that she had not been a war steamer in any fair sense of the word.
The petition further alleged sales to the defendant, in his capacity of trader, of goods and merchandise at various times to a very large amount.
The petition claimed payment of the amount for which the writ was issued.
On the 17th November, 1873, an appearance "under protest" was entered by Mr. Brereton, as attorney for the defendant.
On the 21st November, 1873, a notice of motion by defendant was served on the plaintiff 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 Lang 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.
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 shew 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.
I must say that I was not well satisfied with the unmaintained 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.
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 directed the motion to stand over for consideration.
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. This they have done at great length, and I must say I have seldom read more learned arguments.
The difficulties of the case, and communications with the Government of this colony, and with the King of Annam, to which I shall hereafter much more particularly allude, and negotiations going on between the parties, caused me to postpone my coming to any decision, a postponement fully acquiesced in by both parties.
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 (Appendix A).
The matter was accordingly mentioned in court on that 6th of March, and a very remarkable order was, by deliberate consent of counsel for each party, made in the terms which I must also read (Appendix B).
The notice of motion being by defendant shews 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. It seems to me to be an express submission of the defendant's rights to the Court, waiving in effect all rights of exemption as an independent sovereign prince, and to be an admission of an indebtedness by the defendant to the plaintiff.
The order is emphatically by consent, which precludes all appeal in 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. It admits indebtedness, and recognises discontinuance of the action only on payment of what is due; and it orders, and this emphatically by consent of the defendant, that in the event of non-agreement as to an amount, the whole of plaintiff's claim is to be paid by the defendant.
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. I know of no words more completely inferring some indebtedness, to an extent approaching the $159,792.19 which the plaintiff claims, and which, in the event of the plaintiff making no concession, the defendant submits by his consent to the order requiring him to pay. I call this notice of motion submission No. 3; and I call the order obtained by the defendant on his own express consent admission No. 3.
I congratulated myself that this order, by the act of the King mainly, and by consent of both parties, relieved me from deciding whether the defendant was an independent sovereign, whether he was as to the plaintiff a mere trader, and whether the Lang Wee was a vessel of war, or to the amount of indebtedness by the King to the plaintiff. All these were emphatically, absolutely, and irrevocably admitted by the defendant.
I am of opinion that as between...
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