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must have been proceeded with, and upon which the plaintiff's asked for a commission to examine a witness in France.
For all or some or one of these reasons I am of opinion that the petition must be dismissed, and with costs.
The Attorney General (addressing the Chief Justice) said: "You have said several times in the course of your judgment that 'the Attorney General was improperly instructed.' I wish to say that I was as fully instructed as Messrs. Stephens and Holmes could instruct me; and if there was any fault, the fault lies entirely with myself.
JUDGMENT BY MR. JUSTICE SNOWDEN. Mr. Justice Snowden then read the following judgment:
This is an appeal against an order made by me in the course of this suit on May 3rd, 1875. I have nothing to contribute to the very exhaustive account His Lordship has drawn up of this singular case except a narrative of the facts for which I am personally responsible. On a careful reconsideration of the various elements in this case, the reasons on which the order of May 3rd were made seem good, and I quite concur in the additional arguments provided by the Chief Justice.
The primary proceedings in this suit took place about 18 months before my arrival in the Colony, and I believe that I first took part in sitting with His Lordship to hear two summonses dated April 14th, 1874, calling on the defendant to show cause why he should not be restrained from future proceedings until he had given security for costs, and the second calling on defendant to show cause why a commission should not issue for the examination of Eugene Schwever resident at Paris; the third was a summons of a later date issued on the part of the defendant calling on the plaintiff to show cause why the Court should not decide as to its jurisdiction in the matter of this suit, and why the Writs of Attachment dated October 11th, 1873, and April 14th, 1874, should not be set aside, and why the Court should not award to the defendant and the plaintiff pay to the defendant all costs and charges incurred by the defendant in relation to this suit, together with such damages as the Court might award on account of this suit and the two said Writs of Attachment.
A few days before, an order had been obtained by the defendant, on consent of the plaintiff's counsel, that the cause should be set down on the hearing paper, and it was accordingly transferred to that paper from the hearing list, a day only remaining to be fixed. In my opinion, there was an implied undertaking with the Court and with the other side to proceed to trial and to interpose no vexatious delay.
By arrangement, the three summonses to which I have referred, came on for hearing together before the full Court on April 16th.
The 3rd summons was first heard, its subject matter being decisive of the other two. Mr. Hayllar, QC, showed cause against the summons, and the learned Attorney General was heard in support; the latter argued that the King of Annam was a Sovereign Prince, and that on the face of the record there were sufficient admissions of the Sovereignty to justify the Court in setting aside the Writs of October 1873 and April 1874 and awarding costs and damages to the defendant. The Court adjourned as usual, and after the adjournment, the argument was resumed.
The Annamese interested in the case being present, suggestions for an arrangement were once more thrown out by the Court.
Having observed that Mr. Landstein in his affidavit stated that the Dang Wee is now worth only $12,000, and as that was all he could expect to make out of the vessel under any circumstances, I asked Mr. Hayllar whether, on good security to the amount of $15,000 being given, he would consent to the Court releasing the Dang Wee. He at once consented, and on the Court calling up Paul Nguyen Duc Han (the Annamese merchant in whose transactions with Landstein these proceedings originated), he expressed his willingness to provide security for that amount.
He named Lai Duc, the Minister of the King, as his security. The latter, on being questioned, said that he was willing to become security. That the King of Annam had seized property of Paul Nguyen Duc Han worth $20,000 and property of his, as I understood, in the hands of two other parties to the value of $10,000 each. After some discussion, the terms were altered, and Paul Nguyen Duc Han offered or agreed to enter into a Bond to pay to the plaintiff $60,000 and Lai Duc consented to become his surety for that amount.
It should here be remarked that Paul Nguyen Duc Han reiterated his assertion that the debt was his and not the King's.
In an affidavit filed on April 13th, 1875, this man had also sworn in direct contradiction to the affidavits of Lai Duc, the minister, and Le Ting Choi, the Interpreter, and in defiance of the whole case set up by the learned Attorney General, that the Dang Wee belonged to him and not to the King. He says that in 1870 and 1871, he had transactions with Landstein & Co. He says: "I also, in connexion with an Annamese, Ngo wai, purchased a small steamer called Commodore, and such steamer was bought in the names of myself and the said Ngo wai, and was a private speculation." He goes on to say: "The name of Commodore was changed to Dang Wee," (as is now conceded on both sides, although by an error of the gentleman who conducted the case for the defendant at an earlier period, this was denied).
In paragraph 3, Paul Nguyen Duc Han says: "The said steamer has been ever since the time of the purchase, and is now the property of myself and the said Ng Wai." As Paul Nguyen Duc admitted the debt to Messrs. Landstein, Hay, and was ready to give security for the payment of $60,000, and Mr. Hayllar consented to accept these terms, it seemed to me most desirable that, on the execution of the Bond, the Dang Wee, the great bone of contention, should be released.
The learned Attorney-General declined to take any part in the arrangement and protested against it, claiming to reserve a demand for costs and damages. There was a slight difference of opinion between the Chief Justice and myself. His Lordship felt so strongly that the arrangement ought to be a final settlement and conclusion of this protracted litigation, that he declined to be a party to any arrangement falling short of that.
I quite coincided in the opinion that any settlement should be a final settlement, but, inasmuch as the arrangement was in course of being made between the plaintiff and Paul Nguyen Duc Han primarily, as the learned counsel for the King declined to be a party to it, whilst Lai Duc, who instructed him, became the security in his official capacity, it seemed to me that it would be better to get rid of the Dang Wee at all events and let the Attorney General apply for costs afterwards if he thought right to do so. The Chief Justice retained the very strong opinion he had expressed and declared that he would not take a part in a compromise of which, not being defined in its terms, he disapproved, but, seeing that the parties desired to perfect the compromise, he left the Bench, placing in my hands the future conduct of the proceedings then before the Court.
Although able personally to sanction it, His Lordship, by leaving the Bench, abstained from obstructing a compromise. By the proposed arrangement, the primary object of the summons, the release of the Dang Wee, would be obtained as the result of a compromise between the parties entering into it.
The Chief Justice having left the Court, I called up the Annamese and caused the interpreter to explain to them, in the clearest way, what the terms of the proposed arrangements were, and told them that if the Bond was executed and security given as promised, the Court would restore the Dang Wee to their possession. I then adjourned the further hearing for one week to April 23rd. On that day, all the parties appeared before me in Court, the learned Attorney General being present all the time, but stating that he did not then appear. The Bond, which had been prepared by the solicitors for the King of Annam, was produced and approved of by Mr. Hayllar for the plaintiff, and, after being once more explained to the Annamese, who entirely understood and assented to the terms, it was executed by Paul Nguyen Duc Han as principal and Lai Duc as surety, who affixed his official seal.
I then signed an order to the Sheriff to release the ship. It was taken possession of by Lai Duc at once, and the King of Annam's flag hoisted. This source of such protracted and intricate litigation has since left Hong Kong harbor for Annam. As soon as the order had been signed, the Attorney General applied to me to hear the adjourned argument on the summons of April 14th, and I adjourned the further hearing to May 3rd.
On May 3rd, I again sat alone. The Attorney General objected that a single judge ought not to hear the adjourned summons. I held that one Judge was sufficient under the provisions of the Code, and the argument proceeded under protest.
The learned Attorney General then applied to the Court to decide as to its jurisdiction, and to award costs to defendant under sub-section 4 of section 82 of the Code, and to dissolve the two writs of attachment. Mr. Hayllar objected that the ship, the subject matter of the suit, was now out of the jurisdiction of the Court, and security for a sum of money had been accepted, and that the suit was practically at an end.
After hearing the arguments on both sides, I made an order dismissing the summons and all the outstanding summonses, notices, and motions. At this time, there were outstanding and awaiting the decision of the Court, two summonses on the part of the plaintiff, one to obtain a commission to examine Mr. Schwever, a second to compel the defendant to give security for costs; on the part of the defendant, the summons in question, and a motion subsequently dated April 20th, filed to the same effect, and there was an order of the Court that the suit should be put down for hearing, granted on the application of the learned Attorney-General, and by consent of Mr. Hayllar, the spirit of which order had never been practically acted on.
A petition of appeal against this order was lodged and came out for hearing before the full Court on May 13th. The grounds are set out in the petition. The facts connected with the hearing of the summons of April 12th, as before narrated, are all set out, as well as the order made by me on May 3rd.
The petitioner complains that he is aggrieved by that order, and alleges that the same is erroneous as far as it orders that the summons of the defendant of the 12th April should be dismissed.
It states that the appeal is necessary by reason of the presence of only one judge at part of the hearing and the making of the said order.
The prayer of the Petition is that the said summons may be re-heard, and that the full Court will decide as to its jurisdiction in the matter of the suit, and award to the Petitioner all costs and charges incurred by him in relation to this suit, together with such damages as the Court may think fit to award on account of this suit and the two writs of attachment.
The argument of the learned Attorney-General occupied the greater part of the sitting of the Court during two days, May 13th and 14th, and certain written arguments, which had been prepared by Mr. Kingsmill when acting as Counsel for the defendant, and by Mr. Hayllar early in the suit, were also adopted.
I will only say that those very learned and complete arguments, and the very able argument addressed to the Court by the learned Attorney-General, would have made a greater impression on my mind at an earlier stage of the case.
As to the latter argument, I may remark that, whilst it dealt very ably and fully with the question of the immunity of Sovereign Princes from the action of sovereign tribunals in case of debts, and of the King of Annam as one, it very skilfully avoided handling the real issues in the case—viz: whether, though a Sovereign Prince, the King had not incurred liability to Messrs. Landstein as a private trader, and whether he had not submitted to the jurisdiction of the Court.
The question of how far the King is a private trader could not be decided without a trial; and Mr. Hayllar showed with unanswerable force that the defendant had submitted over and over again to the jurisdiction of the Court.
During the course of the argument, the Court strongly urged the learned Attorney General to detach the question of Jurisdiction from the question of the soundness of the order of May 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.
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.
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. 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.
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 for the King in his trading capacity? The most conflicting and contradictory affidavits had been put in, and when an affidavit of Paul Nguyen Duc Han was before our eyes, claiming "The Dang Wee as his private property," it was plain that the Court would undertake to decide such grave questions by the light of the 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 Charkieh, 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 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.
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 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 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.
With these strong opinions, and especially with the conviction on my mind that this suit could not be satisfactorily settled, as to the many difficult questions arising out of it, without a long and costly trial, the first step in 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 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.
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 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 claims. For these reasons, I am of opinion that the order of May 3rd was good, and that this appeal must be dismissed with costs.
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