CO129-171 - Acting Governor Austin - 1875 [7-11] -- Sir Kennedy - 1875 [12] — Page 128

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On the 21st November, 1873, a notice of mo.nications with the Government of this co- tion by defendant was served on the plaintiff lony, and with the King of Annam, to which that the Court would be moved on the 24th of I shall bereafter much more particularly al- parties, caused me to postpone my coming to the same month for an order to dissolve the lade, and negotiations going on between the injunction on two grounds:--

1st. That the Dang Wee, the vessel seized, any decision, a postponement fully acquiesced in was a ship of war belonging to the service of by both parties. H.M. Tu Duc, King of Annam.

2nd.-1bat the said ship had been attaobed under process subsidiary to a personal action commenced in this Court against the King, over whom, it was enbmitted, this Court has no jurisdiction.

The negotiations ended in a compromise be- tween 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-(See Appendix A.)

The matter was accordingly mentioned in On the 20th of the same month a summons was issued, not under protest, by Mr. Stephens court on that 6th of March, and a very re- as defendant's attorney, calling on Mesera.markable order was, by deliberate consent of Caldwell and Brereton to shew cause before the counsel for each party, made in the terms which Judge in Chambers upon whose instructions I must also read.-(See Appendix B.) 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 pro- ceedings 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 an swer costs, after a large number of affidavits bad been filed, and after some bearings in Court, Mr. Drummond then, of counsel for Mr. Stephens, on the 28th November aban- doned 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. Stephene. These terms, with an order that all the affidavits should be taken off the file, were embodied in an order.

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 fail submission by the King to the jurisdiction of the Court in the cause. It seems to me to be an express submission of the de- an independent fendant's rights to the Court, waiving in effect all rights of exemption as 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 cr subsequent decision adverse to it. Its protest of the status of the defendant in its terms is an admission that bis rights and status as prince are abandoned for the purposes of this cause. It admits indebtedness, and recog- nises 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 plaintiffs' claim is to be

I must say that I was not well satisfied with the unsustained attempt at that time to super-paid by the defendant. cede Mr. Brereton as defendant's attorney.

The effect of the abandonment of the motion, and payment of costs of motion, was an ao. knowledgment by Mr. Stephens, and those who instructed bim including the King, that Messrs. Caldwell and Brereton properly represented the King in the suit,

The motion to disebarge the foreign attach. ment made on the instructions of Messrs. Caldwell and Brereton, of which notice had been given on the 20th November, then came on for argument.

I know of no words from which the submis. sion by the defendant to the jurisdiction of this Court could be inferred more fully thau are to be found in this notice and order. I know of no words more completely inferring some in- an extent approaching the debtedness, to $159,792.19 which the plaintiff claims, and which, in the event of the plaintiff making no concession, the defendant submits by bia con- sent to the order requiring him to pay. I call this notice of motion submission No. 2; and I call the order obtained by the defendant on bis Many affidavits were filed on each side, and own express consent admission No. 3. I cor- the two questions raised on the motion were gratulated myself that this order, by the act of argued at very great length, occupying ten full the King mainly, and by consent of both parties, days, by Mr. Kingsmill for the defendant, and relieved me from deciding whether the defend. Mr. Hayllar, Q. C., and then Acting Attorney-ant was an independent sovereign, whether be General, for the plaintiff, and I directed the was as to the plaintiff a meie trader, and whether the Dang Wee was a vessel of war, or motion to stand over for consideration.

All these were emphatically, as to the amount of indebtedness by the King to the plaintiff. absolutely, and irrevocably admitted by the defendant. I am of opinion that as between these parties these admissions bind the defend ant in every subsequent stage in this suit.

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 bave done at great length, and I must say I have seldom read more learned ar- guments.

The difficulties of the case, and commit-

The attachment on the Dang Wee was, as the result of the order discharged, and the benefit of the order was taken by the defendant, the

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King, whose agent took possession of her for him absolutely.

This order having been made on the 11th February, the defendant's now attornies take no I was informed and certainly understood action till on the 10th of March. On their ex that the plaintiff and the defendant's agent sub-parte application in Chambers, the defendant sequently proceeded to Anuar, but that for obtained liberty to put in his answer with- in ten days, without prejudice to bis some reason, unexplained, the Dang Wee was allowed by the agent of the King, the defendant, right as a sovereign prince, and to the two to remain bere.

write of foreign attachment. On the 16th March, 1875, the defendant filed his answer, in which he alleged his right as a sovereigu prince, and took issne on the questions raised in the plaintiff's petition, claiming that the Dang Wee ia a public ship belonging to the naval establish. ment of Annam.

The parties came to no conclusion at Anuam; the King paid no money to the plaintiff; and after ineffectual efforts to arrange, the parties returned to Hongkong-the King having failed to do any part of what, by his consent, the Court bad ordered him to do. I am now in- formed that this is inaccurate, and that the parties did not at that time go to Annan. This is unimportant: for it is certain that the Dang Wee remained in this Colony and that the King failed to perform any part of that which this Court had by his express consent ordered him to do.

From the 15th March, when the defendant filed bie answer, up to the 14th April last, both parties awoke into excessive activity-an activity never before in my experience exceeded in any cause-an activity which entangled the cause very much.

It was to me an infinite satisfaction that Mr. The Court was moved in pursuance of notice of Justice Snowden bad become my brother judge. motion on the 14th April, 1874, to carry out the I felt that this Court had been repeatedly trifled order of the 6th March, 1874, in Appendix B, with by the servants and agents of the King; or that the Dang Wee should be again attached; and it was a very great relief to me that his an order for the re-attachment of the Dawy Wee calm judgment cowing new to the case, looking was made by consent-(See Appendix "C.)-back on the events in the cause as mere history, and a new writ of foreign attachment was then would be given to the question raised. issued on which the Dang Wee was attached a second time. By the order all parties were to be at liberty to proceed to Annam to make such agreement as they should be able to come to.

The plaintiff did not proceed further in his suit, and the defendant so far as I can see, took no step until January, 1875, and the Court could not act spontaneously.

On the 25th Jan., 1875, Mesara, Stephens and Holmes again intervened in the action by notice of motion,-(See Appendix D.)

On the 11th February, 1875, an order in the terms of the notice of motion on behalf of the King was without objection made.-(See Ap- pendix E.)

This order is important. It recognises for a second time Messrs. Caldwell and Brereton as having been up to that date the properly ap. pointed attornies of the defendant, that payment of their costs was due to them, to which, if not properly couatitated attornies, they would not have been entitled. Messrs. Stephens and Holmes are to be such attornies in the slead of Messrs. Caldwell and Brereton in no better or worse position adopting all that Messrs. Oald- well, and Brereton had done, and taking up the conduct of the defence just as Messrs. Caldwell and Brereton left it. It was the fullest recogni- tion of all that had been done by or in the presence of these gentlemen as properly done in

the auit.

It was also a recognition of the submission by the defendant to the jurisdiction of this Court, being for the purposes of this suit only. This notice of motion I call submission No. 4, and the order made thereon submission No. 5.

And bere I must say that Messrs. Caldwell and Brereton appear to me to have condnoted this case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince,

Three summonses were ripe for hearing in April. Mr. Justice Snowden has had the good- nees to give an accurate and clear history of the proceedings from the filing tho answer up to and including his decision of the 3rd of May, the subject of the present petition of ap- peal of which we have now to dispose.

I have read that statement which will be read presently. I believe it to be entirely accurate. I am clearly of opinion that the order of the 3rd of May last, now under appeal, must be confirmed. It seems to me to be the only sen sible order which, under the circumstances, could have been made, because the course which the learned Attorney-General sought to induce the Court to adopt was one which would entirely set at naught the order shortly before made al bis request, ordering the cause to be set down for hearing for the purpose, and the sole purpose, of having the grave questions at issue decided by a regular trial and not on the arguments of counsel on a mere motion.

In the course of his argument on the appeal, the learned Attorney General contended that early on the cause the Court had failed in its duty to communicate with the Government of this Colony, and also with the King of Annam, and that it was its duty not to bave taken on itself the decision of the two questions as to the liability of the King of Annam to be sued in this Court, and as to the liability of the Dung Wee to be seized by any order of this Court. He appeared to bave been left by his instruc- tions in entire ignorance of the action of this Court, and of the correspondence and commu- nications that had taken place in this respect, for which I cannot excuse those who instructed him.

It was impossible for the Court to have shewn more anxiety than it displayed to obtain in- formation, and the intervention by the Govern-

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