(2)
On the 21st November, 1873, a notice of communications with the Government of this Colony, and with the King of Annam, to which 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 Dang 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.
The negotiations ended in a compromise between the parties; and on the 4th March 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 on the 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.(See Appendix B.)
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 show cause before the Judge in Chambers 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.
The notice of motion being by defendant shows that he was the active party. The words of the notice are pregnant with meaning, 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 indebtedness by the defendant to the plaintiff.
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 which precludes all appeal or subsequent decision adverse to it. Its terms of the defendant in 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 payment of what is due; and it orders, and this an order that all the affidavits should be taken off the file, were embodied in an order.
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.
I must say that I was not well satisfied with the unsustained attempt at that time to supercede 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.
I know of no words from which the submission by the defendant to the jurisdiction of the 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 $159,792.19 which the plaintiff claims, which, in the event of the plaintiff making concession, the defendant submits by his consent 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 his own express consent admission No. 3.
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 I 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, caused me to postpone my coming to any decision, a postponement fully acquiesced in by both parties.
All these were emphatically, absolutely, and irrevocably admitted by the defendant. I am of opinion that as between these parties these admissions bind the defendant in every subsequent stage in this suit.
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 King, whose agent took possession of her for him absolutely.
(3)
This order having been made on the 11th February, the defendant's new attorneys take no answer with.
I was informed and certainly understood that the plaintiff and the defendant's agent subsequently proceeded to Annam, but that for some reason, unexplained, the Dang Wee was allowed by the agent of the King, the defendant, to remain here.
The parties came to no conclusion at Annam; 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 had ordered him to do.
I am now informed that this is inaccurate, and that the parties did not at that time go to Annam. 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 his 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.
The Court was moved in pursuance of notice of motion on the 14th April, 1874, to carry out the order of the 6th March, 1874, in Appendix B, or that the Dang Wee should be again attached; an order for the re-attachment of the Dang Wee was made by consent-(See Appendix C) and a new writ of foreign attachment was then 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.
It was to me an infinite satisfaction that Mr. Justice Snowden had become my brother judge. I felt that this Court had been repeatedly trifled with by the servants and agents of the King: and it was a very great relief to me that his calm judgment coming new to the case, looking back on the events in the cause as mere history, would be given to the question raised.
On the 25th Jan., 1875, Messrs. 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 Appendix E.)
Three summonses were ripe for hearing in April. Mr. Justice Snowden has had the goodness to give an accurate and clear history of the proceedings from the filing the answer up to and including his decision of the 3rd of May, the subject of the present petition of appeal 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 sensible 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 at his 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.
This order is important. It recognises for a second time Messrs. Caldwell and Brereton as having been up to that date the properly appointed attorneys of the defendant, that payment of their costs was due to them, to which, if not properly constituted attorneys, they would not have been entitled.
Messrs. Stephens and Holmes are to be such attorneys in the stead of Messrs. Caldwell and Brereton in no better or worse position adopting all that Messrs. Caldwell and Brereton had done, and taking up the conduct of the defence just as Messrs. Caldwell and Brereton left it.
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 have 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 Dang Wee to be seized by any order of this Court.
He appeared to have been left by his instructions in entire ignorance of the action of this Court, and of the correspondence and communications that had taken place in this respect, for which I cannot excuse those who instructed him.
It was the fullest recognition of all that had been done by or in the presence of these gentlemen as properly done in the suit.
This notice of motion I call submission No. 4. and the order made thereon submission No. 5.
And here I must say that Messrs. Caldwell and Brereton appear to me to have conducted his case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince.
It was impossible for the Court to have shown more anxiety than it displayed to obtain information...
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0.
(2)
On the 21st November, 1873, a notice of mo- nications with the Government of this e 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 hereafter much more particularly al the same month for an order to dissolve the lude, and negotiations going on between the parties, caused me to postpone my coming to injunction on two grounds:-
any decision, a postponement fully acquiesced in by both parties.
1st. That the Dang Wee, the vessel seized, was a ship of war belonging to the service of H.M. Tu Duc, King of Annam.
2nd-1bat the said ship had been attached under process subsidiary to a personal action ocmmenced in this Court against the King, over whom, it was submitted, this Court bas no jurisdiction.
The negotiatious ended in a compromise be tween the parties; and on the 4th March notice of motion on behalf of the defendant wa 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 On the 20th of the same month a sumIMONS was issued, not under protest, by Mr. Stephens court on that 6th of March, and a very as defendant's attorney, calling on Messrs.markable order was, by deliberate consent of Caldwell and Brereton to shew cause before the counsel for each party, made in the terms whic Judge in Chambers upon whose instructions I must also read.(See Appendix B.) an appearance bad 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.
The notice of motion being by defendant shews that he was the active party. The work of the notice are pregnant with meaning a being a full submission by the King to the jurisdiction of the Court in the cause. It seena to me to be an express submission of the d fendant's rights to the Court, waiving in effe all rights of exemption as an independent sovereign prince, and to be an admission of a A sum of $1,000 was paid into Court to an- indebtedness by the defendaut to the plaintiff. The order is emphatically by consent, awer costs, after a large number of affidavits had been filed, and after some bearings in which precludes all appeal or subsequat Court, Mr. Drummond then, of counsel for decision adverse to it. Its protest of the
its terms of the defendant in Mr. Stephens, on the 28th November aban-status doned the summous. The costs of Messrs. an admission that his rights and status a Caldwell and Brereton of and incident to the prince are abandoned for the purposes of the It admits indebtedness, and recog motion were agreed to be paid out of the $1,000 cause. paid into Court by Mr. Stephens, the balance nisea discontinuance of the action only in to be paid to Mr. Stephens. 1bese terms, with payment of what is due; and it orders, and this an order that all the affidavits should be taken emphatically by consent of the defendast,
that in the event of non-agreement as to off the file, were embodied in an order.
amount, the whole of plaintiffs' claim is to be
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.
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 wotion, was au ac knowledgment by Mr. Stephens, and those who instructed bime including the King, that Messrs, Caldwell and Brereton properly represented the King in the suit.
The motion to discharge 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 tin Court could be inferred more fully than are to be found in this notice and order. I knowd no words more completely inferring some in- & B extent approaching the debtedness, to $159,792.19 which the plaintiff claims, which, in the event of the plaintiff making concession, the defendant submits by bis con sent to the order requiring bim to pay. I this notice of motion submission No. 2; and I call the order obtained by the defendaut on ba Many affidavits were filed on each side, and own express consent admission No. 3. I co 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 froas 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 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 bave done at great length, and I must say I have seldom read more learned ar- guments.
The difficulties of the case, and commu.
was as to the plaintiff a meie trader, and whether the Dang Wee was a vessel of war, ut as to the amount of indebtedness by the King to the plaintiff.
All these were emphaticsily, 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.
The attachment on the Dang Wee was, as the result of the order discharged, and the besef of the order was taken by the defendant, the
(3)
This order having been made on the 11th February, the defendant's new attornies take no
ten
answer with.
to
King, whose agent took possession of her for him absolutely.
1 was informed and certainly understood action till on the 10th of March. On their ea that the plaintiff and the defendant's agent sub-parte application in Chambers, the defendant sequently proceeded to Annam, but that for obtained liberty to put in bis
days, without prejudice his some reason, apexplained, the Dang Wee was in allowed by the agent of the King, the defendant, right as a sovereign prince, and to the two writs of foreign attachment. On the 16th to remain bere.
The parties came to no conclusion at Anuam; Mareb, 1875, the defendant filed his answer, in the King paid no money to the plaintiff; and which he alleged his right as a sovereign prince, after ineffectual efforts to arrange, the parties and took issue on the questions raised in the returned to Hongkong-the King having failed plaintiff's petition, claiming that the Dang Wee
to do any part of what, by his consent, the is a public ship belonging to the naval establish- Court had ordered him to do. I am now in- ment of Annam.
formed that this is iuncourate, and that the From the 15th March, when the defendant parties did not at that time go to Annan. This filed his answer, up to the 14th April last, both is unimportant: for it is certain that the Dung parties awoke into excessive activity--an activity Wee remained in this Colony and that the King never before in my experience exceeded in any failed to perform any part of that which this cause-an activity which entangled the cause Court had by bis express consent ordered him very much. to do.
Toe Court was moved in pursuance of notice of motion on the 14th April, 1874, to carry out the order of the 6th March, 1874, in Appendix B, or that the Dang Wee should be again attached; an order for the re-attachment of the Dang Wes was made by consent-(See Appendix C) and a new writ of foreign attachment was then issued on which the Dung 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.
It was to me an infinite satisfaction that Mr. Justice Snowden had become my brother judge. I felt that this Court had been repeatedly trifled with by the servants and agents of the King: and it was a very great relief to me that his calm judgment coming new to the case, looking back on the events in the cause as mere history, would be given to the question raised.
On the 25th Jan., 1875, Messrs, Stephens and Holmes again intervened in the action by notice of motion. (See Appendix D.)
Ou 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.)
Three sumosonses were ripe for bearing in April. Mr. Justice Snowden bas had the good- mess to give an accurate and clear history of the proceedings from the filing the 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 atatement 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 st his request, ordering the cange to be aet down for bearing 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 ou a mere motion.
This order is important. It recognises for a wecond time Messrs. Caldwell and Brereton as having been up to that date the properly ap pointed attornies of the defendant, that payment of their coats was due to them, to which, if not properly constituted attornies, they would not have been entitled. Messra. Stephens and Holmes are to be auch attornies in the stead of
In the course of his argumentou the appeal, the Messrs. Caldwell and Brereton in no better or learned Attorney General contended that early worse position adopting all that Messrs. Cald-on the cause the Court had failed in its duty to weil, and Brereton had done, and taking up the communicate with the Government of this conduct of the defence just as Meagra. Caldwell Colony, and also with the King of Annam, and and Brereton left it. It was the fullest recogni- that it was its duty not to have taken on itself tion of all that had been done by or in the the decision of the two questions as to the presence of these gentlemen as properly done in liability of the King of Aunam to be sued in the suit.
this Court, and as to the liability of the Dang It was also a recognition of the submission Wee to be seized by any order of this Court, by the defendant to the jurisdiction of this He appeared to have been left by his instruc Court, being for the purposes of this suit only. tions in entire ignorance of the action of this This notice of motion I call submission No. 4. Court, and of the correspondence and commu- and the order made thereon submission No. 5. nications that had taken place in this respect, And bere I must say that Messrs. Caldwell for which I cannot excuse those who instructed and Brereton appear to me to have conducted bim.
his case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince,
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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