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his petition of appeal many proceedings necessary to a just decision which I pointed out at the time,
6. The petition also appears to me to be faulty as to its prayer. It asked for an order giving damages and costs, an order which must have been utterly inconsistent with the order made on the motion of the defendant himself to set down the cause to be heard, and actually in due course transferred to the hearing paper, an order which the plaintiff had accepted and which must have been proceeded with, and upon which the plaintiffs 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.
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.
matter being decisive of the other two. Mr. Hayllar, Q.C., 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 once consented, and on the Court calling up Paul Ngueu Do Hau (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 Nguen Duc Hau worth $20,000 and property of his, as I understood, in the hands of two other parties to the value of $10,500 each. After some discussion, the terms were altered, and Paul Nguen Duc Hau 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 Ngueu Duc Hau reiterated his assertion that the debt was his and not the King's. As Paul Nguen Duc Hau admitted the debt to Messrs. Landstein, 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 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; one 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 Schwerer 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 Writ of Attachment dated October 14th, 1873, and April 14th, 1874, should not be set aside,
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.
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...
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The Chief Justice retained the very strong opinion he had expressed and declared that he would not take a part in a compromise.
summons in question, and promise, of which, not being defined in its terms, be disapproved; but seeing that the parties desired to perfect the compromise, and there was an order of the Court that the suit should be put down for hearing, 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 on 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 entering into it.
narrated are all set out as well as the order made by me May 3rd.
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.
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.
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 Ngueu Duc Hau 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 the 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. Schwerer, and a second to compel the defendant to give security for costs;
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 foreign 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 liabilities 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.
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his petition of appeal many proceedings necess- ary to a just decision which I pointed out at the
time,
6. The petition also appears to me to be fanity as to ita prayer. It asked for an order giving damages and costs, an order which must have been utterly inconsistent with the order made on the motion of the defendant himself to set down the cause to be heard, and actually in due course transferred to the hearing paper, an order which the plaintiff had accepted and which must have been proceeded with, and upon which the plaintiffs 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.
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 ex- haustive 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.
matter being decisive of the other two. Mr. Hayilar, Q.C., showed cause against the sum mone, and the learned Attorney General was heard in support. The latter argued that the King of Anaam was a Sovereign Prince, and that on the face of the record there were suff cient 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 defeudant. The Court adjourned as usual, and after the adjournment the args.
mont was resumed.
The Annamese interested in the oase being present, suggestions for an arrangement were once more thrown out by the Court.
Having observed that Mr. Landstein in big affidavit stated that the Dang Wee is now worth only $12,000, and as that was all be could expect to make out of the vessel under any circumstances, I asked Mr. Hayller whether, on good security to the amount of $15,000 being given, he would consent to the Conn releasing the Dang Wee. Heat once consented, and on the Court calling up Paul Ngueu Do Hau (the Aunamese merchant in whose trans- with Landstein these proceedings actions originated), he expressed his willingness to provide secarity 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 Aunam had seized property of Paul Nguen Duc Hau worth $20,000 and property of his, as I understood, in the hands of two other parties to the value of $10.500 each. After some discussion the terms were altered, and Paul Nguen Dac Hau offered or agreed to enter into a Bond to pay to the plaintiff $60,000 and Lai Duo consented to become his surety for that amount.
It should here be remarked that Panl Ngura Duc Hau reiterated his assertion that the dete was his and not the King's. As Paul Nguen Dar Hau admitted the debt to Messrs. Landstein, and was ready to give security for the payment of 360,000 and Mr. Hayllar consented to access these terms, it seemed to me most desirable toat on the execution of the Boad the Dang Wee, the great bone of contention, should be released.
The primary proceedings in this suit took place about 18 months before my arrival in the Colony, and 1 believe that I first took part in sitting with His Lordabip to hear two sum. monses dated April 14th 1874; one calling on the defendent 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 canse wby a commission should not issue for the examination of Eugene Schwerer resident at Paris; the third was a summous of a later date issued on the part of the defendant calling on the plantiff to show cause why the Court should not decide as to its juris diction in the matter of this suit, and why the Write of Attachment dated October 14th, 1873, and April 14th, 1874, should not be set aside,
The learned Attorney-General declined to and why the Court should not award to the defendant and the plantiff pay to the defendant take any part in the arrangement, and protest all costs and charges incurred by the defendanted agaidat it, claiming to reserve a demand for There was a slight differ. in relation to this suit, together with such costs and damages. damages as the Court might award on account ence of opinion between the Chief Justice and of this suit and the two said Writs of Attach- wyself. His Lordship felt so strongly that the arrangement ought to be a final settlement and conclusion of this protracted litigation, that ke declined to be a party to any arrangement fal-
ment.
A few days before an order had been obtained by the defendant, on consent of the plaintif's counsel, that the cause should be set down onling short of that. the hearing paper, and it was accordingly trans. ferred 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 vexations delay.
By arrangement the three summonses to which I have referred, came on for hearing to- gether before the full Court on April 16th.
The 3rd summons was first heard, its subject
I quite coincided in the opinion that any settlement should be a final settlement, bat inasmuch as the arrangement was in course of being made between the plaintiff and Pad Nguen Duo Hau, personally, and as te 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 getri of the Dang Wee at allevents and let the Attorney
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General apply for costs afterwards if he thought summonses on the part of the plaintiff, one to The Chief Justice retained obtain a commission to examine Mr. Schwever, right to do so. the very strong opinion he had expressed and a second to compel the defendant to give on the part of the declared that he would not take a part in a com- security for costs;
summons in question, and promise, of which, not being defined in defendant, the its terms, be disapproved; hnt seeing that a motion filed dated April 29th to the same the parties desired to perfect the compromise effect, and there was an order of the Coart that he left the Bench, placing in my hands the suit should be put down for bearing, the future conduct of the proceedings then granted on the application of the learned before the Court.
Although he felt un-Attorney-General, and by consent of Mr. Hayl able personally to sanction it, His Lordsbiplar, the spirit of which order had never been by leaving the Beneb abstained from obstract-practically acted on.
A petition of appeal against this order was ing a compromise. By the proposed arrange- ment the primary object of the summons, the lodged and came on for hearing before the full release of the Dang Wee, would be obtained as Court on May 13th. The grounds are set out the result of a compromise between the parties in the petition. The facts connected with the bearing of the summons of April 12th as before entering into it.
narrated are all set out as well as the order made by me May 3rd.
The Obief Justice having left the Court I called up the Annamese and caused the inter
The petitioner complains that he is aggrieved preter to explain to them in the clearest way what the terins of the proposed arrangements by that order, and alleges that the same is erroneous as far as it orders that the summons were, and told them that if the Bond was executed and security given as promised, the of the defendant of the 12th April should be Court would restore the Dang Wee to their dismissed.
I then adjourned the further It states that the appeal is necessary by possession. hearing for one week to April 23rd. On that reason of the presence of only one judge at day all the parties appeared before me in Court, part of the hearing and the making of the the learned Attorney General being present all said order. the time, but stating "that he did not then ap pear." The Bond which had been prepared by the solicitors for the King of Anoam was pro- daced and approved of by Mr. Hayltar 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 Ngneu Duc Hau 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 Auuam's flag boisted. This source of snch protracted and intricate litigation has since left Hongkong harbor for Annam. As soon as the order had been signed, the Attorney General applied to me to bear the adjourned argument on the summons of April the 14th, and I adjourned the farther bearing to May 3rd.
On May 3rd I again sat alone. The Attorney General objected that a single judge ought not to hear the adjourned summone. 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 jarisdiction of the Court, and security for a sum of money had been ac- cepted, and that the suit was practically at an end.
After hearing the arguments on both sides, I made an order diemissing the summons and all the outstanding summonses, notices, and mo- tions. At this time, there were outstanding and awaiting the decision of the Court, two
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 ebarges incurred by him in rela- tion to this suit together with sach 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-Gene- ral occupied the greater part of the sitting of the Court during two days, May 13th and lith, 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 argu- ment addressed to the Court by the learned Attorney-General, would have made a greater impression on my mind at an earlier stage of the Aa to the latter argument I may remark case. that whilst it dealt very ably and fully with the question of the immunity of Sovereiga Princes from the action of foreign 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 liabilities to 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 bad submitted over and over again to the jurisdiction of the Conrt.
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
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