CO129-171 - Acting Governor Austin - 1875 [7-11] -- Sir Kennedy - 1875 [12] — Page 177

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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 a making use of merely technical grounds to get rid of a difficult and important subject.

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 De fendant to bring an action for damages, though far be it from me to suggest such a course in Moreover I was strony of the present case.

This was by no means our wish, and I now proceed to state the grounds on which I dis-opinion that the Defendant had submitted to missed the summona of April 14th by the order the Jurisdiction of the Court repeatedly. With. out pointing out the instances at length I cor- of May 3rd.

tent myself with referring to those enumerated by his Lordship, as to which I entirely concur in all he has said. All these reasons and air cumstances 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 Ja risdiction of the Court. I am anxions to arcil being supposed for one moment to be express- ginally, 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! think them at this late period in the suit out of time out and out of place.

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. Saaleing an opinion as to the merits of the suit on. and myself had after mucb 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.

pointed out before, I think that I had full poss to act alone in this matter and that the absence of the Chief Justice cannot affect the validity of the order of May 3rd.

How could the Court decide without a trial

With these strong opinions, and especially whether the King of Annam was a private trader

with the conviction on my mind that this suit or not? Whether the Dang Wee is a vessel of War belonging to the Annamese Government? or could not be satisfactorily settled, as to the armed merchant vessel, or whether Paul Nguen many difficult questions arising out of it, witt. Duc was the real owner of the Dang Woe and real out a long and costly trial, the first incident is debtor? or the King in his trading capacity ? which must be a commission to take the evid The most conflicting and contradictory affidavits ence of Mr. Schwever in Paris, and remember. had been put in; and it was not probable ing that an order of the Court that a tris that the Court would undertake to decide should take place had been granted on the sp anch grave questions by the light of so called plication of the defendant himself, I think that admissions on the record and doubtful affidavits. I was right in dismissing the summons on Nor, notwithstanding quotations from text technical grounds. I say "technical" becaus books and decisions not exactly in point, could the Court could no doubt have amended the

summons so as to get rid of the order to the Court refuse to give the greatest weight to the language of Sir R. Phillimore in his judg-down for hearing had it pleased to do so. Asl ment in the case of the Charlrich, reported in vol. 42, Law Journal, A.D., p. 36, where be saya: 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 autho- rise 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, bis 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 obarac-made, have been arrives at by a procesad compromises and by that alone-compromiss ter."

The learned Attorney-General did not at of which (if the learned Attorney General we tempt to grapple with an opinion of such high not a party to it) his client reaps the benefit. authority, expressed in language so pertinent To give the defendant costa would be to decide! to the facts of this case, nor did he attempt to on the merits of the suit without allowing the Plaintiff an opportunity to establish bis daias reconcile it with his argument. It was yet more improbable that when by a compromise the For these reasons I am of opinion that the subject matter of any such trial was out of the order of May 3rd was good, and that this ap jurisdiction of the Court, the Court would en-peal must be dismissed with costs. tertain that very question of jurisdiction for the sole purpose of enabling the defendant indirect-

As to the application for costs and damages under section 82, sub-section 4, I cannot se how, for reasons already pointed out, the cond tions of the Code have been complied with; the defendant has not caused the writ to be æ aside nor any judgment given in the suit to le The conclusions and arrangement varied.

N.B.-In the judgment as it was originally

ly to maintain a claim for costs under sub-sec-printed Paul Nguen Dac Hau was stated tion 4 of section 82, which he might make have sworn in an affidavit that he bought the directly and successfully too, provided he could | Commodore, and that its name was changed shew that the defendant had caused the writ to the Dang Wee, which still belonged to him and s be set aside or a judgment reserved or varied, partner. This is an error. It was eo stated in meaning I suppose a judgment on the subject the Petition by mistake. The statement found

ed on this error has been struck out. matter of the attachment.

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APPENDICES.

(APPENDIX A.)

ascertained at Huey; that on the payment of the ascertained amount, the plaintiff aball pay [Notice of Motion, 4th March, 1874.]

the defendant costs in this suit; that the amount Take Notice that this Honorable Court will

due be ascertained within 3 months and the be moved before the Honorable John Smale on Friday the 6th day of March instant, at 11 of ascertained amount be paid within 6 months, such time to commence from the date of this the o'clock in the forenoon or so soon after a order; that if the amount found to be due shall

Counsel can be heard by Mr. Henry Kingamill Counsel on behalf of His Majesty Tu Duc not be ascertained and paid as aforesaid, then the defendant shall pay to the plaintiff the King of Annan for an order that the Foreign amount claimed in the writ of summons issned attachment made berein be dissolved forth- with upon the parties consenting to an order aa follows:-

1-The attachment on the steamer shall be dissolved forthwith.

2.--On the payment at Huey of the amount due by the defendant to the plaintiff all proceed. ings in this action shall be discontinued such amount to be ascertained at Huey.

3.-Ob the payment of the ascertained amount, the plaintiff shall pay the defendant's

custe.

4-The amount due to be ascertained within $ montbe and the ascertained amount to be paid within 6 months such time to commence from the date of the order.

5. If the amount found to be due shall not be ascertained and paid as aforesaid, then the defendant shall pay to the plaintiff the amount claimed in the writ of summons issued herein together with interest at the rate of 12 per cent. per annam commencing from the 13th October, until payment and all the costs incurred by the plaintiff.

6-All expenses incurred by the plaintiff or his agent proceeding to and on bis returning from Hney to ascertain the amount due shall be borne by bim.

The order to the without prejudice as to the question whether the defendant is or is not an independent Sovereign Prince.

Dated this 4th day of March, A.d., 1874,

CALDWELL AND BRERETON,

Defendant's Solicitors.

To the Registrar of the Supreme Court, Hongkong,

(APPENDIX B.)

berein, together with interest at the rate of 12 per cent, per annum, commencing from the 13th October, 1873, unti payment, and all the costs incurred by the plaintiff; and that all ex. penses incurred by the plaintiff or his agent proceeding to and on his returning from Huey to ascertain the amount due shall be borne by the plaintiff.

Dated this 6th day of March 1874,

By the Court,

W. H. ALEXANDER,

Registrar.

(APPENDIX C.) [Order of second Foreign attachment of the "Dang Wee."]

A question having been raised whether the parties who represented the defendant in this Court were duly authorised by the King of Annam both parties consenting.

The Court does order that the foreign attach- ment suspended be renewed and that the Dang Wee be reatored to the custody of the Court upon the foreign attachment as if the order of the 6th March, 1874, had not been made.

Let all parties and persons have liberty to proceed by themselves or their agents to Annam and make such arrangement there as they aball respectively he advised and come to.

Let the proceedings thus suspended be sub- ject to the further order of this Court,

THOS. C. HAYLLAR,

Counsel for the Plaintiff.

HENRY KINGSMILL,

Counsel for the Defendant, (APPENDIX D.}

A summons in the common Form issued

[Order 6th of March, 1874, made on notice Ap-by Messrs. Stephens and Holmes dated 25th

pendix A.]

On hearing Mr. Henry Kingsmill Counsel for the defendant, and the Honorable Thomas Child Hayllar Counsel for the plaintiff, and by consent of the parties the defendant protesting that his rights and status of an independent Sovereign Prince are not affected hereby other. wise than for the purposes of this cause it is ordered that the attachment on the steamer shall be dissolved forthwith; that on the pay. ment at Huey of the amount due by the defend. aut to the plaintiff, all proceedings in this action shall be discontinued, such amount to be

January, 1875 to Messrs. Caldwell and Brereton to shew cause why the former should not be ap- pointed defendant's attornies in this cause in the stead of the former upon payment to Messrs. Caldwell and Brereton of their costs in this suit.

(APPENDIX B.)

[Order made on summons in Appendix D.] Upon the application of Counsel for the de- fendant, and upon reading two affidavits of Lai Dui, filed respectively the 26th day of January, and 2nd day of February, 1875. It is hereby ordered that Messrs. Stephens and Holmes be

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