123.
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.
The plaintiff and the defendant's agent subsequently proceeded to Annam, but 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.
The parties having thus returned without having come to any arrangement, 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 (Appendix C), and a new writ of foreign attachment was then issued on which the Wang 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, Messrs. Stephens and Holmes again intervened in the action by notice of motion (Appendix D) calling on Messrs. Caldwell and Brereton to show cause why they should not be appointed attorneys for the defendant in the stead of Messrs. Otwell and Winstanley, upon payment to them of what might be found due to them for their costs in this suit, and on the 11th February, 1875, an order in the terms of the notice of motion was without objection made (Appendix E).
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. 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.
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 here I must say that Messrs. Caldwell and Brereton appear to me to have conducted this case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince.
This order having been made on the 11th February, the defendant's new attorneys took no action till on the 10th of March. On their ex parte application in Chambers, the defendant obtained liberty to put in his answer within ten days, without prejudice to his right as a sovereign prince, and to the two writs of foreign attachment. On the 16th March, 1875, the defendant filed his answer, in which he alleged his right as a sovereign prince, and took issue on the questions raised in the plaintiff's petition, claiming that the Dang Wee is a public ship belonging to the naval establishment of Annam.
From the 16th 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.
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.
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 of 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.
In the course of his argument on the appeal, the learned Attorney General contended that early on in 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 impossible for the Court to have shown more anxiety than it displayed to obtain information, and the intervention by the Government, if the Government recognised the King as an independent Sovereign Prince, as an international matter overriding the jurisdiction of this Court, and for aid in any case than it did in this matter.
I have before slightly alluded to communications between this Court and the Government of this Colony, and also the Government of Annam, as having, with other causes, contributed to the delay up to the month of March, 1874. I now proceed to show that this Court fully understood its duty, a neglect of which the learned Attorney General in April last, for the first time, somewhat late in the case, imputed to the Chief Justice, owing, as I repeat, to his imperfect instructions. No one shows more desire to avoid inaccuracy than the Attorney General.
I have already stated that this suit was instituted on the 14th of October, 1873. I was, from the first, greatly impressed with the question whether this Court could have any jurisdiction, and I personally communicated my difficulties to the Colonial Secretary. I remembered the case of the Malespina, a Spanish vessel of war, temporarily employed in carrying letters between the Hongkong Post Office and Manila, in which similar questions had been raised in 1862, when I was Attorney General here. That precedent was referred to in my conversations with the Colonial Secretary. From my own recollection, and from information given to me, I can now state that the dispute in that case was settled, and the questions did not come on for discussion.
I believe it was then the better opinion that it was not the duty of the local Government to interfere directly with the action of this Court, but that in such a case as the present, the Government would be authorized, in the exercise of its discretion, on the advice of its legal adviser, without communication from this Court, but spontaneously, to direct the Crown Solicitor to appear, I presume by Counsel, in Court and claim, in the name of the Government, the discharge of the ship, as had been advised to be done, and as was, as I understand, done on the 24th of April, 1860, in the case of an officer of the Sardinian frigate Beroldi, served with a summons from the County Court of Bow in England.
I was the more induced to make the communication to the Colonial Secretary of the difficulty in this case, because I had received a communication from Uü, the Minister of Mercantile Marine of the Kingdom of Annam, (Appendix F) dated, I believe, in November, 1873, and because a letter to the like purport had been received by H.E. the Governor, which was transmitted for my information on the 24th March, 1874.
The matter was fully discussed between the Colonial Secretary and myself.
It occurred to me to be proper that the Registrar of this Court should write officially to H.E. Uü, stating the proceedings in the case, and a draft of the proposed letter was submitted to H.E. the Governor by me with a letter of the 18th of April, 1874, to the Colonial Secretary, in which I said, "I am prepared to take the entire responsibility of directing the Registrar of the Supreme Court to send the letter if H.E. should approve, or not expressly disapprove of the letter, but if H.E. should expressly disapprove of the letter, I will not direct it to be sent."
On the following day, my draft letter was returned to me with a memorandum that H.E. the Governor would make no objection to the Chief Justice adopting the course he proposed, but that he would not accept any responsibility for any proceedings or communications beyond what had already been adopted.
The exception, as I understood, referred to a short letter written by the Colonial Secretary to H.E. Uü, to which it is beyond my province to do more than thus refer.
The letter by the Registrar was dated May, 1874, (Appendix G) and was duly sent to Annam by him.
That letter followed, as I stated in my letter to the Colonial Secretary of the 28th April, a precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had furnished in The Churchn, in which the Registrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Court, as set out in L.R. 4 Ad. and Dec. p. 60, as the result of which the Khedive appeared under protest and the cause proceeded to decision.
I received a letter from Fan, the Minister of Marine of Annam, dated 25th of September, 1874, (Appendix H) and which letter was written after the receipt of the letter by the Registrar of May, 1874.
This is the history of the communications which were made extra-judicially, efforts and communications in excess of those which the Attorney General suggested that it was my duty to have made but had not made. I made the communications which I did make to the Government because it appeared to me that the question was one in which it was the right, and possibly the duty, of the Government here, if it had been advised that the contention on behalf of the defendant was clearly sustainable, to have directed an appearance by Counsel in the cause, and to have claimed, as a matter of state, and as being exclusively subject to international law, and, therefore, beyond judicial decision, the release of the Dang Wee, and the discharge of the defendant from the suit. This was done in the case in the County Court of Bow above referred to; but if the Government was advised that the matter admitted of doubt, then it would leave the matter to the ordinary decision by the Court without interfering. Still, the presumption would be left on the mind of the Court that the case was not one for claim of exemption, on the ground of international right. I did all I could to place the Government in full possession of the case, and the Government appears to have thought that the claim of the King was too doubtful to entitle the King to the interference of this Government, and it expressly left all the responsibility on the Court.
However much I may regret the course which left so heavy a responsibility on the Court, I am bound to admit that the Government was right in not interfering. I was bound to believe, and I presumed, and I shall continue to presume until I am informed to the contrary, that in originally declining to interfere, and in never up to this time intervening, it has acted under the advice of its duly constituted legal adviser for the time being.
Having shown that the Court was not wanting in duty towards the Government, I trust it has been equally correct in what it did in respect of the King of Annam.
I have now to consider the effect of the first letter from Annam, that from Uü. It is beyond question that a Sovereign Prince may waive his right and submit to the jurisdiction of this Court. I have before expressed my opinion that in the proceedings in Court, that right has, in fact, been over and over again absolutely waived, but this letter of Uü appears to me to be an express submission to this Court. In it Uü says, "I beg your Lordship to distinguish the truth from the falsehood, and to decide the case impartially and according to the various accounts set forth in my despatch." This is a distinct submission of the case by the King himself, by his minister, to the jurisdiction of this Court, and is submission No. 6.
The Registrar's letter of May, 1874, fully sets out the facts.
The letter of Fan of the 25th Sept., 1874, (Appendix H) says, "Your Lordship is Chief Justice of the Colony, and would entertain complaints from subjects of all nationalities, and dispose of them justly, how much more would your Lordship not do so for the minister of this country. I am addressing your Lordship officially as the Annam, and on behalf of the Government." This is equally with No. 4 a submission of the case to the jurisdiction of this Court, and is submission No. 7.
On the whole case, I have come to the following conclusions:
1. I am of opinion that the defendant has, by his Ministers of Marine, twice very clearly and unmistakably, submitted to the jurisdiction of this Court in this cause, as well by his pleading, and by his counsel in Court.
That having once done so, he cannot at any time afterwards be heard to contend to the contrary, except by the express consent of the plaintiff, which has not been given.
This conclusion is confirmed by the various orders made by the consent of the King, each one of which is utterly inconsistent with the protest to the jurisdiction set up by the Attorney-General.
2. I am further of opinion that the advisers of the defendant here, having entered into the agreement, and having moved for and consented to the order of 6th of March, 1874, (Appendix B), the advisers of the defendant, in not carrying out the agreement and order at Annam, and having failed to pay the $159,792.19, according to the terms of the order, have so acted as to have disentitled the defendant to any assistance from this Court.
3. I am further of opinion that the contract and bond entered into in the presence of Mr. Justice Snowden on the 23rd of April last, and the consequent second release of the Dang Wee from attachment by this Court, and the taking possession of the Dang Wee by the defendant by his agents, was an agreement, if made between the parties alone and without the approbation of this Court, such a change of the relative position of the parties as put all parties out of Court to any other or further remedy for damages or costs. It was impossible for the Court, the main subjects of dispute being arranged, to consider the merits of the case in such a way as to enable it to decide costs or questions as to the injury to the dignity of the King. If the agreement was made with the sanction of the Court, it was a conclusion of all matters of difference in Court. As far as my action in the matter is concerned, I must say the agreement as proposed was the most anomalous I know. I said that no contract should be concluded in my presence which did not conclude all questions. The parties chose to continue the contract. I declined to sit as quasi-arbitrator, or to countenance a partial agreement; the parties, including the King's agent here, who alone instructed the Attorney General, in the presence of the Attorney General, persisted in concluding the arrangement. My only resource was to protest and leave the bench, delegating the further hearing of the motion to Mr. Justice Snowden, who took a view of the case somewhat different from mine. I decline now to consider any question either of damages or costs. I consider that the parties practically withdrew all further proceedings and all grounds for decision from the jurisdiction of this Court. Under that agreement, Paul Nguyen du Hac, the man who deposes in his affidavit filed by the defendant that the Dang Wee is his private property, and not the property of the defendant, the King, gave me bond for $66,000 to the plaintiff; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Court as surety, and that bond for $66,000 was accepted by the plaintiff, despairing to get the $159,792.19, which under the order of this Court of the 6th March, the King had pledged himself to pay. That document was prepared by the defendant's attorneys. The price of the bond was paid on the withdrawal of the foreign attachment. The defendant, the King, accepted the arrangement, took possession of the Dang Wee, obtained only by the bond, and his flag was displayed at the masthead, and the Dang Wee with this flag left this harbour for Annam.
4. I entirely concur in the order of Mr. Justice Snowden of the 3rd of May, 1875, now appealed against.
5. I consider the petition of appeal to be faulty and not sustainable on this ground; a petition of appeal must set out all proceedings involved in and necessary to the true decision of the question named. The Attorney General does not seem to have known of several proceedings important to the decision asked (so imperfectly instructed was he), and he omitted from 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...
123.
these parties these admissions bind the defend. ' unt 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 ber for him absolutely.
„The plaintiff and the defendant's agent sub sequently proceeded to Annam, but 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 Aunam; 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 bim to do.
The parties having thus returned withont Laving come to any arrangement, the Court "WAS " moved iti 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 (appendix C,) and a new writ of foreign attachment was then issued on which the Wang Wee was attached a second time. By the order all parties were to be at liberty to proceed to Anna 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 stop until January, 1875, and the Court could not act spontaneously.
On the 25th Jan., 1875, Mesars, Stephens and Holmes again intervened in the action by notice of motion (Appendix D) callingon Messrs. Cald- well and Brereton fashew canes why they should not ba appointed attornies for the defen. đant 17 the stead of Messrs. Ofitwell and rinsleton, upon payment to them of what might be found a
đng to them for their costs in this suit, and on the 11th February, 1975, an order in the terms of the notice of motion was without objection made (Appendix 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 costa was due to them, to which, if not properly constituted attornies, they would not have been entitled. Messrs. Stephens and Holmes are to be such attornies in the stead of Messrs, Caldwell and Brereton in no better or worse position adopting all that Messrs. Cald. well, and Brereton had doue, 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 suit.
It was also a resognition of the submission by the defendant to the jurisdiction of this Court, being for the purposes of this suit only. This notion of motion I call submission No. 4, and the order made thereon sabmission No. 5.
And here I must say that Messrs. Caldwell "and Breretou appear to me to bare conducted this case with due regard for the advantage, and most certainly for the honor, of their client as a Sovereign Prince.
This order having been made on the 11th February, the defendant's new attornies take no action till on the 10th of March. On their ex parte application in Chambers, the defendant obtained liberty to put in his anawor with.
days, in ten
without prejudice to his right as a sovereign prince, and to the two writs of foreign attachment. On the 16th March, 1875, the defendant filed his answer, in which he alleged bis right as a sovereign prince, i and took issue on the questions raised in the plaintiff's petition, claiming that the Dang Wee is a public ship belonging to the naval establish- ment of AnnAM,
From the 15th March, when the defendant filed his answer, up to the 14th April last, both parties awoke into eroessive activity--an activity never before in my experience exceeded in any cause an activity which entangled the cause I very much.
It was to me an infinite satisfaction that Mr. Justice Snowden bad become my brother judge. I felt that this Court had been repeatedly triffed with by the servants and agents of the King; and it was a very great relief to me that bis calm judgment coming new to the case, booking back on the events in the cause as mere history, would be given to the question raised.
Three summonses were ripe for hearing in April. Mr. Justice nowden has bad the geod- ness to give an accurate and clear history of the proceedings from the filing the answer up and including his decision of the 3rd of
to
May, the subject of the present petition of ap- I 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 laat, 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 nought the order shortly before made at bis request, ordering the cause to be set down for hearing for the purpose, and the sole purpose. of having the grave questions at isante decided by a regular trial and not on the arguments of
counsel on a mere motion.
In thecourse of hisargument 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 Annaw, and that it was ita 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 aby order of this Court. He appeared to have been left by bis instruc tions in entire ignorance of the action of this Court, and of the correspondence and comun nications that bad taken place in this respect, for which I cannot excuse those who instructed bi.
It was impossible for the Court to have shewn more anxiety than it displayed to obtain in- formation, and the intervention by the Govern. ment if the Government recognised the King as an independent Sovereign Prince, as an international matter over-riding the jurisdiction of this Court, and for aid in any case than it did in this matter.
I have before slightly alluded to com. munications between this Court and the Government of this Colony, and also the Go- vernment of Auram, ns having, with other causes, contributed to the delay up to the month of March, 1874. I now proceed to shew that this Court fully understood its duty, a neglect of which the learned Attorney General in April last, for the first time, somewhat late in the case, imputed to the Chief Justice, owing, as I repeat, to his imperfect instructions. No one shews more desire to avoid inaccuracy than the Attorney General,
I have already stated that this suit was iuati- tuted on the 14th of October, 1873. 1 was, from be first. greatly impressed with the question whether this Court could have any jurisdiction, and I personally communicated my difficulties to the Colonial Secretary, I remembered the case of the Malespina, a Spanish vessel of war, temporarily employed in carrying letters be tween the Hongkong Post Office and Manila, in which similar questions bad been raised in 1862, when I was Attorney General here. That precedent was referred to in my conversa- tlons with the Colonial Secretary. From my own recollection, and from information given to me, I can now state that the dispute in that case was settled, and the questions did not come on for discussion.
I believe it was then the better opinion that it was not the duty of the local Government to interfere directly with the action of this Court. bot that in such a case as the present, the Government would be authorized, in the exer- cise of its discretion, ou the advice of its legal adviser, without communication from this Court, but spontaneously, to direct the Crown Solicitor to appear, I presume by Counsel, in Court and clain, in the name of the Govery- ment the discharge of the ship as had been advised to be done, and as was, as 1 understand, done on the 24th of April, 1860, in the case of an officer of the ardinian frigate Beroldi, served with a summons from the County Court of Bow in England.
I was the more induced to make the com. munication to the Colonial Secretary of the difficulty in this case, because I had received a communication from Uü, the Minister of Mer- cantile Marine of the Kingdom of Annam, (Appendix F) dated, I believe, in November. 1873, and because a letter to the like purport had been received by H.E. the Governor which was transmitted for my information on the 24th March, 1874.
The matter was fully discussed between the Colonial Secretary and myself.
It occurred to me to be proper that the Re gistrar of this Court should write officially to
H. E. Cü, stating the proceedings in the case, and a draft of the proposed letter was submit. ted to H. E. the Governor by me with a lette's of the 18th of April, 1874. to the Colonis Secretary, in which I said, "I am prepared to take the entire responsibility of directing the Registrar of the Supreme Court to send the letter if H. E. should approve, or not expressly ;:
disapprove of the letter, but if H. E. aboutà expressly disapprove of the letter I will not direct it to be sent.
On the following day my draft letter was re- turned to me with a memorandum that H. E. the Governor would make no objection to the Chief Justice adopting the course be proposed, but that he would not accept any responsibility for any proceedings or communications beyond what had already been adopted.
The exception, as I understood, referred to a short letter written by the Colonial Secretary to H. E. Uü, to which it is beyond my province to do diore than thus refer.
The letter by the Registrar was dated May 1874, (ppendix G) and was duly sent to An- nam by him.
That letter followed, as I stated in ny letter to the Colonial Secretary of the 28th April, a precedent which Sir R. Phillimore, Judge of the High Court of Admiralty, had furnished in The Churkich, in which the Begistrar, by direction of that High Court, addressed a letter to the Ambassador from the Ottoman Conrt as set out in L.R. 4 Ad, and Dec. p 60., as the re- sult of which the Khedive appeared under pro- test and the cause proceeded to decision.
I received a letter from Fan, the minister of marine of Annam, dated 25th of September, 1874, (appendix H) and which letter was written after the receipt of the letter by the Registrar of May, 1874.
This is the history of the communications which were made extra judicially, efforts and communications in excess of those which the Attorney General suggested that it was my duty to have made but bad not made. I made the communications which I did make to the Government because it appeared to me that the question was one in which it was the right, and possibly the duty, of the Government here, if it had been advised that the contention on behalf of the defendant was clearly sustainable, to have directed an appearance by Counsel in the cause, and to have claimed, as a matter of state, and as being exclusively subject to international law, and, therefore, beyond judicial decision, the release of the Dang Wee, and the discharge of the defendant from the snit. This was done in the case in the Country Court of Bow above referred to; but if the Government was advised that the matter admitted of doubt, then it would leave the matter to the ordinary decision by the Court without interfering. Still the pre- sumption would be left on the mind of the Court that the case was not one for claim of exemption, on the ground of international right. I did all I could to place the Government in full possession of the case and the Government ap- pears to have thou rbt that theclaim of the King was too doubtful to entitle the King to the interference of this Government, and it ex pressly left all the responsibility on the Court.
However much I may regret the course which left so heavy a responsibility on the Court, 1 am bound to admit that the Government was right in not interfering. I was bound to believe, and I presumed, and I aball continue to presume until I am informed to the contrary, that in originally declining to interfere, and in never up to this time intervening, it has noted under the advice of ita duly constituted legal adviser for the time being.
Having abewn that the Court was not want- ing in duty towards the Government, I trust it has been equally correct in what it did in respect of the King of Annai.
I have DOW 芝切 consider the effect of the first letter from Aanam, tlist from Uü. It ia beyond question that A Sovereign Prince may waive his right and Pubmit to the jurisdiction of this Court. I have before expressed my opinion that in the proceedings in Court that right has, in fact, been over and over again absolutely waived, but this letter of Uü appears to me to be an express submission to this Court. In it Oü says, "I beg your Lordship to distinguish the truth from the falsebood, and to decide the case im- partially and according to the various accounts set forth in my despatch." This is a distinct submission of the case by the King himself, by his minister to the jurisdiction of this Court, and is submission No. 6.
The Registrar's letter of May, 1874, fully sete out the facts.
The letter of Fan of the 25th Sept., 1874, (up- pendix H anys, "Your Lordship is Obief Jus tice of the Colony, and would entertain com plaints from subjects of all nationalities, and dispose of them justly, how much more would your Lordship not do so for the minister of this country. I am addressing your Lordship official of the Annamese Coverament, and on be- half of the Government," This is equally with No. 4a subinission of the case to the jurisdic. tion of this Court, and is sabmission No. 7.
as an
On the whole cuse I have come to the follow- ing conclusions :--
1-I am of opinion that the defendant bas, by his ministers of marine, twice very clearly and unmistakably, submitted to the jurisdiction
of this Court in this cause, as well by bis 185
pleading, and by bis counsel in Court.
That having once done so he oun at no time afterwards be heard to contend to the contrary, except by the express consent of the plaintiff, which has not been given.
This conclusion is confirmed by the various orders made by the consent of the King, each one of which is utterly inconsistent with the protest to the jurisdiction set up by the Attor ney-General.
2-1 am further of opinion that the advisers of the defendant here, having entered into the *greenient, and having moved for and consented to the order of 6th of March, 1874, (Appendix B.) the advisers of the defendant, in not carrying out the agreement and order at Ansam, and having failed to pay the $159,792,19, according to the terms of the order, have so acted us to have dis- entitled the defendant to any assistance from this Court.
ever
3-I am further of opinion that the contract and boud entered into in the presence of Mr. Justice Snowden on the 23rd of April last, and the consequent second release of the Dang Wee from at achments by this Court, and the taking possession of the Dang Wee by the defendant by his agents, was an agreement if made be tween the parties alone and without the approbation of this Court-such a change of the relative position of the parties as put all parties out of Court
to any ather or further remedy for damages or costs. It was impossible for the Court, the main sub. ¦jects of dispute being arranged, to consider the merita of the case in such a way as to enable it to decide coats or questions as to the injury to the dignity of the King. If the agreement was made with the sanction of the Court, it was a conclusion f all matters of difference in Court. As far as my action in the matter is con- cerned, I must say the agreement as proposed | was the Dost
anomalous I
know, I said that no contract should be concluded in my presence which did not concinde all ques- tions. The parties chose to continue the con tract. I declined to sit as quasi arbitratoř, or to countenance a partial agreement; the parties, including the King's agent here who alone in structed the Attorney General, in the presence of the Attorney General persisted in cluding the arrangement. My only resource to protest and leave the bench, de- legating the further bearing of the motion to Mr. Justice Snowden who took a view of the case somewhat different from mine, I decline now to consider any question either of damages or costs. I consider that the parties praatically withdrew all further proceedings and all grounds for decision from the jurisdiction of this Court. Under that agreement, Paal Nguen du Hac, the man who depuses in su affidavit filed by the defendant that the Dang Wes is bis private...... property, and not the property of the defendant the King, gave me bond for $66,000 to the, praïntik; Lai Duc, the King's agent instructing the Attorney General, executed the bond with all formality in Const as surety, and that bond for $66,000 was accepted by the plaintiff des- pairing to get the $159,792.19, which under the order of this Court of the 6th March the King bad pledged himself to pay. That document was prepared by the defendants' attornies, The price of the bond was paid on the The withdrawal of the foreign attachment. defendant the King nocepted the arrange- ment, took possession of the Dang Wee obtained only by the bond, and bis flag wag displayed at the mast bead, and the Dang Wee with this flag left this harbour for Annami,
As
con.
4.I entirely concur in the order of M. Jus- tice Snowden of the 3rd of May, 1875, now ap- pealed against.
5.-I consider the petition of appeal to be fanity and not sustainable on this ground; ak petition of appeal must set out all proceedings involved in and necessary to the tue decision of the question named. The Attorney Gneral does not seem to have known of several proceed- inga important to the decisiod asked (só imper- factly instructed was loj and he amitted from bia petition of appeal many proceedings necess• ary to a just decision which I pointed out at the
tiase.
6-The petition also appears to me to be fau ty 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
1:21,
No comments yet.
Private notes are available after approval.