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likely to file a Petition for leave to appeal to the Privy Council.· If so the Petition must be filed today as the 14 days expires on 13th. July. Whether they will succeed in obtaining such leave I do not know." 20.
Of course in one sense the decision being "res inter alios acta does not bind the Crown, but it would seem from Reed v. Jackson, 8 Revised Reports p. 383 (1. East p. 355.0 that if the Plaintiffs, who are the Crown Lessees, sued any other Chinese fisher- men the Judgment in the suit which I am discussing might be given in evidence as a décision on the question of the existence of a custo- mary right on the part of Chinese fishermen to take Coral and Shells from the locus in quo, it being a decision regarding "a custon".· 31.-
In all the circumstances, as the Crown granted the Lease, I think the Plaintiffs have some 'moral' claim for assistance of a pecuniary kind in asserting their rights when the validity of their Lease vis a vis the Defendant, is called in question. Possibly they could not legally recover, as the implied contract for quiet possession would only be against persons claiming by, through or under the Lessor (ie. the Crown) and the Defendant clains against the Crown, unless, indeed, it were held that the Convention to which the Crown was party gave Defendant his right."
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That question wants some consideration and I do not discuss it fully now. * 32.
It will be well to see what comes of the Plaintiffs' Petition to the Supreme Court for leave to appeal to the Privy Council before considering whether the Judgment is of sufficient importance to warrant an application being made to the Privy Council itself for special leave to appeal. If such application was made on behalf of the Crown it might be urged that the Crown was not a party to the Suit below, but if the Plaintiffs in the Suit below made the Application no such difficulty would be present and the principles involved are certainly of considerable importance as to the rights of the Crown,
July 13th. 1990; -
(Sa. ). Meigh Goodman,
Attorney-Genera, `
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