June 22, 1897.]
named being also accompanied by their Vice- Consuls. There were also present several English, Spanish and Portuguese naval officers, also in full dress, Mr. J. J. Francis, Dr. Hartigan, and many other well-known re- sidente, a party of Volunteers, the Roman Catholic members of the 1st West Yorks and Royal Artillery, sailors from the British Navy, and a contingent from the Spanish cruiser Reina Cristina,
At the conclusion of the service the whole congregation stood up and the choir, consisting mostly of boys from the St. Joseph's College, sang very impressively "God save the Queen.”
THE PARSEE SERVICE,
A congregation of the members of the Par- see or Zoroastrian community of Hongkong was held on Sunday afternoon at their premises in Elgin Street for the purpose of offering prayer and thanksgiving of Almighty God in com- memoration of the completion of the sixtieth year of the reign Her Majesty the Queen Empress Victoria. There was a full gathering and after the usual office for "Jussun service and other prayers had been gone through a special service for the occasion was held under the auspices of the Trustees of the Zoroastrian Fund of Hongkong, Canton, and Macao-Messrs. Mody, Mehta, and Battliwara. The form of prayer and thanks giving though short is very much to the point and was very impressively pronounced by Mr. Mody. The following is the Prayer:-
Q Holy Ahurmazda, 'our Heavenly Father, we Thy humble servants of the Mazdyasnian faith with heart-felt devotion praise Thy divine goodness and yield Thee unfeigned thanks for the many and signal blessings which Thou hast conferred upon the various peoples of the British Empire through the revered instru- mentality of our Gracious Sovereign the Queen- Empress Victoria during the sixty years of her glorious and blessed reign. We Thy humble Zoroastrian worshippers, O Holy Creator, again yield Thee hearty thanks that Thou shouldst be pleased to let Thy wisdom be her guide and Thy arm her strength, so that in her the spirit of wisdom and strength, justice, truth, peace, and love flourish in her days to promote the general welfare, unification, and solidarity of her various subjects of all classes and creeds, and with uplifted hands we pray unto Thee O Mereiful Mazda, to bestow upon our illustrious Sovereign Thy choicest blessings, to gift her with many years of a happy life resplendent with glory, and to continue her reign, O Holy God, with all honour. We beseech Thee, O Great Almighty, to bestow of Thy bounty upon our beloved ruler the blessings of the annihilation of famine and pestilence in her Indian and other do- minions which, through Thy endless grace, favour, and providence, have grown up with the mother country as the Greater Imperial Britain, and to endow in this vast commonwealth the blessings of fruitful peace and plenty; and we supplicate Thee, O Good God, with all our hearts to crown the fulness of her days with the fulness of divine blessings, grace, and love, and receive our humble prayers, O Almighty Mazda, that these and all other Thy gifts may be long continued, and crown her with im- mortality in the life to come. Listen, we pray Thee, to this invocation of Thy servants of the Zoroastrian faith in Hongkong and grant us our wishes.-Åmen.
The offerings collected after the close of the service will be given to the Zoroastrian Jubilee Fund started in 1887 for relief to the poor of all nations and creeds.
RELEASE OF PRISONERS.
On Saturday thirty-three prisoners were re- leased from Victoria Gaol by order of His Excellency the Governor, this being an act of grace in honour of the Diamond Jubilee. The community is not likely to suffer in the least by the advantage gained by the released prisoners, as they were all in for short terms of imprison- ment inflicted for very trivial offences, and there is not a single thief amongst them.
Lient. Storey, R.M.L.I., who has been taking the place of Captain Mercer, R.M.L.I., on the Narcissus, is, we learn from the Nagasaki Express, proceeding to succeed the latter officer in charge of the detachment of British marines at Seoul.
CHINA OVERLAND TRADE REPORT.
SUPREME COURT.
17th June.
IN ADMIRALTY JURISDICTION.
BEFORE HIS HONOUR SIR JOHN CAR- RINGTON, CHIEF JUSTICE,
THE CHINA NAVIGATION CO., LIMITED,
THE STEAMSHIP NORMANDIE."
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V.
The defendants moved for a dismissal of the plaintiffs' action on the ground that proceed. ings have already been taken in Shanghai.
Mr. J. J. Francis, Q.C. (instructed by Mr. G. C. C. Master), appeared for the plaintiffs, and Mr. E. Robinson (instructed by Mr. J. Hastings) for the defendants.
485
appeal in the Privy Council) between the present parties with regard to the same cause of action as that involved in the present action, and that was therefore harassing and oppres sive to the defendants that the present action should be allowed to proceed; while by the later motion it is alleged that the doctrine of res judicata applies to the situation in which the parties now stand to one another; that is, that the cause of action which the plaintiffs are now seeking to enforce has already formed the subject of determination by a Court of com- petent jurisdiction, that it has become merged in an existing and valid judgment of that Court, and that it cannot therefore be sued. upon in this Court.
On the motion being called on for hearing, Mr. Francis took a preliminary objection to its His Lordship delivered the following written being entertained by the Court. This objection judgment: This is a motion by which the de- rested upon two grounds-first, that such a motion fendants seek to have the writ of summons and could not be regularly made after the enter all subsequent proceedings in the action seting of an absolute appearance and the taking of aside, and the security given by them dis- subsequent steps in the cause, but could be made charged, on the ground that the plaintiffs only after an appearance under protest and at have recovered judgment against them in the earliest possible moment; and, secondly, Her Britannic Majesty's Supreme Court that such an objection to the action could not for China and Japan in respect of the same properly be taken by way of motion for setting cause of action. They also ask for their costs aside proceedings, but should be put forward in of the action. It will be convenient to state the pleadings in bar of the notion. With the circumstances under which the motion regard to the first of these grounds, it comes to be made. The writ of summons was was argued by Mr. Robinson, in support of the issned on the 25th July, 1896, and by it the motion, that the defendants' objection was one plaintiffs, as owners of the steamship Pekin, to the jurisdiction of the Court, and that if claimed the sum of $50,000 against the steam- an objection to the jurisdiction is raised and ship Normandie for damages occasioned by a shown at any stage of the proceedings in an collision which took place in the Whangpoo action, the fact that the defendant appeared river, at the port of Shanghai, on the 3rd April, not under protest is immaterial, for the Court 1896. The Normandie was arrested, but was must stay its hand. He relied principally upon subsequently released, with the consent of the a dictum to this effect of Dr. Lushington in plaintiffs. On the 5th November, 1896, the The Eleanore, Br. and Lush; 185. But in defendants moved the Court for an order to stay this and in other cases cited for the defen- all proceedings in the action pending the hear- dants the question raised was really a question ing and decision of an appeal to the Privy whether the Court had jurisdiction at all to Council from Her Britannic Majesty's Supreme deal with the subject-matter of the action. Court for China and Japan in a suit wherein In the present case, however, the question the defendants, the owners of the steamship appears to be not whether the Court has Normandie, were plaintiffs and appellants, and jurisdiction to entertain a claim for damages the plaintiffs, the owners of the steamship by collision, brought against a vessel which is, Pekin, were defendants and respondents. or rather was, within the waters of the colony, From the evidence used on the hearing of that but rather whether the plaintiffs are barred motion it appeared that the defendants, as from prosecuting that claim in this Court by owners of the Normandie; had sued the the fact that they have already recovered judg plaintiffs, as owners of the Pekin, in the ment in respect of it in a foreign Court of Supreme Court at Shanghai, for damages in re- competent jurisdiction. The cases cited by spect of the collision which took place between Mr. Robinson do not, therefore, appear to me the two vessels on the 3rd April, 1896; that to be strictly in point. Yet, applying the the plaintiffs obtained leave from the Court to analogy of those cases and assuming for the file a counter-claim against the defendants in moment, for the purpose of deciding this head respect of the same collision; and that, on the of objection, that the defendants can bring hearing of the action and counter-claim, the their present contention before the Court by judgment of the Court was to the effect that means of a motion, I am unwilling to hold, Normandie was solely to blame for the collision, in the apparent absence of authority to that the defendants' action was dismissed with costs, effect, that the defendants are proceeding and there was a declaration made by the Court irregularly or are out of time in making this that the defendants were liable for all damages motion after entering an absolute appearance and losses occasioned to the plaintiffs by the and after taking further steps in the cause. collision and for the costs of the action. It The first ground of objection will, therefore, further appeared that an application made by be overruled. But I am of opinion that the the plaintiffs that the damages and losses might second ground of objection, namely, that the be assessed and final judgment entered up defendants cannot properly put forward the against the defendants for the amount so defence of a judgment already recovered by way assessed, with costs, was dismissed by the Court of motion for setting aside proceedings bat on the ground that it would not make an order should do so by way of pleading in bar of re which it could not enforce. It also appeared action, is a good one and must prevail. It is that, on the application of the defendants, the laid down in the text books that a judgment Court gave them leave to appeal to Her recovered by the plaintiff in an action in an Majesty-in-Conncil against the judgment. English Court of record merges the original After the motion to which I am now refer cause of action and affords a good de- 8 second action for the same ring had been fully argued by Mr. Robinson fence to for the defendants, and by Mr. Francis for cause. It is also said that a judgment of the plantiffs, the Court made a conditional a foreign or colonial court against the de- order for staying proceedings in the action, fondant does not operate as a merger of the or, to express it in other words, the Court original cause of action, and, if not followed by offered to stay proceedings on certain terms execution or satisfaction, affords no defence to which it thought might reasonably be imposed a subsequent action brought in England for on the defendants as a condition of granting the same claim. It is clear that such a judg- the stay. The defendants have not, however, ment, though unsatisfied, may be ground for an signified their acceptance of these terms within application to stay proceedings in an action in the time allowed them for that purpose, and England-Ostell v. Lepage, 5 De G. and S. consequently the motion stands dismissed. It 95. These rules apply, mutatis mutandis, in will be apparent that the motion of which I the case of litigation in this Colony. But it lies on the defen lant to establish the facts have just been speaking and the motion now before the Court really have reference to the upon which a defence of this kind rests. If he same matter, presenting it, however, from two sets it up, he must satisfy the Court that By the earlier the Court which tried the former action different points of view. motion it was contended that there was a lis was of competent jurisdiction; that the
that the cap alibi pendens (that is, the proceedings on parties were the same;
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