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Colonial Cases

Westray and Gibb v. Foster, 1872

[enforcement of foreign judgments]

Westray and Gibb v. Foster

Supreme Court of China and Japan
1 and 6 March 1872
Source: The North-China Herald, 7 March 1872




Shanghai, March 1, 1872.

Before C. W. GOODWIN, Esq., Deputy Chief Judge.

(In appeal from Foochow.)

WESTRAY & GIBB, appellants and plaintiffs,


JOHN FOSTER, of FOSTER & Co., respondent and defendant.

   This case was instituted in the provincial Court at Foochow by the plaintiff's attorney, for the endorsement and execution of a judgment recovered by them against the defendant in the Supreme Court, New York, in April 1871, for the sum of $50,000.

   At Foochow, the defendant opposed the application, on the ground that the judgment in New York was irregularly obtained against him, inasmuch as by law his presence was required at the hearing to make it binding upon him, out of American jurisdiction, he being a foreigner; that he was not cited, nor was he represented at the hearing, and that thus a cross action he had against the plaintiff, for an amount far exceeding their claim, was not considered.  He also demurred that there was no Consular Court in China wherein he could sue the plaintiff for this claim.  Upon these grounds the defendant applied that certain documents of the proceedings in the New York Court, which were sought by plaintiffs to be put in as evidence against him in the Foochow Court, should not be received, and that the application generally should be dismissed.

   The Court, while allowing the defendant's objection as to the documents, decided to take them simply as giving a history of the case in New York; and after taking evidence for the defendant, dismissed the plaintiff's application, on the ground that defendant was not a party at the hearing of the case in New York and could not therefore bring forward the counter claim, which the Court considered he had, and for which there was no Consular jurisdiction in China before which he could sue.

   Plaintiffs appealed against this decision, on the ground that their case had been prejudiced by the refusal to receive documentary evidence, and that thr finding of the Foochow Court was contrary to law.  Defendant answered their petition, upholding the action of the Consular Court.

   It appears from the records of the appeal that the claims arose out of mercantile transactions between the parties, respondent having shipped teas to New York for appellants, while the latter purchased certain steamers for him, on one of which, the Woo-sung, respondent claims to have, through appellants' negligence and their having acted diametrically contrary to orders, lost the account for which he desired to being a cross action.

   Mr. Rennie appeared for the appellants and Mr. Eames for the respondent; the latter, on Thursday, applied for leave to file in this Court a counter claim against the appellants, as forming part of the case and to be heard at the same time, and likewise for the postponement of the hearing till June next, when respondent might appear and give evidence.  The motion was adjourned till to-day, when it was heard as part of the appeal.

   A technical question arose out of the loss of the official record of the judgment given in New York, which had been posted at Foochow, by a mail bag carried by the steamer Odessa, that had been lost in transit.  The Court decided, against an objection raised by Mr. Eames, that, by No. 159 of the Court rules, the acceptance of a copy handed in was in its discretion.

   Mr. RENNIE stated the position of the case and read the judgment of the New York Court, the effect of which he remarked was not taken into account by the Foochow Court.  The evidence taken at that Court also showed the counter claim to be precisely similar to that set forth in the respondent's answer in the New York Court, and that the defence in the Court below wass put forward with a desire to reopen the case or give fresh evidence in support of the claim he had set up in his original answer. No question could arise as to the regularity of the foreign judgment, which was duly certified by the New York Court and H.M.'s Consul there.  The real question was as to whether or not it was conclusive, and binding upon the respondent. With regard to the binding nature of foreign judgments generally he quoted - Storey 809, secs. 618 d & f.  Defendant admitted the judgment in his answer, which did away with any difficulty arising from the documents having gone missing.  The only objection he had to meet was in par. 6 of respondent's answer.  He argued in the answer that there was no fraud alleged against the judgment, but that the jurisdiction, according to par. 6 of the answer, "was questionable." 

   As to jurisdiction, it was on the record, and shown by the evidence, that Mr. Foster had appeared by his attorney, a gentleman named Ward, whose authorisation was taken by the New York Court to be sufficient.  In support of the jurisdiction by appearance of attorney, he quoted Maloney and Gibb, 2 Campbell 502.  He quoted Russel and Smith to show that an English Court would always presume the regularity of the proceedings in a foreign Court, and cited in support Reynolds and Fenton, 16 L.J. Com. Pleas, 15.  In support of how far foreign judgments were upheld by British Courts he quoted Bank of Australia v. Naas, 20 L.J. Q.B., 284; de Brissy v. Rathbone, 20 L.J. Ex., 238; Simpson and Vogel, 32 L.J., Chan., 252; Q.B. 82, Godart and Gray, L.R. 6 Q.B., 139, and Schilsby v.  Westondale and Munro and Pilkington, to show that a judgment given in similar circumstances was upheld by the Court of Queen's Bench.  To apply the rule laid down by all authorities to the present case, there could not be the slightest doubt that the respondent appeared by his attorney at New York and took the chance of a judgment in his favour, and actually preferred a counter claim for a larger amount than that sought by the appellants.  This in itself was strong evidence that he submitted himself to the jurisdiction of the Court, and that raising that as an objection wass never thought of.

   It did not appear that Mr. Ward ever applied for any adjournment of the case in New York, on the ground that his principal was in China.  If respondent had been guilty of any laches, as was the case in Godart and Gray, that was his affair.  It was perfectly clear that any objection pleaded to the Court at Foochow should have been pleaded at New York; and respondent could not say because judgment had gone against him he must bring the case again and re-open the defence.  In conclusion, the learned counsel submitted that the decision of the Court at Foochow should be reversed, and that the judgment against respondent should be enforced.

   Mr. EAMES opened by calling the Court's attention to rule 172, which allowed this Court to amend the pleadings necessarily imperfectly drawn at Foochow.  He contended that appellants should have said in their petition that the judgment in the New York Court was final, and quoted in support Plummer v.  Woodburn, 4 Cresswell's cases, 465.  He did not dispute his friend's proposition on the general principle, though some of the cases cited went far beyond any preceding them.  He quoted from Kent thee case of Sinclair v. Fraser; Smith v. Nichols, 5 Bingham's new cases, and Holdwitch v.  Donegan, 8 Bligh. 

   The respondent wished to reopen the case purely and simply on the merits, and contended that he was prevented from having it properly tried by an accident.  Defendant was relying on his brother in America to assist his attorney in the management of the case, but his brother died suddenly, and event of which respondent first heard after returning to China.  As to trhe cases cited, it was stated over and over again that a foreign judgment was not a judgment strictly speaking, that it was not a merger of the original action, but of the nature of an accord or of evidence.  It was so referred to in the Bank of Australia v. Harding, 19 L.J. Com. Pleas, 345, and Smith v.  Nicholls, the former of which supported his plea that a foreign judgment might also be set aside on account of fraud or accident, or because the defendant had no opportunity of making his defence. 

   The learned Counsel commented on the cases Godart and Gray and De Brissy, cited by Mr. Rennie.  His friend had failed, however, to cite a single case similar to Smith v. Nicholls.  There was no negligence here on the part of respondent; the only negligence attributable to him was that of his attorney, and although in ordinary circumstances her was responsible for that, it seemed to him (Mr. Eames) that respondent should not be held so in a matter of this sort.  The judgment of the New York Court was received in evidence at Foochow, and notwithstanding that, the Court and Assessors there were unanimously of opinion that the respondent owed appellants nothing, and this finding furnished strong evidence that it would be contrary to justice to enforce the judgment. The reason for enforcing foreign judgment was entirely technical; it was done in comity, and to enforce it here would be straining that comity to an extraordinary extent. (The learned Counsel referred to the exceptional powers of the Court here as a Court of Equity; but his lordship did not consider them greater than in England, though Rule 172 gave a large latitude, to enable the Court to rectify the inexperience of the provincial tribunals.) 

   Mr. Eames summed up his position that none of thr cases cited by his friend had gone so far as those he brought forward, nor so far as to prevent q reopening of the case here, seeing that respondent was prevented by an unfortunate accident from going into the merits properly at New York.  In one way or another the Court was in possession of very strong evidence to show that a great injustice had been done, and it would not enforce a judgment that was manifestly oppressive.

   Mr. RENNIE having replied,

   His Lordship said he must sustain the appeal.  As the question was of importance he would state his reasons in writing hereafter.

March 6th.

   Judgment was delivered this morning, as follows:-

   This case was decided in the Provincial Court of Foochow in favour of the defendants, and against this decision the plaintiffs appeal.  An action was brought by the appellants, who are an American firm, residing in New York, U.S.A., upon a judgment obtained by them against the respondents in the Supreme Court of New York, for the sum of $120,942.64, and the question is whether that judgment can be taken here as conclusive.

   The respondent put in no answer in the Court below, but appeared and pleaded that he had a large counter claim against the appellants, and also that he had not had legal notice of the suit in New York and that he had authorised his brother in Canada to protect his interests, employing a certain Mr. Ward as lawyer; and that this brother died before the suit came to hearing.  The Court below found that the evidence of the defendant John Foster was wanting at the hearing before the Supreme Court at New York, and that therefore the evidence before the  said Court was incomplete, and it thereupon went into the case again and found in favour of the defendant.

   What I have to decide is whether the Court below or this Court can reopen the question decided in the Foreign Court of New York.  It is well established that an English Court will ordinarily not reject a foreign judgment as evidence of a debt, where all things upon the face of the judgment appear to have been rightly performed and no question as to jurisdiction is raised, unless it be shown extrinsically that the judgment was obtained by fraud, or by means clearly contrary to natural justice, as for instance without any notice, summons, or appearance of the party defendant, or any equivalent proceeding.  Now in the present case, the judgment appears upon the face if it to be perfectly regular, according to the procedure of the Supreme Court of New York.  An answer was put in to the suit by Mr. Ward, an attorney for the defendant Mr. Foster, from instructions given him by that gentleman himself, when at New York, in 1869, from written memoranda and from divers consultations held with him.  From Mr. Foster's own evidence it appears that he gave Mr. Ward authority in writing to defend the case. I cannot hold the allegation of the defendant, that he asked his brother in Canada to protect his interests in conjunction with Mr. Ward and that his brother unfortunately died before the hearing, sufficient to show that any unfair advantage was taken of him. 

   The whole case and the claims on both sides, as appears by the report of Nr. Nicholl, the referee, to whom, according to the practice of the Supreme Court of New York, the case was referred, were gone into by that gentleman and the proofs heard - and his report was adopted by the Court.  No defence has been raised which would, in my opinion, warrant a Court either of Law or equity in England to reject the judgment; and I must accordingly overrule the decision of the Court below, and hold the plaintiffs entitled to recover the sum they claim, with costs in the original action and also the costs of this appeal.

   The sum claimed on the judgment of the New York Court is $50,942.64 American dollars, and it will be necessary that the value of this sum in Mexican dollars should be estimated.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School