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Colonial Cases

Langfeldt and Mayers v. Green, 1881

[appeals]

Langfeldt and Mayers v. Green, 1881

Selected, edited and transcribed by Douglas Clark, barrister, Hong Kong

IN HER BRITANNIC MAJESTY'S SUPREME COURT 
FOR CHINA AND JAPAN 
________________ 
 
Before  N. J. Hannen, Esquire, Acting Chief Justice 
and R. A. Mowat, Esquire, Assistant Judge 
________________ 
 
Between 
 
A. Langfeldt and S. Mayers Plaintiffs and Appellants 
Carrying on business under  
the name and style of LANGFELDT 
AND MAYERS 
 
and 
 
Mary E. Green Defendant and Respondent 
 
Original Report:  (U.K) National Archives, FO656/39 
 


Date: 18 November 1881 
 
THIS is an appeal from Her Britannic Majesty's Court for Japan. 
 
In September 1871 the appellants recovered judgment against the respondent for a sum (including costs) of $445.25. They took no steps to enforce the judgment -- on the ground, as they allege, that the respondent promised to pay if time were given to her -- till February 1879 when they brought an action on the judgment, claiming, in addition to the sum thereby awarded, $300 by way of interest. In their petition the judgment upon which they sued was stated to be a judgment of "Her Britannic Majesty's Court at Kanagawa" but when the decree was put in, it was found to be headed "In Her Britannic Majesty's Supreme Court for China and Japan," and to be, moreover, sealed with the seal of the British Consulate at Kanagawa, and with no other.  It further appeared in the course of the respondents case that the petition in the first suit had been headed " In Her Britannic Majesty's Court for Japan" -- a Court which at that time had not been established. 
 
In the judgment under appeal the Judge of the Court below says- 
 
"Now the judgment produced by the plaintiffs, and upon which their claim to succeed must rest, is entitled  'In Her Britannic Majesty's Supreme Court for China and Japan' ...... It is not signed, and is sealed only with the Consulate seal of Kanagawa. It does not therefore profess to be a judgment of Her Britannic Majesty's Court at Kanagawa, in which the plaintiffs say they recovered judgment; and if, on the other hand, it be a judgment of the Supreme Court for China and Japan, there is nothing to show that it has been certified under the seal of the Court."  
 
He accordingly gives judgment for the defendant, but without costs, and it is from that judgment that the present appeal is brought. 
 
The first point, as it appears to us, that we have to determine is, in what Court the decree produced by the appellants was actually pronounced. The cause was heard at Kanagawa in Japan by the then Acting Assistant Judge of the Supreme Court for China and Japan, who had been, under Sec. 38 of the Order in Council of 1865 appointed by the Judge of that Court to visit in a judicial capacity the Court at Kanagawa and there hear and determine any cases pending or that might arise in the district.  
 
We think it clear that under such circumstances the Assistant Judge or the Acting Assistant Judge did not become the Judge of the Provincial Court but was simply the Assistant Judge or Acting Assistant Judge of the Supreme Court on circuit and that consequently the decree in question was a decree of the Supreme Court as (except for the seal) it purported to be. We think it unnecessary to enlarge upon this Point, as this view was taken by Sir E. Hornby, the Judge of the Supreme Court at that time, in a decision given by him in 1872 -- subsequent, that is, to the judgment, now under consideration. Even if our own view did not agree with his, we should on such a point as this feel ourselves bound by it, but, as we have stated, we should, independently of that authority, have come to the same conclusion. 
 
The second point -- one made rather by the respondents Counsel than one relied upon by the Judge of the Court below -- is easily disposed of.   It is founded upon the incorrect heading of the first petition, but we consider that this was cured by the appearance of the respondent by Counsel, and the fact that no objection was taken to the petition on that ground. Had objection been so taken, or had the heading of the petition been otherwise brought to the notice of the Acting Assistant Judge it would have been amended as a matter of course. 
 
There remains, then, only the difficulty of the seal, and that is a difficulty which, we are constrained to hold, is fatal. The seal affixed to the decree is not the seal of the Court in which in our opinion the decree was pronounced. That it was the only seal ever used in the Court -- that there was no other seal available -- that it was used, moreover, as the archives of this Court show, in deference only to instructions from his official chief (the then Acting Judge, the late Mr. Goodwin) to the Acting Assistant Judge who had requested to be furnished with a seal of the Supreme Court for use at Kanagawa - none of these circumstances can avail against the respondent who relies upon the irregularity, purely technical though it is.  We are of the opinion, however, that, in order to avoid what would otherwise be a grave miscarriage of justice, we can properly under Rule give the appellants leave to amend their petition alleging that the Judgment was the judgment of the Supreme Court and to substitute for the decree sealed with the Kanagawa Consulate a decree in the same terms sealed with the seal of the Supreme Court.  Both parties will then be at liberty (if the case cannot otherwise be settled - a course we strongly recommend) to re-argue the appeal upon these amendments, the respondent having leave in addition to argue that they could not properly be made.   There will be no costs to either party, either below or here, up to this point.  
 
ORDER 
 
Let the plaintiffs have leave to substitute for the decree which exhibit B is a copy the decree accompanying this order and to amend the petition in the Court below by alleging that the judgment sued upon was the judgment of the Supreme Court and let both parties have leave to re-argue the appeal upon these amendments the defendant having leave to contend that those amendments could not properly be made and let the case come on for argument on Monday the nineteenth day of December next when the Court will hear the parties or their counsel or will take into account written arguments.   
 
Each party to pay their own costs up to the date of service of the present order. 

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