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Colonial Cases

Fitch v. Farnham, 1888

[civil procedure - church governance]

Fitch v. Farnham

United States Consular Court, Shanghai
Kennedy, 10 April 1888
Source: North China Herald, 13 April 1888

10th April, 1888.
Before General J. D. Kennedy, U.S. Consul-General, Acting Judicially.
  Mr. R. E. Wainewright appeared for the Plaintiff, and Mr. H. Browett for the Defendant.
  In this suit, the Plaintiff acted as agent, for and on behalf of the Board of Foreign Missions of the Presbyterian Church of the United States of America. The Defendant demurred to the proceedings.
.  .  .  
  The Court - I have given this matter some consideration since the filing of the demurrer, and consequently am prepared without going into any details in regard to the matter to say that I do not think on the face of the petition and the facts therein set forth, that the demurrer can be sustained.  Take the allegation on oath on which the learned counsel for the Defendant relies and would deduce the conclusion of law that Mr. Fitch has not legal capacity to sue; and the reading of that allegation does not upon the facts show that there is no legal capacity in him to sue.  On the contrary, it shows that he was advised on 9th March by telegram from the Board to take possession of the property. This was definite instructions from hem. I quite concur with the learned counsel for the plaintiff that the telegram was definite instructions to him.
  The Board being in America, and the Plaintiff in China, I consider this telegram conferred ample power on him to take all legal steps to carry out the instructions of the board.  As to what may be the eventuation of this suit, he certainly has legal authority on that telegram to begin it.  The result is, of course, a matter of proof and evidence to be adduced at the trial.  Whether Missionaries should come into Court or not is a matter for them to settle among themselves; they have as much right to institute legal proceedings as others.  The result of the trial through the evidence adduced will show to the world that they are desirous of abiding by the decisions of legal tribunals.  While each conscientiously holds to the opinion of his right to the property, they can both hear the case with good temper, and I hope this good temper may be maintained throughout the case.
  The case will be proceeded with on Thursday afternoon at 2 p.m.

Source: North China Herald, 20 April 1888

14th April 1888
Before General J. D. Kennedy, Consul-General, Acting Judicially, and A. W. DANFORTH and F. E. HASKELL, Assessors.
  Mr. R. E. Wainewright appeared for the plaintiff, who proceeds as Agent on behalf of the Board of Foreign Missions of the Presbyterian Church in the United States of America.
  Mr. H. Browett for the defendant.
  The suit came on for hearing on Tuesday last, when the court over-ruled the demurrer entered by the counsel for the defendant, who thereupon filed the following answer to the petition, which we have already given:-
- In answer to the 1st paragraph thereof the defendant admits the fact of the existence of such Corporation but says (a) That the Board of Foreign Missions is appointed by, and is responsible to, the General Assembly of the Presbyterian Church in the United States.  (b) It is a Presbyterian Institution receiving its funds from collections in the churches, Sunday Schools, legacies and donations from Presbyterians - and therefore must conform to Presbyterian usage.
- In answer to paragraph 2 - Defendant admits that the plaintiff is a citizen of the U.S. and a member of the said Central China Mission but denies that he has been appointed agent of the said board for the purposes in the said petition mentioned.
- In answer to paragraph 3 - Defendant admits the fact that he is a citizen of the U.S. and a member of the Central Chiba Mission and as such member receives his support through the medium of the said Board, and is amenable to the established rules and legal usages of the said Mission, and believes the plaintiff to be subject to the same authority and conditions.
- In answer to paragraph 4, the defendant admits the first portion of this paragraph, but denies that all the plant and machinery is the property of the said Board.
- In answer to paragraph 5, The defendant admits this paragraph.
- In answer to paragraph 6 The defendant admits this paragraph but further states that since the end of the year 1887 he has lawfully continued to hold such offices and to perform the duties in connection.
- In answer to Paragraph 7 The defendant denies the allegations contained therein except as shall be hereafter admitted.
- In answer to paragraph 8 the defendant admits that he has refused to deliver over charge of the said Mission Press and the Funds and Books appertaining to the said Treasurership.
- In answer to paragraph 9, The defendant has no knowledge or information sufficient to form a belief that the said Board did authorize h plaintiff to take possession of the said property by means of legal proceedings.
The defendant further answering the said petition says:-
  That the plaintiff has not legal capacity to sue on behalf of the Board of Foreign Missions of the Presbyterian Church in the United States of America.
  That the action taken by the said Board as set forth in paragraph 7 of the petition was irregular and contrary to the received rules and usages forming the said Board.
  That both the offices of treasurer of the Mission and Superintendent of the Press are permanent offices, and the person or persons holding either of these offices cannot be displaced except for incapacity or malfeasance.
  That defendant, being fully aware of the facts, did, with the approval of the  said Board, upon his appointment to the office of Superintendent of the press, present as  a free gift, certain Presses and other materials for printing purposes, valued at about $2,500, which he would not otherwise have done.
  That all the alleged proceedings taken by the said Board for the purposes of displacing the Defendant from his offices are the result of false and defamatory information supplied to the Board by the Plaintiff or other Missionaries.
  That in consequence of such false and defamatory information, the said Board has been misguided, and their action the Defendant believes to be irregular and contrary to his rights as a member of said Mission, and to his civil rights, and is calculated to injure him.
  The Defendant therefore prays:
  That the Petition be dismissed with costs, and the Defendant have such other and further relief as to this Honourable Court may seem meet and the Defendant will ever pray, &c.
  This morning Mr. Browett moved the Court for a continuance of suit, on behalf of his client, the motion being supported by the following affidavit:-
JOHN M. W. FARNHAM of Shanghai, in the Empire of China, being duly sworn, says:-
- That he is defendant in this action.
- That deponent has fully and fairly stated the case to Harold Browett his counsel and that he has a good and substantial defence on the merits of the action as he is advised by his said Counsel and verily believes to be true.
- That there is pending an appeal from the action of the said board (taken by it during the month of June, 1887, and more particularly on the 6th day of September of the same year), to the General Assembly of the Presbyterian Church of the U.S. of America, and that the subject matter of such appeal is the same as the subject matter of this action.
- That the said General Assembly will convene at Philadelphia on the 17th day of May next when the said appeal will be duly  brought forward before such Assembly.
  That it is absolutely necessary for the interests of the deponent that he is present at the trial of this appeal before said General Assembly.  In order to be present at such Assembly, it will be necessary for deponent to leave Shanghai for America on or about the 17th day of this present month.
  Mr. Wainewright opposed the application on the ground that Dr. Farnham's leaving the Mission Press to a layman substitute would be prejudicial to the interest of the Mission, that the issues involved in the suit were too important to be left in suspension for such a time as the course proposed by the defendant would require, besides the plaintiff was quite ready to go on with his case at once, and the defendant had had ample time to prepare his defence.  He produced two letters from the Board of Missions, which detailed at length the previous decision in the case between plaintiff and defendant.
  His Honour while expressing his anxiety to avoid any decision by which the interests of either of the parties might be in the least prejudiced, said he did not think the reason for defendant's motion for continuance was sufficiently strong to be accepted by the Court as valid.  It was only in absence of material witnesses or evidence which could not be got without further time that the Court could according to its rule, grant a continuance.  If defendant's counsel thought he could so amend his affidavit to allow it to come within this rule he could do so now.
  The defendant thereupon amended his affidavit by an additional paragraph as follows:-
  A further ground for asking a continuance of this action lies in the fact that material and important evidence bearing upon the matters at issue can only be obtained from New York or other places in the United States, and that it will require several months to obtain the same.
  His Honour then suggested that all parties might be best served if they consented to the appointment of a Receiver to act as Superintendent of the Mission Press while Dr. Farnham proceeded to America.  He made the suggestion merely to harmonise matters more, and to see if the case could not be better met in this way than by going into every detail in Court.
  An informal conversation between the bench and the parties to the suit followed. And after several names of missionaries had been suggested and rejected for one reason or another, both plaintiff and defendant agreed to the appointment of the Rev. J. A. Silsby as Receiver over the property till further notice, his appointment not to be regarded as prejudicing the case on either side.
  Dr. Farnham intimated his willingness to hand over the books of the Treasurership to Mr. Fitch at once, but this was to be regarded as quite a distinct matter from his position as Superintendent of the Press, and the plaintiff took charge of the books.
  His Honour expressed his satisfaction for the sake of all parties that this course had been adopted as removing some of the difficulties and asperities of the case, which now remains in situ, and the court adjourned.


Source: North China Herald, 7 July 1888

Shanghai, 2nd July.
Before General; J. D. Kennedy, U.S. Consul-General, Acting Judicially. W. A. DANFORTH, F. H. HASKELl, Assessors.
  This case was one arising out of a dispute between the plaintiff, the Rev. Geo. F. Fitch, and the defendant the Rev. J. M. W. Farnham, both members of the American Presbyterian Mission, as to the management and possession of the property known as the American Presbyterian Mission Press, of which the defendant was paid superintendent for several years past, till some months since, when the plaintiff was ordered by his Society to take over charge.  The defendant, as stated in his answer to the plaintiff's petition, refused to give up possession, and proceedings were instituted in the court, when it was mutually agreed that further proceedings should be stayed, until the return of the defendant from Boston, U.S.A., where he had gone to appeal to the governing body of his Mission, and the Rev. J. A. Silsby was appointed provisional Superintendent and receiver in the meantime.  The case now came into Court upon the plaintiff's application, to have Mr. Silsby discharged and himself appointed, in consequence of information from Boston by letter and telegraph to the effect that the defendant had been unsuccessful in his appeal. There was no appearance for the defendant.
  Mr. Fitch conducted his own case, and the Court made the following order:- J. A. Silsby has this day been discharged as Receiver of the Presbyterian Press property; and said property has this day been handed over to Geo. F. Fitch.
J. D. KENNEDY, U.S. Consul-General.
Dated 2nd July 1888.
It was also agreed that the case should remain on the court list pending the return of the defendant.

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