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Colonial Cases

Bank of China, Japan and the Straits Ltd v. MacDonnell and others, 1896

[enforcement of foreign judgments]


 

Bank of China, Japan and the Straits Ltd v. MacDonnell and others

Supreme Court for China and Japan
Hannen CJ, 16 October 1896
Source: North China Herald, 23 October, 1896


 

LAW REPORTS.

H.B.M.' SUPREME COURT.

Shanghai, 16th October.

Before Sir N. J. Hannen, Chief Justice.

THE BANK OF CHINA, JAPAN AND THE STRAITS, LTD. v. MACDONNELL.

   This was an action to enforce a judgment of the High Court of Justice in England, in respect of unpaid calls on certain shares, the defendant being Mr. D. A. MacDonnell.  Mr. J. C. Hanson (Messrs. Dowdall and Hanson) represented the plaintiffs, but the defendant did not answer or appear.

   The plaintiffs' petition was as follows:

   [1.] - The plaintiffs are a British Company incorporated under the English Companies Act 1862 to 1886.

   [2.] The defendant is a British subject and resides at Shanghai.

   [3.] Previously to the time herein after mentioned the plaintiffs commenced an action against the defendant in the Queen's Bench Division of the High Court of Justice in England which said action was distinguished  in the cause book of the  said Court as 1895 C. No. 3.979, the plaintiffs' claim being for money which the defendant as a member of the plaintiff company was indebted to the plaintiffs for the call made by the liquidator in the winding-up of the above company upon 50 ordinary shares of the company held by the defendant.

   [4.] Afterwards on the 15th day of May 1896 the plaintiffs by judgment of the said Court recovered against the defendant in the said action the sum of £396 6s. 2d. together with the sum of £8 3s. 2d. costs of action and making together the total sum of £404 9s. 4d.

   [5.] The said judgment is still in force and unsatisfied.

   The plaintiffs therefore pray:

   [1.] That the defendant may be ordered forthwith to pay to the plaintiffs the said sum of £404. 9s. 4d.  together with interest thereon at the rate of 5 per cent per annum from the 13th day of May,1896.

   [2.] That the defendant may be ordered to pay the costs of the suit.

   [3.] That the plaintiffs may have such further or other relief as the nature of the case may require.

   Mr. Hanson having briefly opened the plaintiffs' case called

   Thomas MacDonald, Usher to the Court, who proved the personal service upon the defendant of the petition on the 24th of August, and the notice of hearing on the 5th of October.

   Mr. Hanson - I do not know whether your Lordship would wish me to refer to questions of law, but I think it may be taken that it is well settled that in an action of a foreign judgment, as this practically is, the foreign judgment is conclusive on its merits.  The only defences to an actions of this kind  are either want of jurisdiction or that it is contrary to natural justice, that is to say, that the defendant had never had any notice of the suit at home or that it was obtained by fraud, any of which must be pleaded by the defendant, because it is also well settled that any order or judgment which has been obtained in one Court is regular and has been obtained in proper and regular manner, and it is not necessary to prove the jurisdiction.

   His Lordship - Could you prove notice to the defendant in this suit of the suit at home?

   Mr. Hanson - Yes, I could prove that Mr. Sawyer served the writs.

   His Lordship - I have no doubt upon the other point; that is the only point upon which I have a doubt. If you can prove that there would be no difficulty.

   Mr. Hanson - Yes, I can prove that Mr. Sawyer served these writs and I must send for him and ask him to come to the Court. I did not being him here because my argument is that it is not necessary unless it is pleaded.  That is to say, the Court will assume that everything necessary has been done. This is a judgment made by the English High Court of Justice, and I think your Lordship would assume that any order made by the Supreme Court has been made in a proper and regular manner and in accordance with the rules of the Supreme Court of Judicature.

   His Lordship - How are you going to prove that it was made?

   Mr. Hanson - I will put in the office copy of the judgment in that suit. (Certified copy put in.) Under the Orders of the Supreme Court of Judicature that is sufficient evidence.  As to the evidence of the non-payment of the amount of the judgment, I would ask Mr. Bremner just to give evidence.

   Mr. Bremner was then called and sworn. He said - I was lately Manager of the Bank of Chinas, Japan and the Straits, Ltd., and hold the power of attorney of the liquidator of the former Bank. To the best of my knowledge and belief nothing has been paid on the amount of the judgment.

   Mr. Hanson also put in an affidavit by Mr. F. C. Bishop, of 36, Nicholas Lane, London, liquidator of the Bank of China, Japan and the Straits, Ltd., in which he said that certain persons, amongst them the defendant, had not paid the amount due from them in respect of calls. In the schedule attached Mr. MacDonnell appeared as the holder of fifty shares.

   His Lordship - I think that is sufficient. Judgment for the plaintiffs for the amount claimed, with costs.

.  .  .  

THE BANK OF CHINA, JAPAN AND THE STRAITS, LTD., v. PURCELL.

This was a similar suit, the petition alleging that Mr. Chares Harris Purcell, the defendant, owed £1,318 112s. 9d the amount of a judgment in respect of calls upon 160 ordinary shares. 

.  .  .  

His Lordship gave judgment for the plaintiffs for the amount claimed with costs.

.  .  .  

THE BANK OF CHINA, JAPAN AND THE STRAITS, LTD. v. TAYLOR.

   This was a claim against Mr. C. S. Taylor for £1,481 4s 2d., also in respect of calls upon shares.  The defendant did not appear but he put in an answer in which he said:

   "There is no evidence that he (defendant) is or ever was a shareholder in the Bank named. On the 24th of June,1896, in consequence of a letter from the plaintiffs' solicitor he addressed the Chairman of the Bank in London, to which communication time has not permitted of a reply. He denies having paid or caused to be paid any money whatever, either to or for the liquidator of the Bank named. 

   C. S. Taylor, a British subject in the employment of Jardine, Matheson & Co., therefore prays:

   [1.] That the plaintiffs may be ordered forthwith to cease their vexatious prosections.

   [2.] That the plaintiffs may be ordered to pay the costs of this suit.

   [3.] That such further or other relief so afforded as the nature of the case may require."

   The service of the petition and notice of hearing having been proved,

   Mr. Hanson said Mr. Taylor had put in a written answer but it really made no difference because it did not show any of the grounds of defence he (Mr. Hanson) had stated.

   His Lordship - It does not show any grounds upon which we can go.

   Mr. Hanson - He says there is no evidence that he is or ever was a shareholder, but that has nothing to do with this suit.

   His Lordship - I think you must pursue the same course as in the others.

   Mr. Hanson - He says that he has never paid or caused to be paid any money in connection with the shares, but in our petition we give him credit for a certain amount.

   Mr. Bremner was then called and examined.

   Mr. Hanson - Have you received any money from Mr. Taylor in respect of this judgment, and if so what money?

   Witness - We received, I think, Tls. 700 which was converted into Sterling, equal to £105 13s. 5d.

   His Lordship - From whom?

   Witness - From him.

   His Lordship - In respect of this judgment?

   Witness - In respect of his liability to the Bank.

   His Lordship - Was it accompanied by a letter?

   Witness - No, simply a compradore order.

   Mr. Hanson - Perhaps you had better explain how it came about that he paid you anything.

   Witness - It was in consequence of a conversation I had with him.

   Mr. Hanson - Perhaps your Lordship is aware that there has been a reconstruction of the Bank, and there is an agreement drawn up which was sanctioned by the Court, and,  by the terms of that agreement the shareholders in the Bank of China, Japan and The Straits, Ltd., had the option, if they liked within a certain time, to apply for shares in the new  Bank and, if they did that and paid calls which were £3 15s. per share, spread over three years, 1895-6-7, they would in that case be relieved from this immediate liability which was otherwise imposed upon them of paying up the full £7 15d. 

   We have repeatedly called Mr. Taylor's attention to the fact r and told him what was necessary to be done, and although the time has long since passed we told him if he would make the necessary application for new shares and pay the calls and expenses of this judgment that would be sufficient, but he has not taken any notice of that and has never applied for the shares. He wrote to the Bank in London and the answer was: "You have declined to apply for the new shares and you cannot be treated otherwise than a shareholder in the old  Bank remaining liable for £3 15 a share."

   I understand Mr. Taylor's contention is that when he made these payments they were for these new shares, but he has never signed the application and refuses to do anything, and we have no option but to enforce this judgment against him. I have not the slightest doubt if he would sign an application and pay the expenses we would still grant him the shares, but that is what he will not do. We have therefore only to ask your Lordship for judgment in this action.

   His Lordship - Yes, there must be judgment for the plaintiffs, with costs.

 

Source: North China Herald, 8 January, 1897

 

LAW REPORTS.

H.B.M.'S SUPREME COURT.

Shanghai, 5th January

Before Sir N. J. Hannen, Chief Justice.

THE BANK OF CHINA, JAPAN AND THE STRAITS, LTD. v.  MACDONNELL.

   This was a judgment summons against Mr. D. A. MacDonnell, in respect of £404 9s. 4d. calls upon shares.

   Mr. Hanson, for the plaintiffs, said the defendant had taken no notice of the judgment obtained against him on the 16th of October.

   Mr. MacDonnell was then called, sworn, and questioned by Mr. Hanson as to his means. He said that up to the 20th or 22nd of November, he was an officer on board the s.s. Poochi at a salary of $90 a month with allowances. He had since been serving his time on the river as a pilot. After at first objecting to answer, he said that in December he received something over $500 for piloting an American man-of-war down the coast. He had used that money to satisfy his debts. He had about $2 now in the bank and did not own any other shares. Asked how he came to buy the shares in connection  with which the claim arose, he said the some one came to buy the shares in connection with which the claim arose, he said the some one came aboard his ship, and as others were buying shares and said it was a god thing he bought some.

   Mr. Hanson suggested that the defendant should be ordered to pay at least $25 a month. He certainly ought to have paid something out of the $500 he had earned. But as in so many of these cases, the defendant ignored the whole matter, and the Bank was obliged to incur Court fees in dealing with them.

   His Lordship thought it would be better to adjourn the case sine die, so that if the defendant became possessed of any means the plaintiffs could apply to the Court.  Addressing the defendant, he said that he had admitted paying other claims since the order in the present case had been made, which amounted to contempt of Court. He warned the defendant seriously that if Mr. Hanson had pressed for it he should have sent him to gaol. If he were guilty of such conduct again he would most certainly go to prison.

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