Dennis v The Leinster Paper Company, Ltd

• Jurisdiction: Ireland
• Judgment Date: 27 February 1901
• Date: 27 February 1901
• Docket Number: (1900. No. 14,436.)
• Court: Court of Appeal (Ireland)

Dennis

and

The Leinster Paper Company, Limited (1).

K. B. Div.

Appeal.

(1900. No. 14,436.)

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1901.

Practice — Security for costs — Foreign judgment — Plaintiff resident in America — Satisfactory affidavit of good defence — Judgment obtained without jurisdiction.

The R. B. Iron Co., who carried, on business in Massachusetts, had sold goods to the defendants, whose place of business was at Clondalkin, in the county of Dublin, to the amount, as claimed, of £1328. In January, 1900, the defendants sent the vendors a draft for 832 dollars, which the defendants stated had been accepted in accord and satisfaction of the claim. On the 23rd February, 1900, the R. B. Iron Co. assigned the debt to the plaintiff who resided in New York, in consideration of one dollar. The next day the plaintiff issued a process against the defendants, which he served upon C., the managing director of the defendants, who happened to be in New York. An application by C. to the Court in New York to set aside service of the process was refused, and the plaintiff obtained judgment in the Court in New York. The plaintiff subsequently brought the present action, suing on the foreign judgment. On application by the defendants for security for costs, founded on an affidavit setting forth all the above facts:—

Held (affirming the decision of kenny, J.), that the defendants had shown a reasonable prospect of establishing a defence to the action, and that security for costs should be given.

[He cited Walker v. Atkinson (1); Denman v. O' Callaghan (2); Pemberton v. Hughes (3); Carrick v. Hancock (4); Boissiere v. Brockner (5); Scott v. Pilkington (6); Vanquelin v. Bouard (7); Bank of Australasia v. Nias (8); Crawley v. Isaacs (9); Voinet v. Barrett (10).]

[In addition to the cases cited in the Court below, they referred to Pope v. Terra Haute C. & M. Co. (3)].

Summons for security for costs on the ground that the plaintiff was resident in the State of New York, and out of the jurisdiction of the Court.

The action was by Oliver P. Dennis of Broadway, New York, on foot of a judgment of the State of New York for a sum in American money equivalent to £1328 14s. 9d. sterling, against the defendants, who are a limited liability company, having their registered office at Clondalkin, in Ireland. The Rice Barton and Fales Machine and Iron Company of Worcester, Massachusetts, in the year 1898, sold to the defendants a paper making machine, for the price, as claimed, of £1328, and the defendants alleged that, on the 17th of January, 1900, they forwarded to the Rice Barton and Fales Company a draft for 832 dollars, and requested their acceptance of same in full settlement. This draft the defendants alleged had been accepted and cashed, but the Rice Barton and Fales Company denied that this sum was accepted in full settlement of the debt. On the 23rd February, 1900, the Rice Barton and Fales Company assigned to the plaintiff for one dollar all their rights against the defendant Company for the purpose of enabling him to bring proceedings against the defendant Company in the Supreme Court of New York.

W. Hepworth Collins, the Managing Director of the defendant Company, while in New York on the 24th of February, 1900, was served with a summons out of the New York Court in an action in which the plaintiff as such assignee sought to recover the debt of £1329 14s. 9d. against the defendant Company. W. Hepworth Collins instructed an attorney in New York to apply on his own behalf to the New York Court to have the service set aside, which application was refused by the Court. The case subsequently came on for hearing, there being no appearance for the defendant Company, and judgment was given for the full sum claimed. To resist the present summons for security for costs, the plaintiff filed an affidavit sworn by Walter L. M'Corkle, attorney and counsellor-at-law, practising in the Courts of the State, of New York, and also in the Supreme Court of the United States, to the effect that under the judicial decisions of the highest Courts of the State of New York, and of the United States Supreme Court, the owner of a claim against a debtor can assign same, and such assignment as respects the debtor is absolute, whether made for or without consideration, and no notice of such assignment is required to be given to the original debtor by the assignee in order to perfect same; and although such notice is sometimes given, it is solely to protect the assignee against a possible payment of the claim by the debtor to the assignor after the assignment; that the Courts of the State have jurisdiction in an action by a resident against a foreign corporation; and that service upon a foreign corporation may be effected by personal service of the summons on the president, treasurer, or secretary, or if the corporation lacks either of these officers, on the officer performing corresponding functions under another name.

Serjeant Dodd (with him Andrew Todd), for the defendants:—

There was no service upon the defendant Company of the summons upon which this foreign judgment was founded. The defendant Company knowing nothing of this action, the judgment was given behind its back. The assignment of the debt for a nominal consideration, and the service upon the managing director, who happened to be in New York, were effected with the object of snatching a judgment against a Company not resident within the jurisdiction, and owing no allegiance to the Government of the United States. All the cases in which it was decided that a plaintiff who had recovered a judgment in a foreign tribunal was entitled to come into an Irish Court and throw down his judgment, are based upon the fact that the foreign tribunal had jurisdiction over the subject-matter of the action. Here the defendants have complied with the provisions of Order XXIX., Rule 3, by showing that they have a defence upon the merits. [Crozat v. Brogden (1); Rousillon v. Rousillon (2); Sirdar Gurdyal Singh v. Rajah of Faridkote (3); Russell v. Smith (4), and Dicey on the Conflict of Laws, 1896 ed., p. 369, were referred to.]

Chaytor, for the plaintiff:—

A foreign judgment can only be impeached on one or more of three grounds:—1, Want of jurisdiction over the subject-matter; 2, fraud practised on the foreign tribunal; and 3, that the enforcement of the judgment would be contrary to natural justice. A

foreign tribunal has jurisdiction over the procedure it may lay down as necessary to the entering up of a judgment, and not only has the plaintiff shown that the procedure adopted was in conformity with the requirements of the American tribunal, but this Court must assume, from the fact that a j udgment was pronounced, that all the essentials to conferring jurisdiction had been complied with.

Todd, in reply.

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