Simpson v Fogo
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1862 |
| Date | 01 January 1862 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 644
HIGH COURT OF CHANCERY
S. C. 29 L. J. Ch 657; 6 Jur. (N. S.) 949; 8 W. R. 407. See Liverpool marine Credit Company v. Hunter, 1868, L. R. 3 Ch. 484; The Halley, 1868, L. R. 2 P. C. 203; London and Mediterranean Bank v. Strutton, 1869, 21 L. T. 415; Schibsby v. Westenholz, 1870, L. R. 6 Q. B. 162; Castrique v. Imrie, 1870, L. R. 4 H. L. 436; Voinet v. Barrett, 1885, 54 L. J. Q. B. 523; In re Queensland Mercantile and Agency Company, Limited (1892), 1 Ch. 2226. For subsequent proceedings, see 1 H. & M. 195.
Foreign Judgment. In Rem or In Personam. How for Examinable. Lex Loci. Comity of Nations. Demurrer. Presumption against Pleader.
644 SIMPSON V. FOGO U. & H. 18. [18] simpson v. togo. April 17, 1860. [S. C. 29 L. J. Ch. 657; 6 Jur. (N. S.) 949; 8 W. E. 407. See Liverpool Marine Credit Company v. Hunter, 1868, L. E. 3 Ch. 484; The Halley, 1868, L. E. 2 P. C. 203; London, and Mediterranean Bank v. Strutton, 1869, 21 L. T. 415; Schibsby v. Westenholz, 1870, L. B. 6 Q. B. 162 ; Castrique v. 7mn, 1870, L. R. 4 H. L. 436 ; F'oinet v. Barrett, 1885, 54 L. J. Q. B. 523 ; / re Queensland Mercantile and Agency Company, Limited [1892], 1 Ch. 226. For subsequent proceedings, see 1 H. & M. 195.] Foreign Judgment. In Bern or In Personam. How far Examindble. Lex Loci. Comity of Nations. Demurrer. Presumption against Pleader. A British ship was duly mortgaged in England. Afterwards she went to New Orleans, and was attached by creditors of the mortgagor. The mortgagee intervened in the suit, but the Court wholly disregarded his title, the law of Louisiana not allowing of mortgages of chattels; and the ship was sold under a decree of the Court to the Defendant. The ship having been brought to England, the mortgagee filed his bill to establish his claim. Held, on demurrer, that the proceedings in Louisiana were not in rem but in personam only : that the mortgagee was not concluded by having intervened in the suit to defend his rights; and that the judgment was. examinable. Held, also, that, whether the Court of Louisiana had refused to hear the mortgagee, or whether it had heard him and proceeded on the principle of disregarding the lex loci in adjudicating on his claim, there would, in either case, be such plain and manifest error on the face of the judgment that an English Court would not be bound to recognise it. The rule that, on demurrer, ambiguous statements in a bill are to be construed adversely to the pleader does not extend to entitle a Defendant to displace the title averred by the Plaintiff by any inferences of fact he pleases which may be not inconsistent with the averments in the bill. This was a demurrer. The statements of the bill were as follows :- By an indenture, dated September 25th, 1854, Messrs. Klingender, then the sole registered owners of the British-built ship Warbler, duly registered at the port of Liverpool, mortgaged the ship and all freight on any present or future voyage to a trustee for the Bank of Liverpool, for a balance then due to the bank and future advances. "The said mortgage was duly registered at Liverpool on October 2d, 1854." "On December 4th, 1857, the mortgagors stopped payment, the ship was then on a voyage to New Orleans, and arrived there about the end of the month, and was shortly afterwards attached by certain creditors of the mortgagors, under proceedings taken by the attaching creditors, for the purpose of making the said ship available for their demands." "The Bank of Liverpool, before hearing of the said proceedings, sent out instructions to their agent, Mr. W. Mure, of New Orleans-the said proceedings being in the District Court of Louisiana-to claim the said ship [19] under the said bill of sale; and such agent with that view intervened in the proceedings, and used his utmost endeavours to protect the Bank of Liverpool, as mortgagees of the said ship, by from time to time asserting and insisting on the title of the bank as mortgagees under the said bill of sale; such proceedings, however, resulted, after several hearings, in the title of the bank being wholly disregarded, the law of Louisiana not allowing of mortgages of chattels; and under the order of the Court there the ship was sold to Defendant, Fogo, a British subject, then and still residing in Louisiana- he buying with full knowledge of the said bill of sale executed in favour of the bank, and of the bank asserting and insisting on their title as mortgagees, and denying, as they in fact did, that such Defendant could acquire any good or sufficient title to the ship as against the bank." The ship arrived at Liverpool from New Orleans on March 22d, 1860, having U. &H.20. SIMPSON V. FOGO 645 been consigned to the Defendant, Campbell, and the Defendant, Macdonald, being the master ; and there was owing on the mortgage to the bank upwards of 15,000. The bill, which was filed by the public officer of the bank, prayed that the Defendants, Fogo, Macdonald and Campbell, might be restrained from allowing the ship to leave the port of Liverpool without the consent of the Bank of Liverpool, and from disposing of or dealing with the ship without the consent of the bank, and from collecting the freight earned by the ship on her voyage to Liverpool; that a receiver might be appointed of the freight, and that the bank might be declared entitled both to the ship and freight, subject only to such proper disbursements, if any, as the Court should allow. To this bill the Defendants demurred. [20] Mr. Giffard, Q.C., Mr. Mellish (of the Common Law Bar) and Mr. W. F. Robinson, for the demurrer. The decision of a competent Court in New Orleans is binding between the parties; and this Court will not examine into the foreign judgment, or disturb the sale made in pursuance thereof: Clarke v. Batters (1 K. & J. 242), Ricardo v. Garcias (12 01. & F. 368), Cammell v. Sewell (3 Hur. & N. 617), Story, Conflict of Laws, sects. 386, 388, 586, 592, 592 a., 610, Preston v. Lord Melville (8 Cl. & F. 1), Cook v. Gregson (2 Drew. 286), Reimers v. Druce (23 Beav. 145), Pennell v. Roy (3 De G. M. & G. 126). The Court of Louisiana did not decide that the mortgagees never had a good title, but as a matter of administration it sold the ship for satisfaction of the owner's debts ; and the question how a fund is to be administered is governed by the law of the place where the administration takes place : Story, Conflict of Laws, sects. 323, 324, 325 a., 325 d., The Johannes Christoph (1 Jur. (N. S.) 192). There are many parallel cases of sales being good as against the true owner; as, for instance, sales in market overt, sales by assignees of goods in the order and disposition of a bankrupt, sales under the Factors Act, and sales in respect of maritime liens : The Wataga (1 Swab. 165). [THE vice-chanceixok. When goods in the reputed ownership of a bankrupt are sold the law of this country recognises the title of the true owner, but says that he has put the goods into soeh a position that, according to the law of England, they are liable to be sold for the benefit of the bankrupt's creditors. The Court of Louisiana, on [21] the contrary, seems in this case to have applied its own law to the transaction by which the Plaintiff acquired his title, and to have held that the mortgagee never was in any sense owner of the chattel at all. That appears to be the distinction between the present case and those illustrations which have been referred to.] It does not appear from Story's statement that the Courts of Louisiana dispute the original validity of mortgage titles; and the averment in this bill, when read as we have a right to read it most adversely to the pleader, amounts to no more than this, that the Courts will not recognise a mortgage title without possession as against attaching creditors of the mortgagor-just as we do not recognise bills of sale unless registered as required by statute, and should not do so in the case of a foreign bill of sale of chattels in England. Sir H. Cairns, Q.C., Mr. C. Hall and Mr. Milward (of the Common Law Bar), for the Plaintiff. If this were a judgment in rem, it may be admitted that it would be conclusive; but this is clearly a judgment in personam. Though the Court orders the sale, the title is made through the parties to the cause; and the Defendant, Fogo, bought with notice. The only cases where a foreign judgment in personam has been held conclusive are where the Plaintiff here has been also the Plaintiff abroad, and has been held bound by having himself selected his jurisdiction: Ricardo v. Garcias, Doe v. Oliver {2 Smith's Lead. Cas. 638), Story's Conflict of Laws, sect. 592 a., note. [22] A foreign judgment may be examined, either when it is opposed to natural justice, or when it violates international law: Houlditch v. Donegal (8 Bligh (N. S.), 301), Bank of Australasia v. Nias (16 Q. B. 717), Castrique v. Imrie (8 W. K. 344), Stair's Inst. Supp. by Brodie, 955, Philips v. Hunter (2 H. Bl. 402), The Eliza Garnish (17 Jur. 738), The Segredo (1 Ecc. & Ad. Eep. 36), Story's Conflict of Laws, sects. 102, 342, 384 646 SIMPSON V. FOGO U. & H. 23. As to Cammell v. Sewell, the foreign judgment was subsequent to the conversion, and the point on which the Court below decided, viz., that it was a judgment in rem, was not seriously argued. The case has since been appealed ; and the Exchequer Chamber abandoned the notion of its being a judgment in rem, and affirmed the decision on the other point. Mr. Griffard, in reply. The statement in the bill is that the Plaintiff did intervene in the foreign proceedings, and it is immaterial whether it was as Plaintiff or Defendant. It is consistent with that statement that he actually sought the aid of the foreign Court. [He cited The Duchess of Kingston's case (Sm. Lead. Cas. 439).] vice-chancellor Sir W. page wood. I thought it desirable that this case should be fully argued, in order to put the Court in possession of all the...
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