Gaulkin, J.c.c. (temporarily assigned).
This action was begun by a writ of attachment, issued September 14, 1953. The affidavit upon which the writ was issued stated that "the nature and particulars of said cause of action" were that plaintiff had entrusted to defendant Mow and others as its agents "large sums of money * * * more than $1,000,000," of which $985,000 had been deposited by said agents in a Montclair bank for the use and benefit of plaintiff, subject to withdrawal upon the signature of defendant and Yu, the co-plaintiff; that there remained in said account $675,000; that plaintiff had directed Mow and Yu to "turn over immediately all the government funds" to designated officials of the Republic of China, which Yu was willing to do, but which Mow refused to do. Instead Mow had "fled from the United States to Mexico where he now remains." This, said plaintiff in the affidavit, "constitutes a conversion * * * by said Mow * * *" (of the $675,000) for which "the plaintiffs claim damages in favor of the Republic of China against Mow in the sum of $800,000." The affidavit concluded that "Mow is a non-resident of the State of New Jersey * * * He has been arrested by and is in custody of Mexican authorities and is confined in prison in Mexico City Mexico." It is agreed that Mow is still there.
The writ, of course, followed the affidavit, and directed that the property to be attached "shall not exceed in value the sum of $800,000." Under the writ, Mow's right, title and interest in the $675,000 deposit was attached. Plaintiffs' complaint, filed September 18, 1953, was identical with the affidavit in all respects here material, and demanded damages "in the amount of $800,000."
At that time there was pending in the United States District Court for the District of Columbia a plenary action which had been instituted by the Republic of China against Mow by complaint filed November 14, 1951. Mow had filed
a general appearance in that action on December 3, 1951. That action alleged that approximately $50,000,000 had been entrusted to Mow, demanded an accounting of his handling of much of it, and sought to reach about $7,000,000 alleged still to be in his possession, of which the $675,000 above mentioned was expressly alleged to be a part.
Mow moved to quash the writ of attachment on the grounds that:
"The affidavit upon which the writ of attachment was issued sets forth a controversy with respect to the ownership of a joint bank account, therein described, which this Court cannot determine without personal jurisdiction of defendant.
The plaintiffs' application for the issuance of the writ of attachment was an abuse of the process of the Court in view of the prior institution by plaintiff, Republic of China, of proceedings in other jurisdictions involving the same controversy, and particularly of the pendency in the United States District Court for the District of Columbia of a proceeding in which that Court, having personal jurisdiction of the defendant herein, has made orders more specifically described in the annexed affidavit with reference to the joint bank account involved in this action.
The levy pursuant to said writ of attachment was made on a joint bank account claimed by the plaintiff, Republic of China, and is not property subject to attachment at the instance of the plaintiffs.
The substituted service of process provided for in the Order for Publication and Mailing dated September 18, 1953, should be vacated and set aside for the reason that the purported cause of action described in the affidavit filed by plaintiffs requires personal jurisdiction of the defendant."
This motion was denied, and the denial was affirmed by the Supreme Court. Republic of China v. Pong-Tsu Mow , 15 N.J. 139 (1954).
Mow then filed his answer in this action on April 23, 1953. In it
"He denies that plaintiff is the duly recognized government of the Nationalist Republic of China and says that the constitutional and only authorized government of the Republic of China is the Nationalist Government of the Republic of China of which General Li Tsung-chen is the Constitutional President. This action has not been authorized by said Constitutional President nor by any officer acting under him * * *.
The orders to turn over the funds, Mow says in his answer, were "illegal * * * issued by unauthorized persons * * * [were] thereafter withdrawn and never enforced." The last of those orders, that of August 21, 1951, he says
"* * * he was instructed by General Li Tsung-chen, the Constitutional President of the Nationalist Republic of China, to disregard * * *, with which instructions he complied in accordance with his duty under the Constitution of the Nationalist Republic of China."
Mow then sets up the following separate defenses:
"This action was instituted without authorization of the Constitutional Government of the Nationalist Republic of China.
Plaintiffs have failed to furnish defendant any valid documentary evidence showing the source of, and the right of plaintiff Republic of China ...