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 CHARLES WILLIAM WASON 
 COLLECTION 
 
 CHINA AND THE CHINESE 
 
 THE GIFT OF 
 
 CHARLES WILLIAM WASON 
 
 CLASS OF 1876 
 
 1918 
 
Cornell University Library 
 JX 1784.Z4C51 1867 
 
 Instructions to Her Majesty's ; consular o 
 
 3 1924 023 470 911 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924023470911 
 
INSTRUCTIONS 
 
 TO 
 
 HEK MAJESTY'S CONSULAE OFFICERS 
 IN CHINA AND JAPAN, 
 
 ON THE 
 
 MODE OF CONDUCTING JUDICIAL BUSINESS, WITH COMMENTS 
 
 ON THE CHINA AND JAPAN ORDER IN COUNCIL 1865, 
 
 AND THE RULES OE PROCEDURE ERAMED 
 
 UNDER IT. 
 
 BY 
 
 Sir EDMUND HORNBY, K.* 
 
 Chief Judge op Hbk Majesty's Supreme Court 
 foe China and Japan. 
 
 A^H^iA}iV 
 
 A. H. de CAEVALHO, 
 SHANGHAI, 186"?. 
 
* * C S7 
 
 w. ids 
 
List of the more important Errata. 
 
 Page 4, paragraph 6. Place the comma before" and in the exercise of it "instead 
 
 of after it. 
 „ 4, „ 9. For "can so act. Yet it may be donbtfnl ", read " can 
 
 so act, yet it may be doubtful" 
 5, „ 5. Tor "District) are admissible in evidence and no further 
 
 proof", read "District). No further proof" 
 „ 9, last line. For "Law — now, Equity", read "Law. Now, Equity" 
 „ 11, line 10. Eor "conduct in England", read "conduct. In England" 
 „ 11, „ 11. Dele "not" 
 
 „ 14, „ 13 from foot. After "Res" insert "it" 
 „ 14, last line. For "Material men and persons", read "material men, and 
 
 persons" 
 „ 15, „ „ Make " it " commence a new sentence. 
 „ 17, paragraph 5. Make "any infringement" commence a new sentence. 
 „ 19, „ 4. Make "it is only against" commence a new sentence. 
 „ 19, „ 6. Make "the Law against Vagrants" commence a new 
 
 sentence. 
 „ 20, line 15. For "nor can we often," read "and, often, we cannot" 
 „ 23, last paragraph. Make new sentences commence at " all objections " and 
 
 "the other party" 
 „ 24, first „ Make new sentences commence at "generally speak- 
 
 ing " and " in no case " 
 „ 26, line 18. For " suit. Sections 1 to 9 ", read " suit, Rules 1 to 9 " 
 „ 28. For "W.S." in red ink, read"S.W." 
 
 „ 30, line 13 from foot. Make "the Defendant" commence a new sentence. 
 „ 33, „ 4. Make a new sentence commence at " it ", and read thus — " It 
 
 is abolished for debt under £20 ; and, when the debt 
 
 exceeds that sum" 
 „ 33, last line of par. 3. For "a Referee cannot be", read "no one can be" 
 „ 37, line 3. Make a new sentence commence at "the Petition " 
 „ 49, „ 19 from foot. Insert a comma after "hearing " 
 „ 50, „ 10 „ „ For "delivery", read " delivered " 
 „ 80, lines 24, 25. Read "A debtor imprisoned for debt, and unable through 
 
 poverty to pay the expenses attending the filing " &c. 
 „ 84, line 16. For "or embezzling and part", read " or for embezzling any 
 
 part" 
 „ „ „ 4 from foot. Remove comma from after "in" to after "to" in the 
 
 next line. 
 „ 93, line 6. Read "The effect of the order of discharge is to release the 
 
 bankrupt " 
 „ 96, lines 20, 19, from foot. Read " unprofessional men, should lean rather 
 
 to the admission of all evidence or testimony which 
 
 tends" &c. 
 „ 98, line 15 from foot. Remove comma from after "not unfrequently " to 
 
 after " Japan " t 
 „ 101, •„ 3 of first Notification. For " established " read " establish " 
 „ 103, „ 12 from foot. Insert "of " before "the contract" 
 „ 105, „ 9 „ „ Insert "the "before "Judge" 
 
 In addition to the above, many typographical errors in punctuation &c. were 
 noted, but too late to permit of convenient correction ; nor are they of such im- 
 portance as to require insertion here. 
 
HER BRITANNIC MAJESTY'S SUPREME COURT 
 FOR CHINA AND JAPAN. 
 
 Shanghai, 1st January, 1867. 
 
 To It. M?s CONSULS in China 8{ Japan. 
 
 Gentlemen, 
 
 I have had it in contemplation for some time past to address introduction, 
 you on the subject of the performance by you of your judicial duties. 
 Hitherto I have been prevented from doing' so by my time having 
 been taken up in superintending the first establishment of the Supreme 
 Court at Shanghai. I do not now propose to write an essay on the 
 whole duties of Consuls, but simply to draw your attention to the 
 mode in which you should act in the exercise of the jurisdiction 
 conferred on you by the "Order in Council for China and Japan 
 1865," and I beg you to remember that this is not a letter addressed 
 to any one of you in particular, but collectively to a body of Gentle- 
 men who have greater or less experience in the performance of their 
 Consular duties, and greater or less knowledge of the subject to 
 which it refers. I remind you of this because to be useful to all, it 
 is necessary for me to assume that some have little or no knowledge 
 of how those duties are, or ought to be performed. This is my reason 
 for treating the subject in a very elementary manner. I do not for 
 a moment imagine but that many of you have no need of the instruc- 
 tion or information which I design to convey, but because some of 
 you are perfectly equal to the proper discharge of your duties, this 
 of itself is no reason why the ignorance of others should not be 
 provided for. 
 
 First let me observe that some knowledge of the constitution of 
 our country and of the Laws which are framed to guide the conduct 
 of its citizens, should not be confined to Lawyers, but should be 
 considered as absolutely essential to the education of every English 
 Gentleman, and if this is true, it is needless to remark now much 
 more essential such knowledge becomes when English Gentlemen 
 are called upon to administer these Laws. No one expects from you 
 
 1>erfect knowledge on such a subject. Men who have devoted their 
 ives to its acquirement seldom, if ever have attained it — but this is 
 expected of you, viz : that you should have an elementary knowledge 
 of the first Principles which pervade the whole system of our Law 
 — that you should know where to find the Law as laid down by 
 Statutes — or where mentioned and commented on by text-writers, 
 and that you should bring to its consideration and administration a 
 fair amount of industry, common sense and, above all, perfect impar- 
 tiality in its application. 
 
Besides tie Municipal Law of England or in other words, that 
 Law which is confined to the realm of England and to those who 
 live within it — there is another system of Law with which it parti- 
 cularly behoves Consular Officers to have some acquaintance. 
 
 I allude to International Law — that is, that system of Law which 
 guides the relations of nations in their dealings with each other — and 
 that branch of it which treats of the rights and obligations which 
 the Citizens of one State bear towards the Government of another 
 State — and vice versa. This International Law is so eminently the 
 offspring of the sense of what is mutually fair and right, that its 
 principles recommend themselves to the mind as the natural result 
 of the moral rule "do unto others as you would be done by" and 
 the perusal of such works as those of Mr. Wheaton and Dr. Philli- 
 more should be undertaken less as a task than as a recreation. A 
 single careful reading of either of these works will prevent Consuls 
 from falling into many errors and will intuitively free them from 
 many prejudices which spring from too exclusive a consideration of 
 private national interests. 
 
 I recommend all Consular Officers who seek to rise in their career 
 — or,, to take a higher ground — are, as they should all be, anxious 
 to perform their duties conscientiously, to devote some time to the 
 study of "Stephen's Blackstone's Commentaries," the last Edition 
 of "Smith's Mercantile Law," "Chitty on Contracts," "Arnould on 
 Marine Insurance," "Byles on Bills of Exchange," "Taylor on 
 evidence" and "Roscoe's Criminal Law." 
 
 In "Stephen's Blackstone" the Student will find a general outline 
 of the Civil and Criminal Law and having made himself Master of the 
 contents of this invaluable work, which may be said to set forth the 
 principles which permeate every branch of our legal system, he will 
 come to the study of the other works I have mentioned with a mind 
 prepared to understand and appreciate them. 
 
 These should be read carefully, but no great effort need be made 
 ■to burden the memory with their contents. Law is not one of those 
 sciences which in its elementary study demands an accurate recollec- 
 tion of every formula. What the Student should endeavour to attain 
 to is a knowledge of principles, and to know where to find the Law. 
 
 I mention this, because nothing serves to frighten Students of Law 
 so much as the supposed necessity of burdening their memories with 
 the mass of cases which are quoted in our text Books or with the 
 infinite number of Statutes which fill up the book-shelves of every 
 Lawyer's Chambers. / v 
 
 The most that a Consul can be; expected to know is, where to find 
 the Law on any of the matters most likely to come under his notice 
 and to apply it fairly and correctly, but unless he follow the advice 
 I have ventured to offer he is not very likely to be able to do the one 
 or the other. 
 
 So imperative has the necessity become of those who are called 
 upon to administer the Law having some knowledge of it, that I 
 believe it is not unlikely Consular Officers will be required to pass an 
 Examination in different branches of Law, and in the Rules of Pro- 
 cedure, before being appointed or promoted to any Post where they 
 are to exercise magisterial or judicial functions. 
 
I have reprinted the Circular Letter which I addressed to Her 
 Majesty's Consular Officers in the Levant, after having re-arranged 
 and adapted it to the circumstances attending the exercise of judicial 
 duties by Consular Officers in China and Japan, and as it gives an 
 outline of the mode, in which judicial proceedings should be con- 
 ducted, I trust it will be found useful; but to be so something more 
 than a hasty perusal of it, is requisite. 
 
 I can easily conceive that it does not present matter of very 
 interesting study — and the same may be said of what I am now 
 writing — -but unless Consular Officers prefer to master the sources 
 whence the information both contain, are derived — it is absolutely 
 essential they should make themselves familiarly acquainted with 
 what is after all but a very meagre outline. 
 
 With these observations I pass to the consideration of the Order 
 in Council. 
 
 By the ninth paragraph of the Preamble you will observe that PrcamWeto or- 
 several Consular Ordinances — mentioned in the Schedule of the what orders r<> 
 Order — are repealed — but there is a class of Orders that refer to peaied. 
 Shipping and to Harbour Regulations at several of the Treaty Ports 
 which still remain in force, these not being affected by the Order — 
 except in so far as they are in contradiction with it. 
 
 In future however, it will not be competent for Consuls of their Consuls not to 
 own motion to enact ordinances — or to make Rules of Procedure and enao 
 with the exception of those which have been or may be approved and 
 sanctioned by the Minister or Judge of the Supreme Court respect- 
 ively, the rest* will have no force or effect. 
 
 I mention this, because it has been somewhat hastily assumed, that 
 all the Rules existing at the time of the present Order in Council 
 coming into force, were repealed by it and the consequence has been 
 that confusion has resulted, which a more careful consideration of 
 the Order would have avoided. 
 
 No jurisdiction should be exercised under the 3rd Section over a ^^ u s r *Jj? e c ^ 1 Bri " 
 Naturalized British Subject in the place where there is a Consul of IS u Jec 
 the Nationality of the Country of his Birth, until such Consul shall 
 have been communicated with and repudiated alljurisdiction over him. 
 
 A Person of the Chinese Race born in a British Possession of ££™° n J° f a *° 
 Parents who were also born there is undoubtedly a British Subject, bom or Natura- 
 and so are Children born in such possessions of Chinese Parents who i^edLta^Britwi. 
 have been there naturalized; but as against the Authorities of China 
 Children of Chinese Parents who were themselves not naturalized or 
 born British Subjects are not entitled in China to be considered or 
 treated as British Subjects notwithstanding they may have been born 
 in a British Colony'orPossession. This Rule has been wisely laid 
 down by H. M.'s Government to prevent in China the abuse of the 
 Rules of English Law on the subject of Birth conferring citizenship, 
 which would in all probability occur if Chinese Subjects could obtain 
 for their Children the Status of British-born subjects by simply pro- 
 viding for their birth taking place on the soil of a British Possession. 
 
 Chinese naturalized in a British Colony or Possession can claim 
 no rights as British Subjects beyond the limits of such Colony or 
 Possession. The moment they enter China, their allegiance to the 
 Sovereign of China revives. 
 
Foreigners borne 
 on the Muster 
 Boll of a Ship. 
 
 tl 
 
 vj^ 
 
 How Jarisdiction 
 to be exercised. 
 
 Meaning of words 
 " Circumstances 
 will admit " in 5th 
 Section of Order. 
 
 Merchant Ship- 
 ping Act. 
 
 What Consnlar 
 Officers can hold 
 Courts. 
 
 The same Rules will doubtless be held applicable to Japan. 
 
 It follows from what has been said, that if a Person of Chinese 
 Race is a British Subject, he is entitled to the Privileges and must 
 submit to the disabilities arising 1 out of that character. Those pri- 
 vileges are defined by Treaty, and if a Native-born Englishman of 
 the Anglo-Saxon race cannot reside permanently in the interior of 
 , China, — cannot travel without a Passport — cannot buy, or inherit 
 Landed Property, — cannot own a Chinese Ship, neither can a British 
 Subject of the Chinese Race. 
 
 In the second Paragraph of the same Section which makes mention 
 of Foreigners, it is to be remembered that Foreigners borne on the 
 Muster Roll of a British Vessel are to be considered quoad all that 
 regards the Ship, its discipline and Crew as amenable to British 
 Consular, jurisdiction, but if a Foreigner so borne on the Roll of a 
 British Snip, commits an Offence or Crime on shore, such act having 
 nothing to do with the Ship or his character of a Seaman under the 
 British Flag, he will be amenable to the jurisdiction of the Consul 
 of the Country of his Birth. 
 
 The 4th, 5th and 6th Sections of the Order require little or no 
 explanation. They simply declare that all the jurisdiction conferred 
 by the Order is to be exercised according to its provisions — that the 
 Law to be enforced is the Law of England and that no act is to be 
 deemed a Criminal Act (except it be one expressly made Criminal 
 by the Order) that is not a Criminal Act according to the Law of 
 England. 
 
 By the words "Circumstances will admit" in the 5th Section is 
 meant, that unless there is some positive reason to the contrary 
 amounting to " inability to administer the Law of England in its 
 integrity," such Law is to be the guide and basis of every act and 
 decision of a Consular Authority. 
 
 Although no specific mention is made in the 5th Section, as in 
 former Orders in Council of the jurisdiction of Consuls under the 
 Merchant Shipping Act, yet under this Section such jurisdiction is 
 in fact continued in them and in the exercise of it, they must conform 
 to the Instructions issued by the Board of Trade. 
 
 Sections 7 to 24 inclusive have special reference to the Supreme 
 Court. 
 
 The only observation that Section 25th requires is that no Con- 
 sular Officer who has not a Commission from Her Majesty can hold 
 a Consular Court, and it follows that the Representative of a non- 
 commissioned Consular Officer is equally disqualified. 
 
 This Section does not affect Consular Agents who are not gene- 
 rally Commissioned Officers nor can they be considered as the 
 Representatives of the Consuls from whom they depend and in 
 whose district, they act, so as to bring them within the meaning of 
 that portion of the Section which alludes to persons acting tempo- 
 rarily as and for a Consular Officer. They cannot therefore hold a 
 Consular Court. Although a person — acting temporarily with the 
 approval of the Secretary of State or of Her Majesty's Minister — can 
 so act. Yet it may be doubtful whether under the 19th Section of the 
 12 and 13 Vict. Ch. 68, "any person duly authorized to act in the 
 absence of such Consul," can marry persons, inasmuch as the authority 
 
Jurisdiction of 
 Courts. 
 
 to marry is conferred on the individual Consul himself, by an express 
 authorization in writing 1 which authority it might be contended did 
 not pass to or devolve on the temporary Representative. 
 
 Sections 26 to 32 refer to "Juries." At present no case can be Juries, 
 tried in a Provincial Consular Court by a Jury — Section 62 practi- 
 cally limiting 1 this form of trial to the Supreme Court until it shall 
 please one of Her Majesty's Secretaries of State to extent it to Pro- 
 vincial Courts. It is however the duty of Consuls to prepare Jury 
 lists in accordance with the Order, and to send them when revised 
 and settled to the Chief Judge of the Supreme Court, as in the event 
 of any Judicial Officer of the Supreme Court visiting a Provincial 
 Court for the purpose of hearing any suit or trying any Prisoners, it 
 is from this list that the Jurors would have to be drawn. A Copy 
 should also be forwarded to the Secretary of State for the purpose of 
 enabling him to act under the 62nd Section. 
 
 Under the 33rd and 34th Section, I need not perhaps remark Assessors, 
 that Consuls have no power to compel the attendance of Assessors, 
 and when these latter refuse, or neglect, to comply with a Summons, 
 the Consul should proceed to the hearing and determination of the 
 case, noting on the face of the proceedings the fact of the Summons 
 and the refusal or neglect to attend on the part of the Assessors. 
 The 63rd Section has also reference to Assessors. 
 Subdivision V. of the Order defining the jurisdiction and autho- 
 rity of Her Majesty's Courts is of the greatest importance, and Consuls 
 should make themselves thoroughly acquainted with it as it is the 
 source whence they derive their jurisdiction in their several Courts. 
 
 All Consular, or in other words Provincial Courts, are Courts of w ^^ ourtaof 
 Record — that is to say all proceedings before them are matter of 
 Record and are admitted in evidence when occasion requires upon a 
 simple exhibition of the Record — in other words the written pro- 
 ceedings — sealed with the Seal of the Court (which until a new Seal 
 is approved by one of the Secretaries of State will be the Seal of the 
 Consulate of the District) are admissible in evidence and no further 
 proof of their authenticity is requisite. But this very provision 
 shows the importance as well as necessity of Consuls keeping a full 
 and accurate Record of the Proceedings in every case, and no neglect 
 in this respect can be excused, because the omission may seriously 
 prejudice the rights and interests of the parties to a suit, and disable 
 them from establishing facts which have been admitted or proved, or 
 from prosecuting an appeal. 
 
 The Supreme Court has an extraordinary original jurisdiction 
 over the whole of China and Japan concurrently with the jurisdic- 
 tion of the several Provincial Courts— that is, it can take cognizance 
 of any case in any Consular District and act as if it were actually 
 for the time being established within such District. Its Judges can 
 either visit a Provincial Court and hear any case arising within its 
 District, or the Chief Judge can order any case which he considers 
 fit to be heard and determined by the Supreme Court, to be sent up 
 for that purpose to Shanghai. 
 
 But because this Authority has been conferred on the Judge of 
 the Supreme Court, it does not follow that it will be often exercised. 
 The business of the Court at Shanghai is too important and too 
 
 Concurrent Juris- 
 diction of Supre- 
 me Court with 
 Provincial Courts, 
 
6 
 
 Special Gases. 
 
 Execution by Pro- 
 vincial Courts of 
 Writs, &c. 
 
 Courts auxiliary 
 to each other. 
 
 great to enable its Judges to be absent or to undertake the .deter- 
 mination of cases in the first instance arising in another Consular 
 District. Each Consul is bound to hear and determine every case 
 arising within his peculiar jurisdiction and with as much prompti- 
 tude as a careful compliance with the Rules of Procedure permit. 
 It is only in those cases where the questions involved are of great 
 importance and the solution of them of great difficulty, that the 
 Supreme Court will exercise its right of concurrent jurisdiction and 
 in no case will it hear a part heard case. On more than one occasion 
 a case has been sent up to the Supreme Court simply because in the 
 course of the hearing before the Court below, points of difficulty 
 have arisen which the Consul has not thought himself competent to 
 decide, and the case has been sent back occasioning great expense 
 and delay. 
 
 The Rules of Procedure (See Rule 99 ) provide sufficiently for the 
 submission of special cases involving one or more points ot Law or 
 fact; but even the assistance thus afforded should not be hastily 
 invoked. It is the duty of every Judicial Officer to do his best to 
 come to a decision upon any point one way or the other, and nothing 
 is so calculated to incapacitate a man for the proper performance of 
 his duties as the habit of evading a difficulty by an immediate 
 reference of it to some one else. 
 
 The 43rd, 44th and 46th Sections confer considerable power and 
 entail some responsibility, andi n acting under them Consuls will do 
 well to confine themselves strictly to fulfilling the terms of the 
 Writ and Warrant. In cases where it is left optional to them to 
 take security for the appearance of the person named, care should 
 be taken that the Security demanded be not excessive in amount, 
 and as a general rule, the Security of third persons conjointly with 
 that of the Person himself is to be preferred to that of the personal 
 security of the individual alone — but where it is impossible for 
 collateral security to be found — some more tangible security than a 
 recognizance, or mere promise to pay some sum of money, should be 
 taken. Consuls however, are supposed to have more or less some 
 personal knowledge of the means, character and circumstances of 
 individual Englishmen residing within' their districts, and by that 
 knowledge they must to a considerable extent be governed. 
 
 Some confusion has arisen from the different interpretations which 
 have been given, to the 46th Section which declares that all Courts 
 in China and Japan shall be auxiliary to one another. It is not 
 however meant by this Section that the different Courts are to travel 
 out of their respective jurisdictions or blindly acquiesce in any request 
 that may be made to them. Thus, to take an instance that has 
 occurred where both of the Consular Officers ostensibly acting under 
 this Section, did wrong- — a Plaintiff began an action in the Consular 
 Court of A, against a Defendant residing and carrying on business 
 in B, and the Consul of A, sent his Summons to the Defendant to 
 appear and answer the plaint in A, the Summons he enclosed in 
 a letter to the Consul of B, and the Consul of B caused it to be 
 served on the Defendant and in compliance with the request enclosed 
 in the letter demanded and took Security from the Defendant for his 
 appearance at A, at the time mentioned in the Summons. — Here 
 
both Consuls were wrong. The Consul of A should not, except 
 under very particular circumstances — such as the absconding of a 
 Defendant to avoid service of a Summons — summon a man from 
 another Consular district to appear before him. It is the business 
 of a Plaintiff to follow a Defendant and it is no part of the duty of 
 a Consul to summon a Defendant residing in another district simply 
 because it suits the Plaintiff's convenience that he should be ,so 
 summoned. 
 
 In most cases by making use of the Provisions in the Rules (See J f CaseB of Ser * 
 Sides 254 to 269) for service at the last place of residence, &c, &c, 
 a Plaintiff will obtain all that he requires, because he will be enabled 
 to proceed to judgment in the absence of the Defendant. But 
 Consuls must be extremely careful, in dispensing with personal service 
 and should only do so in very clear cases and where it is essential 
 to the ends of justice. 
 
 And when the circumstances justify the issuing of a Summons 
 under Rule 257 into another district it should only issue in accordance 
 with a judicial Order made upon a regular application supported by 
 facts deposed to on Oath — all of which should remain matter of 
 Record. The Consul of B in the case alluded to was wrong in acting 
 on a simple request — it ought to have been officially made and under 
 the Seal of the Court of A, and not being so made he should not 
 have acted upon it. As a general rule it will be as well for a Consul 
 who is asked to issue a Summons into another District to suspend his 
 acquiescence until he shall have had time to ask the opinion of the 
 Judge of the Supreme Court — but there may be cases of urgency 
 when he will have to act on his own judgment and responsibility. 
 
 He will then do well to satisfy himself first — that the Plaintiff has 
 a good cause of action — that the demand is a liquidated demand and 
 not a simple claim sounding in damages. Secondly, that there is 
 some better reason than that of the Plaintiff's convenience for his 
 not going himself or appointing some one to represent him in the 
 District in which the Defendant is and in which in strictness the case 
 should be tried — and thirdly, it is generally adviseable that the 
 Plaintiff should be called on to give some good and sufficient security 
 to answer any action which the Defendant may bring against him 
 to recover such damages as he may have sustained by being impro- 
 perly brought up — and the Consul to whom the request is made 
 should make an Order for service (See Rule 257) in something like 
 the following form : — 
 
 " In Her Britannic Majesty's Consular Court at Chefoo. 
 
 A. B.— Plaintiff 
 
 " Between 
 
 C. D.— Defendant 
 
 "At the request of the Consular Court of Hankow I do order that 
 •" service of the Summons in this Suit be effected on the Defendant. 
 
 Consular Seal. 
 
 E. F. 
 
 Vice-Consul 
 
 Chefoo." 
 
8 
 
 Execution may 
 issue to Provin- 
 cial Court from 
 Supreme Court. 
 
 Half-yearly Re- 
 turn. 
 
 Reconciliation 
 Clauses. 
 
 By Section 43 — Execution may issue from the Supreme Court to a 
 Provincial Court to seize and sell in satisfaction of a judgment 
 obtained in the Supreme Court, the goods of a Defendant within the 
 jurisdiction of the Provincial Court. 
 
 A Warrant of Execution will however only issue on an Order made 
 by the Supreme Court on a motion by the Plaintiffs supported by 
 an Affidavit of such facts as will justify the Court in granting it, 
 and on Security being given to answer any damages that may be 
 sustained by the Consul in the Execution of the Warrant. A Consul 
 on receiving the Warrant will put it in Execution and having so 
 acted upon it will endorse on it the amount of the Levy and return 
 it with such amount to the Supreme Court. 
 
 There are however, many ways in which Courts may be properly 
 made auxiliary to each other. Thus, in securing the Estates of 
 deceased British Subjects, in taking possession of and selling the 
 property of a Bankrupt at the request of the Official Assignee — in 
 serving notices on next of kin and Creditors— and in procuring 
 information upon an infinite variety of subjects connected with the 
 administration of Justice. 
 
 In accordance with the 47th Section, Consuls should on the 1st of 
 July and on the 1st of January of every year, report on the cases 
 that have been tried in their Consular Courts. The Form of this 
 Report should be as follows : — 
 
 " Half-yearly Return of cases (Civil) tried in Her Britannic Majesty's 
 
 " Consular Court at from the 1st of January to 30th 
 
 "of June." 
 
 Name of 
 Plaintiff. 
 
 Name of 
 Defendant. 
 
 Date of 
 
 Filing 
 
 Petition. 
 
 Date of 
 Hearing. 
 
 How disposed of. 
 
 Pees paid 
 
 The same Form will apply to Criminal and Police cases the return 
 of which is to be made up separately. They should be addressed to 
 the Chief Judge of the Supreme Court, and any observations that 
 Consuls may consider necessary upon any case should accompany 
 them. 
 
 I pass now to the Sections empowering Courts to promote recon- 
 ciliation and facilitate the settlement in an amicable way of any 
 proceeding before it. 
 
 Perhaps no Sections in the Order in Council have been less 
 understood and because often mis-understood have led to greater 
 inconvenience — yet it is hardly possible to conceive that any lan- 
 guage could be clearer than that employed. In the first place — those 
 Sections are confined to " Civil Matters" — Secondly a Suit must be 
 
It is not intended that on a difference of opinion arising between 
 British Subjects as to their mutual rights or obligations, a Consul is 
 to put himself forward and endeavour by the exercise of personal 
 influence to bring the parties to an arrangement. But what he may- 
 do is this : On a suit being commenced in his Court — or even under 
 the 143rd Section without recourse being had to litigation — and on 
 a proper opportunity arising, and when the parties are before him, 
 a Consul may without expressing any opinion on the merits— suggest 
 that the case is one that had better be settled amicably— either in or 
 out of Court — but he should not argue the case on its merits with 
 either one or other of the parties in order to induce them to consent 
 to an amicable settlement; for, in doing so, he maybe prejudging a 
 case he has not fully heard, which after all he may be compelled to 
 hear, or be intimating an opinion on matters with which he is not 
 acquainted and which it may be necessary to take evidence to arrive 
 at, and by such prejudgment or intimation he is putting a pressure 
 on the party against whom the inclination of his opinion runs, to do 
 that which he may not feel inclined to do, and which if done at all, 
 should be a purely voluntary act. 
 
 All a Consul should do, — if he conceives it to be for the interest of 
 both parties — is simply to suggest the reasons why an amicable 
 arrangement should be come to and it is not until the parties are 
 agreed to an amicable arrangement instead of a judicial decision, 
 that the terms of the arrangement should be discussed and even then, 
 the Consul is not the person to discuss them — but the parties them- 
 selves. Although if the matter is by the consent of the parties 
 referred to the Consul, he may determine it — noting on the proceed- 
 - ings and in his Note-Book the fact of the reference to himself and 
 the decision he has arrived at. 
 
 So with regard to Arbitration — A Suit must be commenced before 
 it can be referred. A reference then becomes a Judicial Order in the 
 proceedings made by consent and is a matter of Record — or in the 
 case of Accounts {See Jtvle 59) without consent — and it must be 
 conducted in conformity with Sections 49 and 50 of the Order and 
 with Rules 217 to 229. 
 
 Provincial Courts are Courts of Law and equity — they have a 
 jurisdiction in Bankruptcy and Consuls can act as Coroners. A 
 "Provincial Court can also grant a Probate or administration when 
 there is no contention as to the grant and when the deceased had his 
 fixed place of abode within its jurisdiction. 
 
 The Supreme Court can alone exercise a jurisdiction in Admiralty 
 — in Lunacy, in Matrimonial cases and in contentious cases of Pro- 
 bate and Administration. 
 
 There is a good deal of mis-apprehension as to the character of a 
 Court of Equity. By many persons it is supposed to be a Court 
 which ignores Law and rests its decisions upon the ideas of natural 
 reason and justice which its Judge for the time being may happen 
 to entertain. Nothing is so common as for Suitors to say " We 
 don't want Law — we want equity " — and Consuls not unfrequently 
 fall into the same error and apologise for any defect in their judgments 
 by saying that they preferred to decide the'case before them equitably 
 rather than by any rules of Law — now, Equity is a branch of Law 
 
 Reference to 
 
 Consuls. 
 
 Courts of Law 
 and Equity. 
 Bankruptcy. 
 Coroner's Courts. 
 Probate Courts. 
 
 Supreme Court 
 alone a Court of 
 Admiralty can 
 alone act in mat- 
 ters of Lunacy. 
 Matrimonial Cas- 
 es — and Conten- 
 tious Probate 
 Cases. 
 
 What is Equity. 
 
10 
 
 just as much as the Criminal Law or the Law of Bankruptcy is a 
 branch of the general Law of England. It is governed by certain 
 known rules, and whatever it may have been in its origen, its Courts 
 administer a system of Laws as complete as those which govern the 
 decisions of the Courts of Common Law. Therefore it is a mistake to 
 suppose that a Judge sitting in Equity is to disregard the principles 
 by which Courts 01 Equity are governed, and simply to decide the 
 case before him by his own unassisted ideas of what may be fair or 
 right. A careful study of those Chapters of Stephen's Blackstone 
 which treat of equitable jurisdiction will best serve to dissipate the 
 somewhat perverse notions that prevail on this subject. 
 Bankruptcy. The Law of Bankruptcy is in a transition state. The Legislature 
 
 and the Mercantile Classes are in doubt as to the exact form which 
 legislation should take with reference to it. But, whatever course is 
 adopted, this it is sufficient for Consuls to know, that it is and will 
 be exactly defined by Statute. 
 
 Bankruptcy Law is so essentially the creature of an artificial 
 state of Society that it must necessarily be governed by distinct and 
 special enactments and to them alone it will be necessary for Consuls 
 to refer for guidance. There are however certain general principles 
 to which it may be as well to allude. No Bankrupt Law is intended 
 or ever will be intended to enable a fraudulent Debtor to escape the 
 just punishment due to unfair dealing — neither is it, or will it be in- 
 tended to enable a man to dispose of his property- — then get a discharge 
 from his liabilities and begin the world again as a perfectly free man. 
 The moment a man finds himself in difficulties of such a nature that 
 it is extremely improbable any amount of labour, or any temporary 
 assistance that he may possible obtain, will relieve him from them, it 
 is his duty to avail himself of the Law of Bankruptcy and if he 
 neglects to avail himself of it, it is the duty of a Court of Bankruptcy 
 whenever he appears before it to mark its sense of such neglect by 
 suspending for a greater or less period its Order of Discharge. In 
 the same way it is the duty of a Judge in Bankruptcy to put in force 
 what are called the Criminal Sections of the Bankruptcy Law when- 
 ever the occasion calls for it. Such severity is as necessary for the 
 safety of honest traders as for the punishment of improvident and 
 fraudulent Bankrupts. It is a very common thing for men to con- 
 tinue trading when they know themselves to be in a state of hopeless 
 insolvency. They buy on credit, trusting to sell for cash at a profit, 
 and thus, to use a common phrase, to keep the Mill going — and 
 when this is no longer possible, they pay such of their Creditors as 
 are most importunate or let actions be brought against them and 
 defend them, knowing perfectly that they have no defence, nor assets 
 to satisfy an execution issued under any judgment that may be 
 obtained against them — or they do what perhaps is worse, they pay 
 some Creditors in full and leave the rest wholly unpaid — they then 
 appear in a Bankruptcy Court or are brought into it without a 
 farthing upon which a dividend might be declared. 
 
 _ This is Mercantile dishonesty and as such punishable. The di- 
 vidend which Bankrupt Estates can pay, is often no unfair criterion 
 — in nine cases out often it is a very fair one — of the Bankrupt's con- 
 duct as a Debtor, and may serve in many cases to guide a Consul 
 
11 
 
 in considering when and how he should grant him a discharge from 
 his liabilities. There are of course many cases where it will be a 
 most fallacious test — unforeseen misfortune — the conduct of others — 
 may combine to the ruin of a Man, and each case ought to be taken 
 on its own merits, and in all cases the interests and wishes of the 
 mainbody of the Creditors should be regarded; but it by no means 
 follows because the Creditors are careless and supine, which when 
 they know there is no Estate to divide amongst them they often are, 
 — that the Court should neglect its duty and fail to mark its own 
 opinion of a Bankrupt's conduct in England a great deal may be 
 left to Creditors — but not in China and Japan where a Man's 
 Creditors generally include a number of Foreigners ignorant of our 
 Laws and Procedure, it is for the credit of the English name and 
 in the end for the benefit of English Commerce that this ignorance 
 or indifference should not serve as an excuse for the escape of a 
 fraudulent Debtor from the just punishment of his Offences. It 
 would be far better to have no Bankruptcy Law, and leave every 
 man to the mercy of his Creditors than to allow it to be abused to 
 the exclusive advantage of persons who think that when they are 
 unable to pay what they owe — no matter how their obligations were 
 incurred, they have but to apply to a Court of Bankruptcy to obtain 
 their discharge, and snap their fingers at their Creditors. 
 
 A Bankrupt must find the means to pay all the fees and other 
 expenses incident to his Bankruptcy — he has no right to throw this 
 burden upon his assignees except they have assets in their hands — 
 neither can he properly escape such payment as he cannot petition 
 the Court "in form& pauperis" — unless lie is in Prison at the suit of 
 a creditor. He is then adjudicated a Bankrupt by the Registrar of 
 the Court — under the 98th and following sees, of the Bankrupt Act 
 of 1861 and a Consul can himself act as Registrar. 
 
 It is almost needless to remark that the times, prescribed by the 
 act, within which certain steps in Bankruptcy have to be taken, 
 must be adhered to. It is always in the power of the Court to 
 adjourn a sitting, pro forma, but every endeavour must be made to 
 hold the regular sittings, and give the requisite notices ordered by 
 the act at the periods mentioned therein. 
 
 I would especially draw the attention of Consuls to the short 
 sketch of the Bankruptcy Acts in the accompanying Extract from the 
 "Levant Consular Letter," at the same time cautioning them not 
 to rule themselves entirely by what is there laid down, but always to 
 seek confirmation of what is there said, in the Acts themselves. 
 (See also Stephen's Blackstone P. 145 et seq.) 
 
 In their capacity of Coroners, Consuls will do well to remember Coronets, 
 that every case of sudden death unless the cause is what may he 
 termed a natural cause, and it is certified by a duly qualified and 
 respectable Medical man, is a fit case for an inquest. I do not mean 
 to say that a Consul should insist upon holding an inquest upon 
 every case of sudden death unless there are grounds for suspecting 
 that either gross carelessness or actual violence has been the cause 
 of it. Inquests must always be held on view of the body, and by a 
 Jury of not less than three persons. And for the purposes of an 
 
12 
 
 inquest a Consul may summon any three or more persons comprised 
 in the ordinary Jury list of the Court. 
 Coroner's jury. The Jury are to be sworn to inquire into and give a verdict 
 expressive of their opinion on the evidence brought before them of 
 how and when the deceased came by his death. In these, as in all 
 other cases, the Consul should keep a Note-Book in which to enter 
 the particulars — the evidence adduced — and the finding 1 of the Jury. 
 Where there are Medical men attached to the Consulates paid by a 
 Salary — their evidence as to the cause of death should be given and 
 given gratuituously, but where it is necessary to make a Post- 
 mortem examination, a fee of three and in some case five Pounds is 
 usually given. These fees should be defrayed from any Property 
 which the deceased may have possessed — but if he has none, and 
 the Post-mortem has not been made at the request of any Relative — 
 in which case the expense should be borne by him — then it should 
 be charged in the Consular accounts to Government. The Jury are 
 not entitled to any remuneration. 
 
 On the finding of a dead body of a Native or a Foreigner in the 
 employment of a British Subject, or where there is any suspicion 
 or reason to suspect that a British Subject may be in a greater or 
 less degree involved in the circumstances attending the death of the 
 deceased — the Consul should either himself attend to view the body, 
 or delegate this task to an intelligent Assistant — a Medical man 
 should also be, where it is possible, in attendance. 
 
 This is a measure of precaution and as necessary to protect the 
 innocent as to punish the guilty. On more than one occasion it 
 has happened to me to be overwhelmed with evidence of a Body 
 presenting marks of violence going directly to fix a British Subject 
 who had been known to strike the deceased in whose employ he was, 
 as having caused or been accessory to the death, a conclusion which 
 could have been easily negatived if a Medical man or even an 
 ordinarily intelligent European had seen the body. 
 
 In one case, it was only, on a strict cross-examination, that I found 
 myself forced to conduct, I elicited, first, that the deceased had been 
 some days before his death engaged in a gambling row where he had 
 been beaten, and that his body moreover had been in the Water 
 amongst the Shipping for six days — had it not been for these facts 
 thus with difficulty elicited, the weight of evidence would have been 
 sadly against the Englishman who long after the time when, if 
 found guilty, he would have been hanged, was proved to have had 
 literally nothing to do with the death of the deceased. 
 
 The Jury should be sworn. 
 
 The following forms of Summons and Oath may be used. 
 
 Provincial Court of 1 To the Constable 
 
 J of 
 
 Summons. These are in Her Majesty's name to command you immediately 
 
 to summon three persons whose names are on the Jury list of this 
 Court to appear before me Judge of the Provincial 
 
 Court of on the day of at 
 
 o'clock in the noon to inquire concerning the death of 
 
 (Sealed with the Seal of the Court.) 
 
13 
 
 You shall deligently inquire and true presentment make how Oath to Jury. 
 A. D. (or a person unknown) now lying dead, came to his death 
 and of such other matters relating 1 to the same, as shall lawfully he 
 required of you according to the evidence you shall receive. 
 
 "So help you God." 
 
 Having administered this Oath the Coroner will proceed with the 
 Jury to view the hody. If a Medical man is at hand, he should go 
 with the Jury and examine the hody if no examination has previ- 
 ously heen made. The Coroner and Jury having seen the body and 
 taken note of any particular circumstances as wounds, &c, &c, will 
 proceed to hear such evidence as may be forthcoming. 
 
 The Oath administered to a Witness may be as follows. "The oath of witness, 
 "evidence you shall give to this Inquest touching the death of 
 "A. D. shall be the truth the whole truth and nothing hut the 
 "truth." 
 
 "So help you God." 
 
 The Coroner must hear all evidence that is offered and that upon 
 Oath. A party accused of murder or against whom suspicion arises, 
 may bring evidence if he can in his on behalf. 
 
 The Coroner has power to compel the attendance of all British 
 Subjects as witnesses, and to commit them for contempt if they 
 refuse to appear. On the appearance of a witness the Coroner 
 should take down his name, abode and occupation and then ad- 
 minister the Oath. Chinese, Malays, Roman Catholics and persons 
 of other religions may be sworn according to their own customs. 
 
 The Coroner must put the evidence of the witnesses in writing 
 or as much of it as is material — and in case any one appears to 
 have been guilty of manslaughter or murder he must bind by 
 recognisance all witnesses if they be British Subjects, who have 
 any evidence to give, to appear when the party charged shall be 
 prosecuted for the same, and if they are Foreigners, application 
 should be made to their respective national Authorities to secure 
 their attendance at the trial. 
 
 The Coroner should seal and subscribe the note of the evidence 
 taken and the inquisition, and deliver the same to the proper Officer 
 of the Court before which the offender is to be tried. 
 
 The examination of witnesses is to be taken down as nearly as 
 possible in the words of the witnesses and not according to the 
 effect simply. 
 
 If the place where the body is, be inconvenient for the purpose of 
 holding an inquest, the Coroner may adjourn it to another time or 
 another place. 
 
 The verdict of the Jury should state as plainly and simply as verdict of Jury, 
 possible the facts of the case — showing the manner — wherein or 
 cause whereby or by what means the deceased came by his death. 
 Immediately after the Jury have pronounced their verdict — it should 
 be put in writing. The Coroner and Jurors must sign the inquisi- 
 tion. The signatures should be in full stating both Christian and 
 surname of each juror. 
 
14 
 
 Form of Inquisi- 
 tion. 
 
 Admiralty. 
 
 V 
 
 Form of an Inquisition. 
 
 (An inquisition taken at (the Police Station or 
 
 Foochow •] as the case may be) in Foochow aforesaid the 
 
 ( day of 1866, before A. B. 
 
 Her Britannic Majesty's Consul at Foochow, acting; as Coroner in 
 accordance with the 53rd Section of the China and Japan Order in 
 Council 1865 upon view of the body of M. IS . at No. 100. Street 
 in Foochow aforesaid there and now lying; dead upon the Oaths of 
 C. D., E. F. and G. H. (jurors) the several persons whose names 
 are hereunder written good and lawful men of Foochow aforesaid, 
 who being; now here sworn and charged to inquire on the part of 
 Our Lady the Queen when, where, how and by what means the said 
 M. N. came to his death do upon their Oaths say that (X. Y. now 
 in custody of the Police did on the day of in 
 
 the year aforesaid feloniously wilfully and of his malice aforethought 
 kill and murder the said M. N.) against the peace of Our Lady the 
 Queen her Crown and dignity. 
 
 In witness whereof as well the said Coroner as the Jurors afore- 
 said have hereunto subscribed their names the day and year above 
 written. 
 
 Consul and Coroner. 
 
 (CD. 
 Jurors \ E. F. 
 
 (G. H. 
 
 Consuls will observe that by the 54th Section an Admiralty 
 jurisdiction has been specially conferred on the Supreme Court, and 
 on that Court alone. This jurisdiction is an exceptional one in many 
 respects, and although no Provincial Court has power to exercise it, 
 yet it is necessary that Consuls should make themselves acquainted 
 with its nature, and bear it in mind so as to enable them to advise 
 parties having claims against a Ship as to their remedies and the 
 means of recovering them in the Supreme Court. It is an essential, 
 and it may almost be called a peculiar feature of Admiralty juris- 
 diction that it may be exercised, and most usually is exercised, not 
 against the Owners personally but against the Ship itself — its 
 Apparel and even its Cargo. The Procedure indeed provides for 
 any parties interested in the Ship or Cargo to come in and release 
 the Res as is called by giving Bail and entering an appearance — 
 but it is essentially against the Ship, &c, that the action is instituted. 
 Claims for Seaman's wages 
 
 — for Master's wages and for his Disbursements on 
 
 account of the Ship 
 — in respect of Pilotage, Tonnage, Salvage of any 
 
 Ship, or of Life or Goods therefrom 
 — of damage done by any Ship, Claims of Bottomery, 
 
 or Respondentia Bonds 
 — of any Mortgage when the Ship has been sold by 
 a Decree of a Vice- Admiralty Court and the proceeds 
 are under its controul, are generally enforced under this juris- 
 diction, and although in England Material men and persons who 
 
15 
 
 have repaired a Ship, except they continue in possession of her, have 
 no maritime Lien on an English Vessel in an English Port yet by 
 the Vice-Admiralty Court Act 180.% i e. 20 and 27 Vict. Oh. 24 
 Sec. 10 claims for necessaries, building, equipping or reparing a 
 Vessel within any British possession where no Owner or part Owner 
 is domiciled, are admitted and can be recovered in a Vice-Admiralty 
 Court in an action in Hem against the Ship, and as by the Order 
 in Council Section 54 which I have referred to, the Supreme Court 
 in China and Japan has all such jurisdiction as belongs to the 
 Admiralty Courts in Her Majesty's possessions abroad, it would 
 seem to follow that the provisions of the Act of 1863 are equally 
 applicable to the Supreme Court. 
 
 The proceedings to be taken on the death of a British Subject Proceedings on 
 are discribed with sufficient clearness in Sections 5? to 61, and in Deati 
 Rules 184 to 216 and all I need I think observe with reference to 
 them, is, that the personal property of a deceased British Subject, 
 vests exclusively under the 59th Section until Probate is taken out 
 or administration granted, in the Judge of the Supreme Court and 
 in no one else, and that consequently no one has any right to 
 interfere with, or exercise controul over such property, other than 
 one of Her Majesty's Consular Officers, and he can only do so in 
 accordance with the Orders of the Judge of the Supreme Court. 
 
 In cases where there are no fit Guardians of the Property left, or 
 where there is reason to suppose it may be dissipated or stolen — or 
 where the interests of those in whose possession it may be, are 
 exactly at variance with those of the Eelatives or Creditors of the 
 deceased — it is the duty of the Consul to take actual possession of 
 it himself or after taking -an accurate inventory of it, to leave some 
 one in possession — or he may leave the party in whose actual custody 
 it happens to be in possession, on his giving sufficient security to 
 be answerable for it. The Consul should then immediately com- 
 municate to the Judge of the Supreme Court the course he has 
 taken, and ask for instructions, giving him at the same time such 
 particulars of the Estate and of the Persons entitled to it, as can be 
 obtained. But some tact and a sincere desire not to act so as to 
 wound the sensibilities of surviving relatives or friends, is absolutely 
 necessary. Thus, when there is a Wife or Children left, or any 
 very near relatives absolute possession should not be taken, nor 
 indeed should any immediate steps be taken except affixing a notice 
 of the death in the Public Office of the Consulate. Within, however, 
 a reasonable time the provisions of the Order in Coimcil should be 
 considerately brought to the notice of the Survivors, and the proper 
 steps be taken for the grant of Probate or Administration. No official Admi- 
 Consular Officer however, can erect himself into an Official Admi- Iustr ' LUl " 1 ' 
 nistrator of a deceased person's Estate — such an appointment can 
 only be made by the Judge of the Supreme Court and will only be 
 made when it is perfectly evident that there is no other fit or proper 
 person to perform the Office. 
 
 The power of granting Probate or Letters of Administration con- Probate. 
 ferred on the Supreme Court and (with a limitation) on Provincial 
 Courts, is confined to the Wills and Estates of Persons "having at 
 the time of death their fixed places of abode in China or Japan," it 
 
16 
 
 Death elsewhere 
 than in China or 
 Japan. 
 
 When a Partner 
 
 Administration. 
 
 What Crimes 
 Consols can deal 
 
 with. 
 
 would seem to follow therefore that the property of a person dying in 
 either Country — not having a fixed place of abode therein, may be 
 made over to any person properly authorized by a grant of Probate 
 and Administration obtained from any other Probate Court within 
 whose jurisdiction the deceased had his place of permanent residence 
 or where the Bulk of his property was — without Probate or Adminis- 
 tration being first obtained in the Court of the district in which the 
 party died. In such cases the original Probate or Letters of Ad- 
 ministration should be produced to the Consul, and he should stamp 
 them with the Seal of his Court and require a Copy of them to be 
 deposited with himself. 
 
 Cases may also occur where the ordinary residence of the deceased 
 has been in China and Japan for some years preceding his death, 
 but from some circumstances Probate of his Will or Letters of 
 Administration to his effects may have been granted in England, 
 Hongkong or elsewhere. Such Probates or Letters of Administra- 
 tion, provided no Will of subsequent date be found here, should be 
 recognized and the course of proceeding will be the same as in the 
 other case; but it is not in general expedient that a Consular Officer 
 should thus part with the property of a Deceased British Subject 
 until he has first consulted the Judge of the Supreme Court on the 
 subject. 
 
 In the case of Partners, it is the duty of the surviving Partners to 
 close the Books of the Firm as far as can be done and open new 
 ones in respect of every transaction subsequent to the death, and in 
 the absence of any Legal representative the Consul should inform 
 the surviving Partners of their duty in this respect and require from 
 them a statement of the actual amount of interest which the deceased 
 had in the Partnership stock and effects at the time of his death. 
 And this statement with all the particulars that can be collected 
 relative to the deceased — his relations and his property, should be 
 immediately forwarded to the Judge of the Supreme Court who will 
 give the necessary instructions. But in Partnership Estates it must 
 be recollected Partners have only undivided shares or interests in the 
 whole and until conversion there is no separate Estate, so that on 
 the death of a Partner, his surviving associates become the Trustees 
 of his share and hold the same to the use of his relatives or next of 
 kin — thus this holding possession is not considered as and does not 
 fall under the provision of the 60th Section, and the surviving 
 Partners are not liable to the penalties mentioned therein. 
 
 As regards Administration where no opposition is made to the 
 application it must be borne in mind that the next of kin is the 
 person first entitled and then to any person in lesser degree of con- 
 sanguinity. Administration cannot be granted without previously 
 summoning those who have the first natural right, and the same 
 rule applies to Creditors seeking Administration. 
 
 For degrees of consanguinity see Stephen's Blackstone's Com- 
 mentaries Vol. 2. V 208. 
 
 With reference to Sections 64 to 80 — most of which apply to the 
 Supreme Court, it is unnecessary for me to draw attention to any 
 except perhaps the 72nd and then only by warning Consuls not 
 too hastily to determine that the crime of which a person stands 
 
17 
 
 charged before them cannot be adequately punished by the amount 
 of punishment which a Provincial Court has the power to award — ■ 
 namely 12 months imprisonment with hard labour and a fine not 
 exceeding- 1,000 Dollars* 
 
 Where it is clear on the face of the Depositions taken that the 
 Maximum of punishment for the Offence, if proved, ought not, in the 
 exercise of the discretion which is expressly conferred on Judges and 
 Magistrates by Law, to exceed the amount which a Provincial Court 
 has power to adjuge— then the Consul should proceed to try the case 
 without applying to the Supreme Court. 
 
 Imprisonment for any lengthy period, such as a year in China or imprisonment 
 Japan, is equal to a punishment of three times the same length in 
 England, and the pecuniary loss which is likely to result to any one 
 who has anything to lose is also proportionably greater. The object 
 of punishment is not so much vengeance on the Criminal as to deter 
 others from the commission of similar crimes, and the effect of prompt 
 punishment following on crime to be carried into effect as near to 
 the scene of the commission of the crime as possible is far greater as 
 a deterrent than conviction at a'distant place. And to this conside- 
 ration may also be added the expense incurred either by sending the 
 accused for trial at Shanghai, or that attending the journey of a 
 Judicial Officer of the Supreme Court to the District where the Offence 
 was committed. At the same time there are Offences which when 
 committed in China or Japan require severe punishment, and with 
 this class few considerations founded upon any other basis than that 
 of carrying out in its fulness and entirety the letter of the Law, 
 should enter. 
 
 Where under the 77th Section an Assessor dissents from the con- 
 viction or amount of punishment awarded, the Consul is bound 
 immediately to send up a full report of the case to the Supreme 
 Court with any reasons that the Assessor may think proper to give 
 for such dissent. 
 
 Under the 79th Section, the Judge of the Supreme Court is to 
 determine the expediency of sending a convicted offender for impri- 
 sonment to Hongkong — Consuls should therefore always state their 
 reasons for desiring that any sentence they pass should be carried 
 into effect within Her Majesty's Dominions — and when desiring that 
 the sentence given by them should be carried into effect at Shanghai 
 or elsewhere in China or Japan they should equally state their 
 reasons. 
 
 The Sections of the Order relating to Treaties and Regulations — 
 unlawful trade with Japan— Japanese waters and piracy— require 
 no comment, any infringement of the three last, as also any Offence 
 under Section 107 committed on board a British Vessel within 100 
 miles of Coast of China and Japan, must be reported to the Supreme 
 Court at Shanghai. 
 
 With reference however to the particular crime of Piracy, it may 
 be remarked that other offences than those of forcibly and feloniously 
 seizing a Vessel on the high Seas are piratical. By Statute some 
 other offences are made piracy : as by Statute 11 and IS William 3rd 
 Ch. 7 made perpetual by Geo. 1st Ch. 19, if any natural born Subject 
 commits any act of hostility upon the high Seas against others' of Her 
 
 Dissent of As- 
 sessor to ConVic* 
 
 tion. 
 
 Sending Con- 
 victed Offender to 
 Hongkong. 
 
 Treaties and 
 Regulations. 
 
 Piracy. 
 
18 
 
 Punishment for 
 Piracy. 
 
 Offences against 
 Religion of Conn- 
 try. 
 
 Majesty's Subjects under color of a Commission from any Foreign 
 Power j this, though it would be only an act of War in an Alien, 
 shall be construed piracy in a subject. And further (by the same 
 act) any Commander, or other Seafaring person, betraying his trust, 
 and running away with any Ship, boat, ordnance, ammunition, or 
 goods; or yielding them up voluntarily to a pirate or conspiring to 
 do these acts; or any person assaulting the Commander of a Vessel 
 to hinder him from fighting his Ship, or confining him or making 
 or endeavouring to make a revolt on board, shall be adjudged a 
 pirate felon and robber. Again (by the Statute 8 Geo. 1st Ch. 24) 
 made perpetual by 2 Geo. 3rd Ch. 28 the trading with known 
 pirates or furnishing them with stores or ammunition, or fitting out 
 any Vessel for that purpose, or in any wise consulting, combining, 
 confederating or corresponding with them — or the forcibly boarding 
 any Merchant Vessel (though without seizing or carrying her off) 
 and destroying or throwing any of the goods overboard — shall be 
 deemed piracy. Moreover, by Statute 18 Geo. 2nd Ch. 30 any 
 natural born Subject or denizen, who in time of War shall commit 
 hostilities at Sea against any of his fellow Subjects, or shall assist 
 an enemy on that element, is liable to be tried and convicted as a 
 pirate. And, lastly in our own times, a further addition, has been 
 made to the list of piratical offences. For, with the view of putting 
 an effectual stop to the Slave trade, the Statute 5 Geo. 4th Ch. 113 
 enaots, that if any British Subject, wherever residing, and whether 
 within the Dominion of Great Britain or of any Foreign Country or 
 in the Colonies, shall (except in some particular cases therein speci- 
 fied, within the jurisdiction of the Admiralty) knowingly convey or 
 assist in conveying persons as Slaves or ship them for that purpose, 
 he shall be deemed guilty of piracy, felony, and robbery. 
 
 Formerly the punishment for most piratical offences, was death. 
 But it has been thought expedient to relax this severity and now, 
 whoever shall be convicted of piracy, is liable to be sentenced to 
 penal servitude for life, or any term not less than three years; or to 
 be imprisoned (with or without hard labour) for any term not more 
 than two years. But whoever, with intent to commit or at the 
 time of or immediately before or after committing the Crime of 
 piracy in respect of any Ship or Vessel, shall assault with intent to 
 murder, or stab or wound or unlawfully do any act by which the 
 life of any person on board of or belonging to such Ship or Vessel 
 may be endangered, is liable to suffer death as a felon. 
 
 It is to be hoped that there will be little occasion to put the 
 stringent powers conferred on Consular Officers by the 100 Section 
 into force, but should it unfortunately be necessary to exercise them 
 - — Consuls must remember that the object in view in ordering this 
 class of offences to be dealt with in a summery manner, is the prompt 
 investigation and punishment, if guilty, of the Offender. Immedi- 
 ately a charge is made, or information reaches the Consul that an 
 offence of the kind mentioned in this Section has been committed, 
 he should immediately summon the person charged, or if there be 
 good reason to apprehend that he will abscond, cause him to be 
 arrested — and at once enter upon the case giving the accused of 
 course a reasonable opportunity of calling evidence in bis own behalf, 
 
19 
 
 and having* awarded and enforced the punishment, the whole case 
 should he reported to Shanghai. 
 
 It might also he as well for Consuls to have this Section copied 
 out legibly or printed in large type, and to keep it affixed in the 
 most public part of the Cdnsular Office. 
 
 The 104 Section gives to the Supreme Court at Hongkong juris- 
 diction when the accused is actually in the Island of Hongkong, 
 and is there charged with the commission of any crime or offence 
 within a Vessel at a distance of not more than 100 miles from the 
 Coast of China or Japan. 
 
 The Section 106 relative to Deportation, requires attention, and 
 Consuls must exercise a sound direction in using the power conferred 
 upon them. 
 
 While on the one hand it is their duty not only to punish offences 
 on the part of British Subjects but also to prevent breaches of the 
 peace — they must not on the other hand assume too hastily that such 
 and such a course of conduct will result in a breach of the public 
 peace, and there is a distinction to be drawn between conduct which 
 affects or is likely to affect the comfort or security of an individual, 
 and the peace or security of the public — it is onlv against the latter 
 that this Section is directed — the former is punishable either by fine 
 or imprisonment, or by calling on the offender to find good security 
 for his conduct towards the complainant — and by security is meant 
 not the personal security of the individual complained of, but the 
 security of one or more respectable persons; although this latter 
 security may be' dispensed with, as indeed it cannot always in these 
 Countries be found, on the offender depositing with the Consul a 
 sum of money to be forfeited to the Crown on a repetition of the 
 misconduct. 
 
 Continuous Offences however against more than one individual, 
 may be fairly construed into breaches of the public peace and are 
 punishable as such — thus if a man is freq uently con victed of petty 
 thefts or of attempts at theft — of begging with importunity, or threats 
 — of drunkeness and insulting passers by, or other riotous conduct 
 in the public streets — he may be considered as guilty of committing 
 a breach of the public peace and may be proceeded against under this 
 Section. It is of the utmost importance that what is called in these 
 Countries the "rowdy Class" should be got rid of — and it is this 
 Class who are constantly guilty of conduct towards the Natives — 
 the authorities, and Foreigners, which occasionally is highly criminal, 
 but which generally falls more properly under the head of being 
 subversive of the peace and tranquillity of the public — the Law 
 against Vagrants of all descriptions should be enforced, and thus in 
 time the foreign Settlements will be cleared of persons who are always 
 creating difficulties with the authorities, and who are a source of 
 annoyance and fear to the respectable portion of Foreigners. At 
 the same time in proportion to the extent of the power conferred, 
 will discretion in the exercise of it be required, and any misuse will 
 be regarded in the same light as indifference or neglect. As a general 
 Rule Consular Officers should only act on information given on 
 Oath — the ground of apprehension should be serious and im minent^, 
 and if they are then satisfied that there is reason loexercise the 
 
 When Court at 
 Hongkong has 
 Jurisdiction. 
 
 Deportation. 
 
 Breaches of the 
 Peace. 
 
 Continuous im- 
 propriety of Con- 
 duct. 
 
 ti 
 
 f. ;v*t 
 
 I **> 
 
20 
 
 Registration. 
 
 When a British 
 Snbject assumes 
 a Foreign Nation- 
 ality. 
 
 Foreigners and 
 Foreign Tribu- 
 nals. 
 
 large discretionary powers vested in them by this Section, the security 
 demanded should be reasonable. It is also further to be remarked 
 that it is only on failure to give the required security that a British 
 Subject can be deported, except where by the provisions of the Order 
 Deportation is specifically mentioned as a punishment as in Sections 
 81 and 113. 
 
 Registration under the 114th Section must be seriously insisted no 
 — and after due public notice a Consul should proceed by Summons 
 against those who neglect to comply, in this respect with the Order 
 in Council. On all occasions where a Summons is issued, the 
 expenses of it should be paid by the party summoned — the imposi- 
 tion of a fine is in the discretion of the Consul and should always be 
 imposed when the neglect to register is wilful. It is difficult to 
 carry out the remainder of the penalty as we cannot in justice to 
 the authorities refuse to recognise a British Subject, nor can we 
 often, from mere motives of humanity leave our fellow Subjects — 
 simply because they have not registered themselves — to the tender 
 mercies of the Native authorities. Nevertheless there may be cases 
 when by refusing to recognise in the sense of rendering assistance, 
 Consuls may be able to punish in a most effective manner persons 
 who contumaciously refuse to register themselves. 
 
 Registration is eminently a measure of Police and unless Consuls 
 everywhere do their best to make it as a universal as possible, its 
 chief value will be lost. 
 
 When a British Subject has not registered himself in the British 
 Consulate, but has registered himself in a Foreign Consulate — as a 
 Subject of the nationality of that Consulate — the British Consular 
 authority should not recognise him as a British Subject, nor protect 
 him from the consequences of any act done or omitted to be done, or 
 in respect of any liability or responsibility incurred while he was so 
 registered at the Foreign Consulate. Naturalized British Subjects ^ 
 may also be registered hilt they must produce their letters of Natu- 
 ralization and it is to be remembered that as against the authorities 
 of the Country of the Birth and Origin of the party naturalized, we 
 cannot protect him from the obligation of being subject to their 
 jurisdiction — except indeed he has been permitted, as is often the case 
 with Prussians, to renounce his allegiance. While on the subject of 
 Eegistration, I may mention that Foreigners in the employment of 
 British Subjects are not to be registered — nor are they entitled to 
 protection although in some cases where the British Subject is 
 himself injured or inconvenienced in the person of his Servant, an 
 officious assistance may be given to the latter, but never where such 
 Servant has a Consular authority to whom he can appeal. 
 
 With reference to Sub-division XV. "Foreigners and Foreign 
 tribunals" it will be observed that Section 117 is confined to cases 
 in which Foreigners are in the position of Plaintiffs and British 
 Subjects in that of Defendants — the British Consular Court has 
 then jurisdiction, but none can be exercised over Foreigners when in 
 the position of Defendants even if they consent to the case being 
 decided by a British authority. The only way in which effect can 
 be given to a desire on the part of a Foreigner to have any matter 
 of difference between himself and a British Subject decided by , 
 
21 
 
 Reference to 
 Rules of Proce- 
 dure. 
 
 English authority — is by both parties consenting in writing to refer Reference- to con- 
 such matters to the arbitrament of the British Consular Officer and bycontent. '" 7 
 in the case of such consent, the assent of the Consular authority of 
 the Foreigner should be also obtained — otherwise in the event of the 
 award being against the Foreigner there is no power which can 
 compel him to perform it. His Consul would no doubt decline on 
 the ground that the proceeding had for its object the withdrawing 
 his Subject from the jurisdiction of his natural authority, and the 
 award would be valueless. Whereas by first asking and obtaining 
 the assent of his Consul — the latter impliedly undertakes to give 
 effect to the award so far as he is able, and there is no objection to 
 requiring such a consent, nor, in the case of a British Subject desir- 
 ing to submit some difference between himself and a Foreigner to 
 the decision of the Consul of that Foreigner is there any objection 
 to giving it — the submission in the latter case with the consent 
 should be made a Rule of the English Court, and in the event of 
 proceedings against the British Subject becoming necessary they 
 would be based upon the Rule of Court and effect be thus given to 
 the award. (See Rules 217 to 229.) 
 
 When reference is made in any of the Sections of the Order in 
 Council (as for instance in Section 119) to the Rules of Procedure 
 — such Rules must be carefully complied with. 
 
 When any appeal is sent to the Supreme Court — the Record must Appeal. 
 be made up — (See Mules 153 to 182) and the party appealing must 
 first pay the fees incident to such appeal, and a note of such fees 
 signed by the Consul, must be attached to and form part of the 
 appeal. 
 
 The Fees on the "motion for leave" on the "security to prosecute what Feesw- 
 the appeal " (which by the bye is only leviable when the security is court?'" 1 '° wha 
 taken from third persons in the form of a Bond or of a Recognisance, 
 and not as is most usual when the appellant deposits a sum of money 
 to answer the Costs) on the "Order granting the leave" and the 
 " Copying Fees " when any are incurred, belong to the Court from 
 which the appeal issues and must be levied by it and passed to the 
 credit of Her Majesty's Government. 
 
 The Fees on t he ."Pej afrjon" and on ^l^JHfia gfig" b elong to the 
 Supreme Court and must be forwarded contemporaneously with the 
 appeal itself. At the time of sending forward the appeal the Consul 
 should inform the Parties that they are at liberty to appear in person 
 or by Counsel and argue their appeal — or they may put their argu- 
 ments in writing, and leave the appeal to be decided on the Record 
 and on the written arguments. If they decide to appear in person 
 or by Counsel — notice will be sent to them through the Consul of 
 the day fixed for the hearing — but the Supreme Court will always 
 consult as much as is practicable, the convenience of the parties on 
 their wishes being made known — and should the latter elect to leave 
 the case simply on the Record and the written argument, notice of 
 this election must be given to the Judge of the Court at Shanghai, 
 who will then forthwith and without delay decide the case and send 
 down the judgment in appeal. Except in cases involving points of 
 
 freat importance or when the amount is large, it will be a saving of 
 oth time and expense if the case is sent up at once for the Chief 
 
22 
 
 The Record. 
 
 Of what Papers 
 the Record should 
 consist. 
 
 Minutes of Pro- 
 ceedings. 
 
 Proceedings at 
 Trial. 
 
 Note-Book. 
 
 Judge's decision without vied voce arguments, and Consulss hould, — 
 without however, exercising any pressure — inform the parties of 
 this. 
 
 The Record should consist of Copies of the Plaint and answer — ■ 
 the notice of trial — the Notes of the Evidence taken by the Consul 
 —with certified Copies of all the documents admitted in Evidence 
 at the Trial — and of the Judgment. And here let me observe that 
 although as a matter of strict right the parties to a suit cannot 
 insist on having a Copy of the notes of the Judge who tried, the case 
 for their own use, yet it is highly improper to refuse them when they 
 are wanted for the purposes of an appeal, or for any other really 
 legitimate object. I do not mean to say that a Consul is bound 
 to undergo the labour of copying them himself, or the expense of 
 getting them copied; but he ought to get them copied or let the 
 parties copy them at his option, and if he has a copy made, he may 
 fairly charge the proper fee. It must be recollected that the " Notes" 
 are the only record of the "Evidence" and therefore are of the 
 highest importance — and this fact, coupled with the recollection 
 that a Judge's Notes may become public or may come under the 
 Notice of a Superior Court, should render Consuls very particular 
 in the mode in which such notes are taken by them. 
 
 In addition to the Papers and Documents I have alluded to, there 
 should be a Copy of the Motion for leave to appeal — the Order made 
 thereon — the Petition on appeal and answer, and any arguments 
 which may be filed in support of either. (See Utile 170.) 
 
 These and a Note of the Fees, constitute the "Record of Appeal." 
 These several documents should be written on the same sized Paper 
 and be fastened together by a piece of Silk or Ribbon to which the 
 Seal of the Court should be affixed — and on the last sheet should be 
 a Certificate of the Consul that the Record so sealed contains true 
 Copies of all the papers in the case. Original documents should not 
 be forwarded — except the case turns upon a question of handwriting, 
 or of identity, or of Erasure, as the Supreme Court cannot assume the 
 responsibility of their safe custody. 
 
 The 145 Rule orders that in every case, Civil or Criminal heard 
 in the Court, proper minutes of the proceedings should be drawn up 
 and signed by the Judge of the Court before whom they are taken. 
 The Minutes here referred to, are the Orders made by the Court on 
 any application. Thus the order to communicate a Petition or 
 answer is a minute, and so are all orders made on any motion in the 
 case — interlocutory or otherwise — and as a matter of regularity they 
 should be always drawn up and signed. 
 
 The Notes of evidence taken on the hearing of a case, and which 
 consists of the answers of the Witnesses to the questions put by the 
 Parties, must be taken down by the Judge himself in his own Note- 
 Book. Thus, on the hearing of a case, the Page of the Note-Book 
 should be thus headed : 
 
23 
 
 C. W. Jones 
 
 v. 
 J. Smith. 
 
 "1** August, 1866. 
 
 Plaintiff claims £200 for goods sold and deliver- Heading of Caae. 
 ed.— (See Plaint No, 10.) 
 
 Defendant says that he has paid the same. — (See answer No, 22.) 
 
 (If Counsel appear state their names, &c, &c, and that Mr. * * * 
 opened case for Plaintiff) 
 
 Plaintiff sworn — says that, etc., &c. 
 
 Cross-examination — 
 Re-examination — 
 
 Under these several headings are to be taken the Notes of Evidence 
 adduced by the Witnesses of the Plaintiff with those of the Cross- 
 examination and Ee-examination. 
 
 When all the evidence is finished then make a note that Buch is the 
 
 Plaintiff's Case. 
 
 Then call on the Defendant who will be entitled to address the 
 Court, but if he intends to give evidence himself he must first be 
 sworn. He is liable like any other Witness to cross-examination 
 and he may after such cross-examination give any explanation he 
 thinks fit of any answer made by him while under cross-examination 
 — this is in fact in the nature of re-examination. The Defendant's 
 witnesses are then called, and the same course pursued as with those 
 called by the Plaintiff. 
 
 It is a rule that when eitJier of the Parties intends to be a witness, 
 he must be sworn — except of course in Criminal cases where the 
 Defendant or rather as he should be called the "accused" is not 
 sworn, neither can he be cross-examined. It is difficult however to 
 see any very good reason for such a prohibition, and probably the 
 next few years will see a change in this respect in our otherwise 
 faultless Procedure, for if an accused person voluntarily tenders 
 himself as a Witness, there is no reason why his evidence should 
 not have the additional guarantee of an Oath — so long as an Oath 
 is supposed to create an additional obligation to speak the truth or 
 why he should not be subjected, — like any other Witness, — to such 
 a test of truth or falsehood as cross-examination offers. 
 
 If in the course of the trial any document is referred to and is 
 admitted in evidence — {See Rule 248) it should be marked with a 
 "letter" in the Judge's notes of Evidence, and when marked, it 
 forms part of the Record and as such is retained by the Court until 
 the complete termination of the case — all objections made to the 
 admissibility of Evidence should be also taken down in the terms in 
 which they are made, and if, as is very frequently the case, a party 
 is unable to state his objection concisely, he should be requested to 
 put his objection then and there into writing — the other party should 
 reply to the objection, and both the objection and answer should be 
 entered on the notes with the decision of the Court upon the point. 
 {See the Rules as to Proceedings at the Hearing 84 to 94.) 
 
 Examination of 
 
 Witnesses. 
 
 Evidence of Par- 
 
 ties. 
 
 Criminal Cases. 
 
 Cf- 
 
 Admission nf Do- 
 cumentary Evi- 
 dence. 
 
24 
 
 Costs. 
 
 Experts Surveys, 
 &c. 
 
 The Court should exercise a direction in the matter of awarding* 
 Costs — (See Section 146 and Bides 262 and 263) generally speaking 
 — especially where professional Men have not been employed — it will 
 be sufficient to order the party losing the case to pay the Fees — in 
 no case — except where the claim is a fictitious or vexatious one, or 
 the defence an improper one — should the parties themselves be 
 allowed anything for loss of time in attending the Court — nor should 
 Expenses of wit- Witnesses either be allowed any remuneration, unless before giving 
 nesse 3 . Hheix evidence they object to give it until their expenses are paid 
 
 (See Section 148) and then only in the shape of payment for expenses 
 actually incurred, but no such payment should be made if they have 
 come voluntarily and without being summoned. The least that 
 British Subjects in a distant Country, can do, is to assist each other, 
 and when facts are within their knowledge it is not surely too much 
 to expect that they should inform the Court of what they know 
 pertaining to the matter in dispute, gratuitously. If a working man 
 loses however a day's wages or is forced to sacrifice a day's work he 
 may be fairly saved from loss, and so may a professional man ; but 
 there is a Class of "Witnesses who call themselves " Experts " and 
 these expect a remuneration entirely beyond what they are entitled 
 to. They come merely to express an opinion, and unless they can 
 prove that they actually suffer a pecuniary loss by reason of their 
 obeying the Summons of the Court they should not be allowed 
 anything. Most of these Witnesses have generally made a previous 
 survey of the Ship or goods in dispute, and it has been the custom to 
 pay them very largely for such a service. 
 
 The written report of such a survey is inadmissible in evidence, 
 except by consent, and as it was intended for use in Court and paid 
 for, the Fee already charged should always be held to cover the 
 Expenses attending the giving evidence of the result of the survey 
 in Court. Such written surveys may by permission of the Court be 
 referred to, to refresh the memory of the witness. 
 
 Consuls will do well however to discourage the expenses attending 
 these surveys, and should particularly discountenance the absurd 
 custom that has grown up in some Ports of making everything, no 
 matter how insignificant or unimportant — a matter of survey — 
 Captains of Vessels seem to think that a survey covers their respon- 
 sibility, and that protected by such an Act, they can do what they 
 like with the property of their Owners — or that of other people. This 
 is a mistake, a survey leaves their responsibility exactly where it was, 
 and if Captains act improperly, unfairly, or foolishly, they are just as 
 liable whether their act was preceded by a survey or not. On more 
 than one occasion I have had to disregard surveys, and to fix the 
 Captains of Vessels not only with the Expenses of them but also with 
 damages. 
 
 At the same time, Surveys are not unfrequently necessary, as a 
 means— if I may use the expression of perpetuating evidence, when 
 from the nature of the goods, or the circumstances of their arrival 
 — the importance of completing their delivery and the terms under 
 which delivery should be offered or taken, — the goods cannot them- 
 selves be produced on the trial of any case having reference to them, 
 in the exact state in which they arrived or were delivered. Surveys 
 
 When Surveys 
 necessary. 
 
25 
 
 are also of value in matters of Insurance. But a Survey' — except by 
 consent of the Parties — never supercedes the necessity or the presence 
 of the Surveyors at the trial and their examination. 
 
 I have now exhausted the observations which I have thought it 
 necessary to make on some of the Provisions of the Order in Council. 
 They have been called forth by queries during the past year which 
 have reached me from all sides. I think that a careful perusal of 
 the Order itself would have rendered the answering of many of them 
 unnecessary. 
 
 I now pass to the Rules of Procedure confining myself to that Rules of Proce- 
 portion of them which peculiarly refer to the proceedings before n * e " 
 Provincial Consular Courts. Their number has I understand, fright- 
 ened some Consular Officers who have given up in despair the task 
 of even attempting to understand them — but as from all, conformity 
 to them is imperatively required, and in their own interests as well 
 in that of the general public it is most adviseable, and necessary 
 they should understand and act upon them I will endevour by a 
 running gloss to clear up some of the difficulties to which my atten- 
 tion has been drawn althogh many of them are in reality more 
 imaginary that real. 
 
 If however the length to which the attempt may oblige me to 
 stretch this Letter is to produce the same results as that produced by 
 the list of Rules, and to secure for it the certainty of not being read, 
 I shall regret the labour employed and the time lost, so much the 
 more, as to the educated Consular Officer, there is the risk of both 
 being considered as most unnecessarily sacrificed. 
 
 The object of all Rules of Procedure is simplicity and uniformity, object of nmes. 
 and although many persons may think that these are best obtained 
 by letting people express themselves in their own way — the experience 
 of years has only served to show the utter incapacity of the vast 
 majority of persons to make any ordinary statement in writing of 
 what they really want. Precision of expression and conciseness of 
 language is far more rare than is generally imagined, and the prone- 
 ness of most persons to indulge in vague declamatory statements 
 generally obscures their meaning to an extent that is hardly con- 
 ceivable. 
 
 It is not Lawyers alone who have felt the value of Forms. The Forms. 
 Merchant has recognised it in Bills of Lading, in Bills of Exchange, 
 in Charter-parties and in a great variety of other instruments, and 
 if it had not been for the wise fore-thought and experience which 
 dictated these forms, the amount of litigation would have been infi- 
 nitely greater than it has been. 
 
 In the Rules under consideration in so far as the Petition or object of nuiea. 
 Plaint and answer is concerned {See Rules 1 to 27 and 44 to 50 and 
 58) there is but one object — namely the development of one or more 
 " issues " that is one or more points of dispute or difference concisely issues, 
 and accurately expressed, and every Judge before proceeding to the 
 hearing of a case should see that the pleadings, in other words, the 
 Petition and answer when read together, disclose an issue. This 
 object is much furthered by adhering to the system of " numbering " 
 the Paragraphs in the Petition and answer — the latter replying 
 specially to those in the Petition either separately or collectively but 
 
26 
 
 not answering; separate parts of two paragraphs in the Petition by 
 one in the answer. Where this cannot be avoided there is probably 
 some defect of clearness in the Petition. Every difference whether 
 it arise out of a disputed question of Law or of fact, can be and 
 therefore must be, concisely stated — and when this is done half the 
 difficulty of decisions vanishes. It is for the purpose of enabling 
 Consuls to frame the teal issues in a case, even when the Petition 
 and answer afe both defective or wanting; in clearness, that such 
 large powers of amendment (See Mules 28, 30, 31, 38 and 275) 
 have been given — the terms — as to Costs, adjournment, &C, &c, on 
 which these powers should be exercised are in the discretion of the 
 Consular Officer, but he will seldom err, if in their exercise he 
 maintains steadily in view the main object, viz : the developement of 
 one of more simple issues. 
 Agreement to There are many cases where both parties could easily agree as to 
 
 Fact or Law. the particular question of fact or Law to be determined between 
 them, and to iacilitate the settlement of such questions without 
 formal suit. Sections i to 9 inclusive have been framed. The great 
 difficulty is to prevent parties running into a rigmarole statement 
 mingled with reflections and argument. 
 
 Very often a forced viva voce account of what the one party wants 
 and the other party denies his right to, is an easy mode of getting to 
 the bottom of the subject matter in dispute. With illiterate persons it 
 mus't generally be resorted to, and the Consul or his Assistant should 
 take "down shortly in writing what the Person in the position of 
 Plaintiff claims, and the answer of the Defendant^-and having got 
 this down — he may even go a step further and point out that the 
 claim must be supported by evidence and that the answer, if it alleges 
 affirmative matter, must likewise be so supported and notice may 
 then also be given that upon a day to be fired, each side must come 
 prepared to prove his Statements by the production of evidence. At 
 the same time however, the Consul must guard himself from saying 
 that such or such evidence will be sufficient, for while he may point 
 Out what is necessary, he must not declare beforehand what will 
 Satisfy him oh the trial of the case, for if he does, each side will either 
 limit himself to the production of such evidence as he supposes the 
 Consul intended, and which in nine cases out of ten will, when pro- 
 duced, be found insufficient or a still worse consequence may he 
 produced by the parties setting themselves to work to fabricate the 
 evidence in support of their cases, 
 importance of Rules and Forms are however both useless if method, arrangement, 
 
 SS™ tolna'talt anQ dispatch in business be disregarded, and I cannot too strongly 
 don of Cases. impress upon Consular Officers from the lowest to the highest the 
 importance from a public as well as from a private point ot view, of 
 promptness in the dispatch of business. No case should be allowed 
 to linger on the files of the Court. The moment it is brought the 
 initiatory steps should be at once taken, and as soon as possible- 
 subject of course to the Rules of Procedure — it should be brought to 
 a Hearing and a decision. Nothing is so fatal to the interests of a 
 Mercantile Community as delay in the settlement of their differences, 
 and nothing renders the ultimate difficulty of deciding cases greater, 
 than their being allowed to drag on for months unsettled. In the 
 
27 
 
 same way as a good man of business immediately answers a letter 
 the moment it is received, so will an efficient Consular Officer see 
 that no case before him is allowed to linger. 
 
 If once the habit of prompt action in all judicial matters is adapted, 
 business becomes easy and the amount of time and labour which it 
 demands, will be found to be comparatively slight. 
 
 A great Statesman made it a rule to answer every letter he 
 received the moment he had read it, and no man ever got through 
 an immense correspondence with such extraordinary facility. 
 
 A regular system of filing, that is dating and registering every 
 paper the moment it is received, must be adopted, andevefy Consular 
 Officer should keep a series of Books of uniform size for the different 
 classes of entries he has to make. Thus every Consul must have a 
 Registration Book ruled in the following manner : — 
 
 
 
 "Register 
 
 of Plaints, fyc, 
 
 #c, #t 
 
 
 
 6 
 
 Ah 
 
 o 
 u 
 o 
 
 ' 1 
 
 i 
 
 1 
 
 DQ 
 
 •a 
 A 
 ■g 
 s 
 
 O 
 
 m 
 
 1 
 
 o 
 O 
 
 o 
 
 U 
 
 1 
 
 s" 
 i 
 
 p 
 to 
 
 i 
 
 13 
 
 a 
 <o 
 
 "4-1 
 
 R 
 
 ■O 
 a> 
 
 § J 
 
 Si 
 
 I" 5 
 
 dec 
 £ 5 
 
 a* 
 
 •a 
 © 
 bo 
 
 a 
 
 -8 
 
 O 
 
 
 
 
 ' 
 
 i 
 
 ■ 
 
 
 
 The moment a paper is sent in, it should be read. It should then 
 be numbered and filed, and the Fee that is due on it should be marked. 
 The above columns should then be filled up, and when this has been 
 done the proper order should be endorsed upon it. All papers 
 requiring to be served in a suit must be sent into a Consular Court 
 in Duplicate (See Mule 41) One is the original and remains in the 
 Court, .the other is a Copy and is served upon the Parties. On the 
 original are endorsed all the above matters which ought to be copied 
 at the foot of the Duplicate ,and a Certificate under theConsular Seal 
 stating that the Memoranda thus transcribed are true Copies of 
 those on the original petition, should be endorsed on it. Thus for 
 the sake of Example, I will suppose a Plaint is sent into a Consular 
 Court in the following form : — 
 
 fyu~ 
 
 Filing Papers. 
 
 oy 
 
28 
 
 Entry of Plaint 
 or Petition and 
 Proceeding there- 
 
 in 02 
 
 oo 
 
 el * 
 
 .83 
 
 ft 
 
 p 
 
 O eg 
 
 •CJ *£ ■ +a* 
 
 a3 « 
 
 a a » ~. 
 
 OM o 
 
 ■ -°^ "" 
 
 OS J3 
 
 h a o 
 
 *> a: 
 
 .5 » 
 
 a "e 
 
 *? 
 
 Registered No. 6, Received Slst August, 1866. 
 
 " In Her Britannic Majesty's Consular Court at 
 Chefoo. 
 "Between James Jones and John Smith, 
 trading as Jones & Co., Plaintiffs, 
 and 
 " William Hughes of the 
 
 Ship "Ann"— Defendant. 
 
 " To Her Majesty's Consul 
 
 "Sir, 
 
 " We beg to present a claim against William 
 Hughes, Master of the Ship "Ann" for stores 
 supplied to him by us at his request. We append 
 the Particulars of our demand* amounting to #500. 
 Although frequently applied to for payment, Mr. 
 Hughes has hitherto neglected to pay. 
 
 We therefore request he may be condemned to 
 pay us #500 with #15 for interest from the 1st of 
 January, 1866." 
 
 (Signed) James Jones 
 
 for Jones & Co." 
 
 * Note. — See Rule 28 as to Particulars of demand. 
 
 Service of Peti- 
 tion. 
 
 The Party to be served with this Petition is William Hughes, 
 Master of the Ship "Ann" lying at * * * 
 
 On this original document the Consular Officer should indorse the 
 particulars which are printed in Red Ink — and at the foot of the 
 Duplicate or Copy which should accompany it — these same particu- 
 lars are to be written thus : — 
 
 Duplicate Petition.. 
 
 Registered No. 6, Filed 21st August, 1866— Fee #6 ordered to 
 be communicated to the Defendant "William Hughes" of the Ship 
 "Ann" for his answer within 6 days. 
 
 I certify the above to be a true copy, 
 
 Samuel Williams, 
 
 Vice-Consul or Assistant. 
 
 This Duplicate or Copy is to be served (See Rule 42) on and left 
 with the Defendant, (See Rules 254 to 260) and the Officer serving 
 it will, on his return to the Court sign an endorsement of the fact 
 and the date of the service, which should be written on the Original 
 and copied into the proper Column of the Registration Book. 
 
29 
 
 All serving Officers should keep a Book in which they themselves serwceBookto 
 should enter a Memorandum of every service effected with the betept - 
 Particulars of it — namely when the document was served, on whom 
 &c, &c, or where left, as this Book will serve to assist their 
 memories when, as is often the case, it becomes necessary to prove 
 in Evidence the fact of the Defendant having been served. For 
 JnstanRe^i^fRQtjrrnst g.lways hg prnvafl rm Ontli ; when on th e day 
 appointed for the trial the Defendant does not appear— then service 
 must be proved, and when this is done the Plaintiff may proceed to 
 jr pve his clai m_amL gfit his verdict (f! />.p. Rule 77.) 
 
 Great attention should be paid to Rule 38 which has reference to Parties, Prinoi- 
 the Parties sued, not in the character of Principals, but of Agents p* 15 and A s ento - 
 for Principals. It is a constant habit here for Plaintiffs to sue people 
 as the Agents of others without seeking to entail any personal 
 liability on the nominal Defendant. Great confusion arises from 
 this practice especially when on Judgment being obtained, and 
 execution applied for, the question arise who is responsible and what 
 is responsible ? Had the Agent authority to appear as Agent and 
 defend the suit? who are the Parties on the Record? who is to be 
 the Defendant in the action, if it should hereafter be necessary to put 
 it in suit in Hongkong, India, Australia or England? 
 
 The only way of avoiding these points is to follow the Rules. 
 
 So also immediately it comes to the knowledge of the Court that Parties within 
 the Defendant is not within its jurisdiction, it should insist upon uon U oVc<rarL dlc ' 
 evidence that he has been properly served or that substituted service 
 has been allowed, or, if any Person appears for the Defendant, the 
 Court should require such person to produce or file a sufficient 
 authority in writing from the party on whose behalf such person is 
 affecting to act — and in default of evidence of service in the one case 
 or of authority in the other, the Court should refuse to proceed 
 further in the matter. 
 
 The same observations apply to answers to Petitions — to Affidavits 
 — to Motions — to Appeals, &c, &c. 
 
 The Book in which all Papers are registered will also serve as a Fee-Book. 
 check on the Cash Book in which are entered all the Fees received, 
 because the proper Column of it shows the Fee that has been paid 
 on every paper that has been filed. Besides this Book which must 
 always be open to inspection, and of which a transcript may at any 
 moment be required — the Consul must keep his own Judicial Note- 
 Book in which to enter his Notes of the trial of every case as alluded 
 to by me ante P. 22. 
 
 He will require also a Book in which to register the Estates of Registry of Es- 
 deceased Persons. This Book should be kept in the form of a Ledger P a e 'S n f 3 . Decea6ed 
 — each Estate having a separate Page or rather two separate Pages 
 — on one side of which will be credited to the Estate — with full 
 particulars — all the property received — the amount which, if sold, it 
 realized — in short every particular — and on the other side the 
 Disbursements made on account of the Estate. 
 
 Consuls cannot now charge any per-centage on the Estates of 
 deceased persons unless the Supreme Court appoints them Official 
 Administrators. Besides this Book another must be kept in ac- 
 cordance with the form given at Page 93 of the Rules. 
 
30 
 
 Book of Estates 
 of Bankrupts. 
 
 Answer to a Pe- 
 tition. 
 
 Settlement of 
 Issues. 
 
 Objections in 
 Law. 
 
 In the same way also a Book must be kept of the Estates of 
 Bankrupts in order that it may serve as a check on the Official and 
 Creditors Assignees. 
 
 When an answer is sent in to a Plaint, the Consul should see if it 
 contains some distinct averment or denial — if it does — all he has to 
 do is to serve it on the other side, and wait until he receives a 
 request from the Plaintiff that it should be put down for trial. (See 
 JRules 60 to 80) if such a request is made, he then fixes a day for the 
 hearing according to Bules 60 to 63 — but if from a perusal of the 
 Plaint and answer he cannot distinctly understand the issue, or 
 perceive the point in difference between the parties, he would do well 
 to proceed under Bule 58 and summon the parties before him in 
 order distinctly to ascertain the material question in dispute between 
 them — and this — or if more than one — these questions he ought to 
 reduce into writing and they will then supersede the petition and 
 answer, and form the issue or issues to be tried and determined, or 
 he may amend the Petition or answer, either one or both, so as to 
 bring prominently forward the real issues. This proceeding is 
 eminently of an interlocutory character. After the answer no other 
 paper in the form of a reply — ought to be admitted (See Rule 56) 
 and if any other appears to be necessary, then it is evident either 
 that the Plaint fails in expressing exactly what the Plaintiff wants, 
 or the answer is deficient in clearness — or sets up some matter which 
 admits the justice of the Plaintiff's claim but shows some reason 
 why he should not be entitled to recover it — such an answer may 
 take the ibrm of a set off under Bule 53 or of a Counter-claim under 
 Bule 55 or without putting in any answer, the Defendant may by 
 motion under Bule 43 pray that the Plaintiffs petition be dismissed 
 inasmuch as even, if true, the Plaintiff would not for some reason 
 or other which he is bound to assign, be entitled to recover upon it. 
 This 43 Bule supplies the place of what in England are called 
 "Demurrers" that is objections in Law to the Plaintiffs obtaining 
 the remedy for which he asks. This is what is called an issue in 
 Law and must be heard and determined in the same way as an issue 
 of fact, with this exception that it is heard on motion, instead of being 
 discussed on the trial of the case. If the Defendant succeeds in 
 convincing the Court that htis objection to the Plaintiffs receiving 
 that which he seeks is in Law a good one, the whole case falls to the 
 ground because the only issue between the parties was one of Law 
 and that has been decided against the Plaintiff — the Defendant 
 having rested his defence on that and on nothing else — he has by 
 taking out & motion to dismiss the Petition virtually said " granted 
 that every allegation in the Petition is true, yet I say by reason of 
 the Law being so and so, the Plaintiff is not entitled to recover or 
 he may say that he the Defendant is not in Law answerable." If 
 however the Court is not satisfied that the defence is good in Law, 
 it may under the same Section, order the Defendant to put in an 
 answer in reply to the facts and proceed to the trial of the case on 
 the issues of fact thus joined, and it should always do so when the 
 motion has only been taken out to try the question of legal liability 
 and where it is evident that the Defendant has also an answer on the 
 merits. Whether the issue is one of Law or of Fact the Court should 
 
31 
 
 decide it on a full and patient hearing, not admitting however of 
 adjournments except the justice of the case evidently demands it (See 
 Mule 274) and when able, the presiding Judge should deliver his 
 judgment immediately on the conclusion of the hearing (See Rules Judgment. 
 95 to 98) if however the Consul desires to consider the case, then he 
 may adjourn the delivery of his judgment — giving however due 
 notice when he will be ready to pronounce it. He should then also 
 make some order as to costs, either fixing the amount which the 
 losing side should pay, by naming a fair lump-sum or by decreeing 
 that each party should pay their own costs. On all questions of this 
 kind the Consul should exercise a sound discretion. 
 
 Rule 99 provides for the giving of any decision subjeot to a special Decision subject 
 case, being stated for the opinion of the Supreme Court. This does t0 a Speclal Case- 
 not mean however that the Consul is to jump to a verdict for either 
 the Plaintiff or Defendant and then leave the whole question of 
 whether he was right or wrong to be decided by the Supreme Court, 
 or that he should suspend his verdict for the opinion of the Supreme 
 Courts — whose verdict it would then be and not the Consul's — -but it 
 means that when there arises a distinct question of Law, and some- 
 times of fact, about which the Consul is doubtful or is unable to make 
 up his mind — he may give a verdict for the Plaintiff or Defendant 
 subject to the decision upon the particular question which the Court 
 above may arrive at. A special case briefly narrating the facts as 
 found in evidence before the Consul must then be sent up, and the 
 question reserved, distinctly stated upon the face of it, and to this 
 question alone will an answer be returned. I have said that it is 
 only "sometimes" on questions of fact that special cases should be 
 stated, because in deciding as to whether the evidence offered proves 
 or disproves a fact, a Consul has the same, if not better means of 
 judging, than the Supreme Court, and it is an important part of his 
 duty to make up his mind on such a subject. 
 
 If the parties are not satisfied with his decision they can appeal Appeal. 
 (See Mules 163 to 174) and on appeal, the Supreme Court can decide 
 whether or not the Judge below has correctly appreciated the facts 
 before him and given to each due and proper weight and value. In 
 pronouncing judgment it is competent for the Consular Officer to fix 
 a time within which the Defendant is to comply with it, and this 
 course in general prevents delay (See Mule 109). 
 
 On the judgment being given a minute of it should be made in the orders on judg. 
 Judge's Note-Book. Upon this minute — the Decree or Orders is ment " 
 drawn up (See Mules 105 to 115) and these should be headed with 
 the name of the case thus : 
 
 In Her Majesty's Consular Court at * * * 
 the 30th August, 1866. 
 John James — Plaintiff, 
 Between 
 
 Edward Edwards— Defendant. 
 
 On the hearing of this Suit it was this day decreed that the De- 
 fendant do pay to the Plaintiff the sum .,$500 with #25 costs of Suit. 
 
 Form of Order. 
 
 Seal of Court. 
 
 See Mules 105 to 115. 
 
82 
 
 Judgment Sum 
 
 mona. 
 
 When to Issue. 
 
 Proceedings after If after a Copy of this Decree has heen served on the person 
 service of order. re q U i r ed to obey it and he does not comply with it, two courses are 
 open to the party in whose favour it has been made — he may either 
 Execution against apply to the Court for execution against the goods of the disobedient 
 Goods. part y (g ee ftyigg nQ t0 128) or fa mav t ak e ou t WBa t j s called a 
 
 judgment Summons (See Rules 129 to 136) that is a Summons which 
 issues on a non-satisfied judgment for the purpose of bringing the 
 Defendant again before the Court in order that he may be examined 
 on Oath as to his means or ability of satisfying or obeying it, and as 
 to the circumstances under which the debt was incurred — and on 
 the hearing of this Summons he may be forced to make a full 
 disclosure of his Estate and property, and in the event of his not 
 having any, should it appear that he has been guilty of the conduct 
 mentioned in Rule 131 — he may be imprisoned, and after being 
 discharged, he may again be brought up if the judgment is still 
 unsatisfied, and be again committed, provided it appears that having 
 the means he still refuses to satisfy it, or that he has since his last 
 committement wilfully disabled himself from complying with it (See 
 Mule 134) but he will not be liable to be imprisoned a second time, 
 for any cause connected with the matter for which the debt was 
 incurred. If the Judgment Debtor when summoned to appear does 
 not present himself, a Warrant may be issued for his arrest and he 
 may be imprisoned for a short time, for not obeying the Summons. 
 
 Generally speaking, execution against the goods, or a Judgment 
 Summons, or a Warrant of arrest, under Rules 138 and 139 should 
 not issue until the time limited for appealing has elapsed (See Mules 
 154 to 162) but there may be circumstances when it may be neces- 
 sary to order execution of the judgment more or less quickly after 
 service of the decree or Order. The party against whom it is made is 
 then left to apply for leave to appeal, which, if he obtains it, acts as a 
 suspension of all other process, but the Court may under Rule 155 
 either direct the decision appealed from to be carried into execution, 
 or it may exact security as the price of its ordering its suspension. 
 
 Consular Oflicers cannot well refuse to grant execution on goods 
 on unsatisfied judgments, and it is therefore advisable that in 
 decreeing a time, within which their judgment is to be obeyed, they 
 take into their consideration the position and conduct of the party 
 against whom it is to be enforced. Many actions are the offspring 
 of spite and jealousy — often designedly postponed until a time when 
 the person against whom they are brought is least able to satisfy 
 them — and again many actions are defended that never ought to be 
 defended, and just claims are purposely unsatisfied until the party 
 has lost or made away with all the means of satisfying them. 
 
 These are all matters for a Consul in his judicial capacity carefully 
 to consider and he has, generally speaking, from his knowledge of 
 the position and character of his fellow-countrymen ample means 
 and opportunities of information on all such points, and he can 
 always largely avail himself of Rule 113 which enables him to direct 
 the satisfaction of any decree ordering the payment of money by such 
 Instalments as he thinks fit. 
 
 An honest man may be ruined by an unjustly hasty execution, 
 when if time were given him he could satisfy the debt — on the 
 
33 
 
 other hand it is to be borne in mind that an indefinite postponement 
 of an Order to pay, may enable a dishonest man to seriously injure 
 his Creditor. 
 
 An arrest of the " Person " is a far more serious matter — it is Personal Arrest, 
 abolished for debt — under £20 and when the debt exceeds that sum 
 it should not be hastily resorted to unless the debtor be guilty of the 
 Offences mentioned in Rule 131. There may however be flagrant 
 cases in which the plaintiff should be at liberty to arrest his debtor, 
 leaving him to obtain his release in accordance with the provisions 
 of the Bankrupt Acts. And under Rule 138 when money is not 
 in question, a Warrant of arrest may issue, the effect of which may 
 be to keep a man in Prison for a long period. 
 
 In some cases it may be expedient and even necessary to refer a Reference of 
 case to the decision of one or more persons. Account. 3 ° f 
 
 Questions of Account may at any time after the commencement of 
 a Suit be referred, and the Judge has power, even without the consent 
 of either party, to order the Accounts to be taken by some qualified 
 person {See Rule 58). Of course it is always desirable to get the 
 parties to agree to name some one, in whom they both have confi- 
 dence, and when this is done care should be taken to fix the fee or 
 remuneration which the Referee will be entitled to, otherwise diffi- 
 culties and objections are apt to arise at the last moment. "When a 
 Referee can be induced to take the case as a friend to both parties 
 and without fee, this should always be preferred. When it cannot 
 be done, the Consul should fix a reasonable sum, but it must be borne 
 in mind, that a Referee cannot be compelled to accept a reference. 
 
 In the course of a Suit however there may be many interlocutory interlocutory 
 proceedings (See Sub-division VI of Rules) to which it may be well Proceedings. 
 now to refer. It is in these proceedings that I have found most 
 irregularity to prevail. People are inclined to think that they are of 
 very little importance, that there is no necessity to keep a record of 
 them, and that they are beside the real merits of the case. No 
 mistake can be greater. There ought to be the same regularity in 
 granting or refusing a Motion, as in deciding the case itself, as both 
 flie grant or the refusal may seriously affect the ultimate decision. 
 The object of most, if not all interlocutory Proceedings, is to remedy 
 some error in the original proceedings or to get relief of some kind 
 or another — such as to hasten or delay some stage in the trial of a 
 cause — or to force one party to do some act which the justice of the 
 case requires — such as to find security for Costs — or not to leave the 
 jurisdiction of the Court, or to amend or consent to the amending of 
 some of the proceedings. 
 
 The mode in which such applications are to be made is very clearly Motions to show 
 explained in Rides 144 to 15& — and the widest discretion is given to Caus0, 
 Judicial Officers as to the allowing, varying or refusing them. As 
 a general Rule no Order on an interlocutory application, which 
 affects or may affect the interests or position of the other side in a 
 case, should be definitively made until an opportunity has been 
 afforded to such other side to object to it. The best course is to 
 summon the other party to appear on a certain day and show cause 
 why the Order prayed for should not be granted. This gives an 
 opportunity to the other side to read the Affidavits upon which the 
 
34 
 
 Motions. 
 
 Questions of Lair 
 or Fact. 
 
 application is based — to prepare others by way of answer to them, 
 and to consider the objections to the Order as asked. Care should 
 always be taken that statements of fact made in support or in op- 
 position to the application, if they are of such a nature as to influence 
 tiae Court in granting or in refusing it, should be made on Oath, 
 and in the form of an Affidavit (See 4th Paragraph of Rule 145 and 
 Mules 149, 151 and see Mules as to Affidavits 230 to 242). As a rule 
 if the parties have appeared by Counsel, Costs should on these 
 interlocutory proceedings be given to the side that gets the decision 
 on the application in his favour, but where the resistance to the 
 Order prayed for was reasonable, the Court may even if it grants the 
 Order, refuse to allow Costs and thus leave each party to pay their 
 own, or if it thinks the propriety or impropriety of the application 
 can only be ascertained by the ultimate decision in the cause, the 
 Costs may be left to be costs in the cause, in other words to be paid 
 by the party against whom the verdict is pronounced. When a 
 party desires to make a motion he should be told to make it in writing 
 in accordance with Form 8 annexed to the Eules and having paid 
 the Fee and filed his Affidavits — if any — (of which Office Copies 
 must be left or made) in the Office of the Court, the Consul should 
 consider whether the application is one that he can grant without 
 injury to the other side. If he thinks he can, he may do so, but if 
 as I have already said he thinks the application is one that may 
 possibly affect the other side, he should merely grant an Order 
 calling on the other side to show cause against it on a certain day — ■ 
 and if no cause is shown, then he may grant it, but an appeal will 
 lie from the Court below to the Supreme Court in all cases where 
 the Order appealed from has not been made ex-parte — that is — on 
 the simple application of one party only (See Mule 153). 
 
 In hearing Motions Consuls should pursue the same course as on 
 hearing causes — they should take Notes in their Note-Books heading 
 the Motion as of the cause — state who appeared — refer to the 
 affidavits by the registered numbers — and shortly state the argu- 
 ments offered on both sides and then conclude by a Note of the 
 decision. The mode in which the Record of an appeal from a 
 decision on a Motion is made up is stated in Rule 176 and Rules 
 175 to 178 regulate the Proceedings. 
 
 In actual practice there will be found many cases in which both 
 parties can, as I have before mentioned, if it is suggested to them, 
 easily agree upon the particular question of Law or of Fact in 
 difference between them, and to facilitate the settlement of such 
 questions, Rules 1 to 9 were specially framed. All that the Parties 
 have to do is to consent to leave such and such questions to be 
 determined by the Consul. The questions must of course be reduced 
 to writing — the Consul is then to summon the parties before him 
 and having satisfied himself that the question or questions is or are 
 not idle, but that they have a direct interest in their determination, 
 may make an order in which he embodies the question as in Form 1 
 and the case proceeds as at an ordinary hearing — if it is a question 
 of Law, the Consul can hear such legal arguments as the parties 
 think proper to offer in support of their respective positions — if a 
 question of fact — then he will have to hear the evidence which both 
 
35 
 
 sides may bring- to support the statement that either of them has 
 made. The Fees on such cases must be calculated on the same basis 
 as if the case was tried in the usual way — and the mode of taking- 
 Notes — delivering judgment, &c, &c, are identical. 
 
 In the grant of Summary Orders before suit (See Mules 179 to Summary orders 
 182) the greatest precaution is absolutely necessary. * ef0 ' e Sait- 
 
 Nothing but "extreme urgency" will justify a Consul acting 
 under this Rule and he should carefully see that the immediately 
 following Rules are complied with. 
 
 The remainder of the Rules are so clear that it is unnecessary for importance of 
 me to enter into any more explicit explanation. The best way of Sceto EutoT'of 
 recollecting them that I can suggest is for the Consular Officer to Procedure, 
 refer to them for his guidance whenever he is called upon to do any- 
 thing about which they treat. If this is done, a dozen of such 
 references will soon impress them on the memory and render unne- 
 cessary constant reference, except in particular cases. Thus when an 
 affidavit is tendered to a Consul, he should at once turn to Rules 
 230 to 242 and having carefully read them through, see that the 
 affidavit before him complies with the essential requisites. So with 
 reference to arbitration — the course to be pursued under the head of 
 Probate and Administration — and indeed under all other subdivi- 
 sions. — The Consular Officer must endeavour to recollect, and if he 
 cannot- recollect, he must take the trouble to refer to the Index to 
 see if any and what provisions are applicable to any particular case 
 or circumstances that may be before him. 
 
 On many occasions I have had to send back cases, and in many 
 cases to dismiss them, simply because the Rules as to Attorneys and 
 Agents — Proceedings against Partnerships or where the Plaintiff 
 was out of the jurisdiction, — service, &c, &c, &c, had not been 
 complied with. In almost every instance the Consular Officer stated 
 that he had no knowledge of the Rule — the non-observance of which 
 had entailed loss, expense and delay to the Parties. Yet the Rule 
 existed, but had not been referred to. While I am now writing — 
 an affidavit is put into my hands having come down from a British 
 Consulate. It appears to have been sworn before two Consuls at 
 different Consulates — but whether by one Deponent before two 
 Consuls — or by two Deponents — each deposing before the Consul 
 of the district within which at the time of swearing he happened to 
 be — or which Consul swore which Deponent — is on the face of the 
 document a profound mystery. If a reference had been made to the 
 Rules this complication of difficulties would have been avoided. 
 
 It appears unfair to presume that neither Order in Council or 
 Rules of Procedure have been read — yet not to presume it in many 
 instances would lead to the less complimentary conclusion that if 
 read, they had not been understood. 
 
 In addition to the Rules framed by myself under the power Rules frames by 
 specially conferred by the Order in Council there are others framed S'pekfu'or" 8 ' 6 ™ 
 by Her Majesty's Minister at Peking to which Consular Officers *eddo. 
 must pay attention. The first of those recently published is for the 
 Registration of Mortgages — the second for the Registration of Bills Registration of 
 of Sale, and the third enables parties to sue .the Agents of quasi Juis^fSaie. 
 Companies or Co-partnerships in those cases where the individual suits against 
 
 Partnerships and 
 Agents. 
 
36 
 
 Members or Co-partners of such bodies are not known. This Re- 
 gulation is an important one and should be carefully read over by 
 all Her Majesty's Judicial Officers in China and Japan, as it not only 
 alters Rule 252 very materially, but at any moment Consuls may be 
 called on to give course to suit commenced ag'ainst the Agents or 
 one of the Partners of any one of the numerous unincorporated 
 Companies which exist in both these Countries, and unless this new 
 Regulation is carefully attended to and acted on, great delay and 
 loss may be the result in the judicial settlement of this class of cases. 
 It is needless to observe that the Agent or Member of such Co- 
 partnerships so sued must be a British Subject, otherwise no British 
 Consular Court can exercise any jurisdiction over him. 
 importance of A variety of Miscellaneous information as to the conduct of 
 
 Levant'circuiar judicial business will be found in the Extract from the Circular 
 Letter. Letter addressed to the Levant Consuls and reference is now parti- 
 
 cularly made to that portion of it which treats of the different steps 
 in an Action — of Damages, — of Evidence — and of Bankruptcy. 
 Distress oy Land- It may perhaps be as well that I should mention a mode by which 
 lord " a Landlord can obtain his rent other than by an action of Debt, and 
 
 also a process by which he can recover possession of the premises 
 themselves— neither of these processes are alluded to in the Rules of 
 Procedure, but as they are sometimes resorted to by persons in the 
 position of Landlords, or of Owners of property out here, it may be 
 1 useful briefly to refer to them. These remedies can of course only be 
 enforced against British Subjects, because where the Tenant or party 
 in possession is a foreigner, recourse must be had to the foreign tribu- 
 nal. In England a distress for Rent in arrear, can be put in by a 
 Landlord without the intervention of a Court of Justice. Here it is 
 most inexpedient that such a remedy should be resorted to without 
 the knowledge and consent of the Consular Officer, inasmuch as it is a 
 proceeding calculated to cause a breach of the Peace and also because 
 there are no sworn brokers or appraisers of Property. Before such 
 consent should be given the Consul should satisfy himself that a 
 tenancy has been created — that a distinct agreement has been entered 
 into by which a fixed rent at fixed periods has been reserved — that 
 there has been an occupation under such agreement — that rent is in 
 arrear — and unpaid, and that due application has been made for 
 payment of it. The facts should all be clearly stated on Affidavit. 
 A W arrant may then issue under the Consular Seal authorizing the 
 entry on the Premises and the seizure of the goods therein, and after 
 the lapse of five days, the sale of so much of the goods and chattels 
 of the Tenant as may be found in the Premises may be made to satisfy 
 the rent in arrear and the costs of executing the Warrant of distress. 
 Immediately on the entry of the Officer — he should produce and read 
 to the Tenant, or any one in Possession, the Warrant, and if pay- 
 ment of the sum endorsed on it is not tendered, he should proceed 
 to make an Inventory of sufficient goods to satisfy the amount. 
 Some person should then be left in possession, but care should be 
 ' taken, not to seize more than is absolutely requisite to cover the 
 rent, costs, and Expenses. 
 Proceedings to To recover possession of Premises, if it is the Landlord who claims 
 
 sionof premises, he should state in his Petition that the Tenancy has expired either 
 
37 
 
 by notice to quit — effluxion of time or otherwise — and this he must 
 prove on the Trial to entitle him to a delivery of the possession of the 
 Premises — the Petition must state all the facts of the Tenancy, &c, 
 &c, and it must be served on the Tenant or Tenants in possession 
 whether they are sub-Tenants or hold direct from the Petitioner. 
 Any one can come forward and defend the rig'ht to the possession, 
 but he, as well as a Tenant or occupier, is liable to be called upon to 
 give security for Costs to be paid to the Petitioner in the event of his 
 — the Defendant's — non-success. At the trial — the Plaintiff must 
 show either that he is the Owner — or that he is in the position of 
 Landlord. A Defendant may dispute his right to the Ownership 
 and show it is in himself or in some else, but he cannot open up 
 any such question if the Petitioner proves that the relation of Land- 
 lord and Tenant existed between them — inasmuch as it is a rule of 
 Law, that a Tenant cannot dispute the title of his Landlord. If the 
 Petitioner succeeds in satisfying- the Consular Officers that the Oc- 
 cupier is a trespasser having- no right, or being- a Tenant his rig-ht 
 has expired and determined, a judgment may pass for the Petitioner 
 ordering possession of the premises to be given up to him, and under 
 such a judgment, an order may be drawn up, and on this Order the 
 proper Officer of the Court may oust the party in possession and give 
 the same to the Petitioner. 
 
 These remedies are not often resorted to out here, nor should they 
 too hastily be permitted. At the same time cases may arise requiring 
 that they be resorted to, and in such cases the Consular Officer is 
 bound to see that they are not abused by irregularity or unnecessary 
 harshness. 
 
 For "Distress" see Woodfalls' Landlord and Tenant and Stephens' 
 Blackstone 3 Vol. 1 356 et seq. — and for " Possession " see Common 
 Law Procedure Act, 15 and 16 Vict. Ch. 76, Sec. 210 et seq. 
 
 In the same way and with the same formalities as are to be importance of 
 observed in the conduct of Ordinary Civil and Criminal cases, should procedure to 
 Consuls conduct Civil or Criminal cases of a summary character summary cases. 
 under which latter head must be classed the Criminal sections of the 
 Merchant Shipping Act. 
 
 In the Consul's Note-Book should appear the date of the trial — 
 the names of the Parties — the cause of Action — if a Civil case — or 
 the alleg-ed Offence if a Criminal case — the number of the Summons — 
 the evidence adduced by the parties — and the judgment — so that at 
 any time a reference to the notes will bring- the whole case before 
 the mind of any one under whose notice it may at any future time 
 be brought. 
 
 No instructions to Consular Officers on the subject of their Judicial Consuls, and Mu- 
 duties would be complete without at least reference to that branch of &c!f&c?,°&c. clls ' 
 them which arises out of the position in which they stand towards 
 their countrymen to whom has been delegated, or who have assumed, 
 towards and amongst each other the responsibilities, within the 
 different concessions at the Treaty Ports of China and Japan, of a 
 system of self-g-overnment. 
 
 "Whether this Government, so far as it extends, is carried on by a 
 Municipality or by a Committe of Land-renters, the Consul will 
 always be called on to play an active part in reference to it, because 
 
38 
 
 in him alone resides all coercive authority. No taxation can be 
 compelled without his decree. No Police regulation enforced except 
 by his Order. 
 
 Now the source of the Authority of Consuls in the matter of these 
 quasi local Governments, and of these self-governing powers them- 
 selves, is almost the same. They both spring from the Powers which 
 it has pleased Her Majesty to give to her Diplomatic Representatives 
 in China and Japan for the preservation of peace, order and good 
 government amongst Her Subjects residing in or resorting to those 
 Countries. Therefore all Rules and Regulations which have these 
 ends in view, and which are framed and promulgated by the Re- 
 presentative of the Crown are binding on British Subjects. The 
 Machinery which is employed to bring them into action may be 
 different, but the Motive power is the same. In one place the 
 Minister may delegate his powers within certain limits to a Com- 
 mittee of Land-renters — to the elected of Tax or Rate payers — or to 
 any other body. In another place, he may confer it on the Consul 
 alone — but inasmuch as in almost every case funds would be required 
 to carry put the most ordinary measures of public advantage and 
 utility, it is not likely that the task of levying or administering 
 such funds would be thrown on the Consular Officer — and there 
 would be besides grave constitutional difficulties in the way of such 
 a proceeding. It may therefore be assumed that wherever there is a 
 sufficiently large Community, the task of providing for their wants 
 as a social body will be left to the Community themselves, but always 
 in consequence and by virtue of some regulation to that effect ema- 
 nating from the Chief Diplomatic Authority: while, as I have before 
 said, the task of giving an executive or compulsory effect to such 
 measures as the Community may determine amongst themselves in 
 the interests of the public to be necessary, will be left to the Consul. 
 It is therefore to these Regulations the Consul must look before he 
 exercises the authority vested in him, to see if what be is asked to 
 do, is within the limits of the delegated powers conferred on those 
 who ask him to enforce any rule made by them. Within such limits 
 he may safely act and enforce action, beyond, his own power as well 
 as theirs, is absolutely nil. A Consul of his own motion has no 
 power to impose a Tax or a Rate or a Due r — he cannot make a Port- 
 regulation or license a public House or a place of amusement — neither 
 can he (except at his own Expense) build a road, or enforce sanitary 
 regulations. 
 
 But Her Majesty's Minister may enable a Community to tax 
 themselves for all these purposes, and make regulations to the same 
 effect, and he may also give an authority to the Consul to enforce 
 regulations so made, provided that what is done, is done and is 
 necessary to be done for the peace, good order and government of 
 British Subjects residing in or resorting to China and Japan. At 
 the same time there are Offences against good order, which although 
 generally breaches of special Municipal regulations are also not un- 
 frequently breaches either of the Common Law or of the general 
 Statute Law of England, and these may be punished under the 
 general Magisterial powers, possessed by Consuls. Thus for in- 
 stance, it may not, in the absence of a special Municipal regulation, 
 
39 
 
 be an Offence to have a Dung Heap or a Deep hole outside a man's 
 door, but if a direct injury to an individual results therefrom and 
 can be proved, the party injured has a remedy by action — so also 
 quick driving' through a settlement may not be an offence per se 
 when no Municipal Regulation has made it one, but if any one is 
 injured by such driving, such injury is a fair ground of complaint 
 and is punishable — if wilfully done — by the Criminal Law, and if 
 not so wilfully done by an action for damages. 
 
 As I intimated at the beginning of this letter, most of the observa- 
 tions and explanations I have offered on the Order in Council and 
 Rules of Procedure, have been called forth by queries actually ad- 
 dressed to me during the past year, and to which I have from time 
 to time replied. I take this opportunity of making these replies 
 generally known, and I trust, whether considered pertinent or ne- 
 cessary by all H. M.'s Consular Officers, they will be received in the 
 spirit in which they are made — namely to assist all in the carrying 
 out of a system established and devised for the general benefit. 
 
 Yours &c, 
 
 EDMUND HORNBY. 
 
 Extract from General Instructions to Her Majes- 
 ty's Consuls in the Levant by the Judge of the 
 Supreme Court, revised and rendered applic- 
 able to H. M.'s Consuls in China and Japan. 
 
 Supreme Court. 
 
 The Provincial Courts must look to the present Order in Council 
 and the Rules as wholly con taining withi n themselves the codes (so 
 to speak) of law and ofproceaure wfiicfiTfiey areTo administer. 
 Where the Order and Rules contain no express and specific provision 
 on any point of law or of procedure, there the law and practice of 
 England must be followed, so far as is practicable, and subject also 
 to the continuance of any convenient practice of a Consular Court 
 which is not in conflict with any part of the system established by 
 the present Order and Rules. 
 
 I need scarcely, however, point out that my remarks are only in 
 the nature of comment and elucidation, that the Order in Council 
 and Rules form the Consular Officer's authoritative guide, and that 
 it is his duty to study and make himself thoroughly master of their 
 contents. 
 
40 
 
 Jurisdiction of 
 Consular Court. 
 
 Reconciliation. 
 
 The relations of the Consular Courts in the different Treaty Ports 
 of China and Japan to the Supreme Court are defined with exactness 
 in the Order and Rules, and the mode in which appeals to the Su- 
 preme Court are to be prosecuted is precisely laid down. It seems 
 to me unnecessary therefore to dwell on this part of the system, 
 however important, and although to a considerable extent remodel- 
 led. I will content myself with drawing special attention to the 
 fact, that while the jurisdiction of a Consular Court at the Ports is 
 in most respects complete in cases coming within the scope of its 
 authority and arising within its own local jurisdiction, yet the Su- 
 preme Court is in all cases invested with a concurrent jurisdiction, 
 so that where the circumstances render it desirable, any case may 
 be originally and in the first instance heard and determined by the 
 Supreme Court wherever it may arise, in China or Japan. 
 
 This general jurisdiction of the Supreme Court may be exercised 
 either at Shanghai or on the occasion of the Chief Judge or a legal 
 officer of the Supreme Court visiting, in a judicial or magisterial 
 capacity, a Consular Court in the Provinces. Such visits may be 
 compared in some respects to the circuits of the Judges of the 
 Superior Courts in England. 
 
 It will probably be in most cases convenient that civil suits heard 
 by the Supreme Court under this branch of its authority should be 
 brought up to Shanghai, but that criminal prosecutions should be 
 disposed of on the spot, especially where the witnesses are numerous, 
 or the case is a grave one and a local example of punishment is 
 required. 
 
 It will be the duty of the Provincial Courts, including the Supreme 
 Court, to reciprocally assist in carrying on the due administration 
 of justice under the Order in Council and Rules, by executing one 
 another's decrees and orders, taking examinations of witnesses, serv- 
 ing summonses and petitions for one another, and, in short, in every 
 way facilitating to the best of their ability, and according to the 
 exigency of the case, the prosecution of a suit or proceeding, civil or 
 i criminal, pending in any part of China or Japan. 
 
 The obligation of promoting the reconciliation of persons between 
 whom differences may arise is expressly laid on the Courts by the 
 Order in Council. The duty is one which ought to be discharged 
 with firmness, but at the same time with tact and discrimination. 
 
 Every encouragement and facility should also be given by the 
 Court to arbitrations. 
 
 And where the questions in dispute are simple and clear, the. 
 parties should be advised or directed to have recourse to the modes 
 prescribed at the beginning of the Rules for obtaining the decision 
 of questions without the formalities of a suit. In this way contro- 
 versies on ma,tters of fact may be readily and advantageously disposed 
 of by any Provincial Court, while the parties can with ease obtain 
 the opinion of the Supreme Court on any point of law which may 
 be involved in the controversy between them. 
 
 There will, however, necessarily be a large proportion of cases in 
 which, for a variety of reasons, no determination can be come to 
 without regular proceedingsin Court. I shall now turn to the con- 
 sideration of this class of cases. 
 
41 
 
 The great bulk of judicial business must always consist of what of what Judicial 
 are known as civil suits, that is, cases where one party claims either ^ST ° Mefly 
 a debt or damages from another, or seeks to have his adversary 
 ordered by the competent authority to do, or to abstain from doing - , 
 some particular thing. It will be proper to consider this large 
 branch of judicial business in the first place, and apart from such 
 special branches as bankruptcy, the administration of intestates' 
 property, &c, because not only is it the most common of all the 
 methods of legal proceeding, but moreover it involves the principles 
 which permeate every branch of the law as administered in England. 
 So that a person who has a knowledge of the true principles on 
 which the English procedure in civil suits is based, finds no diffi- 
 culty in bringing that knowledge to bear on any special branch of 
 law which he may unexpectedly be called on to administer, and is 
 consequently enabled to master these particular branches, in cases 
 where difficulties arise from a want of special direction, by a recur- 
 rence to the general and first principles from which all rules are 
 supposed to be derived. I propose, then, first to speak of the prin- 
 ciples of procedure in civil cases, using all these words in the widest 
 sense. 
 
 A civil case or suit between parties may be considered as a refer-- 
 ence by one to the civil authority of a claim which he asserts against 
 the other, and it is a reference which the adversary is obliged to 
 accept. By whatever form of process such a proceeding is begun, 
 the plaintiff's object ought to be to show, that under a certain state 
 of facts which has arisen, he has a right in law to demand that a 
 certain order be made by the civil authority, whether calling on the 
 defendant to pay money to the plaintiff as a debt, or as a compensa- 
 tion, or as damages; or, in a certain class of cases, where the principles 
 of law recognize a right of interference, calling on the defendant to 
 do, or to abstain from doing, some particular act. The essential 
 points are, that on such and such facts (which the plaintiff, if they 
 shall not be admitted, must be ready in due time to prove, so far as 
 they are necessary to support the right), he, the plaintiff, has a right 
 in law, to a certain judicial order on the defendant. 
 
 Special provisions are made by the Rules for summary procedure Sumtnory Proce- 
 in cases where the plaintiff claims less than 100 dollars '(Mules 10 to duce - 
 12), and for the administration of the property of deceased persons 
 (Mules 13 to 17); but although these provisions are calculated to be 
 of very extensive and beneficial application, I think the observations 
 which I am about to make on the more formal proceedings originated 
 by petition will be sufficiently explanatory of these summary provi- 
 sions also. 
 
 The summary procedure on bills of exchange, &c. (Rules 18 to 
 25), it is to be noted, is applicable in all cases where proceedings are 
 instituted within six months after the bill or other instrument be- 
 comes due and payable, without any limitation with respect to the 
 amount for which the bill or other instrument is drawn. 
 
 These provisions are of great importance as affording an ex- 
 tremely rapid and simple process for the enforcement of mercantile 
 obligations. 
 
 The ordinary form of commencing a suit is by a petition. This Petition, 
 
42 
 
 has hitherto often been in the shape of a letter to the Consular 
 authority; and although a more formal document, such as is indi- 
 cated in the Rules, is desirable, and ought to be required by the 
 Court, wherever possible, yet it is not intended that a person apply- 
 ing- to the Court for relief should be absolutely precluded from 
 communicating by a mere letter, for there are many men who can 
 ■state a ground of claim, and express the relief they seek, and assert 
 their title to it, in this familiar form, who would be quite puzzled to 
 draw anything which resembled a declaration, or a short claim or 
 bill in Chancery. 
 
 In matter of form, the only thing. »which appears absolutely 
 requisite is, that the name of the party sued should be placed 
 conspicuously on the paper; and the relief desired be distinctly 
 asked for, so that a defendant may know what is sought from him, 
 and the Court may know what it is asked to do : but under whatever 
 form clothed, these essential particulars must be contained in the 
 petition, and if it falls short in this respect, it is either defective or 
 altogether and radically bad. It is defective, where the facts are 
 contained only inferentially, or in such a manner as not to enable 
 the defendant to lay his hand on each separate material fact, and 
 say, "I admit this," or, "I deny this;" the facts to support the legal 
 right must be, and must be stated to be, actual facts : it is defective, 
 if certain facts really existing and necessary to support the claim or 
 right, are omitted and passed over, which continually arises from the 
 ignorance and want of care of the person making the claim: it is 
 defective, where the relief demanded is not properly demanded, 
 although the facts stated, if proved, would give a right to some 
 other relief: it is defective again, where the facts are not stated with 
 such particularity as to give the defendant sufficient notice of the 
 nature of the claim made against him, and of the transactions in 
 respect of which it is made. On the other hand the claim is bad, 
 either when it is made against a wrong person altogether, or when 
 all the material facts are fully stated, and on all the facts there does 
 not actually exist, as a legal consequence thereof, the right to the 
 relief asked, or to any relief capable of being granted under the 
 petition. 
 Division of De- It appears to me that this division into defective and bad claims 
 CMms. an,ma * s one which is convenient to be observed and acted on in places 
 where competent professional assistance is most difficult, if not im- 
 possible to be obtained; and the result of an objection to the petition 
 or claim ought to depend in a great measure on the question, to 
 which of the two classes any claim open to objection should be 
 referred. 
 
 It is obvious, that if the "claim," "petition," "letter" (by what- 
 ever name, in short, it may be called), is "bad," in the sense in 
 which I have used that word, then it must fail altogether, no amend- 
 ment being possible, and it must fail at any period of the suit 
 at which its "badness" is brought to the knowledge of the Court. 
 It is the defendant's duty, and it would generally be his interest 
 to bring this badness to the notice of the Court at the very earliest 
 period. This, in English practice, is done by what is technically 
 called "demurring," and is founded on a supposed admission of 
 
43 
 
 the absolute truth of all the facts alleged in the pleading demurred 
 to; the party demurring contending only, that on these facts as 
 appearing on the face of the pleading the claimant has not the right 
 in law which he claims. The result in English practice of a failure 
 in sustaining this exception is sometimes final judgment, the party 
 not being permitted to dispute the facts once admitted; in other 
 cases, he is allowed to have admitted the truth of the facts only for 
 the purpose of his argument, and on his demurrer being overruled, 
 is at liberty to answer or plead, denying all or any of the facts.' In 
 the Consular Courts, I am of opinion that the most convenient course 
 is that which the Rules lay down {Rule 43), namely, that the de- 
 fendant is to be taken as admitting the truth of the allegations of the 
 petition only for the purpose of argument, and that with the leave of 
 the Court he may afterwards controvert those allegations by his 
 answer, if his motion to dismiss the petition on grounds of law fails. 
 
 If the claim or petition is not bad, but only defective, then the 
 result of the discovery of the defect, when brought to the notice of 
 the Court, either at or before the hearing, ought to be that the 
 plaintiff must remedy the defect, and pay the costs to which his 
 carelessness, neglect, or ignorance has put the defendant, as well as 
 the costs of any necessary adjournment for the purpose of amending; 
 but it is the defendant's duty, in cases where the claim is defective 
 by reason of some uncertainty, or want of information sufficient to 
 enable him to answer, to bring the matter forthwith before the Court 
 to have the claim made more precise and full; and where a defend- 
 ant fails in doing this, either from neglect or ignorance, or to ensure 
 further delay, when the defect in the claim does become manifest at 
 the hearing, he must not expect to recover costs from the plaintiff 
 for an injury, the remedy for which he had in his hands and has 
 neglected to use. 
 
 It is proper to say a word or two on the irrevelant, and often Answers. 
 personally abusive matter with which petitions and answers are 
 filled. I think it desirable to discourage lengthy pleadings, and a 
 constant interchange of them in the same suit. It is obviously 
 proper to force parties to omit offensive imputations foreign to the 
 subject, and not to put in mere abuse, under any circumstances. 
 The length of written pleadings here, and their number, were under 
 the old system enormous, and in many cases it would have been 
 difficult for any human being to ascertain from some of the later 
 papers in a cause, what was the subject of the original suit; the 
 cause was delayed, the parties irritated, and the expenses increased 
 beyond all bounds by this constant interchange of documents, which 
 for the most part raised either no issue or only immaterial and 
 collateral ones, and the Court had at last, with labour and difficulty, 
 and without any corresponding certainty of achieving success, to 
 fish out from this mass of matter the real question or questions in 
 dispute. 
 
 The claim of the plaintiff must, of course, be communicated to the Special Appiiea- 
 defendant, and as a general rule this must be done before any step 
 whatever is taken by the Court in relation to it, but there are certain 
 exceptional cases known to the English law, and familiar to the 
 practice of the Consular Courts, in which the Court, on the applica- 
 
 tions to Suits. 
 
44 
 
 Orders to hold to 
 Bail. Sequesters. 
 Detention of 
 Ships. 
 
 Evidence neces- 
 sary to hold to 
 Bail. 
 
 tion of the plaintiff, and for the purpose either of preventing' irre- 
 mediable mischief, or more generally of securing- its own efficacious 
 jurisdiction over the party sued, or some particular property in 
 dispute, interferes by an order affecting the interest of the defendant, 
 and made in his absence. 
 
 Of such cases are orders to hold to bail; orders of sequester on 
 property; and orders to detain ships; and also a class of orders in 
 the nature of ex parte injunctions in the English Chancery practice. 
 If 'I may judge by the experience of Consular Courts, and from 
 the information I have sought for and obtained, applications of this 
 description are amongst the most common, and, at the same time, 
 there is often no more delicate task that can be imposed upon a 
 Judge than the granting or refusal of such an order. The very 
 peculiar circumstances under which British subjects reside here, and 
 the nature of their mercantile pursuits, which often makes it neces- 
 sary for them to leave one place for another at a short notice, even 
 when they have every intention of returning, render it easy to supply 
 so much of the material for an application to hold to bail as consists 
 in the intention of the defendant to leave the jurisdiction, while the 
 consequences of a legal detention are frequently serious to mer- 
 cantile enterprise, and must be always detrimental to the credit of 
 the party. There is no one thing that a mercantile man has a 
 greater aversion to than to ask another to be his bail; nor is it 
 always easy, at a very short notice, to pay money into Court. Again, 
 the consequences of sequestrations granted on property are too often 
 serious in the extreme, — loss of credit, loss of markets, loss of custom, 
 especially from foreign merchants, who only know that they are 
 disappointed in the promised delivery of goods which they had a 
 right to expect. But if it should be said that these evils are some- 
 times inseparable from the general use of a just and beneficial 
 remedy, I must remark that not only do the exceptional circum- 
 stances of trade in China and Japan make the proper use of this 
 Particular remedy more difficult, and the concomitant evils much more 
 ■equent and severe, but also here at least, it is sought to be used as 
 a method of pressure for forcing some settlement of justly disputable 
 claims, to a degree which makes the greatest care and caution ne- 
 cessary on the part of every judicial officer in dealing with applica^. 
 tions of this nature. 
 
 The evidence to support the application must be the same as on an 
 application to hold to bail, which I shall now proceed to consider. 
 
 Before granting an order to arrest and hold to bail in a civil 
 suit the Court must be satisfied that there is a debt of 201. or its 
 equivalent in dollars or upwards owing to the plaintiff, and then 
 payable from the person against whom the application is made; or 
 that the plaintiff has a cause of suit against the defendant to the 
 amount of 20/. or upwards, or has sustained damage to that amount, 
 and that there is probable cause for believing that the debtor or 
 defendant, unless he be forthwith apprehended, is about to quit 
 the jurisdiction, with intent to avoid or delay the plaintiff, or with 
 intent to remain out of the jurisdiction so long that thereby the 
 plaintiff will or may be delayed in the recovery of the debt or dam- 
 ages. Also, a suit must have been already commenced (See Rules 
 
45 
 
 1?9 to 182 and see Rule 261), except, in those cases of extreme 
 urgency where the Court thinks itself justified in taking the plain- 
 tiff's formal undertaking to hegin a suit within a certain definite 
 number of hours or days. It is obvious that no judicial officer ought 
 to be satisfied of these particulars except on the oath, or affirmation 
 where allowed by law, of one or more person or persons; and it is 
 the practice in England, and must not be relaxed here, to require 
 affidavits, that is, written statements on oath (or affirmation where 
 allowed by law), wherein the debt is positively sworn to as then pay- 
 able by the party against whom the application is made, or contain^ 
 ing positive statements of facts by which the Judge is satisfied that 
 the plaintiff has a cause of action against the defendant to the amount 
 of 20Z. or upwards ; and the affidavit should not only contain a state- 
 ment of the positive belief of the deponent as to the approaching 
 departure from the jurisdiction of the defendant, and of his intention 
 thereby to delay, or its probable effect in delaying the recovery of the 
 debt, or the other remedy on a judgment, but it should contain a 
 statement of the facts on which that belief has been formed and is 
 founded, for it is the Court that is to be satisfied. And where the 
 facts are acquired at second hand, either an affidavit of the informant 
 should be obtained, or a reason given why that has not been done, 
 and the name of the informant, and time, place, and circumstance 
 of the information, should be supplied. 
 
 With reference to the meaning that should be attached to the Meaning of term 
 words "out of the jurisdiction," in practice I am inclined to lay ^^< ot Juris4i ' ! " 
 down that they should generally be construed with reference to the 
 intention of the defendant, to go and remain for some substantial 
 time altogether out of the jurisdiction of the Consular tribunals in 
 China or Japan: but in this matter, where customary procedure 
 ought to go for much, I am desirous to leave a discretion to the 
 several Consuls. It would be hard to prevent a man who was living 
 at Ningpo or Chefoo, but whose affairs might call him imperatively 
 to proceed to Shanghai, and remain there for some prolonged period, 
 from doing so without finding bail to an action which might be 
 prosecuted as effectually and readily in his absence, if he left after 
 service of the petition, more especially as it will henceforth be the 
 duty, as it has been heretofore I understand the practice of every 
 Provincial Court to execute the judgments of the Courts of other 
 districts. On the other hand, to allow a debtor to remove from 
 Shanghai to Calcutta, would be often attended with the greatest 
 possible risk of losing that security which control over the person of 
 the debtor is supposed to afford. 
 
 On the whole, I repeat that this point ought to be left to the 
 discretion of the several Consuls, whose duty it is to hold an even 
 scale between the parties, and leave all reasonable freedom of action 
 to the debtor which is not inconsistent with reasonable security to 
 the creditor. 
 
 The Judges in England will not readily hold to bail except on a Damages ought to 
 distinct affidavit of debt, or of damages capable of being then ascer- be " liquidated." 
 tained; therefore no claim for mere damages, altogether unliquidated, 
 ought, as a general rule, to support such an application. 
 i. When the application is made by a foreign subject, even still more Foreigners «e- 
 
 | plying. 
 
46 
 
 Consul to exer- 
 cise discretion. 
 
 Sequesters. 
 
 Injunctions. 
 
 caution is necessary, for from the fact of the foreign nationality, one 
 great check on reckless assertion is withdrawn. I apprehend that 
 it would he a difficult task to procure the certain and adequate punish- 
 ment of a foreign subject .detected in perjury in such a case; at all 
 events, I am sure the fear of such punishment would not be present 
 to the mind, so that increased care, before acting, is the only 
 safeguard. 
 
 Finally, it is to be borne in mind, that it is in the discretion of 
 the Consul to refuse the Order, even although he be satisfied that 
 the defendant is about to depart the jurisdiction; but if he is satis- 
 fied of the intention or effect of the proposed departure, and of the 
 claim in debt or damages, he ought to grant it. 
 
 The practice of issuing sequesters on the application of the plaintiff 
 is not unusual, and appears rather to have been borrowed from the 
 foreign codes than to be derived from any analogous English pro- 
 cedure. The remedy is in some cases strictly analogous to one known 
 in the city of London as "foreign attachment;" as where the money 
 belonging- to a debtor is attached or sequestered in the hands of a 
 third party. 
 
 This ought never to be permitted, except on a distinct positive 
 affidavit of debt payable at the time of making the application by 
 the party whose money is sought to be attached; and the case ought 
 to be made out primd Jade to the satisfaction of the Court before 
 such an attachment is allowed. In other instances, with regard to 
 goods, the habit is to procure the legal enforcement by sequester of 
 a right of "stoppage in transitu;" the consignor obtaining an order 
 of the competent Court on the person in whose hands the goods are, 
 to hold them until the right to stop them has been adjudicated upon. 
 This seems strange at first sight, because in theory in such cases the 
 person holding the goods must be taken to be the agent of the con- 
 signor, but in practice it is, I believe, convenient, and the custom is 
 general. 
 
 A great number of applications for sequesters would in England 
 be made in the Court of Chancery for injunctions, and it is proper 
 to observe that extreme caution is necessary before granting them 
 at all. It appears to be looked on here by many persons, especially 
 foreigners, almost as a matter of course that the Court should, in 
 case of any dispute about the terms or performance of a mercantile 
 contract, instantly, and by way of commencement of the proceedings, 
 lay an embergo on any of the merchandize which may have passed 
 under the contract from the plaintiff to the defendant, without the 
 least regard to the ruinous consequences that might follow, and 
 without apparently taking the trouble to inquire into the question 
 of what ground in any system of law they can have for such a 
 demand. 
 
 In a word, then, in all applications to piit goods of another party 
 under sequestration, the person applying must make such a case on 
 proved facts (that is, facts deposed and sworn to) as will satisfy the 
 Court that he has a right to such an order, by the law of England. 
 It is hard to be particular in directions on a subject which presents 
 so many various cases, and in which the rule of action depends so 
 much on the peculiar circumstances of each instance. Caution and 
 
47 
 
 a disinclination generally to use extraordinary remedies, or extreme 
 measures, are the best protection against serious mistakes. 
 
 Even more serious still is the responsibility which is cast occa- stoppage of Ships, 
 sionally (in some places very frequently) on the Consular authorities 
 by applications to stop the clearances of ships. With regard to 
 many of these, which are made by persons who have claims for work 
 or supplies, they are, under the view taken here of the law, quite 
 inadmissible. A shipwright has a lien on a ship in his hands for 
 repairs; otherwise his remedy, like that of the ship-chandler for 
 stores or supplies, is personal against the owner or captain who 
 «mployed him.* It is, moreover a rule in the Supreme Court never 
 to stop a ship under charter, while prosecuting a voyage. In all 
 cases where the ship is in a port of destination there is, or ought to 
 be, an agent who practically is generally prepared to give the ne- 
 cessary security to meet any claim. The only serious difficulty likely 
 to arise is where the vessel is sought to be detained to answer large 
 claims for compensation for injuries by collision, and the agent 
 hesitates to pledge himself for so considerable an amount, or is not 
 in a condition to satisfy so large a claim if found due. In such 
 cases, on proper evidence establishing a primd facie case, the claim- 
 ant has a right to detain the ship until the claim can be heard and 
 determined, or until proper security be given; but it is a legitimate 
 condition to impose that the plaintiff should push on his claim with 
 all dispatch, and do all in his power to have it tried on its merits 
 within the shortest possible time. 
 
 With regard to «c parte injunctions, all that it is necessary at Ex-part* injunc- 
 present to say is, that they, also, are an extraordinary remedy, not tton9 " 
 to be in any case lightly granted; and in no case to be granted at 
 all, unless a clear primd jack' case is made out, on facts properly 
 deposed to, convincing the Court that by the law or practice of the 
 Courts of Equity of England, or by the well-known and established 
 local custom, the applicant is entitled to an order such as is applied 
 for. 
 
 I prefer putting the case in this way, to giving necessarily- 
 imperfect and unsatisfactory statements of the cases in which such 
 applications would be granted at home, because a party asking for 
 an extraordinary remedy ought to come fully prepared to show his 
 right to it: and in the long run, less mischief will be done, by the 
 frequent inability to obtain an injunction, than by anything which 
 would approach to an indiscriminate granting of such orders. 
 
 It remains, on this branch of the subject, which I have treated at 
 some length, but certainly at not more than its importance requires, 
 to point out that even w,here, on one of the foregoing applications, 
 such a case is made out, on written evidence, by affidavit (or affirma- 
 tion where allowed by law), as convinces the Consul that an order 
 ought to be made, it will be proper, in all those cases where the 
 nature of the application permits it, only to make an "interim," or 
 temporary order, to prevent at once the consequences which the 
 applicant seeks to avert, but putting the applicant under terms to 
 renew his application in the presence of the other party by motion 
 
 * But see 26 and 27 Vict. Ch. 24, Sec. 10 — passed in 1863, and Page 14 ante. 
 Title "Admiralty." 
 
48 
 
 Service. 
 
 Substituted i 
 
 vice. 
 
 upon notice. Of course, this cannot apply to an application to hold 
 to bail ; and in this case, if an order is granted ex parte, it will be 
 for the party affected by it to apply, as he may think fit, to have it 
 rescinded. 
 
 In all cases a copy of the affidavit, or affidavits, and of the Con- 
 sular order, must be served on the party ag'ainst whom the applica- 
 tion is made, and on the captain of any ship ordered to be detained. 
 
 When a claim or petition by which an order in any way affecting 
 the interest of another party is presented, the speedy communication 
 of it to that party becomes necessary. 
 
 Here it is an almost universal rule, that all service of orders, or 
 copies of pleadings, takes place by the messenger of the Court, and 
 for this service a fee is charged. This practice is necessary to pre- 
 vent fraud; for where there is no professional class, as in England, 
 who undertake on behalf of their clients to effect service of process, 
 it is difficult, in the absence of the defendant, to proceed with the 
 satisfactory conviction that he has had due notice; indeed, even in 
 England, in the County Court practice, where, as a general rule, 
 professional assistance is not pre-supposed, the same principle is 
 acted on. The circumstances, however, under which the subjects of 
 Christian Powers reside in this Empire, and the nature of the country, 
 and difficulty of communication, make it impossible, even here always 
 to adhere to this rule, Indeed, where the distance of the residence 
 of the party is considerable, the staff at the disposal of the Court is- 
 quite inadequate to insure the service of process within a reasonable 
 time. In these cases, therefore, the party interested is sometimes 
 allowed to effect service himself, and must, then, when it is neces- 
 sary, be prepared to satisfy the Court, on oath, of the time, place, 
 and manner of the service. It is desirable to have this established 
 with a degree of particularity which would make an unscrupulous 
 person afraid to state a falsehood; but however positive the assertion 
 of due service may be, if the Court is not satisfied, it will be better 
 to take further measures for insuring the knowledge of the proceed- 
 ings on the part of the defendant. 
 
 In order to act in any particular stage of a judicial proceeding in 
 the absence of one of the parties whose right or duty it is to be 
 present thereat, or in order to proceed in any suit in the absence 
 and default of some step on the part of one of the litigants, which it 
 would have been his right or duty to have taken on receiving due 
 communication or notice of the order, pleading, or other process 
 rendering the taking of such step his right or duty, the Court must 
 be satisfied that there is a reasonable certainty that the proper notice 
 came to the knowledge of the party at such a period as to give him 
 a reasonable time for making liis arrangements to be present or to 
 take the particular step which he has not taken : or else, that he is 
 wilfully keeping out of the way, or taking other measures, to avoid 
 the service of the process of the Court. In the latter case, it would 
 be the duty of the Court, before proceeding further, to direct that 
 service should be effected on a particular person, or at some parti- 
 cular place, and that such service should be held good service on the 
 party for the purposes of the suit. The circumstances of each parti- 
 cular case will almost invariably point out some course which will 
 
49 
 
 prevent undue delay, and ensure knowledge on the part of the per- 
 son to be served. 
 
 I have endeavoured to point out the principle on which the Court 
 ought to act, and of course this principle is applicable to every stage 
 of the proceedings where it is asked to proceed in default. 
 
 Let us suppose then that a defendant is properly served with a Proceedings after 
 petition; if it is defective, he may (and ought, as we have seen) er ™*' 
 apply to the Court to have it either amended or set aside : if it is 
 defective from want of particulars of demand, he ought to apply for 
 them, and get them as of course; if it is confused and incompre- 
 hensible (a case here at least by no means uncommon), he ought to 
 apply to the Court at once to force the plaintiff to put in a better 
 and more intelligible petition, or to have his petition set aside; if it 
 is full of irrelevant matter or abuse, he ought at once to apply on 
 that ground to have it amended or set aside. The most convenient 
 way of proceeding in these cases will probably be, that the party 
 should obtain on application a summons or rule calling on the other 
 side to show cause, on such a day, why the particular order asked 
 for should not be made; and on the application for such a summons, 
 whieh I think should be made within four days from the service of 
 the petition, the Court ought to satisfy itself (in most cases a perusal 
 of the petition will suffice), that there is some primd fade ground for 
 the application, and that the summons is not taken out merely for 
 delay, or in a vexatious spirit. In England, the penalty of costs 
 operates as a check on improper applications. Here the Court itself 
 must, to a great extent, take care that the parties are not needlessly 
 taken away from their avocations to answer frivolous objections. 
 
 Before altogether quitting this part of the subject, I ought to 
 notice what may be said against the course I have suggested as the 
 duty of the defendant, namely, that he should raise his objection at 
 once to a defective petition. It may be said that this is, as it were> 
 putting on the defendant, the task, in certain instances at least, of 
 improving the plaintiff's case against himself, whereas, if he waited 
 until the hearing a defective petition, especially if not answered at 
 all, would in many cases result, at best, in a nonsuit. Again, it may 
 be argued that in the English practice many of those petitions which 
 I have included in the defective class would be so bad as to be fatal 
 to the plaintiff's case at any stage of the proceedings, and indeed, 
 generally, that the distinction between bad and defective petitions 
 is unknown to the English procedure. 
 
 To all this I should answer that the object of all procedure in 
 civil suits is to find out the several material questions of law and 
 fact in dispute between the litigant parties, and put them "in issue;" 
 and if there is a real question capable of being raised between the 
 plaintiff and defendant, and which is material to be decided, it is a 
 matter of mere expediency whether you will adopt the course of 
 allowing that material question to be got at by necessary amend- 
 ments where it has not at once been properly raised, or drive the 
 plaintiff to another suit on the same subject matter. But in point 
 of fact the principle of this method of procedure has been extensively 
 adopted of late years in English practice, and I am convinced that 
 here it is desirable to take all the means in the power of the Consular 
 
50 
 
 tribunals to encourage the parties to come to a clear understanding 
 of what the questions between them really are, before the hearing. 
 
 I prefer the way I have suggested to the course adopted in many 
 foreign systems, where, after a voluminous "plaidoyer" in writing, 
 a preliminary hearing takes place to try and develope issues, the 
 determination of which is referred to a future day. To this course 
 there are many serious objections, besides those of expense and delay. 
 Settlement of The Eules, however, enable the Court, on application of either 
 
 Is8ue8 ' party, to " settle issues," because in the absence of competent legal 
 
 assistance it is sometimes difficult for the parties to perceive how 
 narrow is the question in dispute. And the effect of this knowledge 
 is to save trouble to the Court and expense to the litigants, and to 
 prevent the necessity of their calling witnesses to prove facts really 
 not disputed or wholly irrelevant; sometimes, even to stop the suit, 
 by convincing one or other of the parties that on such an issue as 
 the true issue has turned out to be, he can have no reasonable chance 
 of success. I may remark that the settling of the issues between 
 parties by an act of the Court, is a part of the procedure of the 
 bcottish Courts. 
 
 A summons, however, to settle issues should ordinarily be granted 
 only after an answer has been given to the petition or claim of the 
 plaintiff; and before I say anything of what ought to be required 
 in an answer, it will be necessary to consider that class of cases in 
 which the defendant does not see fit to put in any answer at all. 
 Answers. The ordinary result of this course in the practice of the Supreme 
 
 Court is, that it enables the plaintiff, after the time for answering 
 has expired, to set down the cause in the hearing list; the defendant 
 being supposed to deny generally the truth of every material allega- 
 tion of fact in the petition, and also to deny the alleged legal con- 
 sequence, namely, the right to the relief asked. The rules as to the 
 limitation of the defence at the hearing, in cases where no answer 
 has been put in, and those which prohibit defences inconsistent with 
 the answer if put in, or otherwise likely to take the plaintiff by sur- 
 prise at the hearing, are all founded on the same principle. The 
 parties ought to know, with reasonable certainty, what the questions 
 between them really are; the object of legal procedure ought to be 
 to obtain for each one this knowledge from the other. The tricks 
 of pleading and of "Nisi prius" trials are generally devoted to the 
 purpose of hiding your own case until the last moment, so far as 
 you can, and getting as much insight as possible into that of your 
 adversary. 
 
 Suppose that a plaintiff sues the defendant for the price of certain 
 goods sold and delivery to him; imagine that in reality the defend- 
 ant has paid the sum demanded to a person on account of the plain- 
 tiff, whom he, the defendant, supposed to be authorized to receive 
 it. Now, if he either does not answer at all, or simply answers that 
 he "owes the plaintiff nothing" (a very common answer, but in no 
 case allowed as a plea in England) he does nothing which advances 
 the decision of the real point in dispute, namely, whether the pay- 
 ment so made was well made, or is nugatory as regards the plain- 
 tiff. By not answering at all, he puts the plaintiff to prove the 
 delivery of the goods, and this lie has an undoubted right to do, but 
 
51 
 
 he does not give hiin notice of Lis substantial defence. By the other 
 so-called answer, he particularizes nothing- ; for it may mean that 
 he never got the goods, or that they were not the plaintiff's, or that 
 he has paid for them, or that the plaintiff forgave him the debt, or 
 in short, it may mean such a variety of things that it raises no issue. 
 
 If he had answered, "that he was never indebted to the plaintiff 
 as alleged," that would, of course, raise certain distinct issues — as 
 the property of the plaintiff, the delivery, and the price — but it 
 would not at all raise this issue, namely, whether he had paid for 
 them or not : and unless he had put that forward as a distinct and 
 additional ground of defence, it is clear that he could not, without 
 injustice to the plaintiff, be allowed at the hearing when the delivery 
 and property were proved, to come forward and swear to a payment 
 of which the plaintiff had never (I will assume) heard, to a person 
 who may have left the plaintiff's service before that payment, and 
 that with the knowledge of the defendant, or at all events under 
 circumstances which made ignorance on the defendant's part inex- 
 cusable. 
 
 If a lawyer had answered for him, using the general terms or- 
 dinarily employed in pleading in Courts of Common Law in England, 
 he might have put forward as his answer or plea, "that before the 
 suit was brought, he paid the plaintiff," and this would be correct, 
 if the person who had received the money had been really the plain- 
 tiff's authorized agent; but it would instantly have put the plain- 
 tiff, conscious that he had not been paid, to taking measures to dis- 
 cover the time, place, and method in which the alleged payment had 
 been made. And if a non-professional man had answered straight- 
 forwardly, he would have probably advanced the issue still' better 
 
 than the lawyer, by saying-, "in answer to Mr. 's demand, I 
 
 admit having received from him the goods he mentions, but beg 
 leave to state that afterwards, on the day of I paid 
 
 the sum now claimed as their price to his clerk Mr. , and have 
 
 his receipt." On receiving this answer, the plaintiff would come 
 prepared (which otherwise he might not have been) at the hearing 
 on the real question between the parties. By setting down the 
 cause for hearing, he is taken, in the practice of the Consular Courts, 
 to deny the fact of payment as alleged, and the authority of the per- 
 son to whom it was made, to receive it, these being the material 
 allegations in the answer; and he would, if the payment to the clerk 
 was proved, and the character of the clerk as his agent made out 
 primd fade, be able, either by cross-examination, or substantive 
 testimony, or both, to show that the character of agent had ceased 
 before the defendant handed over the money, and that the defendant 
 must be taken to have known that it had ceased, so far as would 
 suffice to make him bear the loss of the money which had been paid 
 indeed, but to a wrong person, and never received by the person 
 entitled to it. 
 
 If a defendant does not answer at all, he cannot at the hearing 
 complain that he is debarred from setting up any defence which 
 depends on more than denial or argument, and which is founded on 
 substantive facts which he must prove affirmatively, and might and 
 ought to have set up beforehand; but the principle of preventing 
 
52 
 
 surprise is the safe guide in such matters, and the task must neces- 
 sarily be thrown on those who have judicial functions to perform, 
 of determining' in what cases, where no answer has been put in, the 
 interests of truth and justice require that the defendant should be 
 allowed at a later stage to set up a defence he ought at once to have 
 put forward. It should always be a condition of this indulgence 
 that he should pay to the plaintiff the substantial reasonable costs 
 to which the latter has been put, in consequence of a necessary 
 adjournment; and in almost every case the plaintiff would have a 
 right to ask for an adjournment, and proper notice of the new defence. 
 
 Many of these remarks will, of course, necessarily apply where 
 the defendant, having put in some answer, attempts at the hearing 
 to raise a defence inconsistent with it, or of a description which is 
 not stated in it, and ought to have been specially set forth. The 
 interests of truth must determine here what amount of indulgence 
 should be granted, care being taken to prevent the plaintiff from 
 having his position materially prejudiced by the consequent delay. 
 
 In England no such indulgence must be expected as of course, 
 although the Judges hold and exercise most extensive powers of 
 amendment and adjournment to secure justice; but the circumstances 
 of the place make a broad distinction, and a gradual introduction of 
 a stricter procedure, with a constant application of the principles 
 on which the Rules are founded, will be the surest method of ad- 
 vancing the interests of truth. It is undesirable and unjust suddenly 
 to enforce on a community peculiarly ignorant of law, the letter of 
 a technical system, however well-founded or convenient in itself; 
 but as the public becomes familiar with the principles and provisions 
 of the Rules, a general and consistent adherence to them will be 
 found to be the best course for all; uncertainty and caprice being 
 almost the greatest evils possible in the administration of justices. 
 Great latitude of discretion is necessary, and the Rules have been 
 framed with a view to that necessity : but it should be the constant 
 study of every judicial officer to avoid real inconsistency in the 
 practice of his Court. 
 ProceeaiDgs on The answer may be open to some of the same objections as the 
 Answer. petition: it may be so confused, or uncertain, or irrelevant, as to 
 
 afford the plaintiff no fair information as to whether some or all of 
 the material facts stated by him are admitted or specifically denied, 
 or passed over without notice, or confessed and avoided. The an- 
 swer may be bad; that is, amounting to no answer. In one case 
 in the Supreme Court, to a petition claiming a balance on an account 
 stated between the parties, the defendant's answer was, "Instead of 
 
 " making ridiculous demands upon me, Mr. would do better 
 
 "to remove his goods, which are lying at my house," &c, &a. 
 And I think this style of answer used to be by no means uncommon. 
 It is clear that this is really so far equivalent to no answer at all, 
 that it admits nothing, denies nothing, and raises no substantive 
 affirmative defence. 
 
 It is in such cases as these that it may he proper, on application, 
 to get the parties before the Court and settle the issues between them. 
 
 Defences in "confession and avoidance" as they are technically 
 termed, comprise those defences which admit the facts stated, but 
 
53 
 
 set up some other matter by which the legal obligation therefrom 
 resulting has been discharged, or, in certain cases, has never arisen, 
 or may be avoided by reason of some other matter of law or fact not 
 appearing on the face of the claim or petition. Payment is a defence 
 in confession and avoidance; so is release; so is performance: co-' 
 verture and infancy are also specimens of the second kind of these 
 defences. 
 
 In all these, and the other numerous instances of defences of this 
 nature, there is this general feature, that some new material thing 
 will have to be proved by the defendant at the hearing-, by which 
 the inference arising in the plaintiff's favour on the face of his peti- 
 tion will be defeated, or, technically, "avoided." 
 
 Thus, if a petition is filed, claiming payment of a debt from a 
 person who has been discharged under the Bankrupt Act, or who is 
 a married woman or who is under the age of twenty-one years, or of a 
 debt which was contracted at a time, and under circumstances which, 
 if stated, would give in law a right to the defendant to resist the pay- 
 ment; and these facts, or circumstances, are not respectively stated on 
 the petition, the defendant must clearly state these facts or circum- 
 stances applicable to the particular case, and on which he intends to 
 rely; and he must be ready to prove such facts at the hearing. And 
 he ought to set up this defence by his answer, because it gives the 
 plaintiff notice of the facts on which he intends to rely; and the 
 plaintiff has a right to such notice to enable him to show that such 
 facts do not constitute a defence by reason of some other circumstances, 
 which he may then be prepared to prove. Thus, if a defendant 
 relies on the fact of his having been under twenty-one years of age 
 at the time of the alleged debt having been contracted, the plaintiff 
 may either desire to deny that fact, or to rely on the independent 
 fact that the debt was incurred for "necessaries to the defendant;" 
 or, if the defendant wishes to rely on the fact of the debt being barred 
 by the statute of limitations (prescription), the plaintiff may desire 
 to set up as against such defence a subsequent acknowledgment, or 
 part payment, or some other fact which will destroy the effect of 
 such defence. The object in all cases is to prevent any undue ad- 
 vantage by surprise. 
 
 Payment and release are simple instances. But suppose a claim 
 on the promise of the defendant to pay money to the plaintiff in 
 consideration of a certain thing. The defence is that a statute has 
 made that particular thing illegal, or that it is illegal at common 
 law. The defendant does not deny the promise, but sets up with 
 his "confession" the matter of "avoidance," namely, the illegality 
 of the consideration; and he ought to set it up if he intends to rely 
 an it at the trial, as he ought to set up any other defence of which 
 the burden of affirmative proof will lie on him. So if a man sued 
 for money said to be due by him in respect of some mercantile 
 transaction, intends to rely on misrepresentation or concealment or 
 any kind of fraud by the plaintiff, common justice will suggest that 
 he ought to plead them, or bring them forward in his answer, for 
 he wi3 have to prove them, and the other party is entitled to notice, 
 to enable him, if he can, to rebut the proof. 
 
 With regard to placing distinct matters of defence before the 
 
54 
 
 Answer on Oath. 
 
 Amendments. 
 
 Applications for 
 farther Time. 
 
 Hearing. 
 
 Court in the answer, this, of course, will often happen; because in 
 truth, and in fact, there may be distinct and separate defences. 
 
 It will be observed in the Rules, that after answer no further 
 pleading can take place. This is intended to prevent the endless 
 interchange of documents which I have before referred to, and sounds 
 much more arbitrary than it really is. In formal pleading, where 
 competent professional men are engaged, the issue or issues will be 
 most surely developed in a very short process ; but inasmuch as the 
 general use of a replication is to take issue on some particular 
 material fact set up as a defence, and inasmuch as the absence of a 
 replication in the practice of the Consular Courts would not operate 
 as an admission of any fact in the answer, one great object of this 
 particular pleading ceases. Moreover, as there is little hope between 
 non-professional pleaders of the issue being strictly and formally 
 brought out at the last, it seems convenient to stop the written com- 
 munications at as early a stage as possible, and where there is a 
 necessity for doing so, to get the parties before the Court before trial, 
 to determine the point to try. And, when an answer sets up new 
 facts to qualify or avoid the inference derived by the plaintiff from 
 the allegations of the petition, the plaintiff will always have an op- 
 portunity of meeting the defence by amendment of the petition, 
 where necessary. 
 
 In the English Chancery practice, where the defendant is bound 
 to answer categorically, and on oath, the plaintiff's bill, the amend- 
 ment of the bill after, and in consequence of the answer, is constant; 
 indeed, one of the principal objects in our Equity system is, by 
 searching the conscience of the defendant, to force him to declare 
 the exact state of the case, so far as it lies within his knowledge or 
 belief, and thus to help the plaintiff so to shape his case as to obtain 
 relief, if equity (which does not mean abstract justice, but the doctrine 
 of the Court) will entitle him to it on the true facts. 
 
 Amendment ought to be liberally allowed, the reasonable charges 
 to which the other party is put being borne by the party amending, 
 and the Court being satisfied that they are applied for bon&Jide, and 
 not for the mere purpose of vexation or delay. 
 
 No application for time beyond that allowed by the rules ought 
 to be granted as of course. The judical officer must hold the scale 
 even, and see that neither party is allowed to avail iimself of a time 
 rule to press his adversary unduly, or to obtain a relaxation of it for 
 the purpose of delay. 
 
 I attach much importance to a conviction in the public mind, 
 in places where there is much judicial business, that it is treated 
 strictly in its turn, and that nothing except the consent of parties, 
 or the absolute requirements of justice, will induce the Consul to 
 allow a case to be hurried to a hearing, or not heard when its time 
 comes. 
 
 I think that the provisions of the Rules as to Hearing Lists should 
 be observed as nearly as may be, in the great Consulates at least. 
 All applications for postponement or advance of cases must be made 
 either by consent or in the presence of the other side, and if not con- 
 sented to, should be made 4o and granted by the person entrusted 
 with judicial functions, and him alone. 
 
55 
 
 And here I may naturally introduce the little I have to say on interlocutory 
 interlocutory applications generally. Applications. 
 
 It is a matter of indifference, perhaps, in many instances, whether 
 these applications are reduced to writing before they are made to the 
 Court, but I am decidedly of opinion that, if nowhere else, yet in the 
 Consul's note-book of civil cases, the gist of every application which 
 seeks to procure the issuing of some interlocutory order, should be 
 recorded ; and whether such application was or was not successful, 
 the result ought to be noted. This will serve as a record for many 
 purposes, not the least valuable of which will be to enable the Courts 
 to preserve consistency of practice. 
 
 As a rule, obviously no order can be made affecting the interest 
 of another party, without giving him an opportunity of being heard 
 on the point ; but there are many cases in which the Court, as I have 
 elsewhere said, ought to take special means to protect parties from 
 frivolous motions, by requiring ex parte applications for rules to 
 show cause to be made in the first instance. 
 
 It does so happen occasionally that the whole object of a suit may 
 be to obtain an order, which may be applied for on motion as soon 
 as the suit is instituted; for instance, an order for an injunction. 
 Useful, but dangerous, except in well skilled hands, is the power of 
 granting orders of this nature, and yet it is in substance of a power 
 Stat has been commonly exercised by Her Majesty's Consuls. 
 
 It is a delicate jurisdiction, and I see no reason for widening the 
 rule I laid down in speaking of ex parte applications of this descrip- 
 tion : the person asking for such an order must show his title to it 
 in the clearest way. But when a motion turns out to raise really 
 the whole question in the suit, it would be proper for the Court to 
 obtain, if possible, the consent of the parties to treat it as the hearing, 
 so as to remove all necessity for suspending the judgment on any 
 point, the parties being put to establish their final rights at once. 
 In these cases it would always be proper to allow a short adjourn- 
 ment of the motion, on the demand of either party, for the purpose 
 of procuring or completing evidence. 
 
 It is a matter of .the utmost importance to impress on the minds Evidence to pro- 
 of suitors, on every possible occasion, that their bounden duty is 
 to attend at the hearing- with all the written evidence and all the 
 witnesses they may require in support of their respective cases; and 
 that our procedure differs from the foreign systems where, after 
 lengthy arguments, the presiding Judge determines what are the 
 issues, and states judicially what evidence is to be produced on eai-h 
 point at a future day. They should be taught systematically that 
 argument or statement, except on facts proved, or then and there 
 about to be proved, can go for nothing at all, and that a man who, 
 under the system of pleading to issue (which may be enforced sub- 
 stantially, however informally) comes with a knowledge of what he 
 wants to prove, and what he may or will be required to disprove, is 
 quite inexcusable unless he comes prepared at once with all his 
 available testimony. Piecemeal trials are a great hardship. It is 
 to be hoped that suitors in British Consular Courts may gradually 
 be brought to have as little expectation of obtaining adjournment to 
 produce testimony which they had every opportunity of bringing, 
 
56 
 
 Witnesses. 
 
 Taking Deposi- 
 tions. 
 
 Proceedings at 
 the Hearing. 
 
 Who to begin. 
 
 and should have known they ought to bring, at the trial, as they 
 certainly would have in England; but I would lay down no in- 
 flexible rule in practice. 
 
 It is one of the duties which society imposes on a man, that he 
 shall be ready to give his attendance to assist justice by testifying to 
 all facts within his knowledge : it is equally the duty of the Court, 
 which obliges him to attend, to see that he has reasonable, even 
 ample notice of the time when his attendance may be required. 
 
 Where foreigners are required as witnesses, it is necessary also to 
 allow for the time consumed in communicating with them through 
 their respective Consulates, which, so far as the experience of the 
 Supreme Court can be trusted, enforce the attendance of their sub- 
 jects at a foreign Court as witnesses with an enlightened readiness 
 which does them honour. I have no doubt tbat British Consuls 
 throughout China and Japan experience and afford the same facilities 
 in these matters. 
 
 A convenient and customary practice here, which I presume is in 
 general use, allows the taking of the evidence of any particular 
 witness (where the pleadings are concluded and the issues ascertain- 
 ed), in the presence of both parties, in any case where, from necessary 
 approaching departure, or other reasonable cause, there is fair ground 
 to suppose that the witness will be absent at the time of trial. The 
 notes of the evidence are used at the trial, and as the witness has 
 been subject to cross-examination, there is little, if anything, lost. 
 The migratory character of the European subjects has rendered this 
 practice necessary. 
 
 At the hearing of a cause, the duty of the Consul, after having 
 ascertained that both parties appear either in person, or by their 
 representatives, is to decide, in case of dispute, which has the right 
 to begin. This matter seldom has the importance bere which is 
 attached to it in England, and it is only for the sake of regularity 
 in the proceedings, that it becomes worth while to give a few plain 
 directions on the subject. 
 
 The presiding officer has to consider what is the substantial fact 
 to be made out, and on whom it lies to make it out. It is common to 
 say, that the person who has the affirmative of the issue ought to begin ; 
 but the affirmative must be sometimes taken in a more extended sense 
 than the word itself ordinarily implies. Thus, where a plaintiff sued 
 for damages, arising from the unworkmanlike execution of a contract, 
 and the defendant pleaded that the work was done in a proper and 
 workmanlike manner, it has been held that the plaintiff should begin, 
 as being the party who undertook to establish the substantial fact of 
 the issue. And in an action claiming damages from the defendant, 
 for not building certain houses according to specification, where he 
 pleaded that he did build the houses according to the specification, 
 it was held that the plaintiff should begin, and show that he 
 did not. 
 
 In eases, such as I have before referred to, where there is a general 
 denial on the part of the defendant of the plaintiff's cause of suit, 
 and also a separate subtantive matter of defence, such as payment, 
 set-off, release, and the like, the plaintiff must begin, because the 
 first issue is to be made out by him, the defendant by his denial 
 
57 
 
 having put him to the proof of it ; and it is only on his making out 
 that cause of suit, that the burden would lie on the defendant of 
 establishing the substantive defence he has set up ; but if the de- 
 fendant has pleaded payment alone, or release alone, or the like, 
 then of course, he ought to begin, and make out his plea, because he 
 has confessed, and only seeks to "avoid" the plaintiff's claim, and 
 he must show and prove how that is to be done. 
 
 When the proceedings are commenced, I cannot too strongly re- Regularity of 
 commend all those whose duty it is to preside at them, to enforce ^"enforced!" 1 " 
 regularity, to prevent interruption, and to make it constantly mani- 
 fest to the parties and bystanders that the Court is proceeding by 
 rule. 
 
 It is thought here, that not only the English public, but even 
 foreigners, are for the most part extremely sensible of the great faci- 
 lities for arriving at the truth, which are secured by our English 
 procedure in Court, which in principle would seem to be at once 
 simple and natural. 
 
 The first special characteristic of the system is, that no statement statement insuf- 
 of fact is of the least value unless it is either proved or admitted. In ressary. 
 practice in England, where addresses are in almost every case made 
 by Counsel, it is a strict rule that Counsel should not state any fact 
 which he is not instructed to call evidence to prove ; and the cer- 
 tainty of being called to account by his opponent and by the Judge, 
 generally brings the deviations from this rule within tolerably narrow 
 limits. In China and Japan, opening statements, especially by non- 
 professional persons, are of little importance ; but what is of great 
 importance is, that the Court should act on proof or admission, and 
 on nothing less. 
 
 The method in which the proof is tendered is, I may fairly say, Mode of tender- 
 the best that exists. By the English law, with but a few exceptions, lns Proof " 
 every person who has a direct personal knowledge of any material 
 fact, can be called to testify, on his oath, to that fact. The restric- 
 tions which hamper evidence, and impede the discovery of truth, and 
 which foreign codes seem destined to perpetuate in their respective 
 countries, have, for all practical purposes, been swept away in English 
 procedure : and no objection can be made to the competency (or 
 admissibility) of a witness by reason of his being a party, or interested, 
 or convicted of crime, or for any cause, except absolute incapacity 
 of mind, or that which the law looks on as withdrawing all real 
 security for truth — a disbelief, namely, in a state of retribution. 
 Other objections do not go to the admissibility of the witness, but to 
 the amount of credit which the tribunal will afford to his testi- 
 mony. 
 
 As a general rule, the testimony given ought to be vivd voce, in the 
 presence of the opposite party, and of the Court which has to decide 
 the case ; the witness' manner of telling his story is an integral — 
 often an important — part of his evidence, and affords indications 
 both of his impartiality and accuracy. Where necessity requires the 
 use of the written deposition of a witness not taken by the Judge 
 who has to decide the case, something is always lost: 
 
 Again, the evidence must be direct and positive ; hearsay evidence Hearsay fcvi. 
 (with exceptions not material to be noticed, as in matters of family d6ll(:0 ' 
 
58 
 
 pedigree) is no evidence. If a witness were to commence an account 
 by saying, "Mr. A. told me that the defendant said to him;" the 
 obvious remark is, "Why have we not Mr. A. himself here to tell 
 us what the defendant told him ? If the defendant told you, the 
 witness, anything, state that." If I may judge by personal ex- 
 perience here, however, the most usual manner in which this second- 
 hand evidence is given or offered, is by a downright statement — "The 
 defendant said" — and it is generally only in answer to a question by 
 the Court, on the defendant's denial, that the witness admits that he 
 is only speaking on another man's information. Now if the defend- 
 ant really does deny the statement, it is the plainest justice that his 
 denial should be good as against any person but one in whose pre- 
 sence the statement was made : and if the statement is material, it 
 is the business of the plaintiff to secure the attendance of the very 
 person to whom it was made, or to ask the defendant, if called as a 
 witness, or, even — as an extreme measure — to call him himself for 
 that purpose, if he ventures to trust either his conscience or his fear 
 of consequences. 
 
 Statements by either party, to a third person, are not evidence 
 for, although they are against, the party making them ; but entries 
 in a man's books of business, if proved to be regularly made in the 
 ordinary course of business, are, by custom here, primdjiacie evidence 
 of the facts they purport to record. 
 
 All conversations between the parties having reference to any of 
 the matters in issue, are evidence adducible by either. 
 
 The rules, indeed, of evidence, according to the English practice, 
 are, although occasionally technical, founded on principles of com- 
 mon sense, being intended to secure the production of the best 
 evidence of any fact, and not requiring stricter proof than ought, as 
 a general rule, to be obtainable by a person whose deep interest 
 makes him take pains to procure it. 
 
 I have no more intention, in this letter, of framing an unsatis- 
 factory treatise on the law of evidence, than on any other branch of 
 the law. I have merely pointed out the general elementary princi- 
 ples on which evidence ought to he received or rejected; and I am 
 perfectly conscious that an unprofessional man endeavouring to ad- 
 minister strict technical rules, would be likely to do far more mischief 
 than if he trusted to his natural common sense. The following pro- 
 positions may, however, be offered as aids with respect to the admis- 
 sion or rejection of evidence. 
 Evidence. Matters collateral and irrelevant to the questions raised on the 
 
 pleadings should not be permitted to be given in evidence, but in 
 cross-examination witnesses may be questioned on matters not in 
 themselves relevant to the issue for the purpose of testing their 
 credit. 
 
 No evidence should he permitted to be given in contradiction of a 
 Statement by a witness on a matter not material to the question or 
 questions in issue between the parties, except the proof of a convic- 
 tion of such witness for a criminal offence, in case ne shall on cross- 
 examination deny such conviction or refuse to answer. 
 
 Comparison of a disputed writing with any writing proved to the 
 satisfaction of the Court to he genuine is permited to be made by 
 
59 
 
 witnesses, and such writings and the evidence of witnesses respect- 
 ing the same may be submitted to the Court as evidence for or against 
 the genuineness of the writing in dispute. 
 
 The burthen of proof lies on the party who substantially asserts on whom burthen 
 the affirmative of the issue between the parties. of proof lies. 
 
 The party who must fail on the allegations contained in the plead' 
 ings if no evidence were given on either side, or the party who must 
 fail if any one or more allegation or allegations contained in the. 
 pleadings, respecting which it is doubtful who should prove the 
 same were struck out, may be taken as that party on whom the. 
 proof lies. 
 
 The evidence required for the proof of any fact requiring to b$ 
 established, should be the best of which the case in its nature is 
 susceptible. 
 
 Primary evidence is that which on the face of it carries no indica- 
 tion that better remains behind. 
 
 Secondary evidence is that which itself indicates the existence of 
 more original sources of information. 
 
 No evidence ought to be received which is secondary or substitu- 
 tionary in its nature so long as the original evidence is attainable. 
 
 The contents of a written instrument which is capable of being 
 produced should be proved by the instrument itself and not by 
 "parol" evidence. 
 
 If any written instrument be destroyed or lost, the party seeking Secondary Evi- 
 to give secondary evidence of its contents, must give some evidence oence ' 
 that the original once existed, and must either prove its destruction 
 positively, or by a reasonable presumption, as by showing that it has 
 been thrown aside as useless or the like, or he must establish its loss 
 by proof of search made without effect, but with reasonable diligence 
 in the place or places where it was most likely to be found. 
 
 Such search need not necessarily be recent or for the purposes of 
 the case. 
 
 The contents of documents deposited in foreign countries or Legalized copies. 
 elsewhere out of the jurisdiction of the Court, and of any records of 
 judicial Courts and entries in public books or registers, including 
 the books of notaries public, may be proved by legalised or otherwise 
 certified copies thereof. 
 
 The contents of any document in the possession or power of the 
 adversary who withholds it at the hearing may be proved by second- 
 ary evidence, provided that a proper notice (when requisite) to 
 produce the original has been given to such adversary. 
 
 Notice to produce should to contain sufficient information to 
 induce the party reasonably to believe that a particular writing will 
 be called for, either by itself or as forming part of a class or collectiop 
 mentioned in the notice, and in such case is sufficient without 
 particularizing every writing. 
 
 If any original writing is in Court, although the party proposing 
 to prove its contents has not given notice to produce it, it may be 
 called for, and if not produced, secondary evidence of its contents may 
 be given. 
 
 If the nature of the suit, or the form of the pleadings, is such that 
 the defendant must know he will be charged with the possession of 
 
60 
 
 some instrument, and be called on to produce it, secondary evidence 
 may be given of the contents of such instrument, although no notice 
 to produce has been given. 
 
 Secondary evidence of the contents of any writing may be given 
 without notice to the adversary to produce the same, if it is proved 
 to the satisfaction of the Court, that such writing has been forcibly 
 or fraudulently obtained or taken possession of by the adversary, or 
 obtained by him with a view to prevent its being given in evidence. 
 
 Any merchant seaman may bring forward evidence, to prove the 
 contents of his agreement with the master of the ship or otherwise 
 to support his case, without producing or giving notice to produce 
 the agreement itself or any copy of it. 
 
 Notice to produce is not necessary where the adverse party, or his 
 duly appointed attorney or his counsel, has admitted the loss of the 
 document, but secondary evidence of the contents of such document 
 may be given at once. 
 
 secondary evidence of the contents of any writing is admissible, 
 when it has been established to the satisfaction of the Court, that 
 such writing is in the possession of a person whom the Court cannot 
 compel to produce it, and who has been either summoned, or formally 
 requested, to produce the same, and refuses to do so; and secondary 
 evidence is admissible in such cases, whether the person who has 
 possession of the writing is justified in not producing the same, or 
 is not so justified, but only protected by want of jurisdiction in the 
 Court. 
 
 Evidence given by a witness must be confined to facts within the 
 knowledge of such witness of things said or done, and may not be 
 extended to matters of which he has derived his information from 
 others. 
 
 Evidence of declarations or statements, oral or in writing, made 
 by any party to a suit, cannot be received in favour of such party. 
 
 Evidence of declarations or statements, oral or in writing, by any 
 person not a party to the suit, cannot be taken as showing the truth 
 of such declarations or statements, otherwise than where they are 
 receivable by the law of England, as in matters of general reputation, 
 matters of public interest, or family pedigree, and in cases of 
 declarations against interest, and declarations in the course of busi- 
 ness, as herein-after stated. 
 
 Evidence of a statement oral or in writing, made by a person since 
 deceased against his own pecuniary or proprietary interests, may be 
 received in suits between other parties, subject to the consideration 
 of its greater or less value from the presence or absence of any 
 competent or particular knowledge of the particular facts stated by 
 the person making the declaration. 
 
 Such declaration may be received in evidence of collateral and 
 independent matters forming part of the declaration, although not 
 in themselves against the interest of the declarant. 
 
 Statements and declarations whether oral or in writing by persons 
 not parties to the suit, if made in the ordinary course of the business 
 of the individual making the same may be given in evidence. 
 Cross Examina- Cross-examination, as used in our Courts, is altogether a distinc- 
 tive feature of the English procedure. Where cases are conducted, 
 
 tion 
 
61 
 
 as often occurs here, by English counsel, its value and power are 
 very greatly appreciated by foreigners, who admit its force as an 
 engine for sifting' testimony. In the absence of competent persons, 
 however, it is a duty which the interests of truth cast sometimes on 
 the Court, which, however, is bound to be careful to guard against 
 the antagonistic spirit likely to arise in the breast of every cross- 
 examiner. The questions asked by the Court of witnesses ought to 
 be confined to those which a competent legal man would be sure to 
 ask in cross-examination, on the evidence given. 
 
 When a witness is taken in hand by the Court, which should not 
 be done until the parties have finished with him, the Judge ought 
 not, for the sake of regularity, to allow any re-examination on the 
 answers given to the Court; but it is proper to put any material 
 question suggested by either party, if it tends to clear up a fact left 
 in doubt. 
 
 It is the Judge's duty to take such a note of the evidence given, importance of 
 as will afford a record of the facts on which the Judgment is based. Evidence. 
 I am far from meaning that a Consul is bound, in every case he tries, 
 to take down verbatim what every witness says ; but the very fact of 
 taking a note of the evidence as it is gfiven, tends to promote regu- 
 larity, and in cases brought up by appeal, a copy of the Judge's 
 notes enables the Court above to see whether the judgment can be 
 supported, and if not, whether the proper course is to give judgment 
 for the other side, or to send the case to a new trial. These notes 
 ought, in every case of appeal, to accompany the " record," that is, 
 the pleadings and the judgment. It would be hard to say what an 
 amount of difficulty to the Court, and hardship and delay to parties, 
 has taken place, principally in appeals, from the systematic absence 
 of any notes of evidence. Where any tangible objection is made to 
 the reception of evidence, it ought to appear on the notes. And it 
 should also appear whether the objection was allowed, overruled, or 
 withdrawn by the party making it. This will assist the Court above 
 in case of appeal. It is right, however, that the public and the 
 Consuls should be aware that the Supreme Court will not disturb 
 judgments on appeal for mere irregularity, if satisfied that substan- 
 tial justice has been done between the parties. To act otherwise, 
 would be to inflict great hardship on suitors, and would, in the 
 public eye, cast an undeserved slur on gentlemen who do not pretend 
 to administer justice either with the advantages of a professional 
 education, or under circumstances where forms can be always follow- 
 ed. It remains only to say, on the subject of notes of evidence, that 
 as the Supreme Court will accept them as conclusive, a strict 
 obligation is cast on the Consuls to see that they are really what 
 they profess to be — the pith and substance of the evidence given. 
 In heavy and important cases, it would be desirable to take a pretty 
 full note. 
 
 There is a natural tendency in parties (and it sometimes extends 
 to their professional advocates) to go off into collateral issues, which 
 do not bear on or assist the inquiry in which the Court is really 
 engaged; the Judge should repress this; but where there is any 
 doubt whether the evidence is not material to the true issue, it will 
 be safer to admit it. It is admissible, for instance, to call a witness 
 
62 
 
 Judgments. 
 
 Contempt of 
 Court. 
 
 to contradict the evidence of another on a point material to the issue, 
 but not on a collateral fact. Thus, if in cross-examination you ask a 
 man, who has given account of a particular admission by the plaintiff 
 of payment, whether he did not tell one A. B. that the plaintiff never 
 admitted any such thing to him, and he denies that he told A. B. so, 
 you call A.B. to swear that he did, for this is highly material to the 
 issue; but if you, in cross-examination, had asked whether the same 
 witness had not been discharged from the service of the plaintiff's 
 brother on an accusation of dishonesty, and he denied it, you could 
 not call the plaintiff's brother to prove the fact, for otherwise you 
 might embark in, and have to try a hundred collateral issues, more 
 or less irrelevant. 
 
 With regard to judgments, the present form given in Consular 
 Courts seems rather cumbrous, and is probably intended, by a 
 " resume " officially made, to supply the want of notes of evidence. 
 If these exist, as they ought to exist, there seems no reason why 
 Consular judgments should be the lengthy documents they are. 
 Append to the record of the pleadings a simple statement of the 
 hearing — the presence of the parties, or the service on the defendant 
 if the cause was heard in his absence, and the conclusion or judg- 
 ment of the Court. 
 
 The evidence is no part of the record, except for purposes of 
 appeal — neither are the reasons for the judgment, if reduced to writ- 
 ing. It is often, in important cases, a very salutary practice for a 
 Judge to write his reasons for his judgment; it forces him to put 
 his mental conclusions more deliberately before himself, and to see 
 more clearly how far they will fairly carry him. 
 
 In all cases of appeal, where written reasons for the judgment by 
 the Consul himself accompany the notes of evidence, they will meet 
 from the Supreme Court the utmost attention. 
 
 The formal judgment should, as I have said, be appended to the 
 
 E leadings, so that the record may be complete; and it should be 
 eaded like all other papers in the suit, with the name of the Court, 
 and the several names of the respective plaintiffs and defendants. 
 The loose practice of putting as plaintiffs or defendants the names of 
 firms, such as A. B. and Co., has given rise to serious difficulties in 
 execution. Wherever anything of this kind is discovered, it should 
 be amended by the insertion of the real names of the several parties ; 
 if they are very numerous, it will be sufficient to insert them all in 
 the petition, and head the subsequent papers : 
 
 ( Between A.B. and others, plaintiffs; 
 
 ( CD. and others, defendants; 
 but the Court should, always be able to ascertain, with certainty, 
 who are defendants and who plaintiffs. The powers of amendment 
 in these and other particulars given by law to persons presiding at 
 the trial of civil cases, are very extensive, and they should be used 
 freely to ensure the trial of every question on its real merits ; that is 
 the great object: subject to this, the Court ought to take care to 
 avoid prejudicing the position of the opposite party by any amend- 
 ment; and where it raises anything substantially new, he would be 
 generally entitled to adjournment and real costs. 
 
 It is to be observed that Consular Courts are Courts of Record, 
 
63 
 
 and have the power of preserving order, and the respect due to them, 
 by commitment and fine. The very existence of such a power pre- 
 supposes temper, patience, and discretion, in the person entrusted 
 with it. And it is .worthy of remark that, where the power is most 
 extensive and undoubted, as in the Supreme Courts at Westminster, 
 there is the least occasion for its exercise. Since the establishment 
 of the Supreme Court, there has been only one commitment for con- 
 tempt, and that contempt was manifest prevarication in a witness at 
 a criminal trial. And notwithstanding this, the summons of the 
 Court, even on criminal charges, is obeyed with such certainty, that 
 it is very seldom either necessary or proper to bring a man up on a 
 warrant. The experience of this city would seem to establish the 
 fact that British subjects are peculiarly amenable to any mild but 
 firm authority. But how much of this is owing to a consciousness 
 of protection against the local authorities, and that such protection 
 may depend on obedience to Consular rule, is another question. 
 
 The decree of the Court at the hearing is either final or inter- 
 locutory. 
 
 A final decree should ordinarily be made where the claim is for Decree, 
 debt, or damages, whether for breach of contract or for a wrong 
 independent of contract, and where there is no answer, or where the 
 answer is in bar of the demand. 
 
 Interlocutory decrees at the hearing may be made in those cases interlocutory 
 in which, from the nature of the suit or of the decree which the Decree - 
 Court, on the hearing, may consider itself bound to make, something 
 remains to be done before the rights of the parties in relation to the 
 question raised in the suit can be fully ascertained and declared. 
 
 An interlocutory decree should set forth the several matters ne- 
 cessary to be ascertained, and should provide for the manner in 
 which they are to be ascertained. 
 
 It should also, wherever the same is possible, fix a time within 
 which such matters are to be ascertained, and should give liberty to 
 the parties respectively to apply to the Court, either to enlarge such 
 time, or for any other purpose, as they may see occasion. 
 
 The execution of judgments for debt or damages presents peculiar Execution of 
 difficulties here. If an appeal is possible, the unsuccessful party, for Jud s men *»- 
 the most part, gives notice of appeal; for, not being afraid of any 
 substantial costs, he avails himself of appeal as possible means of 
 delay, or of driving his adversary to a compromise. If an appeal is 
 not allowed by law, or if provisional execution of the judgment is 
 ordered pending the appeal, the common course appears to have been 
 for the debtor to declare himself in a state of insolvency, and seek 
 an adjudication of bankruptcy, or the benefit of protection, with the 
 simple purpose of obtaining personal protection, and of defeating the 
 particular judgment creditor, but without the least expectation of 
 complying' with the provisions of the law in other respects. 
 
 That protection from arrest has, in these cases been granted almost 
 uniformly, is, I believe, undoubted ; and when it is considered that, 
 in most instances, a Chinese or Japanese prison is the only alterna- 
 tive, I at least can scarcely censure this practical abolition of impri- 
 sonment for debt, even though, in fact, after protection, if there was 
 no estate, all proceedings mostly ceased ; but considering that the 
 
64 
 
 Imprisonment. 
 
 Execution on 
 Goods. 
 
 difficulty of following property amongst so many different jurisdic- 
 tions is so great as generally to make execution against goods prac- 
 tically ineffective, the Supreme Court has not hesitated to make two 
 or three salient examples by allowing the law of arrest to take its 
 course in these cases, and not granting protection until the debtor 
 ,had practically learnt that he could not with impunity set the judg- 
 ment of the Court at defiance. 
 
 The rules establish an important modification of the system of 
 imprisonment under decrees in civil suits. There will no longer be 
 a power in the creditor at his own option to imprison his debtor 
 under the decree, by way of execution of the decree. There will be 
 no imprisonment except under a special order of the Court. Impri- 
 sonment so ordered will be for not more than 40 days at a time, 
 and will be not in the nature of execution, but in the nature of 
 imprisonment for an offence, as it will be inflicted only in the cases 
 of proved fraud or misconduct on the part of the debtor. One con- 
 sequence of the change is, that imprisonment will no longer operate 
 as a satisfaction and extinguishment of the debt or liability, in 
 respect of which the debtor is imprisoned. 
 
 The rules on this subject are substantially in conformity with the 
 practice which has for some time existed in England respecting 
 small debts, and which has been adopted in the County Courts 
 there. 
 
 If there is property belonging to the debtor within the jurisdiction, 
 the creditor has an absolute right to have it seized and sold in satis- 
 faction of the decree j but the greatest care must be taken to avoid 
 responsibility on the part of the Consulate in taking goods in execu- 
 tion, which should never be done except at the express risk, and by 
 the direction of the execution creditor, and even then only when the 
 Consul is satisfied as to the ownership of the property, or that the 
 creditor is well able to meet the claim for damages in case of possible 
 mistake. Where there is any doubt of the nationality of the pro- 
 perty, the Consulate should on no account run the risk of embroiling 
 itself with foreign Consulates, which here, at least, have been found 
 perfectly ready to co-operate for the purpose of defeating fraudulent 
 collusions. No personal responsibility of the judgment creditor would 
 be an excuse to them for the seizure of the property of their subject: 
 but on these occasions the Consulate may fairly insist that property, 
 apparently and obviously in the order and disposition of the debtor, 
 shall be secured until the foreign claimant has, within a short rea- 
 sonable time, established his claim. 
 
 There are certain occasions in which the execution of the order of 
 the Court may be enforced by the officers of the Consulate directly, as 
 in giving possession of a British ship, or delivering a British subject 
 from the illegal custody of another, or a foreigner from the illegal 
 custody of a British subject. This has sometimes to be done in 
 cases where young girls have been enticed into and are detained in 
 houses of ill-fame. And the order to bring them up, if disobeyed, 
 should be executed by force in cases where the house is British. 
 
 In many instances, from the peculiar relation of European inha- 
 bitants to the country in which they reside, the Court has no right- 
 ful jurisdiction over the thing in dispute, or from which satisfaction 
 
65 
 
 for a judgment is sought, and must enforce its decree, if at all, by 
 compelling the person over whom it has jurisdiction, and who is 
 really able to deal with the thing, either to deal with it as he is 
 bound to do by virtue of some obligation which the Court has a right 
 to enforce; or, as the case may be, in other instances, to bring the 
 value of the thing within the Court's jurisdiction, by selling under 
 the Court's direction, and bringing in the proceeds. 
 
 In some cases there is no way of enforcing the orders, except by 
 committing the party not obeying them; and the jurisdiction is so 
 delicate, that I should strongly recommend a reference to the 
 Supreme Court, with a copy ol the pleadings and evidence in the 
 case, before making any such decree. 
 
 There is no probability that the ordinary Consular Courts will be New Triaia. 
 troubled with applications for new trials in cases heard before them. 
 The losing party, if not intending to submit to the judgment, 
 would probably use his right of appeal to the Supreme Court. 
 
 The petitions and other papers filed by the parties for the purposes Appeals. 
 of appeal, will often, no doubt, contain a variety of assertions as to 
 alleged facts which not only do not appear on the notes of evidence, 
 but do not exist except in the imagination of the party. As an 
 appeal will in most cases be decided on the evidence already given 
 in the Court below, and as that evidence is proved by the notes of 
 the Consul, I have already pointed out the obligation to be accurate. 
 If, however, some fact is stated which was sworn to at the trial, but 
 by accident the evidence was not noted, the Consul would, in trans- 
 mitting the record of appeal, certify that he remembers that such 
 fact was proved, with any observation that may occur to him on the 
 point. The parties are to understand that the petition, or (in case 
 of appeal by motion) the argument (if any) filed, will be treated as 
 arguments on existing facts which appear to have been proved or 
 admitted at the trial, or on matters of fact which took place at the 
 trial, appearing on the notes of the Consul, and that the Court above 
 will consider them, and decide on the whole case; also, that it is not 
 necessary either to appear themselves before the Court or to instruct 
 Counsel to answer their case there, unless they desire it. Appeals 
 will be entered as they are received, and considered in turn, if the 
 fees have been duly paid, and the judgment of the Court thereon 
 will be transmitted to the Consul for the information of the parties. 
 
 When a party proposes to appeal from an interlocutory order of a 
 Consular Court, it is altogether in the discretion of the Consul 
 whether he will at all delay the prosecution of the suit, to wait for 
 the decision of the Supreme Court; but in transmitting such an 
 appeal, he should inform the Court whether further proceedings 
 have been stayed or otherwise. 
 
 In those cases, on appeal from a final decree, where the Court 
 may deem it advisable to admit fresh evidence, it will usually send 
 down an order to the Consul to take the evidence and to transmit 
 the notes of it; and his duty will be to examine the witnesses, after 
 notice to both parties to attend, in the same manner as if the exami- 
 nation were at the original hearing. 
 
 Provision is made in the Rules {See Rule 64) for preventing one compelling pro- 
 party from keeping a suit, as it were, hanging over the head of £2^ 
 
66 
 
 another for an indefinite period, without proceeding to have it heard 
 and decided. 
 
 In exercising the power conferred on the Consular Courts in this 
 particular, it is necessary to remember that there may be causes not 
 discovered by the plaintiff until after he has instituted his suit, which 
 render him naturally and not unfairly desirous of postponing the 
 hearing. Thus, for instance, the loss of a material document which 
 he thinks he can recover, or the departure of a material witness 
 whose return is not certain, but whose presence at the trial would 
 be much more desirable than his written deposition; or again, the 
 desire to avoid the expense of a Commission to examine witnesses; 
 all these induce him to avoid going to trial as long as possible. 
 
 It will be for the Court to decide whether or not the delay is 
 reasonable; and it is only when the delay is clearly harassing or 
 prejudicial to the defendant that the trial should be peremptorily 
 forced on. 
 Power to bwfli- A. very stringent power is sometimes exercised by the Supreme 
 Court of making an order in certain cases barring further proceed- 
 ings in the same cause of suit; local circumstances here, and the 
 absence of any substantial scale of costs, as between party and party, 
 have led to a practice by litigious persons of bringing suit after suit 
 on the same cause, and either abstaining from proceeding to trial on 
 any, or else so withdrawing from the suit before the conclusion as to 
 avoid a judgment for the defendant, which would operate as a bar to 
 a future demand. As a general rule it is and ought to be the right 
 of the plaintiff to elect to be nonsuited at any time before the con- 
 clusion of the case by the Judge's verdict; but experience has shown 
 here that a power ought to be left in the hands of tie Court to bring 
 litigation on one subject matter to a close, where it is evidently pur- 
 sued for the sake of vexation. I cannot recommend, however, non- 
 professional judges to attempt to make an order barring future pro- 
 ceedings, were the plaintiff desires to be non-suited, without a 
 special application on the subject to the Supreme Court; and, indeed, 
 there is every reason to hope that a fair scale of costs will so far 
 operate as a check as to make this provision practically needless 
 after some time. 
 How to get ria of Somewhat similar remarks will apply to the power of bringing 
 proceedings? existing- suits to a close. In every Court there are some "opprobria" 
 of justice of this kind — things which have remained either altogether, 
 or for aH'useful purposes, stationary for lengthened periods, and 
 which are likely so to remain without the active interference of the 
 Court. Some instances occur here where the application of different 
 systems of law to different parts of the same case, the apathy of some 
 parties, and the chicane of others, have produced a confusion not 
 easily remediable. 
 
 It will be right for Consuls to whose attention the state of a suit 
 of long standing may be brought, where no one appears inclined 
 either to advance or to abandon it, to apply to the Supreme Court 
 for direction, where they do not see their way clearly to make the 
 parties get it decided. It will be the duty of the Court, however 
 ungrateful and disagreeable the task, to examine the state of the 
 cause, and direct the Consular Court how to act. 
 
67 
 
 It will frequently happen that the same subject-matter will give cross suits, 
 rise to a suit and cross-suit. Sometimes it will be proper to take 
 measures for hearing 1 both on the same day; sometimes it will be 
 sufficient not to issue execution in one suit until the event of the 
 cross-suit is known. The circumstances of each case must guide 
 the discretion of the Court. (See Rule 55.) ,- 
 
 Where there is no separate Equity jurisdiction, it must frequently Equity, 
 have happened that an "equitable" defence would be set up to a 
 legal claim, and that may be done in the answer, or by a cross- 
 petition. In the former case, if the "equity" is established, it would 
 sometimes be proper to give the consequent relief to the defendant 
 on the hearing of the cause, but in other instances he might fairly 
 he required to file a cross-petition. 
 
 There is considerable difficulty in even speaking of equitable defences 
 to claims, without being greatly misunderstood by persons who have 
 been rather accustomed to look on Equity as implying that natural 
 justice which ought to be the foundation of all law, than as a collec- 
 tion of principles reduced to a strict and often technical system, and 
 when a person considers he has to administer natural justice, he is 
 too apt to make his own caprice the measure of it. Yet an "equitable" 
 jurisdiction, in the professional sense of the word, has always been, 
 and must always be, exercised by the Consular tribunals, for when 
 the importance and complication of the questions which frequently 
 are submitted to these Courts are taken into consideration, and also 
 in some instances the magnitude of the interests involved, all that 
 large and beneficial system which is known in England under the 
 name of Equity cannot be ignored. And it is expressly provided by 
 the Order in Council that a Consular Court shall be a Court of Law 
 and of Equity. 
 
 The tendency of recent legislation has been to invest Courts of Equitable De- 
 Law with many "equitable" powers, but there is no fusion of the fcllt « s - 
 systems in England. An example of a recent case of an "equitable" 
 defence to an action at law will afford an illustration of the distinc- 
 • tion between the systems, and I do not know any reason why such 
 a case might not have come in substance under the judicial action of 
 any of the Consulates here. 
 
 A bequest of money was made to a married woman, to her sole and instance of 
 separate use, independent of the control of her husband, her sole 
 receipt being the discharge to the executor of the will. 
 
 This is one of those bequests which a Court of Equit}' will see car- 
 ried into execution according to the intention of the testator, and 
 the Court will restrain the husband from intermeddling with it, 
 although in a Court of Law money comming to a married woman 
 would instantly be considered as belonging to her husband. 
 
 In this case the wife directed the executor to pay the money to 
 one C, she giving, on such payment, her separate receipt, and she 
 disposed of it by appointing it to be held on certain trusts, under 
 which her husband took no interest whatever. 
 
 The husband afterwards brought an action in a Court of Law 
 against C, for money had and received to the use of him the husband, 
 and the defendant certainly was without any answer at Law, because 
 the money had and received by him to the use of the wife, was, in 
 
68 
 
 point of law, the property of the husband, and he would have to 
 show the husband's authority for disposing- of it. 
 
 Before the Common Law Procedure Act, 1854, the defendant C 
 would have been forced to file a bill in Chancery, setting- out the 
 facts, and praying- for an injunction to restrain the husband from 
 proceeding with his action at law : but under that Act, which allows 
 the pleading of "equitable" defences in an action at law, he pleaded 
 the facts, nearly as I have stated them, as an equitable defence, 
 setting out that he never received any money to the use of the 
 plaintiff, except as aforesaid, thus identifying the transaction in 
 respect of which he was sued with that in which he had received the 
 money by direction of the plaintiff's wife ; and the plea was held by 
 the Court of Queen's Bench to be a good plea. 
 
 But observe, that it was a good "equitable" defence only because 
 it was a defence that a Court of Equity would recognize as a ground 
 for interfering with the proceeding at Law, and which it would force 
 the plaintiff at Law to respect, however the action went. 
 
 Thus, in a case where an action was brought to recover money for 
 freight and porterage, for the conveyance of goods, and for work 
 done and materials provided, the defendant pleaded as an equitable 
 defence that the plaintiff's claim was for work done by him as a 
 bargeman employed by the defendant, and that in the course of 
 that employment plaintiff undertook to carry certain coal of the 
 defendant, and by negligence lost it; that the value of the coal was 
 equal to the amount of plaintiff's claim, and defendant claimed 
 " equitably" to set off the value of the coal lostf against the plaintiff's 
 claim. This plea was demurred to as bad : and the Court held that 
 it was no good equitable defence, but a subject for a cross-action, on 
 the ground that there was no recognized doctrine of Equity which 
 would induce the Court of Chancery to interfere and restrain the 
 plaintiff from prosecuting his action. Under the circumstances, an 
 injunction would have been refused, if asked for, and the defendant 
 would have been left to bring an action for damages for the loss of 
 the coal. There appears to be an absence of natural connection' 
 between the two demands, which would render it proper to leave the 
 defendant to establish the employment and negligence of the plaintiff, 
 the loss of the coals and their value, in a separate demand. And 
 although it might be proper to suspend execution in one action until 
 the other was tried, and, if necessary, to set off one judgment against 
 another, it would be introducing confusion to try two such distinct 
 claims in the one action. 
 
 It might, however, be proper in a case where a defence to an 
 action on a bond or bill clearly establishes the right of the defendant 
 not only to succeed in the particular action, but to have the instru- 
 ment delivered up to be cancelled, to make an order for that purpose 
 without putting the defendant to file a petition to ask for such an 
 order, even though in his answer he may not have suggested his 
 title to that specific relief, 
 specific rerform- The power of compelling what is called "specific performance" of 
 contracts, is one which, probably, Consular Courts will be seldom 
 asked to exercise. And the cases likely to occur in which such 
 relief ought to be granted will be few indeed. 
 
 ance. 
 
69 
 
 I should say of these applications, as I said of injunctions, that 
 the safer course will be never to grant them, unless a strict technical 
 right to them is established; at least, without a reference to the 
 Supreme Court. A remedy in damages for non-performance is in 
 general sufficient. 
 
 This observation, however, does not include a certain class of cases 
 where orders may properly be made for the specific delivery up of 
 certain goods known to be in the defendant's possession or control, 
 and proved to be improperly detained by him from the plaintiff. 
 
 Cases do arise where such an order is equally just and expedient, 
 and where it ought to be made, although Courts of Law in England 
 would only give damages estimated according to the value of the 
 goods. 
 
 It appears to be absolutely necessary to give a'power to Consular Costs, 
 tribunals to award costs of a substantial nature, but according to a 
 recognized scale, as between party and party. It is fair that a party 
 should be indemnified by his adversary for the reasonable expenses 
 of enforcing a just or resisting- an unfounded claim. It is expedient 
 that a check should be put upon vexatious litigation by the know- 
 ledge that the expenses on both sides will have to be borne by its 
 promoter. Costs should not be a matter of course; but there is no 
 power the due exercise of which requires more freedom from caprice 
 than that of awarding or refusing them. 
 
 In all judgments, whether interlocutory or final, some direction 
 should be given about costs, even although' in the former instances 
 the direction will frequently only be, that the costs are to be costs 
 in the cause. And in the Consular Courts generally, it will be 
 proper that the amount allowed should be taxed, or ascertained and 
 certified by the Consul himself. They are recoverable as a judgment 
 debt; and where the payment of costs is made a condition precedent 
 to the liberty to do any particular act, this condition should be 
 strictly observed. 
 
 The costs of professional assistance should not be allowed except 
 where real professional assistance has been given, and then only 
 when there appears to the Court to have been a reasonable necessity 
 for it, either from the nature or from the importance of the question 
 between the parties. 
 
 I know no better way of discouraging the voluminous pleadings 
 which have afflicted the Court and public here than by refusing to 
 allow their expense, not only between party and party, but between 
 attorney and client, when the bill of the former is disputed, as often 
 happens, by the latter. 
 
 It would be desirable ifj in the great Consulates, something like Practitioners, 
 a roll of recognized practitioners could be established; but I see little 
 chance of the business at any of the Provincial Courts being of a 
 nature to attract men of ability or standing — as soon as the new 
 system is more firmly established and fulfils the object for which it 
 was brought into existence, the Chief or Assistant Judge of the 
 Supreme Court will probably make an annual Circuit to the Chief 
 Consulates and then in all probability the Bar of that Court will 
 follow him. 
 
 The duty of deciding civil cases without the intervention of a jury, DamageB. 
 
70 
 
 which is cast upon Consular tribunals, makes it more especially ne- 
 cessary that Consuls should endeavour to understand the principle 
 on which damages should be given : they are, indeed, placed in a 
 position of most exceptional responsibility in this respect. A Judge 
 presiding at a trial in England is well qualified to instruct the jury 
 as to the principle on which they ought to proceed in assessing 
 damages ; and, in fact, they have the benefit of his judgment, 
 learning, and experience brought home to the particular case in 
 hand. A County Court Judge in England has the functions of a 
 jury cast on him in many cases; but he is a professional man of 
 experience, and his jurisdiction altogether, except by consent, is ex- 
 tremely limited; in addition to which, it may be observed, that in 
 almost every case of importance, where there is any question fit for 
 a jury, it is the interest of one party or the other to apply for it, and 
 the judge is, in fact, assisted by a jury. It has, it is true, been 
 thought right to oblige the Judges of the Superior Courts in England 
 to try cases without a jury on the consent of parties, but there ap- 
 pears to be an extreme disinclination on all sides to resort to this 
 course. 
 
 All suits to recover money seek it either in debt or in damages, 
 and the damages sought may be either a sum certain or a sum "un- 
 liquidated," that is, unascertained. In any action of debt, and in 
 the former of the two classes of claims for damages, the plaintiff seeks 
 to recover a specific sum ; and the duty cast upon the Court quoad 
 the amount for which judgment should be given, is simply to ascer- 
 tain whether the plaintiff has proved the wholeor only a part of the 
 claim, or whether the defendant has rebutted the proof of any part 
 thereof, or has shown any reason for diminishing the amount, 
 whether by partial failure of consideration, payment, set-off, or other 
 defence, as to part, 
 interest. A question, however, will often arise in these cases as to whether 
 
 interest, which may be regarded as a species of real damages or 
 compensation for the detention of the debt, ought to be allowed to 
 the plaintiff. 
 
 In most petitions, whether to recover a debt or to recover damages 
 for breach of contract, and whether the damages be a sum certain 
 or be really unliquidated, interest is pretty sure to be specially asked 
 for; and it becomes important to go even into detail to inform Con- 
 suls of what the state of the English law on this subject is, and in 
 what cases they are obliged, in what allowed, and in what not 
 allowed to grant interest as part of their judgment. 
 
 By an important Act passed in the reign of King William the 
 Fourth — being "An Act for the amendment of the Law," it is pro- 
 vided: "That upon all debts or sums certain, payable at a certain 
 " time, or otherwise, the jury, upon the trial of any issue or on any 
 " inquisition of damages, may, if they shall think fit, allow interest 
 " to the creditor at a rate not exceeding the current rate of interest, 
 "from the time when such debts or sums certain were payable, if 
 " such debts or sums be payable by virtue of a written instrument 
 "at a certain time; or, if payable otherwise, then from the time 
 " when demand of payment shall have been made in writing, so as 
 " such demand shall give notice to the debtor that the interest will 
 
71 
 
 " be claimed from the date of such demand until the term of pay* 
 " ment; provided that interest shall be payable in all cases in which it 
 " is now payable by lam." 
 
 On which it may be observed — first, that it does not extend to any No interest on 
 action on contract which is brought strictly for the recovery of unli- damages!* 64 
 mtidated damages. Secondly, that it is discretionary in the jury (or 
 Judge exercising- the functions of a jury) to allow interest even in 
 the cases specified. Thirdly, that there is no discretionary power 
 to award interest unless there be proof of a written instrument, 
 whereby the debt or sum certain is made payable at a certain time, 
 or proof of a written demand of the money, containing a notice that 
 interest will henceforth be claimed. And fourthly, that interest 
 must be given in all those cases in which it was payable by law at 
 time when this Act was passed. 
 
 The general common law rule is, that the law does not imply a 
 contract on the part of a debtor to pay interest on the sum he owes> 
 although the debt may be of fixed amount, and may have been fre- 
 quently demanded. Nor is interest due as a matter of right in the 
 absence of an express stipulation, even in the case of written instru- 
 ments, unless they be commercial instruments of a negotiable na- 
 ture, such as bills of exchange and promissory notes. It is not of 
 right on a claim for goods sold, although the price was to have been 
 paid on a certain day, or on a balance struck on an account for 
 goods sold (although it is of right on an account stated between 
 parties for money lent), or on a debt due for work and materials, or 
 for money lent to or paid for the defendant, or had and received by 
 him for the plaintiff's use, not even although it had been fraudulently 
 received. It is not necessarily payable on a guarantee, or on a sum 
 insured on a ship or on life, or on an attorney's bill, or upon a deed 
 or covenant for the payment of money, unless amounting to a bond, 
 or upon a sum due on a balance of accounts, or in most cases on 
 money deposited with a banker. 
 
 But at common law, in the case of bills of exchange and promis- interest on bais 
 sory notes, the claim to interest is supported by mercantile usage: ofExchall se. 
 the acceptor of the bill and the maker of the note are respectively 
 liable to pay interest thereon in the nature of damages from the 
 time the instrument became due, even although interest be not re- 
 served on the face of it, and there be no proof of any demand of 
 payment : and in case of a note payable on demand, the plaintiff is 
 entitled to recover interest from the time of the commencement of 
 his action. 
 
 A banker's cheque carries interest, and the drawer or indorser of 
 a bill, or the indorser of a note, is liable to pay interest from the 
 time he receives notice of the dishonour. It has been held, that if 
 there be a contract to pay a debt by a bill of exchange or promissory 
 note, and the debtor refuses to give it, the plaintiff may recover 
 interest on the amount from the time when the instrument, if given, 
 would have become due, as part of the debt or damages; and the 
 reason of this decision is obvious, for he contracted for that which 
 would have made him liable to pay interest from the time referred 
 to. But if the delay in paying a bill or note has been occasioned 
 by the deiault of the holder, or the claim has lain dormant for a long 
 
72 
 
 On Bonds. 
 
 Compound 
 Interest. 
 
 Discretion of 
 Court in granting 
 
 Interest. 
 
 time without any demand by him, the Court may and (without a 
 good excuse in the latter case as between the parties) ought to refuse 
 to allow interest: and where the holder of a bill died intestate, and 
 no administration was taken out at once, it was held that the 
 acceptor of a bill was not chargeable with interest, except from the 
 time when the administrator, as the only person legally entitled, 
 demands payment of the principal. 
 
 Money payable under an award carries interest from the day on 
 which it was payable, if recovered in a civil action. 
 
 A bond conditioned for payment of money impliedly carries interest 
 from the time of the default which enables it to be put in suit, but 
 not to an amount making the whole sum recoverable exceed the 
 penalty. 
 
 A surety compelled to pay a sum of money is entitled to recover 
 interest thereon, if his obligation to pay arose from his principal's 
 default. 
 
 There is no title to compound interest, except from expressed 
 contract, or a contract implied from the mode of dealing with former 
 accounts, or custom. And it has been decided that a customer is 
 not bound or affected by the practice of his bankers to charge interest 
 upon interest, unless it be proved that he was aware that such was 
 their custom. It has been held by the House of Lords, that in 
 England, a contract or promise for compound interest is not avail- 
 able, except, perhaps, in the case of mercantile accounts current for 
 mutual transactions. 
 
 As a general rule, interest is allowed if there be a contract for the 
 payment thereof, and an agreement between the parties that it should 
 be paid may be inferred from the course of dealing, as, if it has been 
 frequently charged and paid without objection in former and similar 
 accounts ; so, if it appear to be the invariable custom or usage in 
 any particular trade or business to charge interest this may amount 
 to evidence of an implied contract between parties to allow it in 
 transactions therein. 
 
 It has been held that where a party is indebted to a trader who 
 becomes bankrupt, in a sum bearing interest, the assignees may 
 recover interest accruing subsequently to the bankruptcy, although 
 there may appear to have been no eocpress reservation of interest at 
 
 It will appear from this exposition of the law, which I have thought 
 fit to state mostly in the words of a text- writer of authority, that 
 before the statute of William IV. there were many cases of great 
 hardship and injustice, where the jury could not give interest. It 
 is left now to their discretion in these cases of "debt," or "sum 
 certain." And also by another section of the Act they have power 
 to give damages in the nature of interest in certain cases where the 
 value of goods or chattels wrongfully taken, or detained, or applied, 
 or "converted" by the defendant, is sought to be recovered. Where 
 the legislature has left a question to the discretion of a jury or other 
 tribunal representing it, I have no intention of attempting to lay 
 down any rules which would fetter a Consular Court in the exercise 
 of its discretion in particular cases. The circumstances under which 
 claims have accrued, and are brought forward, their nature, the time 
 
73 
 
 which has elapsed since the debt became due, and the reasons, or 
 absence of reason, why the plaintiff has neglected to take means to 
 recover it for any lengthened period: these and other points na- 
 turally come under the attention of the Court at the time of trial, 
 and help it to &just order where that order is really discretionary, 
 
 There may be cases in which the custom of the particular place 
 or particular business has removed the question of interest from the 
 discretion of the Court, to the extent, at least, to which such custom 
 is established, and where this is the case Consuls should, of course, 
 act on the custom. 
 
 I now come to the consideration of damages in a more general Compensation by 
 sense, as compensation for a wrong done, in order that we may see Wtty0 amage "' 
 on what principle they may be assessed. 
 
 And, first, then, with regard to damages for a breach of contract, 
 whether express or implied. There are, of course, many cases where 
 the measure of damages for breach of contract will become apparent 
 from the nature of the contract itself, unless where " consequential 
 damages" are claimed, of which I shall presently speak. Work 
 done at a price agreed on — goods sold and delivered at a stipulated 
 price, give rise, when the price is not paid, to a demand on a promise 
 to pay the sums respectively due, which are as certain as if they had 
 been lent to the defendant. But if the work was done, or the goods 
 supplied at the defendant's request, without any express stipulation 
 as to price, inasmuch as the law would then imply a promise on his 
 part to pay, the valve of the labour or the goods would be the mea- 
 sure of the damages on non-payment, and must, if disputed, be 
 ascertained. And I shall take this opportunity of observing that 
 the general denial which, in Consular Courts, would be inferred from 
 the absence of an answer, would not excuse the plaintiff from the 
 proof of the value of the work or goods, nor ought the defendant to 
 be precluded from showing that they were worthless, or of inferior 
 quality, in order to reduce the damages. 
 
 Where the nature and circumstances of the contract, however, Penalties on 
 do not supply a direct or sure method of ascertaining the amount of J?act? lesof C<m ' 
 damages, it does not unfrequently happen that in express written 
 contracts the parties endeavour to supply this omission in contempla- 
 tion of a breach by inserting a clause to the effect that the party 
 making default shall pay to the other a certain sum of money, which 
 sometimes is expressed to be by way of "penalty," sometimes as and 
 for "liquidated" (that is, ascertained), damages for the breach. 
 
 It is right to call the attention of those who have to administer 
 justice, to the state of the law of England on clauses of this nature — 
 and that with some degree of particularity, for it is in itself special, 
 and founded on sometimes apparently fine, but very just, distinctions; 
 and these provisions are not uncommon, under one form or another, 
 in charter-parties, and very usual in other agreements, such as for 
 building houses, <fcc. : matters which may come at any time before a 
 Consul for his dicision. A case occurred at Constantinople before 
 the establishment of the Supreme Court, in which a Mercantile Com- 
 mission appointed by Her Majesty's Ambassador to assist him in 
 an appeal from the decision of a Mixed Commission appear to have 
 construed the words in a charter-party, "penalty for non-perfor- 
 
74 
 
 Difference be- 
 tween "a Penal- 
 ty" and "Liqui- 
 dated damages." 
 
 mance, so much," as giving 1 the right to the plaintiff, on breach by 
 the defendant, to recover the whole penal sum; and although they 
 allowed the deduction of a small sum in consequence of certain 
 absolute earnings by the ship, proved to have been received by the 
 plaintiff, they gave a judgment for the residue, being the great 
 bulk of the penal sum, without a thought apparently of calling on 
 the plaintiff to prove what damage he had actually incurred. This 
 judgment was put into execution, and I quote it as a specimen of the 
 substantial injustice which the absence of knowledge, however natural 
 and excusable, may inflict, and as a reason for calling special atten- 
 tion to the true difference between a penalty and liquidated damages. 
 
 A penalty in the sense in which the law construes the word for 
 the purpose of which I am speaking, is a sum intended to cover any 
 damage which may be actually incurred by a breach of the contract. 
 
 " Liquidated damages " are the sum that is to be paid in the event 
 of a breach, without reference to ike eootent of ike injury sustained. 
 
 Now the first thing to be remarked is, that in a contract the use 
 of the words, "as and for liquidated damages, and not by way of 
 penalty," or words of a similar nature, are not conclusive of the real 
 intention of the parties, which must be gathered from the whole 
 instrument; and perhaps this is a safe rule, so far as it goes, "that 
 where articles contain covenants for the performance of several things, 
 damages for the breach of any one of which are certain in their nature 
 and amount, and then one large sum is stated at the end to be paid 
 upon breach of performance, that must be considered as a penalty; 
 but where the damages in every case of breach would necessarily be 
 uncertain in their nature and amount, then the sum may be consi- 
 dered as stipulated or liquidated damages. And where it is agreed 
 that if a party do such a particular thing, such a sum shall be paid 
 by him, there the sum stated may be treated as liquidated damages." 
 Not conclusively, observe, that it must; but, as it is expressed else- 
 where, where there is a provision that a certain sum shall be paid in 
 the event of the performance or non-performance of a particular 
 specified act with regard to which, in case of default, damages in 
 their nature uncertain may arise, and there are no words evincing an 
 intention that the sum reserved shall be viewed as a penalty only, then 
 such sum may be recovered as liquidated damages. 
 
 The consideration of a few decided cases will make the foregoing 
 observations more easy to understand. 
 
 In a case looked on until lately as the leading authority, the 
 plaintiff and defendant agreed that the defendant should act in the 
 plaintiff's theatre for four seasons, and should in all things conform 
 to the regulations of the theatre; that the plaintiff should pay the 
 defendant '61. 8s. 6d. every night on which the theatre was open for 
 theatrical performances; and that the defendant should be allowed 
 a benefit, &c. And the agreement contained a clause, that if either 
 of the parties should neglect or refuse to fulfil the said agreement, or 
 any part thereof, or any stipulation therein contained, such party 
 should pay to the other the sum of 1,000?., to which sum it was 
 thereby agreed that the damages sustained by any such omission, 
 neglect, or refusal should amount, and which sum was thereby de- 
 clared by the said parties to be liquidated and ascertained datnages, 
 
75 
 
 and not a penalty or penal sum, or in the nature thereof. 
 
 On breach by the defendant, who refused to act during- the second 
 season, the Court of Common Pleas held the provision to be in the 
 nature of a penalty, gathering the reasonable intention of the parties 
 from the whole instrument; for, as was observed in the judgment, 
 the clause was not confined to breaches which were of uncertain 
 nature and amount (meaning- apparently thereby breaches for which 
 substantial damages, unascertained and difficult to ascertain, might 
 . be recoverable), but extended to any stipulations, so that if the plain- 
 tiff neglected to make one single payment of SI. 8s. 6d., or the de* 
 fendant omitted to conform to any regulation of the theatre however 
 unimportant, the amount of 1,000Z., without deduction, would in- 
 stantly become due from one to the other, on the construction of the 
 instrument, according to the letter of the words. 
 
 And it is certain that in these cases, whatever the language used, Eeai intention 
 if it is plain from the whole instrument that the real intention of the guFde?"*' thB 
 parties was different, the Courts will not hold them to the language. 
 If a sum be named in respect of the non-p8rformance of one covenant 
 only, and be expressly declared to be reserved as liquidated damages, 
 and not as a penalty, it will be held to be the sole measure of da- 
 mages between the parties ; and were two persons agreed to perform 
 certain work in a limited time, or to pay a stipulated weekly sum 
 for such time afterwards as it should remain unfinished, the Court 
 held that such weekly payments were not by way of penalty, but in 
 the nature of liquidated damages. 
 
 As an instance that the Courts do not regard the mere words, 
 when inconsistent with the spirit and intention of the parties derived 
 from the instrument itself, it may be mentioned that the very use of 
 the word "penalty" in a stipulation of this kind will no more conclude 
 the result, than the use of the words "liquidated damages." In a 
 case where the agreement was that in consideration that the plaintiff, 
 who was a surgeon, would engage the defendant as his assistant, 
 the defendant promised not to practise within seven miles of the 
 plaintiff's residence, under "a penalty" of 500Z., it was held that, 
 under this agreement, the 500/., though called a penalty, was reco- 
 verable as liquidated damages. 
 
 In a recent case the Court of Queen's Bench has expressed the 
 principle of all the decisions to be, to ascertain what was the real 
 intention of the parties as to the light in which the stipidated sum 
 should be regarded, and that all rules laid down were only ancillary 
 to the discovery of the intention. It may not be superfluous in quot- 
 ing this, to point out that the "intention" is to be got from the 
 instrument itself, and that it is not allowable to seek for evidence of 
 it elsewhere. As to what rules are to guide the Court in judging of 
 the intention, it is observed that the fact that the sum is large and 
 exaggerated, does not of itself show that it was intended as a penalty. 
 Again, the circumstance that more than one thing is to be done or 
 forborne, does not determine the question. But the principle to be 
 deduced from all the decisions is, that if the covenant relates to mat- 
 ters which are not of an uncertain nature and amount, as where the 
 covenant is for the payment of a certain sum, and the damages named 
 in the deed are a much larger sum, the sum so stated is to be regard- 
 
76 
 
 When no damag- 
 es are fixed. 
 
 Consequential 
 damages. 
 
 ed as a penalty. And if some of the stipulations in the covenant are 
 of a certain nature and amount, and others of uncertain nature and 
 amount, as the sum could not be treated as liquidated damages in 
 respect of one or more of the stipulations, it ought not to be so treated 
 in respect of the others. So, in another case, a distinguished Judge 
 has laid down, that "if a party agrees to pay 1,000Z. on several 
 " events, all of which are capable of accurate valuation, the sum 
 "must be construed as a penalty, and not as liquidated damages. 
 " But if there be a contract, consisting of one or more stipulations, 
 " the breach of which " (construed by another learned Judge to mean 
 " all of which ") " cannot be measured, then the parties must be taken 
 " to have meant that the sum agreed on was to be taken as liquidated 
 " damages, and not as a penalty." 
 
 The very common instance of "uncertain damage" in these cases 
 is where a medical man on being brought into a partnership, cove- 
 nants not to practise in a particular district after the dissolution of 
 the partnership. If he breaks the covenant by attending a single 
 case, it may be, as has been well said, the loss of a single bill, or it 
 may lead to the loss of a line of practice, connection, fortune, of 
 everything, in short, to the other party; and the Courts, in such a 
 case, have always taken the sum stipulated, as "liquidated damages." 
 
 In case the parties have not made any agreement for estimating 
 the damages of a breach of contract, it becomes the duty of the Court 
 to do so on the evidence adduced, whether by proof or admission. 
 And first, it may be taken as a rule that the damages on a breach of 
 contract to pay money, are, except so far as interest ought to be given, 
 nominal; but in other cases, where an action is brought upon a con- 
 tract for the recovery of general damages by reason of the non-per- 
 formance of an act which the defendant had undertaken to perform, 
 or the commission of an act which he had contracted to avoid, the 
 Court may likewise take into consideration any consequential injury 
 which the plaintiff has sustained, provided such injury be the fair 
 and natural result of the defendant's violation of his agreement. 
 
 It is easy to perceive that in applying this rule, it may be often 
 difficult to know how far to go; and I prefer giving some illustra- 
 tions of the measure of damages recognized on argument by the 
 Courts in certain ordinary cases, to quoting nice cases of difficulty 
 which may illustrate the limits of the practice. 
 
 Of contracts for money I have spoken, and I repeat that conse- 
 quential damage for the non-payment of it according to the contract, 
 is not allowed. This rule appears to be observed on motives of general 
 convenience, for there is no saying what limit otherwise could be 
 placed to the consequential damage arising from not paying money 
 according to the promise; perhaps it is, on the whole, fair to calcu- 
 late that the true damage is the interest at the current rate on the 
 sum you are kept out of, for the time you are so kept out of it. 
 However imperfect this measure of damages may be in certain cases, 
 it is the one adopted. 
 
 In an action on breach of contract for not delivering goods upon 
 a given day, the measure of damages is the difference between the 
 contract price and that which goods of a similar quality and descrip- 
 tion bore in the market at the time the goods ought to have been 
 
77 
 
 delivered; and this rule will hold good though thevendor had given 
 notice before that day that he would not perform the contract (the 
 buyer not agreeing, of course,- to rescind), or though the buyer had, 
 in pursuance of the contract, given bills of exchange for the goods; 
 but in that case he must allow the bills to come to maturity and be 
 dishonoured, as it would seem, before bringing his action. 
 
 The measure of damages in an action for not accepting railway 
 shares, is the difference of the price of the shares in the market on 
 the day when they ought to have been accepted, and on the day when 
 they were resold by the vendor within a reasonable time. 
 
 It is said that in certain cases where the breach of contract is 
 coupled with circumstances which place the defendant in the light 
 of a wrong doer, the jury are allowed to take a greater latitude in 
 assessing the damages; and in the familiar case of an action on 
 breach of promise to marry, the jury are constantly in the habit of 
 giving exemplary damages : nor will "the Courts be disposed to inter- 
 fere, except in case of very excessive damages. 
 
 .There is a rule with regard to special damage in English pleading, special damage, 
 of which the principle is so sound that ought to be enforced in peti- 
 tions in Consular Courts. It may be laid down thus, as applicable 
 here, that damages which necessarily and by implication of law arise 
 from the non-performance of a contract, need not be expressly stated, 
 although they must be included in the calculation of the sum claimed 
 for damages in the petition, inasmuch as the plaintiff cannot possibly 
 recover more; but if any part of the sum laid as damages consists, 
 in the plaintiff's calculation, of damages special or consequential 
 under particular circumstances, and not such as the law would always 
 imply, he should set out his special damage expressly; for the de- 
 fendant is entitled to know in respect of what facts he claims such 
 damages, so that he may be prepared to rebut the facts, or argue 
 that the consequence is too remote, in the general contemplation of 
 law, to enable the plaintiff to recover that part of his claim. 
 
 In actions which in England are classed under the general head Damages in Ac- 
 of "torts" (a term used to signify such wrongs as are in their nature tIonsof " Tort - 
 distinguishable from breaches of contract), the measure of damages 
 differs very materially in practice. In some, as in "trover," where 
 the value of goods of the plaintiff supposed to be converted by the 
 defendant to his own use is sought for, the proper measure of da- 
 mages would be the value and reasonable consequential damage for 
 their "conversion" or loss to the plaintiff. 
 
 Under one section of the Act I have alluded to, the jury may give 
 interest on the sum assessed as the value for the detention. In the 
 action of " detinue," where the judgment is that the plaintiff reco- 
 ver the specific thing, or its value, assessed at so much, with damages 
 for its detention, a jury in England has been permitted to give a 
 very high value, for the purpose of ensuring the return of the chattel; 
 for a Court of Law had no power to compel the specific delivery up 
 of the thing in dispute; but the jurisdiction of the Consular Courts, 
 which enables them, when the chattel in dispute can and ought to 
 be delivered up by the defendant, to compel him to do so, renders it 
 unnecessary in most intances to resort to such means. 
 
 In many instances, however, of actions of this large class, the dis- 
 
78 
 
 Excessive dam- 
 ages, ground of 
 Appeal. 
 
 cretion of the jury is not only practically unfettered at the time, but 
 the Courts will not grant new trials for excess of damages, except in 
 gross cases, where the damages given are absurd in amount, showing 
 unjustifiable passion or prejudice on the part of the jury; or where 
 the jury seem clearly to have taken a wrong view, through ignor- 
 ance of the principle on which they ought to act. 
 Exemplary In actions for libel, seduction, assault, false imprisonment, mali- 
 
 cious prosecution or arrest, and the like, the jury are allowed, in 
 practice, to grant heavy damages, although no special damage may 
 be established. I am happy to say that proceedings of this kind 
 have, in my experience here, been very rare, possibly from the absence 
 of profitable costs; and it is only necessary to repeat on this subject 
 the warning given generally to juries in these cases to be temperate 
 in assessing damages in actions of this description. Actions for 
 mere slander are discouraged, unless the plaintiff can show special 
 damage caused by the slanderous words. 
 
 To grant excessive, that is, clearly unreasonable damages, is to 
 lay a ground for an appeal; and in cases where a sum certain is 
 demanded and should have been granted, to grant a less sum would 
 also lay open the judgment to objection. It will be well, where 
 Consuls think that there is an arguable ground of objection to their 
 judgment, in either of these respects, to reserve leave for an appli- 
 cation to the Supreme Court, on the record and notes of evidence, to 
 reduce or increase the damages, the Court being at liberty to draw 
 inferences of fact from the evidence, as if it were a jury; and this 
 may often save the expense of a new trial. This necessity may 
 fairly be expected to arise not unfrequently in those cases where 
 remoteness of consequential damage allowed is the ground of objec- 
 tion to the judgment; in such cases the party objecting to the judg- 
 ment on other grounds also, may, of course, appeal generally, so 
 that the Court would be able to consider the two points in succession, 
 and do justice by one order. 
 Bankruptcy. A Bankruptcy jurisdiction in Consular Courts is now recognized 
 
 and authorized by the Order in Council. It is one of importance 
 and delicacy; and it is necessary that as much uniformity as possi- 
 ble should be observed in its exercise. 
 
 The number of bankruptcies is very considerable, while the cases 
 very seldom indeed go through their ordinary course. 
 
 They are almost invariably commenced by an adjudication on the 
 petition of the person seeking to become bankrupt, with the object 
 to save himself from arrest, or defeat some particular judgment cre- 
 ditor. And the want of knowledge of the law, and the absence of 
 persons accustomed to sift out the truth in public examinations, 
 too often enable the debtor to conceal (even if he takes the trouble 
 to conceal) and enjoy valuable assets which ought of right to have 
 gone to his creditors. 
 
 The Hules do not contain provisions specially applicable to Bank- 
 ruptcy, partly because the Acts of Parliament now in force in Eng- 
 land and the Rules made under them appear to be at present for 
 most purposes a sufficient guide, and partly because extensive and 
 important changes, both in principle and in detail, are expected to 
 be soon introduced into the system in England. 
 
79 
 
 Every Consul acting in these matters ought to possesses a good 
 edition of the Acts for the time being in force, with a compendious 
 statement of the usual steps in a bankruptcy in their course and 
 order, and containing notes showing how incidental questions have 
 been decided, and what are the principles established for the decision 
 of others likely to arise. 
 
 I cannot pretend, in a circular of this kind, to supply a substitute 
 for such a guide; but it may not be useless to point out the general 
 principles and chief details of the existing system, a knowledge of 
 which will, moreover, be the best assistant to the Consul when it 
 becomes his duty to acquaint himself with the new principles and 
 practice which, as I have said, are likely to be before long introduc- 
 ed in this department of the law. 
 
 In all cases of doubt or difficulty the Consul should remember that 
 he is at liberty to apply to the Supreme Court for advice and direc- 
 tion. 
 
 The English bankruptcy laws as they now exist may be properly owect of Bank- 
 said to have a double object — to enforce complete discovery and rupt w " 
 equitable distribution of the property and efFects of an insolvent; 
 and to secure to him, as an equivalent the discharge from his liabi- 
 lities, both in person, and in after-acquired property. Provision is 
 made to suspend, or even altogether to refuse this discharge, where 
 the conduct of the insolvent prevents his creditors from having the 
 benefit of the intention of the law, whether by his faults of omission 
 or commission. And he is either perpetually disabled (unless after 
 full satisfaction of his debts) from trading or acquiring property to 
 his own profit; or his right to do so is suspended for a definite time, 
 either with or without personal protection against arrest by his 
 creditors : so that he returns to trade, freed, indeed, from his debts, 
 but with such a mark against him as a dishonest or reckless trader, 
 as must seriously impair his credit, and bar his prospects. 
 
 The provisions of the laws of bankruptcy are generally well adapt- 
 ed to discover and punish dishonesty, and to protect mere misfortune; 
 any person is liable to be adjudicated bankrupt, on the commission 
 of an act of bankruptcy. 
 
 Acts of bankruptcy may be divided into two classes, the fomer of ActsofBank- 
 which have all one necessary element involved in them, namely, "*'<*■ 
 that they must be done with intent to defeat or delay the creditors; 
 the latter class are independent of intention, but one of them consists 
 in a declaration of insolvency; and another, which consists in re- 
 maining in prison for a certain time under arrest for debt, or other 
 process for the non-payment of money, raises an irresistible presump- 
 tion to the same effect. The escape from confinement on civil pro- 
 cess, is also, in itself, an act of bankruptcy, and this is probably 
 based on a similar presumption of insolvency. 
 
 The application for adjudication is seldom hostile here; indeed, Petition for aajn- 
 the filing of a petition of adjudication by the debtor against himself, dication - 
 is by far the most common commencement of the proceedings. 
 However, it is proper to consider first the method by which one 
 person can» obtain an adjudication of bankruptcy against another. 
 A form of petition and of the accompanying affidavit is given by the 
 Act of Parliament, and the necessary particulars which must be 
 
80 
 
 Mast be in 
 respect of a Debt. 
 
 Joint Petition. 
 
 Adjudication. 
 
 sworn to, and of which the Court must be satisfied before the adju- 
 dication, are specified. 
 
 The petitioner, it will be seen, must be a creditor, and that to the 
 extent of 501. 
 
 The debt must be a debt in the strict sense, and actually due and 
 payable. 
 
 And the person petitioned against must have committed some act 
 of bankruptcy. 
 
 There are provisions with regard to the case of a joint petition by 
 creditors, to which it is not necessary more specially to refer; the 
 principle will be apparent. No one but a creditor to a substantial 
 amount ought to be enabled to compel a trader to wind up his affairs 
 in bankruptcy; but if several persons having debts owing to them, 
 each within the limit arbitrarily prescribed, but amounting in the 
 whole to a large and substantial liability, are all desirous of having 
 the debtor's affairs investigated and his property divided in Bank- 
 ruptcy, they are at liberty to do so. It will be observed also, that 
 the Act allows any creditor who cotild have himself supported a 
 petition for adjudication, to take up and proceed upon one which 
 may have been abandoned, thus endeavouring to prevent collusion 
 and undue preference. 
 
 Any debtor may petition for adjudication of Bankruptcy against 
 himself and the filing of such a petition is itself an act of Bankruptcy. 
 A debtor imprisoned for debt, and unable through the expenses at- 
 tending the points to pay for the filing of a petition may petition 
 injbrmd pauperis. 
 
 If the Court, on the hearing of the petition of adjudication is 
 satisfied that the requirements of the law have been complied with, 
 it is bound to adjudicate, and, on adjudication, certain notices be- 
 come necessary, which naturally lead me to say something as to the 
 manner in which the act of Parliament is to be complied with, and 
 the extent to which it is necessary to carry out its provisions to the 
 latter. And first, it is clear that there are directions as to advertis- 
 ing, and the like, which in some cases are impossible, in others, 
 useless. It is not impossible, but useless, to advertise an adjudica- 
 tion of bankruptcy against a merchant at Shanghai or Yokohama 
 in the "London Gazette;" it is however quite possible to do so in a 
 local paper where one exists. The object, must be to comply with 
 the spirit of the Act as to public announcements in the most public 
 way that is available; and with regard to all notices, wherein a 
 certain number of days are prescribed, this should be executed to 
 the letter, for, in these instances, spirit and letter are one. So in 
 those cases where officers of the Court of Bankruptcy in England 
 are mentioned in the Act, which do not exist in most, if in any, 
 Consular Courts. The spirit of the Act is complied with when 
 the terms are taken to apply to those who are performing the func- 
 tions and duties appertaining to their respective offices. Now, after 
 adjudication has been pronounced, the English law, mindful that 
 such a proceeding must often take place, ex parte, and anxious that 
 a fatal blow may not be given to the public credit of a trader who 
 may really be solvent, notwithstanding that he has committed the 
 particular act of bankruptcy, delays for a certain number of days 
 
81 
 
 the advertisement of adjudication, unless the bankrupt expressly 
 consents to an earlier advertisement. It is clearly the duty of the 
 Consular Court to carry into effect this provision, whatever meaning 
 it may have to attach to the word "advertisement," so that the 
 bankrupt may have the full benefit of the opportunity allowed to 
 come in, and either dispute the adjudication, or settle with the 
 creditor, which, if he is really solvent, it is most just that he should 
 be permitted to do so. 
 
 The essential duties which are to be performed after adjudication, Proceedings after 
 for the purpose of making it answer its intended purposes, consist JU "* ou " 
 in giving notice of it to the public, so that no person may pay 
 money or deliver goods to, or receive them from the bankrupt; also, 
 in taking possession of all existing goods belonging to the bank- 
 rupt; and, moreover, in appointing certain days upon which he is 
 to surrender, personally, for the purpose of being examined, touch- 
 ing his estate and effects, and being dealt with generally, according 
 to the provisions of the Bankrupt Laws. This surrender is always 
 looked on as a matter of the highest possible importance, for the 
 creditors are entitled to the bankrupt's information and assistance 
 in the winding-up and recovery of his estate; and if they are not, at 
 least the Court is entitled to have personal control over him, so that, 
 if he has acted fraudulently or recklessly, he may be at hand to 
 meet the consequences of his acts. No discharge can accordingly 
 be granted unless the bankrupt surrenders ; but, in addition to this, 
 he incurs a far heavier penalty by not surrendering, being thereby, 
 ipso facto, guilty of a misdemeanour, and liable to imprisonment 
 for three years. 
 
 No Consul should ordinarily allow criminal proceedings to be 
 taken against any person for an offence against the bankrupt laws 
 without first applying for advice and instructions to the Supreme 
 Court; and I trust that the whole jurisdiction is now settled on so 
 clear a footing as to enable this Court to take effective steps for the 
 punishment of fraudulent bankrupts, with a due regard to that 
 security which the whole spirit of the English law throws round 
 persons who are not really guilty. In no one point is the supe- 
 riority of our system more apparent over that of the foreign codes 
 than in all proceedings relating to bankruptcy when carried on in 
 these countries. 
 
 It is, I have no hesitation in saying, almost impossible for foreign 
 trader, however honest his general dealings may have been, to escape 
 the danger of incurring a severe penal liability under the unbending 
 provisions of most foreign codes, imder which, in such countries 
 as China and Japan, every "faillite," if narrowly scrutinised, is 
 pretty sure to turn into a "culpable" or "fraudulent bancarotta." 
 The English system, far more elastic in its provisions, keeps the 
 power in the hands of those who have to administer it, of discrimi- 
 nating between every grade of imprudence up to that degree of 
 reckless trading which amounts to positive fraud, and of awarding 
 to each separate case a retribution adequate and appropriate. In 
 practice, as might have been expected, the system of the code has 
 defeated itself. And what between a want of will on the part of 
 creditors, and a want of power in the Consular Courts, fraudulent 
 
 Criminal pro- 
 ceedings under 
 Bankrupt Law. 
 
82 
 
 Securing Estate 
 of Bankrupt. 
 
 bankruptcies of a very gross kind have taken place with perfect im- 
 punity. I know of no one instance of punishment, nor is it at all to he 
 expected until creditors hecome more alive to their interests and duties 
 that the criminal sections of the bankrupt act are likely to be pro- 
 ductive of benefit. Either fraudulent bankrupts must escape for 
 want of evidence, or be convicted on materials which, according to 
 our notions and principles, would be grossly insufficient. And such 
 convictions we generally suppose to produce more harm than good. 
 Indeed, example on the spot is what is wanted, and that under such 
 clear circumstances as will ensure the assent of the whole mercan- 
 tile communities to the conviction and punishment. 
 
 It will be observed that one of the first duties after an adjudication 
 in bankruptcy, imposed on the Court, is to name an official assignee, 
 and in some shape, and for some purposes, it is desirable tha't an 
 officer attached to the Consulate, or some solvent and respectable 
 person, not a creditor, should fill this office. 
 
 In the first place, it is requisite to give directions for securing the 
 bankrupt's estate, and looking into his affairs immediately; and 
 before trade assignees are appointed by the creditors, much time 
 may be lost and irreparable mischief done. The person so appoint- 
 ed, should, forthwith, under the leave and direction of the Court, 
 secure the bankrupt's properly, ascertain that he is forthcoming, 
 and not likely to abscond; and require from him a list of the credi- 
 tors, a list of the debtors to the estate, a statement of rent (if any) 
 due on premises occupied by him, and of wages due to servants or 
 clerks, a statement of the probable value of the stock-in-trade, fur- 
 niture, &c, and a list of the books, papers, securities, and the like, 
 verified on oath. These books and papers ought to be the object of 
 special and immediate attention, and some provision ought to be 
 made for their safe custody, care being taken at the same time that 
 the bankrupt can have convenient access to them from time to time. 
 I am of opinion that all payment received on account of the estate 
 should be immediately deposited in the Consulate, and entered in 
 the deposit account to the credit of the particular estate in bank- 
 ruptcy. The official assignee ought to direct the payment of moneys 
 due to the bankrupt's estate into the Consulate, probably in all cases, 
 and take a note from lime to time of what has been so paid; it will 
 be his duty to enforce (with leave of the Court first obtained) the 
 payment of sums due and remaining unpaid; and, in short, to per- 
 form singly, until the appointment of the creditor's assignees, all 
 necessary acts for the realization and safe custody of the estate, and 
 for the proper investigation of the accounts. He should also be at 
 liberty to apply for and obtain permission of the Court to pay such 
 small debts out of the estate as from their nature must be paid, and 
 which ought to be paid immediately, and to take care that no unne- 
 cessary liability is incurred as to warehouses or other establishments, 
 official Assignee. The person acting as official assignee ought to be essentially for 
 that purpose an officer of the Court, alike independent of the bank- 
 rupt and his creditors, and conversant with business and accounts. 
 The Court relies on him in a great measure for an impartial account 
 of the conduct of the bankrupt, with respect to the realization of his 
 estate, and explanation of his dealings ; although, of course, in this 
 
83 
 
 and in all other matters, the creditors assignees are able to exercise 
 an efficient check over any undue partiality or other abuse of the 
 confidence reposed in this officer. 
 
 It is not probable that it will be at all necessary to separate the 
 duties of the official assignee in bankruptcy from the Consular Officer 
 of the place. In most cases the instances of bankruptcy are not 
 numerous enough, nor other judicial business sufficiently heavy, to 
 prevent Chief Assistant or Vice-Consul from seeing to those points 
 which lie within the province of an official assignee : and the prac- 
 tical limitation of the jurisdiction in bankruptcy in all cases of 
 amount and importance by a reference of them to the Supreme 
 Court removes the objection which might otherwise be raised to the 
 performance of these duties by the person who under the present 
 system, has to act in some respects as a Commissioner. 
 
 After the appointment of the official assignee, and before adver- Service of adja- 
 tisement of the adjudication, and at or before the time of putting in dlc * tl0n - 
 execution any warrant of seizure granted on such adjudication, a 
 duplicate of the adjudication is to be served on the person adjudged 
 bankrupt, personally, or by leaving the same as directed by the Act 
 at his last known place of business or abode. And such person is 
 to be allowed seven days, or any extended time not exceeding fourteen 
 days, from service, to show cause against the adjudication. If he 
 does so, he is to give previous notice of what particular thing he 
 intends to dispute, whether the petitioning creditor's debt, the 
 trading, or the act of bankruptcy; and on the day fixed for showing 
 cause the particular part of the proceeding which it is intended to 
 dispute must be again proved by -eivd voce evidence, unless otherwise 
 specially directed; and if new matter arises, or witnesses are not 
 present to be cross-examined, the Court may grant further time to 
 show cause. 
 
 If, on shewing cause, the petitioning creditor's debt, the act of 
 bankruptcy, or any or either of such matters, are or is shown to be 
 insufficient to support the adjudication, and no other sufficient matter 
 to supply the place of the particular thing which is shown to be in- 
 sufficient, is proved, then the adjudication is to be annulled. 
 
 If no sufficient cause is shown, the Court is to appoint a public 
 meeting for the bankrupt to surrender. 
 
 Any steps to annul the adjudication taken after the fourteen days, Annulling adju- 
 should be in every instance taken before the Supreme Court: the d,catl(m - 
 particular Consul having jurisdiction in Bankruptcy corresponding 
 in this respect to the Commissioner who has no power to entertain 
 a proceeding to annul adjudication commenced after the expiration 
 of that time. 
 
 The bankrupt may surrender at any time after notice of adjudi- Surrender of 
 cation, and within the time limited. He does so by merely appearing Bllnkru P t - 
 before the Court, and signing a memorandum to that effect. 
 
 At this first meeting, of which ten days notice must be given, First Meeting, 
 proof of debts are received. The official assignee gives the fullest 
 information in his power of the estate and effects of the bankrupt, 
 and the majority in value of creditors present may if they please 
 assent to an allowance being made to the bankrupt until the first 
 examination. At this meeting creditor's assignees may be chosen. 
 
84 
 
 Second Meeting. 
 
 Power of Court 
 to summon any 
 Person. 
 
 Court may 
 examine Bank- 
 rupt's wife. 
 
 Search Warrants, 
 
 Letters to Bank- 
 rupt. 
 
 All Bankrupt's 
 1^-tate vests in 
 assignees. 
 
 Assignees of 
 Bankrupt. 
 
 The first meeting of creditors being 1 concluded a day is appointed 
 for a second sitting', when the bankrupt is to pass his final exami- 
 nation. He is then and there to disclose the whole of the property, 
 and to account for the manner in which any part of it has been 
 disposed of. The spirit and substance of the provisions in the Act 
 which require the preparation and filing 1 of a balance-sheet, ought 
 to be fully carried into execution. And in no case should the last 
 examination of the bankrupt be passed by the Court, unless the 
 balance-sheet has been duly filed. Adjournments of the meeting, 
 if necessary, for the amendment of the balance-sheet may be allowed, 
 or the meeting may be adjourned sine die, if the balance-sheet and 
 bankrupt's answers are unsatisfactory. It is the open examination 
 of the bankrupt by his creditors and the Court on the last exami- 
 nation, which affords the best security for the discovery of improper 
 conduct; and the penalty which a bankrupt incurs under the 221st 
 section of the Bankruptcy Act 1861 for not disclosing or embezzling 
 and part of his estate is enough to deter most from such mal- 
 practices. 
 
 But besides this, the Court is invested with a power of summoning 
 before it, at any time after adjudication, persons suspected to have 
 any part of the bankrupt's estate in their possession or supposed to 
 be indebted to him, or capable of giving information as to the 
 person, trade, dealings, or estate of the bankrupt, and may require 
 them to produce books and papers, and may examine them on oath, 
 forcing them to subscribe their answers when reduced into writing. 
 
 And the Court may further summon and examine, on statutory 
 declaration, the bankrupt either before or after he has received his 
 certificate, and may summon and in like manner examine his wife, 
 for the full discovery of the property of the bankrupt. 
 
 Also search warrants may be granted, after evidence on oath has 
 made it appear, to the satisfaction of the Court, that there is reason 
 to suspect and believe that any part of the bankrupt's property is 
 concealed in any house or premises not belonging to the bankrupt, 
 or for the purpose of securing the person of the bankrupt himself, 
 if in concealment. In short, by the Statute Law of England, the 
 most extensive powers are given for the benefit of the estate to the 
 Commissioners; but in exercising their jurisdiction in bankruptcy, 
 Consuls will do well to remain strictly within the limits of the juris- 
 diction conferred upon them, however desirable the exercise of power 
 in a doubtful case might appear in any particular instance. 
 
 It will be seen, however, by the nature of the provisions of the 
 statute, what immense importance is attached to the object of 
 facilitating the getting hold of the bankrupt's estate, and preventing 
 fraudulent concealment: indeed the Court in England may order 
 the Postmaster-General to cause all letters directed to the bankrupt 
 to be re-directed to the assignees for a certain time, and may renew 
 such order from time to time. 
 
 The 141st section of the Act of 1849, provides for the vesting of 
 the personal estate and effects of, and of the rights and interest in, 
 debts owing to the bankrupt, in the assignees for the time being, for 
 the benefit of the creditors. 
 
 The assignees are entitled to all rights of action which the bank- 
 
85 
 
 rupt had, or which may accrue to him, until he shall have obtained 
 his certificate, in respect of his property, and may sue upon them in 
 their own name, in their representative character. 
 
 I have already stated, that where an official assignee is appointed, 
 it is done immediately after adjudication. 
 
 The Act provides for the choice of creditors' assignees at the first 
 public sitting after adjudication, or at some adjournment thereof. 
 And they are elected by the major part in value of the creditors who 
 shall have proved debts, voting at the meeting; Persons holding 
 powers of attorney from creditors so qualified are also entitled to 
 vote, on proof of the execution thereof, either by affidavit or on vivd 
 voce evidence; but the Court has a power to reject any person so power to remove 
 chosen as assignee, and also to remove any assignee for unfitness. ^'S" 668 - 
 They are subject to the order of the Court in their conduct as assig- 
 nees. Up to the time of their appointment, the estate and effects of 
 the bankrupt are vested in the official assignee, but on their appoint- 
 ment the property then vests in them, and is divested out of the 
 official assignee. 
 
 Although it is said that they need not necessarily be creditors, yet 
 in all cases it is desirable that they should be so, as it is obvious that 
 their own interest will make them more active in realizing and 
 distributing the bankrupt's estate. 
 
 Actions and suits are to be prosecuted and defended by them, with Actions by and 
 leave of the Court, and they may, with like leave and after such a s ainst aasi e nees 
 notices to creditors, or with such consent of creditors, or a propor- 
 tion thereof, as the Court may direct, give time, or accept security, 
 or compound for debts due to the bankrupt, and may refer matters 
 relating to the estate to arbitration. 
 
 There are other special provisions on these subjects, to which it is 
 not necessary to refer at greater length; but it is right to remark 
 that the assignees are not bound to adopt the bankrupt's contracts, 
 and if they do not they are not subject to any action in respect of 
 them. Thus, if the bankrupt have purchased land or goods, the 
 assignees may adopt the purchase, if they will; and if they do, they 
 become liable, but if they do not they are not so liable. 
 
 Questions involving the assignees in litigation frequently arise, 
 under the 125th section of the Act of 1849 of which it is necessary 
 to speak a little in detail. 
 
 If" any bankrupt at the time he becomes bankrupt (i. e. commits Goods in order 
 the act of bankruptcy upon which the adjudication proceeds), shall jjStaoptf ti0n ° f 
 by the consent and permission of the true owner thereof, have in his 
 possession, order, or disposition, any goods or chattels whereof he 
 was reputed owner, or whereof he had taken upon him the sale, 
 alteration, or disposition as owner, the Court shall have power to 
 order the same to be sold and disposed of for the benefit of the creditors. 
 (There is an exception for registered mortgages and assignments of 
 ships, under the Acts relating to British vessels.) 
 
 The object of this provision is obviously to protect creditors who 
 may have been supposed to have given credit to the bankrupt, upon 
 the faith of the apparent property which he had in the goods in 
 question, and the numerous cases have proceeded, although not 
 always consistently; on this principle. It is obvious that the ques- 
 
86 
 
 tion always involves one of fact: namely, the consent and permission 
 of the true owner, which may be negatived by proof of any previous 
 order or request to the bankrupt by the owner to deliver up the goods. 
 In order that the creditors may nave the benefit of such property, 
 there must be an order of the Court to sell and dispose of it, and the 
 validity of that order depends upon the fact I have just referred to. 
 It has been held, that where the goods were in the order and 
 disposition of a trader, at the time he committed an act of bank- 
 ruptcy, but were taken out of his possession by the true owner after 
 the act of bankruptcy, but before the petition, and without notice of 
 an act of bankruptcy, they could not be ordered to be sold by the 
 
 assignees ; 
 
 and this under the 133rd section of the Act of 1849 for 
 
 Assignees may 
 recover posses- 
 sion of Bank- 
 rupt's property. 
 
 the protection of oon&jide transactions, without notice of any previous 
 act of bankruptcy. 
 
 The assignees may recover the bankrupt's property in the posses- 
 sion of any agent, satisfying any lien, and may perform conditions, 
 or tender payment of money, where necessary, for the recovery of 
 property pledged or mortgaged; and they are often obliged to take 
 proceedings to recover property conveyed or assigned without valu- 
 able consideration, or by way of fraudulent preference, as where a 
 trader, in contemplation of bankruptcy, voluntarily assigns or trans- 
 fers some of his property to one of his creditors, with intent to give 
 him a preference, such an assignment is not only void, — the very 
 object and essence of the bankrupt laws being to insure a fair and 
 equal distribution of the estate, — but it is also an act of bankruptcy. 
 These cases also involve questions of fact, which bring the assignees, 
 as plaintiffs, before the Courts of Law, and it is their duty to pro- 
 ceed, where practicable, and where it is likely to prove advantageous 
 to the estate. 
 Sales by Auction. In realizing the estate, it is usual to sell the property by auction, 
 and I see no reason here to depart from this practice. In the mean- 
 while, the debts are to be collected, and payment enforced, if necessary, 
 and the whole of the money paid into Court. Payment to the 
 assignees by a debtor of the estate, under a judgment or decree, is a 
 discharge, although the adjudication be annulled. And even without 
 action or suit, bond fide delivery of goods, or payment of money, 
 claimed by assignees, is a discharge as against the bankrupt, and 
 persons claiming under him, unless the persons so paying or delivering 
 goods had notice of some action, suit, or other proceeding, to dispute 
 or annul the petition or adjudication. And so much for the collection 
 and realization of the estate, and the method adopted under our law 
 to ascertain its extent, and to secure it, to which ends the surrender 
 and examination of the bankrupt principally tend. 
 
 It now remains for me to say something, in equally general terms, 
 as to the proof of debts under the bankruptcy, the rights of creditors, 
 the discharge, its effect, and the consequences of its suspension or 
 refusal. 
 
 There are certain debts which must be either paid in full, or of 
 which a greater part is payable than would come to the creditor 
 under an ordinary dividend. Thus clerks and servants of the bank- 
 rupt are entitled to receive their respective salaries and wages in full, 
 for three months, if so much is due, to an extent not exceeding 301. : 
 
 Proof of Debts. 
 
 What debts to be 
 paid in full. 
 
87 
 
 they must prove for the residue, if any. A labourer, or workman, 
 is entitled to his wages out of the estate to the extent of 40*., and 
 may prove for any balance. And inasmuch as an adjudication Apprentices, 
 operates as a discharge of the indenture of an apprentice to the bank- 
 rupt, the Court may order out of the estate the return of so much of 
 any apprentice-fee, or premium, actually paid, as it thinks fit, having 
 regard to the length of time the apprentice shall have resided with 
 the bankrupt previous to the filing of the petition. 
 
 The English law allows a landlord to satisfy a distress for rent, Kent, 
 made after an act of bankruptcy, to the extent of one year's rent only; 
 for the residue, if any, which may be in arrear, he must prove with 
 the other creditors. In these countries, it would seem at first sight 
 that these provisions could only be strictly enforced where the land- 
 lord, as well as the tenant, is a British subject; but as rent is 
 mostly payable in advance, practical inconveniences will probably 
 be of rare occurrence, and where application is made to the Court by 
 a foreign landlord to sequester goods of an adjudicated bankrupt for 
 rent in arrear, I see no objection or difficulty in following- the course 
 of English law, and in practice, this is the only form in which a 
 landlord does seize goods. 
 
 The 164th section of the Act of 1849 and the 144th of that of Creditors and 
 1861, give directions for the time and manner of the proof of debts, opposTprSf 
 and the first thing to remark is, that the proof is admitted and debts, 
 recorded at a public sitting, where all creditors have a right to be 
 present, and both they and the assignees may oppose any proof. It 
 is, of course, the interest of creditors to admit as few people to 
 share in the dividend as possible, and they as well as the Court are 
 enabled to see the nature of any claim, proof of which is tendered ; 
 but the Court decides whether to admit, or reject, or adjourn the 
 proof, and it does this on some evidence, the mere admission by the 
 bankrupt not being in itself sufficient. In practice, it is customary 
 for creditors to show the nature of their claim beforehand to the as- 
 signees, or, at least, to the official assignee, and in clear cases the 
 Court will, in the absence of opposition, admit the proof, on the oath 
 or legal affirmation of the creditor, or on an affidavit by him. 
 
 All causes of action for which, if payable, the original party might what debts 
 maintain the action of debt, whether on simple contract, deed, or P roveable - 
 judgment, may be proved either by the party himself, or by any 
 person to whom he has assigned them ; and judgment creditors may 
 prove for their costs. Interest on debts may also be proved for, at 
 the rate of 4 per cent, per annum, under circumstances in which, by 
 3 & 4 Win. IV. cap. 42, sec. 28, interest might have been awarded 
 in an action. That provision has been discussed in an earlier part 
 of this circular letter. 
 
 A creditor may prove for any amount for which he has given 
 credit on valuable consideration, whether such credit shall or shall 
 not have been given upon any bill, bond, note, or other negotiable 
 security, although the debt be not payable at the time of the act of 
 bankruptcy; and such creditor may receive dividends, allowing only 
 a rebate for interest at 5 per cent., from the time of declaration of 
 dividend to that at which, by the contract, the debt would have been 
 payable. Obligees in bottomry and respondentia bonds, and assured 
 
88 
 
 Debts payable on 
 a contingency. 
 
 Agents. 
 
 in policies of insurance, may claim, and, after loss or contingency, 
 prove and receive dividends. Annuity creditors may prove for the 
 value of the annuity at the time of the petition for adjudication, and 
 sureties for the payment of annuities may discharge themselves by 
 paying the amount so proved, and shall thereupon stand in the place 
 of the annuitant as creditors in the bankruptcy. There are special 
 provisions with regard to the sureties or persons otherwise liable for 
 debts of the bankrupt, and persons who have become bail for him in 
 civil actions, the gist of which is, that they may prove for whatever 
 they have paid in respect of their obligations, and the act of bank- 
 ruptcy does not affect their rights, unless they had notice of it, or of 
 some other act of bankruptcy, at the time they became surety or bail, 
 or made themselves otherwise liable. In like manner, persons with 
 whom the bankrupt shall have really, and bond fide, contracted debts 
 prior to the petition for adjudication, shall be admitted to prove them, 
 notwithstanding that such debts may have been contracted since the 
 commission of any act of bankruptcy, so as the creditor shall not at 
 the time have had notice of any act of bankruptcy on the part of the 
 bankrupt. 
 
 Debts payable on a contingency which shall not have happened 
 prior to the petition shall, if the creditor desire it, be valued, and he 
 may prove for such value ; or, if the value be not ascertained before 
 the happening of the contingency, he may, when the contingency 
 has happened, prove for the whole debt, and receive dividends, not 
 disturbing former dividends. An instance of a contingent debt is 
 supplied Dy the case of a bankrupt who has been guarantee for 
 another for a sum certain : when the guarantee is due, it is proveable 
 as a debt, payable on a contingency. It is clear that to bring a 
 debt payable on a contingency within the provisions of the former 
 part of this section the contingency must be reducible to calculation, 
 so as to admit of valuation of the present worth of the debt; and a 
 section of the Act provides for the case where a bankrupt has con- 
 tracted a liability to pay money on a contingency which shall not 
 have happened, and the demand in respect thereof shall not have 
 been ascertained before the filing of the petition. The person with 
 whom the liability was contracted may claim for such sum as the 
 Court shall think fit; and when the contingency happens, and the 
 demand is ascertained, may convert his claim into a proof, receiving 
 dividends, without disturbing former dividends; but if the claim 
 shall not, within six months after petition for adjudication, be con- 
 verted, either in whole or in part, into a proof, the Court may, on 
 application by the assignees, expunge it, either in whole or in part, 
 from the proceedings. 
 
 The 179th section of the Act of 1849 deserves a little special con- 
 sideration, referring, as it does to the provisions of another Act of 
 Parliament (5 & 6 Vict., cap. 39), under which cases may be of fre- 
 quent occurrence in China and Japan. By the last-mentioned Act, 
 any agent entrusted with the possession of goods, or of the documents 
 of title to goods, shall be deemed the owner of such goods and docu- 
 ments, so far as to give validity to any contract or agreement by 
 way of pledge, lien, or security, bond fide made by any person with 
 such agent so entrusted as aforesaid, as well for any original loan, 
 
89 
 
 advance, or payment made upon the security of such goods or docu- 
 ments, as also for any further or continuing 1 advance in respect 
 thereof; and such contracts shall he binding against the owner and 
 all persons interested therein, notwithstanding the person claiming 
 such pledge or lien may have had notice that the person with whom 
 such contract or agreement is made is only an agent; and any bill 
 of lading, India warrant, dock-warrant, warehouse-keeper's certifi- 
 cate, warrant or order for the delivery of goods, or any other docu- 
 ment used in the ordinary course of business as proof of the posses- 
 sion or control of goods, or authorising, or purporting to authorise, 
 either by indorsement or delivery, the possessor of such document to 
 transfer or receive goods thereby represented, shall be deemed a 
 document of title within the Act. There is also provision made for 
 the right of the owner to redeem the goods or documents, on payment 
 of the amount for which they are pledged, and on satisfaction of any 
 lien which the agent who pledged them might legally set up, either 
 against the goods or documents, or against the produce of their sale 
 in the hands of the person to whom they stand pledged, after satis- 
 faction of such pledge. 
 
 Now the 179th section of the Act of 1849 provides, that on the 
 bankruptcy of the agent in any such case, the owner, if he has 
 redeemed the goods, shall, in respect of the sum paid by him on 
 account of the agent for redemption, be held to have paid such sum 
 for the use of such agent; or, in case the goods shall not be redeem- 
 ed, the owner shall be deemed a creditor of the agent to the value of 
 the goods so pledged at the time of the pledge, and shall, in either 
 of such cases, be entitled, if he shall think fit, to prove for or set off 
 the sum so paid, or the value of such goods, as the case may be. 
 
 It is provided by the 171st section, that where there has been Mutual credits; or 
 mutual credit given by the bankrupt and any other person, or where delrts- 
 there are mutual debts between the bankrupt and any other person, 
 the Court shall state the account between them, and one debt or 
 - demand may be set against another, notwithstanding prior acts of 
 bankruptcy. And what shall appear due on either side on the 
 balance of such account, and no more, shall be claimed or paid on 
 either side respectively; and debts and demands made proveable 
 under the Act may also be set off, in manner aforesaid, against the 
 estate, if the person claiming the benefit of the set-off had not, when 
 credit was given, notice of an act of bankruptcy. 
 
 It is to be observed that the provision with respect to mutual 
 ■credits is confined to debts between the bankrupt and other parties, 
 or to transactions necessarily ending in debts; but it has been held 
 that the relation contemplated by the statute is established where 
 the debt is immediately due from one party, and only due at a future 
 time from the other, provided there is no uncertainty that the party 
 said to receive the credit will become, sooner or later, debtor to the 
 other. 
 
 Mortgagees, or other persons having security over any part of the Mortgagees 
 bankrupt's estate or effects, may apply to the Court, if they think 
 fit, but they are not bound to do so. If they do apply the Court is 
 to inquire into the fact and nature of consideration for the security, 
 and the circumstances under which it was given ; and if the party 
 
90 
 
 claiming appears entitled to the security and to the sum claimed 
 under it, shall take an account of what is due for principal, interest, 
 and costs, setting off anything 1 received in respect thereof. And the 
 Court is to give notice and sell the property, the assignees having the 
 conduct of the sale. Proper parties are to join in the transfer, as the 
 Court shall direct, and the money is to be employed, first, in pay- 
 ment of the costs and expenses of the assignees in the application to 
 the Court and the sale, and then in payment to the person holding 
 the security of what has been found due for principal, interest, and 
 costs. 
 
 The creditor may prove for the deficiency, if any, and receive 
 dividends, not disturbing former ones: and if there shall, on the 
 other hand, be any surplus it goes, of course, to the assignees for 
 the benefit of the estate. Plenary powers are given to the Court for 
 the purpose of ensuring a good sale by making a good title, to call 
 all parties before it and examine them, making them produce books, 
 papers, and deeds. 
 
 I cannot help thinking that a discreet use and application of these 
 particular provisions would sometimes be of great service in assisting 
 bond, fide holders of securities, or persons who have advanced money 
 on title deeds to land or houses in these countries to realize fairly; 
 but, of course, numerous instances must occur, where the conflict of 
 different jurisdictions will prevent the benefit of the law. 
 
 It is to be observed that the application by the mortgagee, or 
 other person holding security, is not imperative on him : he may, if 
 he pleases, stand upon his security, and if he have an absolute power 
 of sale, such as is found in many mortgages, he will need the assist- 
 ance neither of the bankruptcy Court or the Court of Chancery to 
 enable him to foreclose : but if" he wishes to prove, he must give up or 
 realize his security under the direction of the Court. An attachment, 
 or, as here, a sequester, is such a security, and it either must be given 
 up or realized for the benefit of the estate, if the creditor wishes to 
 prove for his whole debt. If he has realized by execution, seizure and 
 sale, any part of his security before the filing of the petition for adju- 
 dication, he is at liberty to prove for any balance remaining due ; but 
 if he desires to prove for the whole debt, he must surrender what he 
 has so realized, and after the filing of the petition he cannot realize 
 his security except under the provisions I have before alluded to, 
 without giving up his right to prove, for the bankrupt laws go upon 
 the principle, as far as possible, of putting all creditors on an equal 
 footing. 
 
 Note, however, that if the creditor has security for his debt on the 
 estate of a third person, he may prove under the bankruptcy, without 
 surrendering that, for the whole amount of his debt, and receive 
 dividends, provided that, on the whole, he does not by any means 
 whatsoever receive more than twenty shillings in the pound. 
 
 There are two sets of cases of frequent occurrence, which require 
 mention. 
 Partnerships. If a partner of a firm be separately adjudicated bankrupt, the 
 
 creditors of the firm are entitled to prove against the estate for the 
 purpose of voting in the choice of assignees, and of being heard 
 against his certificate ; but they are not entitled to any dividend 
 
91 
 
 until all the separate creditors have received their debts in full. But 
 the separate creditor of any bankrupt is at liberty to prove his debt 
 under any adjudication of bankruptcy made against such bankrupt 
 jointly with any other person or persons, and the separate and joint 
 estates are to be kept distinct, and the separate creditors satisfied, in 
 the first place, out of the separate estates, and in case there is an 
 overplus of the separate estates, it is to be carried to the account of 
 the joint estate, and in case there is an overplus of the joint estates, 
 it is to be carried to the account of the separate estates of each 
 bankrupt, in proportion to the right and interest of each bankrupt 
 in the joint estate. 
 
 The 97th section of the Act of 1849 has provided that any creditor 
 whose debt is sufficient to entitle him to petition for adjudication of 
 bankruptcy against all the partners of any firm, may petition for 
 such adjudication against one or more partners of such firm; and 
 every such petition shall be valid, though it does not include all 
 the partners ; and in every such petition against two or more persons, 
 the Court may dismiss the same as to one or more of such persons, 
 and the validity of such petition shall not be thereby invalidated as 
 to any person as to whom such petition is not ordered to be dis- 
 missed, nor shall any such person's certificate be thereby affected. 
 
 The 98th section has also made provision for the case where, after 
 a petition for adjudication against or by any one or more partners, 
 any other petition for adjudication against or by any other member 
 or members of the same firm shall be filed. It shall be prosecuted 
 in the same Court, the property, of the bankruptcy under the second 
 adjudication shall vest in the assignees of the first bankruptcy, and 
 the proceedings in the second shall, without affecting the validity of 
 the first petition, be annexed to and form part of the proceedings in 
 first, subject to special directions on the subject, which, in China 
 and Japan must be obtained from the Supreme Court. I refer to the 
 latter section, as involving an important principle of procedure, in 
 order to avoid the expensive and possibly conflicting proceedings un- 
 der two adjudications where the subject-matter would, in fact, be one. 
 
 An appeal is given from a proof, and also from a decision expung- Appeal, 
 ing a proof. 
 
 It has been held in England that if a bankrupt applies to expunge 
 a proof, he ought to allege and prove the probability of a surplus, or 
 or his being entitled to an allowance, in short, to show an interest 
 in the question which he desires to raise. 
 
 It will be seen, subsequently, that all debts and demands prove- • 
 able under the bankruptcy are absolutely barred by the certificate; 
 but provision is made for the case where a creditor has brought an 
 action, or instituted a suit against the bankrupt, in respect of any 
 demand prior to the bankruptcy, or which might be proved as a 
 debt under the bankruptcy. Such creditor cannot prove without 
 relinquishing his action, and the proving or claiming a debt under 
 an adjudication by any creditor, shall be deemed an election by 
 such creditor to take the benefit of the adjudication with respect 
 to the debt so proved or claimed. There are provisions restoring 
 the creditor in such a case to his former rights in case the petition 
 for adjudication is dismissed. 
 
92 
 
 Allowance to 
 Bankrupts. 
 
 Sitting for dis- 
 charge of Bank- 
 rupt. 
 
 Order of dis- 
 charge. 
 
 Before proceeding to consider the means taken for the distribution 
 of the estate collected, it seems convenient to take up and conclude 
 the history of the Court's dealings with the bankrupt himself. 
 
 I have pointed out the means placed at his disposal to contest his 
 bankruptcy,, if he thinks fit, and the statute makes provision for 
 cases in which he can obtain the consent of a certain majority of 
 his creditors to an order to annul the adjudication ; but at present, 
 considering him as a bankrupt, it is to be observed that until he shall 
 have passed his last examination, or until it shall have been ad- 
 journed sine die, a majority in value of the creditors may grant him 
 such allowance, from time to time, as may be necessary for the sup- 
 port of himself and his family; and he may also, after obtaining his 
 certificate, receive a certain percentage out of, and calculated on, 
 the produce of his realized estate, according to the 195th section of 
 the Act of 1849. And in case of a joint adjudication of the joint 
 estate and separate estate, if any partner have produced a sufficient 
 dividend, he shall receive his allowance, although the other or others 
 may not be so entitled. The policy of these provisions evidently is 
 to encourage traders to come in time to the Court, and to reward 
 them for securing some considerable estate for their creditors, by 
 giving them a proportionate bonus out of their assets, so that they 
 may start afresh in trade. 
 
 Forthwith, after the meeting for the choice of an assignee by the 
 creditors, the Court shall appoint a sitting not later than sixty days 
 from the date of that meeting, for the bankrupt to pass his last 
 examination and apply for his discharge. 
 
 The assignees, and any creditor who has proved, may be heard 
 against the discharge. 
 
 If no order of discharge be made at such meeting the Court shall 
 appoint a sitting for tlie purpose of considering the question of 
 granting the bankrupt such order, of which sitting fourteen days' 
 notice is to be given by newspaper advertisement. 
 
 In granting Orders of Discharge the following Rules must be 
 observed. 
 
 In China and Japan, all orders as to the discharge of a bankrupt 
 must be subject to appeal to the Supreme Court; and with regard 
 to the provisions as to time, the Act of 1849, section 12 supplies a rule 
 quite as applicable and proper here as in England. 
 
 Without a free right of appeal to a professional Court, the exercise 
 of such a power would appear to be likely to be productive of much 
 mischief; but it is right to say, that although the Consiils — in the 
 great trading ports of the Levant at least — have been constantly 
 called on to exercise, and have unquestionably exercised, a customary 
 jurisdiction in Bankruptcy, the tendency has, so far as I can learn, 
 invariably been to avoid extreme measures. And although this may 
 have proceeded in part from a reasonable doubt as to the nature and 
 extent of their power, it would be unfair not to attribute it in great 
 part to a spirit of moderation and caution which, in the adminis- 
 tration of the law, may be fairly said to be national, and which is 
 certainly pleasing to observe, and creditable. 
 
 There can be no doubt, however, that absolute practical impunity 
 for bankruptcies tainted with fraud is only too common; and on a 
 
93 
 
 What contracts 
 void. 
 
 definite and settled jurisdiction, it will become the business of those 
 who are entrusted with it in the first instance, to proceed with 
 firmness in cases where the circumstances call for stricter measures; 
 the right of appeal in all cases being freely allowed, and advice 
 being applied for in cases of doubt or difficulty. 
 
 The effect of the discharge is to release the order of bankrupt Effect of dis- 
 from all debts due by him when he became bankrupt, and from all charge ' 
 claims and demands made proveable under the bankruptcy, but it 
 does not discharge any person who was a partner with him at the 
 time of his bankruptcy, or was then jointly bound, or had made any 
 joint contract with the bankrupt. 
 
 And if a bankrupt after his discharge is arrested, or has any when may pieaa 
 action brought against him for any debt, claim, or demand prove- dl8Char 8 e - 
 able under his bankruptcy, he shall be discharged on appearing to 
 the action, and may plead in general that the cause of action 
 accrued before he became bankrupt, and give a certificate of the Act 
 and the special matter in evidence. And the discharge is sufficient 
 evidence of the bankruptcy, petition, and other proceedings prece- 
 dent to it, and a bankrupt taken in execution on a judgment, pre- 
 vious to his discharge, may be discharged on production thereof. 
 And, moreover, contracts or securities made or given by a bankrupt, 
 or on his behalf, to a creditor, or in trust for him, to secure payment 
 of money due by the bankrupt, as a consideration, or with intent to 
 persuade such creditor to forbear opposition, or to consent to allow- 
 ance of certificate, are void. 
 
 Any creditor obtaining money, goods, or security as an induce- 
 ment for forbearing to oppose, or for consenting- to the certificate, 
 forfeits treble the value so obtained; and the bankrupt, after his 
 discharge, is not liable to pay any debt, or demand, from which the 
 order discharges him, upon any contract or promise made after the 
 filing of the petition for adjudication. 
 
 But if the bankrupt is not discharged, he remains subject to all 
 debts owing by him, and to all claims and demands, proved or 
 proveable, under his bankruptcy, just as if he never had become 
 bankrupt. 
 
 To complete the history of the Court's dealings with the bankrupt, criminal sections 
 it might seem necessary that some account should be given of the of Bankrimt Act - 
 provisions for bringing to trial and punishment a bankrupt charged 
 with not surrendering, concealing property, destroying or falsifying 
 books, obtaining goods within three months of the petition for adju- 
 dication, under false colour of ordinary dealing, with intent to 
 defraud the owner thereof, and the like offences; but I have already 
 pointed out the propriety of applying in all such cases to the Su- 
 preme Court for direction, before taking any step in a matter of such 
 delicacy. 
 
 It now only remains to conclude the account of the steps taken Dividend, 
 for ascertaining the exact amount of the estate available for distri- 
 bution, and for distributing it accordingly, which are taken, of 
 ^course, whatever may be the result of the proceedings as to the 
 backrupt himself. 
 
 At the expiration of four months from the adjudication or earlier 
 if need to, the creditors assignee submits to a meeting of the creditors 
 
94 
 
 and, of which ten days notice is to be given, a statement of the 
 bankrupt's estate, and of receipts and payments on account of it. 
 The official assignee attends, and examines the statement and any 
 creditor who has proved may do so likewise and the meeting may if 
 it please vote a dividend after making reasonable provision for 
 future contingencies. The meeting may also determine whether 
 any and what allowance shall be made to the bankrupt. Similar 
 dividend meetings are to be held at successive periods of four months 
 until the whole estate has been exhausted. 
 
 Every dividend meeting is a meeting at which a creditor may 
 prove a debt, but if the debt is proved at a second or subsequent 
 dividend meeting, it is not in the power of the creditor to disturb 
 former dividends. 
 
 Consuls, however, in considering claims to prove, will naturally, 
 when refusing to admit them, exercise caution in parting with the 
 money to the other creditors, until the result of an appeal to the 
 Supreme Court is known. 
 
 In cases where an appeal in such a matter is merely made to 
 delay the rights of others, the Court above would probably award 
 exemplary costs. 
 
 Besides the ordinary provisions for the regular course of a bank- 
 ruptcy, the Act of 1861, (sections 192 to 200 inclusive,) contains en- 
 actments regulating the manner in which a trader may, if unable to 
 meet his engagements, make, if he can, an arrangement with a 
 certain proportion of his creditors which shall bind the whole, or 
 those at least who receive proper notices, either before or after bank- 
 ruptcy. 
 
 The proceedings ought to be kept regularly, and the proofs of 
 debts should be put in writing, and a note of their admission or 
 rejection should he placed on them. The proceedings in a bank- 
 ruptcy ought to be in such a form that the file may contain an exact 
 history of it from its commencement to its conclusion ; the first step 
 being .the petition for adjudication, and every subsequent step being 
 recorded. 
 
 In England, all the proceedings, which are always reduced to 
 writing, are placed on paper of a defined and uniform size; and, 
 where possible, this should be done for convenience of reference. 
 The Consul's notes of evidence are, no doubt, taken in his own book, 
 hut in this, as in other instances, a copy of them should accompany 
 the proceedings in every case of appeal. 
 
 under the Order in Council the several Provincial Courts are 
 auxiliary to each other in Bankruptcy for the proof of debts and 
 other matters, but the Supreme Court at Shanghai should be consi- 
 dered, as far as circumstances will admit, as standing in the place 
 of the Central Court of Bankruptcy, while it also exercises the ap- 
 peal jurisdiction which in England is vested in the Lord Chancellor 
 and the Lords Justices of Appeal. 
 Probate. I do not think it necessary to enlarge on the subject of Probate 
 
 and Administration, as the duties of a Consul are fully defined in the 
 Order in Council and the Rules, and as in every case of doubt or 
 difficulty, the Consul is expressly required to refer to the Supreme 
 Court for directions. 
 
95 
 
 But I would specially direct attention to the provision of the Order Penalty on unau- 
 in Council which renders any person other than the Consul liable to dealing wit™™ 
 a heavy penalty who, without authority, takes possession of, and in Estate. 
 any manner administers any part of the personal property of a de- 
 ceased person. The principle involved in this provision is one which' 
 should be strictly enforced, and all unauthorised intermeddling with 
 the property of deceased persons should be in every way discouraged 
 and repressed. 
 
 For the purpose of enabling the officers to charge the proper fees, Fees. 
 all petitions seeking to recover money either as a debt or as damages 
 should contain a distinct statement in words and figures of the total 
 amount sought to be recovered, and no decree should be made for 
 the recovery of a greater sum than that claimed in the petition, 
 except for interest, where it is allowed by law, and the costs of the 
 suit itself. 
 
 In cases where the result of the suit, or the decree of the Court, 
 may enable a petitioner to recover any sum of money not directly 
 and specifically sought, as in suits for dissolution of partnership and 
 taking accounts, the Court should make special orders during the 
 progress of the suit for ensuring the payment of the fees which would 
 have become payable had the amount of money which the plaintiff 
 may become entitled to recover, been asked for by the petition. 
 
 A few words relative to the provisions of the Order in Council and Criminal juris- 
 Rules respecting criminal cases will suffice, as the provisions them- CI0D ' 
 selves are very full and explicit. 
 
 The distinction between cases to be disposed of summarily, and 
 those that are to be tried on indictment and with assessors, should 
 be strictly observed, and the Consul should remember that as to cases 
 of the latter class, he has no power to dispose of them summarily even 
 where the accused openly admits his guilt. All such cases must go 
 to trial in the regular form. 
 
 On a charge being made, to whichever class the case belongs, the when warrant of 
 Consul should not in the first instance issue a warrant for the ap- arrest to 1SiUe ' 
 prehension of the accused, but should only issue a summons, except 
 where from the nature of the offence, the character of the person 
 charged, the probability of his absconding or other similar reason 
 there is good ground to suspect that the ends of justice will be de- 
 feated by giving him notice. A man ought not without urgent 
 necessity incur the loss of liberty until he has had a fair opportunity 
 of answering the charge against him. 
 
 The Consul should in all cases avoid imposing unnecessary 
 restraint upon tbe person charged, particularly where, having been 
 served with a summons, he has appeared thereto at the proper time. 
 When he is committed for safe custody during an adjournment, the 
 adjournment should be for the shortest time consistent with the 
 objects of the adjournment. 
 
 It is the duty of the person charging in every case, except where 
 the person charged pleads guilty, to substantiate his charge; and if 
 he be himself a witness, he will not be allowed to address the Court, 
 except upon oath. 
 
 In cases which are to be tried on indictment, the preliminary Examination 
 examination cannot be proceeded with in the absence of the accused. !JSf f accused" 
 
06 
 
 When two or 
 more parties are 
 accused. 
 
 The charge- should be first read over to the accused, hut he is not to 
 be called upon to plead. The case is to be substantiated against 
 him in the first instance. The same rules of evidence are to be acted 
 upon as if the case were being finally heard and determined. 
 
 Where in a case which is not to be determined summarily, the 
 evidence for the prosecution on the preliminary examination fails to 
 make out a primd facie case, and the accused is discharged, he may 
 be again apprehended on the same charge if additional facts against 
 him should transpire. 
 
 If upon the apprehension of the accused any of his property be 
 taken from him for safe custody, the Consul may, at his discretion, 
 order it, or any part of it, to be restored or applied for the purpose 
 of his defence. 
 
 If the accused be detained in custody to await his trial, he should 
 be allowed to communicate with his friends and advisers under such 
 regulations as the Consul may think proper. 
 
 When two (or more) parties are accused of the same offence com- 
 mitted at the same place and time and in concert the one with the 
 other, the law requires that (when both are under arrest, or can be 
 captured within a reasonable time) they shall be placed together in 
 the dock and tried together. The accused parties cannot be permitted, 
 or rather cannot be called upon, to give evidence for the other's de- 
 , fence. Criminality might never be established if the prisoners were 
 allowed reciprocally to give exculpatory evidence in behalf of each 
 other. A magistrate cannot refuse however to listen to anything an 
 accused party may say either of himself or of any one else, if perti- 
 nent to the matter in hand; and any such statement, as against ilie 
 party making it, is to a certain extent evidence, but it is not evidence, 
 in the strict legal sense of the term in favour of an accomplice, 
 although it is entitled to a certain amount of consideration more 
 especially when it is confirmed by other evidence. As I have else- 
 where observed, it is far better that Consuls, who are generally 
 unprofessional men, should learn to the admission of all evidence or 
 rather testimony which tends to throw a light on the subject under 
 their consideration than to its exclusion. They must be careful 
 however in the estimation of its value, to consider the circumstances 
 under which it is given — the inducement of the party offering it to 
 speak the truth — or to speak falsely. 
 King's Evidence. What is called "king's evidence" can only be given by one of 
 the accused, after he has confessed the extent of his own participation 
 in the crime, and where the charge could not be brought home to 
 the other or others without his damnatory evidence; and in such 
 cases (which occur very rarely) the accomplice thus admitted as 
 king's evidence himself escapes punishment. 
 
 In the case of a witness not attending on a summons in summary 
 proceedings, a warrant to compel his attendance should not be issued 
 if it appears that his failure to attend was caused by illness, attend- 
 ance elsewhere in discharge of a public duty, or other urgent cause, 
 care being taken however that the ends of justice are not defeated 
 by the delay. 
 
 Any person committed for trial is entitled on application at any 
 time between his commitment and his trial to obtain on application, 
 
 Illness, &c. of 
 witnesses. 
 
 Accused party 
 entitled to sum- 
 monses for wit- 
 nesses. 
 
97 
 
 either by himself or his legal advisers, summonses for any witnesses 
 whose attendance he desires to secure at his trial, if such witnesses 
 are British subjects. And in those cases where the prisoner desires 
 the attendance of witnesses who are not British subjects, he may 
 obtain on application a note to the respective Consulates of those 
 witnesses asking for an order on them to attend. 
 
 I may here perhaps mention that although the punishment on a Damages in casos 
 conviction for an injury to the person is usually considered a sum- ofab3ault - 
 cient penalty— yet the party injured is not debarred from pursuing 
 his civil* remedy for compensation for the losses — in other words — 
 the damages sustained by him in consequence and as a result of the 
 injury inflicted. 
 
 The Criminal process is at the suit of the Crown, and although 
 the real Prosecutor is the party injured, still it is the public that are 
 outraged by the commission of the act and it is the Representative 
 and Guardian of the public that seeks the infliction of the punish- 
 ment. It is true that under the 74 Rule of the Rules of Procedure — 
 the Court may on a conviction order that the accused pay all the 
 expenses incident to the trial, and I have more than once, when 
 medical attendance on the party injured had been absolutely neces- 
 sary to enable him to appear and give his evidence, considered such 
 Medical Expenses as incident to the trial and ordered their payment 
 by the party convicted. In the same way I have also directed that 
 the Expenses of the Prosecutor's Witnesses should be defrayed by 
 the party convicted. 
 
 The Civil remedy is by an Action of Trespass as it is technically Cmi remedy. 
 called — Trespass meaning a wrong— in which the injured party sets 
 forth the assault— the injuries received— enumerates the damage 
 occasioned him — the Expenses he may have been put to — and finally 
 prays that the Party committing the assault may be condemned to 
 pay him a sum sufficient to cover them in the shape of damages. 
 
 The Defendant may plead to such an Action — either that he did 
 not commit the assault or that he was justified in committing it — 
 alleging some reason — such as being first assaulted by the Plaintiff 
 — self defence — and a variety of other grounds. If he fails in es- 
 tablishing any such defences— damages may be given for the actual 
 reasonable expenses incurred and the losses sustained, provided they 
 are real actual losses and not problematical only — and if the injury 
 is one that is lasting and certain to result in an inability, more or 
 less great, to work at the injured party's pursuit or trade whatever it 
 may be, I see no objection to compensation being given for such a 
 wrong in the sense of damages. But it must be recollected that 
 except under Lord Campbell's Act 9 and 10 Vict. Ch. 93, no civil 
 action for damages can be maintained by the family or Legal repre- 
 sentatives of a man who has died from the result of injuries received. 
 His remedy dies with him. See Stephen's Blackstone 4 Vol. P. 91. 
 
 A Defendant may also under a Plea denying the assault, give in 
 evidence extenuating circumstances, not amounting to a justification, 
 in order to reduce the damages, but if the evidence is of a nature 
 calculated to justify the assault, he must specially plead— in other 
 words in his answer, he must state the_ circumstances upon which he 
 relies as justifying the assault or other trespass which he admits to 
 
98 
 
 Other Judicial 
 duties of Consuls. 
 
 Advancing claims 
 of British sub- 
 jects. 
 
 Colourable 
 British claims. 
 
 have committed, and the Judge ought then to take into consideration 
 — in th.e first case whether the circumstances brought forward in 
 extenuation are of a character to justify him in reducing the damages, 
 which in the absence of them he would have felt it just and right to 
 award — and in the second case whether the justification pleaded and 
 the facts adduced in evidence in support of this defence really afford 
 an excuse for the wrong done — if it does, no damages ought to be 
 given. 
 
 I have now only, in conclusion, to address you very shortly with 
 reference to another branch of your judicial duties; I alludfe to that 
 in which you are called upon by British subjects to support their 
 claims either upon Chinese or Japanese subjects or upon Provincial 
 Governments, and also to that in which you are asked by the local 
 authorities to order a British subject to do or forbear to do a par- 
 ticular act. 
 
 With regard to advancing the claims of British subjects, the best 
 course is always to compel the party applying for your assistance 
 to lay the particulars of his claim before you, with a precis of such 
 evidence as he intends to bring forward in support of it, in order 
 that you may make up your mind as to its justice and as to the 
 sufficiency of the evidence. 
 
 To urge or support an unjust claim is beneath the dignity of any 
 British agent, and it is inexpedient to put any claim forward that 
 cannot be supported by a fair amount of reasonable evidence. I do 
 not go the length of saying that there are not a class of claims which 
 appeal more to a sense of justice and equity, for their consideration 
 and admission, than to any legal amount of technical proof, nor do 
 I mean to say that Consuls should not present and urge such claims 
 upon the local authorities ; but it will be well to examine carefully 
 each case, and only to advance such as fall clearly within the cate- 
 gory to which I have alluded. 
 
 And this appears to me to be a convenient place to warn Consuls 
 against being entrapped into advancing claims which are only col- 
 ourably British claims, but in which, in reality, no British subject 
 has an interest, except in respect of the price which may be payable 
 to him for the use of his name and the protection of his Consulate. 
 Foreigners sometimes, and Native born subjects of the Emperor of 
 China or Chief Authority of Japan not unfrequently, assign over 
 to British subjects claims which they have upon the local authorities, 
 or upon individuals that may be subject to the local authorities, for 
 the express purpose of enlisting the power and influence of British 
 Consuls to obtain a settlement. Such assignments, however, are 
 clearly illegal as against the third person, and under no circum- 
 stances should Consuls act upon them. Of course I do not speak of 
 assignments by way of endorsement of negotiable instruments; such 
 are permitted by the usages of trade, and are not assignments of 
 claims in the sense in which I have used the word. 
 
 As a general rule, therefore, the claimant should first submit his 
 case to the Consul whose aid he seeks, with a statement of the 
 evidence or proof which he has to support it, and the Consul should 
 then carefully consider it, and if, in nis judgment, more evidence is 
 required, he should take care that the plaintiff procures it, so that 
 
99 
 
 he may advance it in the way which he, the Consul, thinks most 
 calculated to ensure success, and, at the same time, with all neces- 
 sary completeness. Moderation in demands, and firmness in their 
 prosecution, will, at any rate, create confidence, even when, in par- 
 ticular cases, it is found impossible to obtain all that is asked. 
 
 When Interpreters are instructed to present and support the claim instructions to 
 before the local authorities, they should always be furnished with Inter i ,reter9 - 
 written instructions, and required to make written reports. This 
 course of practice is advisable, because it enables the Consul, at any 
 subsequent period, as well as during' the course of the inquiry, to 
 test the manner in which his orders have been obeyed. 
 
 In those cases where the local authorities request the assistance 
 of the Consul, such request (which should always be made in writing) 
 should also, when the circumstances of the case admit of it, and 
 justice is not likely to be defeated by the delay, be communicated in 
 writing to the parties affected by it; and this written request should 
 descend to such particulars as to enable the Consul to form an opi- 
 nion as to the course he ought to pursue. It is always advisable, 
 in the first instance, to cite the person complained against before 
 you, in order that you may communicate the nature of the request, 
 and hear what he has to say; in short, to get from him an explana- 
 tion, and according to that explanation being- satisfactory or the 
 reverse, should the course taken be regulated. 
 
 If it is perfectly satisfactory, and is supported by evidence which 
 establishes its truth, a written statement, in which this explanation 
 should be shortly condensed, should be sent to the local authority, 
 with an offer to substantiate it when required. If, however, the 
 explanation is unsatisfactory, or full of suspicion, or there are cir- 
 cumstances which induce a strong belief that the British subject is 
 wrong, then in a flagrant case I should advise prompt acquiescence °\ AA- / 
 in the request made; but, if the wrong be not flagrant, the British 1/ 
 subject should be sent before the competent Court to take his trial. ' 
 
 In civil cases, and indeed in all cases, it is expedient to insist upon 
 a proper trial, conducted according to form, and an exercise^pf ex- 
 tra ordinary judici al power should never be willingly resorted tTrBy 
 the Consul, or tolerated by him on the part of the local authority. 
 At the same time there are cases where its exercise, from motives of 
 public policy, becomes necessary, and in some it may be even tole- 
 rated when exercised by the local authorities : but the treatment of 
 such cases must be left to individual discretion, and Consuls will 
 seldom err if they bear in mind that their chief object should be so 
 to regulate their own proceedings as to furnish a bright example of 
 order, method, and perfect impartiality, towards the parties and to 
 the local authorities, and they should always so act as to be capable 
 at any moment to give due and sufficient reasons for the course 
 pursued. 
 
 In cases where the local authorities are manifestly acting in a 
 partial and improper manner, the Consul should place before them, 
 in writing, a precis of the case, pointing out where and how they 
 are acting contrary to law and to justice; and having done this, and 
 having fully, and to the best of his ability explained to them, vivd 
 voce, the reasons why he objects to the course pursued, he should 
 
100 
 
 then protest, and forward his protest, with the pr6cis of the case, to 
 the Supreme Court, who will either give him instructions how to 
 proceed, or prefer the case to Her Majesty's Minister for his inter- 
 position in the proper Quarter. 
 
 In criminal charges, either against British "subjects or against 
 subjects of the Emperor of China or the Chief Authority of Japan at 
 the instance of British subjects, great regularity and order should 
 he observed and insisted upon. 
 
 No man should be arrested and deprived of his liberty, except upon 
 grave suspicion of having done that for which he ought to suffer 
 punishment. 
 
 The responsibility of proving the truth of the accusation should 
 rest on the accuser, and he should be compelled to substantiate his 
 charge within as short a time as possible; and if delay is absolutely 
 necessary to enable him to collect his evidence, such delay should not, 
 except in extreme cases, be permitted to prejudice the position of the 
 accused. In the greatest number of cases, bail for the appearance 
 of the accused, when called upon to take his trial, should be accepted. 
 Of course, exceptions must be made in those cases where the suspicion 
 of guilt is so strong as to raise a very fair presumption that the 
 accused will sacrifice his bail or guarantee, rather than appear and 
 take his trial; but such cases will be few. 
 
 The greatest care must at all times be taken that the accused has 
 every means afforded him before trial, by communication with his 
 friends, or legal adviser, if he has one, of rebutting the evidence 
 against him, and establishing his innocence; and no opportunity 
 shonld be lost of inculcating upon the local authorities that the ob- 
 ey) ject of criminal law and criminal procedure is not so much to prove 
 \j\JV., that an accused person is guilty of the offence with which he is 
 » charged, as to enable the accuser to prove the guilt which he imputes, 
 and, at the same time, afford to the accused every fair means of 
 defending himself. 
 
 To this end, the Consul should take care that the accuser is 
 obliged to state on oath or in some form binding on his conscience 
 according to the Laws of his Country, all the facts upon which he 
 relies to establish the truth of his accusation. His witnesses should 
 he obliged to do the same. Both he and they should not be allowed 
 to adduce hearsay evidence, or that which they heard other persons 
 sav, but such testimony should at once be rejected, and the persons 
 alluded to, be themselves produced. 
 
 It is expedient, likewise, to allow the prisoner a full opportunity 
 of cross-examining all the persons giving evidence, and, having 
 done so, he should be permitted to make any statement he likes, and 
 call what witnesses he choses in support ot his explanation. 
 
 Every care should be taken to expose any animus with which the 
 accuser or witnesses may be inspired. 
 
 ■"■< In short, while on the one hand, it is the Consul's business to see 
 that justice is done and crime punished, it is, on the other hand, his 
 duty to take care that it is properly proved, and that the accused 
 has every reasonable chance afforded him. His assent to a fair 
 judgment, arrived at after due investigation of the facts, should never 
 he withheld; while at the same time, both before trial and at the 
 
101 
 
 trial, he should, at least, insist upon throwing the whole onus of 
 proof on the accuser, and prevent conclusions being adopted found- 
 ed rather upon moral convictions than upon clear and distinct 
 evidence. 
 
 In many police cases, he will have to assist in deciding, upon the 
 truth, or the balance of truth, on conflicting statements. He must 
 do so on mature deliberation, giving the accused the benefit of all 
 reasonable doubt, and, at the same time, duly considering probabili- 
 ties and all other attendant circumstances which may go towards 
 establishing a conclusion, based on proved facts, either of guilt or 
 innocence. 
 
 With reference to protesting against any deviation from right and 
 justice on the part of the local authorities, he will pursue the same 
 course as I have already pointed out in civil cases. 
 
 NOTIFICATION. 
 
 Whereas it has been brought to my knowledge that British subjects 
 of Chinese descent having all the appearance of Chinese and speak- 
 ing like natives, established themselves in the interior of the country 
 and permanently take up their residence there, acquiring all the 
 privileges • of Chinese subjects in violation of Treaty provisions 
 governing the status and acts of British subjects in the Chinese 
 dominions, it is hereby publicly notified, that any one so offending 
 is liable to be taken by the Chinese authorities to the nearest Con- 
 sular Port to be handed over to the British Consul for punishment, 
 in the same way as any other class of British subject would be 
 punished for a similar violation of Treaty. 
 
 BUTHERFORD ALCOCK, 
 
 H. M.'s Envoy Extraordinary, Minister Plenipotentiary 
 and Chief Superintendent of Trade in China. 
 
 Peking, November 28th, 1866. 
 
 NOTIFICATION. 
 
 By direction of Sir Rutherford Alcock, K. C. B., Her Britannic 
 Majesty's Envoy Extraordinary, Minister Plenipotentiary, and Chief 
 Superintendent" of British Trade in China. — Three Regulations are 
 published below for the Registration of Mortgages, the Registration 
 of Bills of Sale, and the Registration of Companies in China. The 
 Regulations for the Registration of Mortgages and Bills of Sale 
 have been approved by Her Majesty's Government. The Regula- 
 tion affecting Registration of Companies, will equally with the others 
 take effect until the farther pleasure of Her Majesty's Government 
 be made known. 
 
 THOMAS FRANCIS WADE, 
 Secy, of Legation. 
 Peking, 11th July, 1866, 
 
102 
 
 I. REGULATION. 
 
 (" 'Cliina and Japan Ordenin Council, 1865," Sec. VII., Clause 85. ) 
 
 All mortgage of lands as^d houses, legal or equitable, must be 
 registered at taeConsulate orsthe district in which the property is 
 Situated, within fiwrrteen days o£ the date of the execution of the 
 dee' 
 
 IfHuch mortgage i^smade in any Consular district in China other 
 than tnat in which the j»roperty is siraated, then the same must be 
 registereoWithin such Consular district vtithin fourteen days of the 
 execution MLthe deed, and within two months of such execution in 
 the Consulates^ the district wn>erein the property is situated. 
 
 If such deed is executed in Hongkong 'theilvthe same must be 
 
 nstered withinNmch Consular ajstrict as aforesaid within two 
 months of such execution; and if tm§L deed be executed elsewhere 
 thanSm China, Japan, or HongkongV then the satoe must be 
 registered at the Consulate of the district within which tfieproperty 
 is situateck within six months of such execution; otherw^e such 
 Mortgage Dqed will not be aUowed precedence over judgmtot or 
 simple contrac\debts, contracted before the execution of such ahed. 
 
 On every registration a fee of n>e dollars will bexayable, and on 
 evecy inspection ofNwoks of registr^Sa fee of one : 
 
 ^REGULATL 
 
 (" China ana\hpan Order in^SmmcU, 1865," 3sc. VII, Clause^.) 
 For preventin^frauds on creditors, notice is hereby given that all 
 of Sale, anoVWery Schedule o* Inventory aniKjxed thereto or 
 referred to therein mW; within 21 day* after the making thereof be 
 filed inyrtie Supreme CoWt or in the Consular Court ofime District 
 in whicfiSthe property mentioned in suchMiill of Sale isSatuated, 
 together with an affidavit orS&e time when the same was maoe. and 
 a description «f the residence and occupation otthe person making 
 it, and of every attesting witness\and any defeasance, condition/ 
 "eclaration of trusK to which sucnSBill of Sale is subject, must be* 
 written in the body ofi^t, or annexed whereto. 
 
 TB& fee payable on ti^e filing of sucrkBill f Sale sikall be one 
 dollar, and for the affidav\also one dollarV 
 
 III. REGULATION. 
 
 Co-partnerships 
 all of whose mem- 
 bers are not 
 known. 
 
 feting Co- Partnerships, the mentiqrs of which a\uriknown, or 
 N. wfi&qh carry on tradeNm Agents. 
 
 Whereas in some caseVbusiness is or mavbe carried on TWShang- 
 hai and elsswhere in Chinsh^jy persons in co\partnership, orNjy one 
 individual or^aore assuming tite style of a co-partnership, or acting 
 as agent or agents of a co-partHership, and in Some of those ca& 
 the members of such co-partnershiV or some of tntoi, are not onlv^ 
 absent from the placewhere such copartnership bush^ss is carried 
 on, but their names areNf, may be unknown ; Be it therefore enacted 
 
103 
 
 ^d ordained. That (in order to prevent any Mure of justice in 
 suctc^cases,) every suoh co-partnersBiB, and theSeyeral members 
 or the persons or person havutte carried, oKcarrying on 
 businessNunder the style ofaoy such co-partnership, maWje sued in 
 any actionSat law in the name or names of a^y one or mb^e of the 
 members of sKch co-partnership\m behalf of alh^he member\com- 
 ig the samhv or in the name »r names of anV such agenW>r 
 for and oiNbehalf of such co-partnership, so\s that, in al 
 cases therein but forsthis regulation itVould nave beei^necessary 
 to mentibsthe names o£»all the members comprising- suchSso-part- 
 nership, it shall be sufficient to mention the name or names orsmch 
 one or more member or menrWs only, or of such agent or age! 
 behalf of suclrteo-partnership; 
 id be it orderebx. That everyNjudgment obtainedSor made in 
 any sHch action as las\aforesaid, smVfl have the same effect and 
 operatioh\upon the person^nd properiy\both real and perianal of 
 such co-partnership, and ofShe several members thereof, whe^ther 
 propertpbe joint or separate, as if everymember of such w 
 ership had THjen actually andSn fact a defendant in the action, 
 and evfeCT such judgment or order majr be enforcecrsig'ainst all such 
 property as in ordinaryseases of the literature. 
 
 Provided aUways and D^it ordered. TnJktin every summons and 
 her writ issued,, and declaration or other pleading filed, ohs^behalf 
 of rh,e Plaintiff' inSany actionNsffought under the provisions o£.the 
 two proceeding sections, the style\f firm of the co-partnership 
 be specified, and it shail distinctlySmpear, that theSDefendant or" 
 DefendantsSned is or areS^o sued for\nd on behalf orsguch Co- 
 
 artnership : asd provided ar&q. that no Absent sued on 
 suCT^Co-partnersSjp shall by reason only or«his being so 
 incompetent as a Witness in the\action on Behalf either of 
 Plaintifnar the Co-partnership, or beHjiible in persto or property to" 
 any judgment obtained in\uch action. 
 
 And (for stoplying a mhre full and "factual remedy in this 
 in all ca^es in which Tstare are Join\£ontractors\pne or 
 f whom shail be absent from the place winerein the coStoact 
 was made, or whereihe cause of action arising o^t the contract 
 arose — Besot ordered, That no plea in abatement sha^hereafter be 
 received on T^ehalf of any Befendant in anv action in resect of the 
 
 im-joinder tnejjein of any pCT^on alleged tosaye been a jc 
 tractor with sucnNdefendant, unless it be expre^ihr alleged : 
 plea, rasat the personVnot joined, isShen resident atSsome place l 
 in the Cbosular distrust wherein theSrade of the Copartnership is 
 carried on/Sc where the c&use of action arose. 
 
 Such co-partner- 
 ships may be sued 
 in the name of 
 any one member 
 or agent. 
 
 Judgment against 
 such defendant to 
 operate against 
 the co-partner- 
 ship. 
 
 Proviso. 
 
 Agent not to be 
 incompetent as 
 witness. 
 
 Pleas in abate- 
 ment. 
 
 NOTIFICATION. 
 
 Whereas it has- been brought to my notice that divers Persons, 
 British Subjects, frequent the Foreign Settlements at the Treaty 
 Ports, and there vemaiiiy having no ostensible means of livelihood 
 
104 
 
 or settled occupation, and that it is to be feared that such Persons 
 live by the Commission of Crime, by robbery or plunder ; and whereas 
 it is desirable and of urgent necessity, not only for the maintenance 
 of friendly relations with the Authorities of China and the Subjects 
 of His Imperial Majesty, but also for the maintenance of peace, 
 order and good government of British Subjects residing in or 
 resorting to China, that a stop should be put to such lawless 
 proceedings : Therefore by the authority and power vested in me 
 by the 85th Section of the China and Japan Order in Council 1865, 
 I do declare and order that it shall be lawful for and the duty of 
 Her Majesty's Judicial Officers from time to time, and when it shall 
 appear necessary, to summon before them and enforce the attendance 
 of all persons who, it may be reported to them, have no ostensible 
 means of livelihood, and then and there require of such persons to 
 state and where expedient to produce evidence of the means they 
 possess of subsistence; and should it appear that such persons 
 possess no ostensible means of livelihood, then it shall be lawful for 
 such Judicial Officers to order that such persons shall inform the 
 Court of their place of residence, and shall also report themselves to 
 such persons as the Judicial Officers aforesaid shall direct, at such 
 times and with such formalities as shall be then directed : and any 
 neglect in obeying any Order thus given shall render the person 
 guilty of the disobedience liable to imprisonment for a term not 
 exceeding ten days or deportation from China, and to be detained in 
 custody until a fit time and opportunity for his deportation arrives. 
 
 And in consideration of the urgent necessity for this Regulation, 
 I further order that it shall have effect unless and until it is 
 disapproved by Her Most Gracious Majesty and notification of such 
 disapproval is received and published by me in China. 
 
 Given under my hand and Seal this 14th day of January, 1867. 
 
 L. S. 
 
 (Signed) RUTHERFORD ALCOCK, 
 
 H. M.'s Envoy Extraordinary and Minister Plenipotentiary 
 and Chief Superintendent of Trade in China. 
 
 CIRCULAR NOTIFICATION. 
 
 Some misunderstanding appears to prevail as to the course to he 
 pursued by Her Majesty's Consular Officers with regard to the 
 Estates of Intestates. 
 
 Consular Courts have within their several districts power to grant 
 Probate of Wills and also Administration where there is no conten- 
 tion respecting the right to the grant — (see Section 57 of the China 
 and Japan Order in Council, 1865). Where no person having the 
 right to claim Administration of the Estate of a deceased British 
 
105 
 
 Subject, appears to demand a grant of it, it is the duty of the Consul 
 to take possession of the Estate for safe custody as, until Adminis- 
 tration is granted, the personal property of an Intestate vests in the 
 Judge of the Supreme Court (see Section 59 of the Order in Council). 
 
 A Consul, therefore, should ascertain of what property the deceased 
 died possessed, where it is situated, its amount, and every particular 
 connected with it. He should then— having when necessary taken 
 possession of it, or, when the actual taking possession is uncalled 
 for, after taking an Inventory of it and a Receipt from the Person 
 in whose custody it is left — immediately communicate all the infor- 
 mation he has collected, to the Judge of the Supreme Court and 
 await his directions. 
 
 In most cases, and especially where the value of the property as 
 is most generally the case, is trifling, the Judge will desire the 
 Consul to sell the property, reserving such personal trinkets, &o. 
 &c, as relatives are generally desirous of having sent to them, and 
 with the proceeds pay any trifling and immediate debts which may 
 be owing, such as Funeral Expenses, Servant's Wages, Arrears of 
 Rent, Doctor's Bills, &c. &c, and remit the balance with an Account 
 of Receipts and Payments to the Supreme Court. 
 
 When however the Estate is considerable, the Judge will gene- 
 rally and under certain circumstances appoint an Official Adminis- 
 trator to administer the Estate. 
 
 Until however the instructions of the Judge of the Supreme Court 
 are received, Consuls have no authority to interfere with an Intestate 
 Estate (except so far as ensuring its safe custody) in respect of which 
 no one claims or is in a position to claim. 
 
 Administration and all so called Official Administration by Consuls 
 except under the express Authority of Judge, is contrary to the 
 Order in Council. 
 
 With reference to the Estates in respect of which Administration 
 has been granted by a Provincial Court, all that a Consul has to do 
 is to fill up Form No. 30 and transmit the same every half year to 
 the Supreme Court. 
 
 H. B. M's. Supreme Court, 
 Shanghai j 
 23rd January, 1867. 
 
INDEX. 
 
INDEX OF CONTENTS. 
 
 oJ««o 
 
 Page: 
 
 ACCOUNTS, question of, may be referred 33 
 
 ACCUSED, see Criminal Jurisdiction. 
 
 ACT, MERCHANT SHIPPING, see Merchant Shipping 
 
 .A-CT 
 
 OF BANKRUPTCY, see Bankruptcy Act. 
 
 ADJOURNMENTS in the hearing of cases to be avoided ... 31 
 ADMINISTRATION, LETTERS OF, see Probate. 
 
 ADMIRALTY jurisdiction, nature of 14 
 
 Supreme Court alone is a Court of 9, 14 
 
 Consuls, however, should know the functions of 
 
 the Supreme Court in the matter 14 
 
 AFFIDAVITS in motion to shew cause, to be filed at the 
 
 Consulate 34 
 
 , rules as to (Rules of Procedure 230-42) 34, 35 
 
 AGENTS AND PARTNERSHIPS, Rule recently framed 
 
 for suits against 35 
 
 Agent or Partner must be British subject 36 
 
 or Principals, which ? great care necessary 29 
 
 AGREEMENT TO REFER questions of Fact or Law 26, 34 
 
 AMENDMENTS TO PETITION AND ANSWER are to 
 
 be freely allowed 54 
 
 expenses to be borne by the party amending ib. 
 
 ANSWER TO PETITION may be amended by Consul, if 
 
 necessary 30 
 
 on oath 54 
 
 , procedure on 30, 52 
 
 should be short and relevant 43 
 
 when no answer is put in, presumptions and proce- 
 dure in different cases 50 
 
 APPEAL TO SUPREME COURT 65 
 
 , course to follow in 21 
 
 fees to be previously paid ib. 
 
 what payable to Consular Court ib. 
 
 Supreme Court ib. 
 
 from interlocutory orders 65 
 
 further evidence may be forwarded by Consul ib. 
 
 mere irregularity will not suffice to disturb the 
 
 original finding 61 
 
 on a special point 31 
 
 parties not required to attend 65 
 
Page. 
 [APPEAL TO SUPREME COURT] 
 
 will be decided on the evidence given in the'Court 
 
 below 65 
 
 come on in rotation ib. 
 
 lie on all Orders (not being - ex parte) on a 
 
 motion 34 
 
 APPLICATION TO SUITS, SPECIAL 43 
 
 , great danger of 44 
 
 how they arise ib. 
 
 , several classes of ib. 
 
 ARBITRATION should be encouraged 9, 40 
 
 ARREST OF THE PERSON 33 
 
 in cases of debt, under what circumstances permitted ib. 
 
 in criminal cases, when to be resorted to 95 
 
 ASSAULT, DAMAGES FOR 97 
 
 civil remedy by action of " trespass " ib. 
 
 defendant may deny the charge or plead extenuating 
 
 circumstances ib. 
 
 no civil action can be taken by the family, &c, of a 
 
 man who dies from the injuries received ib. 
 
 the party convicted may be ordered to pay all the 
 
 expenses, medical, &c ib. 
 
 ASSESSORS, attendance cannot be compelled 5 
 
 , dissent of, from conviction 17 
 
 refusal to attend to be noted 5 
 
 ASSIGNEE, CREDITORS', see Bankruptcy. 
 OFFICIAL, see Bankruptcy. 
 
 B 
 
 BAIL, ORDERS TO HOLD TO 
 
 Consul in all cases to exercise his discretion 46 
 
 may be the subject of a special application 44 
 
 , more care required in, when foreigners are the ap- 
 plicants 46 
 
 , what condition requisite before granting 44 
 
 claim for unliquidated damages not sufficient... 45 
 
 "out of jurisdiction" how to be understood ... ib. 
 BANKRUPT 
 
 , allowance to 92 
 
 , criminal proceedings against 81, 93 
 
 , debts of, what are paid in full, or in larger proportion 86 
 apprentice p. 87, clerk 86, rent 87, workman ib. 
 
 , debts of, payable on a contingency 88 
 
 , proof of 87 
 
 » , appeal from 92 
 
 may be opposed by creditors' assignee 87 
 
 what pro veable ib. 
 
 , discharge, effect of 93 
 
 , order of 92 
 
 is subject to appeal to Supreme Court ib. 
 
Page. 
 [BANKRUPT] 
 
 discharge, sitting 1 for 92 
 
 estates, Registry- book of, must be kept 30 
 
 estate to be secured 82 
 
 vests in assignees or the interest of the creditors 84 
 
 , fraudulent, to be punished 10 
 
 , goods in the order and disposition of, law as to ... 85 
 
 in formd pauperis 11 
 
 letters may be intercepted by Court 84 
 
 must pay the fees and expenses incident to his bank- 
 ruptcy .' 11 
 
 mutual debts 89 
 
 , parties suspected of collusion with, may be sum- 
 moned by Court 84 
 
 partner separately adjudicated 90 
 
 search-warrants may be granted by Court 84 
 
 surrender of. 83 
 
 wife may be examined by the Court 84 
 
 BANKRUPTCY, a Consular Court has jurisdiction in 9, 78 
 
 ,.acts of, two classes of 79 
 
 , adjudication of 80 
 
 , how obtained by a creditor 79 
 
 joint creditors 80 
 
 the debtor himself ... ib. 
 
 must be advertised in the most public way ib. 
 
 proceedings after 81 
 
 proceedings for annulling after the allow- 
 ed term has elapsed 83 
 
 before the allowed term has elapsed ib. 
 
 service of. ib. 
 
 creditors, first meeting of ib. 
 
 second meeting of. 84 
 
 creditors' (or trade) assignee 82 
 
 can oppose proof of debts 87 
 
 have to bring actions and defend same 85 
 
 may be removed by Court ib. 
 
 recover bankrupt's property ... 86 
 
 when chosen 85 
 
 dividend 93 
 
 fees and expenses incident to, must be paid 
 
 by the Bankrupt 11 
 
 mortgagees 89 
 
 of an agent ib. 
 
 official assignee, duties of 82 
 
 proceedings in, full account of, must«be kept 94 
 
 sales by auction in 86 
 
 ACT, no fraudulent debtor should be allowed to escape 
 
 under the : 10,' 79 
 
 proceedings must be taken within the time spepified 
 in the, and in accordance with the 11, 78 
 
IV 
 
 Page. 
 [BANKRUPTCY] 
 
 LAW, at present in a transitory and uncertain state ...10, 78 
 
 object of 79 
 
 what will be its general tenor when determined... 10 
 
 BARRING PROCEEDINGS, 66 
 
 under what circumstances this power will be exercised ib. 
 BREACHES OF CONTRACT, PENALTY FOR, see 
 Damages. 
 OF THE PEACE, continuous offences may be construed 
 
 as 19 
 
 how provided against ib. 
 
 punished ib. 
 
 what security must be taken ib. 
 
 BRITISH SUBJECTS, death of, proceedings in case of. 15 
 
 may submit cases between themselves and foreigners 
 
 to the award of the foreigners' Consuls 21 
 
 , NATURALIZED, Chinese (or Japanese, see page 4) 
 have no right beyond the particular colony or pos- 
 session in which they are 3 
 
 have the same disabilities as native-born subjects ... 4 
 
 , what are to be considered as 3 
 
 when jurisdiction can be exercised over them ib. 
 
 o 
 
 CASES, Half-yearly Return of, to be sent to Supreme Court 8 
 
 , Headings of Entry of, in Judge's Note-book 23 
 
 should be brought on for hearing without delay 26 
 
 taken in their turn 54 
 
 CAUSE, MOTIONS TO SHOW, see Motions to show 
 
 Cause. 
 CHINESE NATURALIZED BRITISH SUBJECTS, see 
 British Subjects, Naturalized. 
 SUBJECT as plaintiff or defendant against British Sub- 
 ject, see Local Authorities and Consul. 
 CIRCULAR LETTER TO LEVANT CONSULS, Extract 
 
 from 39 et seq. 
 
 CIVIL CASES, essential nature of. 41 
 
 for administration of property of deceased persons... ib. 
 
 form the bulk of judicial suits ib. 
 
 summary procedure on bills of exchange ib. 
 
 under $100 are by summary procedure ib. 
 
 CLAIMS, divided into defective and bad 42 
 
 force of this distinction ib. 
 
 result of bad claims 43 
 
 defective claims 42 
 
 COMMITTEE OF LAND RENTERS, see Municipal 
 Council. 
 
 COMPELLING PROCEEDINGS in cases commenced 65 
 
 Court to decide if delay is reasonable 66 
 
 COMPENSATION BY WAY OF DAMAGES, see Damages. 
 
Page. 
 
 CONSANGUINITY, degrees of 16 
 
 CONSUL and Local Authorities, see Local Authokities 
 
 and Consuls. 
 and Municipal Council of Port, relations between, 
 
 see Municipal Council and Consul. 
 
 can act as Coroner 9 
 
 how to act in advancing claims of British subjects 98 
 
 whenmatters are referred to him for arbitration 8 
 
 • proceed on a Warrant of Execution issued by 
 
 Supreme Court ib. 
 
 in what cases can charge percentage on Estates of 
 
 Deceased Persons 29 
 
 may act as Registrar of his Court in Bankruptcy ... H 
 elicit before trial, by vivd voce interrogation, the 
 
 question in dispute 26 
 
 issue a warrant for distress on behalf of landlord 36 
 
 Minute of Proceedings, see Minute of Proceedings. 
 must have sufficient evidence of the justice of a claim 
 
 before he gives it his official aid 98 
 
 ■ inspect the body of a foreigner in British em- 
 ploy who dies under suspicious circumstances ... 12 
 not advance claims that are put forward under 
 
 the name only of British subjects 98 
 
 prepare Jury lists for the Supreme Court 5 
 
 , other judicial duties of, see Local Authorities 
 
 and Consul. 
 to send to Supreme Court Half-yearly Return of 
 
 C1S6S ■■■■■■■■■■■••*■■•■••*•■•■•■■■■■■•*•••••••■•>■•■••■•••• 8 
 
 CONSULAR AGENT, 'doubtful whether he may solemnise 
 
 marriage 4 
 
 not included in Section 25 of Order ib. 
 
 COURTS are Courts of Record 5 
 
 auxiliary to each other, in what sense, and to what 
 
 extent 8, 40 
 
 can not hold jury trials 5 
 
 can only be held by Commissioned Consular Officers 4 
 
 , functions of 9 
 
 , jurisdiction of, nature of, 40 
 
 generally to decide for themselves 6 
 
 may reserve decision on a special point for the Su- 
 preme Court 31 
 
 special cases how provided for 6 
 
 what crimes punishable by 16 
 
 when to refer to Supreme Court 6 
 
 OFFICERS cannot enact Ordinances on their own res- 
 ponsibility 3, 38 
 
 especially necessary that they should have some 
 
 knowledge of law 1 
 
 should know where to find the law on any subject... 2 
 , to hold a Court, must have a Commission from 
 
 Her Majesty 4 
 
VI 
 
 Paqe. 
 [CONSULAR] 
 
 ORDINANCES, what are not repealed 3 
 
 repealed ib. 
 
 CONTEMPT OF COURT 62 
 
 CONTRACT, PENALTY FOR BREACH OF, see Damages. 
 
 CORONER, Consul can act as 9 
 
 'S INQUEST, general outline of proceedings at a 13 
 
 what are fit cases for a 11 
 
 JURY, form of Oath for 12 
 
 Summons for 13 
 
 , verdict of ib. 
 
 COSTS, how much to be awarded 24, 69 
 
 in Interlocutory Proceedings, rule as to ib. ib. 
 
 to be fixed at time of delivering judgment ib. ib. 
 
 COUNCIL, MUNICIPAL, see Municipal Council. 
 
 COURT at Hongkong, when it has jurisdiction 19 
 
 contempt of. 62 
 
 of Record, what is a 5 
 
 , CONSULAR, see Consular Court. 
 , SUPREME, see Supreme Court. 
 CREDITORS' ASSIGNEE, see Bankruptcy. 
 
 CRIMES, what are punishable by a Consular Court 16 
 
 CRIMINAL JURISDICTION 95 
 
 accused is entitled to summonses for witnesses '96 
 
 to be allowed communication with his friends 
 
 and advisers ib. 
 
 when several are implicated in the same case, 
 
 to be tried together ib. 
 
 distinction between summary cases and indictment 
 
 cases to be observed 95 
 
 examination must be in presence of accused ib. 
 
 nature of king's (or queen's) evidence 96 
 
 neither of the accused can give exculpatory evidence 
 
 for the other ib. 
 
 presence of witnesses, when not compellable by 
 
 warrant ib. 
 
 warrant of arrest to be issued only when absolutely 
 
 necessary 95 
 
 CROSS-EXAMINATION OF WITNESSES 60 
 
 permitted only on material points 62 
 
 CROSS-SUITS 67 
 
 D 
 
 DAMAGES 69 
 
 as compensation 73 
 
 , compound interest allowed on, only from express 
 
 contract or custom 72 
 
 , consequential 76 
 
 , excessive, a ground of appeal 78 
 
Page. 
 [DAMAGES] 
 
 , exemplary, 77,78 
 
 for breach of contract 73 
 
 non-delivery of goods 76 
 
 non-payment of money ib. 
 
 generally a sufficient remedy for non-performance of 
 
 contract 69 
 
 in action of " detinue," 77 
 
 "tort" ib. 
 
 "trover" ib. 
 
 — cases of assault (see also Assault, Damages foe) 97 
 
 , interest depending- on, compound, wben allowed... 72 
 
 Court to exercise discretion in awarding* ib. 
 
 in tbe case of awards 72 
 
 bills of exchange 71 
 
 bonds 72 
 
 particular instances 71 
 
 when allowed 70 
 
 when compulsory 71 
 
 when not allowed ib. 
 
 "liquidated damages" and "penalty," distinction 
 
 between 74 
 
 instance of ib. 
 
 real intention of the parties is the guide 75 
 
 instance ib. 
 
 , special 77 
 
 , uncertain 76 
 
 , unliquidated, meaning of the term .'. 70 
 
 no interest chargeable on 71 
 
 when none are fixed 76 
 
 DEAD BODY OF A FOREIGNER in British employ, the 
 
 Consul must, in suspicious cases, examine 12 
 
 DEATH OF A BRITISH SUBJECT, proceedings in case of 15 
 DEBTOR, JUDGMENT, see Judgment Debtor. 
 DECEASED PERSONS, ESTATE OF, registry-book must 
 
 bekept 29 
 
 , when Consul can charge percentage on ib. 
 
 DECISION on a special point may be referred to the Supreme 
 
 Court 31 
 
 , speedy, required 26 
 
 DECREE, final, or interlocutory 63 
 
 ON JUDGMENT, see Judgment, Order on. 
 DEFENCES in confession and avoidance, definition of 
 
 examples, 53 
 
 DELAY in decision very prejudicial 26 
 
 in trial of cause, none to be accorded beyond that 
 
 allowed by the Rules, 54 
 
 DEMURRER, what? 30, 42 
 
 when defendant's objection as to Law is dismissed, 
 
 he may object as to the Fact..... 43 
 
Vlll 
 
 Page. 
 
 DEPORTATION 19 
 
 DEPOSITIONS OF WITNESSES who may be leaving the 
 
 locality, can be taken 56 
 
 DISSENT OF ASSESSORS to conviction 17 
 
 DISTRESS BY LANDLORD : 86 
 
 affidavit in which the facts are stated, necessary ib. 
 
 , mode of execution of warrant for ib. 
 
 should be effected through Consul ib. 
 
 tenant must be British subject ib. 
 
 text-books referred to 37 
 
 DOCUMENTARY EVIDENCE, admission of 23 
 
 course to be taken when an objection is made to the ib. 
 DUPLICATE OF PAPERS to be served in a suit, is required 
 
 for the Courts 27 
 
 E 
 
 ENTRY OF PLAINT, example of 28 
 
 EQUITABLE DEFENCES 67 
 
 instances of. 67, 8 
 
 EQUITY, what is 9, 67 
 
 , COURT OF, Consular Courtis a ib., ib. 
 
 its nature misunderstood ib., ib. 
 
 ERRONEOUS action by Consuls, instance of 6 
 
 decision, instance of 73 
 
 notion of what Equity is 9 
 
 ESTATES OF BANKRUPTS, registry-book to be kept 30 
 
 DECEASED PERSONS, registry-book must be kept... 29 
 
 when Consul can charge percentage on ib. 
 
 , PARTNERSHIP, rule in cases of, where one partner 
 
 dies 16 
 
 EVIDENCE, 
 
 , collateral, to be generally rejected 58 
 
 distinction between what is sufficient and what is 
 
 necessary 26 
 
 in the adversary's possession 59 
 
 ■ possession of a person not under the Court's 
 
 jurisdiction 60 
 
 legalized copies are evidence 59 
 
 may be given in a civil case by the parties themselves 23 
 
 on whom the burthen of proof lies 59 
 
 , "parol," when admissible ib. 
 
 primary, what? ib. 
 
 to be preferred to secondary ib. 
 
 secondary, what? ib. 
 
 want of procurable evidence not to be excused, and 
 
 trial not to be postponed on that account 55 
 
 , DOCUMENTARY, admission of 23 
 
 proof as to handwriting 58 
 
 course to be taken when an objection is made... 23 
 
 , HEARSAY, not admissible 58 
 
Page. 
 (EVIDENCE] 
 
 OF EXPERTS, commonest form of 58 
 
 EXAMINATION OF WITNESSES 23 
 
 Cross-examination 60 
 
 only permitted on material points 62 
 EXECUTION AGAINST GOODS for non-compliance with 
 
 Order of Judgment 32, 64 
 
 , caution to be exercised in the 6, 32, 64 
 
 Consul cannot refuse to grant '. 32 
 
 extreme and peculiar cases, procedure in 64 
 
 may issue from Supreme Court to Consular Court ... 8 
 
 OF JUDGMENTS 63 
 
 EXPENSES OF WITNESSES 24 
 
 EXPERTS, Evidence of ib. 
 
 , Surveys, &c. of ib. 
 
 F 
 
 FEE-BOOK must be kept 29 
 
 FEES FOR APPEAL to Supreme Court 
 
 what payable to Consular Court , 21 
 
 what payable, and when, to Supreme Court ib. 
 
 FILING OF PAPERS, the, should be systematic 27 
 
 FINAL DECREE 63 
 
 FOREIGNER AS DEFENDANT, British Courts have no 
 
 jurisdiction 20 
 
 Consular Officers may act as arbiters 21 
 
 AS PLAINTIFF, British Court have jurisdiction 20 
 
 IN BRITISH EMPLOY, if he dies under suspicious cir- 
 cumstances, Consul himself must view the body... 12 
 
 not to be registered 20 
 
 ON THE MUSTER ROLL OF A BRITISH SHIP, 
 when amenable and when not to British Consular 
 
 jurisdiction 4 
 
 FORMS, value of, felt by many classes 25 
 
 Gr 
 
 GOODS, EXECUTION AGAINST, see Execution against 
 Goods. 
 
 H 
 
 HEADINGS OF CASES in Judge's Note-book 23 
 
 HEARING, proceedings at, must be regular and orderly 57 
 
 proof how tendered ib. 
 
 of all statements is necessary ib. 
 
 Rules as to Lists generally to be observed 54 
 
[HEARING,] age ' 
 
 when and by whom postponements, &c, may he made 54 
 
 who should commence the pleadings? rule 56 
 
 HEARSAY EVIDENCE is not admissible 58 
 
 its most common form ib. 
 
 HONGKONG, convicted offenders under what circumstances 
 
 sent to , 17 
 
 Court at, when it has jurisdiction 19 
 
 I 
 
 IMPRISONMENT 17 
 
 a more serious punishment in China than in England ib. 
 
 under decrees in civil suits 64 
 
 INDEX TO RULES may be referred to with advantage ... 35 
 
 INJUNCTIONS 46 
 
 such must be "interim" orders 47 
 
 , EXPARTE ib. 
 
 INQUEST, form of Inquisition at 14 
 
 , general outline of proceedings at 12, 13 
 
 must be held on the body 11 
 
 , remuneration to Medical officers serving on 12 
 
 , what a fit case for 11 
 
 , witness at, form of oath for 13 
 
 INQUISITION AT AN INQUEST, form of 14 
 
 INTEREST, claim of, arising out of a question of Damages, 
 see Damages. 
 
 INTERLOCUTORY DECREE 63 
 
 PROCEEDINGS 33 
 
 , great care to be exercised in 33, 35 
 
 , object of 33 
 
 , rule as to costs in 34 
 
 should be noted in Judge's Minutes 55 
 
 INTERNATIONAL LAW, what is , 2 
 
 works on, recommended ib. 
 
 INTERPRETERS should have their instructions in writing 99 
 
 make written reports on the results of their 
 
 negotiations with Authorities i ib. 
 
 INTRODUCTION 1 
 
 INVENTORY OF PROPERTY of deceased British subject, 
 
 when to be taken 15 
 
 ISSUE, defined 25 
 
 , settlements of 30, 50 
 
 should be clearly developed in Petition and Answer 25 
 IN LAW AND ISSUE IN FACT, different means of 
 
 determining 30 
 
XI 
 
 J 
 
 Page. 
 JAPANESE NATUKALIZED BRITISH SUBJECTS, see 
 under British Subjects, Naturalized. 
 SUBJECT as plaintiff or defendant against British 
 subject, see under Local Authorities and 
 Consuls. 
 
 JUDGMENT completes the record 62 
 
 may be reserved, if necessary 31 
 
 need not be lengthy 62 
 
 to be given after hearing, if possible 31 
 
 DEBTOR, warrant may be issued against 32 
 
 EXECUTION OF 63 
 
 ORDER ON 31 
 
 , form of ib. 
 
 , procedure on non-compliance with 32 
 
 SUMMONS, object of ib. 
 
 , proceedings on ib. 
 
 , when to issue ib. 
 
 JURISDICTION, CRIMINAL, see Criminal Jurisdic- 
 tion. 
 
 OF CONSULAR COURT, nature of 40 
 
 JURY LIST, to be prepared by Consuls and sent to Supreme 
 
 Court and Secretary of State 5 
 
 , TRIAL BY, limited to Supreme Court ib. 
 
 K 
 
 KING'S (OR QUEEN'S) EVIDENCE, nature of 96 
 
 L 
 
 LANDLORD, DISTRESS BY, see Distress by Landlord. 
 LANDRENTERS, COMMITTEE OF, see Municipal 
 
 Council. 
 LAW, Consul not expected to know what is the law on every 
 subject, but to know where to find it in the com- 
 monest matters 2 
 
 , Consular Court is a Court of 9 
 
 , some' knowledge of, especially necessary to Con- 
 sular Officers 1 
 
 , text-book on, recommended 2 
 
 INTERNATIONAL, what is ib. 
 
 works on, recommended ib. 
 
 MUNICIPAL, OF ENGLAND, what is ib. 
 
 OBJECTION IN, 
 
 if established by Defendant, Plaintiff's case at once 
 
 falls to the ground 30 
 
 if not established, the case proceeds to trial ib. 
 
Xli 
 
 [LAW] a9e ' 
 
 OF BANKRUPTCY, at present in a transitory and 
 
 uncertain state 10, 78 
 
 , no fraudulent debtor should be allowed to escape 
 
 under the 10 
 
 what will be its general tenor when determined ib. 
 
 LETTERS OF ADMINISTRATION, see Phobate. 
 LEVANT CONSULS, EXTRACT FROM CIRCULAR 
 
 LETTER TO 39etseq. 
 
 LOCAL AUTHORITIES AND CONSULS 98 
 
 action of Consul when assistance is asked by Autho- 
 rities 99 
 
 Authorities are acting wrongly ib. 
 application to Consul for assistance should be in 
 writing, whether by British subjects or by Autho- 
 rities 98, 99 
 
 cases between Chinese (or Japanese) and British 
 subjects, great regularity to be observed in 
 
 trial of all 100 
 
 accused should be allowed to cross-examine and 
 
 call witnesses for his defence ib. 
 
 — to have communication with his friends 
 
 and advisers ib. 
 
 accuser and witnesses, animus of, to be exposed ib. 
 
 to be sworn in any form 
 
 binding on their con sciences ib. 
 
 ■ to prove his case ib. 
 
 bail should generally be accepted ib. 
 
 hearsay evidence to be rejected ib. 
 
 claims of British subjects, how to be advanced 98 
 
 ■ put forward colourably under the name only 
 
 of British subjects, not to be advanced ib. 
 
 Consul should show to Authorities an example of 
 
 strict impartiality 99 
 
 Interpreters to make written reports of the result of 
 
 negotiations with Authorities ib. 
 
 LUNACY, Supreme Court alone is a Court of 9 
 
 M 
 
 MATRIMONIAL CAUSES, Supreme Court alone can try, 9 
 MEDICAL OFFICERS serving on an Inquest, remune- 
 ration of 12 
 
 MERCHANT SHIPPING ACT, jurisdiction under, continued 
 
 to Consuls 4 
 
 , under criminal sections of, cases are summary 37 
 
 MINISTER AT PEKIN, three Rules recently framed by, for— 
 
 Registration of Bill of Sale 35, 102 
 
 Registration of Mortgages ib. ib. 
 
 Suits against Partnerships and Agents ib. ib, 
 
Xlll 
 
 Page. 
 
 MINUTE OF PROCEEDINGS, Judge's, importance of ... 61 
 
 may be lent to parties in a suit, to obtain copies ... 22 
 
 must be drawn up in every case, civil and criminal ib. 
 
 should be complete and accurate ib. 
 
 MOTIONS TO SHOW CAUSE, 33 
 
 , an appeal from the Order on a, (if not ex parte), will 
 
 lie to Supreme Court 34 
 
 record of, form of ib. 
 
 , best course of procedure in 33 
 
 important statements to be made on oath 34 
 
 mode of hearing 1 ib. 
 
 to be made in writing ib. 
 
 MUNICIPAL COUNCIL OF PORTS AND CONSULS, 
 
 relations between 3? 
 
 cases unprovided for by Municipal Regulations may 
 
 come under the Law of England 38 
 
 coercive authority resides solely in Consul ib. 
 
 Consul may, under Minister's authority, enforce 
 
 Municipal Regulations ib. 
 
 power and functions of Municipal Council derived 
 
 from H. M.'s Minister ib. 
 
 LAW OF ENGLAND, what it is, 2 
 
 N 
 
 NATURALIZED BRITISH SUBJECTS, Chinese (or Japa- 
 nese), have no right beyond the particular colony 
 
 or possession 3 
 
 under what circumstances can be registered 20 
 
 , what are to be considered as 3 
 
 , when jurisdiction can be exercised over ib. 
 
 NEW TRIALS 65 
 
 NOTES, JUDGE'S, see Minute of Proceedings. 
 NOTIFICATION against British subjects of Chinese descent 
 
 residing in the interior 101 
 
 of the publication of three Regulations for Regis- 
 tration ib. 
 
 on subject of Probate, 104; do. regarding Rowdies, 103 
 
 o 
 
 OATH administered to Coroner's Jury, form of 13 
 
 Witness at Inquest, form of ib. 
 
 OBJECTION IN LAW 30 
 
 if established by Defendant, Plaintiff's case at once 
 
 falls to the ground ib. 
 
 if not established, the case proceeds to trial ib. 
 
 OFFENCES against Religion of country, how to be dealt with 18 
 
 the whole case to be reported to Supreme Court 19 
 
 , continuous, may be construed as misdemeanours... ib. 
 
*1V 
 
 [OFFENCES] ^ e ' 
 
 on board British ship within 100 miles of coast, to 
 
 be reported to Supreme Court 17 
 
 what rank under piracy ib. 
 
 OFFENDER, CONVICTED, under what circumstances to be 
 
 sent to Hongkong 1 ib. 
 
 OFFICERS, CONSULAR, see Consular Officers. 
 OFFICIAL ADMINISTRATOR to property of deceased 
 British subjects, in what cases and by whom 
 
 appointed 15 
 
 ASSIGNEE, see Bankrupt. 
 ORDER BEFORE SUIT, SUMMARY, extreme care required 
 
 in 35 
 
 IN COUNCIL is the authoritative guide for the- Pro- 
 vincial Courts 39 
 
 , law of England to be followed in what is not 
 
 expressly provided for by the ib. 
 
 remarked on and explained as under : — 
 
 Paragraph 9 of Preamble, page 3; section 3, ib.; 
 ss. 4-6, p. 4; s. 25, ib.; ss. 26-32, p. 5; s& 33-4, 
 ib.; Subdivision V., ib.; s. 43, p. 8; ss. 43, 44, 
 46, p. 6; s. 47, ib.; ss. 48-50 (Reconciliation Clau- 
 ses), ib.; ss. 49, 50, p. 9; s. 54, p. 14; ss. 57-61, 
 p. 15; s. 60, p. 16; s. 62, p. 5; s. 63, ib.; ss. 64- 
 80, p. 16; s. 77, p. 17; s. 79, ib.; s. 81, p. 20; 
 s. 100, p. 18; s. 104, p. 19; s. 106, ib.; s. 113, 
 p. 20; s. 114, ib.; s. 117, ib.; s. 143, p. 9; s. 146, 
 p. 24; s. 148, ib. 
 OF SEQUESTER, see Sequester, Order of. 
 ON A MOTION, if not ex parte, an Appeal will lie to 
 
 Supreme Court on 34 
 
 ON JUDGMENT, see Judgment Order. 
 TO HOLD TO BAIL, see Bail, Order to hold to. 
 ORDINANCES, &c, cannot be enacted by Consuls on their 
 
 own responsibility 3 
 
 , CONSULAR, what are not repealed ib. 
 
 what are repealed ib. 
 
 PAPERS, FILING OF, should be systematic 27 
 
 PARTIES OUT OF JURISDICTION of Court, what course 
 
 necessary 29 
 
 TO A CIVIL CASE may give evidence 23 
 
 PARTNER of a firm, death of, proper action by surviving 
 
 Partners and by Consul in case of 16 
 
 PARTNERSHIP ESTATES, rule as to, in the case of the 
 
 death of a Partner of the firm ib. 
 
 OR AGENTS, Rule recently framed for suits against... 35, 102 
 
 Agent or Partner, must be British subject 36 
 
Page. 
 PEACE, BREACHES OF THE, see Breaches of the 
 
 Pfaop 
 PENALTY AND LIQUIDATED DAMAGES, distinction 
 
 between ; 74 
 
 , instance of ib 
 
 FOR BREACH OF CONTRACT, see under Damages. 
 PERCENTAGE ON ESTATES of Deceased Persons, when 
 
 chargeable by Consul 29 
 
 PERFORMANCE OF CONTRACTS, SPECIFIC 68 
 
 what is the best remedy for non-performance 69 
 
 PERSONAL ARREST, see Arrest of the Person. 
 
 PETITION may be amended by Consul, if necessary 30 
 
 , nature of a 42 
 
 , service of 28 
 
 whatis a bad 42 
 
 defective ib. 
 
 ANSWER TO, may be amended by Consul 30 
 
 on oath 54 
 
 , procedure on 30, 52 
 
 should be short and relevant 43 
 
 where no answer put in, presumptions and proceed- 
 ings in different cases 50 
 
 PIRACY, extended signification of. 17 
 
 , punishment for 18 
 
 PLAINTS, entry of, example 28 
 
 , register of, form of 27 
 
 POSSESSION OF PREMISES, RECOVERY OF, see Re- 
 covert of Possession of Premises. 
 
 PRACTITIONERS 69 
 
 PREAMBLE TO "ORDER IN COUNCIL," paragraph 9 
 
 of, remarked on 3 
 
 PREMISES, RECOVERY OF POSSESSION OF, see Re- 
 covery of Possession of Premises. 
 
 PRINCIPAL OR AGENT, which? great care necessary ... 29 
 
 PROBATE, Circular Notification on subject of. 104 
 
 contentious cases of, Supreme Court alone has juris- 
 diction in 9, 94 
 
 fees on 95 
 
 in the case of the death of a Partner of a firm 16 
 
 penalty on unauthorized persons dealing with an 
 
 estate 95 
 
 , power of granting, to what cases confined 15 
 
 what is the proper action in other cases 16 
 
 , simple cases of, Consular Courts can act in 9 
 
 when party dies elsewhere than in China or Japan 16 
 PROCEDURE, RULES OF, see Rules of Procedure. 
 
 PROCEEDINGS, BARRING 66 
 
 , COMPELLING 65 
 
 , INTERLOCUTORY, see Interlocutory Proceed- 
 
 INGS. 
 
 ON DEATH of a British subject 15 
 
XVI 
 
 [PROCEEDINGS] ^' 
 
 , RECORD OF, must be full and accurate 5 
 
 , TERMINATING-, provision for 66 
 
 PROPERTY OF DECEASED BRITISH SUBJECT, con- 
 trol exercised over, by Consular Officer only under 
 
 authority of Supreme Court 15 
 
 Inventory of, when to be taken ib. 
 
 , Official Administrator of, appointed where necessary 
 
 by Supreme Court only ib. 
 
 vests in the first instance in Supreme Court ib. 
 
 PROVINCIAL COURTS, CONSULAR, see Consular 
 
 Courts. 
 
 PUNISHMENT FOR PIRACY 18 
 
 Q 
 
 QUEEN'S (or KING'S) EVIDENCE, nature of. 96 
 
 QUESTIONS OF ACCOUNTS may be referred 33 
 
 FACT OR LAW, reference of 26, 34 
 
 , manner of procedure in 34 
 
 must be in writing ib. 
 
 RECONCILIATION CLAUSES in "Order in Council," 
 
 remarked on 8,40 
 
 RECORD, Courts of, what are 5 
 
 of appeal from a decision on a Motion 34 
 
 , of what it consists 22 
 
 , original documents generally not to be 
 
 forwarded ib. 
 
 of Proceedings, must be full and accurate 5, 22 
 
 RECOVERY OF POSSESSION OF PREMISES. 
 
 action on judgment 37 
 
 Act referred to ib. 
 
 petition necessary 36 
 
 what necessary to establish defendant's case 37 
 
 plaintiff's case ib. 
 
 REFERENCE OF QUESTIONS for amicable settlement by 
 
 Consuls 8 
 
 of account 33 
 
 of fact or law by consent 26, 34 
 
 , manner of procedure in 34 
 
 must be put in writing ib. 
 
 REGISTER OF PLAINTS, form of 27 
 
 REGISTRATION 20 
 
 by British subjects at Foreign Consulates, conse- 
 quence of. ib. 
 
 Foreigners in British employ not to be registered ... ib. 
 
 , neglect of, how punished ib. 
 
xvu 
 
 Page. 
 [REGISTRATION] 
 
 BOOK, Consul's, form of 27 
 
 of Bankrupt's Estate must be kept 30 
 
 of Estate of Deceased Persons must be kept 29 
 
 OF BILLS OP SALE, Rule recently framed for 35, 102 
 
 OF MORTGAGES, Rule recently framed for ib., ib. 
 
 RELIGION, OFFENCES AGAINST, bow to be dealt with 18 
 
 whole case to be reported to Supreme Court 19 
 
 RETURNS, HALF-YEARLY, to be sent to Supreme Court 
 
 by Consular Courts 8 
 
 ROWDIES, objectionableness of 19 
 
 , Regulation providing for the surveillance of 103 
 
 , when and how the Court should act against 19 
 
 RULES recently framed by H. M.'s Minister at Pekin, three 
 in number: — 
 
 Registration of Bills of Sale 35, 102 
 
 Mortgages ib., ib. 
 
 Suits against Partnerships or Agents ib., ib. 
 
 OF PROCEDURE must be carefully complied with ... 21 
 
 , neglect in consulting 35 
 
 , object of 25 
 
 referred to or remarked on as under : — 
 
 Nos. 1-9, pages 26, 34; 1-27, p. 25; 10-2, p. 41; 
 13-7, ib.; 18-25, ib.; 28, pp. 26, 28; 30-2, p. 26; 
 38, p. 29; 41, p. 27; 42, p. 28; 43, pp. 30, 43; 
 44-50, p. 25; 53, p, 30,; 55, pp. 30, 67; 56, p. 30; 
 58, .pp. 25, 30, 33; 59, p. 9; 60-3, p. 30; 60-80, 
 ib.; 64, p. 65; 74, p. 97; 77, p. 29; 84-94, p. 23; 
 95-8, p. 31; 99, pp. 6, 31; 105-15, p. 31; 109, ib.; 
 113, p. 32; 116-28, ib.; 129-36, ib.; 131, pp. 32, 
 33; 134, p. 32; 138, p. 33; 138-9, p. 32; 144-52, 
 p. 33; Subdivision VI., ib.; 145, p. 22; 145, 4th 
 paragraph, p. 34; 149-51, ib.; 153, ib.; 153-82, 
 p. 21; 154-62, p. 32; 155, ib.; 163-74, p. 31; 170, 
 p. 22; 175-8, p. 34; 179, p. 35; 179-82, p. 45; 
 184-216, p. 15; 217-29, pp. 9, 21; 230-42, pp. 34, 
 35; 248, p. 23; 252, p. 36; S54-9, p. 7; 254-60, 
 p. 28; 257, p. 7; 261, p. 45; 262-3, p. 24; 274, 
 p. 31; 275, p. 26. 
 
 S 
 
 SECURITY, how much to be taken, from whom, and what 
 
 kind 6, 19 
 
 SEQUESTER, ORDER OF 46 
 
 action as to stoppage in transitu ib. 
 
 when to be granted ib. 
 
 SERVICE OF PETITION 28, 48 
 
 at the last place of residence, when to be resorted to 7, 48 
 
 -book should be kept by Serving Officer 28 
 
 , in what cases the plaintiff may serve 48 
 
XV111 
 
 [SERVICE OF PETITION] ^*" 
 
 , proceedings after 49 
 
 , substituted 48 
 
 SETTLEMENT OF ISSUES 30 
 
 , the Court may of itself settle the issues 50 
 
 SHIPPING ACT, MERCHANT, see Merchant Shipping 
 
 SHIPS, STOPPAGE OF, see Stoppage of Ships. 
 
 SPECIAL CASES, provided for by Rule 99 6, 31 
 
 , referred to Supreme Court 81 
 
 SPECIFIC PERFORMANCE OF CONTRACTS 68 
 
 what is the best remedy in cases of non-performance 69 
 
 STOPPAGE OF SHIPS 47 
 
 , agent to be applied to ib. 
 
 cases in which Agent may be unwilling to act ib. 
 
 ships under charters not to be stopped ib. 
 
 SUITS AGAINST PARTNERSHIPS AND AGENTS, Rule 
 
 recently framed for ." 35, 102 
 
 Partner or Agent must be British subject 36 
 
 , CROSS 67 
 
 LONG PENDING, how to be terminated 66 
 
 SUMMARY CASES, civil and criminal, to be conducted 
 
 formally 37 
 
 (civil) and indictment cases, distinction to be 
 
 observed between 95 
 
 ORDERS before Suit 35 
 
 extreme care required ib. 
 
 PROCEDURE, certain cases of 41 
 
 SUMMONS for Coroner's Jury, form of 12 
 
 issuing into another Consular district, form of 7 
 
 , great caution required in ib. 
 
 JUDGMENT, see Judgment Summons. 
 
 SUPREME COURT alone can hold Jury trials 5 
 
 alone has admiralty jurisdiction 14 
 
 , decision by, on a special point 31 
 
 , functions of 9 
 
 has extraordinary original jurisdiction over China 
 
 and Japan, concurrent with Provincial Courts ... 5, 40 
 , Judges of, may order cases to be tried at Shanghai ib., ib. 
 may visit ports to try cases (criminal 
 
 cases especially) ib., ib. 
 
 may issue Order of Execution to Provincial Court... 8 
 APPEAL TO, see Appeal to Supreme Court. 
 
 SURVEYS by Experts 24 
 
 generally have little legal force ib. 
 
 on unimportant subjects should be discouraged ib. 
 
 when necessary ib. 
 
 T 
 
 TERMINATING LONG PENDING SUITS, provision for 66 
 
 TEXT-BOOKS on International Law, recommended ..< 2 
 
XIX 
 
 Page. 
 [TEXT-BOOKS] 
 
 on Law, recommended 2 
 
 TREATIES AND REGULATIONS 17 
 
 TRIALS BY JURY can be held only by the Supreme Court 5 
 
 , NEW 13 
 
 VERDICT OF CORONER'S JURY 65 
 
 W 
 
 WARRANT OF ARREST in criminal cases, when to be re- 
 sorted to 95 
 
 in debt cases, under what circumstances permitted 33 
 
 WITNESSES at Inquest, form of Oath for 13 
 
 competency of, what are valid objections to the ... 57 
 cross-examination of, permitted only on material 
 
 points 62 
 
 depositions of, may be taken when the witness is 
 
 about to leave the place 56 
 
 examination of, 23 
 
 expenses of, 24 
 
 in what cases to be allowed ib. 
 
 for the accused, summonses should be granted for the 96 
 
 of different creeds, how to be sworn 13 
 
 of different nationalities, attendance of, how to be 
 
 secured 13, 56 
 
 , presence of, in what cases not compellable by 
 
 warrant 96 
 
 , sufficient notice to be given to 56 
 
 WRITS, EXECUTION OF, care to be exercised in the 6 
 
Ipi 
 
 
 ISP 
 
 i 
 
 Ml- 
 
 
 „ffl 
 
 KsvMvM 
 
 XI