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 CORNELL 
 
 UNIVERSITY 
 
 LIBRARY 
 
 THE 
 
 CHARLES WILLIAM WASON 
 
 COLLECTION ON CHINA 
 
 AND THE CHINESE 
 
Cornell University Library 
 JX 1784.Z4C51 1885 
 
 3 1924 023 470 929 
 
Cornell University 
 Library 
 
 m 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924023470929 
 
^'.\. 
 
 INSTRUCTIONS 
 
 HER MAJESTY'S CONSULAR OFFICERS 
 IN CHINA AND JAPAN, 
 
 ON THE 
 
 jVl6pE QP CONDUCTING JUDICIAL BUSINESS, 
 
 ' WITH CO]V||[ENTS ON THE CHINA AND JAPAN. ORDER IN 
 ■ .pOUNGit, 1865, AND THE RULES OF PROCEDURE 
 ' FRAMED UNDER IT. 
 
 BY 
 
 Si?i EDMUND HORNBY, K^' , 
 
 S'OSMERIsY CHIEF JUDGE OF HER MAJESTY'S SUPREME COURT 
 FOR CHINA ANT) JAPAN. 
 
 E^t0S and J^eeiised, with comments on the later Orders in Cowttt, 
 
 ^^■•;%' -BY 
 
 Sir RICHARD RE 
 
 THE PRESENT CHIEF JtrSTICE OF TflHSuRT 
 
 ■ 'iSHANCiHAI::- Miij 
 
 Printed by KEI:LY & WALSH, Limited, The Bund & Nanking Road. 
 
INSTRUCTIONS 
 
 HER MAJESTY'S CONSULAR OFFICERS 
 IN CHINA AND JAPAN, 
 
 yVlODE OF CONDUCTING JUDICIAL BUSINESS, 
 
 WITH COMMENTS ON THE CHINA AND JAPAN ORDER IN 
 
 COUNCIL, 1865, AND THE RULES OF PROCEDURE 
 
 FRAMED UNDER IT. 
 
 BY 
 
 Sir EDMUND HORNBY, K^ ^.^^-^ 
 
 FORMERLY CHIEF JUDGE OF KER MAJESTY'S SUPREME COURT 
 FOR CHINA AND JAPAN. 
 
 Edited and Revised, with comments on the later Orders in Council, 
 
 BY 
 
 Sir RICHARD RENNIE, K^ 
 
 THE PRESENT CHIEF JUSTICE OF THE COURT. 
 
 SHANGHAI : 
 Printed by KELLY & WALSH, Limited, The Bund & Nanking Road. 
 
 1885. 
 
Y^'ini(> 
 
PREFACE, 
 
 To 
 
 HER MAJESTY'S CONSULS IN CHINA AND JAPAN. 
 
 Eighteen years ago my predecessor, Sir Edmund Hornby, 
 by desire of Earl Russell, issued to you " Instructions on the 
 Mode of Conducting Judicial Business, with Comments on the China 
 and Japan Order in Council, 1865, and the Rules of Procedure 
 framed under it." I understand that that work has proved of 
 gi'eat practical utility to you, but the issue of new Orders in 
 Council altering in many points the provisions of that of 1865, 
 and other changes in Law and Procedure greatly affecting the 
 administration of Justice in our Courts, seem now to render it 
 necessary that fresh instructions should be given to you. This 
 task has naturally devolved upon me, and I have to thank you for 
 the assistance you have given me by the replies you have sent to 
 my Circular on the subject. In some instances, however, I have 
 thought it undesirable to answer, in this work, the queries you 
 have put to me. It appears to me inexpedient that I should, in 
 pages which will be in some degree open to the public, offer any 
 opinion upon doubtful and undecided questions of law; and as 
 regards questions of policy, such for instance as the enforcement 
 or non-enforcement of the registration of British Subjects, I have 
 considered it best to leave Sir Edmund Hornby's instructions 
 
intact. If it should be necessary for me to advise you on any 
 such points, I shall prefer to do so in separate despatches or in a 
 confidential circular, as I have alrea'dy done in the matter of 
 jurisdiction over foreigners serving on board British merchant- 
 vessels in these waters. 
 
 I have thought it best to re-write Sir Edmund Hornby's 
 comments on the Order in Council of 1865 and Rules of 
 Procedure in the third person, incorporating with them my 
 own comments, but I have appended, with as little alteration 
 as possible, his remarks on the conduct of judicial business, 
 civil and criminal. The law of bankruptcy has undergone so 
 many and such radical changes since he wrote on the subject 
 that I have been obliged to omit altogether his observations on 
 that branch of the law as being no longer in point. A new and 
 comprehensive Bankruptcy Act was passed in 1883, and you will 
 find the practice under it well explained in Chalmers and Hough's 
 work on the Act, Rules, &c., with which each of your Courts is 
 now furnished. 
 
 I entirely agree with Sir Edmund Hornet that " 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;" and I think that the works he 
 suggests for your perusal, viz : — 
 
 Wheaton's International Law, 
 Stephen^ s Blackstone's Commentaries, 
 SmitJi's Mercantile Law, 
 Chitty on Contracts, 
 Roscoes Criminal Law, 
 
 to which I would add Broom's Legal Maxims, and Fitzjames 
 Stephen's Digest of the Law of Evidence, are an admirable 
 selection. As Sir Edmund observes, text-books "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 recollection of 
 
Ill 
 
 every formula. What the student should endeavour to attain to is 
 a knowledge of principles, and to know where to find the law." 
 You are now provided with a fair law library at each of your 
 
 Consulates, and I would strongly recommend you to lose no 
 opportunity of referring to your books whenever any point of law 
 occurs to you. Read the reports of any cases that occur in 
 Shanghai or elsewhere which come to your notice. Form your 
 own opinion upon the points that arise, and then see whether your 
 books confirm that opinion or not. In this way you will very 
 easily and rapidly acquire that facility of reference without which 
 the best law library is of little use. 
 
 In regard to the decision of civil suits you will, I venture to 
 think, find that the most practical method of arriving at a sound 
 conclusion is to take the main facts of the case thoroughly into 
 your head before attempting to apply to it any principles or 
 technicalities of law. Grasp your facts, think out the logical 
 conclusion to be drawn from them, and then refer to your books 
 to see whether such conclusion be or be not in accordance with 
 law. Of course if you find that authority is against you, your 
 own conclusion must give way, and you must follow the law 
 which you find applicable to the case ; but such experience as I 
 have acquired leads me to believe that law and reason are seldom 
 at variance, and that a judgment based on broad common-sense 
 will be rarely at issue with the best and highest principles of 
 English Law. 
 
 In the following pages I have not attempted to write anything 
 in the shape of a treatise on Law. All that I have done, or that 
 I could in my opinion advantageously do, is to provide you with 
 such concise directions and advice as may assist you in the prac- 
 tical performance of your judicial functions : for the rest you must 
 rely upon your own judgment and the aid you can derive from 
 your books. At the same time I need hardly say that, as it is my 
 duty, so it will always be my pleasure, during my continuance in 
 office, to give you all such further advice and assistance as you 
 may from time to time require. 
 
In the Appendix will be found some forms supplementary to 
 those in the Rules, which I trust will prove useful. 
 
 I cannot conclude this preface without expressing the very 
 great obligation I am under to Mr. Mowat and Mr. Wilkinson 
 for the kind and valuable aid they have given me in the re-edition 
 of this little work. 
 
 R. T. EENNIE. 
 
 Supreme Court, 
 
 Shanghai, 1st June, 1885. 
 
INSTRUCTIONS 
 
 TO 
 
 HER MAJESTY'S CONSULAR OFFICERS 
 IN CHINA AND JAPAN, 
 
 ON THE MODE OF CONDUCTING JUDICIAL BUSINESS. 
 
 In proceeding to consider the jurisdiction and procedure of Her 
 Majesty's Courts in China, Japan, and Corea, it is in the first instance 
 necessary to bear in mind how that jurisdiction has been conferred. 
 "Without entering into detail, it may be sufficient to say that the source of juns- 
 whole of that jurisdiction has been conferred by and rests upon courts. 
 Orders in Council, promulgated by Her Majesty under the authority 
 of Acts of Parliament passed at different dates and now collectively 
 known as the Foreign Jurisdiction Acts, 18i3 to 1878. 
 
 The Orders i*i Council (commencing with that of 1865) all recite 
 the fact of Her Majesty having power and jurisdiction in these 
 countries. This jurisdiction has been, it is hardly necessary to say, in 
 a great measure acquired by Treaty, but it may be as well to point 
 out at once that, so far as the judicial authority of Consular Officers 
 is concerned, the jurisdiction, although it may be in one sense the 
 creature of Treaty, is dependent upon the Orders in Council alone. 
 It follows therefore that even if it should happen to be the fact that 
 these Orders have been drawn up in such a manner as seemingly to 
 interfere with Treaty provisions, it is nevertheless by the Orders and 
 not by the Treaty that Consular Officers must be guided in the exercise 
 of their judicial functions. 
 
 Section 4 of the Order of 1865 provides that all Her Majesty's 
 jurisdiction exerciseable in China or in Japan for the judicial hearing 
 and determination of matters in dispute between British subjects or 
 between foreigners and British subjects — or for the administration or 
 control of the property and persons of British subjects — or for the 
 
maintenance of order among Britisli subjects— or for the repression or 
 punishment of crimes or offences committed by British subjects, — shall 
 be exercised under and according to the provisions of the Order and 
 not otherwise. 
 
 It is necessary in the first place to consider carefully to and over 
 whom that jurisdiction extends. 
 
 Section 3 shews that the provisions of the Order relating to 
 British subjects apply to all subjects of Her Majesty, whether by birth 
 or naturalization,* and so far as persons clearly included under these 
 heads are concerned little need be said, except as to those in the employ 
 British subjects of the Chinese, Japanese, and Corean Governments. With regard to 
 chre.?J°Govem. Criminal jurisdiction over such persons, there is little doubt but that 
 "''°'' our Court and our Courts alone are competent to deal with them 
 
 in respect of crimes or ofiences committed in these countries, and 
 Consuls should not hesitate to take jurisdiction over them. If the 
 accused should plead, as in the Page casef, that the alleged offence 
 was committed by him under the orders of his superiors and in the 
 execution of his duty as a Chinese officer, that may or may not prove 
 a sufficient defence, but evidence must be taken on the point. Should 
 the prisoner be convicted and the Consul be doubtful as to the validity of 
 the defence, he should reserve the point for, or allow an appeal to, the 
 Higher Courts (by which expression here, as elsewhere throughout this 
 book, is meant the Supreme Court, or the Court for Japan, as the case 
 may be). 
 
 In regard to civil suits brought against British subjects in Chinese, 
 Japanese, or Corean Government employ, where it is established at the 
 hearing that the acts complained of were done, or the injury complained 
 of was caused, by the defendant in the course of his employment and 
 duty as such officer, such a defence will be good. 
 Persons of the ^^ persons of Chinese race born In a British possession are, in 
 
 Chinese race bom ^ ^ ' 
 
 a' British possel" strictness, according to English law, British subjects ; but as against 
 "'°"' the authorities of China, children of Chinese parents who were them- 
 
 selves not naturalized or born British subjects, are not entitled in 
 China to_be considered or treated as British subjects, notwithstanding 
 
 * It will be observed, however, that in the interpretation clause of tbe Order 
 in Council, 1884, the exjiression " British subject " is made to include what is 
 described as a " British-protected person." 
 
 t Tried at Canton in February, 1881, before French, C.J, 
 
3 
 
 they may have been born in a British colony or possession. It would 
 seem to be the object of this rule 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 providing for 
 their birth taking place in 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. 
 
 It follows from what has been said, that if a person of Chinese 
 race be a British subject, he is entitled to the privileges and must 
 submit to the disabilities of that character. These privileges 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. 
 
 The same rules will doubtless be held apphcable to Japan and 
 Corea. 
 
 The mode of exercising jurisdiction and the law to be administered 
 next demand consideration. 
 
 The 4th, 5th and 6tlli sections of the Order require httle or How jurisdictior 
 
 ^ is to be excrcisea, 
 
 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 which 
 would not be criminal according to the law of England is to be 
 deemed a criminal act here unless it be one expressly made criminal 
 by the Order. 
 
 The words " circumstances will admit " in the 5th section would Mennins of words 
 
 " Circumstances 
 
 seem to mean that unless there is some positive reason to the contrary win admit ■■ in 
 
 ^ 5tii section. 
 
 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 Consulai 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 Acts, 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. 
 
Juries and 
 Asaessors. 
 
 Jurisdiction of 
 Courts. 
 
 Courts of 
 Kecord. 
 
 Little need here be said concerning the constitution of the Supreme 
 Court, which is very clearly set out in the Orders in Council, but it 
 may be well to remind Consular Officers that sections 9 to 22 
 inclusive of the Order in Council, 1865, have been repealed and new 
 provisions made in lieu of them by the Order in Council, 1878, under 
 which a separate Court for Japan is established, and the constitution 
 of the Supreme Court somewhat modified. 
 
 Sections 23 to 25 call for no observation. Sections 26 to 
 34 deal with the subject of jurors and assessors, as do also sections 
 62 and 63. Trial with a jury is at present limited to the Supreme 
 Court and the Court for Japan, but power is given — section 62 — 
 to the Secretary of State to extend this power to any Provincial Court 
 where it appears to him there is a sufficient jury-list. Each Consul 
 should send a copy of his jury-list, when revised and settled, to the 
 Higher Courts, as in the event of one of the Judges visiting a 
 Provincial Court for the purpose of hearing any suit or trying any 
 prisoner, it ^YOukl be front sucli list that the jury would have to be drawn. 
 
 Under the 33rd and 34:tb sections, 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. It should be remembered that 
 assessors cannot be challenged like jurors: the Consul will exercise his 
 discretion in regard to objections, if any, made to them by the parties. 
 
 Subdivision V of the Order (sections 35 to 80) deals with the 
 jurisdiction and authorities of Her Majesty's Courts, and the relation 
 of the Provincial Courts to the Higher Courts. All the Courts are 
 Courts of Kecord, 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 (that is, the written proceedings 
 sealed with the seal of the Court), and no further proof of their 
 authenticity is requisite. But this very provision shows the importance 
 as well as the necessity of Consuls keeping a full and accurate record of 
 the proceedings in every case. An omission to do so might seriously 
 prejudice the rights and interests of the parties to a suit, and disable 
 them from establishing facts which have b^en admitted or proved or 
 from prosecuting an appeal. 
 
The Supreme Court has au extraordinary original iurisdiction oyer Concurrent jurLs- 
 
 ^ J o J diction of Higher 
 
 the whole of China and Corea, and the Court for Japan over the whole of Onurt« with Pro- 
 
 ' ^ vmcial Courts. 
 
 Japan, concurrently with the jurisdiction of the several Provincial Courts 
 — that is to say, they can take cognizance of any case in any Consular 
 district and act as if they were actually for the time being established 
 within such district. The Judges can either visit a Provincial Court 
 and hear any case arising within its district,* or can order any case 
 which they consider fit to be heard and determined by the Higher 
 Courts to be sent up for that purpose to Shanghai or Yokohama, as 
 the case may be. 
 
 Each Consul, nevertheless, is bound to hear and determine every 
 case arising within his jurisdiction and with as much promptitude as 
 a careful compliance with the rules of procedure permits. It is only 
 in those cases where the questions involved are of great importance 
 and the solution of them of great difficulty, that the Higher Courts 
 will exercise their right of concurrent jurisdiction, and in no instance 
 will they hear a part-heard case. The 99th Eule of Procedure provides special cases. 
 for the submission of special cases involving one or more points of 
 law or fact; but even the assistance thus afforded should not be hastily 
 invoked. It is the duty of every judicial ofiScer 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. 
 
 In regard to section 41 it need only be observed that 
 Practitioners admitted in the Higher Courts are entitled to right of 
 audience in the Provincial Courts.j 
 
 The 43rd and 44tli sections confer considerable power and f?,^^{'°coSSTf 
 entail some responsibility, and in 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. 
 
 * In the event of one of the Judges arriving within the district of a Provincial 
 Court, the judicial authoritj' of the Consul is temporarily placed in abeyance 
 except in so far as the Judge may direct him to continue to exercise it. See 
 Basl Kusskll's Circular of 16th May, 1865. 
 
 f See Mr. Mowat'S Circular of 28th March, 1881, and Rules of Procedure 
 enclosed. 
 
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 latter alone, but where this is not obtainable, some substantial 
 security should be taken. Consuls, however, are supposed to have 
 some personal knowledge of the means, character and circumstances 
 of individuals residing within their districts, and by that knowledge 
 they will to a considerable extent be guided. 
 Execution may By sectloii 43 execution may issue from the Higher Courts 
 
 issue to Provin- 
 
 ciai Court from to a Provincial Court to seize and sell in satisfaction of a iudgment, 
 
 Higher Couru. •' ° ' 
 
 obtained in the Higher 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 Higher 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 Higher Court. 
 ti°oad.Tther°'^ ^'^'^ ^^^^ section which declares that all Courts in China 
 
 and Japan shall be auxiliary to one another, appears to have been 
 somewhat misunderstood. It is not 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. A Consul 
 should not, except under very peculiar circumstances — such as the 
 absconding of a defendant to avoid service of a summons — summon 
 a person from another Consular district to appear before him. In 
 general, the plaintiff must follow the defendant and sue him in the 
 district in which he finds him. In some instances, by making use 
 of the provisions in Eule 256 (i) for service at the last place of 
 residence, a plaintiff 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 etids of justice. 
 
 When the circumstances justify the issuing of a summons under 
 Eule 257 into another district, it should only issue in accordance 
 with a judicial order made upon a regular application, supported by 
 
 * Appendix No. 1. 
 
facts deposed to on oath, all of whicli should remain matter of record. 
 As a general rule, it will be well for a Consul who is asked to issue 
 a summons into another district, to take the opinion of the Higher 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 him- 
 self, in the first place, that the plaintiff has a good cause of action, and 
 that the demand is a liquidated demand and not merely a claim sound- 
 ing in damages. In the next place, there should be some better reason 
 than that of the plaintiff's convenience for his not going himself or ap- 
 pointing some one to represent him in the district in which the defend- 
 ant is, and in which in strictness the case should be tried. Lastly, it 
 is generally advisable 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 sus- 
 tained by being improperly brought up. The orders for service, if made, 
 should be in the forms in the Appendix, Nos. 2 and 3. 
 
 Other ways besides the one mentioned in section 43, in which 
 Courts may be properly made auxiliary to each other are, e.g., securing 
 the estates of deceased British subjects, serving notices on next of kin 
 and creditors, and procuring information upon an infinite variety of 
 subjects connected with the administration of justice. 
 
 In accordance with the 47th section, Consuls should on the Haif-yeariy re- 
 1st of July and on the 1st of January of every year, report on the 
 cases that have been tried in their Courts. Almost similar forms* will 
 apply to criminal and civil cases, the returns of which are to be made 
 up separately. They should be addressed to the Judge of the Higher 
 Court, and any observations that Consuls may consider necessary upon 
 any case should accompany them.| 
 
 Sections 48 to 50 inclusive empower Courts to promote re- Keoonduation 
 
 Clauses. 
 
 conciliation and facilitate the settlement in an amicable way of civil 
 proceedings pending before them. 
 
 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 
 
 * Appendix Nos. 4 and 5. 
 
 f See Circular of Sir E. Hoknbt of 17th January, 1870. 
 
8 
 
 Beference to 
 Consul. 
 
 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 may be 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 may not 
 be fully acquainted, 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 themselves. If, however, the matter is by the 
 consent of the parties referred to the Con.sul, he may determine it — 
 noting on the proceedings 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 — or in the case of accounts (see Rule 
 59) without consent — and is a matter of record, and must be con- 
 ducted in conformity with sections 49 and 50 of the Order and 
 with Rules 217 to 229. 
 
 The Supreme and every other Court shall be a Court of Law and 
 Equity (section 51). 
 
 There is a good deal of misapprehension 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, npon 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 
 
9 
 
 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, eqnity is a branch of law just whatisequiey 
 
 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 origin, its Courts administer 
 
 a system of law 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 of 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 stndy 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. 
 
 The Supreme and every other Court shall be a Court of Bank- 
 ruptcy (section 52). The new Act (46 & 47 Vict. c. 52) passed 
 last year has effected very great changes in the law of Bankruptcy, 
 and Consuls will find in Chalmers and Hough's work on the subject, 
 recently supplied to them, the information requisite for their guidance. 
 The Supreme Court and the Court for Japan have been recently 
 authorized by the Secretary of State, under the 6th section of the 
 China, Japan, and Corea Order in Council, 1884, to perform in China 
 and Japan respectively the functions and duties of the Board of Trade 
 under the Act. 
 
 In their capacity of Coroners (section 53), Consuls will do coroners. 
 well to remember that every case of sudden death, unless the cause 
 is what may be termed a natural cause and is certified as such 
 by a duly qualified and respectable medical man, is a fit case 
 for an inquest. It does not follow that a Consul should insist 
 upon holding an inquest in 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. For the purposes of an inquest a Consul may summon* any 
 three or more persons comprised in the ordinary jury-list of the Court. 
 
 * Appendix No. 6. 
 
Coroner's jury. 
 
 10 
 
 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 to 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 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 gratuitously, but where it is necessary to make a post-mortem 
 examination, a fee of three and in some cases 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 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 de- 
 ceased, the Consul should, as a measure of precaution, either himself 
 attend to view the body, or delegate this task to an intelligent assistant. 
 A medical man should also, where it is possible, be in attendance. 
 
 The Coroner must hear all evidence that is offered and that upon 
 oath. Even a person who may be suspected of the murder is at 
 liberty to give evidence. If such a person has not attended of his own 
 accord, but has attended upon a subpoena, the Coroner ought to warn 
 him that he is not bound to answer any questions that may criminate 
 him. 
 
 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 administer the oath.f 
 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 
 
 * Appendix No. 7. f Appendix No. 8. 
 
11 
 
 been guilty of manslaughter or murder, he must bind by recognisance 
 all Tvitnesses if they be British subjects, who have any evidence to 
 give, to appear vehen 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 
 
 Coroner's jury. 
 
 possible the facts of the case, showing the manner wherein or cause 
 whereby or by what means the deceased came by his death. Imme- 
 diately after the jury have pronounced their verdict, it should be put 
 in writing. The Coroner and Jurors must sign the inquisition.* The 
 signatures should be in full, stating both Christian and surname of 
 each juror. In all cases the particulars of the inquest must at once be 
 reported to the Higher Court. 
 
 By the 54th section an Admiralty jurisdiction has been con- 
 ferred upon the Supreme Court and on that Court alone."]" This juris- 
 diction is an exceptional one in many respects, and although no Pro- 
 vincial Court has power to exercise it, yet it is necessary that Consular 
 Officers 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 means of enforcing them in the Supreme 
 Court, or in the Court for Japan. It is an essential and a peculiar feature 
 of Admiralty jurisdiction that it may be and most usually is exercised, 
 not against the owners personally, but against the ship itself, its ap- 
 parel and even its cargo. Special Eules of Procedure to be observed 
 in the Supreme Court in Admiralty were specially drawn up and issued 
 in 1867, and from them Consular Officers can ascertain the matters to 
 
 * Appendix No. 9. 
 
 t The Court for Japan has Admiralty iuriadiotion under the Order in Council 
 of 1878. 
 
12 
 
 which the jurisdiction extends and the mode of procedure. These 
 Rules will be found in the Appendix (No. 10). 
 
 It would seem that difficulties have frequently arisen in conse- 
 quence of the Provincial Courts lacking this special jurisdiction, and 
 that Consular Officers sometimes find themselves powerless to detain 
 a ship against which claims justifying her arrest in an Admiralty suit 
 in the Supreme Court are preferred. As the matter stands at present, 
 Consular Officers can give suitors no remedy against the ?■«-,•.■,* although 
 they can of course entertain a suit against the master of the vessel 
 personally, and if need be, and the circumstances of the case warrant 
 it, hold him to bail under Rule 261. If the claim against the ship be 
 one of a serious nature, e.g., for damages by collision, or of any other 
 kind involving heavy claims, the suitor should be advised to institute 
 his suit in the Higher Court with as little delay as possible, and in 
 the present day when most of the Provincial Courts are within tele- 
 graphic communication with Slianghai and Yokohama, there need be 
 little difficulty in this, as an order for the arrest of the vessel in an 
 Admiralty suit will, if necessary, be made by the Higher Court by 
 telegram. t 
 
 The special jurisdiction in Lunacy conferred by the 55th sec- 
 tion is limited to the Supreme Court and Court for Japan, but this 
 does not interfere with the summary jurisdiction of a Consular Officer 
 over lunatics in his magisterial capacity. 
 
 The Supreme Court and Court for Japan alone have jurisdiction 
 in Matrimonial Causes (section 56), but neither of these Courts has 
 power to dissolve marriages. 
 
 The Supreme Court and Court for Japan are Courts of Probate 
 (section 57), and the Provincial Courts are vested with power to 
 grant probate or administration where there is no contention respecting 
 
 * This dictum has of course reference to the special Admiralty procedure 
 alone, and must not be taken to imply that a ship cannot be taken in execution 
 and sold like any other chattel in oases where the owner has been served with 
 notice of process and has had judgment given against him in respect of which 
 execution has issued. 
 
 t The Order in Council o£ 1878 specially provides (section 11) that any 
 proceedings taken in China or Japan against one of Her Majesty's vessels or the 
 officer commanding the same as such, in respect of any claims cognizable by a 
 Vice-Admiralty Court, shall be taken only in the Supreme Court or Court for 
 Japan. 
 
13 
 
 the right to the grant. It will be observed, however, that the special 
 jurisdiction of all these Courts is confined to the property of British 
 subjects having at the time of death their fixed place of abode in 
 China or Japan, and it 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 handed over to any person properly authorized 
 by a grant of probate or 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 administration being first obtained in the Court of 
 the district in which the party died. In such cases the original pro- 
 bate or letters of administration should be produced to the Consul, 
 and he should seal them with the seal of the Court and require a copy 
 of them to he deposited with himself. An affidavit (form in Appendix, 
 No. 11) should be made by the applicant, setting out the value of the 
 property within the Consular district, and on this value the Consul 
 will levy the usual stamp-duty. 
 
 Cases may also occur where the ordinary residence of the deceased Death elsewhere 
 
 than in China or 
 
 has been in China or Japan for some years precedmg his death, but Japan, 
 probate of his will or letters of administration to his estate may have 
 been granted in England, Hongkong or elsewhere. Such probate or 
 letters of administration, provided no will of subsequent date be found 
 here, should be recognized, and on production of an exemplification of 
 the other grant, a grant should be made here in the usual way. 
 
 In the case of partners, it is the duty of the surviving partners to when a partner 
 close the books of the firm as far as can be done, and open new ones in 
 respect of all transactions subsequent to the death. In the absence 
 of any executor, the Consul should inform the surviving partners 
 of their duty in this respect, and require from them a statement 
 of the interest which the deceased had in the partnership stock 
 and effects at the time of his death. This statement, with all the 
 particulars that can be collected relative to the deceased, his relations 
 and his property, shonld be immediately forwarded to the Judge 
 of the Higher Court who will give what instructions may be necessary. 
 But in partnership estates, it must be recollected, partners have only 
 undivided shares or interests in the whole, and until conversion there 
 is therefore no separate estate, so that on the death of a partner, his 
 surviving associates become the trustees of his share and hold the same 
 
14 
 
 to the use of his relatives or next of kin. Such holding possession 
 does not fall under the provisions of the 60th section, and the 
 surviving partners are accordingly not liable to the penalties mentioned 
 therein. 
 Administration. 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 any person in a remoter degree of consanguinity,* 
 Administration cannot be granted to the latter without previously 
 summoning those who have the prior right, and the same rule applies 
 in the case of creditors seeking administration, whose right to take 
 oat administration arises, in strictness, only where none of the kindred 
 will do so. 
 
 The proceedings to be taken on the death of a Brititish subject are 
 described with safScient clearness in sections 57 to 61 and Rules 
 184 to 216, and all that need here be added is that under section 
 59 the personal property of a deceased British subject who dies inte- 
 state vests exclusively, until administration is taken out, in the Chief 
 Justice or Judge of the Court for Japan, as the case may be. 
 No one else has any right to interfere or exercise control over 
 such property other than a Consular Officer, and he can only do so 
 under the orders of the Chief Justice or Judge. It will be seen 
 that by section 60 special penalties are made leviable on any person 
 (other than one of Her Majesty's Consular Officers) who may take 
 possession of any part of the personal property of any deceased person 
 without obtaining probate or administration within the time limited by 
 that section. 
 
 In cases' where there are are no fit guardians of the property left, 
 or where there is reason to suppose that it may be lost or stolen, or 
 where the interests of those in whose possession it may be are at 
 variance with those of the relatives or creditors of the deceased, it is 
 the duty of the Consul to take, with the greatest promptitude, actual 
 possession of it himself, and after making an accurate inventory of it, 
 to put some one in possession, or he may leave in possession the 
 party in whose actual custody it happens to be, on his giving security 
 to be answerable for it. The Consul should then immediately commu- 
 nicate with the Chief Justice or Judge, as the case may be, giving him 
 
 * For the degrees of oonsauguinity see Stephen's Blackstone's Commentaries 
 (8th edition) Vol. 2, pp. 193-4. 
 
15 
 
 at the same time such particulars of the estate and of the persons 
 entitled to it as can be ascertained. But some tact and a sincere 
 desire not to act so as to wound the sensibilities of surviving relatives 
 or friends should be shown. Thus, when the deceased has left a wife 
 or children 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 a reasonable time, however, the provisions of the Order in 
 Council should be considerately brought to the notice of the survivors, 
 and they should be required to take the proper steps to obtain a grant 
 of probate or administration. 
 
 No Consular Officer must constitute himself an official adminis- 
 trator of a deceased person's estate. Such an appointment can only 
 be made by the Chief Justice or Judge, and will only be made when 
 it is perfectly evident that there is no other fit and proper person to 
 perform the office. 
 
 There is no subject upon which reference is more constantly made 
 by Consuls to the Judges than in that of probates and administrations, 
 but whilst it is highly desirable that they should seek instruction on 
 all doubtful points, they should bear in mind that (unless the cases 
 they have to deal with should fall within the special classes specified 
 in Rule 195) the function of granting probate or administration, 
 when the deceased had at the time of his death his fixed place 
 of abode within their districts, rests primarily with the Provincial 
 Court, and that the Higher Courts cannot in such cases entertain 
 an application for the grant 'except on the request of the Provincial 
 Court. Until a grant is made, or instructions have been received 
 from the Higher Court, the Consul should confine his action to 
 securing and preserving the property, and in no case should he 
 remit the proceeds of any estate to Shanghai or Yokohama without 
 directions to that effect from the Higher Court. Consuls must 
 carefully consider, and make themselves thoroughly acquainted 
 with, Kules 187 to 216, and bear carefully in mind the distinction 
 between probate and administration — a failure to appreciate the 
 difference having hitherto led to many needless queries.* 
 
 * The Owier in Council and the Rules on the subject of probates and admini- 
 strations apply of course to the estates of British subjects, whether registered as 
 such or not. 
 
16 
 
 The functions and procedure of the Courts in criminal matters are 
 dealt with in sections 64 to 80 and Eules 279 to 338. 
 
 In regard to the former, some of which apply only to the Higher 
 Courts, it seems minecessary to make any special comment except 
 perhaps as to the 72iid section, and then only to warn Consuls not 
 hastily to determine that the crime of which a person stands charged 
 before them cannot be adequately punished by the amount of punish- 
 ment which a Provincial Court has power to award, namely, twelve 
 months imprisonment with hard labour and a fine not exceeding one 
 thousand dollars. Where it is clear on the face of the depositions 
 that the maximum punishment for the offence, if proved, ought 
 not, in the exercise of the discretion which is expressly conferred by 
 law on Judges and Magistrates, to exceed the amount which a Provin- 
 cial Court has power to adjudge, the Consul should proceed to try the 
 
 imprisomnent. case without applying to the Judges. Imprisonment for any lengthen- 
 ed period, such as a year, in China or Japan is equal to a punishment 
 of three times that length in England, and the pecuniary loss which 
 is likely to result to any one who has anything to lose, is propor- 
 tionately greater. The object of punishment being to deter others 
 from the commission of similar crimes, the effect of prompt punish- 
 ment to be carried into effect as near to the scene of the commission 
 of crime as possible, is far greater as a deterrent than conviction at a 
 distant place. And to this consideration may also be added the 
 expense incurred either by sending the accused for trial at Shanghai 
 or Yokohama, or that attending the journey of one of the Judges to 
 the district where the offence was committed. At the same time 
 there are offences which require severe punishment, and with regard to 
 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. 
 
 Dissent of as- With reference to the 77th section, it may be observed that when 
 
 sessor from con- ,. , . ,, . ^. ,, 
 
 viotion. an assessor dissents irom tne conviction or the amount of punishment 
 
 awarded, the Consul ought immediately to send up a full report of 
 the case to the Higher Court, with any reasons that the assessor may 
 think proper to give for such dissent. 
 
 Sending prison- Under the 79th section the Judges are to determine the ex- 
 
 erstoHonkgong. pg^jj^jj^y ^f ggnding a convicted offender for imprisonment to Hong- 
 kong. Consuls should therefore always state their reasons for desiring 
 
17 
 
 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 (under section 78) be carried into effect at Shanghai or 
 Yokohama or elsewhere in China or Japan, they should equally state 
 their reasons. 
 
 Sections 81, 82 and 83 deal with the case of British subjects 
 who may levy war, insurrection or rebellion in China or Japan. These 
 sections were framed before the passing of the Foreign Enlistment Act, 
 which, it would seem, cannot be enforced in Provincial Courts. 
 
 Section 84, making British subjects violating treaty stipulations violation of 
 guilty of an offence, and on conviction thereof liable to a penalty not 'ions. 
 exceeding the penalty stipulated for in the Treaty, seems clear ; but it 
 may be well to point out that no penalty can be levied for an offence 
 against the Treaty unless a penalty be specified in the Treaty itself for 
 such an offence, or unless one has been made specially leviable by 
 Regulation of Her Majesty's Minister duly issued under the Order 
 in Council. 
 
 Sections 85 to 91, inclusive, of the Order in Council, 1865, 
 are repealed by section 4 of the Order in Council, 1881, and other 
 provisions substituted for them by sections 6 to 20 of that Order. 
 The new sections do not seem to require any special explanation. 
 
 Sections 92 to 97, inclusive, relate to unlawful trade with 
 Japan and Japanese, and no question of difficulty on their construction 
 has as it would seem, as yet arisen. Any infringement, however, of 
 these provisions must be reported to the Higher Court. 
 
 Sections 98 and 99 give a special jurisdiction in cases of Piracy. 
 piracy wherever committed, and it may here 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: for example, by 11 and 12 "William III., 
 cap. 7, sect. 8, if any natural-born subject commits any act of 
 hostility upon the high seas against others of Her Majesty's 
 subjects under colour of a commission from any foreign power, 
 this (though it would be only an act of war in an alien) shall 
 be construed piracy in a subject. And further (by section 9 of 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 
 
18 
 
 Punishment 
 for piracy. 
 
 Offences 
 against religion 
 of country. 
 
 do any of 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 8 Geo. I., 
 cap. 24, sect. 1), the trading with known pirates or furnishing 
 them with stores or ammunition, or the 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 18 Geo. II., cap. 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 more recent 
 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 
 5 Geo. IV., cap. 113, sect. 9, enacts that if any British subject shall 
 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 five 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 into force 
 the stringent powers conferred on Consular Officers by the 100th 
 section, but should it unfortunately be necessary to exercise them. 
 Consuls must remember that the object in view in ordering this class 
 of offences to bo dealt with in a summary manner is the prompt inves- 
 tigation of the charge and punishment of the offender. Immediately 
 a charge is made, or information reaches 'the Consul that an offence of 
 
19 
 
 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 at once to he arrested and 
 at once enter upon the case, giving the accused of course a reasonable 
 opportunity of calling evidence on his own behalf ; and having awarded 
 and enforced the punishment, the whole case should be reported to 
 the Higher Court. It might also be well for Consuls to have the sec- 
 tion copied out legibly or printed in large type, and to keep it affixed 
 in the most public part of the Consular offices. 
 
 Consuls in Japan will observe that so far as section 101 is 
 concerned, the jurisdiction within 100 miles of the coast is given only 
 to Courts in China. But section 7 (2) of the Order of 1884 confers 
 a jurisdiction on all our Courts in China, Japan, and Corea, in respect 
 of offences committed on the high seas or within the Admiralty juris- 
 diction by British subjects on board British ships or on board foreign 
 ships to which they do not belong. The cases of British subjects, being 
 members of the crew of Chinese or Japanese ships, still fall within the 
 limitation of jurisdiction in section 101 of the Order of 1865. 
 
 Sections 102 and 103 appear to require no comment. 
 
 The 104tli section gives to the Supreme Court at Hongkong When court 
 
 ... at Hongkong has 
 
 jurisdiction when the accused is actually in the Island of Hongkong, jurisdiction. 
 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 same Court has, under an Order in 
 Council of Oct. 23, 1877, a criminal jurisdiction in respect of offences 
 committed by British subjects at any place on land, being within ten 
 miles of any part of the colony, and also a civil jurisdiction in respect of 
 all matters in dispute between British subjects being in any such place 
 within such limits. The jurisdiction is declared by the Order to be 
 concurrent with the jurisdiction of the Supreme and Provincial Courts. 
 
 Section 105 requires no comment. 
 
 The power of deportation treated of in sections 106 to 113 Deportation, 
 must, in conformity with the latest instructions from home, be liuiited 
 in practice to cases in which the gravity and frequency of the offenders' 
 crimes have really become a source of danger or serious discomfort 
 and alarm to the community. 
 
 Eegistration under the 114th and U5th sections must be Registration. 
 seriously insisted on, and after due public notice a Consul should 
 
20 
 
 proceed by summons against those who neglect to comply in this 
 respect with the Order in Council. In all such cases where a summons 
 is issued, the expenses of it should be paid by the party summoned: 
 the imposition of a fine is in the discretion of the Consul, and one 
 should always be imposed when the neglect to register is wilful. It 
 is difficult to carry out the remainder of the penalty, as motives of 
 humanity forbid us to 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 
 universal as possible, its chief value will be lost. 
 
 Naturalized British subjects should also be registered, but they must 
 produce their letti3rs of naturalization, 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. 
 
 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 liini 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. 
 
 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. This, however, should never be done where such servant has 
 a Consular authority to whom he can appeal. 
 
 It seems hardly necessary to add that althougb non-registration 
 may render the recalcitrant British subject liable to certain penalties 
 it will not in any way give him or his property immunity from British 
 jurisdiction, and that Consuls must in all cases take jurisdiction when 
 they have reason to believe that the individual against whom or whose 
 property proceedings are to be taken is actually a British subject. 
 
21 
 
 Section 116 requires no comment. 
 
 Sections 117 and 118, relating to foreigners and foreign Foreigners and 
 tribunals, have been repealed and others substituted in their place . by naiT^° ^ "' 
 the Order in Council of 1881. From sections 47 and 48 of the 
 latter Order it will be seen that our Courts, in addition to entertain- 
 ing suits of a civil nature by foreigners against British subjects, are 
 likewise empowered to entertain suits by British subjects against 
 foreigners. In any case, however, whether the foreigner is plaintiff 
 or defendant, it is necessary that he should first obtain and file in 
 Court the consent in writing* of the competent authority of his own 
 nation to his submitting, and should himself submit, ,to the jurisdiction 
 of the Court, and, if required by the Court, give security to aT3ide by 
 and perform the decision of the Court. 
 
 The provision as to security requires attention. Under the re- 
 pealed section of the Order of 1865 no special power was conferred 
 upon the Courts in regard to the exacting of security from the foreign 
 suitors, but the Courts in regard to this matter availed themselves of 
 the general power as to security given them by Rules of Procedure 
 253 and 263. Now, however. Consuls in requiring security from 
 foreign suitors must act, in the first instance at least, under the new 
 Order in Council. Rule 253 will clearly no longer apply to foreign 
 suitors, but as there does not appear to be any conflict between the new 
 provisions and Rule 263, the latter may probably be had recourse to in 
 the case of further security being properly demanded. The remaining 
 sub-sections of section 47 and section 48 of the new Order seem to 
 require no special comment. 
 
 , Appeals from the Provincial Courts to the Supreme Court or Appeals. 
 Court for Japan in civil cases are provided for in section 119 ; 
 and the Order in Council of 1878, section 8, makes the Court for 
 Japan a Provincial Court within the meaning of that article so as to 
 render its decisions, whether original or on appeal from Provincial Courts 
 in Japan, subject to review by the Supreme Court, the only difference 
 being that appeals from the Court for Japan are to be taken, if 
 possible, before the Chief Justice and Assistant Judge sitting together, 
 instead of before the Chief Justice alone, as in the case of the Provincial 
 Courts in China. It will be observed that the Rules of Procedure 
 are specially referred to in the 119th section, and must of course, as in 
 all other cases where they apply,'be carefully complied with. 
 
 * Appendix Nob. 12 and 13. 
 
22 
 
 When any appeal is sent to the Higher Court, the record must 
 be made up (see Eules 153 to 178), and the party appealing must first 
 pay the fees incident to such appeal. 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 to appeal," on the "security to prosecute 
 the appeal," on the "order granting the leave," and the "copying 
 fees" (when any are incurred), belong to the Court from which the ap- 
 peal issues, and must be levied by it and passed to the credit of Her 
 Majesty's Government. The fees on the "petition" and on the "hear- 
 ing " belong to the Higher Court, and mus-t be forwarded together with 
 the app,eal. 
 
 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 to put their arguments in writing and 
 leave the appeal to be decided on the record and on the written argu- 
 ments. 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 Higher Court will always consult, as much as is practicable, 
 the convenience of the parties on their wishes being made known. 
 Should the latter elect, for example, to leave the case simply on the re- 
 cord and the written argument, and give formal notice through the 
 Consul of their desire to have the appeal so heard, the Higher Court 
 will forthwith proceed to decide the case and send down the judgment 
 on appeal. Except in cases involving points of great importance, 
 or when the amount involved is large, it will be a saving of both time 
 and expense if the case is sent up at once for decision without i-tVo 
 voce arguments, and Consuls should — without, however, exercising any 
 pressure — inform the parties of this. 
 Eecord of Ap- The record should consist of copies of the plaint and answer, the 
 
 peal. 
 
 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) 
 
 the judgment, and final order or order on judgment.* And here 
 
 it is to be observed that although as a matter of strict right the 
 
 parties to a suit cannot insist on having for their own use a 
 
 copy of the notes of the Judge who tried the case, yet a copy 
 
 must be supplied when it is wanted for the purpose of an appeal, 
 
 — ^ r* . — 
 
 * See Circular of Sir Edmund Hobnby of 3rd November, 1874, and Form 
 No. 14 in Appendix. 
 
23 
 
 or for any other really legitimate object. This does not mean 
 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, charge the proper fee. It must be recollected 
 that these notes are the only record of the evidence and therefore 
 are of the highest importance, and this fact, coupled with the recollec- 
 tion that a Judge's notes may become public or may come under the 
 notice of the Higher Court, should render Consuls very particular as 
 to the mode in which such notes are taken by them. 
 
 In addition to the papers and documents alluded to, there should 
 be a copy of the motion for leave to -appeal, the order made thereon, 
 the petition in appeal and answer in appeal, and any arguments which 
 may be filed in support of either. (Rule 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 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 cer- 
 ficate of the Consul that the record so sealed contains true copies of all 
 the papers in the case. Original documents should not be forwarded, 
 unless 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 method of appeals in criminal cases seems to be defined with Appeals in ori- 
 
 . minal cases. 
 
 sufficient clearness and detail in sections 120 to 126, inclusive, 
 
 and it does not appear that Consuls have as yet experienced any 
 
 'difficulty on this head. The only remark to be made is that under 
 
 the Order in Council, 1878, section 7, sub-section (2), the Court for 
 
 Japan is the final Court of criminal appeal from the decision of the 
 
 Provincial Courts in Japan. 
 
 Rules of Procedure are duly provided for in sections 127 to 
 
 130, inclusive, and appeal to Her Majesty in Council from the decision 
 
 of the Supreme Court — with which Consuls have no concern — is dealt 
 
 with in sections 131 to 140, inclusive. 
 
 Of the general provisions made in sections 141 to 157_ in- General provi- 
 
 . ' Bions. 
 
 elusive, it may be observed, in regard to the saving of general 
 
 Consular powers under the 142nd section, that in case of difficulties 
 
 presenting themselves, so far as any action not of a judicial character 
 
24 
 
 MinuteB of pro- 
 
 Obstmction of 
 Court. 
 
 is concerned, reference should be made by Consuls to Her Majesty's 
 Minister or the Crown Advocates, and not to the Judges. Since the 
 appointment of Crown Advocates in both China and Japan, the 
 Judges have ceased to be Legal Advisers of the Legations, and will 
 only give directions and instructions in matters of a judicial character. 
 
 Section 145 orders that in any case, civil or criminal, heard in any 
 Court, proper minutes of the proceedings shall be drawn up and signed 
 by the Judge or ofiScer before whom they are taken. The notes taken 
 by the Judge or Consul at the hearing of a suit or motion are minutes 
 of the proceedings within the meaning of this section. 
 
 Section 149 enables evidence to be given in any case, civil or 
 criminal, by a witness on oath in the form or with the ceremony that 
 he declares to be binding on his conscience. The form in use in the 
 Supreme Court in the case of Chinese witnesses will be found in the 
 Appendix.* Another form, to be used in future in all serious criminal 
 cases, will also be found in the Appendix.! 
 
 Section 155 provides for the punishment to be awarded for obstruc- 
 tions or disturbance of Court, and must be taken to limit the power of 
 Consuls, although Judges in one sense of a Court of record, as to the 
 infliction of penalties for contempt of Court. The powers given by 
 this section are somewhat similar to those conferred upon County 
 Court Judges in England, and it has been held that a County Court 
 Judge has no power to deal with an alleged contempt of Court com- 
 mitted outside the Court.J 
 
 None of the remaining sections of the Order in Council of 1865 
 appear to require special comment. 
 
 Order of 1878. ORDER IN COUNCIL OF 1878.— Consuls in Japan will of 
 
 course take careful notice of the Order in Council of 1878, which places 
 them qua their judicial functions in a similar relation to the Court for Japan 
 to that which they previously occupied with regard to the Supreme 
 Court, and gives to the Court for Japan as large an original and appellate 
 
 * Form 15. •]■ Form 16. 
 
 X See Circular of Sir E. Hornby of 7th December, 1 874. 
 
25 
 
 jni-isdiction in Japan as that previously held by the Supreme Court, 
 subject, however, to appeal to the Supreme Court, a point already 
 referred to under the head of appeal. 
 
 ORDER IN COUNCIL OF 1881.— The provisions of the Order order of issi. 
 in Council, IbSl, are highly important and should be carefully 
 studied by Consuls. It -will be observed in the first place that 
 the authority given to Her Majesty's Ministers in China and 
 Japan for the making of regulations for the peace, order, and 
 good government of British subjects resident in or resorting to 
 China or Japan, is more extensive and more carefully defined than 
 that in the Order in Council of 1865. Express power is also given 
 to the Ministers to join with the Ministers of any Foreign Powers in 
 amity with Her Majesty, in making or adopting regulations with like 
 objects to the Shanghai Land Regulations or any other regulation 
 for the Municipal Government of any foreign concessions or settle- 
 ment' in China. Further, the Shanghai Land Regulations and the 
 Port, Consular, Customs and Harbour Regulations applicable to all 
 the treaty ports in China of 31st May 1869, and all other regulations 
 made and approved or, in case of urgency, not disapproved, under 
 the Order in Council of 1865, before the commencement of the Order of 
 1881, and not expressly repealed by the last-named Order, are expressly 
 confirmed. 
 
 Sections 22 to 27, inclusive, dealing with the subject of mortgages, 
 and sections 28 to 44, inclusive, relating to bills of sale, are highly 
 important, and must be considered, so far as they go, to cover the 
 whole of the law on the subject with which they deal, even if they b e 
 in conflict with English law on the same questions. 
 
 Sections 45 and 46, relating to suits by and against partners, are, 
 as is expressly stated in sub-section (a) of the earlier section, Rules 
 of Procedure, and besides superseding Rule 252, give a far more 
 detailed mode of procedure, which is mainly in accord with the 
 present provisions of English law. 
 
26 
 
 Section 47 has already been noticed in connection with observa- 
 tions made upon the 117th section of the Order in Council of 1865. 
 Section 48 takes the place of 118 of the earlier Order, and only differs 
 materially from the former provision in limiting the power of the 
 Court to order the attendance of a British subject before a foreign 
 tribunal to a case and in circumstances in which it would require his 
 attendance before itself (whereas in the 1865 Order the discretionary 
 power was not thus limited), and in somewhat extending the penal 
 liability of the person who may fail to obey the order. 
 
 ORDER IN COUNCIL, 1884.— This Order is to be cited as the 
 China, Japan, and Corea Order in Council, 1884, and besides making 
 provision for the establishment of Provincial Courts in Corea and the 
 exercise of jurisdiction by them, contains some important provisions 
 applicable to China and Japan. 
 
 Section 4 shows how the jurisdiction is to be exercised by the 
 Provincial Courts in Corea, and what the powers and jurisdiction of the 
 Supreme Court are in relation to Corea and the district or Provincial 
 Courts therein. 
 
 Section 5 will require special attention from Consular Officers 
 in Corea. It will be observed that by this section the exercise of the 
 powers and jurisdiction under Orders in Council as applied to Corea is, 
 in relation to Corea, made specially subject to Treaty provisions ; and it 
 would seem that in dealing judicially with matters in Corea to which 
 any Treaty provisions apply. Consular Officers will have to give the 
 same weight to such provisions as if they actually formed part of an 
 Order in Council itself. 
 
 Section 6 is important and greatly facilitates the working of 
 Imperial Acts of Parliament and Orders in Council by our Courts in 
 China, Japan, and Corea. 
 
26a 
 
 Section 7 (1) gives our Courts special jurisdiction over accessories 
 in certain cases of murder and manslaughter, and 
 
 (2) Gives Courts acting under the Order special jurisdiction in 
 the case of crimes committed on the high seas or within the Admiralty 
 jurisdiction by any British subject on board a British ship or on board 
 a foreign ship to which he did not belong. 
 
 This enactment much extends our criminal jurisdiction, and places 
 the jurisdiction of our Courts in Japan, with regard to offences com- 
 mitted on the high seas, on the same footing as our Courts in China, 
 which, as before pointed out on page 19, was not the case previously. 
 
 The remaining sections of the Order require no special cominent. 
 
266 
 
 Rules of Proce- RULES OF PEOCEDURE,— It appears unnecessary to comment 
 
 at any great length upon the Rules of Procedure as apart from the 
 Orders in Council. Consular Officers would seem to have had but 
 little difficulty in dealing with them, and in most cases they are very 
 clearly worded, but it may be well to notice briefly such of them as are 
 specially applicable to Consular Courts. 
 
 There are many cases in which both parties may easily agree as to 
 the particular question of fact or law at issue between them, and Rules 
 1 to 9, inclusive, provide a simple method of deciding such questions. 
 All that the parties have to do is to consent to leave such and such 
 questions to be decided by the Court. The questions must, of course, be 
 reduced into writing. The Court should then bring the parties before it, 
 and having satisfied itself that the question or questions is or are not 
 idle, and that the parties have a direct interest in their determination, 
 may make an order embodying the question or questions as in Form 1 
 attached to the Rules, and the case then proceeds as at an ordinary hear- 
 ing. If it be a question of law, the Court will hear such legal arguments 
 as the parties think proper to offer. If it be a question of fact, then 
 it will have to hear the evidence which either or both parties may bring 
 to support his or their case. The costs are specially provided for in 
 the schedule of fees, and the mode of taking notes, delivering judgment, 
 etc., are the same as if the case were heard in the usual way. 
 
 Summary Procedure on Bills of Exchange and Promissory Notes 
 is provided for in Rules 18 to 25, inclusive, and it may be observed that it 
 is also applicable to proceedings on Cheques and Compradore Orders. 
 
 Rule 27 gives very ample directions as to what a petition should 
 contain. Printed forms of petitions* are now supplied to the different 
 
 Appenaix No. 17. 
 
27 
 
 Provincial Courts, and suitors should be encouraged to use them in all 
 cases when they do not employ professional advice. 
 
 Defence in Law and Answers are provided for by Rules 43 to 50. 
 
 The main object of these provisions as to both petition and answer 
 
 may be taken to be the development of one or more "issues," that is, 
 
 one or more points of dispute or difference concisely and accurately 
 
 expressed ; and every Consular Officer, when proceeding to the hearing 
 
 of a case, should ascertain whether the pleadings, in other words the 
 
 petition and answer taken together, disclose one or more such issues. 
 
 The large powers of amendment given by Eules 28, 30, 31, 32 and 275 
 
 should greatly assist the Court in seeing that the proper issues are 
 
 raised by the pleadings, and if these be not brought out. Rule 58 must 
 
 be had recourse to and issues be settled by or before the Court. This 
 
 settlement of issues need not in reality be a very troublesome proceeding. 
 
 The parties should be brought together before the Court, and after 
 
 ' hearing what each of them has to say regarding the matter in dispute, 
 
 the Court should put down in writing as briefly as possible what it 
 
 conceives to be the real issue or issues. It should not allow any 
 
 arguments on the point or points, but it will of course be well that it 
 
 should read the issues to the parties and ascertain from them whether 
 
 they are satisfied with them or whether they have any suggestions to 
 
 make in regard to them. The issues need not be framed in any technical 
 
 language, but should be as clear and comprehensive as possible ; and 
 
 the Court should be careful to let the parties know that the settlement 
 
 of issues is simply a preliminary proceeding and no way a hearing of 
 
 the case on its merits. 
 
 In the course of a suit there may be many Interlocutory Proceedings. 
 These are provided for by Subdivision VI. of the Rules ; and it is highly 
 desirable that the greatest regularity should be observed in these 
 matters. There should be, indeed, the same regularity in granting or 
 refusing a motion or hearing a summons as in deciding the case itself, 
 since the conclusion arrived at 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, such 
 as to hasten or delay some stage in the trial of a suit, or to force one 
 party to do some act which the justice of the case requires, e.g., to find 
 security for costs, or not to leave the jurisdiction of the Court, or to 
 give discovery of documents, or to amend or conseht to the amending of 
 
28 
 
 some of the proceedings. The mode in which such applications are to 
 be made is indicated in Rules 144 to 152, and the widest discretion 
 is given to the Court as to allowing, varying, or refusing them. In 
 the Appendix* will be found the instructions given by the Chief Justice 
 to the Officers of the Supreme Court with regard to the issuing of 
 motions and summonses, and these should be followed so far as possible 
 in the Provincial Courts. A form of summons is given in the Appendix.f 
 It will be observed that no affidavits are requisite for the issuing 
 of a summons, but in general motions should be supported by affidavit 
 when the application is not merely formal. In hearing motions and 
 summonses. Consuls should take notes as on the hearing of a suit, and 
 make a special minute of their decision. As a rule, costs should be 
 given to the winning party, bat there are many instances in which 
 resistance to the order prayed for may seem reasonable, and in such 
 cases the Court may well, oven if it grant the order, refuse to allow 
 costs and leave each party to pay its own, or, if it thinks the propriety or 
 impropriety of the application can only be ascertained by the ultimate 
 decision in the suit, the costs may be left to be " costs in the cause," 
 that is, to be paid by the party against whom the final judgment 
 is given. In the case of summonses, if the party against whom an 
 order is sought does not intend to contest the matter, he should write 
 his consent to the order being made upon the summons and need not 
 appear on the return day. An appeal lies to the Supreme Court in all 
 cases when the order has not been made ex parte, that is, on the applica- 
 tion of one party without notice to the other. Rule 150 points out the 
 course to be taken when an order has been made ex parte. 
 
 When it is desired by either party to obtain the evidence of a 
 witness out of the particular jurisdiction, the Court may, on summons 
 taken out under Rule 65, postpone the hearing if necessary and issue 
 an order for the examination of such witness out of the jurisdiction or 
 give leave to the party applying to use an affidavit of such witness at the 
 hearing. In the case of the witness requiring to be examined in the district 
 of another Provincial Court, the Consul should address a formal requestj 
 to his brother Consul, requesting him to examine the witness in question 
 and having reduced his evidence into writing, to send it duly signed by 
 the witness to the Court in which the suit is pending. The Consul 
 
 ' No. 18. t No. 19, X No. 20. 
 
29 
 
 taking the evidence must afford both parties or their representatives 
 every facility to be present, and to examine and cross-examine the 
 witness, and due notice must be given to all concerned of the time fixed 
 for the examination. 
 
 In the granting of Summary Orders before Suit under Rules 179 
 to 182, the greatest precaution is absolutely necessary. Nothing but 
 extreme urgency will justify a Consular Officer in acting under Rule 
 179, and he should be careful to see that the provisions of the im- 
 mediately following Rule are duly complied with. 
 
 Sittings of Court, Hearing, and Proceedings at Hearing, are provided 
 for in Rules 71 to 94, inclusive, and do not appear to require any special 
 comment. 
 
 Consular Officers presiding at a hearing should enter in their note- 
 books the names of the parties as plaintiff and defendant respectively, 
 the nature and amount of the claim, the character of the defence, the 
 Counsel, if any, or other representatives who appear for the respective 
 parties, and should take careful notes of the evidence of the different 
 witnesses on examination in chief, cross-examination and re-examination. 
 When all the plaintiff's evidence is iinished, a note should be made that 
 the plaintiff's case is closed, and the defendant should then be called upon 
 for his case. Either of the parties may be a witness on his own behalf 
 in a civil case. He must, of course, be sworn, and is liable to cross- 
 examination like any other witness; and he may, of course, also be 
 re-examined or explain anything he has said in cross-examination which 
 he thinks requires explanation. When the evidence for the defendant 
 is completed, the Court should make a note that defendant's case is 
 closed, and unless the Court should give leave to the plaintiff to call 
 evidence in reply, no more will be heard. Leave to call evidence in 
 reply should not in general be given, but when the plaintiff appears to 
 have had evidence of an unexpected character sprung upon him, it will in 
 general be reasonable to allow him to rebut it. The Court, of course, 
 may at any time recall and re-question a witness, or call any fresh evidence 
 it may consider desirable. Any document referred to and admitted in 
 evidence in the course of the trial should be marked as an exhibit with 
 a letter, of which note should be taken by the court. When so 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 
 
30 
 
 admissibility of evidence should be taken down in the terms in which 
 they are made, and if, as is very frequently the case, a party is unable to 
 statfe his objection correctly, he should be made to put his objection then 
 and there into writing. The other party should reply to the objection, 
 and both objection and answer should be entered on the notes with the 
 decision of the Court on the point. 
 
 At the conclusion of the hearing, the Court should deliver judgment 
 unless it requires time to consider the case and to deliver a vrritten 
 judgment, which may be, in some instances, highly desirable. In such 
 case it will announce that judgment is reserved, and give due notice to 
 the parties of the time when it will be ready to pronounce it. 
 
 The Court should exercise a discretion in the matter of costs — 
 Eules 262,^03. When professional lawyers have not been employed, 
 it will be sufficient to order the losing party to pay the fees, but when 
 Counsel have been employed, the costs allowed should include the fees 
 of those engaged on the winning side, to be taxed according to scale. 
 In no case should the parties themselves be allowed anything for loss 
 of time in attending the Court. Nor should witnesses be allowed any 
 remuneration unless before giving their evidence they object to give it 
 until their expenses are paid, and then the remuneration should be only 
 payment for expenses actually incurred ; but no such payment should he 
 made if they have come voluntarily and without being summoned. There 
 is a class of witnesses who call themselves " experts," who expect a 
 remuneration. They, however, come mostly 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, in 
 general, be allowed anything. Take, for instance, the case of a marine 
 surveyor who has surveyed and made a written report upon a ship 
 or goods forming the subject-matter of dispute. The report itself 
 is legally inadmissible in evidence, unless proved by the evidence of 
 the surveyor, but as it was probably intended for use in Court and 
 paid for, the fee charged should be held to cover the expenses of the 
 surveyor's evidence in Court. 
 
 Eule 99 provides for the giving of any decision subject to a special 
 case being stated for the opinion of the Higher Court. This does not 
 mean, however, that the Lower Court is to jump to a verdict for either 
 party and then leave the whole question of whether it was right or 
 wrong to be decided by the Higher Court, but that where there arises a 
 
31 
 
 distinct question of law and sometimes of fact about which the Lower 
 Court is doubtful or unable to come to a conclusion, it may give 
 judgment for the plaintiff or defendant subject to the decision upon 
 the particular question which the Higher Court may arrive at. A 
 special case, briefly narrating the facts as proved in evidence before the 
 Lower Court, must then be sent up to the Higher Court, and the 
 question reserved be distinctly stated, and to this question alone will an 
 answer be returned. It is only " sometimes " that special cases should 
 be stated on questions of fact, because in deciding as to whether the 
 evidence offered proves or disproves a fact, the Lower Court has the 
 same, if not better, means of judging than the Higher Court, and should 
 do its best to decide the point. 
 
 On judgment being given, a minute of it should be made in the 
 Court note-book. Upon this minute the decree or order is drawn. 
 A form will be found in Appendix.* 
 
 If a copy of this decree has been served on the person required 
 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 apply to the 
 Court for execution against the goods of the disobedient party (see 
 Rules 116 to 128), or he may take out what is 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 sum- 
 mons 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 commitment wilfully disabled himself from comply- 
 ing with it (see Rule 134) but he will not be liable to be imprisonea 
 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 
 
 • No. 21. 
 
32 
 
 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 Eules 154 to 
 162), but there may be circumstances when it may be necessary 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 obtained, 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 Officers 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 should take into 
 their consideration the position and conduct of the party against whom 
 it is to be enforced. Many actions are often designedly postponed until 
 a time when the person against whorii 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 left unsatisfied until the party 
 has lost or made away with all 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. 
 
 A Defendant is not now liable to arrest for debt except under the 
 provisions of Rules 131, 138, and 182 ; and Consular Officers should 
 be extremely careful in exercising the powers of arrest given by 
 these Rules. 
 
 Rule 59 empowers the Court to decide questions of mere account 
 summarily, or to order them to be referred to some person agreed on by 
 the parties, or in case of their non-agreement appointed by the Court 
 itself. It is in general desirable to get the parties to agree to a referee, 
 and when this is done care should be taken to fix the fee to which the 
 referee will be entitled, unless, indeed, he can be induced to take the 
 
33 
 
 matter in hand as a friend and without fee ; and it must be borne in 
 mind that no person can be compelled to accept a reference. As a rule 
 the Court should adopt the conclusions of the referee and not re-open 
 the questions he has decided, unless they are obviously wrong or unless 
 his good faith be impugned. 
 
 In England, a distress for rent in arrear can be put in by a land- 
 lord 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 con- 
 sent ought to 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 warrant may then 
 issne under the Consular Seal, authorizing the entry on the premises 
 and the seizure of the goods therein; and, after the lapse of five days, 
 a 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 anyone in 
 possession, the warrant, and if payment 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. 
 
 Appeals to the Higher Courts are provided for by Rules 153 to 
 178. If either party be not satisfied with the decision of the Lower 
 Court, he can appeal. The method of conducting such appeals has been 
 already commented upon {ante, pp. 21-3). 
 
 Rule 38, which has reference to parties sued not as principals 
 but in the character of agent only, is highly important, and the provisions 
 of the Rule should be most strictly adhered to. In the event of a suit be- 
 ing brought against a person who is not within the particular jurisdiction, 
 the Court should be careful to insist upon evidence that he has been 
 properly served or that substituted service has been allowed, and if any 
 
34 
 
 person appears for the defendant, the Court should require such person 
 to produce and 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. 
 
 Rules 183 to 216, inclusive, deal with Probate and Administration, 
 but it does not appear here to be necessary to add anything to the 
 comments already made on these heads in dealing with Sections 57 to 
 61 of the Order in Council (ante, pp. 12-5). 
 
 Eules 217 to 229 treat of arbitration and seem to require no 
 special comment, nor do those relating to affidavits and other evidence, 
 230 to 248. Forms of oaths for witnesses and interpreters in civil and 
 criminal cases will be found in the Appendix.* 
 
 Bules 249 and 250 are important, and Consular Officers should be 
 careful to see that they are strictly complied with. A petition should at 
 once be struck oif the file if it is brought to the knowledge of the 
 Court that a sufficient power of attorney has not been filed under the 
 provisions of Rule 250. 
 
 Rule 252 is now wholly superseded by Section 45 of the Order in 
 Council, 1881. 
 
 Rule 253 has been already commented upon (ante, p. 21). 
 
 The Rules as to Service, 254 to 260, must be carefully observed, 
 but seem to call for no special comment. 
 
 Rule 261 is very important, and Consular Officers must not hold a 
 defendant to bail under it unless satisfied that the defendant really 
 means to abscond in order to avoid the process of the Court. It does 
 not at all follow because a defendant is about to leave the particular 
 jurisdiction after a petition has been served upon him, that he therefore 
 intends to abscond in order to avoid the process of the Court. He 
 may be leaving the jurisdiction on important bnsiuess, and may not 
 think it worth his while to remain and defend personally a trifling 
 claim brought against him, and he may be merely proceeding to the 
 district of another Court where the judgment of the Court in which the 
 suit is brought against him may be easily enforced. It is only in cases 
 where the Court is satisfied that the defendant is dishonest and intends 
 
 Nos. 22, 23, and 24. 
 
35 
 
 leaving with special intent to avoid the process of the Court, that the 
 order to hold to bail should be made. 
 
 In cases vrhere illiterate persons are concerned, who are incapable 
 of stating their causes of action or defence in writing, it may be advisable 
 for the Consul to obtain from each or both of the parties a viva voce 
 account of what the one party wants and the other denies his right to. 
 The Consul or his assistant may then draw up in writing a brief state- 
 ment of the claim and defence, and may even point out generally to the 
 parties what evidence will be necessary to support their respective cases, 
 but he must be careful to guard himself from saying that such and such 
 evidence will be sufficient, as it will not do for him to declare beforehand 
 what will satisfy him on the hearing. 
 
 A regular system of " filing," that is, of dating and registering 
 every paper the moment it is received, must be adopted; and 
 Consular Officers should keep a series of books of uniform size for the 
 different classes of entries they have to make. A form of Eegister 
 of Plaints will be found in the Appendix.* 
 
 So soon as a paper is received, it should be read, numbered, filed, 
 and have the fee marked upon it ; the columns in the register should 
 then be filled up. All papers requiring to be served in a suit must be 
 sent into the Court in duplicate (see Rule 41). One remains in the 
 Court, the other is served upon the opposite party. The order for 
 service is endorsed on the one left in Court, and a copy of such order 
 (certified under the seal of the Court) is written on the other. Form 
 of order for service will be found in the margin of the form of petition 
 in Appendix No. 17. 
 
 Consular Officers should bear continually in mind the absolute 
 necessity of referring at once to the Rules when any question of 
 procedure arises, and of following them as strictly as possible. In 
 cases where the Rules do not meet the difficulty, the practice of the 
 Courts at home must be followed, and the text-books with which 
 each Provincial Court is furnished must then be referred to, but 
 in all cases where the Rules apply they and they only should be 
 relied upon. 
 
 * No. 25. 
 
36 
 
 Extracts from General Instructions to Her Majesty's Consuls 
 IN THE Levant, by Sir Edmund Hornby, revised and rendered 
 applicable to Her Majesty's Consuls in China and Japan. 
 
 Of what judi- The great bulk of iudicial business must always consist of what 
 
 ciiil business i • •j.-u 
 
 chieny consists, are known as civil suits, that is, cases where one party claims either 
 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 any special 
 branches, because not only is it the most common of all tlie 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 difficulty in bringing 
 that knowledge to bear on any special branch of law which he may 
 unexpectedly be called on to administer, and he is consequently enabled 
 to master these particular branches, in cases where difficulties arise 
 from a want of special direction, by a recurrence to the general and 
 first principles from which all rules are supposed to be derived. I 
 propose, then, first to speak of the principles of procedure in civil 
 cases, using 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 it be one calling on the defendant to pay 
 money to the plaintiff as a debt,' or as a compensation, or as damages ; 
 or, in a certain class of cases where the principles of law recognize a 
 right of interference, one calling on the defendant to do, or to abstain 
 from doing, some particular act. The essential point is 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. 
 
37 
 
 Special provisions are made by the Kules for summary procedure |"^^^'^ 
 in gases where the plaintiff claims less than 100 dollars (Rules 10 to 
 12), and for the administration of a property of deceased persons 
 (Rules 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 and promissory notes 
 (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 becomes 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 extremely rapid 
 and simple process for the enforcement of mercantile obligations. 
 
 The ordinary form of commencing a suit is by a petition. This Petition, 
 has hitherto often been in a shape of a letter to the Consular autho- 
 rity ; and although a more formal document, such as is indicated in the 
 Rules, is desirable, and ought to be required by the Court, wherever 
 possible, yet it is not intended that a person applying 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 things which appear absolutely 
 requisite are, — that the name of the party sued should be given; 
 that all the facts entitling the plaintiff to relief should be explicitly 
 stated; and that 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, for example, where the facts are contained only 
 inferenlially, or in such a manner as not to enable the defendant to 
 lav 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. So it is defective if certain facts 
 
38 
 
 really existing and necessary to support the claim or right, are omitted 
 and passed over, as frequently happens from the ignorance or want 
 of care of the person making the claim. It is defective again where 
 the relief demanded is not properly demanded, although the facts 
 stated, if proved, would give a right to some other relief; or 
 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, but on 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 into de- It appears to me that this division into defective and bad claims 
 
 fective and bad . ^ . . . . , 
 
 claims. is 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 
 whatever 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 to 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 " demur- 
 ring," and is founded on a supposed admission of 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 argu- 
 ment, 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 
 
39 
 
 of opinion that the most convenient course is that which the Eule 
 lays down (Rule 43), namely, that the defendant 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 care- 
 lessness, neglect, or ignorance has put the defendant, as well as the 
 costs of any necessary adjournment for the purpose of amending. 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 defendant fails in 
 doing this, either from neglect or ignorance or to insure further 
 delay, he must not, when the defect in the claim does become manifest at 
 the hearing, 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 irrelevant and often 
 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, 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, 
 the expenses increased beyond all bounds by this constant inter- 
 change 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 
 defendant, and as a general rule this must be done before any step 
 
40 
 
 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- 
 tion of the plaintiff, and for the purpose either of preventing irreme- 
 diable 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 intere^ of the defendant and made 
 in his absence. 
 Orders to how Of such cases are orders to hold to bail, orders to sequester 
 
 era. '" Detention 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 necessary 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 mercantile 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 market, 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 sometimes inseparable from the general 
 use of a jnst and beneficial remedy, I must remark that not only do 
 the exceptional circumstances of trade in China and Japan make the 
 proper use of this particular remedy more difficult, and the concomitant 
 evils much more frequent and severe, but also here at least, it is 
 sought to be used as a method of pressure forcing some settlement 
 of justly disputable claims, to a degree which makes the greatest care 
 
41 
 
 and caution necessary on the part of every judicial officer in dealing 
 ■with applications of this nature. 
 
 The evidence to support the application must be the same as on Evidence 
 
 necessary to 
 
 an application to hold to bail, which I shall now proceed to consider. hoidtobaii. 
 
 Before granting an order to arrest and hold to bail in a civil suit 
 under Rules 179 to 182, the Court must be satisfied that the applicant 
 has a cause of suit against the person sought to be held to bail, 
 to the amount of 2QI. or upwards, and that there is probable 
 cause for believing that the alleged debtor, unless he be forth- 
 with apprehended, is about to quit the jurisdiction with intent 
 to avoid or delay the applicant in the suit which he is about to 
 bring, or with intent to remain out of the jurisdiction so long 
 that thereby the recovery of the debt or damages will or may 
 be delayed. 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 
 payable by the party against whom the application is made, or 
 containing positive statements of facts by which the Judge is satisfied 
 that the applicant has a cause of action against the defendant to the 
 amount of 20Z. or upwards ; and the affidavits should not only contain 
 a statement of the positive belief of the deponent as to the approaching 
 departure from the jurisdiction of the alleged debtor, 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 giving why that has not been done, 
 and the name of the informant, and time, place, and circumstance of 
 the information, should be supplied. It should be observed that 
 (Rule 181) an order made under such circumstances will not remain 
 in force more than 24 hours unless in the meantime a suit has been 
 regularly instituted by the applicant : when this has been done, the 
 person may be detained in custody for the ' time and under the circum- 
 stances specified in Rule 182. (Where a suit has been already 
 
42 
 
 Meaning of 
 term " Out of 
 jurisdiction." 
 
 Damages 
 ought to be 
 •' liquidated.'* 
 
 Foreigners ap- 
 plying. 
 
 commenced, the application to hold to bail is made under Eule 261 : 
 the evidence in support of the application will be similar to that required 
 in the case of holding to bail before suit instituted.) 
 
 With reference to the meaning that should be attached to the 
 words "out of the jurisdiction," in practice I am inclined to lay down 
 that they should generally be construed with reference to the inten- 
 tion 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 of leaving 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 
 hand 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 
 distinct affidavit of debt, or of damages capable of being then ascer- 
 tained ; therefore no claim for mere damages, altogether unliquidated, 
 ought, as a general rule, to be considered sufficient to support such an 
 application. 
 
 When the application is made by a foreign subject, even still 
 more caution is necessary, for from the fact of the foreign nationality, 
 one great check on reckless assertion is withdrawn. I apprehend 
 that it would be a difficult task to procure the certain and adequate 
 punishment 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. 
 
43 
 
 Finally, it is to be borne in mind that it is in the discretion of consul to cier- 
 the Consul to refuse the Order, even although he be satisfied that the 
 defendant is about to depart out of the jurisdiction ; but if he is satisfied 
 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 Sequesters, 
 is not unusual, and appears rather to have been borrowed from the 
 foreign codes than to be derived from any analogous English procedure. 
 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 pnma /ac;e to the satisfaction of the Court before such an 
 attachment is allowed. In other instances, with regard to goods, the 
 practice is to procure the legal enforcement by sequester of a right of 
 "stoppage in transitu;'''' the consignor obtaining an order of the com- 
 petent 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 consignor, but 
 in practice it is, I believe, convenient, and the custom is general. 
 
 A great number of applications for sequesters would in England injunctions. 
 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 dis- 
 pute about the terms or performance of a mercantile contract, instantly, 
 and by way of commencement of the proceedings, lay an embargo 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 put 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 
 
44 
 
 stoppage of 
 ships. 
 
 Ex parte in- 
 junctions. 
 
 Court that he has a right to such an order by the law of England. 
 It is difficult to be precise 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 
 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- 
 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 employed 
 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 necessary 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 com- 
 pensation 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 prima facie case, the claimant 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 ex jJarte injunctions, all that it is necessary at 
 present to say is that they also are an extraordinary remedy, not to 
 be in any case lightly granted ; and in no case to be granted at all 
 unless a clear j)nma/oae case is made out, on facts properly deposed 
 to, convincing the Court that by the law or practice of the Courts of 
 Equity in England or by the well-known and established local customs, 
 the applicant is entitled to an order such as is applied for. 
 
 * But see 26 & 27 Vict. ch. 24, sec. 10— passed in 1863. 
 
45 
 
 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 refusal of 
 an injunction, than by anything which would approach to an indis- 
 criminate 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 where, on one of the foregoing applications, 
 such a case is made out by affidavit, or affirmation 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, with the 
 view of preventing for the time 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 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 copies of the affidavit or affidavits and of the order Service, 
 must be served on the party against whom the application 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 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 prevent fraud ; for where there is no pro- 
 fessional 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 a 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 Foreign 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 
 
46 
 
 Substituted 
 service. 
 
 Proceedings 
 after service. 
 
 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 allow- 
 ed to effect service himself, and must in that case, when it is necessary, 
 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 proceedings on the 
 part of the defendant. 
 
 Before acting 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 proceeding 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 his 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 particular place, and that such service 
 should be held good service on the party for the purposes of the suit. 
 The circumstances of each particular case will almost invariably point 
 out some course which will prevent undue delay, and ensure know- 
 ledge on the part of the person 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 
 petition. If it is defective, he may (and should, as we have seen) 
 apply to the Court at ouce to have it amended; 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 incomprehensible (a case 
 
47 
 
 here at least by no means uncommon), he ought to apply to the Court 
 at once to compel the plaintiff to put in a better and more intelligible 
 petition; if it is full of irrelevant matter or abuse, he ought at 
 once to apply on that ground to have it amended: and if in any of 
 these cases the defect is not remedied, an order will be made staying 
 proceedings. 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, which 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 sufiSce), that 
 there is some prima facie 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 plaintiffs 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 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 defend- 
 ant, 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 amendments where it has 
 
48 
 
 Settlement of 
 issues. 
 
 Answers. 
 
 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 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 volu- 
 minous "plaidoyer" in writing, a preliminary hearing takes place to 
 try and develop 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. 
 
 The Rules, however, enable the Court, on application of either 
 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 Scottish Courts. 
 A summons, however, to settle issues should ordinarily be granted 
 only after an answer has been filed; and before I say any things 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. 
 
 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 allegation of 
 fact in .the petition, and also to deny the alleged legal consequence, 
 namely, the right to the relief asked. But any special ground of 
 defence — such as fraud on the part of the plaintiff, illegality, the Statute 
 of Limitations, &c. — must be pleaded, and cannot be given in evidence 
 where no answer alleging it has been put in. So Eule 48 prohibits 
 defences either inconsistent with the answer or otherwise likely to take 
 
49 
 
 the plaintiff by surprise at the hearing. The reason of these restrictions 
 is that 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 the plaintiff sues the defendant for the price of certain 
 goods sold and delivered to him ; imagine that in reality the defendant 
 has paid the sum demanded to a person on account of the plaintiff, 
 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 payment so made was 
 well made, or is nugatory as regards the plaintiif. By not answering 
 at all, he puts the plaintiff to prove the delivery of the goods (which 
 he has an undoubted right to do), but he does not give him notice of his 
 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 in the plaintiff, the delivery, and the price — but it would not 
 at all raise the real 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 forwavd 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, ami that to the 
 knowledge of the defendant, or at all events under circumstances which 
 made ignorance of that fact on the defendant's part inexcusable. 
 
 If a lawyer had answered for him, using the general terms 
 ordinarily employed in pleading in Courts of Common Law in England, 
 
50 
 
 he might have answered " 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 plaintiff's authorized agent ; 
 but it would instantly have made the plaintiff, conscious that he 
 had not been paid, take measures to discover 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 after- 
 wards, on the day of , I paid the sum now claimed as 
 
 their price to his clerk Mr. , and I have his receipt." On receiving 
 
 this answer, the plaintiff would come to the hearing prepared (which other- 
 wise he might not have been) for the real question between the parties. 
 By setting down the cause for hearing in the case supposed, he is taken, in 
 the practice of the Consular Courts, to deny the fact of payment as 
 alleged, and the authority of the person to vrhom 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 prima facie, be able, either by cross-examination, 
 or substantive testimony, or both, to show that the character of agent 
 had ceased before the defendant paid 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 the 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 
 surprise is the safe guide in such matters, and the task must necessarily 
 be thrown on those who have judicial functions to perform, of deter- 
 mining in what cases the interests of 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 reasonable costs to 
 which the latter may be put in consequence of a necessary, adjourn- 
 
51 
 
 ment; 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 justice must determine here what amount of indulgence should be 
 grants, 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 advancing 
 the interests of justice. It is undesirable and unjust suddenly to enforce 
 on a community 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 justice. Great latitude of discre- 
 tion 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 inconsistency in the practice of his Court. 
 
 The answer maybe open to some of the same objections as the proceedings on 
 
 ... a» J answer. 
 
 petition : it may be so confused, or uncertain, or irrelevant, as to aflord 
 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 answer 
 may be bad ; that is, amounting to no answer at all. 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., &c. 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, in that it admits 
 nothing, denies nothing, and raises no substantive affirmative defence. 
 
52 
 
 It is in such cases as these that it may be proper, on application or of 
 the Court's own motion, to get the parties before the Court and to settle 
 the issues between them. 
 
 Defences in "confession and avoidance,'' as they are technically 
 termed, comprise those defences which admit the facts stated, but 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 confes- 
 sion and avoidance ; so is release ; so is performance : coverture and 
 infancy are specimens of the second kind of these defences, that is, where 
 no legal obligation has ever arisen. In all these, and the other 
 numerous instances of defences of this nature, there is this general 
 feature — some new material thing will have to be proved by the 
 defendant at the hearing, whereby the inference arising in the plaintiffs 
 favour on the face of petition will be defeated, or, technically, 
 " avoided." 
 
 Thus, if a petition is filed, claiming payment of a debt from a 
 person who has received a discharge under the Bankruptcy Act, or who is 
 a married woman, or who is under the age of twenty-one years — or if the 
 debt be one which was contracted at a time and under circumstances 
 which, if stated, would give in law a right to the defendant to resist 
 the payment — and these facts or circumstances are not respectively 
 stated on the petition, the defendant must set out the facts or 
 circumstances existing in 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, the plaintiff may desire 
 to set up as against such defence a subsequent acknowledgment or 
 
53 
 
 part payment, or some other fact which will destroy the effect of such 
 defence. The object in all cases is to prevent any undue advantage 
 by surprise. 
 
 So, again, payment and release are simple instances. But, to 
 take a less obvious and less common one, suppose a claim on the 
 promise of the defendant to pay money to the plaintiff in consideration 
 of a certain thing done by him at the defendant's request. 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 on 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 con- 
 cealment or any kind of fraud by the plaintiff, common justice will 
 suggest that he ought to plead it, or bring it forward in his answer 
 for he will have to prove them, and the other party is entitled to 
 notice thereof, to enable him, if he can, to rebut the proof. 
 
 With regard to placing distinct matters of defence before the 
 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 Eules that after answer no further 
 pleading is allowed except by special leave of the Court. This is 
 intended to prevent the endless interchange of documents to which I 
 have before referred, and seems much more arbitrary than it really is. 
 In formal pleading, where competent professional men are engaged, 
 the issue or issues will be certainly 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 
 communications 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. When an answer sets up new facts 
 
54 
 
 Amendments. 
 
 Applications 
 for further 
 time. 
 
 Hearing. 
 
 Interlocutory 
 applications. 
 
 to qualify or avoid the inference derived by the plaintiff' from the 
 allegations of the petition, the plaintiff will always have an opportunity 
 of meeting the defence by amendment of the petition, where necessary. 
 
 Amendment ought to be liberally allowed, the reasonable charges 
 to which the other party is to be put being borne by the party amending, 
 and the Court being satisfied that they are applied for bona fide, 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 judicial officer must hold the scale 
 even, and see that neither party is allowed to avail himself 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 larger 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 should 
 be made to and granted by the person entrusted with judicial functions, 
 and by him alone. 
 
 And here I may naturally introduce the little I have to say on 
 interlocutory applications generally. 
 
 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 also 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 interests 
 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 
 
55 
 
 frivolous motions, hy requiring in the first instance ex parte applications 
 for rules to show cause. 
 
 It so happens 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 a power that 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 description : 
 the person asking for such an order must show his title to it in the 
 clearest way. But when it appears that a motion raises 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 adjournment 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 be 
 
 ,. ., ., 1 . ,1 , ,1 . , ,1 . produced at the 
 
 01 suitors, on every possible occasion, that their bounden duty is to trial, 
 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 argu- 
 ments, the presiding Judge determines what are the issues, and states 
 judicially what evidence is to be produced on each point at a future 
 day. They should be taught systematically that argument or state- 
 ment, 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 substantially, 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 adjournments to produce testimony which they had every 
 opportunity of bringing, and should have known that they ought to 
 have brought, at the trial, as they would have in England ; but I would 
 lay down no inflexible rule in practice. 
 
56 
 
 Witnesses. 
 
 Taking 
 depositions. 
 
 Proceedings at 
 the hearius. 
 
 Who to begin. 
 
 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 
 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 occupied 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 subjects 
 at a foreign Court as witnesses with an enlightened readiness which does 
 them honour. I have no doubt that British Consuls throughout 
 China and Japan experience and afford the same facihties 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 ascertained), 
 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 here 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 
 
 * For form of order for examination of a witness in such a case, see 
 Appendix, No, 26, 
 
57 
 
 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 sub- 
 stantial 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 speci- 
 fication, it was held that the plaintiff should begin and show that he 
 did not. 
 
 In cases such as those 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 substantive 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 having put -him 
 to the proof of it ; and it is only on his making out his cause of suit 
 that the burden would lie on the defendant of establishing the 
 substantive defence he has set up. But if the defendant 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 Regularity of 
 
 proceedings 
 
 recommend all those whose duty it is to preside at them, to enforce must be 
 
 enforced. 
 
 regularit}', to prevent interruption, and to make it constantly manifest 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 facilities 
 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 in- 
 
 ^ sufficient. Proof 
 
 of fact is of the least value unless it is either proved or admitted. In neceesary. 
 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 certainty 
 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 
 
58 
 
 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. 
 Mode oi tender- The method in which the proof is tendered is, I may fairly say, 
 
 ing proof. ^^^ ^^^^ ^^^^ exists. By the English law, with but few exceptions, 
 
 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 {i.e., 
 admissibility) of a witness by reason of his being a party, or interested, 
 or convicted of crime, or indeed for any causes 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 testimony. 
 
 As a general rule, the testimony given ought to be viva 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. 
 Hearsay evi- Again, the evidence must be direct and positive ; hearsay evidence 
 
 (with exceptions not material to be noticed, as in matters of family 
 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 i/ou (the 
 witness) anything, state that." If I may judge by personal experience 
 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 defendant 
 really does deny the statement, it is the plainest justice that his 
 denial should be good as against any person but the one in whose pre- 
 sence the statement was made ; and if the statement is material, 
 
 dence, 
 
59 
 
 it is the business of the plaintiff to secure the attendance of the 
 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. 
 
 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 common 
 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 interest should make 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 principles 
 on which evidence ought to be received or rejected ; and I am perfectly 
 conscious that an unprofessional man, endeavouring to administer strict 
 technical rules, would be likely to do far more mischief than if he 
 trusted to his natural common sense. The following propositions may, 
 however, be offered as aids with respect to the admission or rejection 
 of evidence. 
 
 Matters collateral and irrelevant to the questions raised on the Evidence, 
 pleadings should not be permitted to be given in evidence, but in 
 cross-examination witnesses may be questioned on matters not in them- 
 selves relevant to the issue for the purpose of testing their credit. 
 
 No evidence should be 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 conviction 
 of such witness for a criminal offence in case he 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 be genuine, is permitted to be made by 
 witnesses, and such writings and the evidence of witnesses respecting 
 the same may be submitted to the Court as evidence for or against the 
 genuineness of the writing in dispute. 
 
60 
 
 On whom bur- 
 then of proof 
 lies. 
 
 Secondary evi- 
 dence. 
 
 Legalized 
 copies. 
 
 The burthen of proof lies on the party who substantially asserts the 
 affirmative of the issue between the parties. 
 
 The party who must fail on the allegations contained in the 
 pleadings 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 the party on whom the proof lies. 
 
 The evidence required for the proof of any fact requiring to be 
 established, should be the best of which the case in its nature is 
 susceptible. 
 
 Primary evidence is that which ou 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 
 to give secondary evidence of its contents must either prove its 
 destruction — whether 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 with reasonable diligence 
 but without effect, 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 
 elsewhere out of the jurisdiction of the Court, and of any records of 
 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 secondary 
 evidence, provided that a proper notice (when requisite) to produce the 
 original has been given to such adversary.* 
 
 For form of notice to produce, see Appendix, No. 27. 
 
61 
 
 Notice to produce should c6ntain sufficient information to lead Notice to pro- 
 the party reasonably to believe that a particular writing will be called *"°^' 
 for, either by itself or as forming part of a class or collection mentioned 
 in the notice. 
 
 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 that he will be charged with the possession of 
 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 Secondary cvi- 
 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 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 justiiied 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 
 
62 
 
 Evidence of de- 
 clarations by 
 persoiis not 
 parties. 
 
 Cross-examina- 
 tion. 
 
 extended to matters of which he lias 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 received 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 the 
 case of declarations against interest and declarations in the course 
 of business, 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-examination, as used in our Courts, is altogether a distinc- 
 tive feature of the English procedure. Where cases are conducted, 
 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, cross- 
 examination is a duty which the interests of truth cast sometimes on 
 the Court, but the Judge should be careful to guard against the anta- 
 gonistic spirit likely to arise in the breast of every cross-examiner. The 
 questions asked by the Court of witnesses ought to b« 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. 
 
63 
 
 It is the Judge's duty to take such a note of the evidence given J™!"",'^''? °* 
 as will aSord 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 given, tends to promote regularity, 
 and in cases brought up by appeal, a copy of the Judge's notes enables 
 the Higher Courts 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 back for a new trial. These notes ought, in every case 
 of appeal, to accompany the "record," that is, the pleading 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, princi- 
 pally 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 pubUc and the Consuls should be aware that the 
 Higher Court will not disturb judgments on appeal for mere irregu- 
 larity, if satisfied that substantial justice has been done between the 
 parties. To act otherwise would be to inflict great hardship on suitors, 
 and would, in the pubHc 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 followed. It remains only to say, on the subject of notes of 
 evidence, that as the Higher Court will accept them as conclusive, 
 a strict obligi^tion 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 important cases, it is proper 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 to con- Rebutting 
 
 . evidence. 
 
 tradict 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 
 witness who has testified to a particular admission by the plaintiff of 
 
64 
 
 Judgments. 
 
 Final decree. 
 
 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 may call A. B. to swear that he did, for this is highly material to 
 the issue; but if you, in cross-examination, had asked the same 
 witness if he 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. Ap- 
 pend 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 judgment of the 
 Court. 
 
 The evidence is no part of the record, except for purposes of appeal, 
 nor are the reasons for the judgment, if reduced to writing. 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 
 accompany the notes of evidence, they will receive from the Higher 
 Court the utmost attention. 
 
 The formal judgment should, as I have said, be appended to the 
 pleadings, so that the record may be complete ; and it should be headed 
 like all other papers in the suit, with the name of the Court, and the 
 names of the respective plaintiffs and defendants. 
 
 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 
 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. 
 
65 
 
 Interlocutory decrees at tlie heaving may be made in those cases interlocutory 
 in which, from the nature of the suit or of the decree which the 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 
 necessary 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 '" °"™'^" 
 the most part, gives notice of appeal ; for, not being afraid of any 
 substantial costs, he avails himself of appeal as a 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, tlie 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. 
 
 The rules establish an important modification of the system of imprisonment. 
 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. Imprison- 
 ment 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 consequence 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 
 
66 
 
 small debts, and which has been adopted in the County Courts 
 there. 
 
 Execution on 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; 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 risk and by the express 
 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 a claim for damages in case of possible 
 mistake. Where there is any doubt as to the true ownership 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 per- 
 fectly ready to co-operate for the purpose of defeating fraudulent 
 collusions. No personal responsibility of the judgment creditor would 
 excuse to them 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 reasonable time, 
 established his claim. 
 
 Enforcement of There are certain occasions in which the execution of the order of 
 
 orders. 
 
 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. Tliis 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 hy 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 rightful 
 jurisdiction over the thing in dispute, or from which satisfaction 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 it under the Court's direction, 
 and bringing in the proceeds. 
 
67 
 
 In some cases there is no way of enforcing the orders except by 
 committing the party not obeying them, but the jurisdiction is so 
 delicate that I should strongly recommend a reference to the Supreme 
 Court, with a copy of the pleadings and evidence in the case, before 
 making any such decree. 
 
 There is little probability that the Consular Courts will be New trials, 
 troubled with applications for new trials in cases heard before thera. 
 The losing party, if he does not intend to submit to the judgment, 
 would probably use his right of appeal to the Higher Court. 
 
 The petitions and other papers filed by the parties for the purpose Appeals. 
 of appeal often 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 solely on the evidence already given in the 
 Court below, and as that evidence is proved by the notes of the Consul, 
 these ought, as I have already pointed out, to bo accurate and full. If, 
 however, some material fact was sworn to at the trial, but by accident 
 the statement was not taken down, the Consul would, in transmitting 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 do so. Appeals 
 will be entered as they are received, and considered in turn, if the 
 foes 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 stay the further prosecution of the suit, to wait for the deci- 
 sion of the Higher 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 
 
68 
 
 order to the Consul to take the evidence and to transmit the notes of 
 it ; and his duty will be to examine the witness, after notice to both 
 parties to attend, in the same manner as if the examination were at the 
 original hearing. 
 
 Compelling pro- Provision is made in the Rules (see Rule 64) for preventing one 
 
 commencea. party from keeping a suit hanging, as it were, over the head of 
 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 delay as long as possible going to trial. 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 bar lu- A vcry stringent power is sometimes exercised by the Higher 
 
 ture proceedings. ^ „ , . , . . , . ^ , 
 
 Court 01 making an order in certain cases barring further proceedings 
 in the same cause of suit : local circumstances 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 for 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 conclusion of 
 the case by the Judge's decision ; but experience has shown here that 
 a power ought to be left in the hands of the Court to bring litigation 
 on one subject-matter to a close, where it is evidently pursued for the 
 sake of vexation. I cannot recommend, however, non-professional 
 judges to attempt to make an order barring future proceedings where 
 the plaintiff desires to be non-suited, without a special application on 
 the subject to the Higher Court; and, indeed, there is every reason 
 
69 
 
 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. 
 
 Somewhat similar remarks will apply to the power of bringing How to get ria 
 existing suits to a close. In every Court there are some " opprobria " prooefdta|s.™^ 
 of justice of this kind — things which have remained, either altogether 
 or for all 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 Higher 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 to examine the 
 state of the cause, and direct the Consular Court how to act. 
 
 It will frequently happen that the same subject-matter will give cross-snits. 
 rise to a suit and cross-suit. Sometimes it will be proper to take 
 measures for hearing 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 mighty fairly be 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 collection 
 of principles reduced to a strict and often technical system, for 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 
 
fences. 
 
 70 
 
 the importance and complication of the questions which frequently 
 are submitted to these Courts are taken into consideration, all that 
 large and beneficial system which is known in England under the 
 name of Equity cannot be ignored. It is, moreover, expressly provided 
 by the Order in Council that a Consular Court shall be a Court of Law 
 and of Equity. 
 Equitable de- The tendency of recent legislation has been to invest Courts of 
 
 Law with many " equitable " powers, but there is no fusion of the 
 systems in England.* An example of a case of " equitable " defence to 
 an action at law [which arose before the passing of the Married Women's 
 Property Acts] will afford an illustration of the distinction between the 
 systems, and I do not know any reason why such a case might not 
 have come in substance under the judicial cognizance of any of the 
 Consulates here. 
 
 A bequest of money was made to a married woman, to her sole 
 and separate use, independent of the control of her husband, her sole 
 receipt being a sufficient discharge to the executor of the will. This 
 is one of those bequests which a Court of Equity 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 coming 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 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 
 
 * Of course this was written before the Judicature Acts. 
 
71 
 
 the facts, nearly as I have stated them, as an equitable defence, alleging 
 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, 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, that in the course of that employment 
 plaintiff undertook to carry certain coal of the defendant and by 
 negligence lost it, and that the value of the coal was equal to the amount 
 of plaintiff's claim, and the defendant claimed " equitably " to set off the 
 value of the coal lost against the plaintiff's claim, — the 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 Chan- 
 cery 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 action; 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 instrument 
 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 
 
72 
 
 Specific per- 
 formance. 
 
 Costs. 
 
 though in his answer he may not have suggested his title to that 
 specific relief. 
 
 The power of compelling what is called " specific performance " 
 of contracts, is one which Consular Courts will probably be seldom 
 asked to exercise ; and the cases likely to occur in which such relief 
 ought to be granted will be few indeed. I should say of these appli- 
 cations, 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 Higher 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 
 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 knowledge that 
 the expenses on both sides will have to be borne by its promoter. 
 Costs should not be a matter of course, and 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. In the Consular Courts generally, it will be proper that 
 the amount allowed should be taxed, i.e., 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 
 
73 
 
 either from the nature or from the importance of the question between 
 the parties. 
 
 The duty of deciding civil cases without the intervention of a jury, Damages. 
 which is cast upon Consular tribunals, makes it more especially 
 necessary 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 thus the jurors 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 extremely limited : in 
 addition to this, 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 appears to be an extreme disincli- 
 nation 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 elaims 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 ascertain 
 whether the plaintiff has proved the whole or 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-ofi", or other defence as 
 
 to part. 
 
 A question, however, will often arise in these cases as to whether interest. 
 interest, which may be regarded as a species of real damages or com- 
 pensation for the detention of the debt, ought to be allowed to the 
 plaintiff. • 
 
 * This has been altered in England since the passing of the Judicature Acts. 
 
74 
 
 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 Consuls 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 provided: 
 " That upon a,ll dehts 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 be claimed from the date of such 
 " demand until the term of payment ; provided that interest shall be 
 "payable in all cases in which it is now payable by law. 
 No interest on On which it may observed — first, that it does not extend to any 
 
 damages. action on Contract which is brought strictly for the recovery of unli- 
 
 quidated 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 thenceforth be claimed. And, fourthly, that interest must be given 
 in all those cases in which it was payable by law at the time when the 
 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 
 frequently 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 nature, 
 such as bills of exchange and promissory notes. It is not of right 
 
75 
 
 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, as a general rule, on money deposited with a banker. 
 
 But at common law, in the case of bills of exchange and promis- interest on 
 
 _ bills of exchange. 
 
 sory notes, the claim to interest is supported by mercantile usage : 
 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 
 reserved 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 commencement of his 
 action. 
 
 A banker's cheque carries interest, and the drawer or indorser of 
 a bill, or the endorser 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 default of the 
 holder, or the claim has lain dormant for a long 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. Where the holder of a bill died intestate, and no admi- 
 nistration was taken out at once, it was held that the acceptor of the 
 bill was not chargeable with interest except from the time when the 
 administrator, as the only person legally entitled, demanded payment 
 of the principal. 
 
76 
 
 Interest on 
 awards. 
 
 Interest on 
 bonds. 
 
 Compound in- 
 terest. 
 
 Discretion of 
 Court in granting 
 interest. 
 
 Money payable under an award carries interest from the day on 
 which it was payable, and in an action on the award the interest is 
 recoverable together with the principal. 
 
 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 express 
 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 enforceable 
 except perhaps in the case of mercantile accounts-current in respect of 
 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, for ex- 
 ample, 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, in a sum bear- 
 ing interest, to a trader who becomes bankrupt, the assignees may 
 recover interest accruing subsequently to the bankruptcy, although 
 there may appear to have been no express reservation of interest at all. 
 
 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 
 
77 
 
 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 
 which has elapsed since the debt became due, and the reason (if any) 
 why the plaintiff has neglected to take means for any lengthened period 
 to recover it : these and other points naturally come under the attention 
 of the Court at the time of trial, and help it to a 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 satisfactorily established, and where this is the case, Consuls should 
 of course act on the custom. 
 
 I now come to the consideration of damages in the more general compensation 
 sense of compensation for a wrong done, in order that we may see on mages, 
 what principle they should 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 an implied promise to pay 
 the sums respectively due, which are as much ascertained as if they had 
 been lent to the defendant. But if the work was done, or the goods sup- 
 plied, at the defendant's request without any express stipulation as to 
 price, then, inasmuch as the law would imply a promise on his part to 
 pay, the value of the labour or the goods would be the measure of the 
 damages on non-payment, and must, if disputed, be ascertained. And 
 I 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 
 
78 
 
 showing that they were worthless or of inferior quality, in order to 
 reduce the damages. 
 
 Where the nature and circumstances of the contract, however, 
 do not supply a direct or sure method of ascertaining the amount 
 of damages, it not unfrequently happens that in express written 
 contracts the parties endeavour, in contemplation of a breach, to supply 
 this omission 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 damages" (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 are very usual in other agreements, such as for build- 
 ing houses, &c. — matters which may come at any time before a Consul for 
 his decision. A case occurred at Constantinople before the establish- 
 ment of the Supreme Court, in which a Mercantile Commission, 
 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-performance, so much," as 
 giving 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 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 attention to the true difference between a penalty and 
 liquidated damages. 
 Difference be- A "penalty," in the sense in which the law construes the word 
 
 tween"apenal- , j, „ , . , _ , . 
 
 ty" and-iiqui- for the purpose ot which i am speakmg, is a sum intended to cover 
 cbitediJamBges." i ■ i 
 
 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 the extent of the injury sustained. 
 
79 
 
 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 w^y of 
 penalty," or words of a similar nature, is 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 covenantig 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 considered 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 elsewhere, where there 
 is a provision that a certain sum shall be paid in the event of the per- 
 formance 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 31. 8s. 6d. every night on which the theatre was open for 
 theatrical performances ; and that the defendant should be allowed 
 a benefit, &c. The agreement contained a clause that if either 
 of the parties shouiu nt^nl ■ 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 1,000Z., 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 declared by the said parties 
 to be liquidated damages, 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 
 
80 
 
 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 plaintiff 
 neglected to make one single payment of Zl. 8s. 6d., or the defendant 
 omitted to conform to any regulation of the theatre, however unim- 
 portant, the amount of 1,000^, without deduction, would instantly 
 become due from one to the other, on the construction of the instru- 
 ment, according to the letter of the agreement. 
 Beaiintention It is Certain that in these cases, whatever the language used, 
 
 of parties, the 
 
 guide. if it is plain from the whole instrument that the real intention of the 
 
 parties was different, the Courts will not hold them to the language. 
 If a sum be named in respect of the non-performance 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 damages 
 between the parties ; and where 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 " iu a stipulation of this kind will no more conclude 
 the matter 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 recoverable 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 stipulated 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 quoting 
 
81 
 
 this, to point out that the " intention " is to be got from the instru- 
 ment itself, and that it is not allowable to seek for evidence of it else- 
 where. 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 regarded 
 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, then inasmuch 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 dis- 
 tinguished 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." 
 
 A very common instance of " uncertain damage " in these cases 
 is where a medical man on being brought into a partnership, covenants 
 not to practise in a particular district after the dissolution of the part- 
 nership. 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 treated 
 the sum stipulated as " liquidated damages." 
 
 Where the parties have not made any agreement for estimating When no aama- 
 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- 
 
82 
 
 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 liliewise take into consideration any consequential injury 
 which the plaintiff has sustained, provided that 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 illustrations 
 of the measure of damages recognized by the Courts in certain ordinary 
 cases, to quoting nice cases of difficulty which may illustrate the 
 limits of the practice. 
 
 Consequential Of contracts for money I have spoken, and I repeat that conse- 
 
 damages. 
 
 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 calculate 
 
 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 
 delivered ; and this rule will hold good though the vendor has 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, as it would seem, allow the bills to come to 
 maturity and be dishonoured 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 a greater latitude in assessing 
 
83 
 
 the damages ; and in the familiar case of an action for breach 
 of promise to marry, the jury are constantly in the habit of giving 
 exemplary damages : nor will the Courts be disposed to interfere, 
 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 it ought to be enforced in peti- 
 tions in Consular Courts. It may be laid down thus : 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 plaintiiF 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 damages expressly ; for the defendant is 
 entitled to know in respect of what facts the plaintiff claimed 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 ?™*|j1.t°j^>' 
 of " torts " (a term used to signify such wrongs as are in their nature 
 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 damages 
 would be the value and reasonable consequential damages 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 recover 
 the specific thing, or its value assessed at so much, with damages for 
 its detention, a jury in England has been peiinitted to give a very high 
 value, with the object of ensuring' «he return of the chattel, for a Court 
 of Law had no power to compel the specific delivery 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 
 instances to resort to such means. 
 
84 
 
 In many instances, however, of actions of this large class, the dis- 
 cretion of the jury is not only practically unfettered at the time, but 
 the Courts will not grant new trials for excessive damages, except in 
 gross cases, where the damages given are absurdly large and so suggest 
 the existence of prejudice on the part of the jury; or where the jury 
 seem clearly to have taken a wrong view, through ignorance of the 
 principle on which they ought to act. 
 
 Exemplary da- Jq 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 pro- 
 fitable 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. To make mere 
 slander actionable, the plaintiff must show special damage caused by 
 the slanderous words, unless they were spoken of him in reference to 
 his business or impute an indictable offence — in which cases it is not 
 necessary to prove special damage. 
 
 Excessive da- To grant excessive, that is, clearly unreasonable damasres, is to 
 
 mages, ground of ° t j j o > 
 
 appeal. Jay 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 the judgment open 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 application to the 
 Higher 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 objection to the judgment: in such 
 cases if the party object to the judgment on other grounds also, he may 
 of course appeal generally, so that the Court would be able to consider 
 all the grounds of objection, and to do justice by one order. 
 
 Criminal cases. A few words respecting criminal cases will suffice, as the provisions 
 
 of the Order in Council and Kules on the subject are full and explicit. 
 
85 
 
 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 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 
 
 r< 1111 .'.i^ . . arrest to issue. 
 
 (jonsul should not m the first instance issue a warrant for the 
 apprehension of the accused, but should only issue a summons, except 
 where from the nature of the offence, the reputation 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 defeated 
 by giving him notice. A man ought not without urgent necessity 
 incur the loss of liberty until he has had a fair opportunity of answer- 
 ing the charge against him. 
 
 The Consul should in all cases avoid imposing unnecessary 
 restraint upon the 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 its object. 
 
 It is the duty of the person making the charge 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, sence of accused. 
 The charge should be first read over to the accused, but 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 observed 
 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 evidence should 
 be forthcoming. 
 
 * For oath on receiving information or complaint, see Form 28 in Appendix. 
 
86 
 
 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 purposes 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 
 restrictions as the Consul may think proper. 
 When two or When two or more parties are accused of the same offence com- 
 
 more parties are ^ 
 
 accused. 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 called to give 
 evidence for the other's defence. Criminality might never be establish- 
 ed if the prisoners were allowed reciprocally to give exculpatory 
 evidence in behalf of each other. A Magistrate cannot refuse, how- 
 ever, to listen to anything an accused party may say either of himself 
 or of any one else, if pertinent to the matter in hand ; and any such 
 statement, as against the party making it, is to a certain extent evidence, 
 but it is not evidence 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 elsewhere observed, it is far better 
 that Consuls, who are generally unprofessional men, should lean to 
 the admission of testimony which tends to throw a light on the sub- 
 ject 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 and the inducement of the party 
 offering it to speak the truth or to speak falsely. 
 
 Queen's eTidencc. What is Called " Queen'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 evidence ; and in such cases (which occur 
 very rarely) the accomplice thus allowed to give evidence himself 
 escapes punishment. 
 
 niness, &c., of In the case of a witness not attending on a summons in summary 
 
 witnesses. _. 
 
 proceedmgs, a warrant to compel his attendance should not be issued 
 if it appears that his failure to attend was caused by illness, by atten- 
 dance elsewhere in discharge of a public duty, or by some other urgent 
 cause. 
 
87 
 
 Any person committed for trial is entitled on application, at any Accused party 
 
 •' ^ rr ) J entitled to snm- 
 
 time between his commitment and his trial, to obtain on application, "on'os '»■""''' 
 
 ' t- L J ueases. 
 
 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. Where the prisoner desires the attendance of 
 witnesses who are not British subjects, application should be made to 
 the respective Consulates of those witnesses asking for an order on 
 them to attend. 
 
 It may be observed that although the punishment on a conviction Damages in cases 
 
 of assault. 
 
 for an injury to the person is usually considered a sufficient penalty, 
 yet the party injured is not debarred from pursuing his civil remedy 
 for compensation for 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 punishment. It is true that under the 
 74th section of the Order in Council, the Court may on a conviction 
 order that the accused pay all the expenses of the trial, and when 
 medical attendance on the party injured has been absolutely necessary 
 to enable him to appear and give his evidence, the medical expenses 
 may properly be considered as incident to the trial, and the party 
 convicted be ordered to pay them. In the same way 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 civii remedy, 
 called, in which the injured party sets forth the assault, the injuries 
 received, the damage occasioned to him, the expenses he has been put 
 to, and prays that the party committing the assault may be condemned 
 to pay him a sum by way 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 as- 
 saulted by the plaintifi", self-defence, and a variety of other grounds. 
 If he fails in establishing 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, 
 there is no objection to compensation being given for such a wrong in 
 
88 
 
 General con- 
 siderations to 
 ^ide Consul 
 in conduct of 
 criminal ca5(B. 
 
 the sense of damages. But it must be recollected that except under 
 Lord Campbell's Act (9 and 10 Vict., cap. 93) no civil action for 
 damages can be maintained by the family or legal representatives of a 
 man who has died from the result of injuries received. His remedy dies 
 with him. 
 
 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, he must in his answer state the circumstances upon which he 
 relies as justifying the assault which he admits having committed. 
 The Consul will then have to consider — in the 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 they do, no damages ought to be given. 
 
 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 
 rests 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 greater 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 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 
 should be lost of inculcating upon the local authorities that the object 
 of criminal law and criminal procedure is not so much to prove that 
 an accused person is guilty of the offence with which he is charged, 
 
89 
 
 as to enable the accuser to prove the guilt which he imputes, and, at the 
 same time, to afford to the accused every fair means of defending him- 
 self. To this end the Consuls 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 must do the same. 
 Neither he nor they should be allowed to adduce " hearsay evidence " 
 (that is, what they heard other persons say) : such testimony should 
 at once be rejected, and the persons alluded to be themselves pro- 
 duced. 
 
 It is essential 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 chooses in support of his explanation. Every care 
 should be taken to expose any animus with which the accuser or his 
 witnesses may be inspired. In short, while on the one hand it is the 
 Consul's duty to see that justice is done and crime punished, it is, on 
 the other hand, his duty to take care that the crime is properly proved, 
 and that the accused has every reasonable chance afforded him. His 
 assent to a fair judgment, arrived at after the investigation of the facts, 
 should never be withheld ; while at the same time, both before trial and 
 at the trial, he should at least insist on throwing the whole onus of 
 proof on the accuser, and prevent conclusions being adopted, founded 
 rather on moral conviction than upon clear and distinct evidence. In 
 many police cases, he will have to decide as to the truth or probability 
 of truth of conflicting statements. While giving the accused the 
 benefit of all reasonable doubt, he must duly consider probabilities 
 and such other attendant circumstances as go towards raising an 
 inference, based on proved facts, either of guilt or innocence. 
 
APPENDIX. 
 
LIST OP FORMS, 
 
 No. 
 1. — Warrant of execution against goods of Defendant 
 
 2. — Order for service out of jurisdiction by Court in which suit is 
 pending 
 
 3. — Order for service by Court in vfhose district service is to be effected 
 
 4. — Eeturns of Civil Cases 
 
 5. — „ Criminal Cases... 
 
 6. — Summons to Juror (Inquest) 
 
 7. — Oath of Juror (Inquest) ... 
 
 8. — „ Witness (Inquest) 
 
 9. — Inquisition 
 
 10. — Eules of Procedure to be observed in H.B.M 
 China and Japan in Admiralty 
 
 Appendix A. to No. 10 
 
 Appendix B. to No. 10 
 
 s Supreme Court for 
 
 11. — Affidavit in support of application to re-seal 
 administration 
 
 12. — Submission of Foreign Plaintiff to jurisdiction 
 13. — „ Chinese „ „ 
 
 14. — Index to Eecord of Appeal 
 
 15. — Oath of Chinese Witnesses in Civil Cases 
 16. — „ „ „ „ Criminal Cases 
 17. — Petition veith order for service 
 
 18. — Instructions to Officers of Supreme Court in 
 Interlocutory Proceedings 
 
 19. — Summons 
 
 20. — Bequest to other Provincial Court to examine 
 
 21. — Decree 
 
 22. — Oath of Witness in Civil Cases 
 
 23. — „ „ Criminal Cases 
 
 24. — Oath of Interpreter (Civil and Criminal Cases) 
 
 25. — Register of Plaints, &c 
 
 26. — Order for examination of Witness preparatory 
 
 27. — Notice to Produce 
 
 27 (a). — Notice to Admit 
 
 28. — Oath on receiving Information or Complaint 
 
 grant of probate or 
 
 regard to practice in 
 
 Witness 
 
 to hearing 
 
 Page. 
 . 93 
 
 95 
 96 
 97 
 98 
 99 
 
 ib. 
 
 ib. 
 
 100 
 
 101 
 105 
 ib. 
 
 108 
 109 
 110 
 112 
 115 
 ib. 
 116 
 
 117 
 118 
 
 ib. 
 120 
 131 
 
 ib. 
 
 ib. 
 122 
 123 
 124 
 125 
 
 ib. 
 
93 
 
 APPEl^DIX. 
 
 No. 1. 
 
 Warrant op Execution against Goods op Dkfbndant. 
 
 In Her Britannic Majesty's Court at_ 
 
 The- 
 
 -day of .. 
 
 188 
 
 Between 
 
 and 
 
 2*0 (•) 
 
 Whbrbas on the. 
 
 _day of- 
 
 judgment was recovered by the plaintiff-.. 
 against the defendant 
 
 who was ordered to pay the sum of- 
 
 -for costs within the space of... 
 
 -, Plaintiff, 
 
 -, Defendant. 
 
 -18. 
 
 . in the above canse 
 
 -for debt and 
 
 from the date of the said judgment, and whereas it has been shewn to the Court 
 that the said judgment is still due and unpaid, and application has been made 
 
 by the Plaintiff that the Goods and Chattels of tho 
 
 said Defendant should be sold in 
 
 execution of the said judgment. 
 
 * Here should be filled in the name of the Usher, Constable of the Court, or other fit person. 
 
94 APPENDIX. 
 
 This is therefore to require you, the said , to take into posseBsion 
 
 and sell or cause to be sold the goods and chattels of the defendant aforesaid, in 
 satisfaction of the said judgment and costs, and of the costs and expenses of this 
 Warrant, and to make a return to this Court of the moneys arising from the sale 
 and of the manner in which this "Warrant has been executed. 
 
 Amount of Judgment Debt S 2%. 
 
 Costs of the Court (Taxed) „ 
 
 Interest at per annum „ n 
 
 m. 
 
 Amount realized by previous execution 
 
 do. received by Plaintiff 
 
 do. paid into Court 
 
 m. 
 
 Costs of this Warrant 
 
 Under this Warrant may be seized any of the goods of the defendant (except the 
 wearing apparel and bedding of himself and his family, and the tools and imple- 
 ments of his trade to the value of 25 dollars), as well as any money, bank-notes, 
 checiues, bills of exchange, promissory notes, bonds or securities for money 
 belonging to him, the said money, bank-notes, &o., to be returned to this Court, 
 which will make such order regarding their realisation as shall seem just and 
 convenient. 
 
 Take notice that to the above sum will be added aU such charges as the 
 Sheriff shall justly make for possession and for sale, if regularly made at the 
 expiration of five days after advertisement. 
 
FOEMS. 
 
 95 
 
 No. 2. 
 
 Order for Service out op Jurisdiction by Court in which 
 Suit is pending. 
 
 In Her Britannic Majesty's Court at.. 
 
 Between 
 
 ■■, Plaintiff, 
 
 and 
 
 ■., Defendant. 
 
 Upon the application of.. 
 
 and upon reading an affidavit of * 
 
 * Or "Upon the 
 evidence adduced 
 before the Court 
 in this matter." 
 
 it is ordered that service of the annexed be made upon 
 
 ...at . 
 
 [Seal of Court.} 
 
96 
 
 APPENDIX, 
 No. 3. 
 
 Order for Service by Court in whose District Service 
 
 IS TO BE effected. 
 
 In Her Britannic Majesty's Court at.. 
 
 The... 
 
 -day of.. 
 
 ..188 
 
 Between 
 
 and 
 
 . , Plaintiff, 
 
 .., Defendcmt. 
 
 Whbebas the above suit is pending in Her Majesty's Court at 
 
 , and the said Court has requested 
 
 this Court to order service of the annexed- 
 
 upon.. 
 
 ..within the district 
 
 of this Court. It is hereby ordered that service of the said.. 
 
 •State mode of be effected upon the said., 
 service to be 
 adopted. 
 
 ,.by*.... 
 
 \Seal of Court,] 
 
FORMS. 
 
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 APPENDIX. 
 
 
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FORMS. 99 
 
 No. 6. 
 
 Summons to Jukos. (Inquest.) 
 
 In Her Britannic Majesty's Cotirt at.. 
 
 The day of _ 188.. 
 
 To „.. 
 
 of... 
 
 You are hereby commanded in Her Majesty's name to attend at 
 on the 
 
 , at _ o'clock of the noon, to serve as a juror 
 
 at an inquest to be held on the body of .._ ._.. 
 
 Note. — If ymi fail to attend according to tltis summons, you will be liable to such Jim, not exceeding fifti/ 
 dollars, as the Court thinks JU to impose. 
 
 No. 7. 
 
 Oath of Juror. (Inquest.) 
 
 You shall diligently enquire and true presentment make how and in what 
 
 manner - i 
 
 here lying dead, came to his death ; and of such other matters relating to the 
 same as shall be lawfully required of you. So help you God. 
 
 No. 8. 
 
 Oath op Witness. (Inquest.) 
 
 The evidence which you shall give to this inquest touching the death 
 qI _ _ _ shall be 
 
 the truth, the whole truth, and nothing but the truth. So help you God. 
 
100 APPENDIX. 
 
 No, 9 
 
 Inquisition. 
 
 In Her Britannic Majesty's Court at_ 
 
 An Inquisition taken at _ 
 
 ...aforesaid the 
 
 ...day of 18 .......before.. 
 
 ..Her Britannic Majesty's 
 
 Consul at _ ..acting as 
 
 Coroner in accordance with the 53rd Section of the China and Japan Order in 
 
 Council, 1865, upon view of the body of - -.. - - 
 
 _ _ _ _ _ -.foresaid, there and now 
 
 lying dead, upon the Oaths of... 
 
 (Jurors) the several persons whose names are hereunder written, good and lawful 
 
 men of _ _ 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 _ '. - _... 
 
 - came to his death, do upon 
 
 their Oaths say that _ _. - — 
 
 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 _ against the peace of our 
 
 Lady the Queen, Her Crown and dignity [or as the case may ie]. 
 
 In witness whereof as weU the said Coroner as the Jurors aforesaid have 
 hereunto subscribed their names the day and year abo'se written. 
 
 J-- {iziizi:: } '^^"' 
 
RULES OP PROCEDURE IN ADMIRALTY. 101 
 
 No. 10. 
 
 RULES OP PROCEDURE 
 
 TO BE OBSEEVED 
 
 Jtt §. 1. Jil's ^ui^nm^ dfouri for (^Um and Japn, 
 
 IN 
 
 ADMIRALTY, 
 
 Wheebas it is of urgent necessity that Eules of Procedure in Admiralty causes 
 should be framed for the guidance of suitors, and whereas, by virtue of provisions 
 contained in 26 and 27 Vict., c. 24 (" An Act to facilitate the Appointment of 
 Vice-Admirals and of Officers in Vice-Admiralty Courts in Her Majesty's Posses- 
 sions abroad," &c., &c.), which provisions are, by the 54th section of the China 
 and Japan Order in Council 1865, extended to the Supreme Court of China and 
 Japan, the said Supreme Court, as a Vice-Admiralty Court, has jurisdiction in 
 (amongst other things) the matters following : — 
 
 (1) Claims for Seamen's Wages ; 
 
 (2) Claims for Master's Wages, and for his] Disbursements on account of the 
 
 Ship; 
 
 (3) Claims in respect of Pilotage; 
 
 (4) Claims in respect of Salvage of any Ship, or of Life or Goods therefrom; 
 
 (5) Claims in respect of Towage; 
 
 (6) Claims for Damage done by any Ship; 
 
 (7) Claims in respect of Bottomry or Respondentia Bonds; 
 
 (8) Claims in respect of any Mortgage where the Ship has been sold by a 
 
 Decree of |the Vice-Admiralty Court, and the Proceeds are under its 
 control; 
 
 (9) Claims between the Owners of any ship registered in the Possession in 
 
 which the Court is established, touching the Ownership, Possession, 
 Employment, or Earnings of such Ship; 
 
102 APPENDIX. 
 
 (10) Olaims for Necessaries supplied in the Possession in which the Court is 
 
 established, to any Ship of which no Owner or Part Owner is domiciled 
 within the Possession at the time of the Necessaries being supplied; and 
 
 (11) Claims in respect of the building, equipping, or repairing within any British 
 
 Possession of any Ship of which no Owner or Part Owner is domiciled 
 within the Possession at the time of the Work being done: 
 It is ordered that, for the regulation of the practice and procedure to be observed 
 in the Supreme Court as a Vice-Admiralty Court, the following Rules shall be 
 established : — 
 1. — All proceedings in Admiralty must be so headed. 
 
 Note. — Proceedings "in Admiralty" are either in reiji orinpsrsonam. AGtiODB in persoTiam 
 shall be conducted in the same way as all other actions of a similar nature, according to the 
 Rules of Procedure prevailing in the Supreme Court in matters of Law and Equity. The 
 following outline of procedure will, therefore, he understood to refer only to actions in rem 
 that is, against the Bes, in other words, the subject-matter of the action. 
 
 2. — The name and nationality of the Ship against which the proceedings are 
 taken must appear, as also that of the Master ; and when the Owners are known, 
 their names and residences should likewise be given. 
 
 Note.— To give the Court jurisdiction in claims Nos. 10 and 11 {see above), the fact of the 
 Owners not being domiciled within the jurisdiction of the Court should be stated. 
 
 3. — Any number of persons having a coinmoti interest may join in one action 
 according to the practice of Admiralty Courts in England; and there may, in 
 accordance with the same practice, be one action against several Res. 
 
 Note. — Such consolidation of separate claims may likewise be ordered on the application of 
 the defendant, or by the Court of its own motion. 
 
 i. — Proceedings in rem must be commenced by an application for the arrest of 
 the Res. This application must state the nature of the debt or claim and the 
 amount sought to be reeovered (which should include the estimated costs of the 
 suit). It must be supported by an affidavit of all the circumstances which justify 
 its being made, and a fee is to be paid on its being granted. 
 
 Note.— The application must be filed in triplicate, — one copy for service on the Vessel, 
 another for the Court, and the third for service on any party who may appear to the action. 
 
 (2) It shall be in the discretion of the Court to require and take security from the applicant 
 for the prosecution of the suit, as well as to cover any damages which may be awarded against 
 him in consequence of the impropriety, frivolity, or maliciousness of the application. 
 
 (3) All payments into Court shall be made in such currency and at such exchange as the 
 Court shall direct. 
 
 5. — On the application being made in due form, a Warrant will issue to the 
 Officer of the Court, to arrest the Res and cite all persons, having an interest in 
 the subject-matter of the arrest, to appear within a time mentioned in the Warrant 
 and answer to the plaintiff in his cause. 
 
 6. — The arrest shall be executed by the arresting officer affixing a certified copy 
 of the Warrant to the principal mast or to some other conspicuous part of the 
 
RULES OF PROCEDURE IN ADMIRALTY. 103 
 
 ship, after having previously read the original Warrant to the officer or other per- 
 son in charge of the vessel. 
 
 Note. — The Warrant extends to the apparel, appurtenances, &c., of the ship, although all 
 or part may have been detached from her and sent on shore. If the entire cargo be still on 
 board the vessel, the service on the mast arrests the former as well as the latter, and should the 
 action be against the freight, this latter is considered to be ai-rested simultaneously with the 
 cargo. But should the cargo have been landed and deposited in a public or private warehouse 
 a separate and distinct aiTest of it must be made — provided the warehouse be within the juris- 
 diction of a British Court. In this case, the officer of the Court will affix a certified copy of the 
 Warrant on such separate cargo, and do the like if the cargo has been transhipped to a British 
 ship. But if the warehouseman, or person in charge of the cargo, will not permit access to it, 
 the officer will serve him instead of the Bes with the Warrant, by showing to him the original 
 and leaving with him a copy of it. 
 
 (2) The fact of the arrest is to be certified by endorsement under the hand of the officer 
 making it. 
 
 7. — A person nominated bj' the Court shall be left in charge of the Ees. 
 
 Note. — A fee will be charged on each of the three last-named steps (5-7), that is to say, for 
 the warrant, the service and aiTest, and the expenses connected with and arising out of the 
 custody of the ship, &c. 
 
 8. — The fact of the arrest and the citation to appear shall be advertised in the 
 usual way. 
 
 9. — At any time before the trial of the case, the Owner or Captain or any one 
 interested in the vessel or in the cargo or freight attached, may come in and give 
 an undertaking to appear or to appear and give bail to the action. Such an 
 undertaliing shall operate as a stay of aU proceedings for twenty-four hours, after 
 which time, or such extended time as the Court may see fit to grant, if no appear- 
 ance is entered or no bail given, the proceedings shall continue as if no such 
 undertaking had been given. 
 
 Note. — If Bail — which also implies appearance — be given, the Res arrested shall be released, 
 and the action proceed. 
 
 (2) If only an appearance is entered, the Kes shall be detained under arrest. 
 
 (3) On bail being tendered and an appearance entered, it shall be competent for the Court 
 to require security for costs. 
 
 (4) On tender of Bail, it shall be competent for the Court to accept the same, or to call on 
 the Petitioner to accept the same, or to make an order for justiflcation of the Bail. 
 
 10. ^A petition shall be filed within three days after the arrest is completed, 
 
 unless a longer time shall on application be allowed by the Court; and such peti- 
 tion shall be served in the same way as the order of arrest, as well as upon any 
 parties who may have appeared in answer to the citation. 
 
 ll,_The Rules prevailing in the Supreme Court with reference to answers, 
 setting down the cases for hearing, and hearing, shall be applicable to causes in 
 Admiralty. 
 
 12.— At any stage of a cause, either party may pray for an appraisement of the 
 Kes, and it shall be competent for the Court to order such appraisement on such 
 terms as to costs and expenses as it sees fit to impose. 
 
104 APPENDIX. 
 
 13.— All Interlocutory Proceedings, and all proceedings before and on the trial 
 of the case, shall, as far as circumstances admit, be conducted in conformity with 
 the General Rules of Procedure in the Supreme Court. 
 
 Note.— For formalities to be observed in causes of Damage, see Appendix A. 
 
 14.— On the cause being heard, the Court shall give judgment and decree the 
 release of the Ees or — ^in the event of a decision adverse to the ship, and should 
 no bail have been given in the suit, or no satisfaction of the judgment of the 
 Court be offered by the party (if any) who appeared to defend the suit — the sale 
 thereof. The date at which such sale shall take place, and the manner — whether 
 by public auction or otherwise, as shall seem to the Court most advantageous — 
 shall be specified in the decree of the Court and notified by advertisement. 
 
 15. — The proceeds of the sale shall be paid into Court, and therefi'om shall the 
 decree or decrees, on a day fixed for the appearance before the Court of the parties 
 interested for the marshalling of their claims, be satisfied ; and the surplus shall 
 remain in Court until the person or persons claiming to be entitled thereto shall 
 establish their claim or claims. 
 
 Note. — It shall be competent for any person, at any period in a suit, to file in Court a petition 
 that he be decreed to share in the proceeds or in the balance thereof; and any proceedings of this 
 description shall be conducted in the same way as such a claim would have been conducted 
 against the Kes itself. 
 
 16. — It shall be competent for the Court to refer any matter requiring investiga- 
 tion, or having reference to accounts, rate of interest, repairs done to any ship, &c., 
 to the Begistrar alone, or to the Registrar assisted by one or two merchants or 
 shipmasters to be appointed by it ; and such Reference shall take place within ten 
 days from the date of the order therefor. Leave shall, when prayed for by either 
 party, be given to file affidavits and counter-afiidavits, provided always that the 
 Judge shall have power to extend the time within which the Reference is to take 
 place whenever the filing of affidavits and counter-affidavits necessitates such 
 extension. 
 
 Witnesses may be produced before the Registrar, provided four days' notice of 
 an intention to examine them be given ; and it shall be optional with the Registrar 
 to permit or refuse to allow the attendance of Counsel or Solicitors at the hearing 
 before him, and no costs shall be allowed for such attendance if the Registrar shall 
 be of opinion that it was unnecessary. 
 
 The Report of the Registrar shall be filed within ten days of the hearing before 
 him, and notice of any objection to be made thereto shall be filed by the party 
 making it, within five days of the filing of the Report. 
 
 All questions of costs of the Reference shall be in the discretion of the Registrar, 
 subject to the decision of the Chief Judge. 
 
 17. — In all cases the Court shall apply the English Law as administered in 
 Admiralty Courts in England; and all matters of procedure, not otherwise 
 provided for in these Rules or in the General Rules of Procedure for this Court, 
 shaU be governed, as far as may be, by the Rules in force in Her Majesty's High 
 Court of Admiraltyi 
 
FEES IN ADMIRALTY, 105 
 
 APPENDIX A. to No. 10. 
 
 Causes of Damage, 
 
 In causes of Damage each party shall, at the time of filing his petition or 
 answer, bring into and deposit in the Eegistry a sealed packet containing a state- 
 ment of the following particulars: — 
 
 1° The names of the two vessels which came into collision, and the names 
 
 of their respective masters. 
 2° The time of the collision as nearly as can be stated. 
 3° The locality of the collision. 
 40 The direction of the wind at the time. 
 5° The state of the weather. 
 6° The state and force of the tide. 
 
 7° The course and speed of the vessel when the other was first seen. 
 8° The lights, if any, carried by her. 
 
 9° The distance and bearing of the other vessel when first: seen. 
 10'> The lights, if any, of the other vessel which were first seen. 
 11<> Whether any lights of the other vessel other than those first seen came into 
 
 view before the collision. 
 120 What measures were taken, and when, to avoid the collision. 
 ISO The parts of each vessel which first came into contact. 
 Such packets shall remain sealed and shall not be opened, save by order of the 
 Judge, until the pleadings and proofs are filed ; they may be referred to at the 
 hearing of the cause. 
 
 APPENDIX B. to No. 10. 
 
 Fees to be taken by the Supreme Court sitting in Admiralty. 
 
 1. On every Praecipe $5.00 
 
 2. „ „ Warrant or Citation 15.00 
 
 3_ DetaitlBl- 15-00 
 
106 APPENDIX, 
 
 4. On retaining PosBession of a Ship, or of a Ship and Goods, to include 
 
 the cost of a Ship Keeper, if required, per day $2,50 
 
 5. „ every Release 5.00 
 
 6. ,, „ Commission, Monition, Decree, Requisition, Attachment, 
 
 or other Instrument for which a Fee is not specially 
 provided 15.00 
 
 7. „ „ Bail Bond 3.00 
 
 8. ,, „ Affidavit of Justification 2.00 
 
 9. „ „ Subpojna 2.00 
 
 10. „ „ Minute, including the entry of an order, if any 1.00 
 
 11. „ „ Summons, including the entry of the Judge's or Registrar's 
 
 order 2.00 
 
 12. „ ,, Notice of Sale, or Notice of Proceedings in a Cause of 
 
 Possession [with fee on advertisement] 5.00 
 
 13. „ „ Notice of Motion, including the entry of the Judge's 
 
 order 5.00 
 
 14. „ „ Petition Vj^on fling 
 
 IB, „ „ Notice to have a Cause placed on the List for Hearing, 
 including the entry of the Judge's order, if the Cause be by 
 Default 5.00 
 
 16. Placing Cause on Hearing List IJ °/o 
 
 17. On the Examination of any Witness viva voce, either in Court or 
 
 before the Registrar % 1.00 
 
 18. „ administering an Oath, for each Deponent 1.00 
 
 19. „ every Document, on the same being filed, save an Exhibit or any 
 
 Instrument or Document previously issued from the Re- 
 gistry or the Marshal's Office 3.00 
 
 20. „ ,, Exhibit, including the marking thereof 1.00 
 
 21. For every office copy of a Document in the English language, per 
 
 sheet, not exceeding 10 folios, including the Registrar's 
 signature 2.00 
 
 22. If required to be collated in the Registry per sheet, not exceeding 
 
 10 folios, in addition to the above 1.00 
 
 23. On a reference to the Registry 25.00 
 
 2-1. If the attendance of one or two merchants is required, to each 
 
 merchant 25.00 
 
 25. In oases of great intricacy and large amount, to the Registry and to 
 
 each merchant 50.00 
 
FEES IN ADMIRALTY. 107 
 
 26. When the accounts to be investigated do not amount to $1,500, to 
 
 the Registry and to each merchant $ 15 a 25 
 
 27. When the accounts to be investigated do not amount to $500, to the 
 
 Registry and to each merchant $7 a 15 
 
 28. On drawing the Report and Schedule in cases in which the claim 
 
 exceeds $500 10.00 
 
 29. „ drawing the Report and Schedule in cases where the claim does 
 
 not exceed $500 5.00 
 
 30. „ taxing any Bill of Costs, per sheet not exceeding 10 folios, from 
 
 each party to the Taxation 2.00 
 
 31. . „ taxing any Bill of Costs, per sheet not exceeding 10 folios if but 
 
 one party attend the Taxation 4.00 
 
 32. „ every Order for payment of money out of the Registry 2.00 
 
 83. Poundage on monies paid out of the Registry in any Cause, if the sum 
 
 does not exceed $250 1.00 
 
 34. Poundage on monies paid out of the Registry in any Cause, if it 
 
 exceeds $250 but does not exceed $500 2.00 
 
 35. Poundage on monies paid out of the Registry in any Cause, if it 
 
 exceeds $500 but does not exceed $1,000 5.00 
 
 36. For every additional $500 2.00 
 
 Approved, 
 
 (Signed) RUTHERFORD ALCOCK, 
 
 H. B. M. Envoy Extraordinary 
 and Minister Plenipotentiary, Pekin. 
 
 (Countersigned) 
 
 EDMUND HORNBY, 
 Chief Judge. 
 
 5th June 1867. 
 
 Approved by Her Majesty's Principal Secretary of State for Foreign Affairs, in 
 Despatch No. 8 of September 9th, 1867. 
 
108 APPENDIX. 
 
 No. 11. 
 
 Affidavit in Support of Application to Re-seal a Grant of 
 Probate or Administration. 
 
 In Her Britannic Majesty's Court at . 
 
 In the goods of — 
 
 deceased. 
 
 I, _of- 
 
 . , make oath 
 
 and say as follows : — 
 
 1. — Probate of the Will [or Letters of Administration with Will annexed] of 
 
 late of- 
 
 deceased, who died on the day of X88 , was [or were] 
 
 granted by Her Majesty's 
 
 on the day of 188 — to , 
 
 one of the Executors [or sole surviving Executor, as the case may be] of the 
 Will of the said deceased. 
 
 2. — By a Power of Attorney dated the day of 
 
 188 (a certified copy of which is hereto annexed and marked A.) the 
 
 said. appointed me [or myself and 
 
 , ] t(i be his Attorney [or jointly 
 
 and severally to be his Attorneys and Attorney] for the purposes therein Mentioned. 
 
 3. — It is necessary that the exemplification of the said Probate [or Letters 
 of Administration with Will annexed] (a certified copy of which is hereto 
 annexed and marked B.) should be re-sealed with the seal of this Court. 
 
 4. — The whole of the Testator's personal property within the jurisdiction 
 of this Court does not amount in value to the sum of 
 
 , to the beat of my knowledge, information and belief. 
 
 Sworn at- 
 
 this dai/ of 188 — , , 
 
 Before me, 
 
FORMS. 109 
 
 No. 12. 
 
 Submission op Foreign Plaintiff to Jurisdiction. 
 
 In Her Britaruiic Majesty's Court at- 
 
 The. ........day of 188 .' 
 
 Between 
 
 and 
 
 ..., Defendant, 
 
 I, the above-named... 
 
 a subject [or citizen] of.. 
 
 hereby submit to the jurisdiction of this Court in the matter of the above-named 
 suit, and undertake, if required by the Court, to give such security as the Court 
 may direct, for the payment of fees, damages, costs, or expenses, and for the 
 performance by me of the decision of the Court. 
 
 I consent to the said plaintiff 
 submitting to the jurisdiction of 
 the said Court as above. 
 
 Contul for^ 
 
110 
 
 APPENDIX. 
 No. 13. 
 
 Submission of Chinese Plaintiff to Jueisdiction. 
 
 In Her Britannic Majesty's Court at„ 
 
 The.. 
 
 ..day of... 
 
 Between 
 
 and 
 
 .188 
 
 , Plaintiff, 
 
 .., Defendant. 
 
 I, the above-named .. 
 
 a subject of the Emperor of China, hereby submit to the jurisdiction of this 
 Court in the matter of the above-named suit, and undertalie, if required by the 
 Court, to give such security as the Court may direct, for the payment of fees, 
 damages, costs, or expenses, and for the performance by me of the decision of 
 the Court. 
 
 I consent to the said plaintiff 
 submitting to the jurisdiction of 
 the said Court as above. 
 
 {_Seal of Ckmete Avtliority,'] 
 

 
 
 lib 
 
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 3 
 
 
 FORMS. 
 
 
 
 111 
 
 No. 13 — Continued, 
 
 
 
 
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112 
 
 APPENDIX. 
 No. 14. 
 
 INDEX TO RECORD OF APPEAL. 
 
 Pabt I. — Documents included in Teanscbipt Recoed. 
 
 No. 
 
 10 
 11 
 12 
 13 
 11 
 
 Description of Document. 
 
 Plaintiff's Petition, dated 
 Defendant's Answer, dated 
 
 Examination of A. B 
 
 Cross-examination of A. B, 
 Ee-examination of A. B. 
 
 Examination of C. D 
 
 Cross-examination of C. D. 
 
 [&c., &o.] 
 
 Exhibit A. [described] 
 
 ., B. [ ., ] 
 
 [&c., &c.] 
 Judgment, dated 
 Decree thereon, dated 
 Motion for leave to Appeal, dated 
 
 Minute of Order thereon 
 
 Order thereon 
 
 Part II.— Original Documents included in Eecobd. 
 
 No. 
 
 Description of Document. 
 
 Page. 
 
 15 
 16 
 
 Petition of Appeal, dated 
 Answer in Appeal, dated 
 
 
FORMS. 
 
 113 
 
 No. 14 — contimied. 
 
 MDEX TO RECORD OF APPEAL-co«/. 
 
 Pakt III.— Documents omitted feom Ekcoed. 
 
 BeBcription of Document. 
 
 Order for Service of Petition, dated 
 
 [and any other merely formal documents,] 
 
 Note.— 2^ Record of Appeal should be in this form: — 
 In Her Britannic Majesty's Supreme Court for China and Japan. 
 
 On Appeal from Her Britannic Majesty's Qowt at 
 
 Between 
 
 Plaintiff [or Defendant] wnd AppelUmt, 
 and 
 
 Defendant [or Plamtiff'] and Respondent, 
 
 BECOBD OP PBOCEEDINGS. 
 
 Index of Beferenoe. 
 [flerfl follows the Index in the form just given, then comes the Record itself, and 
 
114 APPENDIX. 
 
 Not6 to No. 14 — continued. 
 
 after the Record there should he a certificate in the following form: — ] 
 
 .., Judge of Her Britannic Majesty's 
 
 Court at , do certify as follows: — 
 
 1. — That the papers hereunto annexed and enumerated in Part I, of the Index 
 of Reference thereunto prefixed are true and correct transcripts of the original 
 
 Record in this Court in the suit between Plaintiff 
 
 and— _ _ Defendant, omitting only the documents 
 
 enumerated in Part III. of the said Index of Reference. 
 
 2. — That the papers hereunto annexed and enumerated in Part II. of the 
 said Index of Reference are the original Petition of Appeal, and Answer in Appeal, 
 filed in this Court in the above-named suit; [or, -where no answer has been filed'] 
 and that a copy of the said Petition of Appeal was duly served on the said 
 
 , and that no answer to it has been 
 
 received. 
 
 3. — That security has been given to this Court by , 
 
 the said Appellant, to the amount of..- _ , for the 
 
 prosecution of the Appeal and for the payment of all fees and charges in this 
 Court and in the Supreme Court, and of such costs as may be awarded to the 
 Respondent by the Supreme Court. 
 
 4. — That the fees and expenses for the preparation of this Record amount 
 to 
 
 Judge, 
 [_Seal of Cowrt.'] 
 S.B.M't Cowrtat ™ , 
 
 tUs. day of 188 . 
 
FOEMS. X15 
 
 No. 15. 
 
 Oath of Chinese Witnesses in Civil Cases. 
 
 5c 
 
 m m 
 u wt 
 
 A %% 
 
 Hi 
 
 X- 
 
 :^ 
 
 m. 
 
 i§ 
 
 wt 
 
 5c 
 
 n 
 
 No. 16. 
 
 
 Oath of Chinese Witnesses in Criminal Cases. 
 
 m o 
 
 1 ^ o 
 
 ^ n ^ 
 
 m m 'm 
 
 ^ § m 
 
 An -t 
 
 [^This form of oath should he nritten on yettom paper, and burned l>y the witness.'] 
 
116 
 
 APPENDIX. 
 No. 17. 
 
 Pbtition with Order for Service. 
 
 In. Her Britannic Majesty's Court at ..._ 
 
 The day of... 
 
 Between 
 
 •^ 
 
 * 
 
 ^s 
 
 b) 
 
 
 B & 
 
 ts 
 
 
 
 k 
 
 
 fe g 
 
 
 
 o> (? 
 
 g! 
 
 
 sl 
 
 ? 
 
 s 
 
 ft 1 
 
 _.188 
 
 ^Plaintiff, 
 
 and 
 
 To- 
 
 ■Esquire, 
 
 Judge of Her Britannic Majesty's Court at- 
 The Petition of ._ 
 
 the above-named Plaintiff, 
 
 Shows as follows : 
 
 1.— 
 
 2 — 
 
 3.— 
 
 The Plaintiff therefore prays 
 1. 
 
 ...of.. 
 
 m That the Plaintiff may have such further or other relief as the nature of 
 
 S. the case may require. 
 
 o 
 p 
 
 ^ The Defendant to this Petition is 
 
 B- - - -- ■■ 
 
 a 
 
 t) Ol _. 
 
 a 
 
 I 
 
PRACTICE IN INTERLOCUTORY PROCEEDINGS. 117 
 
 No. 18. 
 
 Instructions to Officers of Supreme Court in regard to 
 Practice in Interlocutory Proceedings, 
 
 Interlocutory Applications in Civil Cases up to hearing are to be 
 made either by Motion or on application for a Summons. (Kule 144.) 
 
 Under Rules 1, 6, 28, 44, 46, 49, 58, 63, and 65, proceedings by way of Simmont 
 are specially enjoined. 
 
 CTnder Rules 43, 54, 64, 150, and 273, Motiojis are required. 
 
 Under Rules 30, 31, 39, 40, 50, 53, 55, 61, 80, 81, 245, 277 and 278, Applications 
 are mentioned, but it is not stated whether they are to be made by motion or on 
 summons. 
 
 Under Rules 32, 87, 57, 69, 60, 179, 244, and perhaps some others, it appears to 
 be contemplated that the Court will make orders em parte and otherwise at the 
 instance of one of the parties, but the method of application for such orders is not 
 prescribed. 
 
 Under classes A. and B. the course laid down by the Rules must be strictly 
 followed out. 
 
 Under class C. appUoation (except when it is for an ea; parte order, when it 
 will be taken to mean a motion) is to be read as application for a summons, 
 unless any special features in the matter would seem to require the application 
 being made by motion, and then such procedure wUl only be permitted after 
 reference to the Judge. 
 
 Under class D. applications will also be usually made by summons, and 
 reference must be had to the home practice. In cases where it may be doubtful 
 whether a summons would properly be taken out under that practice, the Judge 
 must be consulted. 
 
 In cases where an interlocutory application is made to the Court in matters 
 not dealt with by the Rules, the home practice must be followed as closely as 
 possible. 
 
 Orders will be drawn up separately and not indorsed or written on the face 
 of the motion -paper or summons, except in the case of dismissal of a summons 
 which will be indorsed upon it. 
 
 RuUs Nisi granted upon motions wiU be drawn up separately from the motion 
 paper, and will in general be returnable to and heard in Court, and the day of 
 hearing will be usually not less than four days after service, as provided by 
 Rule 151. 
 
 Summonses will be heard in Chambers, and usually be returnable in 48 hours. 
 
118 APPENDIX. 
 
 No. 19. 
 
 Summons. 
 
 In Her Britannic Majesty's Court at_ 
 
 The day of _ 188 , 
 
 Between 
 
 „ _._ , Plaintiff, 
 
 and 
 , Defendant, 
 
 Let all parties concerned attend the Judge in Chambers upon the hearing 
 
 of an application by the _ 
 
 that - 
 
 And let this summons be served upon the 
 
 No. 20. 
 
 Request to other Provincial Court to Examine Witnesses. 
 
 To the Judge of H.B.M. Court at. 
 
 Whereas a suit is now pending in this Court in which... 
 
 ..is plaintiff, 
 
 and . is defendant. 
 
 And whereas it has been represented to me, , 
 
FORMS. 119 
 
 the Judge of this Court, that it is necessary for the purposes of justice and 
 for the due determination of the matters in dispute between the parties that 
 A. B. of _....., 
 
 and C. D. of _ 
 
 resident within the jurisdiction of your Court, should be examined as witnesses 
 upon oath touching such matters. 
 
 Now I, _ , 
 
 the Judge of this Court, have the honour to request that you, the Judge of the 
 
 said Court at__ , will be pleased to summon 
 
 the said witnesses to attend at such time and place as you shall appoint before 
 you, and that you will cause such witnesses to be examined upon the interroga- 
 tories which accompany this letter of request (or vivi voee) touching the said 
 matters in question, in the presence of the agents of the plaintiff and defendant, 
 or such of them as shall, on due notice given, attend such examination. 
 
 And I further have the honour to request that you will be pleased to cause 
 the answers of the said witnesses to be reduced into writing, and all books, letters, 
 papers, and documents produced upon such examination to be duly marked for 
 identification, and that you will be further pleased to authenticate such examina- 
 tion by the seal of your Court, and to return the same to this Court. 
 
 A copy of the petition and a copy of the answer are hereunto annexed. 
 
 Dated this. day of _._ — - 188 . 
 
 JvAge, 
 \Seal of Qmrt.'] 
 
120 APPENDIX. 
 
 No. 21. 
 
 Decree. 
 
 In Her Britannic Majesty's Court at- 
 
 The. day of 188 
 
 Between 
 
 Plaintiff, 
 
 and 
 
 On the hearing of this cause this day, it is hereby ordered that the plaintiff 
 
 do recover from the defendant the sum of for debt, and S 
 
 for costs; and it is further ordered that the total sum of 
 
 for debt and costs, together with the additional sum of $2 for the costs of this 
 order, be paid into this Court by the defendant forthwith. 
 
 BY THE COTJET. 
 
 \_Seal of Court.'] 
 
 \_To he endorsed on the copy served.'^ 
 
 If you, the within-named , neglect to obey 
 
 this order by the time therein limited, you will be liable to have a writ of execu- 
 tion issued against your goods, under which they may be seized and sold, and will 
 also be liable to be siunmoned by the Court, and to be examined as to your abUity 
 to make the payment directed by this order, and to be imprisoned in case of your 
 not answering satisfactorily. 
 
FORMS. 121 
 
 No. 22. 
 
 Oath op Witness in Civiii Cases. 
 
 You swear that the evidence you shall give to the Court [or to the Court and 
 Jury ] shall be the truth, the whole truth, and nothing but the truth. So help 
 you God. 
 
 No. 23. 
 
 Oath of Witness in Criminal Cases. 
 
 Yo0 swear that the evidence you shall give to the Court [and Jury] sworn be- 
 tween Our Sovereign Lady the Queen and the prisoner at the bar, shall be the 
 truth, the whole truth, and nothing but the truth. So help you God. 
 
 No. 24. 
 
 Oath of Intbepretbr. (Civil and Criminal Cases). 
 
 You swear that you will truly and faithfully interpret the evidence and all 
 other matters and things which shall now be given between Our Sovereign Lady 
 
 the Queen and the prisoner at the bar [or in this cause], from the._ 
 
 language into the English language and from the English language into the 
 
 language, according to the best of your skill and ability. So help you God. 
 
122 
 
 APPENDIX. 
 
 M 
 d 
 
 6 
 •3 
 m 
 
 ■3 
 
 Cm 
 
 o 
 
 !h 
 <0 
 *> 
 CQ 
 
 .IH 
 
 100 
 
 ^1 
 
 
 If, when, 
 
 and on 
 
 whom served. 
 
 
 Sum sought 
 
 to be 
 recovered. 
 
 
 go 
 
 
 o!ta 
 
 
 ■Si 
 u sa 
 
 l§ 
 
 t 
 
 ll 
 
 OS m 
 
 "1 
 
 
 "S . 
 
 II 
 
 S5 
 
 
FORMS. 
 No. 26. 
 
 123 
 
 Ordkr foe Examination of Witness Preparatory to Hearing. 
 
 In Her Britannic Majesty's Court at.. 
 
 Between 
 
 and 
 
 ...... Plamtiff, 
 
 , Defendant. 
 
 Upon hearing. 
 
 and upon reading the affidavit of.. 
 
 [or by consent*], this Court *I{ the fact be 
 
 doth order that- 
 
 -of.. 
 
 a British Bubject, a witness on behalf of the Plaintiff [or Defendant] may be 
 
 examined before this Court on the _.. _.day 
 
 of 188 at - o'clock in the fore-[or 
 
 after-]noon, and that the said examination so to be taken as aforesaid be filed in 
 the Registry of this Court, and that the same or an office-copy thereof may be 
 read and given in evidence on the hearing of this suit saving all just exceptions. 
 
 Dated the day of... 
 
 ..188 
 
 ISeal of CovH.] 
 
124 APPENDIX. 
 
 No. 27. 
 
 Notice to Pkoduce. 
 
 In Hor Britannic Majesty's Court at.. 
 
 Between 
 
 . , Plaintiff, 
 
 and 
 
 .., DefendoAd. 
 
 Take notice that you are hereby required to produce and show to the Court 
 on the trial of this cause all books, papers, letters, copies of letters, and other 
 writings and documents in your custody, possession or power containing any 
 entry, memorandum, or minute relating to the matters in question In this cause, 
 and in particular the following : — , 
 
 1 — 
 
 2 — 
 3.— 
 
 &c., &c., &c. 
 Dated this day of 188..- 
 
 To 
 
FORMS. 
 No. 27 (a). 
 
 125 
 
 Notice to Admit. (Kulb 248.) 
 
 In Her Britannie Majesty's Court at ... 
 
 Between 
 
 _, Plaintiff, 
 
 and 
 
 , Defendant. 
 
 Take notice that the Plaintiff [or Defendant] in this cause proposes to 
 adduce in evidence the several documents hereunder specified, and that the 
 same may be inspected by the Defendant [or Plaintiff], his Counsel or Agent 
 
 at the Office of 
 
 at 
 
 day of- 
 
 . aforesaid on. 
 
 -188 at 
 
 the 
 
 — o'clock in the fore-[or after-] 
 noon, and the Defendant [or Plaintiff] is hereby required within 48 hours from 
 the last-mentioned hour to admit that such of the said documents as are 
 specified to be originals were respectively written, signed or executed as they 
 purport respectively to have been, that such as are specified as copies are true 
 copies, and such documents as are stated to have been served, sent, or delivered, 
 were so sent or delivered respectively, saving all just exceptions to the admissibility 
 of all such documents as evidence in this cause. 
 
 Dated the day of 188 
 
 To 
 
 No. 28. 
 Oath on Eecbiving Information or Complaint. 
 
 You swear that the contents of this your information (or complaint) are true 
 to the best of your knowledge and belief. So help you God. 
 
Il^DEX 
 
INDEX OF CONTENTS. 
 
 Face. 
 
 ACCOUNTS, question of, may be referred 32 
 
 ACCUSED, see Criminal Jurisdiction. 
 
 ADMINISTKATION, order of priority in grants of 14 
 
 See also Probate and Administration. 
 
 ADMIRALTY jurisdiction, nature of 11 
 
 Higher Courts alone Courts of ib. 
 
 Consuls, however, should know the procedure of these Courts ib. 
 
 power of Provincial Court in cases of claims against ships ... 12 
 
 AGENTS, PARTIES SUED AS 33 
 
 AGREEMENT TO REFER questions of fact or law 26 
 
 AMENDMENTS TO PETITION AND ANSWER are to be freely allowed. 54 
 
 expenses to be borne by the party amending ib. 
 
 ANSWER TO PETITION 48 
 
 presumptions and procedure in different cases where no answer 
 
 is put in ib. 
 
 , proceedings on SI 
 
 APPEALS IN CIVIL CASES 21,33,67 
 
 , course to follow in 22 
 
 fees to be previously paid ' ib. 
 
 what payable to Provincial Court ib. 
 
 Higher Court ib. 
 
 parties not regmred to attend in person or by Counsel 22,67 
 
 mere irregularity will not suffice to disturb the original finding. 63 
 will in most cases be decided on the evidence given in the 
 
 Court below 67 
 
 procedure where fresh evidence is admitted ib. 
 
 will lie on all orders (not being eiB^^arte) on a motion 28 
 
 from interlocutory orders 67 
 
 APPEALS IN CRIMINAL CASES - 23 
 
 APPLICATIONS FOR FURTHER TIME 54 
 
ii INDEX OF CONTENTS. 
 
 Page. 
 
 ARBITRATION 8 
 
 ARREST IN CIVIL CASES 
 
 before suit commmenoed. See Bail, Obdees to hold to 
 
 after suit commenced, but before judgment 34 
 
 after judgment 31,32,65 
 
 IN CRIMINAL CASES, when to be resorted to ... ... 85 
 
 ASSAULT, DAMAGES FOR 87 
 
 civil remedy by action of " trespass " ib. 
 
 defendant may deny the charge or plead extenuating circum- 
 stances ib. 
 
 ASSESSORS, attendance cannot be compelled ... 4 
 
 cannot be challenged ib. 
 
 dissent of, from conviction 16 
 
 ASSISTANCE TO BE RENDERED BY COURTS TO BACH OTHER 6 
 
 qualification as to this ... ib. 
 
 B 
 
 BAIL, ORDERS TO HOLD TO, beforesuit instituted 
 
 , what conditions requisite before granting 41 
 
 " out of jurisdiction " how to be understood 42 
 
 claim for unliquidated damages not sufficient ib. 
 
 , more care required in, when foreigners are the applicants ... ib. 
 
 Consul in all cases to exercise his discretion 43 
 
 BANKRUPTCY, all the Courts have jurisdiction in 9 
 
 Higher Courts perform functions of Board of Trade under 
 
 the Act ib_ 
 
 BARRING PROCEEDINGS 68 
 
 under what circumstances this power will be exercised ib. 
 
 BILLS OF SALE 25 
 
 BREACHES OF CONTRACT, PENALTY FOR, see Damages. 
 
 BRITISH SUBJECTS, death of, proceedings in case of 14 
 
 IN EMPLOY OF CHINESE GOVERNMENT ... 2 
 
 , NATURALIZED, Chinese, etc 
 
 limitation of their rights ... ... 3 
 
 have the same disabilities as native-born subjects ib. 
 
 CASES, Half-yearly Returns of, to be sent to Higher Court • 7 
 
 should be taken in their turn 5^ 
 
INDEX OF CONTENTS. Ill 
 
 Page. 
 CHINESE NATURALIZED BRITISH SUBJECTS, gee Beitish 
 Subjects, Naturalized. 
 
 CIVIL CASES, essential nature of 36 
 
 form the bulk of judicial suits ib. 
 
 summary procedure in claims under $100 37 
 
 in administration suits ib. 
 
 on bills of exchange 26,37 
 
 CLAIMS, divided into defective and bad 37 
 
 force of this distinction 38 
 
 result of bad claims ib. 
 
 defective claims 39 
 
 COMPELLING PROCEEDINGS in cases commenced 68 
 
 Court to decide if delay is reasonable ib, 
 
 COMPENSATION BY WAY OF DAMAGES, see Damages. 
 
 CONCURRENT JURISDICTION OF HIGHER COURTS WITH 
 
 PROVINCIAL COURTS, how exercised 5 
 
 CONTEMPT OF COURT 24 
 
 CONTRACT, PENALTY FOR BREACH OP, see Damages. 
 
 CORONER'S INQUEST, what are fit cases for a 9 
 
 general outline of proceedings at a 10 
 
 JURY, verdict of 11 
 
 COSTS, in discretion of Court 30 
 
 not a matter of course 72 
 
 principle on which they are allowed ib. 
 
 direction to be given at time of delivering judgment ib. 
 
 when Counsel are engaged 80,72 
 
 COURT OF RECORD, what is a * 
 
 , all the Courts are ib. 
 
 CRIMINAL JURISDICTION 16 
 
 distinction between summary oases and indioiment cases to be 
 
 observed 85 
 
 warrant of arrest to be issued only when absolutely necessary... 85,88 
 
 prosecutor to make out his caRe ib. ib. 
 
 procedure in indictment eases 85 
 
 if accused is discharged after one preliminary examination, he 
 
 may be arrested again ib. 
 
 accused to be allowed communication with his fflends and 
 
 advisers ... ... •-• ••• ••• ••• ...86,88 
 
 , when several are implicated in the same case, to be 
 tried together, and cannot give exculpatory evidence 
 
 for the other S6 
 
IV INDEX OF CONTENTS. 
 
 Pace. 
 
 nature of queen's evidence ib. 
 
 presence of witnesses, when not compellable by warrant ... ib. 
 
 accused is entitled to summonses for witnesses 87 
 
 bail should generally be accepted 88 
 
 accused should have full opportunity of cross-examining pro- 
 secutor's witnesses 89 
 
 accused may make any statement an^ call witnesses in support 
 
 of it ib. 
 
 CROSS-EXAMINATION OF WITNESSES 62 
 
 questions to test their credibility 59 
 
 CROSS-SUITS 69 
 
 CROWN ADVOCATES IN CHINA AND JAPAN, when reference to 
 
 be made to them by Consuls 21 
 
 DAMAGES 73 
 
 as compensation 77 
 
 , consequential 82 
 
 , excessive, a ground of appeal 84 
 
 , exemplary ... ... ... ... ib. 
 
 for breach of contract 77 
 
 non-delivery of goods 82 
 
 non-payment of money ib. 
 
 generally a sufficient remedy for non-performance of contract ... 72 
 
 in action of " detinue " 83 
 
 "trover" ib. 
 
 — cases of assault (see also Assault, Damages fok) 87 
 
 , interest. Court to exercise discretion in awarding 76 
 
 compound ib. 
 
 in the case of awards ib. 
 
 bills of exchange 75 
 
 bonds 76 
 
 when allowable 74 
 
 when compulsory ib. 
 
 when not allowed ib. 
 
 " liquidated damages " and " penalty,'' distinction between ... 78 
 
 instance of 79 
 
 real intention of the parties is the guide 80 
 
 instance ib. 
 
 , special 83 
 
 , uncertain 81 
 
INDEX OF CONTENTS. V 
 
 Page. 
 
 , unliquidated, meaning of the term 73 
 
 no interest chargeable on 7i 
 
 when none are fixed ... ... ... ... ... ... ... gi 
 
 DEAD BODY OF A FOREIGNER in British employ, the Consul should, 
 
 in suspicious cases, view 10 
 
 DEATH OF A BRITISH SUBJECT, proceedings in case of U 
 
 DECISION SUBJECT TO A SPECIAL CASE for the opinion of the 
 
 Higher Court 30 
 
 DECREE, final, when to be made 64 
 
 , interlocutory, when to be made 65 
 
 what an interlocutory decree should contain ib. 
 
 DEFENCES IN " CONFESSION AND AVOIDANCE," definition of ... 52 
 
 examples ib. 
 
 DEMURRER, what? 38 
 
 if over-ruled, defendant may answer ib. 
 
 DEPORTATION, to what cases to be Umited 19 
 
 DEPOSITIONS OF WITNESSES who may be leaving the locality, 
 
 can be taken 56 
 
 DISSENT OF ASSESSOR from conviction 16 
 
 DISTRESS B¥ LANDLORD 33 
 
 affidavit in which the facts are stated, necessary ib. 
 
 , mode of execution of warrant for ... ib. 
 
 DUPLICATE, papers to be served to be in 35 
 
 EQUITABLE DEFENCES 70 
 
 instance of ib. 
 
 EQUITY, what is 8,69 
 
 its nature misunderstood ib., ib. 
 
 , COURTS OF, all the Courts are ib., 70 
 
 EVIDENCE, 
 
 in reply, when allowed 29 
 
 documentary evidence to be marked ib. 
 
 objection to admissibility of evidence 30 
 
 want of procurable evidence not to be excused, and trial not to 
 
 be postponed on that account 55 
 
 statements by party tc third person, how far evidence 59 
 
 eonvereations between the parties, how far evidence ib. 
 
VI INDEX OF CONTENTS. 
 
 Page. 
 
 on coUatei'al matters not allowed except in cross-examination ... 59 
 
 proof as to handwriting ... ... ... ... ... ... ib. 
 
 on whom the burthen of proof lies 60 
 
 primary, what ? ... ... ... ... ib. 
 
 to be preferred to secondary ib. 
 
 secondai-y, what? ib. 
 
 when admissible ib., Kl 
 
 legalized copies are evidence .. 60 
 
 declarations by persons not parties ... ... ... . . ... B2 
 
 rebutting evidence, when admissible fiS 
 
 , HEARSAY, generally not admissible .58 
 
 its most common form ... ... i^. 
 
 EXECUTION AGAINST GOODS for non-compliance with decree ... 66 
 
 , caution to be exercised in granting ib. 
 
 may issue from Higher Court to Provincial Court 6 
 
 EXPENSES OF WITNESSES 30 
 
 EXPERTS, evidence of ib. 
 
 , surveys, &c., by ib. 
 
 FEES FOR APPEAL to Higher Court 
 
 what payable to Provincial Court 22 
 
 what payable, and when, to Higher Court ib. 
 
 FILING OF PAPERS, the, should be systematic 35 
 
 FINAL DECREE 64 
 
 FOREIGNERS, suits by and against 21 
 
 security from foreign plaintiflf ib. 
 
 FOREIGN TRIBUNAL, British witnesses before 26 
 
 G 
 
 GOODS, EXECUTION AGAINST, see Execution against Goods. 
 
 H 
 
 HEARING, proceedings at 29 
 
 must be regular and orderly 57 
 
 proof of all statements is necessary ib. 
 
INDEX OF CONTENTS. Vii 
 
 Page. 
 ho-w tendered 58 
 
 Rules as to Lists generally to be observed 54 
 
 when and by whom postponements, &c., may be made lb. 
 
 who should begin? rule 66 
 
 HEARSAY EVIDENCE is not admissible 58 
 
 its most common form ... ... ... ... ... ib 
 
 HONGKONG COURT, when it has jurisdiction 19 
 
 I 
 
 ILLITERATE PERSONS, assistance to 36 
 
 IMPRISONMENT 
 
 a more serious punishment in China than in England 16 
 
 may be carried out at Hongkong, Shanghai, or Yokohama ... ib. 
 
 under decrees in civil suits 65 
 
 INJUNCTIONS 43 
 
 should generally be only "interim" orders 45 
 
 , EXPARTE, an extraordinary remedy 44 
 
 INQUEST, 
 
 , what a fit case for 9 
 
 must be held on the body ib. 
 
 , general outline of proceedings at 10 
 
 , remuneration to Medical officers giving evidence at ib, 
 
 INTEREST, claim of, arising out of a question of Damages, see Damages. 
 
 INTERLOCUTORY DECREE 65 
 
 PROCEEDINGS , 27,54 
 
 , great regularity to be observed in 27 
 
 . object of ib. 
 
 no affidavits requisite for summonses, but motions generally 
 
 should be supported by affidavit 28 
 
 should be noted in Judge's Minutes 28,54 
 
 , rule as to costs in 28 
 
 appeal lies where order not made eic ^arte ib. 
 
 course to be taken when order made ex parte ib. 
 
 INVENTORY OP PROPERTY OF DECEASED BRITISH SUBJECT, 
 
 when to be taken 14 
 
 ISSUES, defined 27 
 
 should be clearly developed in petition and answer ib. 
 
 , settlement of ib., 48 
 
VUl INDEX 0¥ CONTENTS. 
 
 Page, 
 
 JAPAN, UNLAWFUL TRADE WITH 17 
 
 JAPANESE NATURALIZED BRITISH SUBJECTS, see under Bkitish 
 
 Subjects, Naturalized. 
 
 JUDGMENT may be reserved, if necessary 30 
 
 minute of 31 
 
 a written one often desirable 64 
 
 completes the record ib. 
 
 DEBTOR may be arrested 32 
 
 EXECUTION OP 32,65 
 
 circumstances to be taken into consideration 82 
 
 ORDER 31 
 
 , procedure on non-compliance with ib. 
 
 SUMMONS, object of ib. 
 
 , proceedings on ib. 
 
 , when to issue ... ... ... .,, ... ... ib, 
 
 warrant where summons not obeyed ib. 
 
 JURISDICTION, CRIMINAL, see Cbiminal Jurisdiction. 
 
 OF COURTS, source of 1 
 
 WITHIN lUO MILES OF CHINA 19 
 
 JURY LIST, to be prepared by Consuls and sent to Higher Court ... 4 
 
 , TRIAL BY, limited to Higher Court ib. 
 
 K 
 
 L 
 
 LANDLORD, DISTRESS BY, see Distress by Landlord. 
 
 LEVANT CONSULS, EXTRACT FROM CIRCULAR LETTER TO 36 et seq. 
 
 LUNACY, Higher Courts alone Courts of 12 
 
 but Consuls in their magisterial capacity have a summary 
 jurisdiction over lunatics ib. 
 
 M 
 
 MATRIMONIAL CAUSES, Higher Courts alone can try ib. 
 
 MERCHANT SHIPPING ACT, jurisdiction under, continued to Consuls... 3 
 
 MINUTES OF PROCEEDINGS 24 ■ 
 
 MORTGAGES 25 
 
INBEX OF CONTENTS. 
 
 IX 
 
 N 
 
 NATURALIZED BRITISH SUBJECTS should be registered ... 
 
 NEW TRIALS 
 
 NOTES, JUDGE'S, OF EVIDENCE 
 
 a copy must be supplied, or allowed to be taken, in 
 
 of appeal 
 
 importance of 
 
 should be complete and accurate 
 
 what should be entered in 
 
 NOTICE TO PRODUCE, what it should contain 
 
 when not necessary, several classes of cases 
 
 Page. 
 20 
 
 , 67 
 
 case 
 
 ... 22 
 
 23,63 
 
 ib. ib. 
 
 ... 29 
 
 ... 61 
 ... ib. 
 
 OBSTRUCTION OF COURT 
 
 OFFENCES AGAINST RELIGION OP COUNTRY, how to be dealt with 
 
 the whole case to be reported to Higher Court 
 
 AGAINST TREATY, when penalty leviable in 
 
 OFFICIAL ADMINISTRATOR to property of deceased British subjects, 
 in what cases and by whom appointed 
 
 ORDERS IN COUNCIL, THE, are the authoritative guide for the 
 
 Provincial Courts 
 
 law of England to be followed in what is not expressly 
 provided for by the 
 
 (1865), referred to or commented on as under :- 
 
 24 
 
 18 
 19 
 17 
 
 15 
 
 Sect. 
 
 3 ... 
 
 ... p. 2 
 
 4 ... 
 
 1 
 
 4-6 ... 
 
 3 
 
 5 ... 
 
 ib. 
 
 9-22... 
 
 ... p. 4 
 
 26-34 
 
 ib. 
 
 33-34 
 
 ib. 
 
 35-80 
 
 ib. 
 
 41 ... 
 
 ... p. 5 
 
 43-44 
 
 ib. 
 
 43 ... 
 
 ... p. 6 
 
 46 ... 
 
 ib. 
 
 Sect. 
 
 47 ... 
 
 ... p. 7 
 
 1] 
 
 48-50 
 
 ib. 
 
 )» 
 
 49-50 
 
 ... p. 8 
 
 )i 
 
 51 ... 
 
 ib. 
 
 M 
 
 52 ... 
 
 ... p. 9 
 
 J) 
 
 53 ... 
 
 ib. 
 
 » 
 
 54 ... 
 
 ... p. 11 
 
 I> 
 
 55 ... 
 
 ... „ 12 
 
 )J 
 
 5C ... 
 
 ib. 
 
 i) 
 
 57 ... 
 
 ib. 
 
 a 
 
 57-61 
 
 ... p. 14 
 
 1) 
 
 59 ... 
 
 ib. 
 
INDEX OF CONTENTS. 
 
 Sect. 60 ... 
 
 ... p. U 
 
 „ 62-63 
 
 ... „ 4 
 
 „ 64-80 
 
 ... „ 16 
 
 „ 72 ... 
 
 ib. 
 
 „ 74 ... 
 
 ... p. 87 
 
 » 77 ... 
 
 ... „ 16 
 
 „ 78 ... 
 
 ... p. 17 
 
 „ 79 ... 
 
 ... „ 16 
 
 „ 81-3... 
 
 17 
 
 „ 84 ... 
 
 ib. 
 
 „ 85-91 
 
 ib. 
 
 „ 92-7... 
 
 ib. 
 
 „ 98-9... 
 
 ib. 
 
 „ 100 ... 
 
 ... p. 18 
 
 „ 101 ... 
 
 ... „ 19 
 
 Sect 
 
 104 ... 
 
 .. p. 19 
 
 » 
 
 106-13 
 
 ib. 
 
 It 
 
 114-15 
 
 ib. 
 
 II 
 
 117-118 
 
 .. p. 21 
 
 )l 
 
 118 ... 
 
 .. „ 25 
 
 » 
 
 119 ... 
 
 .. „ 21 
 
 » 
 
 120-6 
 
 ... „ 23 
 
 n 
 
 127-30 
 
 ib. 
 
 )i 
 
 131-40 
 
 ib. 
 
 1} 
 
 141-57 
 
 ib. 
 
 n 
 
 142 ... 
 
 ib. 
 
 J) 
 
 143 ... 
 
 .. p. 8 
 
 )j 
 
 145 ... 
 
 24 
 
 !J 
 
 149 ... 
 
 ib. 
 
 1) 
 
 155 ... 
 
 ib. 
 
 Page 
 
 •>> •■< •«. 
 
 ... .•• 
 
 ... 19 
 
 (1877), referred to 
 
 (1878), referred to or commented on... 1,11 (note), 12(note), 21,23,24 
 
 (1881), do. do. 17,21,25,34 
 
 (1884) do. do. 2 (note), 9, 19,26,26a 
 
 ON JUDGMENT, see Judgment Okdbe. 
 
 TO HOr^D TO BAIL, see Bail, Okdbk to hold to. 
 
 PARTIES OUT OF JURISDICTION of Court, what course neceseary 
 
 in BuitB against 33 
 
 PARTNER of a firm, death of, proper action by survii-ing partners 
 
 and by Consul in case of 13 
 
 PARTNERS, SUITS BY AND AGAINST 25 
 
 PARTNERSHIP ESTATES, rule as to, in the case of the death of a 
 
 partner of the firm 13 
 
 PENALTY AND LIQUIDATED DAMAGES, distinction between ... 78 
 
 , instance of ... ... ... ... ib. 
 
 FOR BREACH OF CONTRACT, see under Damages. 
 
 PETITION 26 
 
 , requisites of a 37 
 
 what is a defective ib. 
 
 bad 38 
 
 , service of 45 
 
 " demurring " to a bad petition 38 
 
INDEX OF CONTENTS. XI 
 
 Page. 
 
 course when petUiou is merely defective 39,46 
 
 ANSWER TO is 
 
 presumptions and proceedings in different cases where no 
 
 answer put in ... lb. 
 
 , proceedings on 51 
 
 PIRACY, extended signification of 17 
 
 , punishment for 18 
 
 PLEADINGS AFTER ANSWER, special leave required for 53 
 
 PRACTITIONERS, LEGAL 5 
 
 PROBATE AND ADMINISTRATION 12 
 
 contentious cases of, Provincial Courts hare no jurisdiction in ... ib, 
 jurisdiction is confined to cases of British subjects having fixed 
 
 place of abode in China or Japan 13 
 
 course to be followed where deceased had permanent residence 
 
 elsewhere ib. 
 
 where deceased dies elsewhere than in China or Japan ib. 
 
 in the case of the death of a partner of a firm ... ib. 
 
 order of priority in grants of administration 14 
 
 penalty on nnauthorized persons dealing with an estate ib. 
 
 except in certain cases, grants are to be made by Provincial Courts 15 
 PROCEDURE, RULES OF, see Rules of Procbduke. 
 
 PROCEEDINGS, BARRING 68 
 
 , COMPELLING • ib. 
 
 , INTERLOCUTORY, see Inteklocutoky Pboceedings. 
 
 ON DEATH of a British subject 14 
 
 inventory of property, when to be taken ib. 
 
 RECORD OF, should be full and accurate ... ... 4 
 
 , TERMINATING, provision for 69 
 
 PROPERTY OF DECEASED INTESTATE BRITISH SUBJECT 
 
 vests in Higher Court till administration is taken out 14 
 
 control exercised over, by Consular Officer only under authority 
 
 of Higher Court ... ib. 
 
 , Official Administrator of, appointed where necessary by 
 
 Higher Court only 15 
 
 Q 
 
 QUEEN'S EVIDENCE, nature of 85 
 
 QUESTIONS OF ACCOUNTS mny be referred 32 
 
 FACT OR LAW, reference of 26 
 
 , manner of procedure in ib. 
 
 must be in writing ib. 
 
xu 
 
 INDEX OP CONTENTS. 
 
 R 
 
 Page. 
 
 RECONCILIATION CLAUSES in Order in Council 7 
 
 when applicable ib. 
 
 course that Consul may follow 8 
 
 Consul may decide the matter if referred to him ib. 
 
 RECOK.D, COURTS OF, what are 4 
 
 , all the Courts are ib. 
 
 OF APPEAL, of what it consists 22 
 
 , original documents generally not to be forwarded 23 
 
 REFERENCE OP QUESTION for amicable settlement by Consuls ... 8 
 
 of account 32 
 
 of fact or law by consent 26 
 
 , manner of procedure in ib. 
 
 must be put in writing ib. 
 
 REGISTRATION should be insisted on 19 
 
 , neglect of, how punished 20 
 
 in the case of naturalized British subjects ib. 
 
 by British subjects at Foreign Consulates, consequence of ... ib. 
 
 Foreigners in British employ not to be registered ib. 
 
 property and persons of non-registered British subjects have no 
 
 immunity from British jurisdiction ib. 
 
 RELIGION, OFFENCES AGAINST, how to be dealt with 18 
 
 whole case to be reported to Higher Court 19 
 
 RETURNS, HALF-YEARLY, to be sent to Higher Court by Provincial 
 
 Courts 7 
 
 RULES OF PROCEDURE must be carefully followed 35 
 
 referred to or remarked on as under : — 
 
 Rules 1-9 ... 
 
 .. p. 
 
 26 
 
 a 
 
 18-25 
 
 "• » 
 
 ib., 37 
 
 i1 
 
 27 ... 
 
 •• )) 
 
 26 
 
 J) 
 
 28 ... 
 
 » 
 
 27 
 
 » 
 
 30-2 
 
 ), 
 
 ib. 
 
 H 
 
 38 ... 
 
 *• » 
 
 33 
 
 M 
 
 41 ... 
 
 It 
 
 35 
 
 )) 
 
 43 ... 
 
 •• )) 
 
 39 
 
 » 
 
 43-50 
 
 »» 
 
 27 
 
 ») 
 
 48 ... 
 
 J) 
 
 48 
 
 )» 
 
 58 ... 
 
 » 
 
 27 
 
 » 
 
 59 ... 
 
 ?! 
 
 8,32 
 
 )) 
 
 '64 ... 
 
 >. „ 
 
 68 
 
 Rules 65 
 „ 99 
 
 113 
 
 116-128 ... 
 129-136 ... 
 131, 138, 182 
 
 134 
 
 138-9 
 144-52 
 
 150 
 
 153-78 
 154-62 
 170 
 
 28 
 5,30 
 I 32 
 . 31 
 
 ib. 
 , 32 
 , 31 
 , 32 
 , 28 
 
 ib. 
 
 , 22,33 
 , 32 
 , 23 
 
INDEX OF CONTENTS. 
 
 Xlll 
 
 Eules 179-82 
 
 . p. 29,41 
 
 „ 181-2 
 
 .. ,. 41 
 
 „ 184-216 . 
 
 ■• „ u 
 
 „ 187-216 . 
 
 .. „ 15 
 
 „ 195 ... 
 
 ib. 
 
 „ 249-50 . 
 
 .. „ 34 
 
 „ 252 ... 
 
 .. „ 25,34 
 
 „ 253 ... 
 
 .. „ 21 
 
 Rules 256 (1) . 
 
 .. p. 6 
 
 „ 257 ... 
 
 .. „ ib. 
 
 „ 261 ... 
 
 .. „ 12,34,42 
 
 „ 262-3 
 
 .. „ 30 
 
 „ 263... • . 
 
 • „21 
 
 „ 275 ... 
 
 ■ „ 27 
 
 „ 279-338 . 
 
 .. „ 16 
 
 Page 
 SEQUESTERS 43 
 
 under what circumstances granted ib. 
 
 practice in stoppage in transitu ib. 
 
 SERVICE OF PETITION 45 
 
 personal, oi'dinarily not to be dispensed with 6 
 
 , in what cases the plaintiff may serve 46 
 
 , substituted ib. 
 
 SETTLEMENT OF ISSUES 27,48 
 
 , the Court may of itself settle the issues 27 
 
 SHIPS, STOPPAGE OP, see Stoppage op Ships. 
 
 SPECIAL CASES for opinion of Higher Court 5 
 
 SPECIFIC PERFORMANCE OF CONTRACTS 72 
 
 damages generally a sufficient remedy for non-performance ... ib. 
 
 STOPPAGE OF SHIPS 44 
 
 , agent to be applied to ib. 
 
 personal remedy only for stores, supplies, &c. ib. 
 
 procedure in cases of collision 12,44 
 
 SUMMARY ORDERS before Suit, greatest precaution necessary in ... 29 
 
 only extreme urgency will justify ib. 
 
 PROCEDURE, certain cases of 26,37 
 
 SUMMONS, great caution required in issuing, into another Consular 
 
 district 6 
 
 , requisites before granting ib. 
 
 SURVEYS by "Experts" 30 
 
 TERMINATING LONG PENDING SUITS, provision for 
 
 TREATY, Regulations under, 
 
 STIPULATIONS, violation of ... ' 
 
 69 
 
 25 
 17 
 
XIV INDEX OF CONTENTS. 
 
 Fagx. 
 
 TBIALS BY JURY can be held only by the Higher Court i 
 
 ,NEW 67 
 
 V 
 
 VERDICT OF CORONER'S JURY 11 
 
 w 
 
 WAR, INSURRECTION, AND REBELLION 17 
 
 WARRANT OF ARREST in criminal cases, when to be resorted to ... 85 
 
 in civil cases, under what circumstances permitted .S2 
 
 WITNESSES, competency of, what are valid objections to the 58 
 
 , cross-examination of... ... ... ... ... ... ... 62 
 
 , depositions of, may be taken when the witness is about to 
 
 leave the place 56 
 
 , examination of, out of jurisdiction 28 
 
 , reasonable notice should be given to. 56 
 
 , expenses of 30 
 
 in what cases to be allowed ... ib. 
 
 "experts" ib. 
 
 for the accused, summonses should be granted for the ... ... 87 
 
 how to be sworn 24 
 
 medical, at inquest, fee to 10 
 
 of different nationalities, attendance of, how to be secured ...56, 87 
 
 , presence of, in what cases not compellable by warrant 86 
 
 WRITS, EXECUTION OF, care to be exercised in the 5 
 
 what security should be taken 6 
 
 PRINTED BY KELLY » WALSH, LIMITED, THE BUND i NANKINS ROAD, SHANGHAI.