Page images

limited to pro

however, the trustee would have the right to compel him to hand over the proceeds for the benefit of the estate.

In the case of native or foreign creditors to the estate the submission to the jurisdiction would be by proving their claims; in which case they would be put in the same position as British creditors: for example, with regard to any securities held by them.

Next, as to the property of the bankrupt which falls within the Bankrupt's estate jurisdiction of the Consular Court, for distribution among the

perty in China. creditors of the estate. By art. 5 (2) of the Order, the "extent of jurisdiction" of the Courts generally includes “the property and all personal and proprietary rights and liabilities within the said limits of British subjects, whether such subjects are within the said limits or not". This clause must also govern the bankruptcy jurisdiction: and therefore the divisible assets are limited to the bankrupt's property in China. This must exclude altogether the extra-territorial operation of the definition of 'property” in s. 168 of the Bankruptcy Act, 1883, by which all English definiproperty of the bankrupt “whether real or personal, and whether !ion of property"

inapplicable. situate in England or elsewhere”, vests in the trustee, in virtue of s. 20 (1). The general definition of the Order precludes the possibility of applying this to all property of the bankrupt "whether situate in China or elsewhere".

Section 118 of the English Act extends, without any adaptation, to the Consular Courts. It enacts that the Bankruptcy Courts in the United Kingdom, "and every British Court elsewhere having jurisdiction in bankruptcy", and the officers of those Courts respectively, are to be auxiliary to one another, acting in aid by mutually enforcing orders.

It seems abundantly clear that if Messrs. A. B. & Co. were Consular Court made bankrupt in Hong Kong, their property in Shanghai could auxiliary to

English Court. be recovered by means of a request to the Consular Court there; or, to take a wider case still, that if Messrs. A. B. & Co. traded also in England and were made bankrupt there, their property both in Hong Kong and Shanghai could be recovered for the benefit of the estate.

The effect of s. 118 is to make the Bankruptcy Courts in the dominions auxiliary to the Consular Courts in their bankruptcy jurisdiction. It would seem, however, that the limitation of this jurisdiction to property within the limits of the Order, referred

Cailender v. Col. Sa. of Lagos, 1891, 1.C. 460.

at p. 465.

to in the preceding paragraph, renders this auxiliary jurisdiction of the British Courts inoperative.

The decision of the Judicial Committee in Callender Sykes & Co. v. Colonial Secretary of Lagos (known as the Lagos case) is often referred to in connexion with s. 118. The decision depended on the application of the English Bankruptcy Act of 1869 to a colony which had no Bankruptcy Court, and it is doubtful whether the question actually decided is likely to recur. It is, however, important to note one of the principles enunciated in the judgment. The section only relates to British Courts which have bankruptcy jurisdiction; otherwise they cannot act in aid of other British Bankruptcy Courts. This principle would apply to a Consular Court which has no bankruptcy jurisdiction.

Warrants of the English Bankruptcy Court cannot, however, be executed by request by the Consular Courts in China, as the provisions of s. 119, by which such warrants are executed out of England, are limited to the dominions.

English warrants nol executable.

The following special provisions of the Bankruptcy Act, 1883,

also apply to the Consular Court:Small bank- under s. 121, in respect of "small bankruptcies”, which proruptcies.

vides that when a petition is presented by or against a debtor, if the Court is satisfied that the debtor's property is not likely to exceed £300, it may make an order that the estate be administered in a summary manner. The section indicates the modifications which are to be introduced into

the proceedings. Small admini:

under s. 122, which gives power to the County Court Judge tration orders.

to make an administration order where a judgment has been obtained, and the debtor is unable to pay the amount forthwith, and alleges that his whole indebtedness amounts to not more than £50, inclusive of the judgment debt. The order may be coupled with an order for the payment of his debts by instalments or otherwise, and either in full or not as may appear practicable, and subject to conditions sufficient to support a bankruptcy petition against the

as to future earnings as the Court thinks just. Estates of de- under s. 125, and s. 21 of the Act of 1890, which deal with ceased insolvents. the administration in bankruptcy of the estate of a person

dying insolvent. The petition may be presented by any creditor of the deceased debtor whose debt would have been

debtor had he been alive. The jurisdiction clause s. 125 (10) allows the administration order to be made by the Court within the jurisdiction of which the debtor resided or carried on business for the greater part of the six months immediately prior to his decease. It seems probable that this, like the provisions of s. 6 (1) (d), is supplemented by the general rule as to the jurisdiction of the Consular cf. p. 207. Court given in art. 99 of the Order.

By rule 274 of the China Rules of Court, the powers of the Court to exercise Board of Trade, or of the Bankruptcy Court on the application of Trade.

powers of Board or representation of the Board of Trade, are to be exercised by the Consular Court itself. This rule supplies all the necessary machinery for working the bankruptcy jurisdiction, but it leaves in some doubt the question how far the exercise the administrative side of that jurisdiction by the Consular Court is subject to the control of the Board of Trade.

Bankruptcy is specially dealt with in some of the treaties.

In Muscat it is provided, by art. vii, that if a British subject Muscat Treaty. becomes bankrupt the Consul or resident agent is to take possession of all his property, and “give it up to his creditors to be divided among them. This having been done, the bankrupt shall be entitled to a full discharge from his creditors, and he shall not at any time afterwards be required to make up his deficiency, nor shall any property he may afterwards acquire be considered liable for that purpose”. This somewhat priinitive provision, made in 1839, is supplemented by a further clause intended to make it still more effective in favour of the local creditors. The Consul is to “use his endeavours to obtain for the benefit of the creditors any property of the bankrupt in another country, and to ascertain that everything possessed by the bankrupt at the time when he became insolvent has been given up without reserve”.

The Muscat Order in Council of 1867, does not deal with the question; whereupon a variation of the question, discussed in Section III, as to the result of a difference between the Order in of p. 29. Council and the treaty, arises: for here the Order is silent, and it is by no mcans clear that a Court can act on a clause in a treaty in such circumstances. The case contemplated in s. 12


of p. 60.

Zanzibar Treaty.

Turkish Capitulations.

cf. p. 206 note.

of the Principal Act does not arise, for the variance there dealt with is an express variance; and an omission cannot be "null and void".

In the Zanzibar Treaty of 1886, 'the Consul is directed by art. xviii to "take possession of, recover, and realise all available property and assets" of a British subject who is adjudicated bankrupt, which is to be dealt with and distributed according to British bankruptcy law.

It would appear from the Zanzibar Order in Council, 1897, though the point is not very clear, that the Indian law of bankruptcy is applied in this country.

In the Turkish Capitulations, art. viii is to the effect that if an Englishman absconds or becomes bankrupt, "either for his own debt or as surety for another", the debt is to be demanded from the real debtor only. The bankruptcy jurisdiction of the Consular Courts in Turkey is based on the same principle as in China.

Law of domicil in oriental countries.


Domicil, Marriage, and Divorce
in Oriental Countries.

I PASS now from the expressed or implied consequences of the
treaty grant to those which are independent of it, resulting from
the mere fact of residence in oriental countries, and with which
the treaty has little or no concern. The most important of
these questions arise in connexion with domicil, marriage and


The question of domicil, with all its attendant results, inevitably attracts immediate attention. It is one of the few quesre Tootal's Trust, tions which has been the subject of express decision. "Tootal's 23 Ch. D. 532. Trusts" is a household word among the communities which are affected by the principle it established, that no domicil can be acquired by a British subject in an oriental country. Although

the decision was quoted with approval by the Judicial Committee in Abd-ul-Messih v. Farra, I think, with great respect, that Abd-ul-Messih v.

Farra, L.R. the judgment contains certain misconceptions, or at least leaves 13 A.C. at p. 441. room for a further examination into the question. In the case itself these misconceptions and the unexhaustive nature of the argument were of little moment. It involved only the least of the consequences of the doctrine--the payment of tribute to The question was Cæsar. And it was strictly a case of aut Cæsari, aut nulli, for reference to pay

argued with the oriental Government does not attempt to tax foreigners, ment of legacy

duty. or foreign estates as they pass from hand to hand. The English law exacts legacy duty from the personal estate of a testator or intestate domiciled in England, and Mr. Tootal's English domicil 23 Ch. D. at of origin was held still to exist in spite of his clear animus P. 541. manendi in the Treaty Port of Shanghai. The application of the remedy was easy since the fund was in Court, and the officers of the Court were bound to see that the legacy duty, if payable, was paid before the fund was parted with. But even supposing that the fund had not been so conveniently within the powers of the Court, it would, under Order XI, rule d, have had jurisdiction to deal with the matter. But there might be many circumstances which would induce the Court to decline to deal with it, and the question arises whether, alternatively or concurrently, the Consular Court, under the general jurisdiction conferred on it, is not also bound in such a case to see that the legacy duty, if payable, is paid, on so much of the estate as is situate within its jurisdiction. In the case of re-sealing British or colonial probates this is expressly provided by art. 106 (2) of cf. p. 150. the Order. Before dealing with the principles of domicil laid down in this case, there are certain dicta contained in Mr. Justice Dicta of Chitty J.

criticised. Chitty's judgment which, I venture to think, are open to criticism: the following amongst others.

“The exceptions from the jurisdiction of the Court [i.e. the 23 Ch.D. at Consular Court] as a matrimonial Court in regard to dissolution, nullity, or jactitation of marriage are important, and the effect of them is apparently to leave Englishmen subject to the jurisdiction of the Court for matrimonial causes in England in respect of the excepted matters."

“The British community at Shanghai, such as it is, resides on ib. at p. 538. foreign territory; it is not a British Colony, nor even a Crown Colony, although by the statutes above referred to the Crown

p. 536.

« PreviousContinue »