the Consular Court in China to be re-sealed in the United Kingdom. By the inclusion of probates granted in any colony to which the Act has been extended by Order in Council under s. 1, the article also satisfies the requirements of legislation passed in any colony with a view to obtaining the benefits of the Act, and therefore entitles consular probates granted in China to be re-sealed in such colony. By art. 107, where a British subject dies in China or elsewhere Custody of prointestate, his property in China is vested in the Judge of the perty of intestate. Supreme Court until administration is granted. The Court within whose jurisdiction any property is situate shall, if the circumstances so require, take possession of it and put it under the seal of the Court until it can be dealt with according to law. of testamentary papers. By art. 111, all testamentary papers or writings of a British Deposit in Court subject dying in China are to be forthwith brought to the Court by any other British subject having them in his possession; or if necessary he may be ordered to do so by the Court. small estates. By art. 112, where the value of the property of a deceased per- Administration of son does not exceed £50, the Court may administer it without any probate or letters of administration or other formal proceeding, paying the surplus to such persons as it thinks proper. C.-PROCEDURE, &c. Consular Court to The general principle is laid down in art. 90, that every civil Proceedings in proceeding in the Consular Court shall be taken by action, and be by action. shall be designated an action. And further, that for the purposes of any statute applicable under the Order to any civil proceeding in the Court, an action shall comprise and be equivalent to a suit, cause, or petition, or to any civil proceeding, howsoever required by the statute to be instituted or carried on. The following Acts are adapted by arts. 125 and 126:— The Evidence by Commission Act, 1885, The British Law Ascertainment Act, 1859, and ss. 7 and II of the Evidence Act, 1851, by art. 168. By art. 127, the Public Authorities Protection Act, 1893, is applied as if China were mentioned therein in place of the United 19 & 20 Vict. 22 Vict. c. 20. 22 & 23 Vict.c.63. ct. p. 63. 44&45 Vict. c. 41. Deposit of powers of attorney. Registration of mortgages. Kingdom, and as if this Order and Rules under it were therein referred to in addition to any Act of Parliament. This Act has already been considered in connexion with the similar provisions contained in s. 13 of the Foreign Jurisdiction Act. By art. 163, s. 48 of the Conveyancing and Law of Property Act, 1881, which relates to the deposit of instruments creating powers of attorney in the Central Office of the Supreme Court in England or Ireland, is extended with these modifications: the Office of the Supreme Court is substituted for the Central Office, and the Rules of Court under the Order are substituted for General Rules. By this extension, an instrument creating a power of attorney, its execution being verified by affidavit, statutory declaration, or other sufficient evidence, may, with the affidavit or declaration, if any, be deposited in the Office of the Supreme Court. A separate file of instruments so deposited is to be kept, and any person may search the file, and inspect the instruments deposited, and he may have an office copy delivered to him on payment of the fee prescribed by the Rules of Court. Further a copy of an instrument deposited may be presented at the Office and may be stamped and marked as, and so become, an office copy. An office copy of an instrument so deposited shall, without further proof, be sufficient evidence of its contents and of the deposit thereof in the Office of the Supreme Court. The section applies to instruments executed either before or after the commencement of the Act. Rules of Court may be made for the purposes of the section, regulating the practice of the Office, and prescribing the fees to be taken therein, under art. 119. MORTGAGES. By art 129, it is provided that deed or other instruments of mortgage, legal or equitable, of lands or houses in China, executed by a British subject, may be registered at any time after execution at the Consulate of the consular district wherein the property is situate. But if it is not registered within the time prescribed by art. 131, then the debt secured by the mortgage shall not have priority over judgment or simple contract debts contracted before the registration. Registered deeds, &c., are to have, by art. 132, priority among themselves in order of registration. dexes of mort gages. By art. 133, the Minister may with the approval of the Secre- Rules as to intary of State, make rules with regard to the making and keeping of indexes of mortgages, and searches therein, and for other matters connected therewith: and also with respect to unregistering any deed, &c., or for registering any release or satisfaction thereof. BILLS OF SALE. By arts. 134 to 150, certain provisions are made relating to bills of sale executed by British subjects, and intended to affect chattels in China. Every bill of sale must conform with the following rules: valid bill of sale. (a) it must state truly the name, description and address of the Conditions of grantor, and (b) the consideration: (c) it must have annexed thereto or written thereunder an inventory of the chattels comprised in it: (d) any defeasance, condition, or declaration of trust affecting the bill not contained in the body of it must be written on the same paper as the bill: and (e) it must be attested by a credible witness, with his address and description. In the case of failure to conform with these rules the bill is wholly void in China, except in the case of (c), when it is void only as regards the chattels omitted from the inventory. bills of sale. If a bill of sale is not registered within the time prescribed by Registration of art. 138, it is from and after the expiration of that time void in China (i) as against trustees or assignees of the estate of the grantor, in or under bankruptcy, liquidation, or assignment for benefit of creditors: and (ii) as against all sheriffs and others seizing chattels under process of Court, and any person on whose behalf the seizure is made: but only (iii) as regards the property in, or right to, the possession of such chattels comprised in the bill as, at or after the filling of the petition for bankruptcy or liquidation, or the execution of the assignment, or the seizure, are in the grantor's possession or apparent possession. Bills of sale affecting the same chattels have priority according to their order of registration. Chattels comprised in a bill of sale Renewal of registration. Indexes of bills of sale. are not in the possession, order or disposition of the grantor withIn the law of bankruptcy. Where there is an unregistered bill of sale, and within the time for registering a subsequent bill is granted affecting the same or some of the same chattels, for the same or part of the same debt, it is absolutely void to that extent, unless the Court is satisfied. that it was granted in good faith to correct some material error in the prior bill, and not for the purpose of unlawfully evading the operation of the Order. Registration must be renewed every 5 years, and on failure to renew the bill is to be deemed unregistered. Transfers and assignments need not be registered. If the failure to register or to renew the registration is accidental or inadvertent, the Court may allow the error to be rectified. The power to make rules as to indexes, &c., of bills of sale, corresponding with those of the Minister in the case of mortgages, is conferred on the Judge of the Supreme Court. General Legislation for Foreign Furisdiction. The application of the law in its different branches and jurisdictions dealt with in the foregoing pages of this Section, is special in the case of each oriental country. Up to the present time this method of legislating for foreign jurisdiction has been invariably adopted, in spite of its very cumbersome results. But General legisla in 1904, the outbreak of hostilities between Russia and Japan, tion in respect of and the necessity for taking the usual steps to proclaim and adopted in 1904. enforce the neutrality of Great Britain, so far as her subjects in different parts of the world were concerned, was made the occasion of a new departure. In the colonies on similar occasions it is usual for the Governors, acting on instructions from home, to issue the necessary proclamations, (practically reproductions of the King's proclamation in the Mother Country, which consists in the main of recitals of certain sections of the Foreign Enlistment 33&34 Vict. c. 90. Act, 1870), enjoining all persons within their respective Governments to obedience thereto. On the occasion of the war in 1904, however, the necessity for similar action on the part of the Government with regard to Orders in British subjects in places subject to foreign jurisdiction, engaged the attention of the Foreign Office; the result was satisfactory in every respect, for Orders in Council were issued which extended The Neutrality the Foreign Enlistment Act to these places permanently, and Council. without special regard being had to the war then being waged. The drafting of these Orders was also made to subserve another purpose of great practical utility-the places where foreign jurisdiction is exercised were scheduled into two main classes: Protec- see the lists torates and Consular Jurisdictions. This was essential in the printed on p. 76. case of the extension of the Foreign Enlistment Act, because of the different categories of persons affected in the two classes, and also because certain sections of the Act were inapplicable to places where consular jurisdiction is exercised. But the schedules stand good for all purposes: and the issue of these two Orders in Council may be looked upon as being the most important step in the process of putting the law into a definite shape which has been taken since foreign jurisdiction was first established. It will be understood then that the Foreign Enlistment Act Extension of extends bodily to all places where the King exercises jurisdic- ment Act, 18 70. Foreign Enlisttion abroad; it is necessary, therefore, only to mark the more important of the alterations and omissions which have been. made. The Orders in Council are— for Protectorates, No. 1653, of 24 Oct., 1904, amended, on account of an omission in the schedule, by No. 1716, of 14 Nov. 1904: for Consular Jurisdictions, No. 1654, of 24 Oct. 1904. It will be convenient and instructive to note the differences between the two Orders in parallel columns. Protectorates. The Order extends to all Protectorates in the schedule, including the adjacent territorial waters. Consular Jurisdictions. The Order extends to all persons and to all property subject to Foreign Jurisdiction Orders in Council. The different articles of the Orders follow the sections of the Act, and deal with the offences of "Illegal Enlistment", "Illegal Shipbuilding and Illegal Expeditions", "Illegal Prize", and "Legal Procedure." |