to justify it; for unless disputes arising between British firms carrying on business in the country can be decided by the Consular Courts, they would fail altogether in their intended usefulness. We must therefore turn to the China Order as on previous occasions, in order to see what interpretation has been put in practice on the treaty provision.

"Extent of juris

The "extent of jurisdiction" exercised in China is, by art. 5, diction" defined. defined as follows. It is to be exercised over "British subjects, as herein defined, within the limits of this Order", that is to say, within the dominions of the Emperor of China: and over "the property and all personal or proprietary rights and liabilities within the said limits of British subjects, whether such subjects are within the said limits or not:" and over "British ships with their boats, and the persons and property on board thereof, or belonging thereto, being within the limits of this Order."

The first provision clearly contemplates personal service only, as does also the last. But the second, though it is exceedingly wide and may be of great importance in executing judgments against property in China when delivered, does not remove the difficulty in the way of serving persons who are not actually present within the limits, although they may have places of business or residence therein: for in English practice, save for the procedure known as Foreign Attachment (which, it must be noted, is not incorporated into the Rules), there is no jurisdiction in personam founded on seizure of property.

Rule 99 deals with plaintiffs out of the jurisdiction, and rule 108 (8) with service out of the jurisdiction; but in both cases the jurisdiction referred to is the "particular jurisdiction of the Provincial Court, and not that expressed by the term "Limits of the Order."

service.

Rule 111 sanctions substituted service by order of the Supreme Substituted Court, if "for any reason personal service cannot be conveniently effected," where the person to be served is not within the limits of the Order. This rule appears to be justified so long as the English practice is strictly observed. The practice, stated briefly, is, that absence from the jurisdiction is not a sufficient reason for allowing substituted service, because in such a case an order for service out of the jurisdiction under Order XI must be obtained. If an order for such service is obtained, then, if personal service cannot be conveniently effected, a further order for substituted

Actions by and against firms.

cf. p. 168.

service may be made. This case, on the hypothesis, cannot occur in the Consular Court. Substituted service can, therefore, only be allowed in the case of a defendant who can be normally served with process: that is, if the suggestion made above is correct, a defendant usually resident within the jurisdiction, but who is evading service.

Rule 91 deals with actions by and against firms. It provides that "any two or more persons claiming or being liable as copartners, and carrying on business within China, may sue or be sued in the name of the firms whereof they were partners at the time of the accruing of the cause of action." And by rule 100 (3), where partners are sued in the name of their firm, service may be effected either upon any one or more of the partners, or by delivering the summons to any person at the principle place of business of the partnership, who at the time of service, apparently has the control or management of the partnership business there. But if the partnership has to the knowledge of the plaintiff been dissolved before the commencement of the action, service must be effected upon every person within the jurisdiction sought to be made liable.

It is unnecessary to go deeper into the details of the procedure. There seems to be something missing in the Orders and Rules necessary to make them a satisfactory instrument for carrying out the rights of jurisdiction which have been acquired. For reasons which have already been dealt with, more precision could not be expected in the clause of the treaty; but it is not difficult in this case to arrive at the intention of those who drafted it. If it be said that the present circumstances have far outgrown those existing at the time of the negotiations, it may, I think, be answered legitimately that with the growth of commerce the meaning of the words used should expand in proportion : for it is just such an expansion in such a case that the doctrine of sufferance is intended to legalize. I think it can hardly be denied that in some measure these rules go beyond the strict words of the treaty. But, on the other hand, in this question of civil jurisA larger measure diction precision is woefully lacking in the Orders and Rules, of jurisdiction would be justified. and sufferance would undoubtedly justify greater preciseness being adopted, even though the language of the treaty were not rigidly adhered to. It must, however, be borne in mind that sufferance can only be appealed to justify express provisions of

arises from the

the Orders which appear to go beyond what the treaty warrants, and not to supplement the provisions of the Orders themselves. That the jurisdiction conferred by the treaty was never intended to extend to persons merely present in the country, but to be limited to residents, is, I think, indisputable. On the other The difficulty hand, if civil jurisdiction could by English law be exercised against necessity for persons usually, though not actually resident, without the necessity personal service. for personal service, there can be no doubt that some provision for service out of the jurisdiction of the Consular Court would be justified. In the case of firms, the provision for service on agents or managers of branch establishments is essential, though in this case it should probably be limited to causes of action arising within the jurisdiction of the Court. These points, among others, are left too vaguely in the Rules as they now stand. The more important of the Supreme Consular Courts have probably worked out rules for themselves, and it is to be hoped that they may, ere long, be reduced into a written code. Uncertainty in a matter of such great importance is much to be deplored.

Jurisdiction in Aid.

Court:

The question how far the Consular Courts may be made auxiliary to the Courts of other nationalities established in the oriental country is one of great importance, but it is not dealt Garnishee prowith in the Order in any very exhaustive manner. Art 154 judgment of ceedings in aid of provides that garnishee proceedings in the British Court may be foreign Consular taken in aid of a judgment of a foreign Consular Court in China. The order may be made on the application of any British subject or foreigner (which includes natives), who has obtained a judgment or order for the recovery or payment of money in a foreign Court in China (which does not include a native Court), against a person subject to the jurisdiction of that Court. The application is to be supported by a certificate that the judgment is still unsatisfied, and that a British subject is alleged to be indebted to the judgment debtor and is within the jurisdiction. The condition under which the order may be made is that the foreign subject to reciCourt is authorised to exercise similar powers in the case of a procity. debt due from a person subject to the jurisdiction of that Court

cf. p. 111.

Jurisdiction in aid of Colonial

Courts.

Colonial judg

ments.

to a British subject, against whom a judgment has been obtained in a British Consular Court. It is a little difficult to see why, when a judgment has been given by a foreign Consular Court against a British subject properly before it, as by submission to its jurisdiction, the assistance of the British Court by way of execution should not be given: subject of course to the condition of reciprocity. As we have already seen, art. 153 only authorises the enforcement by the British Court of the undertaking of a British subject suing in a foreign Court to pay any fees or expenses ordered by that Court to be paid. The article extends to suits brought by British subjects in Chinese Courts.

A still more important question arises in connexion with the assistance which the Consular Courts may give to the Courts in adjacent colonies.

By art. 29 of the Order it is provided that a Consular Court in China may cause any summons, order, or judgment issuing from the Supreme Court of Hong Kong in any civil proceeding, and accompanied by a request in writing under the seal of that Court, to be served in China. Presumably, however, the service only will be effected on British subjects. As a matter of practice, however, the British Consuls in their consular, as distinguished from their judicial functions, will, I believe, assist in the service of these documents on natives, by obtaining the help of the native authorities: and possibly, through the intermediary of other Consuls, on foreigners.

The auxiliary jurisdiction of the Court in bankruptcy will be dealt with in the next Section.

Still further and most useful service could be rendered to the Courts of adjacent colonies, if some provision were made for obtaining execution of their judgments against defendants who have absconded, and who have property within the jurisdiction of the Consular Court. But this is trenching on debateable ground, and I can do no more than make this passing allusion to a subject of great importance to the colonial merchants.

XI

The Bankruptcy Furisdiction of the Consular Courts. THE QUESTIONS involved in the bankruptcy jurisdiction of the Consular Courts are so important, and at the same time so intricate, that I have thought it advisable to devote a special Section to their consideration. The sections of the Bankruptcy Act, 1883, to which it will be necessary to refer are set out on p. 140.

The jurisdiction is raised on the very narrow and obscurely China Order, defined foundation of art. 99 of the China Order. This form has art. 99. been adopted in the most recent Orders,* and it must, therefore, have been considered to be the one best suited to bankruptcy under the system of foreign jurisdiction.

Bankruptcy jurisdiction is at all times complex, and the limita-. tions inevitable to its exercise in oriental countries render this

The following are the most recent forms of the article creating bank- Bankruptcy ruptcy jurisdiction in the Orders in Council. It will be seen that the last articles in Orders in Council. two in point of date follow the form used in the China Order.

Morocco, 1889.

78.-(1) The Supreme Court for Gibraltar shall have, for and in Morocco, in relation to the following classes of person, being either resident in Morocco or carrying on business there, namely, British subjects and British-protected persons, and their creditors and debtors, being British subjects or British-protected persons, or Moorish subjects, submitting themselves to the jurisdiction of the Court, or foreigners so submitting, all such jurisdiction in bankruptcy as for the time being the Court of Bankruptcy of Gibraltar or the Supreme Court has in Gibraltar in relation to persons resident or carrying on business there.

Persia, 1889.

68. Each Court shall be a Court of Bankruptcy, and as such shall, as far as circumstances admit, have, for and within its own district, with respect to resident British subjects, and to their debtors and creditors being either resident British subjects or natives or foreigners submitting to the jurisdiction of the Court, all such jurisdiction as for the time being belongs to any judicial authority having for the time being jurisdiction in bankruptcy in England.