6
this occasionally inflicted hardship on a tenant who had paid his rent but could not It was therefore arranged that the get back into his house for two or three days. landlord, on being paid his rent, should send his application on the prescribed form to the police station of the district to have the seals removed without further inter- In practice a distress warrant is not issued unless vention on the part of the Court. the rent is at least two months in arrears, but it has been thought wiser not to embody this in a definite rule.
Miscellaneous,
There remain certain miscellaneous matters to be dealt with.
success.
The mixed court has power to issue what are known as court orders in con- These are in form addressed to one of nection with litigation pending in the court. the court runners ordering him to direct a party or a witness to do a specified act, e.g., surrender property to be impounded, comply with a judgment, &c. Orders of this description in the hands of a runner lead to many abuses. The municipal council has long striven for recognition of the principle that such orders should not be executed by runners without the co-operation of the municipal police, but without In order to minimise the evil, assessors should be careful never to word a letter to the mixed court in such a way as to justify the issue of a court order. Thus, if a defendant is to be ordered to do any act he should be summoned before the court, and the order made by the magistrate and assessor direct, without the inter- vention of a runner. There is one form of court order, however, which in practice is found very useful, viz., orders for the production of a defendant by his bail. When a defendant has left the settlement it is generally possible, by means of these orders, to have him brought before the court without any of the vexatious delays often caused by conflicts of jurisdiction, and co-operation by the municipal police would, unfortunately, destroy their utility in this respect.
When a foreigner has no nationality, or is unable to obtain recognition from his Criminal charges are heard by the consul, he must be sued in the mixed court. magistrate sitting with the assessor of the day, and civil actions are heard by the magistrate and the senior consul's assessor.
Inquests on Chinese are held by the city magistrate, who sends his deputies and runners into the settlement for that purpose. The municipal council claim that, owing to the unsatisfactory nature of these inquests, much erime goes undetected, and they have therefore pressed, hitherto without success, for the presence of a foreign assessor at all inquests. The importance of the matter has been somewhat exaggerated, as there is no doubt that the municipal police are quite capable of detecting crime by independent action, and that they are not materially hampered by the proceedings at native inquests.
The municipal police claim and exercise the right of preserving order at the mixed court. This right is not disputed, and has been tacitly recognised in a letter addressed by the taotai to the senior consul dated the 24th May, 1908.
APPENDICES.
The appendices to this report are --
1. Rules for the mixed court at Shanghai, 20th April, 1869.
These are the original rules out of which the whole body of procedure and practice detailed has grown up. As a practical guide they are, of course, of little use. Rule 5, for example, has been repealed by the mere force of custom, and its exact opposite is now the law observed.
2. Regulations governing the relations between the French and international mixed courts.
These regulations are the outcome of an agreement come to in 1902, supplemented by a further agreement in 1909. They need no further elucidation. It should, however, be noted that the French authorities deny the right of any Consequently other than the French assessor to sit in the French mixed court. the French assessor is debarred from sitting in the international mixed court.
3. Forms in use for the recovery of rent* ;-
(1.) Application for summons.
(2.) Application for distress warrant.
* Not reproduced.
(3.) Application for auction order. (4.) Application for removal of seals. (5.) Translation of distress warrant.
4. Form of petition.*
Appendix 1.
Rules for the Mixed Court at Shanghai.
1. An official having the rank of sub-prefect will be deputed to reside within the foreign settlement. He will have a jurisdiction in commercial suits and in civil and He will have an official criminal cases generally within the foreign settlements. residence, and will be furnished with the cangue, the bamboo, and the minor forms of punishment. He will provide food and lodging (for prisoners). He will decide all civil and commercial suits between Chinese resident within the settlements, and also between Chinese and foreign residents, in cases where Chinese are defendants, by Chinese law. He will be authorised to examine Chinese judicially, to detain them in custody, and to punish them by putting them in the cangue, by flogging, and by other minor punishments.
2. Where a foreigner is concerned in a case to be tried, a consul or his deputy shall sit with the sub-prefect at the trial; but where Chinese only are concerned, the sub-prefect shall adjudicate independently-the consuls shall not
interfere.
3. Where a defendant is a native in foreign employ, the sub-prefect will first communicate particulars to the consul (of the nationality concerned), who will be bound to place the parties before the court without attempting to screen or conceal them. A consul or his deputy may attend the hearing, but he shall not interfere if no foreign interest is involved. The servants of non-trading consuls shall not be arrested unless with the sanction of their masters.
4. In cases where Chinese subjects are charged with grave offences punishable by death and the various degrees of banishment, where, by Chinese law, a local officer with an independent seal would send up the case for revision by the provincial judge, who would submit it to the high authorities to be by them referred to His Majesty or the Board of Punishment, it will still be for the district magistrate of Shanghai to take action.
Inquests, when needed, are to be held by the district magistrate of Shanghai-- independently of the sub-prefect.
5. A Chinese criminal escaping to the foreign settlements can be summarily arrested by the sub-prefect without warrant from the district magistrate or aid from the municipal police.
6. Suits between natives and foreigners shall be decided equitably and impartially, and in accordance with treaties. The treaty provision is to be followed in cases where When the foreigner has no consul, the sub-prefect, sitting the foreigner has a consul. with a foreign (consular) assessor, shall try the case, submitting the decision for the consideration of the taotai. Should either party to a case be dissatisfied with the sub-prefect's decision, application for a new trial can be made to the taotai and to the proper consul.
7. Foreigners, who may be charged with any offence, if represented by consul on the spot, shall be dealt with by them as the treaties provide. Unrepresented foreign offenders will be tried and sentenced by the sub-prefect, the finding being submitted for the taotal's approval, who will consult with some treaty Power consul on the subject. Where the offenders are Chinese, the sub-prefect will inflict the proper legal punishment.
8. The necessary staff of translators, linguists, writers, and servants will be engaged by the sub-prefect (as also a foreigner or two for general purposes, by whom also foreign offenders having no consul will be brought to trial or kept in custody when necessary. All expenses are to be drawn from the taotai monthly). Acts of extortion or annoyance on the part of any of the employers shall be severely punished.
9. The sub-prefect shall keep a daily certified record of arrests made and cases
Not reproduced.
53