}
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is a very noticeable tendency on the part of the magistrate to treat a prisoner charged with embezzlement with hardly greater severity than the defendant in a civil suit, to regard the taking of a secret commission as a legitimate means of gaining a livelihood, and the fraudulent imitation of a trade-mark as a sign of business acumen.
No appeal lies from the judgments of the mixed court in criminal cases. This rule was first laid down in a report made by the mixed court magistrate to the taotaj in 1907. Interference on the part of the bigber Chinese authorities with the working of the court has usually an illegitimate object, and tends to destroy the independence of the magistrate. Anything which curtails such interference must therefore be welcome, and the assessors have accordingly found it convenient to adopt the magistrate's ruling on this point. But though there is no appeal, there may be a rehearing, and this is always granted when fresh evidence can be produced, or if there is reasonable ground to suppose that an injustice has been done.
There remains in connection with the criminal jurisdiction of the court the case of crimes committed against foreigners outside, but in the neighbourhood of, the settlement. Such crimes are, for the sake of convenience, tried at the mixed court. The commonest case is that of thefts from steamers in harbour. These prisoners are brought by the river police (a Chinese police force under the control of the commissioner of customs) to the mixed court for trial and sentence, and thence to the Such prisoners, if city magistrate, in whose prison they serve their sentence.
All other male prisoners remanded, remain in the custody of the river police. sentenced by the mixed court are imprisoned in the Shanghai municipal gnol, or, in the case of short sentences, in the police stations. Female convicts remain in the custody of the magistrate in the special prison for women within the precincts of the mixed court. In this connection the following special cases should be mentioned:--- Prostitutes imprisoned for soliciting on the streets are imprisoned in the Sinza Refuge, where they are made to pay 10 cents a day for their keep. Sick beggars are sent to the same institution. Women unwilling to remain in brothels, and seeking the protection of the court, are sent to the Door of Hope, and female slave children who have been ill-treated by their owners are sent to the Slave Girls' Refuge.
Civil Jurisdiction and Procedure.
The civil jurisdiction of the mixed court is twofold. The court has jurisdiction in all cases where a foreigner is plaintiff, whether the defendant reside within or without the settlement, and in all purely Chinese cases where the defendant resides within the settlement. The court sits at 6 o'clock every evening, without any assessor, In fact, it ceases to be for the hearing and determination of purely Chinese civil cases. a mixed court, and, in relapsing into a Chinese court, it relapses at the same time, as it is somewhat disheartening to note, into the old familiar slough of corruption and The procrastination.
The court sits every afternoon at 230 for the hearing of mixed civil cases. following remarks apply only to British cases, but it should be noted that the same procedure has already been adopted by the German authorities and, at the request of the mixed court magistrate, is in course of adoption by the other Powers represented in Shanghai.
When a British subject desires to sue a Chinese, he makes out a petition stating his claim in English and Chinese on a form supplied by the consulate. He files this in triplicate in the office of the British assessor, who keeps one copy and transmits the other two to the mixed court magistrate. The magistrate keeps one copy and causes the other to be served upon the defendant together with a summons ordering him to On the appear in the morning (criminal) court forthwith to answer to the claim. appearance of the defendant in court he either submits to judgment forthwith, or is ordered to find security for his appearance at the trial and to file a petition setting out his defence to the action. If he is unable to find security he must remain in If the custody in the house of detention at the mixed court for civil defendants. defendant has engaged a lawyer, the answer is filed and treated in the same way as the plaintiff's petition. If not, the defendant sends in his petition in Chinese to the magistrate, who forwards it to the assessor for transmission to the plaintiff. It is very difficult, however, to compel Chinese to conform to these rules, and it frequently happens that a case comes on for trial without any defence having ever been filed. If the defendant appears in court on some morning when the British assessor is not on the beuch, there exists a reciprocal arrangement between the British, American and German assessors by which the American or German assessor would order him to
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return on the following Monday, Wednesday, or Friday (the British assessor's days) as the case may be.
When the defendant has duly appeared to the summons, the case is set down on the hearing list, and in due course the magistrate and assessor sit to hear the case. No rules of procedure have ever been laid down for the trial, and common sense is therefore the only guide. As the result, however, of the efforts of many successive assessors the procedure tends more and more to approximate to that of an English court of justice, and this of course is the ideal to be aimed at. On the conclusion of the hearing the magistrate and assessor consult as to the judgment. When an agree- ment has been arrived at, sealed copies of the judgment are sent to the parties and to the assessor.
It has never been
Either party has the right of appeal to the taotai and consul-general sitting as a court of appeal. In this court no fresh evidence can be heard without leave, and the proceedings are confined to hearing arguments on the record. definitely laid down whether any further right of appeal exists, but there can be little doubt that a further appeal would lie to the Minister and the Wai-wa Pu in Peking.
When a plaintiff has obtained a final judgment in his favour, he is often only at the beginning of his troubles, for the very greatest difficulty is experienced in enforcing judgments. If the defendant has property inside the settlement this can be seized and sold under order of the court, and the defendant is liable to be kept in custody at the house of detention at the mixed court until he has satisfied the judgment. But great difficulty is experienced in seizing property of the defendant situated outside the settlement, or in obtaining his rendition if he succeeds in absconding. Moreover no British plaintiff has the heart to keep a defendant in custody indefinitely, so that the number of compromised or unsatisfied judgments is unduly large. On the other hand the court serves a useful purpose as an engine for The large number of cases putting pressure ou debtors who can but will not pay. which are settled out of court is an indication that a considerable proportion of this class of debtors prefers even to pay rather than be dragged into court.
The difficulties which have been indicated above pale to insignificance before the In the year 1901, task of the assessor who endeavours to bandie a bankruptcy case.
a firm named Chang Kee was made bankrupt. Some thousands of taels which were deposited in a foreign bank have remained there ever since, and no creditor can now In more recent cases, though assets be found to take any interest in the matter. have been distributed, it cannot be said that there is any bankruptcy procedure. Each case is a law unto itself. It is often impossible to ascertain the names of the partners or the extent of their interest in the firm, nor can one prevent fraudulent preference, concealment and removal of assets, or the manufacture of bogus liabilities. In one well-known case the Chinese authorities maintained à outrance that a secret agreement with his fellow partners released a partner from his liabilities to the creditors of the firm. The result of all this is that foreign creditors, rather than make an insolvent Chinese firm bankrupt, generally prefer to get what they can by making a private composition, and write off the balance as a bad debt.
To meet the case of landlords seeking to recover rent from Chinese tenants, special procedure was devised in 1907 by Mr. Barton, then British assessor, in order to obviate the delays which would be caused by following the ordinary civil procedure. In either case The landlord may apply either for a summons or a distress warrant.
the application is made on a special form giving the particulars in English and Chinese. In the case of a summons the defendant appears, and the matter is disposed of in the morning court. In the case of a distress warrant, the English half of the application is filed in the assessor's office, and the Chinese half is sent to the mixed court. The distress warrant is immediately made out and handed to a mixed court runner, who takes it for counter-signature to the British and senior consulates, and thence to the police station of the district where the premises are situated. A. representative of the landlord then proceeds with the runner and a police constable and serves the warrant on the tenant. If at the expiration of six hours from service the tenant has not paid the rent due the premises are sealed by pasting diagonally across the door two sealing strips which have been issued to the runner with the warrant. If at the expiration of fourteen days from the date of sealing the tenant has still failed to pay, the landlord may then apply for a further order for the sale by If the tenant pays within the said auction of the tenant's effects and furniture. period of fourteen days, the landlord should, in compliance with the regulations, It was, however, found that
C apply to the court for an order to remove the seals.
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