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Colonial Cases

Chang Chiu Tung v. Louis Spitzel and Co., 1896

[civil procedure]


 

Chang Chiu Tung v. Louis Spitzel and Co.

Supreme Court for China and Japan
Jamieson ACJ, February 1896
Source: North China Herald, 7 February, 1896

LAW REPORTS.

H.B.M.'S SUPREME COURT, (IN CHAMBERS.)

Before George Jamieson, Esq., Acting Chief Justice.

H.E. CHANG CHIH-TUNG v. LOUIS SPITZEL & CO.

   This was a motion, in Chambers, by the defendants that they might be dismissed from the suit, or that the order requiring them to answer the plaintiff's petition be set aside. Mr. H. S. Wilkinson appeared for the defendants in support of the application, and Mr. J. C. Hanson, (Messrs. Dowdall and Hanson) for the plaintiff in opposition thereto.

   Mr. Wilkinson, in addressing his Lordship, said there were two petitions in the case and two motions, practically identical, and he begged to move:-

   That the defendants be dismissed from the suit and all further observance of justice therein.

   Or, in the alternative,

   That the order made ex parte on the 29th day of January, 1896, for the service of the plaintiff's petition upon the defendants for their answer within the eight days there mentioned be set aside, and the petition be taken off the file of the Court, on the ground (among other things) that the plaintiff, being a foreigner, had not, upon institution of the suit, first filed in the Court his consent to the jurisdiction of the Court, and

   That the Court had not, and has not jurisdiction to entertain the suit, the consent of the plaintiff, being a foreigner, not having been first filed in the Court:

   And for a further order,

   That the defendant's costs of, and incidental to, the said petition and to this application be taxed, and be paid to them out of any monies under the control of the Court and applicable to meet the defendants' costs.

   The learned counsel said the application was brought under the Order in Council for China and Japan, 1881, Section 47: 

   Where a foreigner desired to institute or take a suit or proceeding of a civil nature against a British subject, or a British subject desires to institute or take a suit or proceeding of a civil nature against a foreigner, the Supreme Court for China and Japan, and the Court for Japan, and a Provincial Court according to the respective jurisdiction of the Court, may entertain the suit or proceeding and hear and determine it; and, if all parties desire, or the Court directs, a trial with a jury or assessors, then, with a jury or assessors, at a place where such trial might be had if all parties were British subjects, but in all other respects according to the ordinary course of the Court.

   Subsection B had been amended under paragraph 2 of the China and Japan Order in Council of August,1886, and now read:

   (b) Provided that the foreigner (i) first files in the Court his consent to the jurisdiction of the Court; and (ii) also, If required by the Court, obtains and files a certificate in writing from a competent authority of his own Government to the effect that no objection is made by the Government to the foreigner submitting in the particular cause or matter to the jurisdiction of the Court; and (iii) also, if required by the Court, gives security to the satisfaction of the Court, to such reasonable amount as the Court directs, by deposit of money or otherwise, to pay fees, costs, damages, and expenses, and to abide by and perform the decision to be given by the Court or on appeal.

   He (the learned counsel) understood the third part of that sub-section had been complied with and money deposited, but the point of the application was that the foreigner had not complied with the first part of the sub-section. He had not filed in the Court his consent to the jurisdiction.

   That the plaintiff was a foreigner, under the Order in Council, appeared clear. The petition described him as "the Viceroy or Governor-General of the two provinces of Kiangsu and Kiangsi," but it should be observed that there was no allegation at all that he brought the action in his governmental capacity,  but simply that he was the Governor-General of two provinces, and as such a subject of the Emperor of China. In the Order in Council of 1881 it was clearly stated that "'foreigner' means a subject of the Emperor of China or the Mikado of Japan, or a subject or citizen  of any other state in amity with her  Majesty." That brought the plaintiff within the provision of that Order in Council. As to the propriety of the order now asked for and the mode in which the application was made he (learned counsel) would refer his Lordship to the Rules of the Supreme Court for China and Japan, section 43:

Where the defendant conceives that he has a good legal or equitable defence to the petition, so that even if the allegation of fact in the petition were admitted or clearly established, yet the plaintiff would not be entitled to any decree against him (the defendant), he may raise this defence by motion that the petition be dismissed without any answer being required from him.

   If such an order were made, according to the ruling in the case of  The Vivar (Aspinall's Maritime Law Cases, vol.  3, new series, p. 308), it would dispose of the case as it stood at present, but it would not prevent another suit being brought, if properly brought. The order made in that case was one dismissing the defendant from the suit "and all further observance of justice therein." In that case it was a question whether the rule with regard to the service of a writ out of the jurisdiction had been complied with. The proper time to take objection to the jurisdiction was on the earliest possible occasion, and before taking any steps by which the jurisdiction might be admitted. He could not of course anticipate his learned friend (Mr. Hanson), but he could point out that the rule although it was a comparatively new one in our Rules, had been acted upon elsewhere, and was a rule in the Levant as far back as 1863.

   Referring to the Ottoman Orders in Council of 1863 and 1873, counsel pointed out that it was laid down that the word 'foreigner' therein used means a subject of the Porte, and he had to get the consent of a competent authority to submit to the jurisdiction of the Court and to give security.  In dealing with the Order relating to China there was no doubt that the word 'foreigner' meant a subject of the Emperor of China, and although it was not necessary to refer to the reasons which called for the change which had been made, while the consent of the competent authority had not been dispensed with altogether, it was no longer made a condition sine qua non. It was not required unless it was ordered by the Court, but the foreigner must still file his consent to the jurisdiction in the Court. That remained a condition sine qua non.

   After quoting from the decision of the Privy Council in the case of  the Laconia, the learned counsel pointed out that the judgment in the Chishima-Ravenna case negatived the suggestion  that the Court could have any jurisdiction if it were not given to it by the Order in Council. However muich muight be the rights of her Majesty by treaty that did not give that Court jurisdiction. Her Majesty was of course to decide the character and extent of the jurisdiction; she could limit it, but not extend it beyond the bounds of the treaty. The question was not whether her Majesty could have given authority to the Court to try the case without those stipulations. Up to a certain time it pleased her Majesty that her Court should exercise jurisdiction without making the filing of consent a condition of exercising jurisdiction - in other word, her Majesty afforded unconditional jurisdiction in such cases. She subsequently limited that jurisdiction by making it a condition of the exercise of jurisdiction in her Courts by requiring certain steps to be taken. If those steps were not taken then the Court had no jurisdiction.  If such a provision were not in the Order, something else would be required in the case of Chinese subjects. That was to say, there should be a guarantee that the plaintiff had given proper authority to institute the suit, so that the suit might not be repudiated. He mentioned this because his instructions were that the present case was not brought with sufficient authority. He need not say that he did not suggest for a moment that his learned friend did not feel himself authorised to file the petition, but his (Mr. Wilkinson's) instructions were that the present proceedings were brought without authority.

   His Lordship - Without the authority of the Viceroy Chang Chih-tung?

   Mr. Wilkinson - Yes, those are my instructions. I merely bring that forward because I wish to point out that in moving as I now do I am acting upon instructions which lead me to think  that this is a proper step, and that, as a matter of fact, it would be quite open to his Excellency to deny that he has given authority for the institution of this suit. I may say those are my instructions and I have no reason to doubt them. Further it shows, at any rate, where such things can be said, that if this rule were not made some other rule would have to be made. The petition is not signed by his Excellency.

   His Lordship - It is signed by a legal recognised practitioner before this Court, and we do not ask for more. I have known submissions to be signed by a solicitor.

   Mr. Wilkinson - If submissions have been signed by a solicitor I submit it is altogether wrong unless he signs under a power of attorney. There are certain things in a case of this sort which cannot be done by a solicitor.

   Mr. Hanson, in addressing his Lordship on behalf of the plaintiff, was about to refer to the report prepared for the use of the Japanese Government of the proceedings before the Privy Council in the Chishima-Ravena Case, when Mr. Wilkinson objected on the ground that it would be contrary to precedent to quote from such a report, which was not a duly authorised law report. There were obiter dicta of the Judges in it which would not appear in the authorised report. After some discussion,

   His Lordship said the report had evidently been taken down by a skilled shorthand writer and he should allow it to be referred to in the same way as a newspaper report. He had known Mr. Wilkinson quote from newspaper reports. He did not regard the dicta as binding in the same way as a judgment but it seemed to him he could not shut his eyes to the fact that they had been said.

   Mr. Wilkinson said that as a rule only authorised reports were allowed to be referred to, but at the same time he must admit that in a very recent case the Judges referred to a report in the Times newspaper and said it was very valuable.

   Mr. Hanson, resuming, said he should just like to quote from the report as follows:-

The Lord Chancellor - I cannot see how any lawyer who was engaged vin drawing the Order could ever have suggested, if he knew the elements of his business, that a person filing a 

consent to the jurisdiction  of the Court gave it any more jurisdiction  than if he had brought his suit in the Court.

Sir Richard Webster - That is not quite the way in which I think consent should be required for the purpose.

   The Lord Chancellor - This is a consent to the jurisdiction of the Court in the suit, not consent to having anything set up against him.

   Lord Shand - The act of bringing a suit is always a consent.

   Lord Watson - A man consents to enter a room because he has a right to enter a room, but confining him  in that room after he enters that room is another matter.

   Sir Richard Webster - I do not think analogies of that kind carry it further. I am not concerned to defend the eminent gentleman who drew this Order.

   The Lord Chancellor -  I am defending him by suggesting this is a construction which would be absurd.

   Lord Watson - Showing indications of legal insanity.

   The Lord Chancellor - Will you tell me any difference it would make to the jurisdiction of the Court as regards a plaintiff because he brought an action in the Court, and in addition to bringing an action he brought in a document called a consent to the jurisdiction,   .  .  .   Can you have a better consent to the jurisdiction of the Court in any natter than by bringing your suit in the Court?

   Continuing, the learned advocate said although he admitted the word "foreigner"  was defined in the Order as including Chinese in China and Japanese in Japan, yet to give it that effect in all cases would be inconsistent with the treaty.  Having briefly sketched the origin of her Majesty's jurisdiction in China from the Treaty of Tientsin, he said that the effect of the operation of the most favoured nation clause in other treaties had been to make practically one Court to which a Chinese subject resorted in case of an action against a British subject. He had no election at all; he must go to it.

   Arguing that the Order in Council and treaty were inconsistent, he contended that the Chinaman did not resort to the Court under the Order in Council, but under treaty, and that if the Order in Council and Treaty were inconsistent the latter must prevail. The Lord Chancellor in the Chishima-Ravenna case remarked:-

"I can understand a man submitting to the jurisdiction against him and jurisdiction being exercised, who can refuse to have his case heard in that Court or can agree to have it heard in that Court. That is submitting to the jurisdiction; but a man who invoked the only jurisdiction which can have as his remedy, can hardly be said to submit to the jurisdiction.  .  .  .  It seems to be rather grotesque  .  .  .   to say that where a foreigner desires to institute a suit against a British subject the Supreme Court may entertain the suit, provided that the foreigner first files in the Court his consent to the jurisdiction of the Court. Now to require a man who is bound to go into that Court, and who has a right to go into that Court, to file first a consent to the jurisdiction  of that Court seems to me about as grotesque a proceeding as you can imagine. It is perfectly intelligible in the other case, where a foreigner is being sued, of course. "

In the present suit any consent that was necessary had been given by filing the petition.

   His Lordship enquired whether the plaintiff was suing as the head of a provincial government.

   Mr. Hanson assented.

   Mr. Wilkinson - I deny altogether that the Viceroy is suing at all. These are my instructions and I submit it is entirely a little by-play.

   His Lordship - I would like to have it understood whether he is suing as the head of a provincial government.

   Mr. Hanson - Practically he does so. I understand he is suing as head of a provincial government.

   Mr. Wilkinson - Is he suing on behalf of the Chinese government? That is the only government we know. We do not know any provincial government.

   His Lordship - Oh, yes we do.

   Mr. Wilkinson - I submit we only know the Chinese Imperial Government, and we know cases where a distinction has been drawn between the Viceroy and the Chinese Minister as to the right to represent the  Government.

   Mr. Hanson, proceeding, after quoting from Piggott's Extraterritoriality, and an article in the Law Times of 13th July, 1895, pointed out that the subject of the action was clearly a government one, viz. - guns for the arming of troops. If his Lordship should be of opinion that there had been any irregularity in not filing consent to the jurisdiction it was in his discretion to make an order staying proceedings until consent be filed without dismissing the suit. The filing of consent was a mere meaningless formality. As to Mr. Wilkinson's remark that the suit had been brought without proper authority he would point out that any one doing that would be liable for contempt of Court.

   Mr. Wilkinson - I disclaimed, and do disclaim, any suggestion that you are acting without believing that you are fully authorised.

   Mr. Hanson, resuming, said the allegation in the petition was that arms were sold by the defendants which were worthless and dangerous to fire.

   Mr. Wilkinson protested against the merits of the case being gone into.

   Mr. Hanson said he was only going on to remark that he should have thought that any ordinary firm against whom such an allegation was made would have wished to have had it proved or disproved as soon as possible, and  not endeavour to take advantage of the non-observance of a mere formality. For the reasons he had adduced to his Lordship he asked that the application should be dismissed, with costs.

   Mr. Wilkinson, in reply, said if his motion were granted it would only affect that particular suit, and a new petition could be filed the next day. Without going into the merits of the case, he was instructed to say there was a very good defence. Mr. Hanson had spoken of the cause of the motion as being a mere irregularity which could be remedied, but he (Mr. Wilkinson) would point out that the irregularity went to the jurisdiction, and the want of it was incurable. The Court had no jurisdiction to entertain the suit, without a submission to the jurisdiction being filed at the same time. A great deal had been made of the dicta of the Lord Chancellor, but it had to be remembered that they were only dicta and had been over-ruled in the judgment of the Privy Council itself, which said:-

"Their Lordships do not find it necessary to express any opinion upon the arguments addressed to them in relation to the construction of the Order in Council."

That was the authoritative judgment of the Privy Council which left the Orders in Council exactly where they were, and there was no authority for his Lordship to rest a decision on the Lord Chancellor's dicta. Probably in any authorised report those dicta would not have appeared at all. Even if his Lordship was of opinion that they were correct, the practice of that Court had been so continuous that he was bound not to give effect to them until there was a decision of the Privy Council on the subject.  The practice of the Court had been so long affirmed by this Court that it could not be changed until there was a decision of the Privy Council that the construction put by this Court on the Orders in Council was a wrong one.

   His Lordship - Cannot it be changed?

   Mr. Wilkinson submitted it could not; it had gone on for several years under the sanction of the Court and it could not be changed without a change in the Orders, or decision of the Privy Council saying it ought to be changed. It was not open to his Lordship to put a different construction upon the Order in Council than that which had been put upon it by the judges of the court before. It was quite correct, as the diplomatic correspondence regarding the Chishina-Ravenna case clearly showed, "that the provision with regard to submission to the jurisdiction, and the certificate of the consent of the authorities of the plaintiff" did not apply "to suits instituted by a government in its representative capacity," but the recent action was not brought in the name of the government. It is a quasi-Independent government.

   His Lordship - But it is brought in the name of what is, in effect, a branch of the government. It is a quasi-independent government.

   Mr. Wilkinson - I submit not, my Lord, and I submit if your Lordship were to rule it was a quasi-independent government, the Chinese government would most indignantly repudiate it.

   His Lordship - It is a provincial government which carries on its own business for such purposes as this.

   Mr. Wilkinson - I submit we do not know any government but the Chinese government. If the Chinese government will communicate to your Lordship that the provincial government is independent, or quasi-independent, and we are prepared to acknowledge it, then we can treat it as quasi-independent. There is no safety, there is no property, in treating with any government but the government of China, and the question is whether a provincial governor is or is not entitled in any particular case to sue in the name of the government.  If he is not, then he sues as a subject of the Emperor and comes under the Order in Council.

   Continuing, the learned counsel said if it had been distinctly stated that the suit was brought by the Chinese government, in consequence of the diplomatic correspondence in the Chishima-Ravena case he should not have asked his Lordship to dismiss it. Another point was, that if the case had been brought in the name of the Chinese government, it would only be right and proper for an official intimation to be sent to that effect, which would prevent the slightest mistake. But he had asked the Consul-General before coming into the room whether he had received any such official intimation from the Chinese government, and had been informed that no official communication had been received. If such a suit were instituted by the Chinese   government it should be clearly understood, and not left to implication.  

   It was not even clear that the arms were for the purposes of arming troops, and any stipulation might be made with regard to the object for which they were brought. There was nothing, he repeated, to show that the suit was more than one between private individuals.

   His Lordship pointed out that the plaintiff was described as the Viceroy or Governor-General of the two provinces of Kiangsu and Kiangsi, and the Court sat within the jurisdiction of Kiangsu.

   Mr. Wilkinson said there was no allegation he was suing in that capacity; it was the ordinary and common form to describe what the plaintiff was.

   His Lordship said that in view of the almost immediate return of Sir Nicholas Hannen, the Chief Justice, he should like to have the opportunity of consulting with him because the decision must necessarily settle an important point. The question was whether they were to follow the old practice until the Order in Council was changed, or whether, on the other hand, they might, without waiting for any change in the Order in Council, modify the practice.

  Mr. Wilkinson strongly urged that if Sir Nicholas Hannen were consulted there should be an opportunity of arguing the question before him.

   His Lordship - I feel very strongly the points Mr. Wilkinson has put.  At the same time I feel equally strongly that it has become a mere meaningless formality. I fail now to see what possible object can be gained by putting in a paper that the plaintiff submits to the jurisdiction. Still, I may be obliged to come to the conclusion that until it pleases her Majesty to alter the Order in Council, we really have no option.

   Mr. Hanson - Taking the two together, the treat and the Order in Council.

   His Lordship - Of course we must endeavour to read the treaty and the Order in Council together. But one can concieve a case where the Orders in Council do not follow the treaty, but as they have to be read together, it is our duty to correct our own practices, if it can be done, on the point in which we were in error; and if it appears we can read the Order in Council so as to harmonise with what we understand the treaty to be, we are bound to do so.

   After some further discussion as to the adjournment, it was decided that the motion should be heard before His Lordship and Sir Nicholas Hannen on Monday, the 17th inst.

Hannen CJ 26 February 1896
Source: North China Herald, 28 February,1896


 

LAW REPORTS.

H.B.M.'S SUPREME COURT. (IN CHAMBERS.)

Shanghai, 26th February

Before Sir N. J. Hannen, Chief Justice.

H.E. CHANG CHIU-TUNG v. LOUIS SPITZEL & CO.

   His Lordship this morning gave his decision upon the motion, in Chambers, in this case, arising out of an application by the defendants that they might be dismissed from the suit, or that the order requiring them to answer the plaintiff's petition be set aside on the ground that the plaintiff had not filed a written consent to the Court's jurisdiction as required by the Order in Council. It was originally heard on the 6th inst. before Mr. George Jamieson, and then adjourned in view of the impending arrival of Sir Nicholas Hannan, before whom the question was argued on the 28th inst. Mr. H. S. Wilkinson appeared for the defendant in support of the application, and Mr. J. C. Hanson (Messrs. Dowdall and Hanson) for the plaintiff in opposition thereto.

   His Lordship - This motion related to a matter of practice, and I think is of considerable importance, not only for itself but with regard to trhe principle which I think ought to underlay such questions as this.

   First of all, the practice, so far as I can find, has been universal, that this consent to the jurisdiction should be filed. It has been always done, and in a case, which in many respects, so far as the importance of the plaintiff is concerned, resembles the present - the case of Liu Ming-chian, Governor of Formosa v. the Nepaul - consent to the jurisdiction was filed.  I do not think the practice of the Court, if it simply is a practice and has not been confirmed by judgment of the Court, could be held to bind a plaintiff who came in and said -

   "You have no right to institute this practice, and however long it has been going on it is wrong and ought now to be altered."

But the case is different directly there has been an absolute judicial decision on the point, and therefore I have to consider whether there has been one.  

   There has been a judicial decision on this point.

The case of Ng Chi-kiu and others v. Hiram Shaw Wilkinson and the China Land and Investment Co. Ltd., was heard and determined on the 25th of November,1891. That case is on all fours with the present, and I find that in that case the decision of the Court was that it was necessary that a submission to the jurisdiction should be filed. Now, I think that concludes me, and I do not think it would be right, either towards the public or the practitioners of the Court, that a change in the practice should be made when an absolute decision has been come to and has been publicly given that a particular thing should be done, unless indeed there is some decision of a higher Court which over-rules that, or by necessary implication over-rules that.

   The question therefore is - Has that practice been over-ruled, or is it over-ruled by necessary implication? The case of the Chishima-Ravenna has been quoted, but on examination of that case it will appear that it does not either directly or by necessary implication over-rule that. The ratio decidendi undoubtedly of that case was that the Court assumed a jurisdiction which by the Treaty it could not have, whether the Order in Council gave it that jurisdiction or not.

   In the resent case it is said, and everybody admits, that when the plaintiff comes into this Court he does by that submit himself to the jurisdiction of the Court. Now what is it our Rule says? Our Rule says that a consent in writing shall be filed. It does not seem to me that can possibly be against the Treaty, and it is in accordance with the Order in Council as it has been interpreted. Whether that interpretation was right or wrong, I do not consider I have a right now to enter into. It is for a higher Court to decide that, if it is to be decided.

   There does not appear to me to be anything  very unreasonable in asking a plaintiff  to put in writing what in effect he does, and therefore I think we must maintain the Rule which has prevailed in this Court  and which was established by the decision in the case of Ng Chi-kiu v. Hiram Shaw Wilkinson and others, and therefore there must be a consent to the jurisdiction filed. 

   Now comes the question of how that is to be done. What is asked for in this motion is that the defendants be dismissed  from the suit and all further observance of justice therein, or in the alternative that the order made ex parte on the 29th of January, 1896, for the service of the plaintiff's petition upon the defendants for their answer within the eight days therein mentioned, be set aside, and the petition be taken off the file of the Court, on the ground (among other things) that the plaintiff being a foreigner , had not, upon institution of the suit, first filed in the Court his consent to the jurisdiction of the Court. Now let us see what is the exact motion in the former case, upon the authority of which I am going. The motion in that case was:-

   "That the petition and all subsequent proceedings be set aside for irregularity; that the costs be taxed, and be paid by the defendants to the said plaintiffs upon the ground that the plaintiffs are foreigners and did not, &c."

The order was that the proceedings be set aside as asked. Therefore the order was in the terms of that motion.  I cannot find it was actually drawn up and I think there was a little laxity in the drawing or in the way in which it was copied. I do not think the exact intention in that suit  could have been that the petition in that suit be set aside for the irregularity, for it cannot have been so. I think this is a matter pf procedure and not a matter which goes to the jurisdiction and therefore I do not think it would be right that the whole thing should come to an end and should begin again de novo.

   I think the second portion of the motion is the better one. I think that should be granted:

   "That the order made ex parte on the 29th day of January, 1896, for the service of the plaintiff's petition upon the defendants for their answer within the eight days there mentioned be set aside," stop there; "and that the petition be taken off  the file," I do  not think necessary. I think therefore that that is the order which ought to be made - that the order for service should be set aside.

   Now with regard to costs. I notice in the other motion $50 was settled, and therefore I think it will save trouble if I say costs should be in that way. The order will be that the order for service to be set aside, and that the plaintiff pay the defendants $50 assessed costs.

   Mr. Hanson asked whether in the case his Lordship had quoted the petition was taken off the file.

   His Lordship said he could not find that an order had been drawn up, but he was sure the matter was not discussed as to what ought to be done.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School