which is the subject matter of this action. The land belongs to one or other of two Chinese, who have} il sought to have it registered in the books of the Land Office of the British Consulate-General in this port, each in the name of his agent, i.e., of the plaintiff or the defendant; the Land Officer interpleaded. The principal question in dispute is the right of these two Chinese infer se, but the adjustment of their differences required the intervention of this Court as it alone hea the power to make an order binding on the Land Officer. When the case came on for trial the Judge, notwithstanding the opposition of one of the parties, remitted the question between the two Chinese to the reasonable for the Court to say in any particular case that the rights of the British parties before it depend upon the rights of their principal and that these rights must be determined by the local authority which after all is the more proper and convenient one, before it will entertain such an action as the pre-tent. In these circumstances the costs in question are not part of the costs in this Court but of an inquiry outside it, and the allocatur of the taxing officer stand, the defendants paying the costs of this review.
Chinese authorities. The Mixed Court decided in the favour of the Chinese represented by the defendants and on that finding the Court them judgement with coste. It is not the practice of the Mixed Court to award costs other that the Court expenses. The defendants, however, included in their bill the costs of attending the Mixed Court, the taxing officer disallowed them all and this is an appeal from his decision.
The answer depends on the nature of the order made by the Court referring the matter to the local authority. The power of the Court to refer is contained in Art-ide 97 of the China Order-in-Council 1904. in effect reproducing, section 14 of the Arbitration Act 1989, which confines the vower to refer to cases "where all parti consent, or where the matters in dignute consist wholly or partly of matters of account, or quire for their determination prolonged examination of documents or any scientific or local exami jon." Tt is quite clear to my mind that this Court has not the nower to refer compulsorily enjoyed by the Enelish Courts which in contained in the 13th Section of the Arbitration Act. That section is omitted from that part of the Order-in-Council which deals with the right to refer whilst section 14 is applied, and the jurisdiction of the Court must be exercised "under and according to the provisions of! this Order and not otherwise" hence our power to refer is limited to the cases contained in Article 97. I would also refer to the case of Mellin v.
Monica (3 ©.P.D. 142) interpreting sections 56 and 57 of the Judicature Act 1873. The only words in Article 97 which could possibly cover the present case are the words "local examination" they do not apply to the circumstances, for the inquiry seems to have been ordered in consequence of the nationality of the substantive litigants rather than the locality of the land in dispute.
The position seems to me to be that the rights affected are those Shanghai, Oct. 1.
Text read from the printed page and cleaned; old type leaves the occasional error.