In this action His Honour rendered the following judgement This is an action for an accounting in which plaintiff's counsel presents a motion for a trial before the Commissioner at Shanghai reciting inter alia.
"That certain essential and necessary witnesses of the said plaintiff are about to leave the jurisdiction of this Comaiissioner's Court."
"That the jurisdiction of the above cause is vested and mores only in the Court. wherein the plaintiff's complaint was filed, and that hence the above cause is only triable in the Commissioner's jurisdiction as above shown at Shanghai This implies a misconception of the nature and duties of the Commissioner's office which calls for an exposition thereof.
The office of Commissioner was made a part of the American judicial machinery in China by the very first enactment providing for the exercise of extraterritoriality. other functions but from the first In the beginning that official had his judicial powers were"broad and important.
By the Consular Court Regulations for China, promulgated by Minister Burlingame in 1864, it was provided that advance "of the fees, the consul shall "On application of either party and
compel the attendance of any witness within his jurisdiction before himself, referees, or commissioners.""
It will be seen that this necessarily implies the existence of the office of commissioner. The consul could hardly be required, as he was by this provision, to "compel the attendance of any witness... before.... commissioners" unless those officials were recognized by law; and since no other mode of appointment was provided it would seen to follow that the consul himself could appoint them.
Moreover the office of commissioner is analogous to those of masters, referees and arbitrators and "The power of a court of justice, with the consent of the parties, to appoint arbitrators and refer a case pending before it is incident to all judicial administration, where the Tight exists to ascertain the facts as well as to pronounce the law. Convention tacit legem."
The Consuls, again, exercised equity jurisdiction and in equity a cause may be referred even without the consent of the parties. And where "there is no law providing how their duties shall be performed "Commissioners" so far as relates to their administrative action Were intended to be subject to the orders and directions of the court appointing them."
The Court Regulations above <quoted from were confirmed and
Text read from the printed page and cleaned; old type leaves the occasional error.