and decided by the public officers of the two nations, it is agreed between the Governments of the United States and China that such cases shall be tried by the proper official of the nationality of the defendant. The properly authorized official of the plaintiff's nationality shall be freely permitted to attend the trial and shall be treated with the courtesy due to his position. He shall be granted all proper facilities for watching the proceedings in the interests of justice. If he also desires, he shall have the right to present, to examine, and to cross-examine witnesses. If he is dissatisfied with the proceedings, he shall be permitted to protest against them in detail. The law administered will be the law of the nationality of the officer trying the case.'

[To be continued.]

G. W. KEETON.

502

AT

FRENCH AND ENGLISH CIVIL PROCEDURE:

A PARALLEL.

II.

T the trial all that usually remains to be done is for counsel to développer les conclusions (address the tribunal) on behalf of their clients. If the Ministère Public has anything to say its representative speaks after counsel; the parties cannot openly reply to him, but may hand in written notes.

French law compels judges to délibérer before giving judgment, but they may consult each other without leaving the room and give their judgment sur le siège; or they may retire in the chambre du conseil to consider their decision. The usual way, however, is to ask counsel to hand in their respective files of papers, which include pleadings and evidence, and the decision is given at some later date. This is délibéré simple. But in complicated cases the tribunal may appoint one of its members to report to the full tribunal; this is called délibéré sur rapport.

The tribunal's decision is reached as follows: The youngest judge (twenty-five is the minimum age limit) must express his opinion first in order not to be influenced by his older compeers. As there are at least three judges there may be three different opinions; if so, two more judges must be called in, and the whole case re-argued before the five. In a Cour d'Appel, where at least five members must sit, two may opine for a given solution, two for another, and the remaining member for a third and different solution. This is unfortunate for him, for he may have to do violence to his opinions. If on a second vote there is no change, then he must transfer his vote to one of the other two solutions in order to create a majority. This is admitted to be an infringement of the judge's right to decide according to his conscience, but it is the only way out of a dilemma. French judgments must be motivés. This is a reform achieved over the old monarchical régime. Then, whatever motives judges had for their decisions, they were not bound to state them; and in the case of the comparatively powerful provincial Parlements, which exercised appellate jurisdiction over a fairly wide area, local, economic, political, and

sometimes baser motives came into play. Under the Code de Procédure the motifs must be sufficient, if not to refute all the arguments, at least to deal with all the moyens, i.e. heads of claim or grounds on which action is based. Disregard of this requirement often leads to a decision being quashed later, especially in the case of Appeal Courts, who are often content simply to adopter les motifs des premiers juges, overlooking, perhaps, some fresh moyen cunningly inserted by the appellant's counsel in the further pleadings. French judgments (which are called arrêts when pronounced by a Cour d'Appel) are made up of the qualités, or recitals of the facts, proceedings, points of fact and of law at issue, usually drawn up by the avoués and the minute, viz. the actual decision, which is the work of the President and his Greffier (Registrar). If the wording of the qualités is not agreed by the avoués, it is settled by the President or senior judge who heard the case. After judgment has been given the tribunal cannot revise or amend it, for the maxim applies, 'Lata sententia iudex desinit esse iudex.' But there are notable exceptions, viz. on an opposition to a judgment by default and on a tierce opposition' the case is reheard by the same tribunal; and other exceptions are provisional judgments, such as alimony orders, or where, owing to ambiguity, difficulties arise in the course of execution proceedings, e.g. if a judgment ordering an enquête omitted to designate the judge before whom it is to be held. A surviving tradition of the ancien régime also enables judges to deliver contingent decisions, qualified by some such words as quant à présent, or en l'état, or tous droits réservés, when the circumstances warrant such a course. For the tribunal may be morally convinced that a claimant is not acting in good faith; that he has been duly paid; and that the defendant has merely lost or mislaid a receipt. Then, if the receipt is found, or some fresh facts or evidence come to light, the same tribunal may revise its own decision. Lastly, but most important of all, is the exception in the matter of fines or penalties (in French, astreintes). A party held liable to do some act-for instance, to replace or effect repairs to machinery under a penalty of 100 francs a day-may by hesitation or neglect ab irato incur a considerable amount in penalties. These, however, are only theoretically incurred, for under French law they are minatory, not executory; and on a further application to the tribunal the actual amount due will be settled in the tribunal's discretion, and possibly reduced to a nominal sum. It may not be superfluous here to repeat that there is, and has been, no commitment

to prison in civil causes in France since 1867. Judgments may be given by consent (jugement convenu ou d'expédient), but there must be no official or open disclosure of the agreement. The legal consequences of a judgment follow as a matter of course under the maxim, forma dat esse rei.' This has the advantage that, whereas an action for nullity of a contract may lie for ten years, a judicial decision can only be upset by appeal or similar forms of redress usually to be started within two months.

The President of the Tribunal Civil fills the office of Juge des Référés, which is comparable to that of the English judge in chambers. He may act in cases involving periculum in domo, e.g. to order the carrying out of urgent repairs to house property or to prevent its demolition; and to that small extent only his orders partake of the nature of injunctions, there being no such wide power as in England in this respect. He may appoint receivers, hear alimony applications, and can also grant stop or garnishee orders, known as saisies, on production of prima facie evidence. The saisie foraine directed against non-residents and foreigners is particularly drastic. A French tradesman, scanning the list of arrivals at a fashionable hotel, may see the name of one of his debtors; and all he need do is to rush to the President's Court or private house, attended or unattended by avoué, and get permission to saisir the debtor's personal effects, which is then done instanter by an huissier, and the debtor may, as a result, find himself unable to change for dinner. His alternative then is to pay up or lodge security if he disputes the claim. Appeals from the Juge des Référés go to the Cour d'Appel.

In addition to the Tribunaux Civils, there are 214 Tribunaux de Commerce in France. They are descended from old Market Courts. The judges are traders elected by fellow traders of the locality, with, of course, certain residential qualifications to determine voting power and eligibility. The Tribunal de Commerce may hear claims arising between traders, and even non-traders, if relative to a commercial transaction. The giving of a bill of exchange, for instance, is always considered a commercial transaction. Their procedure works quicker than the Tribunal Civil's. The préliminaire de conciliation or leave to assigner instead is not required. The parties may appear in person or give a proxy to anyone to represent them, and there is no formal constitution' for the purpose of entering

mere

Effects so saisis, after being inventoried, are left in charge of the debtor as custodian,' and it is a criminal offence even to wear them.

appearance. The plaintiff's pleadings are considered sufficiently expressed in his 'assignation,' and the defendant may state his verbally at the actual hearing. As most commercial cases involve questions of accounts, conformity, or quality of goods, &c., they are usually referred to experts' or arbitres, as explained above. In practice a class of professional lawyers has specialized in the practice of the Tribunaux de Commerce. They are known as agréés, because to some extent recognized by the tribunals in question, which have enacted scales of costs, &c. Though without any legal or official status, only a limited number of these practitioners are in fact agréés by the tribunal of the locality, and hence their offices also change hands for valuable consideration. The President of the Tribunal de Commerce can allow the issuing of an 'assignation' returnable the same day and even d'heure en heure. He may also grant stop or garnishee orders over movable property. The limited jurisdiction of the Tribunal de Commerce is a mere adjunct to the ordinary civil jurisdiction for the purpose of relieving the work of the Tribunaux Civils, which are not thereby deprived of the right to try even commercial cases if brought before them, with the only exception of bankruptcy petitions, which must always be taken to the Tribunal de Commerce.

Before leaving this subject mention should be made of a somewhat startling provision of the Code de Procédure Civile (Art. 422), which directs that, if judgment is not pronounced at first hearing (and in practice it is exceedingly rare for the Tribunal de Commerce to give its judgment at the first hearing), then the parties who appeared or were represented at such first hearing must make election of an address within the locality in which the tribunal sits for the purpose of service of legal process, failing such election service, even of a judgment, can be made by leaving the document at the Registrar's office. As the Registrar is not bound to advise the party for whom the document is intended, or, indeed, to take any steps at all in the matter, it has happened that foreigners or persons not ordinarily resident within the locality in question had never heard of the judgment until it was executed against them after expiration of the time within which they could have appealed against it if they had known of its existence. This excessive severity stands in a strange contrast with the equally excessive leniency shown to the defendant before the Tribunal Civil, who lets judgment be taken against him by default, whether faute de comparaître or faute de conclure.

Subject to the observation that the Tribunal de Commerce