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Colonial Cases

Von Gumpach v. Hart, 1870

[false misrepresentation]

Von Gumpach v. Hart

Supreme Court of China and Japan
22 March 1870
Source: The North-China Herald, 21 April 1870




March 22nd, 1870




Action on the case for false misrepresentation, Damages £3000.

   Mr. Rennie for the Plaintiff.

   Mr. Hannen for the Defendant.

   The Petition alleged that Defendant, in the year 1866, both parties being then in England, represented to the Plaintiff that he was entrusted by the English and Chinese Governments with the foundation of a college and observatory in Peking, and was authorised to appoint professionals thereto; that trusting to such representations and to further representations that on his arrival at Peking his salary would be arranged to his entire satisfaction, Plaintiff accepted an appointment as professor of Mathematics and Astronomy in the "Tung Wen Kwan" on a salary commencing at the rate of £600 p.a.  from date of leaving England, believing that the "Tung Wen Kwan" meant the said college and observatory, that on arrival at Peking he found that the "Tung Wen kwan" was not the college and observatory as represented to him by Defendant, that such college and observatory was not there and has not to this day been in existence; nor has he, the Plaintiff, ever been called upon to perform any duties in connection with such college and observatory; that again in Sept. 1869, Defendant falsely represented to the Tsung-li-yamen that Plaintiff had refused to perform his duties, and had absented himself  from Peking at a time when his active services might be required, in consequence of which he was informed by the Tsung-li-yamen that his services were no longer required.

   There was also a separate count claiming £700 for money had and received.

   The Defendant pleaded not guilty and not indebted.

   The last 4 paragraphs of the answer were as follows.

   21. And for a further answer to so much of the petition as is contained in the first five paragraphs of the said petition, the defendant says -

   That previous to and at the time of the said representations (i.e. the representations made in England) the defendant was and represented himself to the Plaintiff as being a servant of the Chinese Imperial Government, and that the said representations were made in that capacity and in no other and the said Imperial Government have never disavowed the Acts of the defendant nor denied the accuracy or truth of any representations made by him.

   22. And for an answer to so much of the said petition as is contained in paragraphs 7, 8 and 9, defendant says that, previously and at the time of the said representations complained of (i.e. the representations made in Peking) plaintiff and defendant were both in the employ of the Chinese Government, and it was the defendant's duty in pursuance of such employment to report to the Tsung-li-Yamen upon the conduct, representations and movements of the professors attached to the Tung-wen-kwan and upon those of the plaintiff amongst others - and the defendant bin the ordinary course and in the lawful exercise of his duty, and not otherwise, made certain reports of and concerning the conduct movements and representations of the plaintiff which are the wilful and false representations complained of.

   23. And for a further answer to so much of the said petition as is contained in the 10th paragraph (The 10th paragraph had alleged that defendant had been entrusted by the Chinese Government with a sum of £700 for the pay of plaintiff which sum he had not paid over) the defendant says that any sum or sums of money entrusted to him for the purpose mentioned, were and are entrusted to him in his capacity of servant to the  said Chinese Government to be disposed of by him according to his discretion and not otherwise.

   24.  And for a further answer to the whole of the said petition, the defendant says that as so far as it relates to any representations made and acts done having reference to the said Tung-wen-kwan, he was, previous to and both he and the plaintiff were during the whole  of, the time in the said petition referred to, in the employment of the Chinese Government; and in such employment it became and is the Defendants' duty to superintend all the affairs connected with the "Tung Wen Kwan" and the foreigners connected therewith, and to make such representation, write such letters, do such acts and pay such sums of money as to the said Defendant in his discretion should seem fit in the premises, and that any and every of the representations made, letters written, acts done or sums of money held by the Defendant ort withheld from the Plaintiff by the defendant or by the Defendant's order as alleged in the said petition were so made, written, done held or withheld respectively by the Defendant in the exercise of his lawful authority in pursuance of such employment and in the exercise of his said duty as a servant of the said Imp. China Government, and in pursuance of no other object and in virtue of his said position and in virtue of no other.

   To these 4 paragraphs the Plaintiff demurred.

   Mr. RENNIE, in support of the demurrer, proceeded to argue against the validity of the defence raised under these pleas, and contended that it in fact amounted to an allegation on the part of the defendant, that any wrongful acts of whatever description a British subject might commit as against other British subjects, he would be protected from action in a British Court, provided the defendant could show that he had been instructed and authorised by the Chinese Government to commit them.  Ex gratia; that the Inspector-General of Chinese Customs might enter the shop or store of any British subject, either in London or Shanghai, abstract therefrom the most valuable articles in it, and then say, in defence, - "Yes, I did do so, but the Chinese Government told me to do it."  He felt great difficulty in meeting arguments of this description, because they were founded on assumptions of law which, after careful search, he had not found supported in the slightest degree by any works of authority; and it was consequently impossible to refute them by precedents of decided cases.  The theory appeared to be monstrous, and with this observation he would leave the general question raised to be decided by the Court.

   With regard to the 22nd paragraph, the learned counsel could only conclude that it was intended to raise a privileged communication; but if it were so, it would be found wanting in the first requisites of such a plea.  His friend might possibly have in his mind the recent case of Dawkins v. Lord F. Paulet, decided by the Court of Queen's Bench on the 13th December last; but, on referring to that case, it would be found that there the  defendant was a superior military officer of the plaintiff, and alleged that the libel complained of was contained in certain letters and reports which the defendant had made in the performance of his military duty, and that the Court  there held (Cockburn C.J. dissenting) that the only remedy of the plaintiff was in military law, and by means of a Court Martial.   No analogy between that case and the present one could be supported, inasmuch as in the present plea there was no allegation that the plaintiff was in the service of the Chinese Government, or that the defendant was his superior officer; and, further, in that case it was obvious that the Court of Queen's Bench held that the plaintiff, if injured, had remedy by British Martial Law, but not at Common Law.  Now, however, if the plaintiff had not a remedy in this Court, he had none at all in any British Court.

   With regard to the 23rd plea, the learned counsel argued that it was no answer to the petition, inasmuch as it only sets out that the monies sought to be recovered by the plaintiff, had been received by the defendant in his character of a servant of the Chinese Government, and that it would be incumbent on the defendant to show beyond this that he had not acknowledged to the plaintiff the receipt of them to his use; or that they were only in the hands of the defendant to be given over to him on the performance of some condition precedent which had not bee fulfilled. As to the 24th and last par. Of the answer, Mr. Rennie said that it summed up and covered the whole special grounds upon which the defendant professed to rely, and contended that it was equally untenable as those already adverted to, and upon the same grounds.  Bullen on Pleading, 3rd edition, 45, 46.  Chitty on Contracts, 8th edition, 262, 571.  Addison on Torts, 3rd edition, 846, 933.  Rex v. Lords of Treasury, 4 A. & E., 294.

   Mr. HANNEN in support of the plea.  With respect to par. 21 it is a good defence to the first five pars. of the petition.  These paragraphs are in substance a declaration against an agent for the implied warranty of his authority.  Plaintiff says that the Defendant represented himself as having certain authority - and then says that Defendant had not in fact such authority, and claims damages, but he ought to have alleged further that he had applied to the principal, and the principal had repudiated and refused to be bound by the representations of the Defendant.  We say the Chinese Government had never disavowed the Defendant's acts, and the Plaintiff ought to go against them first.  The nature of the Plaintiff's claim cannot be changed by a profuse sprinkling of the words "malice," "fraud," "false."  It is simply an action for breach of warranty, and all the declarations in such actions allege that the principal has been applied to, and has repudiated the acts of his supposed agent.  Without some such allegation the declaration is bad.  I therefore maintain that, as Plaintiff has not included such allegation in his petition our plea is a good defence.  See Bullen, p. 53.  Randell v.  Trimmen, 25 L. J. C. R. 307.

   Par. 22 sets pout a plea of perivilege.  Here we have all the necessary elements to entitle the communications to privilege.  It is a complaint made in a proper quarter by a party interested, and as such privileged.  Harrison v.  Bush, 25 L. J. Q. B. 13, 25.  Blagg v.  Sturt, 10 Q. B. 899.  Or it is a confidential communication made by way of advice to protect the interests of the person to whom it is made at their request, and as such privileged.  See Weatherstone v. Hawkins, 1 T.R. 110.  Child v. Affleck, Q. B. & C., 403.

   But further, para. 7 of the petition shows no cause of action, since no damage is specially alleged to have followed.  The plaintiff must say distinctly that some effect followed, the words are not defamatory in themselves.  Moreover it ought to say whether the representations were in writing or not, and in any case to set them out and not allege them generally.  How is it possible for us to meet a case so general?  It is impossible for any person to say that the representation he made did not tend directly to a particular result, but plaintiff must show that the specific damage he complains of was the direct consequence of the representations.

   With regard to para 23, the fact being  admitted that this was money paid by the Chinese Government to the defendant as their servant, the complaint must be to the Chinese Government not to an English Court.  Is the Supreme Court going to enquire into the state of accounts between the Chinese Government and its servant?  The defendant voluntarily took service with the Chinese and he is bound to look to them for redress if his complaint is against one of their servants.  The Supreme Court will surely not take advantage of the accident that the conduit, as it were of the plaintiff's pay is an Englishman, to enquire into and interfere with the payment or nom-payment of its officers' salaries, their right to discharge them &c., &c.

   What the specific claimed is, we don't know, we want further particulars of this, but it seems to be intended to claim a portion of a large sum, entrusted to the defendant generally for the payment of the salaries of those over whom he has control.  If this portion of the petition is held to be good, every Customs official from the Commissioners of Customs down to the tide waiters, would be able to bring into an English Court, the question of the amount of salary to which they are entitled - for they are all paid out of this fund, and it may be that the I. G. alone determines the amount of their salaries.  Surely the Court will be very unwilling to do anything which will as it were make it a Court of appeal from the decision of a Chinese official - simply from the accident of his being also a British subject.

   The proper appeal is to the Chinese Government under which the plaintiff took service - he must bear the consequences of he finds that they do not agree with his views of the matter, no matter for what reason.

   It is a good answer to the petition, as it shows that everything done was done by the Defendant as duly authorized servant of the Chinese Government and as such is not actionable. 

   The matter is difficult to support by cause, for this simple reason, that it never entered the head of anybody to bring an action under such circumstances.  Many Englishmen have been in service of foreign Governments and similar cases must have been innumerable.

   In truth this action is not unlike that of Dawkins v.  Lord Pawlett.  There, a portion of the ground of decision was that the action could not be maintainer because it was contrary to public policy.

   Now although an English Court strictly speaking is not concerned to look after the welfare of a foreign nation, yet it will not interfere between a foreign Government and its servants, and to say that par. 24 is not a good defence to the action is to let in actions by which the Court will practically intermeddle with the discipline of the foreigners in the service of the Chinese.  The Court may not have much opinion of the right action of the Chinese Government, but the self respect of a British Court will prevent its intermeddling in such questions as the present.

   It may be a question of fact for a Jury to consider, whether all that the defendant did was done as a servant of the Chinese Government, but it is at present for the purposes of argument admitted.  The Chinese employ an Englishman to do certain things; he does them, and the consequence is that a foreigner takes a certain appointment.  So far as the petition shews, this foreigner gets every thing in point of money that he expected, he seeks to make an English Court interfere to say whether the Chinese ought to found a college and observatory and make him president of their board - and give him any amount of salary he asks for, "salary to be arranged to his entire satisfaction."  He seeks to make the Court do this, although he nowhere alleges that they have refused to carry out the promises he alleges their agent to have made - and has no substantial grievance on the face of the petition, but the loss of his appointment.

   The defendant and he were both servants of the Chinese Government, and at any rate the Court will not enquire into anything which took place after that relation was established - All it will do at the most will be to enquire whether the plaintiff was induced by false representations to put himself in that position, and if "ay" what the damage to him has been.

   Sir E. HORNBY delivered judgment on March 29th, as follows:-

   We are of opinion that No. 13 must be struck out as there is no assertion in the petition that the Tsun-Wen-Kwan had no existence.

   No. 15 ought to be amended, if it is intended to deny in it all the consequences that follow from paragraph 7 and 8 as stated in paragraph 9.

   No. 17 must either be struck out or amended inasmuch as it does not appear that Defendant paid the sums.

   No. 18 is bad, if meant as a plea of tender.

   No. 21 must be struck out as it is quite immaterial whether the Government disavowed the representations of plaintiff.

   Nos. 22, 23, 24 must be struck out as not furnishing an answer in law.  The plea alleges that it was Plaintiff's duty (both Plaintiff and Defendant being servants of the Chinese Government) to report on conduct, representations and movements of Plaintiff and others.  It is not in respect of any report made either bona fide or maliciously of the conduct of Plaintiff that he complains, but of false statements and representations.  It may be assumed that no action lies against a man, so long as he does his duty, but a false representation is no act of duty, and therefore is not protected.  Moreover, we do not see that the case of Dawkins v. Lord Paulett under which the plea is avowedly framer is an authority for the validity in point of law.  In that case the relation of the superior and inferior was stated and established, no false representation was charged; but simply that the Defendant made representations which it was within the sphere of his duty to make, maliciously and not bona fide.  The act of duty, whether maliciously done or not, arose out of the Articles of War, and was in accordance with the acknowledged discipline of the army, and the relation in which the parties stood to one another, and not simply out of the relation in which one stood alone to the Government.  Moreover, both plaintiff and defendant in that case, agreed to be bound by the Articles of War in all matters arising out of the service in which they both were.  The Articles of War are part of the law of England, it was a mere question of tribunal which had the jurisdiction, military or civil.

   In this case the representation made, if false (and for the purpose of considering the value of the plea we must assume it was false) was not within the duly of defendant because it was false.  The relation in which plaintiff stood to defendant was not necessarily that of superior and inferior, nay it is quite consistent with the plea that the defendant was a spy of the Government on the plaintiff and that there is besides no pretension that two British subjects entering the Chinese service agree to be bound by Chinese laws or tribunal appealed to as existing for the trial of such cases. To refer a quarrel between two     British subjects to the Chinese would in the case of Mr. Hart, (if one of the litigants) to be to refer it to him.

   The Order in Council expressly gives jurisdiction to this Court in all cases between British subjects (and these parties are British subjects.)  To say that this plea is a good answer in law would be to say that anything Mr. Hart might say or do against another British subject who happened to be in the service of the Chinese Government, however false or malicious, he might do with impunity.  For all acts done within the sphere of duty, persons in Mr. Hart's position are protected; but they are not protected from the consequences of false statements or misrepresentations because it can never be an act of duty to make false statements or misrepresent facts.

   For these reasons, the application to strike out, must be granted with costs.

April 13th, 1870.

Before C. W. GOODWIN, Esq.,

And Messrs. Crawford, Scott, Ilbert, Devine and George, - Jury.

   Mr. RENNIE explained that the action was brought, specifically, on three points.

  1. That the Defendant had induced Plaintiff to come out to China on false pretences.
  2. That, having come out, Plaintiff was, by thr wrongful act of the Defendant and in consequence of his misstatements, dismissed.
  3. A demand for money which Plaintiff alleges to belong to him; but which has been deposited in Defendant's hands and which he wrongfully detains.

The evidence would be chiefly Plaintiff's own, borne out by a mass of documentary evidence.  If he were to read these documents now, it would make the case very long.  He purposed therefore, only to explain the purport of the case, after which he would put Plaintiff in the box and bring forward documents in support of his statements, as occasion arose.  Mr. Rennie went on to read the petition, as explained in the case above related.

   The answer in clauses 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15, simply traversed the Plaintiff's allegations.  It stated that certain sums had been offered to the plaintiff as compensation, which he had refused, and averred that he had not suffered pecuniary loss.

   Mr. Rennie had no intention, as he had remarked at the outset, of detaining the Court by a long opening speech.  The first part of the petition charged the Defendant with deception.  If it were proved that thr misrepresentations had been made and damages sustained, English law provided that the party making them must compensate the party damaged.  And he might remark that the Defendant only denied the statements made in the first paragraph of the petition; he did not allege justification if they were true.  Therefore, if he could establish their truth, it would only be incumbent on him to show damages sustained.

   The second charge against Defendant was that, by willful misrepresentation, he had procured Plaintiff's dismissal.  From evidence which would be produced, it would be clearly proved that this was so; the evidence in this respect would be chiefly documentary - a despatch written by Mr. Hart to the Tsung-li Yamen, stating that Plaintiff had refused to perform his duties, whereas he had never been asked to perform them.  Fir they stood on this document alone, their case would be strong; but they had other evidence.

   With respect to the third point, - the retention of money due, there might be dome doubt as to the amount Plaintiff was entitled to claim.  The Defendant admitted that the Chinese Government had given him discretion to pay salary for a certain time; and as he contended that the salary agreed on had been £600, this rate only had been claimed - 1 year and 2 months = £700.  He must say that he was astounded Defendant should resist this claim.  He (Mr. R.) could not understand how Defendant could come and say, he would not pay a sum which the Chinese Government, his principals, had ordered him to pay.  But no obstacle that could be raised to this case had been neglected; and every technicality that it was possible to raise, had been raised.  Now, however, that the mysterious halo of authority  had been removed, it lay with the Jury to say whether the individual Robert Hart should be made to pay damages to another individual whom he had wronged.  It was right to state that endeavours had been made to settle the case out of court; but no terms that his client could accept had been offered; and it was only when actually obliged, that he at last came here and asked for compensation for loss suffered, and that his character might be freed from aspersions unjustly cast upon it.  He (Mr. R.) asked the Jury to disabuse their minds of whatever they had previously heard in regard to the Peking College, and simply listen to the evidence which would be produced.

   JOHANNES VON GUMPACH. - I am a British subject.  I have devoted a considerable portion of my life to the study of astronomy and mathematics.  I was in London in August 1866.  About the beginning of the month I was induced, in consequence of conversation with Mr. Campbell, Mr. Hart's private Secretary, to write to Mr. Hart [letter d. 3rd August, mentioning that the Plaintiff had heard Mr. Hard was entrusted with the formation of a college at Peking, and applying for post of professor.] I had not at that time seen Mr. Hart.  I went to see him on the 4th or 5th. Mr. Campbell introduced me to him, and I repeated to him what I had previously said in my letter, about understanding that he had been entrusted with the formation of a college at Peking, &c.  I cannot remember Mr. Hart's exact words; he did not deny these statements.  He fully acquiesced. We spoken on various subjects; more especially I said I had made a number of discoveries which I believed to be of so much importance that I would only give them up with my life; and I would not go to Peking unless I had leisure to prosecute my studies.  I repeated that I understood he had been entrusted with the foundation of a college for western Sciences and learning at Peking.  Mr. Hart explained that I would be expected to give lectures, in the English language, on mathematics and astronomy; but that a year would probably relapse before the courses would commence, and in the meantime I would have an opportunity of studying Chinese.

   Mr. Hart mentioned then intention to erect an observatory.  I also looked for the foundation of a library as a necessary means to the facilities which I stipulated, for pursuing my studies.  Study is impossible without a library.  The college was not spoken of by name - only as a college for Western Sciences and learning.  The name Tung-wen-kwan was never mentioned.  I did not speak to Mr. Hart in regard to the mode of living at Peking.  He did imply hurry; he asked me whether I would be prepared to leave by the next mail.  The question of salary was not touched upon, at that interview.

    [Mr. Hannen here referred to some notes, to which witness was referring, and asked whether they were made at the time of the occurrence in question.  Witness replied that they were made last night merely to recall the prominent points in the case.  Mr. Hannen objected that their use was hardly permissible; it was the province of Plaintiff's Counsel to remember the points.  Witness handed the notes ton the Judge.]

My Newtonian discoveries were talked of, and various other subjects, including the regeneration of China, which called forth from me the enthusiastic language which has since been attributed to very different causes.  I saw Mr. Hart again on the 8th, in consequence of a conversation with Mr. Campbell in which he said Mr. Hart had doubts as to my fitness, on account of my disagreement with regard to Newtonian theory.

   [Mr. Hannen here objected to the introduction of Mr. Campbell's name, as Mr. Hart's private Secretary.  Of course, he was in a very intimate relationship with Mr. Hart, but the capacity in which he was acting at the time, was that of Baron von Gumpach's private friend.]

   The Judge asked whether Mr. Rennie could lay a foundation for the statement.

   Mr. RENNIE, Certainly; there could not be the least doubt on the subject. The negotiations which went on between Plaintiff and Defendant, through Campbell, showed that the latter was authorized to negociate.

   Witness continued - Mr. Campbell said Mr. Hart wanted testimonials.  I said the only testimonials I could give were my published works; I told Mr. Hart that if he wished the Newtonian theory to be taught, he had better engage another professor; but if he wanted a man to teach astronomy he might be satisfied of my fitness.  I had at first declined the offer; but Mr. Campbell drew such a glorious prospect of the almost omnipotence of Mr. Hart, and of his vast plans for regenerating China, that I altered my mind and accepted.  In consequence of this conversation with Mr. Campbell, I went to see Mr. Hart on the 8th August.  He was very much preoccupied, and very little passed between us.  After that, I saw Mr. Campbell several times again.

   [Mr. HANNEN again objected to all questions tending to connect Mr. Campbell with the private Secretaryship, in these conversations, in reply to Mr. Rennie.]

   Witness continued - I swear that Mr. Campbell told me he was Mr. Hart's private secretary - because I was not acquainted with Mr. Hart before Mr. Campbell named him.  To the best of my recollection, the subject of salary was never mentioned between Mr. Hart and myself.  Mr. Campbell told me that £600 was the fixed salary of the Professors.  I objected at once.  Mr. Campbell urged the cheapness of living in Peking, which was such that a family could live on £200 a year.  I applied to Mr. ------ in the Admiralty department of Somerset House, who told me a very different tale and advised me to ask at least £2,000.  I spoke in this sense to Mr. Campbell, who spoke to Mr. Hart, and told me he had done so.  He said that Mr. Hart wished, for specific purposes, to have the same salary inserted in all the agreements, but I might rest assured that on my arrival in Peking all would be settled to my satisfaction; he said moreover, that it was intended to make me President of the College.

   I also expressed to Mr. Campbell, my wish to wait till the spring; but he pressed me to go, as otherwise the opportunity of the presidency might escape me, in favour of some senior professor.  In consequence of this conversation I went again to see Mr. Hart, but he was not at home; I did not see him, and that evening he started for the continent.  I subsequently received two letters from Mr. Hart [dated 16th August, the one, officially informing me that I had been selected to act as Professor of Astronomy at the Tung-wen-kwan, on Tls. 1,800 a year; the second saying that it would of course be some time before the scholars would be sufficiently advanced to understand the differences between the generally received theory and Baron Von Gumpach's own views; that while at Peking he might relying on having a friend in Mr. Hart, and urging him to take his passage to Shanghai without delay.

   [Mr. Hannen objected to Mr. Rennie reading the letters; they ought to be read by an Officer of the Court.  The Judge suggested that Mr. Rennie might read them in the way most convenient to the Court.  Mr. Hannen objected that they ought to be read as they would be by a person receiving them; not with emphasis, or by scraps.]

   Witness continued - My impression was that the word Tung-wen-kwan meant college.

   [Mr. Hannen objected to witness giving his impressions; they were not evidence.  The Judge thought it was fail he should speak to establish the point of misrepresentations.  It was for the Jury to attach what weight they thought right to his statements.]

   Witness continued - I did not see Defendant again before I left England. I next met him in Paris, and came out in company with him and Mr. Campbell.  The chief reasons which induced me to go back from my original reasons, and accept the offer, were the prospects of the observatory and of having the means to pursue my studied.  My position in charge of the observatory would, I hoped, facilitate my efforts to substantiate my views.  I clearly understood that the College was guaranteed by the English as well as the Chinese Government; and I replied to this effect, to friends who did not wish me to accept the post.  I was told that the appointment wass for life.

 B  I arrived at Peking about the 23rd November and reported my arrival to Mr. Hart on the following day.  I was taken to the Customs Quarters.  In London, Mr. Hart stated that he had ordered apartments to be provided for me in the Foreign Office.  But I was taken to the Customs Quarters, where no preparation had been made; there was not a single article of furniture; and for five weeks I was sleeping on the ground; no duties were assigned to me; after a time I received a letter (d. 30th Nov., from Mr. Campbell, stating that the college was about to be opened.  I went there, at the time specified.  There were some students and other professors, &c., &c., present.  The latter had students assigned to them.  I was asked no questions and went home again.  This happened on 11th December.  I found it very difficult to get information regarding the college, because I did not understand Chinese.  I now understand that the Tung-wen-kwan is a school for teaching the English, French, and Russian languages, founded in 1862.

   [A memorial d. 11th December 1866, from Prince Kung to Emperor, praying to be allowed to take steps to extend the Tung-men-kwan, by the introduction of Professorships of foreign science was here read.  It mentions that in 1862, a school of languages had been opened, to which men from the eight banner corps had been appointed.  It now wished to appoint professors of astronomy and mathematics, as it was the knowledge of these sciences which gave the foreigners their superiority in making machinery.]

   Mr. RENNIE might perhaps be allowed to state that the object of introducing this memorial was to shew, that up to the end of 1866, no authority could have been granted to Defendant to establish a college.

   Witness continued - On the 28th January 1867, I wrote the letter handed in, submitting to Mr. Hart in obedience to his wish, my views as to what should be done to establish a department of astronomy in the college, I asked for an observatory and a library; about a fortnight after that, Mr. Hart sent to me and said the proposition made in that letter had been granted by the Tsung-li Yamen.

   Mr. Hart assented verbally to the proposition contained in this letter.  He relieved me of the charge of Mathematics in the middle of February, and appointed a Chinaman.  I stated the fact at a meeting at the English legation.  Mr. Hart was alson present.  I received no letter from Mr. Hart between February and October. [Letter from Mr. Hart on October 10th, read.] Subsequently to this I called on Mr. Hart and we had some warm conversation together.  Mr. Hart said he would do what he could to hurry on matters.  In June 1867, I went to Mr. Hart in consequence of something I had heard, and told him that the Chinese never contemplated opening a college.  Mr. Hart stated that there was no proof of this, and I was convinced by his assurance.  In July I went up to the hills, and there lost some valuable manuscripts by the upsetting of the waggons during a thunder storm.  On my return from the hills, I had another interview with Mr. Hart, and told him that I had lost every confidence in him.  He told me that if I had anything to say I had better speak to him personally and not to any other person.  After the 25th October I again saw Mr. Hart, and he said he would do his best to hurry on matters.  During the whole of this time, I was not called upon to fulfill the duties of my situation. 

   In June 1868 I asked Mr. Hart to carry out his engagements, when he told me I had better return to England; I said I was ready, provided we could agree on terms of compensation.  I said that I would take at the rate of £2000 per annum for the rime I had been in Pekin, or else Mr. Hart must carry out his engagement.  Mr. Hart came to me and said that the only compensation he could offer me was a year's salary and my passage home.  I told him I w as astonished at his offer, and asked if he were willing to put my claim to arbitration.  Mr. Hart gave me time to consider his offer, but I told him that I was determiner to return to England, I had starved for science before, and if need be I would do so again.  I neither accepted nor refused his offer.

   TO THE COURT. - I told Mr. Hart that under the circumstances I was determined to return to England.  When I returned from the hills, Mr. Hart told me that my apartments at the Custom House were wanted for someone else, and I went to live with a friend.

   Witness continued - On Oct. 11th, I received a letter from Mr. Hart stating that my name had been erased from the books of the Tsung-li Yamen on the 30th September last.  After the last letter was received I waited for one year to see what action would be taken in the matter.   October 11th 1869, I wrote to Mr. Hart requesting payment of my salary for one year, also that an arrangement might be come to between us, either by arbitration or otherwise, with regard to my services. [Mr. Hart's latter of Oct. 18th read.]  I never had an interview with Mr. Hart before the 3rd August 1866.  Mr. Hart never made the statements to me which he alleges in his letter of October 18th 1869, before the 3rd of August 1866.  In November 1869, Mr. Hart wrote to the Yamen and stated that as Mr. von Gumpach did not wish to resign he withdrew his former report of September 1868.  I did not know that any report had been made to the Yamen until I received Mr. Hart's despatch in November 1869.  On November 30th I received a letter stating that Mr. Hart had received a communication from the foreign board stating that my services were no longer required.  I have received no salary since September 1868.

   To Mr. HANNEN. - I met Mr. Campbell in London in the street, in 1866.  I had come to London to pursue my astronomical researches.  I had a contract with a publisher; I had a certainty of making three or four hundred pounds a year besides profit from publications.  I wrote to Mr. Hart asking for the chair of mathematics and astronomy in Peking.  The tenor of the letter was taken from conversation with Mr. Campbell.  Mr. Campbell did not tell me he was instructed by Mr. Hart to make representations to me, but knowing he was Mr. Hart's secretary I naturally though that Mr. Hart was aware that such representations would be made me.  Mr. Hart did not say that any observatory would be erected directly; the reason it was not erected was on account of the opposition of the Chinese.  I should not have understood what Mr. Hart meant by Tung-wen-kwan.  I should perhaps have asked for an explanation, if he had used the word; and I presume he would have told me it was the College for Western Science, about which Mr. Campbell had spoken.  Mr. Campbell distinctly told me the Peking College was for teaching Western science.  Mr. Hart did not make the misrepresentations alleged in my petition.  Mr. Campbell did. Mr. Campbell did not say he was acting on Mr. Hart's authority; but it was clear he did.  When the post was first offered, I did decline it.  I did not eventually accept a salary of £600 a year.  I accepted a salary "commencing at £600." In these words I saw full confirmation of Mr. Campbell's statement.

   [The Judge - the expression is certainly very ambiguous.]

It was not only Mr. Campbell's assurance that every thing would be arranged to my satisfaction, but his explanation that Mr. Hart wanted to give uniform rates of salary, which induced me to accept.  Brilliant prospects were held out to me.  I relied on Mr. Campbell whom I had known for a long time, and of his representations of the high position of Mr. Hart.  I do not remember any letter from Mr. Campbell dated 24th August.  I have no letter of Mr. Campbell's.  It was not on the 3rd August, that I appointed to call on Mr. Hart; it was the next day.  The 2nd time was, I think, the 8th.  I wrote the application before I saw Mr. Hart.  Mr. Hart did represent that he was charged by the English and Chinese Governments, otherwise I should not have written it in the petition. Mr. Campbell told me it, on Mr. Hart's behalf.  I repeated Mr. Campbell's statements to me, in Mr. Hart's presence. I sent my letter of application to Mr. Hart; I did not leave it.  Mr. Hart says nothing of the Chinese any more than of the English Government.  I spoke of the Chinese Government, because it was in China that I was to perform my duties.  I never said I would accept the office unless it were guaranteed by the English Government.  I laid stress on the circumstance that I understood it was so guaranteed.  It did not occur to me as strange that Mr. Hart did not mention the English Government.  I did not see why he should. Mr. Hart did not say it was entirely a Chinese affair.

   Mr. Hart did not describe the duties of the professors at all.  Not a word of what was stated on this subject in the letter to Mr. Fenix, was stated to me.  I believed it was an appointment for life because Campbell told me so.  The terms of Mr. Hart's letter confirm it.  I did not expect that nothing I could do would entitle my employers to discharge me.  There were several buildings erected for the professors at Tung-wen-Kwan.  It was only by an intrigue of Campbell's that we did not get there.  Mr. Campbell told me I could get everything I wanted at Peking.  He told me that it was a place that must be seen to be appreciated.  I was not introduced to any one on the occasion of opening the college.  I am certain Mr. Hart told me that I was relieved from the charge of mathematics and was appointed Director of the Observatory.  The value of the effects I lost during the storm was trifling; the manuscripts were invaluable.  It would take me 10 to 20 years labour to replace those manuscripts.  If you calculate that at thee rate of £600 a year, you may calculate a value. To me they were invaluable.

   The JUDGE might save time by saying that he purposed to tell the Jury, that they could not take into consideration the loss of manuscripts.  If M. von Gumpach went into Tartary, Mr. Hart was not liable for losses he incurred in doing so.  This claim was ridiculous.

   Examination continued - A room was afterwards offered me.  I refused it.  I believe Mr. O'Brien lives there now.  I did not consider it inhabitable.  If you wish a description, I can give it you.  It was afterwards shown to a Dr. Dudgeon who said that, for sanitary reasons, it was impossible to live there.  I do not know how Mr. O'Brien lives there.  He is an Irish gentleman.  Mr. Hart did tell me all the compensation he could offer was a year's salary and my passage home.  I intended to return to England, if we could not come to a fair arrangement.  My intention was to go away, and take legal proceedings against Mr. Hart, if we could not come to an understanding.  I did not understand a letter from Mr. Wieters, offering me a year's bonus, to apply to Mr. Hart's offer of a sum to be paid on my return.  The offer of a year's bonus means, clearly, an addition to regular stipend.  I did afterwards receive a letter from Mr. Hart saying that the money was not so intended.  I did not return it, on receipt of that letter, because I looker on it as part of Salary due to me.  To tell you the truth, I looked on Mr. Wieters' letter as written to entrap me.

   The   JUDGE said, if a person receives a sum of money which he believes to be due to him, and the person sending it called it a bonus, there was no reason why he should return it, because the  sender afterwards explainer away the term.

   Mr. HANNEN. But that was only Mr. Wieters' expression.  The intention was obvious.  Mr. Hart explained that it was only the year's allowance promised on retirement.

   Examination continued - I told Mr. Campbell, as I had told every one, that I had made up my mind to go home; as I intend now, but circumstances may induce me to go back to Peking.  I did not write anything further, till October 1869.  I waited another year, to see what course affairs would take.  I did not consider the money given me as a retiring allowance.  Despite Mr. Hart's letter, there is my protest against this interpretation.  I did once give an order for Tls. 158, to Mr. Edkins.  It was not paid at the time, but was paid subsequently, when he accepted the counter signature of Dr. Martin.  I objected to his obtaining that signature, because I thought it would injure my position.  I do not know whether the receipt produced is the one which was tendered to me for Tls. 176.  If it bears the words "on account of salary," it is not the same.  I cannot swear it, I believe it is not the same - the receipt tendered me simply spoke of "salary due."  I refused to sign it because I considered it would have been an acknowledgment of payment in full; and would have been signing away my rights.  Mr. Campbell did not offer me the cheque produced.  I said I might draw on Mr. Hart for any amount required.  He did say, if you want money, why do you not accept the Tls. 176?  I said, because I should be signing away my rights.  He did say, it was only "on account" of salary.  He took me to show me the receipt.  The receipt then shown me did bear the words "on account."  I did not   then accept the Tls. 176, because it was not then offered to me; besides the Tls. 158 for which I had given an order, was still unpaid.

   I have made certain researches which lead me to believe that the Newtonian theory is wrong.  I have published works on this subject.  The pamphlet I sent to professor de Morgan was not on that subject, I consider that what I have published, proves that I am right.  De Morgan says in his last report "von Gumpach is a clever man, but time will show."

   [Witness here referred to a Committee which had been formed in London to press his claims.  Mr. Hannen wished to ask what claims, Mr. Rennie objected.]

I have proposer a settlement of the present case, to Mr. Hart, and have mentioned in every possible shape and way my desire to have it settled.  I never expressed my willingness to accept Tls. 30,000.  I mentioned 10,000 in a letter to Dr. Martin.  In proposing a settlement to Mr. Dick, I mentioned a pamphlet which I am going to print.  I object to your asking what is my object in publishing it.

   Mr. RENNIE said Mr. Hannen could not ask a question in reference to private papers that might be in Mr. von Gumpach's possession.  Yet that was what the question amounted to.  He could only cross-examine with two objects; either to shake the witness' credit, or in regard to facts bearing on the case.  In the present instance, neither of these cases existed.

   The JUDGE inclined to think the question fair.  He could understand a motive for asking it.  The pamphlet might be intended as an engine for intimidation.

   Witness - It is for no purpose of intimidation.  I did not say to Mr. Dick, "I would throw the pamphlet in" - throw it into what? I am having the pamphlet printed for the purpose of making money.  Mr. Hart having deprived me of my income, it must earn money somehow.  I do think it is also for the benefit of the public.  I cannot say whether the pamphlet is likely to injure Mr. Hart.  If it should so so, he has the law to fall back on.  I object to these questions.

   The JUDGE ruled that there was a foundation for them.  Witness had admitted having mentioned a pamphlet to Mr. Dick.

   Witness - I did say to Mr. Dick that an arrangement might be possible, by which I would not publish my pamphlet.  My reason was, that I was anxious to settle the case and go away at once.

   To Mr. RENNIE - My present knowledge of the Tung-wen-kwan is that it is a place where certain Chinese scholars are taught the rudiments of French, English and Russian.  There was nothing approaching Western Science taught in it, unless it were the display of art in shaving a Chinese teacher's head.  This receipt (for Tls. 176) is the first one that was ever tendered to me.  I understood it to mean an acknowledgment in full, for the balance of salary due to me.

   This closed the case for the plaintiff.

   Mr. HANNEN applied for a non suit, on these grounds.  There were three perfectly distinct charges in the action.  There was an action for damages, a charge of slander or libel, and an action to recover £700 which Plaintiff alleges to be wrongfully detained. In regard to the damages, there was no evidence of any, in such a degree as to be actionable.  The proximate consequence of M. von Gumpach coming out her was that he received £600 a year.  He must show that if he had remained in England he would have received more.  Mr. Hannen quoted authority in support of his argument; and went on to urge that neither was there any evidence to show that the libel or slander in which Mr. Hart was supposed to have misrepresented to the Tsung-li Yamen that Plaintiff had resigned - was false.  The Plaintiff says that, in consequence of these misrepresentations he lost his position.  The despatch of the Yamen says, in view of the action taken by M. von Gumpach, it is not fitting he should remain.  It does not refer to the 1st alleged libel.    And in regard to the second, which charged defendant with having willfully and falsely represented that Plaintiff had absented himself from Peking when his active services were required, there was no evidence that deft. had done so.  What Mr. Hart said, was that M.  von Gumpach had left Peking on the 28th, without leave; and there was nothing to show that this was untrue.

   He might further argue, that both communications were privileged, and therefore not actionable.  The only remaining question was that of account; and here he submitted there was no evidence to go to the jury.  The only evidence at all, was in regard to the item of Tls. 176, for which plaintiff had refused to sign the receipt.

   Mr. RENNIE contended that there was ample evidence to go to a jury on all the grounds. The 1st charge was simply one of deceit.  It had been always held that damages accrued to an individual in consequence of fraud.

   The JUDGE ruled that there was sufficient ground to go to a jury on that point.

   Mr. RENNIE continued, in regard to the second point, his friend appeared to assume that nothing had been done, and that no damage had ensued.  But the two despatches must be taken together.  In the first Mr. Hart says Baron von Gumpach would not perform his duties; and in the second he implies that because the latter had gone to Shanghai, he ought to be dismissed.  They must be taken together and were so charged in the petition.

   The JUDGE said the question was, whether the representations made were true or false; and this was for the Jury to decide.

   Mr. RENNIE thought the third case was still clearer.  It was a well known rule that a creditor could recover from a third person.  If there were sufficient evidence to satisfy the Jury that the amount had been paid to the Defendant for the benefit of the Plaintiff, it was for them to decide, whether it were wrongfully withheld.  They had Mr. Campbell's letter stating that the Tsung-li Yamen left it in Mr. Hart's discretion to pay or not to pay defendant one year's salary, as a retiring allowance, and authorized payment of his salary up to 30th November 1869.  The Chinese Government issued their orders, and Mr. Hart communicated them to the Plaintiff; this was clearly sufficient evidence.

   Mr. HANNEN said Campbell's letter only said it was left to Hart's discretion to pay or not.  Plaintiff had been paid up to September 1868, except that he thought he ought to have had a larger salary.  A year's salary was given him as a retiring allowance, and when he said he did not want to retire, this was put to his debit as salary; so, bringing up the whole account to date, only Tls. 176 remain owing.

   Mr. RENNIE admitted that the Plaintiff's ground might be less strong, if the defendant had not communicated the order of Tsung-li Yamen; but, when Plaintiff wrote and said he heard such a sum of money, it became a matter for the Jury to decide whether he ought not to pay it.  The Court would observe that, in former correspondence, the Defendant always admitted that, when Plaintiff left, he should have a bonus of £600.

   After some further discussion, the JUDGE decided that there was no ground of action on the third point.  The Yamen had left the matter to Mr. Hart to decide; and it appeared that he had decided not to give the money.

April 14th.

   At the opening of the Court Mr. RENNIE asked whether, in stating his opinion yesterday in regard to the account clause, the Judge had meant that it should be struck out in toto.  Because the Defendant's answer to the plaint admitted that Tls. 176 "balance of the sum due" to Mr. von Gumpach had been tendered to and refused by him.  The Court would remember that the Plaintiff had given evidence as to the circumstances of the refusal; and he submitted that this, taken in conjunction with the admission of tender, showed admission of the debt.

   Mr. HANNEN denied that he had pleaded tender.

   The JUDGE did not understand what this sum had to do with the £700 in question.

   Mr. RENNIE explained that it was part of salary due, and therefore contained in the larger amount; defendant used the actual word "tender" in his answer; and could no do this and plead non-indebtedness in regard to the same charge.

   The JUDGE said certainly the answer stood rather unintelligibly.

   Mr. HANNEN denied having pleaded tender; he had merely referred to the Tls. 176 as part of a story.  Mr. Hart said the Government made my hand the hand by which money was to pass to the Plaintiff upon certain conditions, i.e., the signing of a receipt - this the Plaintiff refused to do and it was no longer in the power of the  Defendant to pay the money without obtaining a receipt.

   Mr. RENNIE replied that that point ought to have been raised at the beginning.  The very word "tender" was used in the answer.  He could not see how Defendant could now say the money had not been tendered.

   Mr. HANNEN urged that the Tls. 176 was due as between the Plaintiff and the Chinese Government, not as between Plaintiff and Defendant. The latter could not pay it without a voucher - which M. von Gumpach refused to sign; otherwise he would have to pay it out of his own pocket.

   Mr. RENNIE replied that it should have been paid into Court, and the Court would have given a perfectly valid receipt.

   A JURYMAN remarked that he had understood yesterday, that M. von Gumpach had never given a receipt for any pervious sums that he had received.

   After some further discussion the Judge allowed that there was sufficient evidence on which this Tls. 176 might go to the Jury. 

   Mr. HANNEN then proceeded to open the case for the Defendant.  He would first, however, advert to a portion of Mr. Rennie's speech, in which he had said that the Defendant had taken advantage of every possible technical exception.  This might be so; but when the Jury considered the nature odf the claim, which was that Plaintiff considered himself entitled to a larger salary than Mr. Hart did; when they saw that M. von Gumpach really wished to appeal from Mr. Hart to an English Court in regard to the question of salary; and when they remembered that there were, in the Customs service, 400 foreigners who might all wish to appeal from Mr. Hart to a British jury, as to what their salaries should be, they would admit that it was natural the Defendant should wish to test the point which had been argued on demurrer.  Mr. Rennie also spoke of offers of compromise which had been made; but the action was brought for damages alleged to have been sustained through fraud, misrepresentations, and deceit of Defendant; and taking that consideration together with that of the pamphlet which M. von Gumpach had admitted he might possibly be induced to suppress - taking these circumstances together, the Jury would, he thought, not say defendant was wrong in coming to the Jury, instead of yielding to the claim, and enabling people to say that he had done so because he was afraid.

   Passing now to the facts of the case, Mr. Hart was instructed, when he went to England, to engage professors for the Tung-wen-kwan to instruct pupils in various branches of science.  He was introduced to M. von Gumpach, by Mr. Campbell.  The latter casually met M. von Gumpach whom he had previously known, and who said he would be glad to obtain some employment.  Mr. Campbell thought Plaintiff might be a suitable person for one of the appointments which Mr. Hart had to fill; and spoke of him to the latter.  M. von Gumpach was introduced to Mr. Hart, who distinctly explained to him the position of affairs, told him of the drudgery that might be expected, said that the work would not be so much that of professors as of Schoolmasters; told him of the opposition of certain classes of Chinese; spoke certainly on an observatory, but spoke of it rather as what he hoped for in time, than as a proximate thing.  Mr. Campbell was present during their interview, and both he and Mr. Hart agreed in their recollection of what took place; and both said that M. von Gumpach never insisted on having means  furnished him to prosecute his studies.  Mr. Campbell never made the representations alleged by M. von Gumpach.  He simply, when the letter expressed a wish to wait till the spring, said he had better not, that he would lose his chance of going out with Mr. Hart, and his prospect of seniority.  And this was the remark which Plaintiff construed into a promise of the presidency of the Astronomical Board and of the Peking College.

   After they had been out some time in Peking, Plaintiff wrote a long letter, asking for certain projects that would cost Tls. 23,000 to be carried out - for his own purposes.  Was it likely that Mr. Hart would promise Plaintiff that the salary should be arranged in Peking to his entire satisfaction, and a large expenditure should be incurred, entirely for his own purposes.  It clearly must be for his own purposes as, by his own admission, there were no students nor any one else to avail themselves of them.  Mr. von Gumpach complains that he is placed in an unfair position because he cannot carry on his studies, and is constantly complaining to Mr. Hart, until the latter writes a letter dated 25th October 1867 purposing once and for all to settle the question.  He then says that he can make no changes in the salary agreed on; all that he can say is, that if changes do occur they are likely to be for the better rather than the worse; that he cannot advise the Chinese Government to go to the expense of a large observatory, while there are not likely to be, for 7 or 8 years, any students to avail themselves of it.  And here the jury would see the explanation of M. von Gumpach's assertion that he went away from Peking with Mr. Hart's permission, and under the assurance that he would not be wanted for 7 or 8 years.  As regards a library, Mr. Hart in the same letter said that he could not advise the Chinese Government to buy any more books than were wanted; neither, in regard to Professorships, could he advise them to make any invidious distinction of superiority.

   Thus, at the end of a year after M. von Gumpach's arrival, Mr. Hart distinctly laid down the position, and the former wrote nothing in reply.  Now, seeing the amount of writing which the Plaintiff was in the habit of doing, it does seem strange that he should find nothing to say in this case.  The defendant therefore said first that there had been no misrepresentation in London or Paris, and that, if Mr. Campbell did make the representations alleged, in London, they were unauthorized and he (defendant) was not liable for their consequence; and in regard to Peking, it had been already clearly shown that Mr. von Gumpach did leave Peking; and that it was his known intention to go and bring an action against Mr. Hart.  Yet he would show by Mr. Hart's evidence that M. von Gumpach came to him with tears in his eyes, and said that he was determined to go home, and follow up the researches in which he took so great an interest; but had said that he did not wish to leave in the hot weather, and asked to be allowed to remain till Sept.  Mr. Hart, after some hesitation, said - very well, yes; you may draw pay till the end of September, how he wished to get his allowance; and then he (plaintiff) took the money, and thanked Mr. Hart for it as a bonus; and when Mr. Hart explained that that was not its intention, still kept it; and now insists that he was still in the employ of the Chinese Government and that the money was an annual increase to his salary.

   The came the appointment or Dr. Martin to the Presidency of the College; and after some conversation Mr. Hart said, very well, Professor von Gumpach is an able man, and if he insists that he is still a professor, I will withdraw my despatch to the Tsung-li Yamen announcing his resignation, and will place him in the same position as he was in before.  This was the truth about the two letters from Mr. Hart to the Foreign Board, on which Mr. Rennie relied as substantiating his case.  But having been put in this position, Mr. von Gumpach still wants legal advice - What for?  He has nothing to seek advice about.  He says he wants to go away - what shall he do?  The Yamen reply - in view of his having left, we direct you to dismiss him.  And this is construed as slander.  There was not a tittle of evidence to justify the charge.   The plaintiff's own evidence showed that the statements were perfectly true. 

   Then, as to the money counts, he need hardly refer to them, because he hoped, after what had passed yesterday, that the jury would dismiss these from their minds.  It was entirely in the discretion of Mr. Hart whether he would give the retiring allowance in question; and it was not when M. von Gumpach was threatening an action, that he would be likely to give gratuitous compensation.  He asked the Jury whether they did not think that Mr. Hart had a perfect right to withhold it under such circumstances?  In any event, the Chinese Government, and not Mr. Hart, was indebted in that amount.  He thought, then, that they must come to the conclusion that there had been no misrepresentations, no slander and that no damages were due.  If they came to the conclusion that there had been slander and misrepresentation, it was for them to say what damages M. von Gumpach was entitled.  He himself claimed £3,000; including some manuscripts which he valued at more than £3,000; and yet after this item had been struck out still claimed to former sum.

   ROBERT HART. 0 I have been in China since 1854.  I came out as student interpreter, and left the Consular service in 1859, by the express permission of Sir F. Bruce in order to take appointment under the Chinese Government.  I am Inspector General of Customs.  In that position I am a subordinate of the Chinese office for Foreign affairs.  I have other charges besides that of the Customs - amongst others, that of the foreign department of the Tung-wen-kwan.  I left for Europe in March 1866. I had had communication with the Foreign Board, in regard to an extension of the Tung-wen-kwan, and I had instructions from the Foreign Board to engage certain professors, to fix the rates of pay and to allot to them their duties on arrival.  The instructions were verbal. Under that authority, I procured four professors, while I was at home, and three subsequently.  I gave each a   written letter of appointment, to a certain chair in the Tung-wen-kwan, and stating their salary and the date of its commencement.  The Yamen has not repudiated any engagement I made.

    Subsequently to my oral instructions, the Yamen memorialized the Emperor and Imperial sanction was obtained to the scheme.  I have seen the original; the meaning of the clause giving authority is continuous.  It means "has been and is authorised."  I have continued to act as Foreign Superintendent of the Yung-wen-kwan, and from time to time have received written instructions in regard to it.  I generally spoke of it as a college which was in existence and now being gradually extended.  I never said U was about to found a new college. 

   I appointed Mr. Campbell my Chief Secretary in the summer of 1866.  He was not officially appointed, at the time of the negociation with M. von Gumpach; but it was arranger that he was to have the appointment.  I mentioned to him that I was going to Paris to see certain French gentlemen who were candidates for appointments in the College.  He mentioned M. von Gumpach's name, and asked me to see him, I did so.  I have no doubt it was on 3rd August I saw M. von Gumpach.  I know by reference to my journal.  Mr. Campbell was present at the interview.  He introduced M. von Gumpach, and M. von Gumpach went on to say that he had called to make application for one of the appointments about which he had heard from his fiend Mr. Campbell.  The conversation afterwards became general about China; plaintiff expressed how much he was interested in so ancient a country, and we went on to talk about the college at Peking. 

   I have the most distinct recollection of explaining to M. von Gumpach the position of the college, the students, and the salaries the professors would get.  I said the college was an institution in its infancy; in the course of years, I could not say how many, it would grow to be the equivalent of any of the European universities, teaching everything useful that was taught in these.  I expected that subsequently it would become as great as a European university.  I recollect saying that the students who had come forward thus far, were mere boys, but I hoped that a better class would soon come, though it was difficult to say how soon they might do so, owing to the opposition which existed to the institution.    I remember saying that life at Peking was of a very uncomfortable kind; the work of the Professors would involve isolation and a great deal of drudgery, and would rather resemble work to be done by a country schoolmaster, than that of a professor in a college; and I added that rates of pay for the professors would be £600 for the first five years, £800 for the second five, and £1,000 after ten.  Mr. Campbell was present.

   M. von Gumpach did not say he must have the means of carrying out studies.  He said he was much interested in certain studies and had long been engaged in certain special researches.  I said the work would not be so heavy, but that the professors would have ample time to devote to any special pursuits.  He certainly did not say he must have this, that, or the other.  If he had, I should never have asked him to come to China.  Mr. von Gumpach said how delighted he would be to have one of these appointments.  I think, about that time, Mr. Campbell left the room.  M. von Gumpach did not stay long.  I repeated to him, as he was standing up, that if he desired one of the appointments, he must remember what I had said.  He then drew a letter from his pocket, and, to the best of my recollection left it with me.  The letter is d. the 3rd and I saw him the same day.  He asked whether he should leave it with me, and to the best of my recollection, I said, yes, you had better leave it with me, I will formalise your application.  Nothing was said to induce him to suppose that the English Government guaranteed the Institution. 

   I had all my plans arranged before I saw Mr. von Gumpach.  There was no special reason why I should be particularly anxious to engage him.  I had never heard of him before Mr. Campbell mentioned him. That terminated that interview.  I went to Paris on thr 4th.  I saw Mr. von Gumpach twice in London.  I am not sure of the date of the second interview.  I and Mr. Campbell went to Paris together, and returned on the 7th or 8th.  I went to Ireland on the 9th.  I was very much preoccupied when I saw Mr. von Gumpach the second time, and very little passed between us.  I think he handed me a packet of letters, Mr. Campbell did not know I was going to appoint Mr. von Gumpach until the appointment was made.  I did not authorise Mr. Campbell to make any representations to him whatever.  I only authorized him to introduce him, as his personal friend.  I believe M. von Gumpach fully understood, so far as I could make him understand, the exact position of affairs.  I have no very distinct recollection of making use of the word library.  I remember the word observatory.  But I did not speak of either as likely to be in existence within a specified time - but merely as likely to arise when the time came for them.  The next time I met Mr. von Gumpach was in Paris, on the way out.  The understanding was briefly this.  He was to teach mathematics and astronomy; he was to study Chinese; he was to receive pay commencing at the rate of £600 a year, and to have quarters in Peking.

   On my return to Peking, I found that buildings had been put up for the accommodation of the professors; but although handsome and costly, they were of the Chinese kind and, I thought, unsuitable.  I did not tell Mr. von Gumpach that he would have apartments in the foreign office; I may have told him apartments would be provided by the foreign office.  The circumstances of Mr. von Gumpach's memorandum, are these.  I requested the various professors to furnish mew with a memorandum setting forth the requirements of education in China, and especially with reference to their own department.  I never submitted Plaintiff's memorial to the Tsung-li-yamen, nor told him I had got their assent to his proposals.  I consider the two memorials show that the Board of foreign affairs was inclined to go farther than I had supposed they would go, in introducing foreign education.  The publication of the memorial (to the Throne put in evidence yesterday) had the effect of making known what the foreign office was doing, and of eliciting immense opposition - among other, that of Wojen.  About that time, Mr. von Gumpach again pressed for a library and an observatory.  Such a claim, then, would have been taken hold of by the opposition, and have done much harm.  M. von Gumpach seemed very discontented at the time.  I found he was continually coming to me with the same story, and as it was no use repeating the same reply, I put it into writing, in order that he might clearly understand the position.  We had talked a good deal about his position; and I had told him that, if the college should turn out successful, I might be able to meet his wishes and relieve him from the Mathematical class; but that this depended entirely on the success of the college.

   In the Spring of 1868, we had some additional conversations, and as I saw it would be necessary to introduce changes very slowly, having regard to the opposition, I told him I could not relieve him from his Mathematical class.  He protested against being called on to teach Mathematics, said it was an indignity to a man of his learning, to be called on to do so, and positively refused.  Then it became necessary that we should come to an understanding.  M. von Gumpach asked, do you wish me to leave China? When we parted, the understanding certainly was that he was giving up his position in the Tung-wen-kwan; that he was to continue to draw pay till the end of September, and then to receive a year's pay and his passage home.  He still thought I was treating him unjustly and ungenerously; but there was no doubt as to the understanding. He made arrangements for leaving, I bought his furniture and some of his books.  His departure was spoken of at the mess to which he belonged. 

   He then went to the hills.  On his return, I said to Mr. Wieters, will you ascertain from M. von Gumpach in which way he would like to have his money?  M. Wieters did so.  I signed a cheque, and the money was paid.  After the money was paid, he wrote in a semi-facetious way saying that he was glad that I was coming to a more just appreciation of his services.  I was amazed; and wrote explaining, in a very clear way.  He replied shortly. My impression was, that he was keeping the money with the intent to go away. I next heard from him till 1869, when he w rote asking for more money, and suggested that matters in dispute between us might be referred to arbitration.  It was about this time that I wrote reporting Mr. von Gumpach's withdrawal, to the Tsung-li Yamen.  I had reported it verbally, before.  About the time, Dr. Martin's appointment as President occurred.  I notified it to the Professors in a circular letter, I subsequently said, to Dr. Martin, "as M. von Gumpach claims to be a Professor, I have no wish to thrust him out.  I have no objection to withdraw my despatch to the Yamen."  I did so.  After that, so far as I was concerned M. von Gumpach was again a Professor in the Tung-wen-kwan, in the same position as when he arriver; and he had been notified of his re-instatement, by D r. Martin.

   He wrote to me on the 27th November saying that he was about to leave for Shanghai, and asked to have it reported to the Tsung-li Yamen; mentioning that he intended to take steps to have the differences between us settled.  I never relieved M. von Gumpach of the Chair of Mathematics, nor told him he was to be Director of the Observatory.  I certainly told him, if an observatory were erected, that he as Professor of astronomy would have charge of it.  As a matter of fact, his services were likely to be wanted when he left; Dr. Martin was preparing to give him a class, in a few days.  I reported his departure to the Tsung-li Yamen.  When first M. von Gumpach proposed arbitration, I write a long letter explaining that the points were not subjects for arbitration.  There is a Balance payable to M. von Gumpach of Tls. 176.  I have not received that sum; it is in the Government funds.  The form of receipt produced is the one habitually used in the service.  Formerly they were not asker to sign receipts.

   So far as I am concerned, I never made him the representation, in London, which M. von Gumpach speaks of.  I never authorised Mr. Campbell to make any.  I never led M. von Gumpach to suppose he had authority to make any representations.  I asked the Yamen to cancel the despatch, because the Government had been at an expense to bring Mr. Gumpach out to China, and as Mr. Martin was willing to have Mr. Gumpach as professor.  I did not cancel it because I thought it was wrong.  All actions were taken by me as Servant of Chinese Government.

   To Mr. RENNIE. - My journal merely contains the date of my interview with Mr. Gumpach in London, and not what occurred there.  What I have stated to-day is from my own memory.  The Tsung-li-yamen is the Chinese foreign office, the board for conducting foreign affaires and regulating matters with relation thereto.  The official duties of the Tsung-li-yamen are for the regulation of affairs with foreign countries as connected with Chinas.  The members of the Tsung-li-yamen are also members of other yamens.  I hold my appointment from the Tsung-li-yamen.  I am a subordinate of the Tsung-li-yamen confirmed by the Chinese Government. 

   Instructions were given to me to select professors in England to extend the college.  I had verbal authority from the Yamen to select professors.  The result of the second memorial was the excitement of hostility among the Chinese.  I was relying on the powers of the yamen to extend the college, but no written instructions were given me by the yamen.  The memorial was presented in Feby., 2867, and the hostility to it commenced in March.  I was not influenced in my wish to come to an understanding with Mr. Gumpach, on account of the hostility to the extension of the college.  In May or June, 1868, I told Mr. Gumpach I could not release him from teaching mathematics.  The yamen invited students to join the yamen to study mathematics.  90 came forward and 30 were chosen from them.  I deferred my report to the yamen to see what Mr. Gumpach intended doing.  In my dispatch to the yamen I said that Mr. Gumpach had resigned a year before.  The Tung-wen-kwan is a college for teaching Western Sciences and Languages.  A Chinese is teaching mathematics.  Dr. Jameson never was a teacher of mathematics, he applied to me for that chair.  None of the other professors have told me they were deceived.  Before 1866, a class of English was taught by different teachers, a class of French by Catholic missionaries, and Russian by a member of the Rusden legation.

    I have greater hopes of the college than ever, I cannot say how long it will be before my hopes are fully realized.  I think in 7 or 8 years the pupils in mathematics will be very forward.  There are professors waiting for pupils at the college.  In my letter of 25th October, 1867 I did not make any mention of mathematics.  A t the time of my engaging Mr. Gumpach, I did not think it necessary to explain to him that my authority was solely from the Chinese Government because I imagined that point had been fully understood at our interview.  Dr. Jamieson arrived in Tientsin in November 1868.  At that time I was less sanguine as to the success of the College than before.  I do not remember exactly the tenor of my letter to him.  Mr. Gumpach had been called upon to teach mathematics but he said he would not teach mathematics.  There would have been a class formed for him some months ago had he been there, the present pupils of the Chinese professor.  Mt first interview with Mr. Gumpach was on the 3rd of August, it was on a Friday.

   To Mr. HANNEN. - The reason for issuing the memorial was that a different class of students were to be invited to attend the classes.

... A. CAMPBELL. - I am chief secretary to Mr. Hart. I am not certain as to the date of my appointment.  I knew Mr. v. Gumpach in 1852 when I was at Heidelberg.  He was a personal friend of my family.  I met Mr. v. Gumpach in 1866.  On the first occasion I did not speak about Chinese affairs, as at that time I did not know I was going to China.  When I told Mr. Gumpach I was going to China, he said that he wished he were going there too, and asked me to do what I could to get him an engagement.  I spoke to Mr. v. Gumpach about the appointment Mr. Hart had to give away.  I told him that Mr. Hart wanted two or three professors, I held out no hopes to him.  Mr. Hart had not authorized me to make any representations to anyone.  From what Mr. v. Gumpach said, I judged he was in very straitened circumstances.  I spoke to him about the appointment purely from friendly motives, having known him so long and seeing his position at the time I met him. 

   On two occasions I spoke to Mr. Hart about Mr. v. Gumpach, I said that he was a man of great erudition, studious habits, &c., and  said that I though he would be a fit person to fill one of the situations that Mr. Hart had to offer.  When Mr. Gumpach asked me about the situation, I asked him if he had any testimonials.  I said it was necessary to have testimonials to make an application for the professor-ship.  I made an appointment to meet Mr. v. Gumpach and to go with him to see Mr. Hart on Friday 3rd August.  He did not come at the appointed time, he said that his not being there punctually was on account of the distance he lived away, because he could not afford to take a cab and had been writing a letter to Mr. Hart.  Mr. Hart said that he was Inspector General of Customs, and was employed by the Chinese Government.  I had not said any thing to Mr. V. Gumpach that could lead him to fancy that Mr. Hart was employed by the English Government.  Mr. Hart explained that the work would be very much up hill, that the pupils were not advanced, that he would have to learn Chinese to make the pupils understand, and that "it was a schoolmaster's task."

   Mr. Hart never referred to me as an agent, I introduced Mr. V. Gumpach as a friend.  Mr. Hart never gave Mr. Gumpach the least hope that he would be engaged, on his first interview.  Mr. Hart stated to Mr. v. Gumpach that his duty would not take him more than six hours a day, and he should be glad for him to continue his own studies.  I believe Mr. Hart spoke about the salary, and mentioned the amount.  On the 4th, I went to Paris, I stayed there 6 days and returned to London with Mr. Hart.  I remained in London a day or two, am not sure I saw M. v. Gumpach, but think it is very likely I did.  I then returned to Paris, and from thence to Clifton.  When I went to Clifton I wrote to M. v. Gumpach.  His reply stated that he had not heard from Mr. Hart, and asked me for information.  I afterwards received a letter from M. v. Gumpach stating that Mr. Hart had appointed him to the chair of mathematics.  M. v. Gumpach wrote me to ask if he had better write to Mr. Hart and ask him to allow him to stay in England till the next spring. I wrote him not to do any such thing, as the professors who were going out would have an advantage over him, and also that if he went out now he would have a chance of becoming acquainted with Mr. Hart.

   I never made the representations to M. von Gumpach as to his being appointed president of the college, nor as to his salary being made up for him.  I saw M. von Gumpach after he had received the appointment.  I did not tell M. von Gumpach he could get everything he wanted at Peking.  I took him to my tradesman and told him not to procure too much, or to go to too great expense, I advised him what things were most useful.  I told M. von Gumpach he could get anything he wanted at Shanghai. I described Pekin to M. von Gumpach, but told him that he would have to rough it; he said he was prepared to do so.  I remember M. von Gumpach complaining of his position in the Tung-wen-kwan; he said he would not teach mathematics.  M. von Gumpach came to my room and said that he was going home, that Mr. Hart had not treated him well, and that he had accepted the alternative, viz., a years' pay and a passage home.  I told him I thought Mr. Hart had acted very fairly towards him.  He said he intended leaving after September 1868.  I was going home in July, and told M. von Gumpach he had better come with me.  I never held out any inducements to M. von Gumpach about the observatory and library.  It was on account of his circumstances that he accepted the offer.  I have always been on friendly terms with M. von Gumpach.

   To Mr. RENNIE. - A friend of mine advanced some money to Mr. von Gumpach; but I believe the money was repaid, but not by Mr. von Gumpach.  I represented to Mr. von Gumpach that I was going out to China as Chief Secretary to the Inspector-General ort Customs.  I went over the Paris on the 4th of August.  I am not sure as to the day of my return, about six fays, I think, from day of departure.  Mr. von Gumpach knew I had the appointment of Chief Secretary to Mr. Hart.  When I told Mr. von Gumpach that Mr. Hart had several professorships to give away, he asked me to try and procure him a situation as one of them.  I told Mr. Gumpach I had mentioned his name to Mr. Hart.  Between the 3rd August and 13th I never told Mr. von Gumpach that I had spoken to Mr. Hart about certain questions relative to Mr. von Gumpach, and that he had answered me.  Nothing passed between us as to salary, until after Mr. von Gumpach's appointment. I have no distinct recollection of Mr. Hart stating any thing about s alary but I believe he did.

   To Mr. HANNEN. - All conversations took place after Mr. von Gumpach's appointment, as I did not know what appointment he was going to receive until after his appointment.

   Mr. HANNEN again submitted that there was no case to go to the jury, on the first charge, because no evidence had been shown of the agency of Mr. Campbell.  Mr. Campbell had no authority to make any representations.

   His LORDSHIP decided there was a case for the Jury.

   Mr. HANNEN then proceeded to address the Jury for the defence; and in doing so, would enter more fully into the correspondence than he had done in his opening statement.  It appeared to him that, throughout the whole affair, M. von Gumpach was labouring under a mistake.  He had been for a long time engaged in the study of mathematics and astronomy, and had arrived at a conviction that the Newtonian theory was entirely wrong.  He had laboured for long years to establish his views, and now asserts a belief that, if he had remained in England a little time longer, he would have been able to accomplish his object.  This (Mr. H. urged) illustrated the sanguine temperament which had led him into the misconception on which this action was based.  The same illusions that have led him to maintain his Anti-Newtonian theory against all the scientific men of the age, had led him to persist in hopes and projects unwarranted by the facts of this case.

   Who was most likely to remember correctly the facts that took place in London?  Mr. Hart arrived there with a clear schema in his head, with regard to engaging professors for the Tun-wen-kwan.  And he had no possible reason for misrepresenting the actual state of things at Peking.  How could they believe that either he or Mr. Campbell would induce Pltf. to accept a position at Peking, by statements which they must have known to be untrue, and by predictions which were not likely to be realised?  Then in regard to these alleged representations of the association of the English Government with the Chinese, in the establishment of a new college at Peking, the only evidence we have, is the letter which M. von Gumpach wrote before he saw Mr. Hart, and which he left with Mr. Hart, at the end of their first interview.  What possible reason could Mr. Campbell have for saying that the English Government was to guarantee such an engagement, jointly with the Chinese Government, when he knew quite the contrary to be the case?  He did not think there could be the slightest doubt on the Jury's mind that there was no foundation for the statement.  Plaintiff had got this idea into his head, and would not get it out.  Some one had probably told him that the English Government had something to do with the College, and he harped upon it until he came to believe it.  His letter of application mentions the English Government, yet he accepts a letter of appointment from Mr. Hart, which says not one word about the English Government, and never writes to point out the discrepancy between his impression and the latter's statements.  This could be no mere oversight.

   Plaintiff had shown himself in other matters to be a man of more than average accuracy.  When, afterwards, Mr. Campbell sent him a circular dated the 9th, but signed the 24th of the month, he once and again refused to receive it, because of the discrepancy of dates.  He stickles over a mere date in a letter, but swallows such a point as this, which he professes to have regarded as of great importance; and wished you to believe that he did so, because of his perfect confidence in Mr. Campbell! He (Mr. H.) thought it must be plain to the Jury that M. von Gumpach clearly understood that the English Government had nothing to do with the Chinese, in the matter.

   Then again he says that he relied entirely on whist Mr. Campbell said, as to salary.  He was so particular that he cut off the seal from a letter of the Inspector General, and sent it back to him - because he says that it has nothing to do with him; yet he is content to go to Pekin, on Mr. Campbell's assurance that his salary and everything else would be settled to his entire satisfaction though Mr. Hart had plainly told him that his salary would be £600 a year, with a gradual increase after five year's service.  At that time he was marching towards his grand discovery of the Newtonian theory; and yet was content to leave all his prospects, on this vague assurance.

   He had now come nearly to an end of the alleged misrepresentations, in London; and would turn to what took place in Peking, beginning with the letter which was penned in reply to Mr. Hart's circular request to the Professors, to inform him of their views in regard to their several departments.  It would be seen that that memorandum set forth a plan of operations which M. von Gumpach had considered and wished to be carried out, and could not therefore express what had been promised him in London.  It was a proof of M. von Gumpach's great ability, that, although he had been only a few months at Pekin, he was able to quite the words of a Chinese Saga; and it is to be supposed that he understood them, or he would not have put them in. 

   He (Plaintiff) then proceeds to give us his views of education, and after some good and grand ideas, in which we may find the germs of the "regeneration of China, of which we have heard so much, but which it was now clear had originated in his own mine instead of Mr. Hart's; and goes on, to insist that it is "essential that there be separate chairs for all the various branches of study."  Here was the germ of his wish to be relieved from the chair of mathematics.  Then he draws his idea of what the occupants of those chairs ought to be - a portrait for which, it might be supposed, he himself sat.  They must be "men of known ability, less distinguished for the orthodoxy of their opinions, than for the independence of their efforts to extend the limits of science; men who have not sought for appointment from selfish or speculative motives, but who identify themselves with the success of their respective departments, and who will be content with those European comforts to which they have been accustomed."

   Mr. Hart did not know whether M. von Gumpach had been accustomed to more comforts in Europe, than his £600 a year sufficed to secure him at Pekin; but at any rate we know that he accepted that amount as his salary.  Finally, Plaintiff insists on the necessity of "a perfect orgnisation," so that the Pekin College should assume the dimensions of a first class European College and University.  The letter [should] clearly that he knew this could not be accomplished at once, that it must be a gradual work.

   This he calls his "Larger scheme;" and yet he tells us now that this was that Mr. Hart represented ton him inn London as the plan of the new College.  He then urges the necessity of an Observatory - clearly showing that that could not have been promised to him in London, as he now says; and of a mathematical course beginning with instruction in common arithmetic, to which admission would be given only once in five years. Then he speaks of the desirability of having as few European professors as possible, and hints at educating Chinese who should be able to take charge of the students for two or three years, when they should be on ton him.  Then he winds up with a proposal that Tls. 23,000 be spent in inaugurating the plan.  Here was evidently the first germ of the idea; yet he now came into Court, asserting that this schema was part of the promise held out to him by Mr. Hart in London.

   [Mr. Hannen then went on to analyse the correspondence which has passed, and to compare it with defendant's statements which, he asserted, suffer from the contrast.]

   The Jury might remember that the action alleged misrepresentation in London; also false representation to the yamen at Pekin, by which fraud and deceit Plaintiff had been put to considerable damage.  His learned friend had referred, in his address, to the various efforts which had been made for a settlement of the dispute by arbitration, out of Court, but he (Mr. H.) could tell them that one of these proposals was conveyed in a letter from M. von Gumpach, intimidating to Mr. Hart, that his persistence in his refusal to come to a settlement, would not be devoid of danger both to his own position and to his scheme for the Chinese.  Did not thins suggest an inference, that Plaintiff would take care that the danger should arise, which he alluded to (M. von Gumpach.  No.  No.).  M. von Gumpach said, No! but they had also heard of a pamphlet  which the latter has suggested might be withdrawn, if a settlement could be come to.  And again, in the letter referred to, he went on to say that he regretted the animosity shown towards him, which he did not reciprocate.  Still, war was war, and Mr. Hart should remember that the damage was all his; he had all to lose, M. von Gumpach nothing.  After such a letter, could any right minded man agree to a private settlement; would he not feel that the matter must be publicly sifted.

   He had now concluded his review of the facts, and had only one or two words to add, in case the Jury should think that the Plaintiff was entitled to any damages.  First, Plaintiff had told them that Mr. Hart had it in his discretion to hand him over a year's salary; but he hardly thought, after what had fallen from the learned Judge on that subject, that they would take that plea further into consideration.  Neither must they take into consideration, Plaintiff's possible need of money to get home, nor Mr. Hart's ability to pay.  Plaintiff laid his damages at £3,000, but he includes in that, manuscripts, in regard to which he could elicit nothing except that they were worth a fabulous sum, considerably more than the £3,000; but as this claim was disallowed by the Court, there was an end to any damages at all.  But take it that he was misled as to his future; to what damages was he enttiled?  He said, himself, that he had been leading a hard life, at home.  And if so, he must have been glad to get an appointment of £600, to support him while he carried out his schemes.  He (Plaintiff) had quite failed to prove any special damages, and had got what was promised him.  His claim was monstrous; and seemed made to enable him to get home to carry out his scheme of upsetting the Newtonian theory.  If, however, the Jury did give damages, he would ask the Judge to direct them to state how the damages were assessed.  As to the first count, no damages are even alleged.  As to the second count, the first despatch has been shown to contain no misrepresentation.  He would ask the Jury whether they did not think Mr. Hart had acted as either one of them would have done.  The chances were, when you find a man who is always fighting against the world, that the antagonism arises from his own misconception.

   Mr. RENNIE replied.  From the tone of his friend's remarks - arguing how impossible it was for Defendant to keep out of Court, became nothing but a Jury could clear him -0 one would have thought that, instead of availing himself of legal technicality as he had done, he would have been glad to press the case forward to its present stage, when he could appeal to the Jury to clear him from the charge of fraud and deceit on which so much stress had been laid.  But he (Mr. R.) must explain that these words had merely a legal signification; and though it was necessary to employ them in a legal proceeding, there was no cause whatever for their being an objection to settlement.  As he (Mr. Rennie) had said before, Defendant had as a matter of fact, tried every means to prevent the case reaching a jury, instead of being eager to being it before them.  And even now, he says that the Plaintiff has no case.

   The matter, however, now lay with the Jury to decide, and to say to what damages the Plaintiff was entitled.  They would observe that so anxious was the defendant to fight every point, that he withheld even the paltry Tls. 176 due to the Plaintiff which, he believed, his Lordship would instruct them that he must pay.  Defendant had even run the risk of losing a verdict on this count, rather than give up that miserable sum.  And again, in regard to the £700, while clearly admitting that it was in his discretion to pay it, and that his principals were willing, the Defendant still tried every means to withhold it.

   And now, to come to the facts of the case.  They must consider the evidence as that of one man against another; for practically Mr. Hart and Mr. Campbell must be taken as one.  There was an unreadiness on Mr. Campbell's part to answer questions; the way he gave his evidence, and his evident animus could not impress them favourable.  In regard to Mr. Hart, the unusual amount of letters in which he seemed to have indulged in this case and referenced to his journal no doubt made his story an easy one.  But they must have seen how, in many parts, he overran his own evidence.  Much had been said about thr sanguine temperament of the Plaintiff; but the plea would carry little weight after what they had heard Defendant say in regard to this great college to which he had appointed the plaintiff, a college which was now almost admitted to be a delusion and a snare, and to which the professors were an encumbrance rather than an advantage.

   Putting aside technicalities, the plaintiff came out and stayed at Peking three years, during which he was willing to work, but there was no work for him to do.  He came out, as he had said, expecting to find an appointment for life; but seeing the state of affairs - he wished at the end of three years, to take legal advice in regard to his position; and on his leaving for this purpose, his dismissal was procured by the defendant.  Mr. Rennie then went on to quote from and analyze the correspondence, and contended that there could be no doubt the dismissal had been procured by false statements.  To his surprise, no allusion had been made in his friend's remarks, to the plaintiff's alleged refusal to perform his mathematical duties, of which so much had been made, at the outset.  Apparently, then, he had given up this ground.

   Then he dwelt on M. von Gumpach's intention to return to England; but this had never been carried out.  It was simply an intention - like Mr. Hart's intention to give him a class of students, which had also not been carried out.  The last straw which broke the camel's back was, in this case, the plaintiff's wish to take legal advice.

   It was not necessary for him to go much further; it was for the jury to say which story they received.  He thought the manifest truth of the plaintiff's statements would convince them; and at least, he had no journal to aid him.  They would contrast this with the prepared story of the defendant, and with the unsatisfactory evidence of Campbell, and would do their duty in returning a verdict for the Plaintiff.

   The JUDGE did not think it was requisite to say a great deal.  The learned Counsel had put most of the facts very clearly before them, in the course of their remarks.  There were two principal issues.  The first of these was in reference to certain misrepresentations alleged to have been made to Baron von Gumpach in London, and by which he is said to have suffered damage.  It was for the Jury to say whether mis-representations were made in regard to the nature of the college, and whether they were made by Mr. Hart or authorized by him.  If the Jury thought such were made, and that M. von Gumpach had suffered in consequence, it would be their duty to return a verdict in his favour.  If they were of opinion that there had been no misrepresentation, they would return a verdict for Mr. Hart.

   And then supposing there had been something to induce Plaintiff to leave England unjustly, the question arose what were the damages he had sustained. He appeared to have received his salary of £600 a year, sob that there was no pecuniary damage in this respect.  But he tells you that he has been long engaged in important studies which may result in benefit to the human race, and that it was a great object to him to be able to pursue these studies.  If therefore he had been really seduced by misrepresentation to quit these studies, he might be entitled to damages.  But it was also his (the Judge's) duty to tell them that the amount of such damage was almost inappreciable.

   The second issue was, whether Mr. Hart, by representing that the Baron was absent from Peking when he was wanted - made a false statement; and did the Chinese Government dismiss him in consequence.  It was a thing specially for the Jury to consider, whether the representations were warranted by circumstances.  Supposing they found that injury had been done Plaintiff, the question again arose, of amount of damage.  The Plaintiff was in receipt of a present income, to which there appeared the possibility of an increase at the end of five years - so that there was a possible loss, if they found that he had been unjustly deprived of his post.  He (the Judge) did not for a moment mean to say that this salary must be taken as an absolute measure of damages.  This was not a case of contract.  It was that of a man who was alleged to have been put out of something which he had.  He might get his living elsewhere.  He might get out if China, and get rid of the risk to life, here.  They must take all this into consideration, if they thought he had been unjustly deprived of his appointment.

   In regard to the Tls. 176 he believed he must tell them, that they would have to return w verdict for that sum.  The other money count, the claim of £700, he had already decided could not be submitted to them, as there was non sufficient evidence to support it.

   He would now leave them to consider the verdict dispassionately, without allowing themselves to be biassed on either side.  One of the parties to the case might be said to be a man of power and wealth, the other was not.   In making these remarks, he wished to caution them against any unfair decision.  He would ask them to remember their oaths to decide impartially, and with these remarks would leave the case in their hands.

   Mr. HANNEN had not quite understood the judge's ruling in regard to the alleged misrepresentations in London.

   The JUDGE said "if they found that Mr. Hart had authorized or accepted" the misrepresentation alleged -

   Mr. HANNEN also referred to the point of dismissal.

   The JUDGE said it seemed to be quite clear that dismissal did follow on defendant's representation.

   The Jury returned after an absence of an hour, with a verdict for the defendant on the first count for the plaintiff on the second count damages £1,800; and for the plaintiff on the third count, as directed, Tls. 176.

The North-China Herald, 30 April 1870



26th April, 1870.

Before Sir E. HORNBY, Chief Judge, and C. W. GOODWIN, Esq., Assistant Judge.


Argument to show cause why a new trial should not be granted.

   Mr. Bird for plaintiff.

   Mr. Hannen for defendant.

   This was the hearing of a rule to shew cause why the verdict obtained by the Plaintiff in the recent trial before Assistant Judge Goodwin and a Jury should not be set aside, and a verdict entered for the Defendant instead, or a non-suit entered, or a new trial granted on the grounds ort misdirection by the learned Judge and of beinbg contrary to evidence.

   Mr. BIRD for Plaintiff argued as to the ground of privilege, which Mr. Hannen contended the Judge should have directed the Jury to find, there was no such plea on the record.  Privilege must be specially pleaded if it is intended to be set up as a defence, unless there is the general issue; but here the Defendant has specifically denied all the allegations in the petition and has not pleaded "not guilty."

   As to the 2nd point, that the Judge did not leave it to the Jury to say whether the representations were wilfully false it was not necessary for him to do so.  The word wilful appeared on the face of the pleadings, and the Judge having simply out the issues before them as developer in the petition there was no necessity for his specially directing their attention to it. Non-direction will not amount to misdirection unless the verdict is greatly against the evidence.  A Judge is not bound to go over all the points in a long case; it is enough if the Jury have had the substantial issues fairly brought before them.

   Then as to the point of the verdict being contrary to evidence he maintainer that no one reading the evidence could deny that at least there were two sides to the question.  The Plaintiff and Defendant gave different accounts of several of the transactions between them, and it was for the Jury to say which they believed; moreover, the Jury had all the advantage of seeing and hearing the parties giving their evidence, a thing that one merely reading a newspaper report had not; and the manner of giving evidence was often a material point.

   The general question he would leave with the Court, merely remarking that it has never been considered a sufficient ground for granting a new trial that the balance of evidence was rather more on one side than the other. It must greatly preponderate, and here there was no such preponderance.  Another rule which guides Courts in granting a new trial is that it must be the opinion of the Judge who heard the case that substantial justice has not been done.  If he is of opinion that there is no great miscarriage of justice the Court will not disturb a verdict.  He would apply that the rule be dismissed with costs.

   Mr. HANNEN, on rising, wished to know if the Court would entertain the question of privilege, as if not he would not occupy the time of the Court in arguing the point.  He referred to rule 48, where it is stated that thr answer of a defendant shall not debar him at the hearing from giving evidence in support of a defence not expressly set up in the answer.  This question of privilege had been the great point during the trial, and one he had always insisted upon.  It was true it had got struck out of the pleadings in form, but he maintained it was raised by him at the trial, and ought to have been specially pointed out to the Jury.  Practically his answer was a plea of not guilty, though he had not inserted these very words, and he thought that for a mere formal dismissal the Court would not deprive him of this substantial defence.

   The Court intimated an opinion that the point would raise a fresh issue not fairly arising out of the pleadings as they stand, and could not be entertained.

   Mr. HANNEN then proceeded to argue that the verdict was against the evidence.  The Jury had found on the 2nd count, how, with respect to the 3rd count, the petition only alleged misrepresentations on two occasions: these were Mr. Hart's letters to the Tsung-li-yamen of 22nd September and 28th November, 1868.  With regard to the first, it is immaterial whether it is false or not, for no damage followed - the Plaintiff was in possession of all his emoluments up till the 28th November, the day he left Peking, therefore the verdict cannot be on that.  With regard to thr 2nd representation, what proof does Plaintiff being that it was false?  He brings a letter from the Tsung-li-yamen, which shows Mr. Hart to have told the latter the very things that Mr. von Gumpach asked him to tell them, viz., that he was going to Shanghai to take legal advice on the points at variance between them. Mr. Hart further adds "Mr. von Gumpach has left Peking on the 28th and his action in so doing it appears to me may be harmful to the College."  Was there anything false in that? 

   But this same letter shows most clearly how Plaintiff's dismissal happened - the dismissal for which Mr. Hart has been ordered to pay £1,800.   "The Yamen has now to state that in view of the action thus taken by Mr. von Gumpach it is not fitting that he should be any longer retained as a Professor in the College."  And this is the only evidence they offer of the false representation which caused the dismissal.

   Judgment reserved.

The North-China Herald, 5 May 1870

LAW REPORTS        .


May 3rd, 1870.

[This issue contains a slightly more detailed version of the rule Nisi hearing above.]

To-day, judgment was delivered by Sir E. Hornby, in the above case, as follows:-

   This rule was obtained on the following grounds:-

   First, misdirection - the learned Judge not having directed the Jury that the representations referred to in the 7th, 8th, 9th and part of the 11th paragraphs of the petition were privileged.

   Second, misdirection - the Judge not having left to the Jury the question whether the said representations were wilfully false.

   Third, as to the non-suit, on the ground that there was no evidence to go to the Jury that the said representations in paragraph 8 were wilfully false and that the verdict was against evidence.

   We shall dispose of the application in the following order.

   As to the nonsuit.  We think that, no points being reserved at the trial, and there being clearly evidence to go to the Jury upon more than one issue, we should be doing wrong in acceding to this portion of the application.

   As to entering a verdict for the Defendant, as prayed for upon certain paragraphs of Plaintiff's petition, we should be doing materially wrong, inasmuch as it appears to us that, upon the issues raised, the question of whether the representations made were privileged, or not, does not naturally arise out of the pleadings as they were placed before the Jury on the record.  There is no plea of "not guilty;" and the Defendant, it appears to us, by the course which he has followed of traversing specific allegations in the petition, must be held to have agreed to rest his case upon the issues thus raised, and upon those only.  It seems to us that it would embarrass the system of pleading as it prevails in this Court, materially, if a Defendant were allowed to traverse every material fact, and then, on the trial, to raise defences which he might have raised by a different form of pleading.

   We come then to the chief ground, namely, that the verdict was against the evidence or against the weight of it, and in considering this, we shall assume that the defendant has also asked us to reduce the damages given by the Jury on the issue arising out of the 7, 8, 9 & 11 paragraphs of the Petition.

   Practically there were four issues before the Jury.

   1st. Whether there were any misrepresentations made in London.

   2nd. Whether any wilful misrepresentations were made in Pekin by the Defendant, in regard to the Plaintiff, which caused his dismissal by the Chinese Government.

   3rd. Whether a sum of Tls. 176.20 was or was not sue to the Plaintiff, and

   4th. Whether defendant had received a sum or £700 for the use of the Plaintiff.

   The Jury found on the first issue for the defendant; on the 2nd & 3rd for the Plaintiff; and the fourth was withdrawn from their consideration by the learned Judge, there being no evidence to support it.  We have then only to consider whether, on the 2nd issue, the verdict was against the evidence offered, or against the weight of it.

   The Counsel for the Defendant urged that the learned Judge was wrong in not leaving to the Jury the question whether the representations, mentioned in the paragraphs alluded to, were wilfully false.  We think this was not necessary, for the Jury had the paragraphs before them which made up the issue, and which distinctly charged the Defendant with making wilfully false statements, and these embodied the issue; and they found their verdict for the Plaintiff on this count.  The Judge, therefore, in fact, put the real issue sufficiently before them, for he called their attention to the issue, and in the issue the word "wilfully" was prominently used.  Apart, therefore, from the question whether it would have been necessary for the false representations to nave been wilfully made, we are of opinion that there is no ground for disturbing the verdict for the reason that the learned Judge omitted to make actual mention of the word "willfully."

   Then, as to the point as to whether the verdict was against evidence, or against the weight of evidence.  It must be recollected that this was an action of "Tort," in which greater latitude is allowed to Juries than in actions founded on contract.  We agree with Mr. Bird that the Jury were right in looking at the second issue, as embodied in paragraphs 7, 8, 9 and 11 of the petition, and the traverses in the 13th, 14th and 18th of the Defendant's answer; and to look at it as a whole.

   Now the evidence on this point was to the effect that the Defendant, in a letter he wrote to the Tsung-li-yamen, of the 22nd September 1869, stated that the Plaintiff "had steadily refused to do any of the work that was allotted to him, and that the Plaintiff had "resigned" or words conveying that meaning. With reference to that part of the letter in which he gave the Tsung-li-yamen to understand that the Plaintiff had resigned, the Defendant wrote another letter requesting the Tsung-li-yamen to lay aside the despatch about the Plaintiff's functions ceasing; but he does not appear to have withdrawn that part of it which states "that he has steadily declined," &c. and the Jury may have found that the sting of the despatch was in this misrepresentation.   This report he might have produced, if he had thought fit, and it might have satisfied the Jury that it contained no misrepresentation.  We cannot, and are not inclined to estimate the effect of its non-production may have had on the minds of a Jury. 

   It then appears that the Plaintiff wrote to the defendant informing him that as he the Defendant, refused to settle the differences between them by fair arbitration, that he should proceed to Shanghai with a view of obtaining a legal decision.  He also requested the defendant to inform the "Yamen" of the cause of this, his temporary absence, to which he assumes there would be no objection, as the defendant had previously informed him that there was nothing for him to do in the way of his professorship, and it does not appear that he was told not to go, or that by going he would imperil the interests of the college or forfeit his position in it.

   Then there was the letter of the Tsung-li-yamen to the Defendant, which informed him that, in consequence of a foregoing report, alluding to some report made by the defendant on the 28th Nov., 1869, which the defendant did not produce, the Tsung-li-yamen had decided to dismiss the Plaintiff.  What report this was, or how far it was limited to a mere reiteration of the reasons stated by Plaintiff for his leaving for Shanghai, does not appear; and its non-production by the Defendant, coupled with the fact that there had been one or two misrepresentations to the Yamen in the first despatch, may have induced the Jury to believe that the misrepresentations first made were followed by others equally false, and that they resulted in the dismissal of the Plaintiff.  In their minds the first misrepresentation may have laid the foundation of the injury afterwards inflicted; and the exact nature of the second representation not being clear, they drew an inference unfavourable to the good faith of the Defendant.

   There was therefore evidence for the Jury; it was for them to estimate its value.  They had the advantage of seeing and hearing the witnesses; from the case, as presented to them on both sides, they were in a position to judge whether any, and what misrepresentations were made, whether false or justified by facts, and whether they resulted in an injury to the Plaintiff.

   The learned Judge who tried the case states, that in his opinion, there was sufficient evidence on which the Jury could base a verdict, and that he is not dissatisfied with the principle of that verdict, although he might not have arriver at the same result; neither perhaps should I, if I had heard the case.  We think that it is most important, especially out here, for Judges not to interfere with the province of a Jury, except a verdict is evidently perverse.  It may be that a Jury, in cases of this kind, often jump at a conclusion, at which lawyers and trained professional men would not arrive.  The justice they administer if often rough and ready; but, without the advantage of a full Court consisting of four or five Judges, we think that such interference, which might in practice be that only of the Judge who tried the case, would be to allow the opinion of the Judge on questions of fact to over-ride that of the constitutional tribunal.

   We are not prepared to sun this risk.  In all probability there will in the future be only one Judge at Shanghai, and we think we should be introducing a most inconvenient precedent, and one fatal to the legitimate functions of a Jury, were we to decide that the Judge who tried a case might, as it were, sit in appeal on the verdict of a Jury.  It would render trial by Jury a farce.  If the parties are willing, they can leave the case to the Judge on questions of fact as well as of law; but when they are unwilling so to leave it, no practice ought, in our opinion, to sanction the taking of the opinion of a Jury which would open the door to a revision of such an opinion by a single Judge.

   We therefore dismiss the rule with costs.


The case eventually went to the Judicial Committee of the Privy Council: see Hart v. Von Gumpach, 1872.

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