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Colonial Cases

Hart v. Von Gumpach [1872]

misrepresentation - jurisdiction of courts

Supreme Court of China and Japan
19 April 1871
Source: The North-China Herald, 29 April 1871




April 19.

Before C. W. GOODWIN, Esq., Acting Chief Judge.


   In the cause of von Gumpach v. Hart now under appeal to the Privy Council, Mr. Harwood applied for leave to appeal from an order made upon a demurrer dated 29th March, 1870, and to amend the Record of Appeal accordingly.

   It appears that a motion for leave to appeal from this order was filed on the 5th April 1870, but no order was made upon this.  The cause came on for hearing on the 14th day of April, and the verdict being against the defendant he moved to set it aside.  Upon the hearing of this motion, leave to appeal from the judgment (delivered the 3rd of May) was granted, and it was this appeal of which the Record was transmitted to the Privy Council. 

   The appeal from the judgment on the demurrer appears to have been dropped. There is no evidence before the Court, that there was any mistake or oversight in the matter, and at this distance of time it would be against the ordinary practice and rules of the Court to give leave to appeal from it.  As the record of the actual Appeal is in the hands of the Privy Council, it appears to me, that application to amend it should be made to that Court if it so think fit.  I must therefore discharge this rule with costs.

Supreme Court of China and Japan

Source: The Pall Mall Gazette  (London, England), Tuesday, November 12, 1872, Issue 2417 [1]

To-day, before the Judicial Committee of the Privy Council an appeal, "Hart v. Von Gumpach," from her Majesty's court for China and Japan, came on for hearing and it presented some remarkable features. The appellant is a British subject, and occupies an important position in the service of the Emperor of China as Inspector-General of Customs. The respondent is also a naturalized British subject, and is an astronomer and mathematician. They met in London in August, 1866, and it was alleged that Hart represented to Von Gumpach that he was entrusted with the formation of a college and observatory at Pekin, which college was be an institution for the teaching to the Chinese of Western sciences and learning, "with a view to the regeneration of China," and that he was to procure a library and appoint professors. In consequence of these representations Von Gumpach went to China, and his salary was to be £600 a year. He alleged that there was no such institution, and that he was willing to discharge the duties of his appointment. He alleged also that Hart represented to "The Tsung il Yamen," or Foreign Board, that he had absented himself, and he received an intimation form the Chinese Government that his services were no longer required, and since the 30th of September, 1868, he had been unable to obtain any salary. He brought his action against Hart in her Majesty's court, and claimed £3,000 as compensation, besides his salary. The cause was tried before a jury, and they gave £1,800 as damages, and 176 taels for money payable to Von Gumpach. There had been a demurrer and further litigation, and one point urged for the present appellant was that there were "privileged communications" from him as to the office he held under the Chinese Government. The court, after further litigation, decided in favour of the plaintiff, the present respondent, and the defendant, the present appellant, had obtained special leave to appeal to her Majesty in Council. He denied the alleged misrepresentations, and stated that the court at Pekin had found in his favour as to the representations, and given damages to Von Gumpach for the loss of his situation and for money due on "an account stated." He appealed on several grounds - that the verdict was against the evidence, and on misdirection, and on the "privileged communication."

Sir John Karslake, Q.C., with whom was Mr. F. Herschell, appeared for the appellant; Mr. Benjamin, Q.C., and Mr. Myburg were for the respondent, the plaintiff in the original action.

Sir John Karslake proceeded to open the case on the part of the appellant, and to comment on the allegation of the respondent when he brought his action in China.

The case is proceeding, and will occupy some time.


[1]  The appeal to the Judicial Committee was reported as Hart v. Von Gumpach (1872) 9 Moore N.S. 241, 17 E.R. 505, on appeal from Supreme Court for China and Japan. The Judicial Committee held that there had been an error in the judge's summing up to the jury. It also held that the Supreme Court for China and Japan, established by Order in Council of 9th of March 1865, under the Treaty of Tientsin, having cognizance of all questions in regard to rights, whether of property or persons, arising between British subjects, "resident in or resorting to the dominions of the Emperor of China," had jurisdiction to try such action for alleged false representations.

This report is not here as a report of the Judicial Committee of the Privy Council, but to indicate the nature of the litigation before the Supreme Court for China and Japan. For the litigation before the Supreme Court, see Von Gumpach v. Hart, 1870.

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