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Colonial Cases

Asgaard v. Hong Kong Fire Insurance Co., 1885


Asgaard v. Hong Kong Fire Insurance Co.

Supreme Court for China and Japan
Mowat AJ, 9 April 1885
Source: North China Herald, 18 April 1885

Shanghai, 9th April 1885
Before R. A. Mowat, Esq., Assistant Judge.
And a Jury consisting of Messrs. A. Stewart, S. A. Nathan, Thomas Russel, J. W. Harding, and R. L. Symes.
  Mr. E. Robinson appeared for the plaintiff, and Mr. Dowdall for the defence.
  This was a claim for Tls. 2,000 insurance on the plaintiff's furniture and effects contained in the detached two-storied dwelling on the premises known as the Pootung Duck, Pootung, destroyed by fire on the 12th December, 184.
  The defendant Company alleged in opposition to the claim that one Yao Lih-san, at the request of the plaintiff, had set fire to the house in which the insured property was, or that the fire was otherwise occasioned by the wilful act, connivance and procurement of the plaintiff.
  His Lordship said it appeared from the pleadings that the onus of proof lay upon the defendants.  It would therefore be for Mr. Dowdall to begin.
  Mr. Dowdall accordingly opened the case.  He said that the policy of insurance contained a condition that if the furniture was burnt in a fire arising from any connivance or act of the insured, the policy should be void; and the one clear and single defence set up by the Company was the allegation that the fire was caused through the connivance of the insured.  The house in which the furniture had been was that of the manager at the Tung-ka-doo Dock, which consisted of a godown with dwelling rooms on top.  The plaintiff lived there with his family, but about three months before the fire, he believed, Mrs. Armstrong left on account of indisposition, and about the same time a box containing plate and plated ware was taken away from the house and lodged with Messrs. Farnham & Co.  Mr. Armstrong ceased to reside regularly at the house at that time; and a little after Mrs. Armstrong left, a second cook who had been employed there was dismissed and the head cook was told that he need not sleep in the house or stop there at night.  Mr. Armstrong spent a good part of his time in Shanghai then, as he was only required at Tung-ka-doo when there was a ship in the dock.  In December, Mr. Armstrong received $200, his salary from Messrs. Farnham & Co., and although he had a safe in the house, and at least one other lock-up place, and although he was spending a great deal of his time in Shanghai, according to his own statement he put some money underneath the mattress in the house, and left it there till the time of the fire, which occurred in the night between 12th and 13th December.  Mr. Armstrong and the cook were both in Shanghai and no alarm was given until the premises were nearly consumed, Then some one from the dock came and told Mr. Armstrong, and he got up and went to Tung-ka-doo and on his return he went to the police and reported the fire and stated his suspicions of some one having set fire to the house on purpose.  Investigations were made by the police, and the cook and a watchman were arrested; and after some unimportant details had gone into between the police and these two servants, it appeared that they intimated that the cook, at the request of Mr. Armstrong, had set fire to the house at the request of Mr. Armstrong, and had told the watchman not to report the fire at once.
  These facts came out at the Mixed Court and the Consul for Sweden and Norway, under whose jurisdiction Mr. Armstrong was, had his attention called to it, and he held an investigation into the circumstances.  This investigation was not conducted in the same way as a preliminary examination in an English Court, because, although he understood that the accused was represented by Counsel here, there was no prosecutor, and certainly there was no prosecutor's counsel.  It appeared that the accused had people there who gave him a good character, and the end seemed to have been that the Consul thought there was not sufficient evidence to commit him for trial, and he was dismissed.  He would remark, however, on that point, that much more definite evidence would be required to obtain a conviction on a  criminal charge than would be required in a mere claim for money.  In a claim for money a mere predominance of evidence would probably be sufficient to carry a verdict.  Mr. Dowdall then briefly reviewed the evidence he intended to produce, remarking that he had had no communication whatever with the Chinese witnesses; he proposed to put them into the box and let them tell their own stories through an interpreter.
  Frederick Montague Gratton, Architect, of Shanghai, examined by Mr. Dowdall, said - I was acting Surveyor to the Hongkong Fire Insurance in December, and I recollect the fire which occurred on the Ton-ka-doo Dock.   I was requested to go there by Mr. Veitch, who represents the Company, and I went there on the morning of the 13th December.  The fire had occurred during the night.  It was a square detached house standing at the south east corner of the dock premises. There had been one upper floor.  The ground floor had apparently been used as a godown only.  The upper floor had been completely destroyed, and had fallen down to the lower floor.  From the appearance of the walls I considered that the fire had raged with the greatest fury at the north corner of the building - the corner furthest away from the river and nearest to the dock - on the upper floor.  I consider that the fire had commenced in the upper floor; it was burning downwards when I was there.  I saw no goods or furniture; the debris of course was covered by the brickwork.
  Cross-examined by Mr. Robinson - The debris was burning with considerable fury at the time; but nothing apparently but that was caused by burning materials falling from above; it was distinctly burning downwards.  I cannot say whether it was sufficiently furious to melt bars of copper; I could not answer without knowledge of the composition of the material.  I saw bar-iron lying about, and tin pots which might have contained paint; but no furniture.
  Yao Lih Sun, examined through Mr. Laisun, interpreter, said - I was formerly cook at Tung-ka-doo; Armstrong was my master.  I am at present cook at nth German Consulate.  I remember a fire occurring at Tung-ka-doo.  I was at that time Armstrong's cook; I had been with him four years.  I was not present when the fire occurred; I was in my house at Hongkew.  My evidence about the case was written down before.
  His Lordship told the witness he must nevertheless give his evidence again.
  Witness - Mt master told me that he wished to set fire to the house.  That was three months before the fire took place.  His family were not in the house then; they had left.  I remember a box being removed, containing a lot of silver ware.  I said it could not be done, as it would entail decapitation.  My master persuaded me to set fire to the house; but I refused and said if he wanted the house set fire to, he had better do it himself.  He said if I would set fire to the house he would give me money, and I refused.  My master got some newspaper and soaked it in oil and took it into his room and said "set fire to this."  My master was drunk when he asked me to set fire to the house; he was always saying that the house should be set on fire.  Three months before the fire, when he asked me to set fire to the house, he offered me $50 to do the job.  I had an under-cook, and my master told me to dismiss him, because, as his wife was going away, there would be no need of an under-cook.  After that the house was locked up and nobody lived in the house.  I was still Mr. Armstrong's cook, he ate alone.  I went in the morning and came back at night.  I lived on the premises until one week before the fire.  My master said nothing about my not living there; he did not know it.  There was no one left in the house at night, but there was a watchman outside.  Armstrong knew that the house was left all night with nobody living in it.  He told me that when I went out in the morning to buy things and when I went home at night I was to deliver the key to the watchman.   When the under-cook was dismissed I told my master there was no one to look after the house; he said I might lock it up.  Within four or five days before the fire my master told me to get a tin of kerosene oil and put it in the amah's room; but as I had no money I bought only half a tin.  I asked my master for money, and he told me to buy it myself, and to put it in my account until the end of the month.  My account has not been paid lately.  My master took the oil up to the room, and put newspaper on the table; he then put a candle on the newspaper.  Everything was done by my master, I only lighted the candle.  That was on a Saturday night, on the 25th day of the 10th moon.  I bought the candle; my master told me to buy it.  It was a foreign candle; I bought it for twenty-eight cash.  It was a long, thin, white candle.
  His Lordship said the 25th day of the 10th moon was the 12th December, a Friday.
  Witness - After everything was ready my master called me, and said "All you have to do is light the candle and then lock up the house and return home." That was about one or two o'clock in the afternoon. When I went into the amah's room I went with my master, and I saw the newspaper against the wall, with oiI poured on it, and a candle in the paper.  That was three days before the fire.  My master told me to light the candle, and I refused, saying as a Chinese it would be dangerous for me; but my master said there was no danger at all to me, it was his own business.  He said "There is no danger in it.  At six o'clock, when you go away, just light the candle, and then, when the house is burnt and I get the money, I will pay you."   I said "As for money it is a small thing, but you ought not to set fire to the house."   That was three days before the fire.  After that I saw my master every day before the fire, and he spoke to me every day about setting fire to the house.  He said "your mistress is coming back tomorrow; you had better finish this business as soon as you can."  That was on the day before the fire occurred.  I said I could not do it; it was too dangerous.  He said "I will give you a lot of cumshaw."  On the day before the fire, Mr. Armstrong left Tung-ka-doo about two o'clock, and said, "I am coming back about seven o'clock."  I went to buy some eggs, and came back at five o'clock, and at six o'clock I lit the candle and locked the house up and gave the key to the night-watchman.  I then got into a sampan and went home to Hongkew.  I said to the watchman "This house is going to be set fire tonight.  I was not willing, but my master told me there was no danger to me so I did it; but I hope he candle will go out and not set fire to the house." I said, "My master is coming back at 7 o'clock, and when he comes in give him the key."  Then I went home.
  The sampan man came at about two o'clock in the morning and told me the house was on fire.  I then went to call my master, and he got up and went with me to Tung-ka-doo.  When we got there between three and four o'clock, the house as already destroyed.  There were seven rooms on the floor.  The amah's room was right in the middle; it had no outlook.  I spoke to no one, except the night watchman.  The compradore is my younger brother; I spoke to him about it three months before the fire, and I was told not to do it; I did not speak to him afterwards.
  Cross-examined by Mr. Robinson - The brother and the watchman were the only two people I spoke to about it.  I only spoke to my brother about it once - about three months before the fire.  There were articles of furniture left in the house; I have no idea of the value of them.  I was examined at the Consulate for Sweden and Norway, and I signed a paper of what I said at the German Consulate.  The paper was read over to me before I signed it.  I said then that the value of the furniture was about $500.Nobody has been talking to me about the value of the furniture since.  I said then that I did not know how much he furniture was worth, and Inspector Mack asked me if I thought it was worth $500, and I said I thought I was worth about that.
  I had received my wages for November.  At the Norwegian Consulate I said that Mr. Armstrong was pressed for many bills, and my master had no money to pay then; and my own current expenses were not paid till very late - that is my wages and money for things I had bought for my master.  My market accounts and wages were not paid until the 10th or 11th or 12th of the month.  When I was arrested I was asked by the detectives whether my master owed money outside, and I said he owed some money. I did not ask my master to pay up my account or to give me any part of the cumshaw before I set fire to the house, and I did not ask for any paper to say that the money was to be paid.  I did not ask for cumshaw after the fire.  I remember saying at the Norwegian Consulate that I asked my master for cumshaw a few days after the fire.  I did coolie work after the second cook left, as well as cooking.  When a ship was in dock my master stopped there.  I did not see $200 in the house a few days before the fire. On the way from M. Armstrong's house to Tong-ka-doo Dock on the night of the fire nothing was said about the fire.  
  The witness, continuing his evidence in pidgin English, said "Mr. Armstrong talkee watchman and watchman talkee have see one piece man run away." Further cross-examined, he said he was quite sure that it was about two o'clock in the afternoon before the fire occurred that Mr. Armstrong told him to light the candle.  Mr. Armstrong left at 2 o'clock and it was when he was leaving that he told him to light the candle at 6 o'clock. Further cross-examined, he said he was quite sure that it was about two o'clock in the afternoon before the fire occurred that Mr. Armstrong told him to light the candle.  Mr. Armstrong left at 2 o'clock and it was when he was leaving that he told him to light the candle at 6 'clock.
  The Court then adjourned for tiffin.
  On the sitting being resumed,
  Tsao Ah-kun, examined by Mr. Dowdall though the interpreter, said - I was night watchman at Tung-ka-doo.  I remember the fire.  Before it occurred the cook said something to me about it.  He said, "My master wants me to set fire to the house." He spoke to me about it some time before the fire, and on the day of the fire.  On the day of the fire when he spoke to me about it I said it would not do; but he said there was no danger about it.  I went into the house on the day of the fire with the cook and I saw the candle in the amah's room, and a newspaper, and oil on the newspaper.  That was about 6 o'clock.  The candle was already lighted; I did not see who lighted it.  The cook told me that the house was to be burnt that night.  I said it ought not to be done; but he said his master had told him to set fire to it.  He said his master was coming at seven o'clock.  There was a fire bell.  I rang it at about half-past eleven at night.  I did not ring the fire bell directly I saw the candle alight, because the cook told me to let the fire be.  I was not in the sampan in which Mr. Armstrong went across to the fire.  When Mr. Armstrong came to the wharf I spoke to him about seeing a man running away.  The Conpradore and the cook were present.  He asked me if I saw anybody, and I said I saw the shadow of a man or a dog or something, I did not know what.  I saw Inspector Mack the day after the fire; he came with Mr. Armstrong.  I rang the fire bell because the cook told me if the fire was very great I might ring the bell; there would not be any danger in it.  I have been imprisoned; I was put in the chain-gang for one month.  The magistrate of he Mixed Court put me there; I do not know why.  The cook was there too.  M. Mack told the magistrate to put me there.
  Cross-examined by Mr. Robinson - My ages were $10 a month.  In November I was cut $10.  The office at the Old Dock cut me, because some planks were lost.  A pig belonging to my mistress was bitten to death, and I bought another one because my master (Mr. Armstrong) told me I had to replace t.  It was Mr. Armstrong who ordered me to pay for he planks that were stolen.  On the night when the house as on fire Mr. Armstrong asked me how the house go on fire. And I replied that at 11 o'clock I saw the fire in the house and rang the fire bell, and I told him I saw the shadow of a man or a dog running away.
  Arthur Mack, Detective Inspector, was then called and examined by Mr. Dowdall.  He said - I went to Tong-ka-doo to the scene of the fire on the 30th December.  I made some enquiries of the watchman, and he told me that he had seen a man running away in a direction which he indicated.  I looked for foot-marks and could find none; the ground was damp, and I think if anyone had run in that direction there would have been footprints.  I thought from the watchman's manner that he knew more about it than he pretended to.  I then went to the cook.  Mr. Armstrong said the cook was a good man, and he would not have set fire to the house.  Mr. Armstrong said he cook had left the house at 6 o'clock in the evening.  I asked the cook if there were two keys to the house, and Mr. Armstrong interposed and said there was only one.  Afterwards I left the matter to the Chinese detectives, because I thought they would do better without me.  The watchman made a statement to the effect that the cook had told him a month previously that he intended to bun down the house.  I then went to the cook and told him I knew all about the matter, and that he had better tell me the truth - or at least what I considered to be the truth.  He told me that he was ordered to burn the house down on several occasions, and that finally he did so.  He told me he bought the oil three days before the fire and the candle one day before; and that on the day of the fire Mr. Armstrong left at 2 o'clock and told him he as to be sure to burn the house down that night, as his wife was coming back next day.  He told me that Armstrong put paper in the amah's room and poured kerosene oil on it and put the candle in it.  I charged him with being concerned with the other man in setting fire to the house, and I took then to the Mixed Court.  Afterwards took them to the Norwegian Consulate, and a warrant was issued for the arrest of Armstrong, and he was arrested.

  When I told the cook that I had a statement from the watchman I did not tell him a word of what the watchman had said.  The watchman told me that the cook told him a month before that the maser wanted him to set fire to the house, and had offered him fifty dollars.  The cook's statement agreed exactly with the watchman's, although he did not know what the watchman had said.  The watchman had told another watchman a month previously that the foreign man wanted the cook to set fire to the house, and it was from this other watchman that the native detectives got the first information.  I was present at the Mixed Court when the men were convicted.  The magistrate said he did not consider that the men were so much to blame, because they had been led away by the foreigner.
  Cross-examined by Mr. Robinson - I remember making a statement in the Mixed Court that I had been told by a Norwegian that the laws of Norway did not allow the evidence of a heathen being taken against a Norwegian.  I went to see the Norwegian Consul the same day, and he told me much the same as what I had told the Mixed Court two hours previously.  I cannot be positive as to his words, but he said something to the effect that by the laws of Norway the evidence of a heathen was not admissible unless there was corroborative evidence of some kind.  I afterwards told the Mixed Court that the reason of Armstrong's acquittal was that the Consul did not consider there was sufficient evidence to convict him.  I never told the magistrate at the Mixed Court that Armstrong said he had a couple of hundred dollars in the house.  If Armstrong thought the cook had stolen hat money it was his business to come forward and say so and prosecute the man for it,.  I think if the Magistrate had not believed that the men had been led away by the foreigner he would have punished them more severely.  The cook told me that Armstrong had repeatedly asked him to burn down the house, and that Armstrong owed him $30 and said he would pay him when he got the insurance money.  I asked him whether Armstrong owed any money outside, and he told me, yes; a number of shroffs and coolies had been to him for money, and he had said he had got no money just then.
  The detectives employed in the case were Ah-li and Ah-loh.  The night watchman was the first man arrested, but the primary source of my information was the day watchman.  The cook told me that he thought the value of the furniture in the house was $500 or $600; a lot of things had been taken away to Shanghai.  I never searched the cook's house in Shanghai; I had no reason to do so.  I suspected the cook as well as the watchman from the first.
  By his Lordship - Several foreigners have asked me whether Armstrong had any money to pay debts which he owed them.
  Tsao Ah-fun, further cross-examined, said - I only went once to see the preparations Armstrong had made to set fire to the house.  I said at the Norwegian Consulate that I went twice - once at 6 o'clock after the candle was lighted, and once on the previous day.  That was true; I went twice.
  Yow Sow-loong, brother of the cook, examined by Mr. Dowdall, said - I was a Shroff at Tung-ka-doo.  I had an elder brother there who was cook.  I was told by my brother three months before the fire, that his master wanted him to set fire to the house, and I advised him not to do it.
  Cross-examined by Mr. Robinson - I was compradore at Tung-ka-doo for four years.  My brother only spoke to me once about it.
  Mr. Robinson - What for you no talkee Od Dock?
  Witness - S'pose he no talk true, my no savee.  How fashion can my talkee?
  You talkee your brother anything? - I talkee no watchman do.  I talkee very bad pidgin s'pose he do that.  Bimeby, China fashion, watchee cut he head off.
  That No. 12 day, what time Armstrong have go away? - My no see; my talkee watchman, he talkee about twelve.
  You have talkee Armstrong that day? -  - Yes, have talkee dining-room side.  I go back door, go verandah, go kitchen-house.  Have got small passage, have got one room each side; one b'long draw-room, one b'lng amah room.  Amah room no gottee door.
  What thing you talkee Armstrong? - I askee have got any ship come in.
  Anything strange have see? - No.
  Armstrong no strange look have go? - No, nothing; he only stand 'longside that mantel-piece.
  You have notice any bad smell? - No.
  You have askee watchman how fashion this fire happened? - Yes, I askee watchman how fashion this house catchee fire.  He talkee me no savee fashion; first time he talkee have see one man jump out of window.  After he go chain-gang come out my talkee again.  My askee one time. "How fashion before time you talkee no savee how this fire; just now you go police station talkee Mr. Armstrong tellee settee fire?"  He say, "My no talkee anything.  My go police station talkee everything you brother (the cook) say b'long all right."
  When your brother talkee you this pidgin three moon before, have talkee any insure pidgin? - No have talkee.  I stop four year Tung-ka-doo, no savee have got any insure that house.
  You have go police station? - Yes, one time.
  Have go consul? - Yes.
  Have talkee Mr. Armstrong owe you $60" - No talkee proper.
  The Witness, after a number of questions, admitted that Armstrong owed him only a few dollars - nothing like $60.  He said - Mr. Mack askee, "Mr. Armstrong how muchee owe you?" I talkee my no can tell.  He say, "You can think." I talkee, "No can think; my accounts all have burn; perhaps $60, perhaps $100, no savee."  He talkee , "Put down $60 can do."
  Mr. Robinson - What thing have got inside that godown?
  Witness - Bar iron, sheet brass, copper bar, copper sheathing, lead. Copper and lead all melt.  Copper melt inside ground; have takee out five six picul I think.
  Before that fire how much copper and brass have got?  Long time no have got very much.
  Have got paint? - Yes, 20 or 30 tin.  One tin belong half hundredweight.
  Mr. Robinson reminded the witness that he had previously said that there were 50 tins of paint.
  Witness - I think have got fifty tins.
  Mr. Dowdall said that finished his case.
  Mr. Robinson then briefly opened the case for the plaintiff.  He contended that no adequate motive had been shown for Mr. Armstrong setting fire to the house, while on the other hand there was a very strong motive for the Chinese putting the blame on to someone else.  Arson was a very grave offence in China, and the cook and watchman knew they were in danger of losing their heads unless they could satisfy the magistrate that they were not primarily guilty.  The motive, too, for the cook setting fire to the house at Mr. Armstrong's order was extremely weak, being merely the vague promise of a cumshaw.  
  The position of the plaintiff was such that it was utterly impossible for him to bring forward any direct evidence in his defence.  The cook said Mr. Armstrong told him to set fire to the house; Mr. Armstrong denied this; and it was oath against oath.  The plaintiff could therefore only rely on corroborating evidence.  In regard to this there were two facts of importance.  One was the statement that the newspaper had been soaked in kerosene oil three days before the fire.  The watchman said at first that he had been in the room only once - on the day of the fire; - but when he (Mr. Robinson) reminded him that he had distinctly stated before the Norwegian Consul that he had been in the room twice, he admitted it.  Then the shroff stated that he had been in the house on the morning of the fire and had observed nothing strange about the premises or about Mr. Armstrong, and that he smelt nothing.  This meant that 4 ½ gallons of kerosene had been thrown onto the newspapers in an adjoining room, of which the partition did not reach the ceiling, and yet he did not smell it.  Then the shroff, when his brother's life was in jeopardy, stated that Armstrong owed him $60; but now that his brother's head was out of danger he admitted that this was not true.  Then there was the question of the hour.  It was repeatedly stated by the cook that it was at 2 o'clock in the afternoon before the fire occurred that Armstrong told him to light the candle at six; but he (Mr. Robinson) would produce the clearest evidence that the plaintiff was not there after 12 o'clock. That was one strong point which seemed to show that the story was not true.
  The Court then adjourned.
10th April.
  The Court sat at 10 o'clock.
  Oscar Armstrong, examined by Mr. Robinson, said - I am a Swedish subject, and plaintiff in this case.  My name in Swedish is Soren Asgaard.  I was foreman carpenter and shipwright in the employ of Messrs. Farnham & Co.  All my effects were lost in the fire which occurred at Tung-ka-doo; they were worth more than the amount for which they were insured.
  A box containing some silver ware was removed from the premises some three months before the fire, because there had been some disturbances with the soldiers there, and I did not think they were safe.  I owed Farnham & Co. something like Tls. 700 or Tls. 800 in May, and I asked them for a loan of $500 to send my wife home, and got it; but she was ill and could not go.  When I borrowed that $500, an inventory of my furniture was made.  Mr. Darke made it at my request.  I did not tell him why I wanted it.  I was not in the house when the inventory was made.  My salary was $200 a month, with free house and coal.  I told Farnham & Co. I would pay them back at the rate of $70 a month.  I kept the money waiting till I should go home.  The $75 was subtracted from my wages every month.  I got my wages for November.  The paper produced is the receipt for that $200, wages for November.  I took the dollar to Tung-ka-doo Dock, and I was going to put it in my safe there, but could not find the key, and I put it between the mattresses of my bed. Between the 3rd and the 13th December I did not use that money.  I asked for my full wages for November because my wife was coming back to Tung-ka-doo and I wanted to pay the storekeeper Fungh-tah.  I owed him about $130.  He had asked me for the money, and I told him I would pay him.  Mrs. Armstrong was then living in Shanghai with Mr. and Mrs. Skinner.  She was sick, and there was a doctor's bill coming due.  I was paying $50 a month for Mrs. Armstrong's board - but I did not want the $200 for that; she had money of her own to pay it.  
  I produce a rough sketch drawn by myself showing the position of the amah's room in the house at Tung-ka-doo.  Besides the front door there is a back entrance on to a verandah, from whence you get to the kitchen.  A passage leads from the kitchen, having the drawing-room on one side and the amah's rom on the other.  There is a wooden partition between the passage and the amah's room which does not each the ceiling by about six feet.  I remember the compradore coming to see me on the day of the fire; but cannot remember which way he came in - whether from the back or the front.  After Mrs. Armstrong left the dock, if there were ships in the dock I generally stayed there, but if there were none I stayed in Shanghai at night, at Mr. Skinner's.  The last date before the fire hat a ship was in dock was about the 4th to the 7th of December.
  Mr. Robinson read a letter from Messrs. Farnham & Co. stating that the Waverley was in dock at Tung-ka-doo from 30th November to 7th December, 1884.
  The Witness, further examined said - The shroff was in charge when I went away.  He always had the keys, whether I was there or not.  I do not know the contents of the godown exactly.  There was some iron and copper and paint and paint-oil there; but I can't say how much.  The copper was pure bar copper used for putting bolts into ships, and yellow metal.  The value of the copper would be about thirty cents a pound.
  The cook was with me three or four years; I had no reason to suspect his honesty.  The watchman lost some planks, and I cut him $4, and he lost a pig and I told him to go and buy one for me. I told him I was going to cut him $4 every month, but I believe he was only cut one month.  
  I did not look after tings carefully after my wife was away, because I was too much in Shanghai.  I lost a pair of opera-glasses and other things.  I asked he cook about them and he said he had not seen them.  I had articles of plate and jewellery in the house.  They were not taken to Shanghai; I never counted them over on the day of the fire.  On the 12th December I arrived at the dock at 9 o'clock in the morning; I was superintending the carpenters, who were building a well for a centrifugal pump, till about half-past eleven, when I left for Shanghai.  I think I went twice into the house during the morning; I was there altogether about fifteen or twenty minutes; for the rest of the morning I was in the dock.  If he watchman says that I was in the house nearly all the morning I can prove it to be a lie.  When I got back to Shanghai I went down to the wharves at Hongkew, then to the Old o, and then to Mr. Skinner's, where I remained till about seven o'clock.  I then went to the Hotel des Colonies and remained there till about a quarter past twelve; then I went home to Skinner's.  At the hotel I was reading the papers and playing cards; we did not play for money.  When I got home I went to bed.  Then about two o'clock the shroff and cook called me up and told me there was a fire at Tung-ka-doo.  I dressed and went down.  I asked the Shroff on the way down how the fire happened, and he said he did not know; the sampan man had told him that the house was on fire.  The cook should have stayed at Tong-ka-doo; I had ordered him never to leave the house.  This man (Tsao Ah-kun) was there, and I think another one.  I spoke to some of them but I cannot remember what I said; I was very much flurried.  I do not remember whether I spoke to the watchman or not, before Mr. Mack came.
  I left the dock about 6 o'clock in the morning.  I went to Mr. Skinner's first, and from there I went to the old Dock.  I saw Mr. Galles.  I told him about the fire and a sked him if I should get a detective to find out how it was done.  I went for Inspector Mack, and he and I went together.  He spoke to the watchman through a native detective who interpreted, and the watchman said he saw a man jumping over a fence and running away.  I told Mr. Mack to try to find out about it if he could. M. Mack I believe said he did not think it was an accident; he believed some one had set fire to the house.
  I was dismissed a few days after the fire; I believe I have destroyed he letter of dismissal.  I owe Messrs. Farnham & Co. I think, between Tls. 300 and Tls. 400.  The Tls. 700 or Tls. 800 I mentioned before included the $500 I borrowed when my wife was going away.  I owed some other money, I believe, at the time of the fire, but my books were burnt and I don't know how much. I believe the Consul knows, because he sent round to find out; he sent Inspector Mack round.  Nobody was pressing me for money, except the storekeeper; he asked me for his money one day.  I remember a fire at the house a few months before, in the boy's room, at 8 o'clock at night; I put it out.  The boy's mattress was on fire when I came in and the wall was burning a little.  I put it out with the help of the coolie - the watchman (Tsao Ah-kun); he was a coolie before he was watchman.
  Cross-examined by Mr. Dowdall - I got the $200 on the 3rd December and put it between the mattresses the same day. I slept in the bed three or four time after that.  I had vouchers and papers relating to the furniture and property; they were with Farnham and Co., and Mr. Robinson had a copy.  It was a list of furniture; my receipts for the furniture were all burnt.  I had the receipts in a private teakwood table; the drawers all had patent locks; when I bought furniture I generally took off the locks and put patent locks on. I bought some furniture a few days before the fire and locked the receipts in the same drawer.  When I borrowed the $500 I gave Messrs. Farnham and co. an inventory of the furniture, and they kept it.  I looked at the $200 nearly every day to see that they were safe.  The cook used to make the bed.  When I went before my Consul the first time I do not know whether I mentioned this $200; I came out of bed of a fever and could hardly stand.  When I went again on the 2nd January, I mentioned it.  Mr. Robinson did not advise me to go and make that statement.  It was Mr. Mack who first said that he believed the house had been set on fire; I did not think so until he suggested it.  I had a schedule of the furniture.  A few days after the fire Mr. Galles told me I had better go and see Messrs. Jardine, Matheson & Co., the agents of the Insurance Company, and I did so.  I signed he schedule of furniture produced, which was sent I n to the agents of the Insurance Company after the fire.  I see nothing in that list not belonging to me.  I know Mr. A. Robinson, of Farnham and Co. I bought a piano from him, and I have not paid for it, but I consider it was mine.  
  I paid the cook $25 a month; for that he had to find me sometimes a meal a day, sometimes more.  The second cook, when I had one, received either $6 or $8 a month I think.  Before I arranged to pay the cook $25 a month I believe he had $10 a month.  I told the cook to stay in the house.
  Mr. Dowdall read from the witness's evidence given before the Norwegian Consul to the effect that he had allowed the cook to come to Shanghai at night to sleep.
  The witness said - I allowed him to come to Shanghai sometimes.  I may have told people that I was a loser by the fire; I was a great loser; but I do not remember telling anyone that I did not know whether I was insured or not, and that I would see Farnham and Co. about it, as they had the mater in hand.  I knew the insurance was renewed.  I do not remember telling anybody that I had lost Tls. 5,000 by the fire; I might have said that I valued my property at Tls. 5,000. When I got this $200 from Farnham and Co. I did not pay the storekeeper at once because he did not come after it; I never run after storekeepers.  His store is in Hongkew, a little below Farnham and Co.'s.  I carried the dollars out of Farnham and Co.'s myself.  I cannot tell the cost value of the plate and plated ware; but I value it at between Tls. 300 and Tls. 400.  I told the watchman to look after the house when the cook was not there; the cook was often away when I did not know it.
  Re-examined - I did not put the money in one of the drawers with patent locks because I thought it was safer between the mattresses, because Chinamen can always I pick a lock.  I do not think they would be likely to find it between the mattresses, but they would shake a piece of furniture and find it was there.  I do not remember whether I told Mack about the $200 before I went to the Consul.  I might have said my property was worth Tls. 5,000 because I had all my certificates and recommendations and testimonials from all parts of China, Singapore, among my papers.
  By his Lordship - I borrowed the $500 to send my wife home; but she did not go.  I did not pay it back at once; Mr. Galles said, "You might want it for something, you can pay it back by instalments as agreed."  On the day before the fire I think I had breakfast before I started for the Dock, but I cannot remember where I had tiffin - I think it was either with Mr. Skinner or with Mr. Giles, engineer.
  The Court then adjourned till the afternoon.
  On the sitting being resumed in the afternoon,
  Oscar de Lagerheim examined by Mr. Robinson, said - I am Acting Consul for Sweden and Norway.  I remember the plaintiff being examined before me.  The paper produced is a list of Armstrong's creditors. The total is $680.
  George Thomas Darke, sworn, said - Last year at the request of Mr. Armstrong I made an inventory for him of the furniture.   I am a cabinet-maker, and I am now employed at Fau-chong and Co.  I bought several of those articles for Mr. Armstrong, before he was married.  I have known Mr. Armstrong for about thirteen years and I have been to his house at Tung-ka-doo some fourteen o fifteen times; and since the fire I have made an estimate of the value of the furniture.  I think the claim made for them is a reasonable one.
  Cross-examined by Mr. Dowdall - The rooms were large, and that is not a very large amount of furniture. As far as I know all the furniture belonged to Mr. Armstrong; I know nothing about the piano.
  Martin Frank Patterson, proprietor of the Astor House, said - Mr. Armstrong owed me a few dollars which I lent him a few months ago.  As far as I know, his credit is good, and I should have no hesitation in giving him credit for a small amount.
  Peter Sys, sworn, said - I am a Frenchman, living in the Hotel des Colonies.  I remember the morning of Mr. Armstrong's house.  The night of the fire Mr. Armstrong was in my company in the Hotel des Colonies from 7 till past 12.  His demeanour was the same as usual.  I have known him for eleven years.  I believe if there had been anything strange in his demeanour I should have noticed it.  I never heard anything against Mr. Armstrong's character. I saw him he morning after the fire at the Hotel des Colonies about nine o'clock or half past nine in the morning.  He had tiffin with me the same day, and he told me he had lost a great deal more than the insurance would cover - Tls. 700 or Tls. 800 I think.
  George L. Skinner, sworn, stated - I am a British subject and foreign tax collector to the Municipal Council.  Mr. Armstrong came to my house in the middle of July last.  I remember the night of the fire at Tong-ka-doo Dock. Some Chinese came to call Mr. Armstrong and tell him about the fire.  He hurried off to go to the fire.  I saw him again the next day and he told me about the fire.  I said, "I hope you are insured."  He said, "I really do not know whether I am or not.  Some time ago I was insured, but I have left it in the hands of Farnham and Co., and I do not know whether I am or not."
  Maximilian Frank Djionk - I am a German.  I am now liquidating Mr. Jansen's business at the Astor House; I used to be manager.  Mr. Armstrong owes Mr. Jansen a small sum; he was never pressed for payment.  I have known Mr. Armstrong fourteen or fifteen years; he has always borne a high character.
  Hart Buck - Mr. Armstrong owes my firm, Buck and Ramsay, tailors and outfitters, $92.  He was not pressed for payment. Before the fire his credit with us was good.
  Li Tung Sun, a sampan man, employed by Farnham and Co., deposed to having brought Armstrong from Tung-ka-doo on the day before the fire.  He reached Shanghai at twelve o'clock; he knew this because he heard eight bells struck just when he arrived.
  Li Siu-dong, day watchman at Tung-ka-doo, examined through the interpreter, said - I remember the fire at Tung-ka-doo. I member Mr. Armstrong coming the morning before the fire, about 9 o'clock.  He left at a quarter to twelve. It is my duty to ring the bell for the workmen at 12 o'clock, and he had gone before I rang the bell.  I never told the detective anything about the cook and the night watchman or about anybody else.
  Jack, a carpenter at Tung-ka-doo, said Mr. Armstrong left the Dock on the day before the fire before 12 o'clock.
  Oscar Armstrong, recalled, stated in answer to a juror that he had never yet found the lost key of the safe.
  The Court then adjourned.
  The following official translation of the evidence given by Mr. F. W. Galles before the Norwegian Consul was read in the course of the case:-
  F. W. Galles, sworn, said - My name if Friedrich Wilhelm Galles.  I am forty-one years old, born at Hamburg, Protestant and partner in the firm of Farnham and Co.  I know Armstrong since over twelve years, and was always content with him as workman.  I never saw him drunk, and do not know that he lived over his position.  His salary, in the last years, was $200 per month and lodging.  A few years ago Armstrong left us to the Fau-chong and Co.  I do not know what employ he kept there, but as about wo years after he came back to our business he told us he owed still money to Fau-chong and Co., our firm lent him therefore several hundred dollars which he has not yet paid back in full.  Out of that we lent him in the spring of this year, because he was willing to send home his sick wife, $500, and $75 were retained monthly from the alary, so he owes us today still about Tls. 400.  His furniture is insured since about two years.  About three months ago Armstrong asked if he might put in our godown one case containing his silverware, he was afraid to be robbed.  The case still lays at us.  It became never known to me that Armstrong had debts otherwise.  I never heard that his relations with the workmen had been bad.  I did not see Armstrong on the 12th December, but in the morning of the 13th he came to my house, said his house had been burnt, and he was in suspicion that fire had been set to it and asked if he should go to the docks wit Inspector Mack in order to inquire into the case.  I gave my consent to it.  Armstrong communicated nothing to me about this inquiry and its result.  Armstrong was afterwards dismissed from us, but only because we had not enough work for him.
April 11th.
  The Court resumed at 10 o'clock.
  Mr. Robinson summed up for the plaintiff.  He said he had to begin by falling foul of his friend's law.  Mr. Dowdall had commented on the fact that Mr. Armstrong had been previously tried by the Norwegian Consul and acquitted, and upon that he had remarked that much more definite evidence was required to convict a man on a criminal charge than would be required in a mere claim for money, implying that in this case the evince might be less strict than if Mr. Armstrong were on his trial for arson.  Mr. Robinson considered that whether the case were a civil or a criminal one, the evidence must be equally strong.  If, therefore, the jury were of opinion that there was not sufficient evidence to convict his client, if this were a criminal charge, it would be their duty to give a verdict in his favour.  In support of this contention he quoted from Mr. Justice Stephens in his "Digest of the Law of Evidence," page 97, in which, he said, an illustration was given which was so entirely at one with his case that if he (Mr. Robinson) had himself framed it for the purpose of this case he could not have framed it otherwise.  The illustration was this:
  "A sues B on a policy of insurance.  B pleads that A burnt down the house insured.  B must prove his case as fully as if A were being prosecuted for arson."
  Mr. Robinson proceeded to cite cases in support of this principle.
  His Lordship thought the principle was sufficiently stated in the passage which Mr. Robinson had quoted, and it was therefore unnecessary to cite further cases in support of it.
  Mr. Robinson said hat being so, it remained for the jury to consider whether there was evidence sufficient to justify them in convicting the plaintiff of arson; if the evidence was less than that they were bound to give a verdict in the plaintiff's favour.  In the first place, in investigating charges like this one he would ask what was the object of the accused in burning down the house.  In this case he was quite unable to see what Armstrong had to gain by burning down the house.  He had thing to gain in respect to the value of the property, under the terms of the policy eh had to send in to the Insurance Company an exact statement of the particulars of his losses; he had sent it in, and his claim had never been disputed.  He (Mr. Robinson) had therefore nothing more to say about it, except that if the value of the furniture being admitted, the motive to crime of the chance of making a profit on the transaction was negative.  Now another motive which sometimes induced men to commit arson was the necessity for ready money.  Being in debt, and being pressed for money, was a frequent motive to crime; but in this case, though Mr. Armstrong was in debt, he was no in difficulties.  He owed a certain amount to his employers, and was paying them regularly; outside, he had deposed on oath that no one was pressing him for money in the slightest degree.  Most of his creditors had been in Court and had told the Jury that they had never pressed him for their bills, and that his credit was good.
  Although he was in debt he was not in difficulties; his credit was intact, and the proportion which his debts bore to his income was not such as would be likely to induce him to commit a crime in order to get money.  In addition to this it was not to the plaintiff's interest to set fire to his house in December, because, being in debt at that time, he would have been compelled to pay h debts with the insurance money, and would only have obtained for himself a small balance.  Still less would it have been to his interest to have burnt the house down three months earlier, when the cook stated that Armstrong first asked him to burn down the house; for at that time his debts were heavier and the net balance which he would have received would have been still smaller.  The Chinse therefore seemed to have over-reached themselves when they said that three months before the fire actually occurred the proposition to burn down the house had been made to the cook by Mr. Armstrong.  But it had been necessary for them to put it back three months in order to connect it with the sending away of the box of plate.  Mr. Robinson quoted from Mr. Galles's evidence with regard to the reasons for which the box of plate was taken away.  At that time a camp of Chinese soldiers had just been erected at Pootung, and as they were constantly coming into the dock premises he was afraid of being robbed.  He contended, therefore, that there was no plausible motive for the plaintiff's setting fire to the house, either by reason of his being over-insured, or by reason of his being pressed for money, or by reason of his being thereby enabled to get a sum of money into his possession.
  It might, however, be suggested that Mr. Armstrong was afraid of being dismissed, and that therefore, rather than have a quantity of furniture on his hands, he preferred to have the money.  He contended, however, that there was no evidence whatever that the plaintiff was in any danger of being dismissed; in fact what little evidence there was, was entirely the other way, as Armstrong might naturally have inferred from the generous conduct of Messrs. Farnham and Co. in allowing him to draw is full salary for December, that he possessed the entire confidence of the firm.  Then the question arose, what motive had the Chinse for firing the house if not the orders and the bribes of Mr. Armstrong?  The probability was that they would never be able to find out whether that $200 which had been hidden in the house was or was not found.  If I was found, there was at once a motive; but if not, this motive could obviously not have operated.  
  But there were two facts which were beyond doubt.  One was that the cook had, so to speak, earmarked the person who instigated him to the crime as a person with whom he conversed at 2 o'clock on Friday, the 12th December.  He said that this person - Armstrong, he said it was - then told him to light the candle at six o'clock, and he did it.  He (Mr. Robinson) thought he might take it as established beyond a doubt, first hat the cook talked with the person who was the real instigator of the crime at 2 o'clock, and secondly that Armstrong left the Dock that day before 12 o'clock.  If, then, the cook did talk with Armstrong at 2 o'clock, the shroff left at 3.  Mr. Galles had given evidence with regard to this shroff. "He has not always been honest; for certain I know that he squeezed our firm four years ago."  They had, then, this shroff, of whom this character had been given, left in charge, with the keys in his possession, and having in the godown under his charge, paint, copper, iron, and other materials which could easily be disposed of in Shanghai.
  If, then, the person who instructed the cook on that day was not Armstrong, who was it?  He maintained that there was a strong case of suspicion against this Shroff, who had been guilty of defalcations before, and who, if he had been guilty of defalcation again, might take the plain and easy manner of hiding them by burning down the premises.  If, then, the cook found the $200 there as a motive at once; if not, there was at least a case of suspicion against the shroff.  With regard to Mr. Armstrong not having mentioned the $200 when he was first examined before his Consul, Mr. Robinson reminded the Jury that the plaintiff had been taken out of a bed of sickness to attend the court.  It was not impossible, too, that even so important a point should have escaped his memory.  They all knew, for instance, that one sometimes went into a man's office for the express purpose of mentioning a particular matter to him, and went away leaving that very thing unsaid.  Commenting on the evidence of the Chinese witnesses for the defence, he described it as a tissue of contradictions.  The Shroff said that the plaintiff had saturated newspapers in the amah's room with 2 ½ gallons of kerosene oil three days before the fire, coupled with the evidence of the shroff that he was here on the day of the fire and smelt nothing, was an obvious absurdity; and he hoped the Jury would refuse to convict a man on evidence so absurd. After commenting on a number of inconsistencies in the evidence of the Chinese witnesses, he said there as not one of them who escaped contradicting point blank either himself or some other witness.  He left the matter in the hands of the Jury.
  Mr. Dowdall then summed up for the defendants.  He said the plaintiff denied that he requested the cook to set fire to the house.  This was the only question.  The Policy was admitted, and the fire was admitted, and it was admitted that the cook set fire to the house.  The only question therefore was of relative credibility of witnesses.  The plaintiff was a party interested to an important extent.  The cook had suffered a term of imprisonment and had nothing further to fear or to gain.  The cook, though somewhat thick-headed, seemed to be moderately straightforward witness - moreover it was to his credit that he had got a good situation, which is more than could be said for the plaintiff or the Dock Shroff since they were dismissed from the Dock.  
  The plaintiff said he had no reason to doubt the cook's honesty, in fact he seemed to have every confidence in him.  The cook, in giving his evidence, no doubt blundered about the service he was in and on some other points, but it was obvious there was no intention to deceive.  Then the cook said he lived in the plaintiff's house, but during the week before the fire he returned every night to his house in Hongkew by the plaintiff's permission, leaving the house wholly unoccupied.  As to this, the plaintiff on cross-examination said distinctly that he had ordered the cook never to leave the house at night, and he added, without being asked, "I swear it;" but on being confronted with the depositions taken by his Consul, he admitted that this was not true, and in trying to explain the depositions, made a statement to the effect that he desired the house to be left in charge of the watchman when the cook was away.  This showed clearly the falsity of his original statement.
  This, Mr. Dowdall considered, was a very important matter.  The case was: a house at Tung-ka-doo was burned; the plaintiff claimed insurance money; he swore he had ordered the cook never to leave it at night; and then he admitted that this was false. This established the cook's evidence as more trustworthy than the plaintiff's on one point at least.  Then there was the case of the piano, on which the Jury would probably consider he plaintiff's evidence manifestly false.  Further, as to the dealing with the $200, the transaction was certainly mysterious.  When there was only $125 due, the plaintiff got $200 from Messrs. Farnham and Co.'s office.  It had to be taken to Tung-ka-doo, yet he got it in coin, though, being destined for Shanghai, creditor's notes would be equally useful and more easily carried.  Then, though within a minute's walk of the storekeeper to whom he said he intended to pay [$?00], he carried the whole to Tung-ka-doo, where his plate was not safe, and notwithstanding that he had a hardwood drawer with a patent lock and lots of other patent locks in the house, he put this $200 coin between the mattresses of his bed.  The cook was the person who attended to the bed, and as the plaintiff had slept in it three or four times before the fire, the cook must have made it as many times while the dollars were there. The plaintiff had said the money would be safer in the bed than in a drawer because Chinese could break the locks, but Mr. Dowdall said, no one need have known that the money was in the house at all.
  On the probability was that the cook would have found out that the dollars were in the bed, in fact the plaintiff had said he thought the cook knew it.  This odd state of affairs would then occur; the cook would probably think (for indeed the idea might be suggested to him) "If I steal these dollars there will be trouble unless the house is burned, but if he house is burned my master will get his insurance money and no one will trouble about this small sum."  He (Mr. Dowdall) did not know whether he might not, if he had been very sharp, think that his master might even include this in his claim against the insurance company.  If he did, he would have been right on these two points, for though one would have thought that the loss of the dollars would have been uppermost in the plaintiff's mind, he did not refer to the subject for some time after the fire.  Two hundred dollars would weigh about 12 lbs. of silver, and even if this melted, some trace of it would be found among the debris, and the most natural thing for the plaintiff to do would be to direct watch to be kept until it could be searched for; but he did nothing of the kind means he did not refer to the dollars on his first examination before the Consul, and when on his second examination he did refer to them, he said he thought the cook had set fire to the house to use the opportunity to steal some of the furniture.  There was certainly a mystery about this which Mr. Dowdall would leave in the hands of the Jury.
  As to the plaintiff's debts, he said he owed $700 or $800 in May, and at the date of the fire the amount due to his general creditors (amongst whom he did not include the money due for the piano) was $680, or about Tls. 496, and to Farnham and Co. about Tls. 400, making a little more than he owed in May.  This showed that though earning a good salary with house and coals free he was continuing in debt.
  Then as to the inventory: it appeared to be unnecessary for the purpose for which he said it was made, as Farnham and Co. had apparently offered him what money he wanted at the time.  It was remarkable that he should have an inventory made out by a cabinet -maker who could afterwards place a value on the articles, and odd also that the inventory should be saved though the others for the cost of the furniture were lost.  Then the plaintiff seemed to have got into a remarkable flurry on being told of the fire, rushing out on a cold night without his clothes; and his first thought seemed to be to get a detective to see "who had done it" as he said; then his pretence to Mr. Skinner that he did not know whether he was insured was odd, and his not reporting the fire to the insurance company for a week, nor sending in his inventory for seven weeks.  The evidence as to character was, to say the least of it, peculiar.  Mr. Dowdall finished by remarking that the Insurance Company had paid Messrs. Farnham and Co. for the house, and left the matter in the hands of the Jury.
  His Lordship asked Mr. Dowdall if he had anything to say on the point of law to which Mr. Robinson had alluded.
  Mr. Dowdall said no, he quite agreed with Mr. Robinson; he had never meant to say anything different - he had never thought of it in that light.
  His Lordship, in summing up, said - Well, Gentlemen, this is a case in which the plaintiff Armstrong seeks to recover the sum of Tls. 2,000 from the defendants, the Hongkong Fire Insurance Company, on a policy of insurance, and there is no defence to that claim unless it is mad out to your satisfaction that Armstrong procured the house to be set on fire.  The question is thus one purely of fact, and so it is for you, and for you only, to decide it.  There is no question of law in the case at all.  If the defendant Company fail to satisfy you that Armstrong set fire to the house, or procured the house to be set on fire, then you will return a verdict for the defendants.  I have said there is no question of law involved in the case; but I perhaps ought to except one little point which Mr. Robinson relied upon for the plaintiff, and which, as you have heard, Mr. Dowdall admits as being applicable to the case.  It is this, that you must, in coming to a conclusion upon this, which is a civil claim on a policy of insurance, have the same reasonable conviction as to Armstrong's crime - to call it by a simple word - if he was a party to this that you would have to feel in order to convict him if he were a British subject being tried before you on a charge of arson.  That is the only question of law in the case, and I mention that in the outset.  
  All the rest is a question of fact, and it is for you, and for you only, to decide it.  My duty is confined to calling your attention shortly to those points in the evidence which may assist you in coming to a conclusion upon the question.  Of course in a case of this kind it is impossible to expect direct evidence, and evidence of unimpeachable witnesses.  If there were direct evidence, and evidence of unimpeachable witnesses, there would be no case at all.  In cases of this kind it is apparent that the evidence can only be what is known as circumstantial instead of direct, and you will really have to weigh the probabilities of the statements made to you instead of implicitly believing any of them.  
  Now the fire was unquestionably due to arson; accident, I think, may be put out of the question altogether; - it has been so treated by counsel, and, I think, properly so treated.  The question is thus narrowed to this one: Did the cook, of himself, and for his own purposes, set fire to the house, or did his master procure him to do it?  The cook admits that he set fire to the house, but he says he did it by the procurement and inducement of the master.  Now the evidence of the cook and the master is, as you might expect, directly in conflict.  The cook says, "My master induced me, pressed me, and finally I consented;" and the master denies this.  Now one of the considerations to be brought to your minds will be, what motive there was, if any, in the mind of one or other of the parties.  It is suggested by the Insurance company that the plaintiff had a motive, namely that he was in debt, and that he wished to get the money payable under the policy.  Mr. Robinson argued that the plaintiff had nothing to gain - that his furniture was not over-insured; it is true he was in debt, but he was not pressed, and all the money he might get under the insurance would practically - or most of it - go to his creditors.  And therefore, he argued, a man in the plaintiff's position would not be likely to set fire to his house.  Well, I think that is carrying the argument a bit further than it can reasonably be carried.  It amounts to this that it is not people who are in debt who set fire to houses but people who are out of debt.  I merely mention that as a point which occurred to me when Mr. Robinson was laboring that point.  He says the money would have gone to the creditors.  The conclusion therefore is that the people who set fire to the house are not people in debt, which probably does not commend itself to your judgment.  
  At the moment I have been speaking of the possible motive that the plaintiff had; now what possible motive can the servant have had?  It was suggested - though the suggestion came late in the history of the case - that he had a motive.  I say the suggestion came late in the case because it does not seem to have been made until the 2nd January, when Mr. Armstrong was examined for the second time before his consul.  Up to that time no suggestion came from Armstrong, so far as we know, as to any motive at all that the cook can have had.  However, we then get a suggestion of motive from him - that the cook wanted to steal $200 which were concealed between the mattresses, and that in setting fire to the house, he, having first stolen the money, would hope to conceal his theft.  Now to make out that motive you will see that two things were necessary - first, Armstrong must have had the two hundred dollars where he said he had them, and, secondly, the cook must have known they were there.  Now there is nothing in the case that I can discover to show that the cook did know the money was there; he may have known it, but there is nothing to show that he did, and, if you will remember, it was Armstrong's own idea in that putting the money there was preventing the cook, or anyone else, from knowing of its existence.  If he supposed by his putting it there its existence would not become known to the servants, then I fancy you would think it extremely improbable that he would put it there.  But apart from that point the first thing to be made out to your satisfaction is that Armstrong had the money there. Now you must consider that he says he put it there, but it is impossible for anyone to say whether he did or not.  You must therefore look at the probabilities or improbabilities of the story in that connection.
  Now three points have been relied upon by the Insurance Company which go to show, they say, that he had not the money there at all, or certainly not up to the time of the fire. And the three points they rely upon are these. First, he did not pay Fung-tah.  Now Fung Tah was a creditor of Armstrong's whose three-monthly bill came due in the month of December, and who had called in consequence for payment, and whom Armstrong had told he would pay that month.  He gets this sum - this is Armstrong's story - he gets this sum of $200 in hard cash from his employers, Messrs. Farnham and co. and though Fung Tah, his creditor, is within a minute's walk of him in the other direction, he prefers not to go there and say, "Here is $100 out of the $135 I owe you;" he prefers to take it all the way to his house at Tung-ka-doo.  That is one feature which the Insurance Company says is a feature of improbability.  It is a question for you to decide; - all these are points for your decision, and not for mine.  My duty is simply to recall the circumstance to you.
  Then the next circumstance they mention is that he says he hid the money between the mattresses.  Now he had drawers with patent locks in the house - he speaks of a hardwood table; - all securely locked with Chubb's locks, I think he says; and though he had these, he prefers to put the money between the mattresses and keep it there from the day he receives it till the 12th - the day the fire occurs - though for the last five days of that period - from the 7th to the 12th - he did not sleep in the house at all.  That is another circumstance which the Insurance Company rely upon to guide you in coming to a conclusion that this $200 was not there.
  And then the third circumstance - and perhaps the stronger one than any - is that he makes no mention of it at his examination as much as ten days after it is lost.  The fire occurred on the 12th, he was arrested on the evening of the 22nd, and he was taken before his Consul on the morning of the 23rd - that is, as I have said, ten days afterwards. Now is that probable - that in all those days the thing had never recurred to his memory at all? Remember that this is the wo hundred dollars, the month's wages, which he had just got, and which he was so anxious about, according to his own story, that he every day went to satisfy himself by looking between the mattresses to see that it was there, is it possible that his thoughts should never return during the whole of these ten days to that $200?   It was the money, of course, that he intended to pay Fung Tah with, and the time for paying Fung Tah was pretty well past; was there nothing to recall the circumstance to his mind? - For, remember, it had only once to recur to his memory and there was no chance of its escaping his recollection again.  Let him once remember it in the course of those ten days, and, as I say, it is not likely that he would forget it again.  In explanation of this it is said that he was ill at that time.  That of course points to the time when he was arrested in his house - that is to say he was taken ill that day or the day before, or it may even have been a little earlier than that.  But I am not speaking of one or two days; and, as the Company argue, is it probable that during those ten days the missing of this sum of money should never have entered his mind?  He says nothing about it until he is examined before the Consul on the second occasion, and that was on the 2nd January, 185. Then he was assisted by counsel, when the necessity for some motive for the Chinaman setting fire to the house would be seen; and this motive was then for the first time alleged? He himself believed that the fire as due to incendiarism.  Now when incendiarism occurs nothing is more natural than to enquire what was the motive, and it seems to me that the existence of the $200 would, or might at any rate, very naturally occur to the mind in that connection. I have dwelt upon his point at considerable length because it seems to me to be of the last importance.  If you come to the conclusion that he did not place and leave between the mattresses the two hundred dollars, then not only is the crime of the Chinaman entirely motiveless, but having disbelieved the plaintiff on so important a point as that, you must disbelieve him altogether.   That is the first point you really have to consider, and if you come to the conclusion that he did not place the money there as he has stated to you that he did, or did not allow it to remain there till the end, then you need not go beyond that.  If you think he has given a reasonable explanation of all these three points I have mentioned - his not paying the money to Fung Tah, his putting it in this place, and his never mentioning it for ten days - if he has explained away these objections satisfactorily, then you will go on to the other points on which the defendants eely as to his evidence not being trustworthy.
  The first is what he tells Mr. Galles. That is an inconsistency more than anything else.  He goes to Mr. Galles as soon as he returns from the fire and tells him the fire has occurred, and proposes to go for a detective, and Mr. Galles confirms that statement.  Mr. Galles says, "On the morning of the 13th he came to my house, said his house had been burnt and he was in suspicion that fire had been set to it and asked if he should go to the dock with Inspector Mack to inquire into the case.  I gave my consent to it."  That is what he stated to Mr. Galles.  What he told us in the first instance was that he had no suspicion of incendiarism at all till Mack put it into his head.  Now there is a clear conflict of statement there, and that conflict is relied upon as pointing to his evidence being untrustworthy.  Then, the next point is, "I told the cook to stay at the house." That is a point which Mr. Dowdall referred you to this morning.  Armstrong said in the box that he told the cook to stay in the house because he must have someone there.  These are the words that I have in my notes.  But there was more than the words, there was the manner in which he gave his evidence, and that will be fresh in your minds, no doubt.  He certainly gave me the impression that the cook was committing a breach of duty if he was not there.  Well, Mr. Dowdall asked what he had said on that subject before his authorities.  This is what he had said, "My cook Yao Li-sun, was about three years in my service; he smokes opium but I do not know any inhonest of him.  He used to sleep in my house as long as I or my family was there; in the last time, when I frequently went to Shanghai and slept there, the cook also went to his home.  I had no objection to this."  That is one more of the contradictions of Armstrong that the defendants rely upon.
  A similar one is that he motive he suggests for the Chinaman setting fire to the house, when he does suggest a motive, is the furniture.  It is certainly very strange that when he is called upon for his defence at his examination by his authorities and is asked what he has to say, he denied all that the cook had said, and says he believes that the cook set fire to the house in order to ensure this opportunity to get some of the furniture; he says nothing then about the money.  It is strange that at that very examination he had stated the fact that he had put the money under the mattress; but still when he is asked to explain the cook's setting fire to the house he says that is the only motive he thinks of.  It occurred to me to consider, and to suggest to you the question, why it was that he charged the cook in particular.  What reason had he for changing the former good opinion that he had of the cook?  What was it that had occurred to him to say in his own Court that it was the cook and nobody else?  Remember that he had had he cook for four years, and had found no fault with him; and - what is a very important point - when Inspector Mack appeared at the scene of the fire to endeavour to discover the culprit, what did he say?  He said to Mack on the morning of the fire that the cook was a good man and knew nothing about it, and that the cook had left the wharf on the previous evening at 6 o'clock.  Now what does that mean?  Armstrong himself left the wharf at a quarter to twelve on that day.  How could he know on the next morning that the cook had left the wharf at 6?  It was contrary, moreover, to his instructions for the cook to go at all, so he says - though at another time he says he allowed the cook to do it.  But he said the cook had left he place, and therefore it was not he. What does that mean?  Is it an attempt to screen the person whom he has employed to do this - to throw the detective off the scent?  He begins with the statement that the cook left at six.  That he could not know; he himself left before noon.  And when I saw his statement made before his authorities that the cook was the person, I wondered what it was that had made him turn round and say it was the cook. Now the cook was arrested at that time, and was undergoing examination.  The cook was the only person to whom Armstrong, according to the defendants' story, had talked on the subject of setting fire to the house at all, and it is natural, then, that it would be the cook whom he would accuse, because he had spoken to no one else.  That the cook should have spoken to the watchman or to his brother he could not conjecture.  
  Well, gentlemen, these are the points that I think were relied on by the defendants to show that on the whole you should disbelieve Armstrong's story and believe the cook's.  There was one other point which Mr. Dowdall mentioned this morning, and ij which you will probably think there is a great deal of force. Armstrong is, as this morning Mr. Dowdall pointed out, distinctly and directly interested in the result of this suit; the cook is not conceivably interested in any way. He has been, as Mr. Dowdall pointed out, tried for the offence and punished.  The matter for him is at an end, and it is for you to consider whether it is likely that a cook servant to anyone, who has been four years in his employ, should unnecessarily now come here and tell something which would implicate his master in his manner. The master, I must be remembered, took no proceedings against him in the Mixed Court; that was not done by the master at all.  Why should the cook come here now, when he has no purpose which one can conceive at all - he has no motive for revenge against his master - and implicate his master in this way?  That is a point made by Mr. Dowdall, and I commend it with the others to your very careful consideration.  
 There are two other perhaps trifling points which strike me, and which I think I ought to mention, so that you may give to them the weight you think they deserve when you come to review the evidence and give your minds to it.  One was that the cook says his, "I told the watchman," that is, at six o'clock on the day of the fire, when he was leaving Tung-ka-doo, that the house was to be burned that night; I was not willing but my master said here was no danger to me, so I did it; but I thought the best thing that could happen was that the candle should go out." Now it struck me that that is consistent at any rate with what we understand a Chinaman's mode of thought to be.  He says in effect,"I was over-persuaded to do something which I knew was wrong.  I did it, but I thought the best thing that could happen," - that is, he trusted to chance or something else, - "was that the candle should go out." I think that was a rather natural way for a Chinaman considering the subject and expressing himself on it.  
  The other is a rather small matter.  Armstrong told us that when he was making inquiries at the scene of the fire on the morning afterwards the watchman laughed.  Now if there had been a misfortune to Armstrong, caused by an accident, or by someone else's crime - I mean not instigated by Armstrong, - it is not likely that any servant in his employ  would be so hard-hearted as to laugh when his Master was making enquiries as to how the thing occurred.  On the other hand, suppose that the watchman knew, or believed, that the thing was done by the contrivance of the master, you will see that it is not an unnatural thing.
  Now that I have mentioned these points which are relied upon by the defendants, I ought to turn to the points which M. Robinson urged in support of his client, and as against the defendants' witnesses. I think I have referred incidentally to all those except two.  The first is that the plaintiff's papers and testimonials were destroyed; and he says, truly enough, that the first thing a man would save would be his papers; they were destroyed, and therefore he did not set fire to the house.  I think I ought to tell you that we have no evidence as to what became of the papers except what we know from himself.  It may be that it is a fact which is incapable of corroboration but still you must bear this in mind; you must not necessarily believe, because he says "all my papers were lost in the fire," that therefore they were lost.  
  The other one which he also relies upon is that of the contradiction in the evidence of the witnesses for the defence.  Well, the contradictions, if I may say so, appear to me very much smaller than those of the plaintiff himself.  Moreover, the contradictions of Chinese witnesses are always very questionable.  You see for yourselves how imperfect the interpretation is; and I think it would be a mistake to place too much reliance on them.  One instance he gave was that the cook said he stayed at home at one time, and then the next minute he said he did not.  That is, as I understand it, not a contradiction but a correction of what he said before, having perhaps misunderstood he interpreter. It is a very different thing from making a statement later on in the case in conflict with what he said before.
   I ought to mention the two o'clock point.  It would seem that the cook had said throughout that the master left that day at two 'clock - on the 12th, the day of the fire; and it would seem to be proved, I think, that on the contrary he left before 12 o'clock; and the cook must be wrong to that extent.  He is either wrong as to the hours - and he is not likely to be wrong as to two hours, because he fixes the two o'clock by reference to the master having had tiffin - or he may be wrong as to the day.  Suppose that what he is speaking of occurred the day before, all the difficulty that arises on that head, it seems to me, is at once got rid of.  He is now talking about what occurred four months ago, and he might have been mistaken in thinking that what occurred on the day before the fire was what occurred on the day of the fire itself.  On the day of the fire itself Armstrong might have left, as the witnesses say he did, at a quarter to twelve.  
  Now gentlemen, I have gone through as carefully as I can, the points which have been suggested on one side or the other, or have occurred to myself.  You must look more at the probabilities of the case than anything else, it seems to me.  I have instanced the various points on which the defendants rely as showing that Armstrong's story is not likely, and I have also mentioned the ones that Mr. Robinson has alleged on the other side.  You have given very great attention to the evidence, and to the remarks that have been made to you; and I am quite sure, judging from the attention which you have given to the case hitherto, that you will come to a just decision in the matter.  You will now retire and consider your verdict,  If you find on the evidence that Armstrong caused the house to be set on fire you will find a verdict for the defendants; if you find that he did not cause the house to be set on fire, then you will find a verdict for the plaintiff for Tls. 2,000.
  The Jury then retired. After an absence of about half-an-hour they returned and delivered a verdict for the defendants.  

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