Robert Hart, - Appellant; Johannes Von Gumpach, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 November 1872 |
| Date | 14 November 1872 |
| Court | Privy Council |
English Reports Citation: 17 E.R. 505
ON APPEAL FROM HER BRITANNIC MAJESTY'S SUPREME COURT FOR CHINA AND JAPAN.
Mews' Dig. tit. Colony, II. Particular Colonies, 7. China Settlements, III. Appeals to Privy Council, 5. Principles on which Privy Council Acts; tit. Defamation, B. Privilege, 2. Qualified, a. ii. Public and Official Communications; tit. International Law, XI. Foreign Judgment. S.C. L.R. 4 P.C. 439; 42 L.J. P.C. 25; 21 W.R. 365. See Smith's L.C. 10th Ed. vol. 1, pp. 607, 629.
[241] ON APPEAL FROM HER BRITANNIC MAJESTY'S SUPREME COURT FOR CHINA AND JAPAN. ROBERT HART,-Appellant; JOHANNES VON GUMPACH,-Respondent * [Nov. 12, 14, 1872J. In an action brought in Her Majesty's Supreme Court for China and Japan, for false representations made by the Defendant, occupying an official post in the service of the Emperor of China, to the Tsung-li-Yamen, the head of the Foreign Board at Peking, respecting the conduct of the Plaintiff as a Professor in the College established there, which led to his dismissal by that .Board, the alleged misrepresentations being, that the Plaintiff had asked to be relieved from his duties, and declined to perform them, and that he had absented himself from Peking at a time when his active services might be required at the College. The Defendant, in reply, denied that he had made any false representations, and asserted that such representations as he had made were contained in a report made by him in the course of his duty as an Officer of the Chinese Government. The Judge, in his summing-up, directed the jury that, whether the Defendant had made false representations, and the Chinese Government had dismissed the Plaintiff in consequence, was a thing specially for the jury to consider, and whether the * Present:-Sir James William Colvile, Sir Barnes Peacock, Sir Montague Edward Smith, and Sir Robert Porrett Collier. 505 IX MOORE N.S., 242 HART V. GUMPACH [1872] representations were warranted by facts. The jury found for the Plaintiff, and gave large damages. A rule nisi was afterwards obtained for a nonsuit, or new Trial, on the ground of misdirection, and that the verdict was against evidence. The misdirections complained of were (1) that the Judge did not direct the jury that the representations were privileged; (2) not leaving to the jury the question, whether the representations were wilfully false; and (3) that there was no evidence to go to the jury that the representations were wilfully false. The Supreme Court discharged the rule. On appeal: - Held, by the Judicial Committee, that the Judge's summing-up was erroneous, that the representations complained of were privileged communications; that the Judge ought to have explained to the jury the relation and position of the parties, and have told them that the action would not lie, if the statements were made honestly and in a belief of their truth, without proof of express malice, and not, whether they were warranted in fact, and that the burden was on the Plaintiff to prove that they were not so made [9 Moo. P.C. (N.S.) 267-269]. Semble: Where the rules of pleading in a Court in a Foreign Country having jurisdiction over British subjects, are by petition and answer, the several paragraphs of the answer can be read together, and not as in English pleadings, treated as separate pleas [9 Moo. P.C. (N.S.) 273, 274]. Her Majesty's Supreme Court for China and Japan, established by Order in Council of the 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," has jurisdiction to try such action for alleged false representations [9 Moo. P.C. (N.S.) 275-278]. This case was brought by appeal from two several Judgments and Orders of Her Majesty's Supreme Court for China and Japan, at Shanghai, made respectively on the 29th of March, 1870, and on the [242] 3rd of May, 1870, in an action wherein the Respondent was the Plaintiff, and Appellant the Defendant. The Appellant occupied an official position in the service of the Emperor of China as Inspector-General of Customs. The Respondent, for some time prior to the commencement of the action, was also in the service of the Emperor of China, as one of the Professors of the Tung-Wen-Kwan, a College of the western sciences at Peking, having been so appointed by [243] the Appellant, under the authority given him by the Tsung-li-Yamen, or Foreign Board, at Peking. In February, 1870, the Respondent filed a petition against the Appellant before the Chief Judge of the Supreme Court for China and Japan, whereby he alleged, that the Appellant had induced him, by false and fraudulent representations, to leave England and accept the appointment of Professor in the Twng-Wen-Kwan. The petition further alleged, that the Appellant had wilfully and falsely represented to the Tsung-li-Yamen at Peking, that the Respondent had asked to be relieved from his duties as Professor, and declined to perform them; that he had absented himself from Peking at a time when his active services might be required in the College, and that the Appellant had thereby obtained an intimation from the Tsung-li-Yamen that the services of the Respondent were not required. The petition further alleged, that the sum of 700 was due from the Appellant to the Respondent for money had and received and on account stated between them. The Appellant, by his answer, denied hat he made the false and fraudulent representations alleged to have been made by him to the Respondent. He further denied that he made to the Tsung-li-Yamen the wilful and false representations alleged. As regarded the money claim, the answer stated, that the Respondent had received salary or compensation up to the 30th of September, 1869; that taels 158 had been paid to the order, or by the direction, of the Respondent to certain persons at Peking; and that taels 176.20, being the balance of a sum which the Chinese Government were willing to pay to the [244] Respondent, for certain considerations, known to the Government, were tendered to the Respondent, but he refused to sign the receipt, which by the authority of the Government, was required of him, and that 506 HART V. GDMPAOH [1872] IX MOORE N.S., 24S the Appellant never was indebted to the Bespondent. The answer, in addition, contained the following paragraphs, referring especially to the alleged false representations to the Tsung-li-Yamen : - " And for an answer to so much of the petition as is contained in the 7th, 8th, and 9th paragraphs of the said petition, the Defendant says that, previous to and at the time of the said representations complained of, the Plaintiff and the Defendant were both in the employ of the Chinese Government, and it was the Defendant's duty, in pursuance of such employment, at various times, and from time to time, to report to the Tsung-li-Yamen, or Foreign Board, at Peking, upon the conduct of, and representations and movements of, the Professors attached to the Tung-wen-Kwan, and upon those of the Plaintiff amongst others; and the Defendant, in the ordinary course, and in the lawful exercise of his duty, and because it became necessary and incumbent upon him by his duty to the said Chinese Government, in pursuance of such employment as aforesaid, to do so, and as an act of 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 in the said petition." " And for a further answer to the whole of the said petition, the Defendant says-That in so far as it relates to any representations made and acts done, having reference to the said Tung-wen-Kwan, he was [245] previous to, and both he and the Plaintiff were during the whole of the time in the said petition referred to, in the employ of the Chinese Government, and in such employment it became and was his, the Defendant's, duty to superintend all the affairs connected with the Tung-wen-Kwan, and the foreigners connected therewith, and to make such representations, 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, or 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 to the said Imperial Chinese Government, and in pursuance of no-other object, and in virtue of his said position, and in virtue of no other." The Respondent moved for, and obtained leave to demur to the paragraphs above set forth. The demurrer came on to be argued on the 29th of March, 1870, when judgment was given for the Respondent, and it was ordered, that those paragraphs (amongst others) should be struck out as furnishing no answer in law. The answer of the Appellant was accordingly amended pursuant to this Order. The action came on for trial on the 13th of April, 1870, before C. W. Godwin, Esq., Assistant Judge of the Supreme Court for China and Japan, and a jury. [246] The facts of the case were, in substance, as follows: - The Appellant, who was formerly in the employ of the British Consular Service in China, had accepted, some years ago, from the Chinese Government, the appointment of Inspector-General of Customs. Amongst other duties he had to look after the Foreign Department of the Tung-Wen-Kwan, an institution established at Peking for the purpose of teaching the Chinese, western languages and sciences. The Appellant left China for Europe...
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