Before Sir J. Couviue, Sir B. PeAcocr, Sir M. Surm, Sir R. Coutter, and Sir L. Per.
Harr vor Goaracu.
China anti Japan came ea fie Rotsog, and This appeal from Her Majesty's Court for
presented some remarkable features. The pellant is a British subject,'and occupies an important position in the service of the Em: peror of China as inspector-general of Customs. The respondent is a naturalised British object, and is an astronomer and mathematic ian, " Both met in London in August, 1860, and it was alleged that Hart represented to Von Gumpach thst he was entrusted with the formation of a college and observatory at Peking, which college was to be an institution for the teaching to the Chinese of Western sciences and learning, "with a view to the procure a library and appoint professors. In regeneration of China," and that he was to
consequence of these alleged 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 that Hart represented to the had al himself, and he received an in-'Tsung-li Yamen, or Fore; Board, that he
timation from the Chinese Government that yuited; and appellant was that these 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 misrepri tations, and stated that the Court at Peking had found in his favour as to the representations, and gove damages to Von Gumpach for the loss of his situation, and for money due on account stated. He appealed on several inds—that the verdict was against evilence, on misdirection, and on the privileged communications.
Sir John Karslake, Q.C., with whom was Mr. F. Herschell (instructed by Messrs. Murray and Hutchins), appeared for the appellant Mr. Benjamin, Q.C., and Mr, Myburgh (lar stracted by Messrs. Brooks and Ca., of Doctors-commons) were for the respondent, the plaintiff in the original action.
Mr. Benjamin discussed the several points. He urged that the appellant was liable to the respondent for the wrongs he had committed against him. The Chinese Government had not adopted the acts of the appellant as their servant, and therefore it was no Act of State. It was idle for the appellant to say that what he did was by order of the Chinese Government, and that, therefore, he was not amenable to the laws in her Majesty's Court for in support of his contentions that unless a China and Japan, He cited various authorities
Gorernment adopted the acts of their servant, the servant was liable, and could not shield himself under the authority of an Act of State and justify the wrong he had committed. Fur ther, the learned counsel submitted that Hor Majesty's Treaty with the Emperor of China gave all British subjects a right to resort to the Supreme Court for redress; and it was no answer for the appellant (the original defendant) to say what he had done was as servant of the Emperor when malice was alleged against him. The question of privilege would not go to such an extent as to shield a man from false representations, and none of the eases cited would support the pointe raised by the other side. Mr. Myburgh followed on the same side.
Sir John Karslake, in reply, cited several cases in support of the view he' had submitted amely, that the original action could not be maintained, and that the demurrer ought to have been allowed. It was not an action. between two British subjects, as was contem~ Mfinister" of China for an act done as such ated by the Treaty, but an' action againat a.
Minister. Both parties had been in the sorvicoof the Emperor, and the reports made by Mr, Hart were privileged communications, and it was not by merely alleging malice that the refection extended to such documents was to removed. The matter was of importance, and he asked their Lordships to allow the ap-
Sir Montagu Smith, on the conclusion of the arguments, announced that their Lordships would take time to consider their judgment.
Text read from the printed page and cleaned; old type leaves the occasional error.