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THE WU SHIH SHAN TRIAL. 
 
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 REPORT 
 
 
 OF THE CASE OF 
 
 CHOW CHANG KUNG, LIN KING CHING, 
 LOO KING FAH, SAT KEOK MIN, 
 
 DIKECTORS OF THE TAOU SHAN KWAN TEMPLE, AT 
 
 WU SHIH SHAN, FOOCHOW, 
 
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 VERSUS 
 
 REV. JOHN R. WOLFE, 
 
 OF THE CHUECH OF ENGLAND MISSIONAEY SOCIETY, 
 
 (REPRINTED FROM THE "HONGKONG DAILY PRESS"). 
 
 HONGKONG : 
 
 PRINTED AT THE "DAILY PRESS" OFFICE, 
 
 WTNDllAM STREET. 
 
 1879. 
 
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THE WU SIIIH SHAN CASE. 
 
 IN H.B.M. SUPREME COURT FOR CHINA. 
 
 April 30th, 1879. 
 
 Before His Honour Chief Justice 
 French, sitting at Foochow. 
 
 Chow 
 
 Chang Kung and others v. the 
 Rev. John R. Wolfe. 
 
 This was an action brought by the Directors 
 of the Taou Shau Kwan Temple, Wu Shih Shan, 
 Foochow, against the Rev. J. R. Wolfe, of the 
 English Church Missionary Society, to have the 
 rights of the parties in relation to certain land 
 occupied by the defendant defined. Mr. T. C. 
 Hayllar, Q.C., appeared for the plaintiffs, and 
 Mr. N. J. Hannen for the defendant. 
 
 The court room at the Consulate being' too 
 small to accommodate the number of people who 
 were expected to attend a large room in a vacant 
 house was engaged for the occasion, and during 
 the greater part of the day it was crowded, both 
 Europeans and Chinese evincing great interest 
 in the case. Amongst those present in Court 
 were Sir Thomas Wade, Mr. Consul Sinclair, 
 Their Excellencies Fang Taotai, Shing Taotai, 
 and several other mandarins, who all appeared in 
 their official robes, with a number of ladies. 
 
 Before proceedings were commenced Mr. 
 Hayllar was, on the motion of Mr. Hannen, 
 formally admitted to the bar of the Supreme 
 Court for China. 
 
 The pleadings in the case were as follows : — 
 
 IN HER BRITANNIC MAJESTY'S COURT AT 
 FOOCHOW. 
 
 The 2ra of April, 1879. 
 
 BETWEEN 
 
 Chow Chang Kung, Lin King Ching, Loo 
 King Fah, and Sat Keok Min, Directors of 
 the Taou Shan Kwan Temple, situate at Wu Shih 
 Shan, in the City of Foochow, in the Empire of 
 China, Plaintiffs ; 
 
 and 
 TheReverend John R. Wolfe, a British subject 
 and a clerk in Holy Orders, residing at Foochow 
 aforesaid, who is also sued on behalf of the Eng- 
 lish Church Missionary Society, Defendant. 
 
 To Charles A. Sinclair,, Bs'qtiire,'H^f6riTbaii-''' 
 nic Majesty's Consul at Foochow. 
 The re-amended Petition of Chow Chang ^ 
 Kung, Lin Kin Ching, Loo Ki g Fah, and 
 Sat KEOKMiN,theabove-named plaintiffs, shows 
 
 as follows : — 
 
 1. — The Taou Shan Kwan Temple situate at Wu 
 Shih Shan in the city of Foochow together 
 with the buildings and lands belonging 
 thereto are the property of the city of Foo- 
 chow. The direction and management of 
 the said Temple lauds and premises and the 
 control and expenditure of the funds belong- 
 ing thereto are vested in directors duly ap- 
 pointed. The plaintiffs Chow Chang 
 Kung, Lin King Chang, Loo King Fah, 
 and Sat Keok Mtn are four of the said 
 directors and 5ue for themselves and the 
 other directors. 
 
 2 The Defendant is a subject of Her Britannic 
 
 Majesty and a clerk in Holy Orders residing 
 at Foochow and performing there the duties 
 of a Missionary of the English Church 
 Missionary Society of which said Society he 
 is the responsible head at Foochow. 
 3— In all cases where licence to build in the 
 locality of Wu Shih Shan has been applied 
 for by foreigners great care has been exer- 
 cised in providing regulations touching the 
 height and nature of the stnicture to be 
 erected and the boundaries of the land to be 
 built upon. 
 4.— In or about the Christian year 1850 the re- 
 presentatives at Foochow of the English 
 Church Missionary Society first obtained a 
 lease of premises at Wu Shih ^ han. The 
 representatives were the Reverend ... Wel- 
 TON and the Reverend ... Jackson, and by 
 an agreement of rent in the Chinese lan- 
 guage bearing date the 18th December 
 1850 and purporting to be made by 
 and between the said Welton and Jack- 
 son, Shing the Haukwan District Ma- 
 gistrate, Charles A. Sinclair the Inter- 
 preter to the British Consulate at Foochow, 
 and a certain Taouist Priest named LliJ 
 Yung Mow, it was, after reciting that the 
 said Missionaries were in want of houses for 
 
 S22578 
 
THE WU SHIH SHAN CASE. 
 
 their residence, agreed that the said Mis- 
 sionaries thereby rented from the said Taouist 
 Priest two houses situated resi^ectively at 
 the back and front of the left hand of the 
 Taou Shan Kwan at Wu Shih Shan which 
 were specified as follows: — One house with 
 five rooms in a row broadwise to which was 
 attached an outhousa and an open yard at 
 ••;ba*oi: and'fr^rkti.'Onef house with four ro ms 
 'liH.a row.bi«oa5wlse a^the back to which was 
 attaqJiecl,ao. outhouse h'a'ving an up^ier storey 
 .**. : p/l%i>**r€)cnBs ^asd-Vst Jp/s^er storey of one 
 • * * • Vodih and an'open'yard. It was also thereby 
 agreed that the rent of the above houses 
 should be $100 per annum, and that rent for 
 three months should be paid in advance, 
 that the payments should be made accord- 
 ing to the English Calendar, that the said 
 Taouist Priest should not interfere with or 
 obstruct any woz-ks that might be go in. on 
 or repairs that might be made inside the 
 houses, which were to be done at the ex- 
 pense of the lessees ; that it should be at 
 the option of the lessees to continue the 
 hiring of the said houses and that the said 
 Taouist Priest should not be at liberty to let 
 them to other persons. The said document 
 bears the British Consular ^ eal and that of 
 the Hank wan District Magisti-ate. 
 
 5. — The abo' e-mentioned two houses were Chi- 
 nese built and were erected on land belong- 
 ing to and formed part of the out-buildings 
 of the Taou Shan Kwan Temple. Having 
 entered into possession thereof under the 
 said agreement of rent the said lessees did 
 subsequently remove the said two houses 
 and erect in their stead two structures of 
 foreign design occupying sites considerably 
 larger than those of the original buildings. 
 One of these new buildings the said lessees 
 used as a dwelling house, while the other 
 they employed as a school house for girls. 
 
 6. — In the Christian year 1855 the said English 
 Chui-ch Missionary Society being then re- 
 presented at Foochow by the Reverend . . . 
 Fearnley and the said Mr. Welton, by 
 an agreement of rent in theCbineselanguage 
 made by and between a Taouist Priest of the 
 said temple named Chung Yuen Ching and 
 the said Messieurs Fear ley and Welton, 
 but without the consent or knowledge of 
 any one authorized in that behalf, agreed to 
 rent and the said Priest agreed to let to the 
 said two Missionaries a row of four rooms 
 going straight in situated on the right hand 
 side if the said Taou Shan Kwan Temple. 
 It was thereby agreed that the annual rent 
 thereof should bo !)i)20 payable quarterly and 
 that the said tenants should pay rent before 
 they could enjoy the occupation of the said 
 
 premises. It was also agreed that no rent 
 would be allowed to fall into arrear and that 
 should it fall into arrear the said Chun 
 YuE ■; Ching might i-esume and let the pro- 
 perty to other persons and that if rent was 
 properly paid the said property might not 
 be let to any one else. The said document 
 was not recorded at the British Consulate, 
 nor did it bear the said Consular seal, nor 
 that of the Haukwan District Magistrate. 
 
 7. — The said row of four rooms comprised three 
 dwelling rooms and one servant's room, and 
 were of the same description as the surround- 
 ing native houses. The said Missionaries 
 having entered into possession of the said 
 rooms did alter and extend the said rooms by 
 adding an upper storey and other rooms 
 below. 
 
 8. — A certain Eeverend George Smith, a Mis- 
 sionary of the said English < Lurch Mission- 
 ary Society, did, at some time unknown to 
 the plaintilfs, but previous to the Christian 
 year 1867, without any authority, verbally 
 rent from a certain Priest of the said Tem- 
 ple, a small piece of land the property of the 
 said Temple, and lying contiguous thereto. 
 The situation and boundaries of the said 
 piece of land have never been ascertained or 
 agreed upon, and up to the jn-esent time are 
 in dispute. 
 
 9. — In or about the Christian year 1862 or 1^63 
 the defendant arrived in Foochow and from 
 or soon after the time of his arrival he has 
 actively interferpd in, or has had the manage- 
 ment of the affairs of the said English 
 Church i\ issionary Society so far as they 
 relate to the property at Wu Shih Shan 
 which forms the subject of the present suit, 
 and he has made frequent attempts to get 
 a perpetual lease thereof. 
 
 10. — In or about the 12th moon of the 4th year 
 of Tung Chi (1865) the defendant obtained 
 from the said Taoist Priest, Chun Yuen 
 Chivg, without the knowledge or authority 
 of the Proprietors or Directors of the said 
 Temple, a document purporting to convey 
 to the said Defendant for the consideration 
 of $800 paid by him to the said Priest, a 
 perpetual lease of the hereinbefore mentioned 
 lands, buildings, and premises. Upon this 
 fact coming to the knowledge of the said 
 Directors they caused the said lease to be 
 cancelled. 
 
 11. — Again in the 5th moon of the 5th year of 
 Tung Chi (1866) the Defendant without the 
 authority or knowledge of the Proprietors 
 or Directors of the said Temple obtained 
 from the said Taouist Priest, Chun Yuen 
 Ching, another document purporting to 
 convey to the Defendant for the considera- 
 
THE WU SHIH SHAN CASE. 
 
 tion of §500 paid by him to the said Priest, 
 a perpetual lease of the hereinbefore men- 
 tioned lauds buildings and premises situated 
 on the right and left hand sides of the said 
 Taou hau Kwan Tenijile. The said docu- 
 ment was forwarded to the local Chinese 
 Authorities through the British Consulate 
 with a view to its being registered. Upon 
 these facts being brought to the knowledge 
 of the said Directors of the said Temple the 
 said. Priest was handed over to the local 
 Chinese Authorities for examination and 
 punishment and he was duly punished. An 
 inquiry into the matter was also held by the 
 British Consul, Mr. Carri 'LL, who formally 
 decided tbat as the premises could not be 
 leased for a perpetual term on account of 
 their being property maintained by sub- 
 scription by the gentry and people, the pro- 
 perty should be annually hired as before, and 
 that the said last mentioned agreement 
 should be withdrawn and returned to the 
 defendant. This was accordingly done. 
 12. — This decision notwithstanding, the defend- 
 ant did again on the 4th day of the ith. moon 
 of the 5th year of Tung Chi (August 13th, 
 lb66) obtain from the said ( HUN Yuen 
 Thing a document in the Chinese language, 
 translation whereof is as follows, that is to 
 say:— 
 A note of money borrowed made by Chun 
 Yuen Ching a Taouist Priest of the Taou 
 Shan Kwan, who having now borrowed of 
 Mr. Wolfe a British missionary ^500 per- 
 sonally agrees to pay interest upon the 
 amount at the rate of two and two per cent. 
 per mensem that is $11 per month which is 
 to be deducted quarterly from the amount of 
 rent of $.33 payable quarterly by Mr. Wolfe. 
 The rent will not be paid till the loan is re- 
 funded and before the repayment of the said 
 loan neither the Taouist Priest himself nor 
 any of the other Priests at the Temple shall 
 call to collect the rent. None of the mis- 
 sionaries whoever they be shall after the 
 return of Mr. Wolfe to England be called 
 Bpon to i)ay rent. If the Priest wish to 
 collect the rent it is pr^ >per that the loan 
 should be refunded to the Britis^h mis- 
 sionary and then the Priest may again col- 
 lect the rent quarterly. Fearing words of 
 mouth will not afford evidence this note of 
 money borrowed is therefore drawn up to 
 serve as proof. 
 
 Witness 
 
 (Siened) Sit Ml" g Yung. A Taouist Priest. 
 
 (Signed) Chun Yuen Ching, 
 
 maker of the above note. 
 
 Tung Chi 5th year, 7th moon, 4th day. 
 
 August 13th, 18ij6. 
 
 13. — On the 10th day of the . th moon of the 4th. 
 year of Tung Chi ( 1 65) an official 
 
 communication was received hy the Prefect 
 of Foochow from the then British Con-ul, 
 forwai-ding a petition from the defendant 
 which represented that as violent beggars 
 repaired to the outside of his h use to lodge 
 for the night, and bad odours were caused by 
 the larg-e number of dead bodies of infants 
 always thrown at his door, he desired to 
 have added to his house some spare ground 
 measuring from 4 to 5 chaugs in length and 
 from 2 to 3 changs in breadth in order that 
 he might put up an enclosing- wall with a 
 V iew of excluding these nuisances and prayed 
 that for the above purpose he, ihe defendant, 
 might be allowed to erect an enclosing* wall 
 on the spare ground just outside his door. 
 After an inspection > f the locus in quo on 
 the part of the local authorities the prayer 
 of the said petitiou was granted and the 
 desired wall was erected by the defendant. 
 
 14. — In or about the 8th moon of the 5th year of 
 Tung Chi (corresponding to the month of 
 September, 1866) an Agreement of Rent in 
 the Chinese language was made and entered 
 into between the defendant and othei-s of the 
 said English Church Missionary Society 
 and the gentry of the City of Foochow and 
 the Directors of the Ta u l>han Kwaa Temple 
 translation whereof is as follows : 
 
 An agreement of Rent made by missionary 
 John W' lfe and others of the C urch 
 Mission of England. As they wish to rent 
 a piece of Government ground close by the 
 ' Wun Chang Kung' temple of the 'Taou 
 Shan Kwan ' temple in the district of ' Hau 
 Kwan ' for building purposes, and as the 
 local authorities have been communicated 
 with by Consul 'Kah' (Carroll) and at 
 his request the gentry and directors of the 
 said place have been invited to go with them 
 and make a clear inspection of the dimen- 
 sions of the said piece of land it is found 
 that the ground on the East side thereof 
 abuts on the boundary of the house of the 
 'Chea' family, on the West side thereof 
 on that of the house of the "Chang" family, 
 on the south side thereof on that of the 
 ' Lee Choe Kung' temple, and on the north 
 side thereof on the hill path : measui-ing 15 
 kungs (5 to 6 feet) in breadth, and 18 kungs 
 in length. The houses t > be built thereon 
 will be of the same description as those in 
 the neighbourhood — not detrimental to the 
 position of the neighbouring native houses. 
 The ground is rented through Chow Fukg 
 Yuen and other gentry and directors of the 
 'Wun Chang Kung' temple duly appointed 
 
THE WU SHIH SHAN CASE. 
 
 at a public meeting, for fifteen foreign dollars 
 of full weight per annum, wnich rent is to be 
 handed over to the British Consul annually 
 in advance with, ut default, for transmission 
 to ' Chow ' and the other gentry, to be 
 spent in aid of the cause of 'Respect for 
 written papers ' in ' Wun Chang Kung." 
 The tenants shall from this date build 
 houses within the boundary as above de- 
 scribed, without the least encroachment, and 
 the houses so built shall not be higher than 
 the neighbouring native houses or to the 
 detriment of their positions. As this is Go- 
 vernment ground it shall on n.) account be 
 sublet to other persons for building houses 
 thereon, it is leased for a term of twenty 
 years ; at the expiration of the said term if 
 before the departure of the tenants for their 
 native country China should require the 
 said ground for her own use one month's 
 previous notice to that effect will be given 
 to the tenants who will then give up posses- 
 sion of it without the least hindrance. Hav- 
 ing regard to the relations between Chinese 
 and foreigners this step is taken to meet the 
 existing circumstances of the case and it 
 should not be regarded as a precedent in fu 
 ture. This Agreement of rent is therefore 
 drawn up in quadruplicate both in English 
 and Chinese, the British Consul, the local 
 authorities, the gentry and the directors of 
 the ' Wun Chang Kung ' temple and the 
 tenants each keeping one copy as proof. As 
 the above mentioned land which was at first 
 rented from Wang Cheang Shang and his 
 son Wang Ho Shang, chair bearers by trade, 
 has on enquiry been found to be Government 
 property, which they had let by means of 
 false deeds, the above mentioned Agreement 
 of Rent has therefore been made without re- 
 luctance and the false deeds seven in num- 
 ber given by Wang Cheang Shang and 
 the others are now given up to the local 
 authorities to be destroyed. 
 
 (Signed) John Wolfe. 
 
 Tung Chi .5th year Slii moon, 4th day. 
 
 September, 1866. 
 Seal of fT.B.M. Consul. 
 Seal of the 
 Hau Kwan 
 District Magistrate. 
 
 1^-— Tte piece of land mentioned in the said last 
 herein l)(if., re mentioned agreement is now in 
 the possession of the defendant and certain 
 buildings have been erected by him and are 
 still standing thereon. 
 
 16.— In or about the m nth of August, 1867, an 
 "Agreement of Rent" in the Chinese 
 
 language was entered into between the 
 defendant and the Directors of the Taou 
 Shan Kwan temple, translation of which is 
 as follows: — 
 
 "Agreement of Rent. The British missionary 
 John R. Wolfe agrees with the Direc- 
 tors of the Taou Shan Kwan temple to 
 rent from them the following property, 
 which was formerly in the 30th year Tau 
 Kwan rented by the missionaries Welton 
 and Jackson— namely two houses situated 
 respectively at the back and at the front of 
 the left hand side of the Taou Shan Kwan 
 [these two houses are as follows] 1. One 
 five roomed house with an out house and 
 some waste ground at back and front. 2. 
 One four roomed house at the back with an 
 out house having an upper storey and a lower 
 storey of one room and a piece of waste 
 ground. The rent of the above to be as of 
 old SlOO per annum. Also (Mr. Wolfe 
 agrees) to rent the following property, which 
 was originally rented in the fifth year Hsien 
 Feng to the missionaries Welton and 
 Fearnley, namely, Four rooms on the 
 right hand side of the Taou Shan Kwan 
 going straight in : The rent to be as of old 
 $20 per annum. Also a small piece of land 
 formerly hired under a verbal agreement by 
 the missionary George Smith : The rent 
 to be as of old §12 per annum. These 
 amount in all to a yearly sum of $1-32, the 
 first instalment of which for the summer 
 quarter, viz., $33 to be paid at once to the 
 Trade Committee for transmission through 
 the Directors of the Temple to the Taouist 
 priests to be used in the service of the 
 Temple. It is agreed that the same sum 
 be paid quarterly, in advance, according 
 to the English Calendar, to the Trade Com- 
 mittee for transmission, and the rent be not 
 allowed to get into arrears Should this 
 happen, the Directors may let the place to 
 some one else. On the other hand if the 
 rent does not get into arrears the place may 
 not be let to any one pUo. Both parties 
 being of the same mind ; f^ither of them can 
 withdraw. It is f herefor^ 'considered advis- 
 able to draw up this airvAetnent in triplicate 
 to be kept by the different parties. 
 
 Guarantor— Consul Sinclair. 
 Dated August, 1867. 
 
 (Signed) Chow Taou Wen. ) Directors of the 
 (Signed) Lin Yune Chin. J TaouShanKwan 
 (Signed) Joh.m R. Wolfe. 
 
 Seal of 
 
 British 
 
 Han Kwan 
 
 Consular 
 
 Magistrate. 
 
 Seal. 
 
THE WU SHIH SHAN CASE. 
 
 17. — The said Chow Taou Wen and 1 in Yune 
 Chin are dead. 
 
 18. — No one of the houses mentioned and par- 
 ticularly desci'ibed in the said last mentioned 
 Agreement of Rent was in actual existence 
 at the date thereof, but the defendant who 
 was at the said time in possession of the 
 buildings which had been substituted for 
 the said houses under the terms of the agree- 
 ments of 1850 and 1855 herein before appear- 
 ing, remained and still remains in possession 
 thereof as well as of the piece of land 
 formerly let to the Reverend Geoege 
 Smith and has paid rent for the same. 
 
 19. — In or about the year 187 1 the house wliich 
 has been built in lieu of one of those leased 
 as aforesaid in 1850 to Messieurs Jackson 
 and Welton. and which had been occupied 
 as a residence by the defendant or other 
 missionaries, caught fire and was burnt; and 
 the defendant erected in its stead a much 
 more extensive and lofty structure, and in 
 so doing enci'oached on land belonging to 
 the said Temple other than that leased to 
 him and destroyed and removed a large rock. 
 In so doing he acted without rigfht or au- 
 thority. The defendant is still in posses- 
 sion of the said last mentioned house. 
 
 20.— In constructing a gateway and entrance 
 road to the said house the defendant has in- 
 terfered with and blocked up an ancient right 
 of way. I 
 
 21.— In or about the 3rd moon of the 2nd year 
 of Kwang-Shii ( 1867) 
 
 the defendant without any proper license or 
 authority erected an enclosing wall which, 
 commencing on the north side of the said 
 house occupied as a residence by the Mis- 
 sionaries, extended to the West side of the 
 Hill and enclosed together with a portion 
 of the ground leased to him by the said 
 Agreement of 1867 other ground wrongfully 
 claimed by him under the said Agreement. 
 
 22. — Complaint having been made to the local 
 authorities by the gentiy of Foochow with 
 reference to the said wall, the matter was 
 referred to the British Consul, and by his 
 directions the said wall was pulled down. 
 
 23. — In the same year and shortly after the 
 demolition of the said wall the defendant 
 without any proper license or authority 
 erected another wall following the same 
 direction as, but built on a line considerably 
 within, that previously followed by the first 
 mentioned wall. This wall, which is still in 
 existence, wrongfully encloses together with 
 a portion of the ground leased to him by the 
 Agreement of 1867 other ground and several 
 famou8 and memorial rocks standing thereon 
 
 wrongfully claimed by him under the said 
 Agreement. 
 
 24. — During the year 1878 the defendant with- 
 out any pi-oper license or authority pro- 
 ceeded to erect on ground enclosed within the 
 said wall to which he wrongfully lays claim 
 under the said Agreement of 1867 a lofty 
 and prominent structure of foreign design. 
 Against this act of encroachment the gentry 
 and inhabitants of Foochow complained to 
 the local authorities and the matter was 
 referred to the British Consul. Negotiations 
 ensued and certain terms of arrangement 
 which had been arrived at were referred to 
 the High Authorities in England for final 
 settlement. Pending such settlement, how- 
 ever, the defendant, wrongfully and in 
 breach of good faith, proceeded with the 
 works upon the said building, and when the 
 same were nearly completed the building 
 was burnt by a mob. The walls however 
 are still standing, and the defendant still 
 claims to hold the land on which they stand 
 under the provisions of the Agreement of 
 Rent of August, 1867. 
 
 25. — The plaintiffs allege that the system of 
 ■ ever recurring acts of encroachment and 
 breaches of agreement with reference to the 
 hereinbefore mentioned lands and the build- 
 ings standing and being thereon herein- 
 before narrated, have heretofore led to great 
 troubles and to collisions between the in- 
 habitants of Foochow and the missionaries 
 of the English Church Missionary Society 
 located at Wu Shih Shan ; and they fear 
 and have good cause to fear that unless the 
 rights of the several parties interested in 
 the said lands and premises be ascertained 
 and declared by the decree of this Honourable 
 Court as hereinafter prayed, the future deal- 
 ings of the defendant with the said lands and 
 premises will give rise to further troubles. 
 
 The Plaintiffs therefore pray : — 
 
 1. — That the rights of the parties interested 
 therein, in and under the lease of Septem- 
 ber 186'> hereinbefore set forth, may be 
 ascertained and declared. 
 
 2. — That the agreement of Rent dated August 
 18H7 between the defendant and the said 
 Chow Tao Wen and Lin- Yune Chin 
 deceased may be declared and decreed to 
 be void. 
 
 3. — That it may be ordered and decreed that 
 the defendant has by his unauthorized and 
 wrongful dealings with the lands premises 
 and buildings leased or purporting to be 
 leased by the agreement of August 1867 
 forfeited' all his right and title in and to 
 the said lauds premises and buildings. 
 
8 
 
 THE WU SHIH SHAN CASE. 
 
 4. — That the rights of the parties interested 
 in the Agreement of Aiigust 18'i7 may be 
 ascertained and declared and that the dura- 
 tion of the term of defendant's tena' cy 
 and the nature thereof may be ascertained 
 and prescribed. 
 
 -That the boundaries of the land leased or 
 purporting to be leased t the defendant 
 by the agreement of August 1867 may 
 also be ascertained and declared. 
 
 -That the plaintiffs may have such further 
 and other relief as the nature of the case 
 
 0. 
 
 may require. 
 
 T. C. Hayllar, 
 Counsel for the Plaintiffs. 
 
 The answer of Joh:^ R. Wolfe, the above named 
 
 defendant, to the amen led petition of the above 
 
 named Plaintiffs. 
 
 In answer to the said amended petition I, 
 John R. Wolfe, say as follows : — 
 
 1. — I do not know whether the allegations con- 
 tained in the 1st paragraph of the said 
 amended petition are true or not. 
 
 2. — I admit the allegations in the 2nd paragraph 
 of the said amended petition, with the ex- 
 c pti n of my being the resp nsible head of 
 the English Church Missionary Society at 
 Foochow, which epithet of responsible I do 
 not understand. 
 
 3. — I deny the statements in paragraph 3 of the 
 said amended petition. 
 
 4. — I admit that in or about the month of De- 
 cember, 1"^50, the missionaries Welton and 
 Jackson did, with t le knowledge and sanc- 
 tion of the Chinese Magistrate for the 
 Haukwan district, rent from a certain 
 Taouist priest the premises at Wu Shih 
 Shan described in the ith paragraph of the 
 amended petitioa. I do not admit that 
 the agreement dated the 18th Decembei-. 
 1850, is correctly set out or the premises 
 correctly described, but crave leave to refer 
 to the same when pr 'duced at the hearing 
 of this cause and I put t le plaintiffs to the 
 proof of their allegation th:vt the said Messrs. 
 Welton and Jackson were the representa- 
 tives of the Church Missionary Society. 
 
 -5. — I admit the statements in the 5th paragraph 
 of the amended petition. 
 
 6. — In answer to the 6th paragraph of the 
 amended petition I admit that in the year 
 1855 the Missionaries Feariiley and Welton 
 did agree to rent four rooms in the Taou 
 Shan Kwan Temple, but I deny that they 
 did so without the consent or knowledge of 
 
 10 
 
 11. 
 
 any one authorised in that behalf and I put 
 the plaintiffs to the proof of their allegatioE 
 that the said Messrs. Fearnley and Welton 
 represented the Church Missionary Society 
 at Foc^jhow. 
 —In answer to paragraph 7 of the amended 
 petition I deny that the said Missionaries 
 did alter and extend the said premises by 
 adding other rooms below. 
 
 —I admit tbat the Rev. George Smith did 
 rent from a priest of the said temple a piece 
 of land contiguous to the said temple, as 
 stated in the 8th paragraph of the amended 
 petition, but I deny that either the said 
 George Smith or the lessor had no autho- 
 rity to rent the said land and I deny that 
 the boundaries of the said piece of land have 
 always been in dispute before the filing of 
 the plaintiffs' petition. On the contrary 
 I say that the said boundaries have always 
 been well defined, admitted, and recognised 
 by the lessors. 
 
 —I admit that I arrived in Foochow in the 
 year 1862 and that since about the year 1863 
 in the month of September I have had the 
 management of the property at Wu Shik 
 Shan, the subject matter of this suit, and 
 that I have endeavoured to arrange for its 
 absolute conveyance free from the payment 
 of rent. 
 
 — I deny the statements made in paragraph 
 10 of the amended petition, but I say that I 
 believe that about the time therein mentioned 
 the said Taouist priest Chun Yuen Ching 
 offered to sell to me a small house called 
 the Blind Man's Temple, but I never 
 paid him any money, nor did I obtain any 
 document t'fom him. 
 
 -As to the 11th paragraph of the amended 
 petition I say that about the time therein 
 mentioned tbe said priest told me that 
 he had the permission of the proper autho- 
 I'ities to sell the grounds and buildings 
 occupied by the missionaries. I con- 
 sented to purchase the same if the deeds 
 were duly sealed aud stamped by the proper 
 authorities and the property legally trans- 
 ferred. The price agreed upon was consi- 
 derably over §500, but §500 was paid by me 
 to the said priest as part of the purchase 
 money. The I'emainder was to be paid by 
 me as soou as the Chinese authorities had 
 stamped the deeds. The necessary deeds 
 were drawn up by the said priest and sent 
 through Her Britannic Majesty's Consul at 
 Foochow to the proper Chinese officers. 
 After two or three months they were re- 
 turned to the Consul with the message that 
 the priest had no authority to sell the pro- 
 
THE WU SHIH SHAN CASE. 
 
 perty. I thereupon demanded of the said 
 priest the sum of 8500 which I had previously 
 paid to him, hut he said he had spent the 
 money and could not refund it, hut i)romised 
 to do so at some suhsequont time and in the 
 meanwhile offered to allow the ordinary rent 
 of the premises to remain in my hands as 
 interest on the !?500. 
 
 12. — In answer to paragraph 12 of the amended 
 petition I say that I do not know if the do- 
 cument therein set forth is correctly cjuoted 
 and I crave leave to refer to the same 
 when produced at the hearing of this 
 cause and I say that the last preceding 
 paragraph of my answer contains the true 
 account ( f what took place. The said priest 
 ahscouded and I deny that he was jmnished 
 as in the 11th paragraph mentioned. 
 
 13." — In answer to paiagraph 13 of the amended 
 petition 1 admit that I did make an applica- 
 tion to be allowed to erect a wall and gate 
 in order to keep out beggars and others, but 
 I do not know whether that application is 
 truly set out in the said paragrajih and I 
 crave leave to refer to the same when pro- 
 duced on the hearing of this cause and I say 
 that I obtained the leave and license I ap- 
 plied for to erect the wall and gate as they 
 now stand. 
 
 14. — I admit that, as stated in the 14th paragraph 
 of the amended petition, an agreement to 
 rent some laud for building purposes close 
 to the Wan Chang Kung Temple was, in or 
 about the month of September, 1866, en- 
 tered into between, myself and others of 
 the English Church Missionary Society 
 and the local authorities, but I do not 
 admit that the said agreement is correctly 
 set out in the said 14th paragraph and I 
 crave leave to refer to the said agreement 
 when produced at the hearing of the cause. 
 
 15. — I admit the statements in the 15th para- 
 graph of the amended petition. 
 
 16. — I admit the statements in the 16th para- 
 graph of the amended petition. 
 
 17. — I do not know if the statement in the 17th 
 paragraph of the amended petition is true 
 or not. 
 
 18. — I admit the statements in the 18th para- 
 graph of the amended petition. 
 
 19.- — I admit that the residence as described in 
 the 19th paragraph of the amended petition 
 was burnt down, b t it was in 870. I deny 
 that I erected in its stead a much more ex- 
 tensive structure or that I encroached on 
 land other than that leased to me. I state 
 that the existing house covers less ground 
 than the one burnt down in 187<'. And the 
 rock removed had no characters on it and 
 was always inside the verandah of the old 
 
 house and I say that I had full authority to 
 do what I did. •* 
 
 20. — In answer to the 20th paragraph of the 
 amended petition I say that if any right of 
 way ever existed the gatew^ay and entrance 
 road mentioned in the said LOth paragraph 
 were constructed in accordance with the 
 leave and license granted to me by the pro- 
 per authorities. 
 
 21. — In answer to the 21st paragraph of the 
 amended petition I deny that I wrongfully 
 inclosed any space of ground to which I was 
 not entitled. 
 
 22. — I admit that the said wall mentioned in the 
 22nd paragraph of the amended petition was 
 pulled down. 
 
 23. — I deny the statements in the 2^rd paragraph 
 of the amended petition except that I admit 
 that I did re-erect a wall which had been 
 partly pulled down and I admit that this 
 wail is still in existence. 
 
 24. — In answer to the 24th paragraph of the 
 amended petition I admit that a college 
 was, with the sanction of ( '■ er Britannic Ma- 
 jesty's Con^ul at Foochow, and without 
 visible objection on the part of the plaintiffs 
 or any other persons, erected during the year 
 1878 on a piece of land enclosed within'the 
 said wall. I admit that the said building- 
 was burnt by a Chinese mob after the same 
 was c( mpleted externally and that I claim 
 the land on which the said building was 
 erected under the agreement of J 867. I 
 deny the other statements in the said 24th 
 paragraph. 
 
 25. — In answer generally to the complaints in 
 the amended petition respecting the conduct 
 and dealings of the defendant and the other 
 missionaries who have arranged to rent land 
 and houses at Wu Shih Shan since the year 
 1850 down to the present time, I say that the 
 most complete good faith has been kept by 
 myself and the other missionaries with the 
 priests and gentry and directors of the tem- 
 ple and other pers ns who have professed to 
 have authority to cede land to us at Wu Shih 
 Shan, that the lessors have accepted rent 
 from us after having witnessed all we had 
 done, and up to the month of Aug-ust, 1867, 
 the directors of the temple have distinctly ac- 
 quiescedinallour buildiiig proceedings byde- 
 liberately confirming them by the agreement 
 set out in the 16th paragraph of the amended 
 petition, and in September, 1866, by making 
 another agreement as set out in the 15th 
 paragraph of the amended petition, that if 
 by any accident there has been any encroach- 
 ment, which I deny even to the sraaU<st 
 extent, the same has been wholly uninten- 
 tional on the part of myself or any of the said 
 
10 
 
 THE WU SHIH SHAN CASE. 
 
 missionaries and entirely unproductive of the 
 slightest loss or damage to the plaintiffs. 
 And I submit that inasmuch as the plaintiffs 
 have thi'oughout stood by and witnessed all 
 the building operations of myself and other 
 missionaries at Wu Shih Shan, including 
 the erection of the walls mentioned in the 
 amended petition and more particularly the 
 buildings referred to in the •.^4th paragraph 
 of the amended petition, which the mob 
 destroyed, without making objection during 
 the progress of the works or until the same 
 were completed, as to the said last men- 
 tioned building externally and as to tae 
 others in every particular, they are not en- 
 titled to complain of any encroachment, sup- 
 posing any to exist, and they are not entitled 
 to complain of the same as breaches of 
 agreement, even supposing" them to be so, 
 which I deny. 
 26. — I deny all the allegations of the amended 
 petition not specifically alluded to in this 
 my answer. 
 Mr. Hayllar, in opening his case, read the 
 petition and answer, and proceeded — The ques- 
 tion which stands in the very foreground of this 
 case, as it seems to me, is — what is the title of 
 the persons who, under the agreement of 1867 
 purport to be the lessors of the property in 
 question. Now, we state in the first paragraph 
 of our petition that the Taou Shan Kwan Temple 
 is public property — it belongs in point of fact 
 to the whole City of Foochow — and without the 
 consent of the City of Foochow or persons duly 
 authorised in that behalf the land was let to the 
 defendant. And it is very doubtful whether 
 there is any one authorised in that behalf at all, 
 any one who can pretend to deal with the lands 
 or buildings. Of course, as standing in the 
 relation of landlords to the defendant, our posi- 
 tion in this case is accurately and well defined, 
 because he has paid rent to us, and therefore our 
 title to stand here and ask for the relief which 
 we have asked for is quite clear and perfectly 
 valid. But the title of the lessors themselves, 
 and therefore the title the defendant can derive 
 through us to this property, is a question of an 
 entirely different colour. 
 
 Now, in the first instance, this Taou ^-han Kwan 
 Temple is, as its name implies, a Taouist temple. 
 It is an ancient temple — not very ancient, perhaps, 
 as things go in China — but still an" old foundation, 
 if we may so call it, and how it came there and all 
 about it are matters contained in the records of 
 the city and of the temple and public documents 
 generally. It appears that the site on which 
 the temple stands was, towards the end of the 
 Ming dynasty, the private property of a man of 
 considerable reputation, learning, and dignity in 
 t he city and it descended to his posterity. His 
 
 posterity, a few years afterwards, towards the 
 beginning of the present dynasty, in order to 
 commemorate the virtues and the dignities of 
 this deceased scholar, dedicated it to the city. 
 They gave it up to the public, whei'eupon the 
 public, in gratitude for this dedication and also 
 to commemorate the memory of the same man, 
 by public subscription obtained throughout the 
 city, and probably t roughout the province, built 
 these temples which are now standing. From 
 time to time, as the buildings fell into disrepair, 
 further subscriptions were raised throughout 
 the city and province, and also from time to 
 time — and this is of very considerable import- 
 ance — further temples have been built, and on 
 1 hat ground the city has a perfectly clear right 
 to build further temples still. I put it to your 
 Lordship as one of the first points in this case, 
 that it is in opposition to the fundamental cus- 
 toms and laws of this empire, that property once 
 dedicated to a whole city can in any way be 
 alienated from its original constitution in such 
 a way as to deprive the city of the right of using 
 that land for the purpose for which it was origi- 
 nally dedicated, and that, in this case, there is a 
 right to extend their temple property to the 
 limits of the land if they wish. 
 
 Now, how has this property been managed ? The 
 propex'ty has been managed in a way peculiarly 
 Chinese. It is subject to a certain extent to the 
 control of certain associations. These associations 
 are simply clubs, more or less attached to the ser- 
 vices of the different temples, and they get their 
 designations from certain classes of services to 
 which they dedicate themselves. Your Lordship 
 will see the importance of this presently when I 
 point out to you to what purpose the money 
 of the Church Missionary Society was dedi- 
 cated. It was dedicated to the service of the 
 Temple in providing " incense and lamps," as 
 under another lease also the money was dedi- 
 cated to the service of " respect for written 
 papers." In 1867 there were about nine of 
 those voluntary associations connected with 
 the Taou Shan Kwan Temple. These associa- 
 tions are, as I have already explained briefly 
 io your Lordship, merely voluntary associa- 
 tions. The members are elected by each other, 
 and their connection with the association depends 
 upon the will of the other menbers, the payment 
 of their subscriptions, or their own wish to keep 
 up or decline further connection with it. No man 
 has any official connection with it whatever. 
 
 hey are shifting, fluctuating bodies of persons 
 who, as we should say, combine for pleasure 
 I'ather than religion, because these services 
 partake chiefly of the nature of theatrical per- 
 formances and feasts. These persons associate 
 themselves in the services of the temples in 
 vai-ious ways, and for various objects, such as the 
 
THE WU SHIH SHAN CASE. 
 
 11 
 
 association for providing incense and lamps, the 
 association for providing- artificial flowers, an 
 association of worshippers, an association for the 
 respect of written j apers, and various other 
 associations connected more or less with the 
 worship of the gods, but a great deal more, I 
 presume, with the social life of the Chinese. 
 Some of them have a little property, some are 
 entirely dependent on voluntary subscriptions, 
 and it is their business to supply the wants of 
 the temple as they arise ; and in return for this 
 they are entitled to the use of certain rooms in 
 the temple when they go there two or three times 
 a year. 
 
 Now a Taouist temple is open at all times 
 to all comers; it is emphatically a public institu- 
 tion ; every person is at perfect liberty to go, 
 unmolested by the directors, priest, or anyone 
 else, and perform his religious duties and worship 
 there if he wishes to. The Taou Shan Kwan 
 Temple is regarded as a very sacred one in the 
 city and at certain stated times it is greatly re- 
 sorted^ to by worshippers having no connection 
 with the associations. With regard to the asso- 
 ciations they have no connection between them- 
 selves. The association for the respect of written 
 papers, for instance, has no connection with the 
 association for supplying incense and lamps. 
 They have no joint foundation. Each associa- 
 tion is self-managing, their management being 
 subject entirely to tlieir own wishes and accord! 
 ing to their own rules, and tn carry out their 
 management they elect certain persons whose 
 official title we translate directors. The words 
 "directors of the Taou Shan Kwan Temple" 
 convey a misapprehension. The exact position 
 of these persons is that of directors of the 
 associations connected wi.th the temple, and it is 
 to these associations the temple looks at such 
 times as it has different needs to have them sup- 
 plied. They look to each of them not only to 
 give them their assistance in supplying the 
 direct needs of the temple but also in obtaining 
 from time to time, as necessity arises, funds for 
 repairing the structures or building fresh tem- 
 ples if required. ." uch is the actual position of 
 the directors with regard to this temple. Title 
 other than that which is stated in the first para- 
 graph of the petition they in fact have none. It 
 is not a title to the laud in any sense in which 
 we understand a title. They do not form a cor- 
 poration, nor a chapter, nor are they connected 
 in the slightest way with the ownership of the 
 soil, which they have only the part use of by 
 the licence of custom and the unwritten laws of 
 China, which.direct all these things. They have 
 that licence to use the premises and to deal in a 
 certain way with the funds they themselves 
 supply. 
 
 His Lordship— Are they trustees ? 
 
 Mr. Hayllar— No; they are not trustees in 
 any way. There is no trust conveyed in their 
 appointment at all. When your Lordship has 
 before you the evidence I shall call, the evidence 
 of the directors themselves and the evidence of 
 their records, you will see how perfectly clear 
 their position is. 
 
 Then it will at once be said ; " How did these 
 people come to let the land ?" Thereby hangs 
 a tale. Tour Lordship may ask why I have 
 taken the trouble of tracing the title of 
 the missionaries and their connection with 
 this beautiful piece of property at Wu Shih 
 Shan from 1850, instead of commencing with 
 the lease of 1867 ? I answer, because it was 
 impossible to convey to your Lordship's mind 
 the slightest apprehension of the real posi- 
 tion of the parties relatively without com- 
 mencing the story ab initio. I trace the pro- 
 perty from 1850 through the lease of 1855, 
 through certain dealings in regard to it by Mr. 
 Wolfe in 1866, some of which came to nothing 
 but one of which came to a good deal — I trace 
 it through the dealing with a piece of contigu- 
 ous property in August, 1866, down to August, 
 1867, when the lease or agreement of rent" was 
 entered into between Mr. Wolfe and the de- 
 ceased directors of two of these associations. 
 Now, leaving for a moment the question of the 
 title of the lessors, I come to consider what is 
 the position of the lessees. When we come to 
 consider a little the legal position of the parties 
 under these documents, it will be a matter for 
 very grave consideration, supposing your Lord- 
 ship should not hold— as I think I shall show 
 you suflScient reasons for holding— this lease 
 of 1867 to be altogether a void document for 
 various reasons, whether, when your Lordship 
 c mes to make a decree you must not hold 
 it void first of all upon the title of the lessors, 
 and next upon the title of the lessees. Now in 
 the lease of 1867, set out in paragraph 16, there 
 is no date for the commencement or termina- 
 tion of the agreement and there is no period 
 by reference to which the latter date can be 
 determined. For example, if a man makes an 
 agreement of this kind and his own tenure is 
 derived fr. ^m an agreement, for a lease for a term 
 of years the matter then is distinct in equity, 
 although the common law would scarcely go into 
 such a question; but his position is at once 
 clear in equity on the plain ground that there is 
 a period to which the court can refer as being 
 the period which was inferentially imported into 
 the document itself. But in this case, as your 
 Lordship sees, no date is infereutially imported 
 into the document. 
 
 Now the lessee appears on the face of the 
 document to be a missionary, John R. Wolfe, 
 
12 
 
 THE WU SHIH SHAN CASE. 
 
 but is that its real meaning ? I shall call your 
 attention to what I think is the strong-est evid- 
 ence that that is not the meaning, by turning to 
 paragraph 12 of the petition, which sets out 
 that sing-ular agreement which is called 
 a " note of borrowing," and which doubtless 
 expresses the true intent of Mr. Wolfe at the 
 time he received that " note of borrowing " and 
 at the time he made the agreement ot rent set 
 out in the 1 1th pai'agraph ; that was the true 
 intent which was imported into the document 
 when Mr. Wolfe put his signature to it in 
 August, 1867. The special clause to which I 
 refer is " None of the missionaries, whoever 
 they may be, shall, after the return of Mr. 
 Wolfe to England, be called upon to pay rent." 
 
 Mr. Hannen said he thought Mr. Hayllar 
 ought not to read half a sentence. 
 
 Mr. Hayllar said he would i-ead anything his 
 learned friend wished, but what he had read was 
 a whole sentence. 
 
 Mr. Hannen said the following sentence 
 ought to be read, " If the priest wish to collect 
 the rent it is proper the loan shall be refunded." 
 
 Mr. Hayllar — I don't think that affects the 
 subject. What I put to your Lordship is that 
 the clear intention of the parties as expressed 
 in this d cument must be imported into so 
 obscure a document as the lease of 1867. I put 
 it that the agreement was meant to enure to 
 the benefit of all the missionaries as they come 
 to China and, in point of fact, if it could so 
 enure, to the benefit of the Church Missionary 
 Society. Well, in our petition we have said 
 nothing about the Church Missionary So- 
 ciety or its position, for the simple reason 
 that we did not know it. The answer is 
 equally silent. Some proof I shall be able to 
 give to show your Lordship that the Church 
 Missi nary Society is nothing in law. It is a 
 fluctuating body of subscribers, having no 
 incorporated position, having no entity. It 
 is very much in the condition of these direc- 
 tors, who are not in a position to hold laud, and 
 it can only hold land in England by means of 
 trustees. Now that being the case, it seems to 
 me that if the true intent as expressed in this 
 document is to be carried out, the decree would 
 have to take a completely impossible form and 
 would, in point of fact, have to provide that this 
 property had been let to somebody else not in 
 existence, not born, certainly not in China, of 
 whom we know nothing, in the event of the 
 present gentlemen who are connected with the 
 society going away. That I understand to be 
 the meaning of the note of borrowing set out in 
 paragraph 12 ; that I understand to be the posi- 
 tion the Missionary Society take up. Therefore, 
 dealing with these two points, in the first place, 
 it seems to me that the lease, if it means any- 
 
 thing more than what I shall presently contend 
 it does, was void ab initio for want of title on 
 both sides, certainly for want of title in the 
 lessors to alienate landed property in any such 
 way as to prevent their instantly resuming it for 
 the purpose for which the temple lands were de- 
 dicated to the public. 
 
 His Lordship — Are you the representatives of 
 the lessors ? 
 
 Mr Hayllar— We are here as the receivers of 
 the rent. We are the directors of the temple 
 thr. ugh whom under this agreement of 1867 
 the rent is transmitted. That is our posi- 
 tion. If we have no title there is no title at all 
 in anybody. As I drew the petition that diffi- 
 culty struck my mind and therefore I made as 
 parties to the petition the gentry of the city. It 
 pleased Mr. Mowat to strike them out. 
 
 Mr. Hannen — I beg your pardon, you con- 
 sented. 
 
 Mr. Hayllar — It was a consent like the con- 
 sent of these people to the missionaries living in 
 their Temple — it was a consent I could not avoid. 
 It was very late at night and — 
 
 His Lordship — Was it near dinner time ? 
 
 Mr. Hayllar — It was near a much more im- 
 portant time than that ; it was near the time of 
 Mr. Mowat's departure. At any rate, the peti- 
 tion was amended and my learned friend is the 
 person entirely responsible for having the gentry 
 struc i out. He did not like the look of it for 
 some reason, and against their being there he 
 made a good many objections, and I had not time 
 to open to Mr. Mowat all the difficulties of the 
 position and all the facts in relation to the title 
 of these gentry. At any rate, it was my learned 
 friend who gave the impulse to Mr. Mowat 
 which resulted in my consent to the gentry dis- 
 appearing from the scene. They have disap- 
 peai'ed now, and we will have to deal with the 
 matter as we best can with the directors. My 
 impression all along was that the property was 
 really vested in the representatives of the city. 
 In 1866, when we mad a more formal document, 
 the representatives of the city, the gentry aa 
 it is the fashion to call them, wh » have the 
 control of public affairs in all Chinese cities, 
 were made parties to that agreement. In this 
 case the interests of the city in this agreement 
 are not represented, which is one of the reasons 
 for which, qiia lease, the lease is void. As an 
 agreement on the part of one set of gentlemen 
 to subscribe to the services of the temple, and on 
 the part of the other side to give these gentle- 
 men the right to dwell within the temple pre- 
 cincts for a short time — treating it in that way — 
 I have no doubt the thing is sufficient, but as a 
 matter of title it is not. 
 
 His lordship— Could the two gentlemen 
 mentioned in the 17th paragraph have been 
 
THE WU SHIH SHAN CASE. 
 
 13 
 
 brought iu the suit ? Could they have insti- 
 tuted this suit ? 
 
 Mr. Hayllar— I think they could, but I may 
 just explain here, a little out of place, that we do 
 not ask for any order with reference to the land. 
 We are not askinjr as a remedy that your Loi-d- 
 ship should turn these gentlemen out. We are 
 asking or the meaning of an ap'reemeut. It is 
 with reference to laud and the defendant has re- 
 cognised our position with reference to the land 
 by paying us the rent, and as he has paid us the 
 rent it does not lie in his mouth to say we are 
 not the proper persons to receive rent, because it 
 is one f the fundamental doctrines of the law of 
 landlord and tenant that the tenant cannot dis- 
 pute the landlord's title. I was more indifferent 
 therefore than I otherwise should have been to 
 the gentry disappearing. But we now ask, as 
 the persons who receive the rent that we should 
 know how we stand. Your Lordship will see 
 that one of the peculiarities of this case is that 
 the Taouist priest of the temple is the man who 
 first lets the same property which is let in 1867 
 by the directors. The question is, how did that 
 come about ? Had the Taouist pr est a better 
 title, or any title, or was it because the priest 
 had no title that the directors were substituted? 
 It happens that the Taouist priest had no title 
 to begin with. The missionaries were placed in 
 this place, not with the consent of the people or 
 the true owners of the ground, but because of 
 t' e extreme difficulty of providing any location 
 for gentlemen who came here for excellent pur- 
 poses, but purposes which happen to be ''n op- 
 position to the wishes of the people of the city, at 
 any rate that class of the people who have the 
 direction of affairs in their hands To get rid of 
 this difficulty, the missionaries are placed there by 
 the authorities, to enjoy a temporary residence, 
 and the idea was, no doubt, that these gentlemem 
 should go on quietly occupying tlirs^ two little 
 native houses. Special penr^ission was given to 
 them to alter the insid.'of the houses and make 
 repairs, but the first thing that must strike your 
 Lordship's mind on reading the document itself 
 is that it T^as never intended that the property 
 should be turned into a sort of estate, such as it 
 is now, enclosed, with foreign buildings of value 
 upon it, schools, and garden, and so on. That 
 was not the original idea of the thing ; it is the 
 good nature of the people that has allowed that 
 to be done. My learned friend says we have ac- 
 quiesced. We have acquiesced because people do 
 acquiesce in that which they can't particularly 
 help ; and also because among people who are 
 numerically very large, as the city of Foochow 
 is — according to the Rev. Justus Doolittle the 
 population of the city is rOO,000 — it is nobody's 
 special business to prevent these things, t^o 
 far as we have not prevented them we do 
 
 not ask for any relief from your Lordship's 
 Court. I thonglit at first, that the Haukwau 
 District Magistrate had given the missionaries 
 a title to tJiis property. My learned friend 
 puts it with complete accux-acy in his 4th 
 paragraph that the missionaries did, " with the 
 knowledge and sanction of the magistrate, rent 
 from a certain Taouist priest," and that is what 
 it legally comes to, although if we probed the 
 business to the bottom we should find that even 
 that was not quite right. 
 
 We have seen a good deal recently of the 
 way these things are managed. These cases 
 take to a certain extent the form of negotia- 
 tion between the two Governments. Where 
 missionaries have to be provided with loca- 
 tions it forms the subject of a good deal of 
 negotiation which goes on through despatches, 
 which, I think, throw much light upon the 
 subject. In this instance neither the Taouist 
 priest nor the directors are in the position of 
 private people wanting to let their property, who 
 in their minds acquiesce in what is going on, 
 because of course if a man were a perfectly volun- 
 tary agent, as we understand the term in Eng- 
 land, and then said he had let a thing to which 
 he had no title, why, it would be a sort of allega- 
 tion the court would not pay much attention to. 
 But that is not the attitude of these people. 
 They did not want this place to be let ; they 
 were and are much avei'se to it. I don't suppose 
 the Taouist priest was, because he benefited by 
 the ti-ansaction ; it converted him from a person 
 in receiyjt of a very small pittance to one in re- 
 ceipt of a much larger pittance. Well, the 
 Tauoist priest is a person who is appointed by 
 the directors of these associations. He is their 
 servant. He is a person who has n • connection 
 with the property of the temple himself, which 
 I believe in Buddhist t-^mples and monasteries 
 the priests to a certain extent ha e. But the 
 Taouist priest is the mere servant of the public, 
 appointed by the directors who have the man- 
 agement of the temple and who pay him, not 
 exactly a salary, but certain sums to perform 
 certain duties; tliat is to say, as in this particu- 
 lar case of the i-ent under the lease of I'tiT, the 
 money has to be transmitted to him for the pur- 
 po.se of being employed in certain services of the 
 temple. It was not to go into the Taouist 
 priest's pocket, nor the pockets of the directors, 
 but through an indirect process it was finally to 
 enure to the benefit of the Taouist priest. Pro- 
 bably he would be the pei'son most interested in 
 the money part of the transaction, it is no 
 benefit to the directors ; it is no benefit to the 
 city, and they don't want it. It really does go 
 to the priest; therefore, I have no doubt, he 
 is a more pliant instrument in the hands of 
 people wanting to make bargains than anyon* 
 
14 
 
 THE WU SHIH SHAN CASE. 
 
 else, so we see that in the agreement of 
 1850 the Taouist priest is the person who stands 
 forward in the light of the landlord. Your 
 Lordship will perceive there that he lets certain 
 rooms — one house with five rooms in a row broad- 
 wise, to which was attached an outhouse and a 
 yard at back and front, which I believe is attached 
 to all Chinese houses — a small place for the chop- 
 ping of wood and drying of clothes; one house 
 of four rooms, to which was attached an out- 
 house having an upper storey of two rooms and 
 a lower storey of one room. 
 
 Mr. Hannen said he denied the correctness of 
 (he 'ra. sla i in as to tbat. 
 
 Mr. Hayllar — Well, that is cur transla'i n, 
 which we shall support. It was agreed that the 
 rent should be $100 per annum, that the rent 
 should be i)aid in advance every three months, 
 according to the English calendar, that the 
 Taouist priest should not interfere with or ob- 
 struct any works g'ing on or repairs inside the 
 houses, which were to be done at the expense of 
 the lessees ; that it should be at the option of 
 the lessees to continue — or to discontinue I think 
 I should add — the tenancy, words which, as yonr 
 Lordship will see, are most significantly omitted 
 from the lease of 1867 ; and that the Taouist 
 priest should not be at liberty to let the premises 
 to other persons. I may as well state at once 
 that in the lease of 1867, although the property 
 had been altered and was not at all in the condi- 
 tion it was in when the lease of 18.-0 was made, 
 so far from acquiescing in what had been done, 
 we redescribed the property in the same terms 
 as we described it in the lease of 1850. That 
 has great significance as to what we underst< od 
 was going to happen. We don't use the fact as 
 any proof that the place has been forfeited, but 
 as showing the intention and understanding of 
 the parties that the property was at a certain 
 time to be given up in the same state in which 
 it was in 1860. That is in accordance with Chi- 
 nese law. I believe that if, all over China, a man 
 alters property, that circumstance does not 
 of i'self work a forfeiture as it does wi- ii 
 us. In England !o al er proper y, even 'o 
 improve it, agains! 'he will of the owner, is, as 
 every one ki ows, to commit waste or as i' is 
 termed devastavit; and 'o use a house for one 
 purpose whe;. i' isle' for ano her, as, for ii s ance 
 to conver- i ino a mill, has ihe same effect, and 
 the parly so offe ding would be liable 'o be 
 turned ou'. Accordii g to Chi- ese law t at 
 would no' be 'ie case, but on 'he pi-operiy being 
 give up it would have to be given back agai in 
 the same condi ion as it was iti before. Tha 
 being in he mi ds of the parties is 'he reason 
 why 1 he proper y was redescribed in the same 
 words as ill the lease of 1850. 
 
 Then in 18o5 anoiher small piece of land 
 
 was let to the missionaries who then re- 
 presented the socie'y, that is to say, to 
 Messrs. Fearuley and Wel"on, by auoher 
 priest. At tl at time Lin Yung Mow had 
 either gone away or died. I believe he was 
 dead, but at any ra'e bis connection with the 
 temple was severed, and then Chun Yuen Ching, 
 who had been all the time at the temple in his 
 pupilage but in 1855 had been appoin ed to the 
 position of the priest of the temple, let this pro- 
 pertyto Messrs. Fearnley and Wei' on. Now 
 i' seems to me that so far as the lease cf 1850 
 was C'l ceri ed the severaucecf the cdut ec!i'>n < f 
 Lin Yurg Mow wi h ti e 'emple really viided 
 tlat document. However, that is not; of very 
 great imp rta ce at this moment. There was 
 another piece <f land let to Mr. Smi'h, < f which 
 I shall have to say so meting presently. 
 
 But now we come to the dealings of Mr. Wolfe, 
 the very energetic and able gentleman who came to 
 China in the year 1862 or 1863. Between i850 
 and 1S55 and 1 863 circumstances had very much 
 changed. This piece of ground, which was when 
 first let purely a piece of temple property, by 
 this time had assumed an entirely different 
 aspect, and it had consequently become of very 
 great importance to the missionary society that 
 their title should receive some higher sanction 
 than it had hitherto received. By 1865 it had 
 become a valuable piece of property on account 
 of their schools, or chapels, and it was of great 
 importance to them that they should be located 
 where they were, that they should not be moved, 
 and we then find, what is in accordance with 
 this state of things, the operations which Mr. 
 Wolfe commenced. My learned friend need not 
 suppose I intend to cast the slightest slur on 
 Mr. Wolfe for what he did. He had but recently 
 come to the country ; he would see that the 
 Taouist priest was the lessor under the lease of 
 1850, and it would be of extreme importance to 
 the missionaries to find themselves there with a 
 title good against the world, one which would 
 allow them to deal with the premises as they 
 pleased, and under which they would not be 
 liable to be turned out at any time when the 
 property happened to be wanted by the Chit^ese. 
 Your Lordship will now understand why these 
 documents are inserted in the petition, because 
 it was on account of these dealii.gs with the 
 priest that the directors came to the co!iclusi'>n, 
 as we shall presently see, that the priest could 
 tjot be trusted. As lo.g as he sinply let the 
 property for temporary purposes, merely to allow 
 these gentlemen to live in the place and use the 
 premises for a residence it was not of much im- 
 portance, but wheM they came to understa. d how 
 Mr. Wolfe regarded his position and when they 
 saw tha' i was n^t intO: ded that this pr^per'y 
 sh uld not be used simply as a residence for the 
 
THE WU SHIH SHAN CASE. 
 
 15 
 
 gentlemen, but was to be turned i ito a s rt if 
 permanent missi nary I'cai m, then their eyes 
 were opened. A matter which 1 ad been a* J5rs' 
 of little importance had become in 1865, in conse- 
 quence of what had been done by the previous 
 missionaries, and the intentions of Mr. Wolfe, 
 as shown by the documents of the priest, of 
 great significance. 
 
 I must now refer for one moment to the answer, 
 and in reference to this paragraph I think there 
 must have been a slip of memory on the part of Mr. 
 Wolfe in his answer, probably arising from the 
 length of time which has elapsed. We set out that 
 a document was entered into by which he got the 
 l^roperty conveyed to him for the consideration of 
 !$800 on a perpetual lease. 
 
 I would for a moment here interrupt myself to 
 explain what I mean by a perpetual lease. I am, 
 of course, not familiar with these matters myself, 
 but I have heard a good deal about them du- 
 ring the last two months, and I think the 
 words " yung yuen," having the meaning of 
 perpetuity, are used wherever private property 
 is transferred from one person to another, the 
 purchaser being a foreigner. They are well un- 
 derstood by the Chinese and have the same mean- 
 ing as a document conveying by an absolute as- 
 signment by sale. 1 believe among the Chinese 
 themselves, and it is possible also sometimes 
 in dealing with foreigners, they use another ex- 
 j)ression for absolute conveyance. I will give 
 you the word from a gentleman who was formerly 
 Prefect of this District and who has come from 
 Peking to explain all he knows about this matter. 
 I forget what the word is, but there is an ex- 
 pression which means absolute conveyance, but, 
 as your Lordship knows, all property in China is 
 vested by the fundamental constitution of the 
 empire in the Emperor himself. All except two 
 classes of land therefore are subject to rent. The 
 two exceptions are temple lands and grave yards. 
 When property is conveyed by a Chinaman to a 
 foreigner, therefore, I believe more from a feel- 
 ing of pride than anything else, instead of "abso- 
 lute assignment " the term " perpetual lease " 
 is used, because nearly all lands are subject 
 to rent. In the settlement, where we have 
 built on a g'rave yard, no rent is reserved 
 to the crown ; also on temple lands, the 
 crown foregoes its right for purposes which 
 it considers so sacred. As I understand, in 
 China the woods "yung yuen " convey the idea 
 of perpetuity and when they are used a seller 
 practically gives up his rights then and there. 
 I believe it is the same in Shanghai. There is a 
 property there described— wrongly, according to 
 the highest authority in China — as a concession, 
 but there a rent is always reserved to the crown 
 of China, while here, among the graves, property 
 is held without ren^. With the exception of the 
 
 two classes of property, grave yards at d temple 
 lands, rent is always reserved to the crown. 
 
 His Lordship — They are holders in fee. 
 
 Mr. Hayllar — Yes, but the feudal tenure has 
 so long been abolished in China, if it ever existed, 
 that I don't know whether that would convey 
 the meaning. 
 
 His Lordship — They are subject to a fee farm 
 re tit. 
 
 Mr. Hayllar — That is the position. It is the 
 same in India. There the whole of the land is 
 vested id the crowi aud the ryots all over the 
 country are subject to the payment of taxes. It * 
 takes the form of a fee farm rent. In some 
 places it is settled in perpetuity. In China, I 
 believe, the crown reserves to itself the right of 
 altering the rent according to the fertility of 
 the land, making a difference in time of famine, 
 for instance. But throughout China it is not 
 the practice to admit, by the form of document 
 given to foreigners, that the land has been 
 alienated in such a way that it sh uld not pay 
 rent to the crown ; although, subject to this 
 small rent it belongs out a- d out to the pur- 
 chaser. 
 
 There is a peculiar way of dealing with 
 land in China. When a man makes a payment 
 of a sum down he may get a " yu' g yuen " or 
 another form of coaveyance that would an- 
 swer more correctly to our absolute assign- 
 ment. But if a man wants to let his pro- 
 perty for a term of years he does it by mor- 
 gage. That, 1 believe, is universal through- 
 out this provir;ce and throughout China. A 
 lump sum is paid down by the mortgagee to the 
 mortgagor, and the mortgagee enters into pos- 
 sessiot] of the property, paying r.o re at but using 
 it until the period of the mortgage has elapsed. 
 Mortgages are also made for indefinite periods to 
 operate as leases. In that case they answer to our 
 mortgages; that is to say the mortgage money has 
 to be repaid at the end of the period. But in the 
 mortgage I am alluding to tbe lump sum paid 
 down stands in ti^e place of rent ; it g»es for t' e 
 use of the property and is not repaid. Tbe 
 mortgage money is paid down then and there as 
 the rent in one lump sum. Titen there is a form 
 of agreement, like the one we bave here, which is 
 said by all persons — by my witnesses at any rate 
 — to be a tenancy from year to year, or it may 
 amcuat to a tenancy from m nt j to month in 
 certain districts, but the important poi itis this, 
 t' at there is no such thing inChinaas a perpetual 
 lease under which an am unt payable at stated 
 periods is reserved. As I am informed there is no 
 such document except for a temporary purpose, 
 that is to say, the very fact of tbe reservation of 
 rent means that it cannot be a lease for more tban 
 from year to year or month to month as the case 
 may be ; but if once y u get rid < f the payment 
 
16 
 
 THE WU SHIH SHAN CASE. 
 
 ef rent, once it can be proved tl at rent is not 
 paid — and many Chinese 'euants are very tricky 
 ai d oftei try ti get < ff tl e payment of ren' — 
 il en the fact of rei t n t being paid is a pr of 
 til ere las been either a mortgage or an abs lute 
 assignment. 
 
 Now, we see at nee, the significance of these 
 d' cumenfs made between the priest and Mr. 
 W' Ife, and t^ e way the Chinese read them. The 
 answer says, in refere'ice to t is §800 document, 
 " I de' y ti e s'a emen s made in paragraph 1 1 of 
 the amended petition, but say that I believe about 
 the time therein menti' ned t' e said Taouist 
 priest C. un Yuen (- hing ■ ffered t sel to me a 
 small house called tlie Blii d Man's Temple, but 
 I never paid I im any money n r did I • btain any 
 document from I im." 
 
 Well.wehavea d cumen',wl.ic' purports to be 
 a lease for a perpetual term, not of tl eBlind Man's 
 Temple, whicli is a little temple in t' e imme- 
 diate neighbourhood of the Taou Shan Kwan, 
 forming indeed part of it, and Wi ich is also in 
 very close contiguity to the property ! eld by 
 these gentlemen, but describing t!ie property in 
 the same erms as it was described in in the leases 
 of If'tO and 1855, and purp rting to be a c nvey- 
 ance in perpe uity of that j) roper y. I also pur- 
 ports to c nvey land " ■ n the edge f he road by 
 the wall of ti e Ne-to' -tsze monas ery, and on 
 the rig! t Land 'hereof (Wes) on t! e wall of tl e 
 Pan-leoDg-tung monastery." The exis ence f 
 this d cument was subsequently found • ut by 
 the direct-rs themselves. Tie priest had n t 
 c^mmn ica ed to tl em his inten ion of dealing 
 with t' e proper y in t' at way, and hey heard 
 < f i' by accident. Tl ey g >: a ci py w. ich was 
 at length f rwarded t<i the Hauk>^an Magistra e, 
 and there it was cancelled. Well, he ma ter is 
 n t <'f such vast importance in itself, i lave 
 noi t' e slightes' doubt Mr. W Ife. w en I e 1 t k 
 a little m i*e fully into he subject, will be able 
 to thr w a little m re light up n it. I dare say 
 bis m m ry is n w a little < verlaid. 
 
 But t'le next documentisa curi usonebyw ich 
 we find that the property is again let by the same 
 Ta uis pries t"Mr. W Ife, f r a perpe ualterm, 
 f.r $"00. My learned friend's answer is a little 
 imp rtant <ii that p in'. He says "As tn tl e 
 12th paragrap'j of t' e amended pe'iti n I say 
 that about tl e time therein mentioned he said 
 priest t- Id me 'la' he had the permission of t' e 
 proper authorities t ■ sell the grounds and build- 
 ings ' ccupied by tl e missionaries. ! consented 
 to pure' ase the same if the deeds were duly 
 sealed and stamped by the proper authorities and 
 the properly legally transferred. The price 
 agreed up n was considerably <>^ er $'0'', bu §r.00 
 was i)aid by me ' o tie said pries as par 
 of tl e purchase m ney. The remaii.der was 
 to be paid by me as so n as the Chinese 
 
 autli' rities liad stamped the deeds." N w, a 
 curious p in I about this is, tl a' in he d cu- 
 ment itself, which was forwarded to us, and 
 of course we can only know about it from 
 t! a*, exeep' fr m ' I e evidence of ihe priest, who 
 is here, his perpetual lease purports to be in 
 c nsideration of .^500 only. There is not a woi'd 
 in ti e lease wl ich says how much more was to 
 be paid. Tl e document is rather a singular one, 
 and I will read to your Lordship t e translation 
 we • ave. After describi' g the land it goes on — 
 "The rent in former years was paid quarterly, 
 and John Wolfe sinci his coming here to preach, 
 and occupying tie premises likewise 1 as been 
 paying the I'ent quarterly according to the terms, 
 but he feeling very much the annoyance caused 
 by the Taouist priest's repeated calls, pressing 
 for payment of I'ent, is willing to pay to the said 
 priest rSOO, in oi'der t' at he shall never again call 
 to collect any rent; and from henceforth no mis- 
 sionary occupying the premises, whoever he be, 
 s' all have to pay any'rent, nor any of the i riests at 
 the Taou S^ an Kwan Temple shall call to collect 
 more re t." Ti ere can be no doubt t! at if t! at 
 document 1 ad been passed this priest would have 
 sold over our heads and over ti e heads of the 
 w ole city t is piece of property in perpetuity 
 to the missionaries. It created, naturally, im- 
 me se i dig: ation, a- d it subsequently led to the 
 priest bei: g punisi ed for ti is and being dis- 
 missed. Not hi' g could show more clearly t e 
 feeling of t e people at that time with reference 
 to the property tl a the conduct they displayed. 
 We say ti e matter was referred to the British Con- 
 sul and being broug t before him this lease was 
 ordered to be cancelled, and w' en I come.as I pre- 
 se tly si all, to call your Lords ip's atteutio > to 
 the negotiations w ich took place you will see the 
 extreme importance of these documeiits as show- 
 ing t e intention of the parties. 
 
 We next come to the "note of borrowing," 
 w ich 1 1 ave read to your Lordship in t e petition 
 and Wi ich I shall therefore only refer to, but tl ere 
 is an unfortunate difference between the memory 
 of t e priest on t is point, and the statement 
 contained in t e answer. In the statement con- 
 tained in the answer Mr. Wolfe says, "The 
 necessary deeds were drawn up by the said priest 
 and sent through Her Britannic Majesty's 
 Consul at Foochow to the proper Chinese officers. 
 After two or three mi nths they were returned 
 to tl e Consul with the message that the priest 
 j had no authority to sell the property. I there- 
 I upon demanded of the said priest tl e sum of ^500 
 wl ich 1 had previously paid to him, but he 
 said he had spent the money and could not refu^ d 
 it, but promised to do so at some subsequent 
 time, a d ii the meanwl ile offered to allow the 
 ordinary rent of the premises to remain in my 
 hands as interest on the ?=5U0." Now the recol- 
 
THE WU SHIH SHAN CASE. 
 
 17 
 
 lection of the priest is that lie was t ot trusted 
 witl) the !?5(J0 before the property was registered, 
 that the facts connected with the '^rUO lease 
 were before the eyes of the parties, and t ere was 
 some considerable doubt whether tl.e >5<JU lease 
 would be registered, and the $500 were not paid 
 any more than t e §800 mentioned in the previous 
 document were paid. But on t e return of this 
 document, it being then quite hopeless to suppose 
 t' at the jjeople would submit to the'sale of t' is 
 property, a S'jOO loan was made to the priest O' 
 the security of tl is document in the mo tii it 
 bears date. The imest's recollection is that the 
 money was paid to him i'^ tl ree distinct sums. 
 Therefore thoy got round the difficulty which 
 was inlierent in ti e case by not making- a sale of 
 the proi^erty, but " a note of money borrowed," 
 wi ich was to all inte ts and purposes the 
 same thi;ig and operated as a perpeUial lease; 
 that if it should so ' appen that afi'airs could 
 be managed so that rent should not be paid, 
 this §5 — which was certainly a very small 
 price fx'V this fi e property and was lent at 
 high interest, viz., over '^4 per cent, per annum 
 — should exactly cover the rent and never be 
 repaid, and in point of fact the property would 
 be tlie missionaries' ! Tiiat is how affairs stood 
 up to August, 1-66. 
 
 Now, iiQW did the missi uaries act under 
 the agi-eement of the 13th August, i 866 P 
 For . one quarter they refused to pay the 
 rent, and as far as the real proprietors of the 
 temple were concerned, t e people of the city 
 and the directors of the different associations, 
 they knew nothing of the mutter, and it was not 
 until it was found out that the rent had not 
 been paid to the priest that the matter was 
 brought to the notice of the gentry in 
 July, 1867. It was then referred to the Bri- 
 tish Consul, and through him this document 
 came to the knowledge of the directors and it 
 was decreed by these authorities that the rent 
 slo'iici be paid as before. 
 
 This leads up to the point 
 toi-s were made parties to 
 They were mnde 'parlies to 
 because they would not trust 
 more. He disappeared from the scene and had 
 disappeared altogether until I e was recently 
 unearthed, I e having concealed lamself and 
 ehangt-d his religion. However, the directors of 
 the temple, finding how their cherished property 
 was being dealt with, or rather spirited away, 
 said, " We must have a different agreement and 
 the agreement must be made thi-ough us," mean- 
 ing not that the amount should be paid to the 
 directors for themselves, but to them as mere 
 conduit pipes for handing the money to the 
 Taouist priest to be employed in the services of 
 the temple. Moreover, the rent having been re- 
 
 why the direo- 
 
 this document. 
 
 this document 
 
 the priest any 
 
 fused under the agreement between the priests ' 
 and Mr. Wolfe of 3th August, 11-66, the direc- 
 tors said, " Not only will we ourselves personalljr, 
 interfere, but we will ask the assistance of th&- 
 British Government in order that the property- 
 shall not be so dealt with again." Mr. Sinclair- 
 most kindly consented to be the guarjmtor of the 
 rent and his guarantee was regarded by the 
 Board of Trade, as a security not only that th© 
 money should be paid through him, but that the 
 people should be free fr m any surreptitious 
 dealing with the property in the particular man- 
 ner i have described, and that the missionaries 
 •should not be able to say, " We have a per- 
 manent title to the property because we have 
 paid no rent." 
 
 As to the rent itself, it is nothing — t^' 32 a year- 
 for a beautiful place likethatisnothingtothecity.. 
 The directors did not want the money, it was the 
 evidence of the non-payment of the rent which. 
 they dreaded, it was the fact that the mis- 
 sionaries were dealincr in such a way as would, 
 have made their title permanent. That is what 
 they wanted, and that is what we did not want, 
 So your Lordship sees n w the reason of the 
 difference between the two agreements. First 
 of all, the rent is to be paid through Mr. Sinclair 
 to the directors, and in the next place we had 
 found out how they were going to deal with ns , 
 how the property which had been lent to them 
 as a mere residence had been converted into 
 an estate, that we were not dealing only with 
 two missionary gentlemen then and there, but 
 with a large class coming one after another. In 
 the new lease we left out the only words which 
 would have given them a shadow of permanency, 
 that '' it should be at the opti 'U of the lessor tc 
 continue or discontinue the hiring." These 
 alterations were in fact aimed at what had been 
 done. The agreement of lsi>7 was made by the- 
 people under the lig-ht of previous circumstances, 
 which to them were, of course, exti-emely signi- 
 ficant. 
 
 At this stage the Court adjourned for tiifin. 
 
 On the court resuming Mr. Hayllar continued 
 his address. He proposed to read some passages 
 from documents written by Consul Carroll which 
 led uj) to the making of the agreement of 18n7,. 
 but on Mr. Hannen intimating that he should 
 object to their admissibility as evidence, he said 
 he would not interrupt his opening statement 
 by arguing the point now, but would tender the 
 documents in evidence afterwards subject to. 
 argument. There were other documents, he 
 said, from Mr. Consul Carroll which had a mate= 
 rial bearing on the §500 lease and the punishment 
 of Chun Yuen < hing. He had a document iu 
 which Mr. Consul Carroll prayed for the release 
 of the priest, i t is said in the answer, he con- 
 tinued, and I think under some misapprehensiori 
 
ts 
 
 THE WU SHIH SHAN CASE. 
 
 of what meant, that the priest was not punished. 
 Well, he was punished, and was released at the 
 instance of the Consul, and shortly afterwards 
 disappeared. Subsequently it was asked that he 
 should be punished, but that was from a different 
 view ■ f the transaction While they were relying 
 on his title and they thought they could get the 
 premise's from him they asked for his release. 1 
 don't know that there can be any object! >n to 
 my rending that document. 
 
 His Lordship — As far as 1 am concerned I 
 think it is immaterial whether the priest was 
 punished or n t. 
 
 Mr. Hayllar — Then 1 will not trouble y ur 
 Lordship with that, but what is important in 
 this document is this, " After careful considera- 
 tion f this matter I see there is no reason why 
 the premises occupied by Mr. Wolfe should 
 not be still rented at a yearly tenancy, 
 though their being rented for a perpetual term 
 is inconsistent with reason." The matter went 
 on, and then came the negotiations between 
 August, 1866, and the lease of 1867, with refer- 
 ence to that lease. These were conducted tir. ugh 
 the aut oi'ities entirely on b'tb sides and I think 
 the documents are quite admissible under the 
 rule in eqiiity by which it constantly happens 
 that t e oral negotiations leading up to leases 
 are admitted, and, moreover, i think the admis- 
 sion of these despatches would be only fair to bjth 
 sides. ■■ don't know whether my friend objects 
 to these. 
 
 Mr. Hannen — I do. 
 
 His Lordship —1 s there any point of import- 
 ance under the agreement of 1866 .'' 
 
 Mr. Hayllar — Not of very great importaqce, 
 but it is an agreement that cannot be left out of 
 the whole thing. In this case the proper name 
 of the temple is tke Wun Chang Kung, but it is 
 a subsidiary part of the Taou Shan Kwan. Then 
 we come now to the document of 1~67, and I 
 have shown, as far as 1 have been permitted to 
 show it, how it was led up to and the title of the 
 lessors. 
 
 His Lordship — I understand you to say they 
 had no title. 
 
 Mr. Hayllar — No title to alienate. 
 
 His Lordship — And about leasing P 
 
 Mr. Hayllar — Nor to lease. 
 
 His Lordship — You say, 1 think, " We cannot 
 give you anything." 
 
 Mr. Hayllar — I don't go so far as that. I say 
 we can give them a licence to live there. 
 
 His Lordship — De anno in annum ? 
 
 Mr. Hayllar — Yes. In fact we have done it 
 and are bound by it. What we can give as be- 
 tween ourselves and them I presume we have 
 given, but of course the narrow question is what 
 we could give. The ordinary rule would be that 
 a'man cannot derogate from his own grant, but 
 
 when we find people in the position these people 
 occupied, the point I put to your Lordship 
 is, did they mean to give more than they 
 have, looking at the wording of the document 
 and the position of the parties ? The actual 
 relationship of the directors to the temple, it 
 seems to me, throws a complete light on what 
 they meant to give, and that leads me at once to 
 what 1 have to say about the agreement of 1867. 
 1 have pointed out various things in it, such as 
 that it describes a property which really at that 
 time had no existence, or rather, which had en- 
 tirely disappeared under the manipulation of the 
 lessees ; and that that fact is one ivhich has 
 some significance, the meaning i put upon it 
 being that it was intended the property as de- 
 scribed in the lease should revert to the temple 
 in exactly the same state as it had been let in. 
 ] have also called your Lordship's attention to 
 the fact that the directors have been substituted 
 for the priest under very peculiar circumstances. 
 The directors have never really treated this 
 money as rent to themselves, i have already 
 said they were merely a conduit of communication 
 between those who were to pay the money and 
 those who were to receive it. Then c mes this, 
 '■ 1 1 is agreed the sum be paid quartei'ly in advance 
 to the Trade Committee for transmission and the 
 rent be not allowed to get into arrears." That 
 is to say, "as 1 understand the real meaning 
 of the document, until the rent is paid each 
 quarter the title of the lessees does not adcrue. 
 It is quite a different thing, the idea being 
 fundamentally different, from leases iu England, 
 so that if a man did not pay rent in advance he 
 could be turned out at once, that is to say, the 
 landlord could resume without giving three 
 months' notice to quit. Well, then, according 
 to the custom I think of all China, the option of 
 taking or refusing that rent when tendered lies 
 with the less-srs. If a person tenders rent in 
 advance it is open to the lessors under a lease of 
 this kind, if they want to get rid of him, to refuse 
 it; but by the custom of the countiy, (^supposing 
 it to be a lease for a year with a quarterly rent 
 reserved, as in this case — which I don't think 
 is a very common form among the Chinese) if the 
 tenaut's rent be refused, he would then be per- 
 mitted to occupy the premises for three months 
 without rent and then he must go ; that is to say, 
 the three months' use of the premises is equi- 
 valent, according to the understanding which is 
 perfectly well known to all Chinese, to a three 
 months' notice and is supposed to be a compen- 
 sation for tl;e expense to which the tenant is put 
 by the removal. In all cases where the rent is 
 payable in advance, the simple plan, instead of 
 giving a notice to quit, which is an English 
 notion, is for the landlord to refuse the tenant's 
 rent when offered. The meaning of it is that 
 
THE WU SHIH SHAN CASE. 
 
 19 
 
 if you refuse the rent, if the rent is not paid, 
 the tenant has no title, because his title d es 
 not accrue until the rent is paid. Should 
 the rent not be tendered the landlord may 
 at onoe resume, that is to say, the man 
 who does not pay the rent loses the pri- 
 vilege he would have had if the landlord had 
 refused it. It works a forfeiture forthwith, and 
 the curious thing is that looking through a- vast 
 number of Chinese leases, as I have had to do, I 
 find it does not make any difference even if the 
 rent is paid by the guarantor. Almost all leases 
 have guarantors where the rent reserved is at 
 all considerable, but still, if the tenant does not 
 pay the rent himself and has to resort to the 
 guarantor he has to go without being allowed 
 that privilege of the three months' rent. 
 
 Then the agreement goes on—" On the other 
 hand, if the rent does not get into arrears the 
 place may not be let to any one else." The 
 construction put upon that by my learned friend 
 is, as I understand, that that is equivalent to 
 an agreement on our part to let him occupy the 
 property as long as he likes. 
 
 His Lordship — He will also contend the direc- 
 tors cannot resume possession for their own 
 occupation. 
 
 Mr. Hayllar In point of fact I understand 
 my learned friend's position to be the same as 
 though we had made an agreement In English 
 form not to give a notice to quit. 
 
 His Lordship — Or that the tenancy may be 
 continued at his option ? 
 Mr. Hayllar— Yes. 
 
 His Lordship — You having no option ? 
 Mr. Hayllar — Yes ; that is, as I imderstand, 
 the coi^tention of the other side, and one of the 
 questions in this case, apart from the title of 
 the two pai'ties, is : what is the meaning of 
 the words " May not let to anyone else ? " 
 Now, we say they mean exactly what they 
 say they do, neither more nor less ; that they 
 express in the most distinct form what was 
 passing through the minds of the writers, be- 
 cause they occur, I believe, in nearly eveiy lease 
 that is made in this City. The words have to 
 the Chinese a distinct meaning, which passes 
 through the minds of those who enter into these 
 agreements between themselves. 
 
 His Lordship — Is this a common form then ? 
 Mr. Hayllar — It is a common form. I be- 
 lieve this document to be one of hundreds of 
 thousands of similar instruments made out by 
 one of the writers who sit at the corners of the 
 streets and make out the documents for a few 
 cash. They are called chong-szes and very often 
 you see the name chong-sze at the bottom of t e 
 document. By the Chinese these chong-szes are 
 not regarded very favourably. The words "may 
 not be let to any one else " have a history. Like 
 
 a great many expressions in English and in. 
 every other language in the world, they have 
 passed from their original into an idiomatic 
 meaning, and the history of it is this, that both 
 landlords and tenants in China being a little 
 tricky in money matters, as soon as a man's 
 property depreciates in value the tenant goes 
 from time to time and offers less rent and if the 
 landlord takes it, the rent is regarded as being 
 thenceforth reduced. But the property may be 
 in a rising neighbourhood and then the first 
 thing the landlord does is to try to raise the rent, 
 although he has agreed not to do so, and in order 
 to carry that out i e produces before his tenant a 
 real or fictitious tenant, who immediately offers 
 a higher rent, and by that means the rent is raised. 
 The words, " if the I'ent does not get into arrears 
 the place shall not be let to any one else," there- 
 fore are an idiomatic expression which means 
 "you won't raise the rent." It means tliat and 
 nothing- else, that "we, t' e tenants, shall not be 
 subject to this treatment, and if you do bring 
 anyone else in in oi'der to raise the rent upon us 
 y. u won't be successful." 
 
 His Lordship— As you say, the real pinch of 
 the case is on these few words. 
 Mr. Hayllar— Yes, I think so. 
 His Lordship — The only question is whether 
 the translation is c rrectly given. 
 
 Mr. Hayllar — We fortunately have in this 
 court some very high authorities upon the Chi- 
 nese language. 
 
 Mr. Hannen — I admit the translation in the 
 petition. 
 
 Mr. Hayllar -The exact equivalents of the 
 various terms are — " First pay rent, afterwards 
 occupy house, if owe rent let the directors re- 
 sume or take back "o"/ I'ent to otlers, if not 
 owe rent directors cannot let oti ers." That, I 
 believe, is as literal a translation as the Chinese 
 language will admit of, so that really "the place 
 may not be let to any one else " is a very correct 
 rendering. The land may not be let to any one 
 else, but this does not interfere vrit'i what is in- 
 herent in every such lease, the right of the land- 
 lord to resume for is own purposes, the inference 
 being, in dealing with property of Chinese, that 
 a man would not want to get rid of his 
 tenant. We happen to reverse the position a 
 good deal in this case, but as a rule a man 
 who holds property does so as an investment 
 and does not wish to get rid of a tenant 
 except to let it to somebody else. One of 
 the witnesses I si i all call is one of the largest 
 owners f house property in ti is province. 
 The chances are a hundred to one against his 
 wanting a particular house for his own purposes, 
 but what he would do with it, after lis fashion, 
 would be to raise the rent by letting it to some- 
 body else, but if he tried that he would be foiled; 
 
20 
 
 THE WU SHIH SHAN CASE. 
 
 the courts would not admit it. He cannot turn 
 one man out and put in another, a rival in 
 trade or a rival in price. It means that dis- 
 tinctly to the mind ■ i a Chinaman ; the chance 
 of his wanting the house himself is so small, 
 except w!.ere a man wants a house to set up 
 his son. If a landlord's son were going to be 
 married, under this agreement he would be per- 
 mitted to resume the property for his < wn 
 purposes ; or if he wanted to open a shop 
 himself he would be permitted to resume for that 
 purpose. If a man wants to put in a stranger 
 to raise the rent it is against the equity of the 
 document ; if he wants t ■ put in his son or him- 
 self it is in accordance with the equity of the 
 document arid, as they put it, the " reason " of 
 the case. The words themselves are so common 
 that they appear, I believe, in almost every docu- 
 ment of the kind. 'hen they say the w rd 
 " choc " which appears in this lease does not 
 create anything more than a mere temporary 
 title. Every arrangement they make for dealing 
 ■with property for rent is a mere temporary 
 measure, and the whole thing is simply an 
 agreement against a certain form of extortion. 
 
 Now in this case there is no doubt the pro- 
 perty is let at an extremely moderate rent, a 
 rent which is not in the slightest degree equiva- 
 lent to the value of the property. The mis- 
 sionaries have had the use of it for a good many 
 years at this rent, and what Mr. Wolfe may have 
 understood by these words I don't pretend to say, 
 hecause of course I cannot enter into his mind, 
 hut one thing would he very natural, that he 
 certainly ' would not wish the rent raised. 
 Ex necessitate rei, I should have thoug'ht they 
 would be obscure to Mr. Wolfe's mind if he had 
 not shown himself so very much alive to the im- 
 portance of the terms as evidenced by the other 
 agreements he made in ISti(i. 
 
 Now, as throwing light on the document of 
 1867, I wish to call your Lordship's attenti n to 
 the lease of IS^iG, which is made between the same 
 parties, and there your Lordship sees that when 
 we were going to deal with property which was 
 to depart out of our possession for a lengthened 
 period of time, with a property which we were 
 •admittedly going to allow buUdings to be placed 
 ■upon, we dealt with it in a very different manner 
 and much more serious spirit. It is not to be 
 supposed that the Chinese do the.se things care- 
 lessly ;, in point of fact I believe thei-e are no 
 people who confer about any dealing with pro- 
 perty so vigorously as they do ; there is no act 
 which in all its bearings is not discussed. If you 
 come to compare the agreement of i8 i7 with that 
 of If 66 you will find some very marked distinc- 
 tinns. In the fir.st place the agreement of 867 is 
 made with Mr. Wolfe, this in itself showing that 
 they regarded it as a temporary agreement made 
 
 with one man ; but the agreement of i 866 is made 
 with " Mr. Wolfe and others of the Church 
 Missionary Society.'' Now, I don't know ex- 
 actly who these others are. but it is clear the 
 Chinese understood perfectly well that other 
 persons were coming. They knew that, from 
 what had taken place before, and they became 
 alive to the fact that it was a succession of gen- 
 tlemen coming one after the other they had to 
 deal with, and they in their fairness of mind 
 treated with Mr. Wolfe on that basis. They 
 say " we are going to let you have it for twenty 
 years, though it is not probable you yourself 
 will be here for twenty years." Whether these 
 words do not invalidate the whole document as 
 making it an uncertainty is a question on which 
 I will have a word or two to say to your Lordship 
 shortly. Knowing that Mr. Wolfe was not likely 
 to remain here so long, they let him have the 
 land. That is a very important consideration. 
 In the one case we say, " We let you have theland 
 as a personal matter ; in the other case we treat 
 with your Society." Then they go on, " As they 
 wish to rent a piece if Government Ground," 
 and you see here they specify the nature of the 
 ground, which they do not do in the case of the 
 Taou Shan Kwan ground. It is a very serious 
 step they are entering upon, because one has 
 only to read the history of missionary troables 
 i'l China to know from what sources they arise. 
 They arise from the fact that the people 
 regard with such intense jealousy, in con- 
 sequence of fung shui and other reasons, 
 the building of foreign houses in a city. 
 It is liable to raise a storm which Prospero 
 himself could not allay. It is not a matter to be 
 lightly regarded, and they did not regard it 
 lightly. They state t at it is Government 
 ground, or rather public ground, in the district 
 of Haukwan, and then they state what it is for — 
 f T building purposes. That is a thing which is 
 omitted from the other document. In that case 
 we say they I a e encroao ed Kttle by little, 
 being there for so many years unmolested, t! ey 
 having great interest in doing it, and the people 
 not I aving ti eir own representatives on the 
 spot. On the other hand, when we want to 
 let you a piece of land for building purposes 
 we know perfectly well what we are about 
 and we let you a piece of land for t at. 
 
 T en we have here an element we i ave not in 
 previous agreements, we lave ti e gentry. T ey 
 are people outside t e directors witii, in fact, a 
 perfectly hostile interest. They say to the 
 direct rs, "You have no right to have done what 
 you lave." There is no unity between them. 
 But in t is agreement of ^866 the gentry come 
 forwai-d. " At the request of the Consul the 
 gentry and directors > i the said place have been 
 invited to g > with them and make a clear in- 
 
THE WU SHIH SHAN CASE. 
 
 21 
 
 specti n <•£ the said piece f land." Now 
 in the agreements of SoO and 1867 t' ere is 
 no hing of that kind ; the thing is left in the 
 loosest p ssible way. Why ? Tliere ought t ■ 
 have been no mistake. Tne intention was not 
 that you s ould build walls here and make en- 
 closures t ere, but that you should occupy a few 
 houses with a little piece of land attac ed, ap- 
 purtenances, as I apprehend the word would be, 
 properly translated. We let them without de- 
 scribing tbe boundaries for the simple reason that 
 we never intended t em to be used for anything 
 except what we say t!iey ought to have been 
 used for. But when we intend them to build 
 we g ' about it in a very different way and have a 
 clear inspection, and t en wnat is found ? 
 
 T le learned counsel went on to read tlie bound- 
 aries of the land as stated in the lease set out in 
 the petition, and proceeded — Gould anything 
 be more accurately and wrfll-done ? Why, it is 
 equal to the best deeds we can draw in England, 
 and Chinese are perfectly capable wf doing tliese 
 things themselves w en they know what is 
 wanted, but of course when thex'e is a misappre- 
 hension of their intentions there comes confusi n, 
 but here there is no confusion. And what was 
 intended ? The houses are to be of a very special 
 description. '• The houses to be built thereon 
 will be of the same description as those in 
 the neighbourhood — not detrimental to the 
 position of the neighbouring native houses." 
 That is very important, for I believe according 
 to the fundamental customs of the place a man 
 is not allowed to build a house higher than his 
 neighbour's. Whether this arises originally 
 from the fact that this would keep out ii.rht, or 
 allow a family house to be over-looked, or because 
 it would interfere with fting shui, the fact re- 
 mains that any man who did that would have a 
 great ch.i.nce of beiig very severely bambooed, 
 And that of course would have been the fate of 
 these gentlemen had they happened to be Chi- 
 nese. They would not have been allowed to do 
 it for a moment, they would have been subject 
 to punishment, but each one being civis Bo- 
 ma nis they could not be punished in that way. 
 A Chinese would have had his house pulled down 
 about his ears in aminute. When we intend houses 
 to be built we describe them in this way. 
 
 " The ground is rented through Chow 
 Fung Yuen and other gentry and directors 
 of the Wun Chang Kuug temple duly ap- 
 pointed." Duly appointed! How? At a public 
 meeting. When they were going to deal in 
 reality with the Government property, then 
 they resort to those means which are known 
 to t em. They did not, in a hole and corner 
 manner, in a corner of the temple, make an agree- 
 ment with a priest, because there is great jealousy 
 t)n all these matters in the city, but as they were 
 
 I'eally going now to give a great privilege they 
 do the best they can ; they call a public meeting, 
 and then they g-rant the land for .Si5 per annum, 
 which amount is t be handed over to the British 
 Consulfor transmission toChow and other gentry, 
 to be spent in aid ■ <i the cause of respect for 
 written papers. Now t e distinction between the 
 gentry and directors was taken by me in the 
 petition. It is now out of it, but to those who 
 made tiiis lease it was a very important distinc- 
 tion. 
 
 His Lordship — This is a differen trus'. 
 Mr. Ilayllar— It all belongs to he same Taou 
 Shan Kwan Temple, but this particular temple 
 is connected wit'i the cause for the respect of 
 written papers. They are different parts of the 
 same association. 
 
 His Lordship — You are now on the agreement 
 of 18d6. There is nothing* there said about the 
 directors of the Taou Shan Kwin Temple. 
 
 Mr. Hannen — We say that is merely descrip- 
 tive of a particular piece of ground. 
 
 Mr. Hayllar — It makes no difference to the 
 argument I am addressing to your Lordship. 
 
 His Lordship — How do you show a right to 
 relief in respect to this lease of 8 -3 ? 
 
 Mr. Hayllar — Simply as directors of the Taou 
 Shan Kwan. 
 
 Mr. Hannen — 'There is no breach alleged. 
 Mr. Hayllar -I don't say there is. I am not 
 asking for relief. I am simply asking your 
 Lordship what our position is with re,;z;ard to it. 
 The property is a piece of the orig-inal ground, 
 it is public ground, and is let by the directors of 
 the temple and gentry. 
 
 His Lord-ihip — t may be public ground. The 
 only question is whether the plaintiffs are en- 
 titled to sue in respect of the agreement of 1866. 
 I don't say they are not : I only put it to you. 
 
 Mr. Hayllar -I am aware of the position. The 
 importance of the lease to us is as showing what 
 was done when they were g'oing to build. It is 
 to i)lace before your Lordship's mind, sitting here 
 as a foreigner, dealing with a piece of land in Chi- 
 nese jurisdiction, the distinctionbetween the cases, 
 showing you how they dealt with the land, and 
 as such it appears to me the best kind of evidence 
 that can be laid before you. It is extremely 
 difficult for me or for your Lordship, as I appre- 
 he d, to place our minds in the same position as 
 those of the parties to this document on one 
 side. The administration of justice, I presume, 
 depends unon our knowledge of a great many 
 things we have to take for granted. _ The 
 administration of justice by a foreign judge 
 in China must depend on a great many things 
 we cannot take for granted, and in getting at the 
 real meaning of the parties it is necessary to 
 introduce things waicli would be irrelevant in 
 England or which are only relevant as showing 
 
22 
 
 THE WU SHIH SHAN CASE. 
 
 tlie meaning of he parties. I am using this 
 document as sho^ ng the meaning of the parties, 
 liot as asking r- lief with regard to it. "The 
 tenants shall h\ m this date build houses within 
 the boundary as above described, without 
 t. e least encroachment, and the houses so 
 built si all not be higher than the neighbour- 
 ing native houses or to the detriment of their 
 positions. As this is Government ground it 
 shall on no account be sub-let to other per- 
 sons for building houses thereon. It is leased 
 for a term of twenty years ; at the expiration of 
 the said term, if before the departure of the 
 tenants for their native country, China should 
 require the said ground for her own use, one 
 month's previous notice to that effect will be 
 given to tbe tenants, who will then eive up pos- 
 session of it without the least hindracce." Then 
 comes an important clause. " Having regard 
 to the relations between < hinese and foreigners, 
 this step is taken to meet the existing circum- 
 stances of the case, and it should not be regarded 
 as a precedent in future." This tas, in fact, 
 two raeauings ; the first is that they have de- 
 parted fr m their usual plan in letting ground 
 for a term of years at an annual rent, a sort of 
 tenancy which is unknown in China; in the next 
 place it means that Government ground is not to 
 be regarded as property to be let. It was not to 
 be a precedent for letting Government ground 
 for a term of years', or for letting it at all; the 
 thing is to be quite stii generis; it is to stand 
 alone and not to be drawn into a pz'ecedent 
 for the future. 
 
 Then comes this — "As the above men- 
 tioned laud, which was at first rented from 
 \Vang C heang Shang and his son Wang 
 Eo tbang, chair bearers by trade, has 
 on inquiry been found to be Government pro- 
 perty, which they had let by means of false deeds, 
 the abcve mentioned agreement of rent has there- 
 fore been made without reluctance, and the false 
 deeds, seven in number, given by Wang Cheang 
 Shang and the otl ers are now given up to the 
 local authorities to be destroyed." There is no 
 iiecessity to go, just now, into any account of 
 these false deeds — these little unfortunate things 
 that seem to have occurred in connection with 
 this property — people selling the property who 
 had no right to it, and so on. It resulted in a 
 good deal of trouble, aud finally in thisagreement 
 of 1866. and there the matter stands. There are 
 now these contiguous pieces of property, forming 
 in fact one piece, partly held under the lease of 
 1866 and partly u der^that < f 1867, which are 
 still in the defendant's occupation. 
 
 I am now coming to the point as to how 
 far your Lordship will be guided in the 
 decision of this case by English law. how 
 far it is possible to introduce English law 
 
 into the dealings between Englishmen and 
 Chinese with reference to a piece of land in 
 China. According to English law all leases 
 are subject to be construed according to 
 the custom of the country where the pre- 
 mises are situated. The court construes the 
 terms according to the custom of the country ; 
 and also the law of the land, as differing from 
 custom, where it can differ in a matter of this 
 kind, would be imported into it where ne- 
 cessary.' — The learned counsel quoted the sec- 
 tions of the Order in Council bearing upon the 
 case aud went on to say that the English 
 law of landlord and tenant, although certainly 
 very peculiar in some ways, would not, he thought, 
 be found to differ very much from the customs 
 in force in China with reference to leases from 
 year to year. He thought his Lordship would find 
 great similarity between the notions of English 
 people and Chinese with regard to the letting of 
 houses. Of course, when they came to the letting 
 of land for agricultural purposes, that was quite a 
 different matter, but he did not think there would 
 be much, confusion of authorities between the 
 customs and laws of the two countries. Whether 
 the words found in this document had ever been 
 found in any English casehe didnot know; he had 
 been unable to find any such decision himself, but 
 there were a good many cases, some old and some 
 new, wbich had been decided in England upon 
 documents where there had been an agreement 
 " not to give notice to quit " without any term 
 of yeai's fixed, with no determinate term reserved 
 in the agreement. Where the agreement was 
 that there should be no notice to quit it had 
 been held in the Common Law Courts, al- 
 though it was not precisely the same in equity 
 in some cases, that these very words were re- 
 pugnant to the provisions of such a lease. Now 
 treating the document of 1867 for a moment as 
 it stood, looking at it by the lig-ht of English 
 law, he presumed that, without extraordinary 
 evidence of some kind, it stood as a lease for an- 
 indeterminate period. He cited passages fri'm 
 Woodfall's Law of Landlord and Tenant and 
 the cases f King's Leasehold Estates reported in 
 16 Law Reports Equity, and Holmes and Day. re- 
 ported in 8 Irish Reports, C.L.. 235 C.P. In this 
 case, he went on to say, the title of the lessors 
 was certainly not for a term of years. Nothing 
 could be more indeterminate, vaguer, or looser in 
 any way than the title of the directors who 
 signed the document dated August, 1867, on be- 
 half of themselves and other directors. Nothing, 
 he thought, could be clearer from the wording 
 of the agreement itself than t at what was meant 
 was that the agreement should be an agreement 
 from three months to three months, < r, as that 
 was scarcely known to our law, a tenancy from 
 year to year. Therefore, if the words at the end 
 
THE WU SHIH SHAN CASE. 
 
 2} 
 
 reut, 
 year, 
 quit; 
 
 of the document that they should not let the place 
 to any one else were equivalent to an ag-reement 
 not to give a notice to quit they wou d be 
 repugnant to what was the real moaning between 
 the parties. According to the law of England 
 a lease without any determinate period mentioned 
 in it, which could not be determined by a refer- 
 ence to any contingent event, or any event out- 
 side which could be introduced into the docu- 
 ment by verbal testimony, was, he apprehended, 
 upon the face of the document itself, a mere ten- 
 ancy at will. If ever there was a case in which 
 a lease, according to English law, was void 
 for uncertainty, he put it that this was one. As 
 the tenants had entered under a void lease, and 
 they had paid, and the plaintiffs had accepted 
 the title was one of tenancy from year to 
 determinable by a three months' notice to 
 by a written notice to quit according to 
 English law, according to Chinese law by the 
 non-acceptance of rent. Rent had been refused 
 by the plaintiffs, but they were not suing so 
 much for ejectment as for a declaration of their 
 rights. Whether they would proceed by any 
 means of ejectment was a matter for after consi- 
 deration. There was also another aspect of the 
 case, which was that if his Loi'dship should 
 decide the lease should exist the plaintiffs would 
 ask the decree of the court as to the defendant's 
 right to build on the piece of ground over which 
 he had such right. The learned counsel con- 
 cluded by pointing out on the plan the different 
 pieces of ground in dispute. 
 
 The court thou ajourned until the following 
 day. 
 
 (Second Day,) May 1st. 
 
 Mr. Hayllar now proceeded to call evidence 
 for the plaintiffs. 
 
 Mr. Lai Sun, of Shanghai, acted as interpreter 
 in the mandarin dialect. 
 
 Ting Kia Wai, ex Prefect of Foochow, was 
 the first witness. He said — I am an officer at 
 Peking, in the service of the Emperor of China. 
 I held office as Prefect for three years at Foo- 
 chow, and previous to that I had held offices of 
 various grades in the Fuhkien pr vince. I came 
 here when I was twenty-six years old and I am 
 now sixty-three. I have been District Magis- 
 trate, sub-Prefect, and Prefect in this province. 
 The administration of justice in civil matters 
 came within my functions in all those offices. 
 (Original agreement of rent in 1867 shown to 
 witness and identified by him.) Mr. Sinclair 
 sent the document to us and we sealed it. It 
 was sent first by Mr. Sinclair to the Board of 
 Trade, of which at that ime I was the president. 
 I examined it and found it was in form and then 
 I sent it to the Haukwan Magistrate. After 
 the Magistrate had seen it was in form he sealed 
 
 it. It was then sent back through the Board of 
 Trade to Consul Sinclair. 
 
 Mr. Hayllar asked if the words translated " If 
 not owe rent directors cannot let to anyone 
 else " were a common form in Chinese leases. 
 
 Mr. Haunen objected to the question, on the 
 ground that it was put with the object of prov- 
 ing a custom the existence of which was not 
 alleged in the petition and which the plaintiffs 
 could not now set uj). 
 
 Mr. Hayllar contended that under the rules 
 of the court the evidence coald not be set out in 
 the petition nor any argument of law. He re- 
 ferred to Taylor on Evidence to show that testi- 
 mony to show the meaning of obscure documents 
 was admissible. The document here was in a 
 foreign language and had a technical meaning 
 and could not be interpreted by tUe court with- 
 out evidence. 
 
 His Lordship overruled the objection, holding 
 that the setting* out of the document involved 
 its interpretation. 
 
 Evidpuce continued — The words pointed out 
 to me are a common form in leases for no definite 
 period. If the agreement were for a lease in 
 pex'petuity it would be so expressed. I have 
 seen many leases of this kind. 
 
 Mr. Hayllar asked what the term would be in 
 a lease in perpetuity. 
 
 Mr. Hannen objected to this (juestion on the 
 ground that it was interpreting- a document in 
 which there was no ambiguity unless Mr. Hayllar 
 were allowed to bring it in by setting up custom. 
 The document said that as long as the defendant 
 paid rent he was to have the use of the property. 
 There was nj ambiguity ab 'ut that, and if 
 foreigQ law were to be imported into the matter 
 foreign law was a fact which ought to have been 
 set out in the petitio i. 
 
 Afte"r argument, the question was allowed. 
 
 Evidence continued — In a perpetual lease, 
 instead of the clause providing the land shall 
 not be let to anyone else you would have the 
 words "yung yuen," meaning in perpetuity. 
 
 ;Wr. Hayllar — What, according to the custom of 
 Foochow, is the meaning attached to the wordsi 
 which have been translated " If the rent does 
 not get into arrears the place canuot be let to 
 any one else." 
 
 His Lordship said this was the questi m the 
 Court had to determine, and he was afraid ha 
 c luld not allow it to be put to the witness. 
 
 Mr. Hayllar argued that the words were in a 
 foreign language, and that the Court ought to 
 know the meaning they conveyed to the mind of 
 persons using that language. An English pro- 
 verb translated into a foreign language without 
 its meaning would be incomprehensible. The 
 custom of China could not be excluded in tha 
 interpretation of this document. 
 
24 
 
 THE WU SHIH SHAN CASE. 
 
 His Lordship s^aid lie did not intend to exclude 
 it, bnt he thouglit the document could not be 
 put into the hanr's of the witness to interpret. 
 
 Mr. Hayllar rtf erred to the case of the Du- 
 chesse de Sauie v. Phillips, cited in Taylor on 
 Evidence, as governing the case, the ruling there 
 being that in x-espe< t > f foreign documents the 
 Court ought to get fii'st a translation, second, 
 an explanation of any terms of art it contained 
 and, thirdly, evidence ( f the foreign law applic- 
 able to it. H put these words as a term of ai't. 
 He also referred to Addis ,n as an authority in 
 support of his contention. 
 
 Mr. Hannen < bjected to the question on the 
 ground that the interpretation intended to be put 
 upon the document ought to have been set oin ; 
 also that the law t'f the country • ught t<> be 
 proved generally, if at all, n t that the d cument 
 ghould be put into the hands of the witness to 
 interpret. 
 
 Mr. Hayllar said he had not done that; he 
 simply asked the meaning of a term of art 
 contained in the document. This was necessary 
 in every foreign document. He also put it 
 on another gi-ound, that of custom, which was 
 imported into every lease. 
 
 His Lordship sug-gested thatthe question might 
 be put in a different form, for instance, " in an 
 annual lease in Foochow what would be the term 
 used ?" 
 
 Mr. Hayllar put the question in this form. 
 Mr. Hannen objected to this question on the 
 same grounds as before ; he also argued that the 
 term was not one of art. 
 
 Mr. Hayllar said he would put the question in 
 the form in which it was given in the case he had 
 cited — what is the law of China applicable to 
 the instrument ? 
 
 Mr. Hannen said he had no objection to that 
 question except upon his former grounds. 
 
 The witness was then asked what the law ap- 
 plicable to the document was. He said — I would 
 first have to know the grounds on which the 
 parties sued, whether on account of the rent fall- 
 ing into arrear or the lessors wishing the lessee 
 to leave. If the rent were owing, the landlord 
 could resume and take back his house. If no 
 rent were owing the lessors could not let to any- 
 one else, but if the landlord wished to have the 
 house for himself then the tenant must give it 
 up to the landlord, who generally gives a mouth 
 or two's notice. If the tenant has been in the 
 house a long time it is at the option of the land- 
 lord to charge the rent for that time or let the 
 tenant occupy free. I have had to decide many 
 questions arising on similar documents. Under 
 an agreement of this kind the tenant would not 
 be allowed to erect any buildings upon the land 
 leased, nor would he be allowed to alter materially 
 the buildings leased to him. A lease with the 
 
 terms " yung yuen " in it is granted on payment 
 of a lump sum in the first instance and no rent 
 is paid. I know the Taou ;■ ban Kwan pr perty, 
 to which this document refers. It is public, or 
 Government, property, and there are directors 
 to manage it. It belongs to the Emperor. The 
 temples were built by public subscription. The 
 la d belongs to the Government and the build- 
 ings to the public of the City of Foochow. (Let- 
 ter from Hr. Hewlett, to the witness, as Prefect, 
 dated 10th day of the 6th moon of t e 4th year 
 of Tung Chi ( . 865), and another dated the 1 5th 
 day of the :0th moon of the same year, j)ut into 
 witness's hands and identified by him.) The 
 second letter was to ask me to go myself and see 
 about the erection of the wall abcut five < r six 
 o'cl ck on the evening of that day. As I had 
 some business on hand I deferred the visit for 
 three days and then went. The place I went to 
 inspect was where thc> north wail now is. At 
 that time there was only a bamboo fence there. 
 Mr. Hewlett told me they wanted to borrow that 
 piece of land to build a wall there to prevent 
 nuisances. A t that time I saw no wall to the 
 north and west enclosing the Bird's Tongue 
 Bridge. I only saw a bamboo fence twenty or 
 thirty feet long. I was not Prefect when the wall 
 was built and I know nothing about it. I left 
 Foochow in lb7<i. The dispatch now shown to 
 me was addressed to me by C' nsul Carroll, and 
 is dated lOth year of Tung Chi, 4th moon, 1st 
 day ( oth May, 18G6). 
 
 Cross-examined by Mr. Hannen — I did go 
 myself to inspect the premises before the erection 
 of tl e wall which has been mentioned. I went 
 in private dress. I sent a deputy to visit the 
 place fficially. I myself had no conversation 
 with Mr. Wolfe or any of the missionaries on 
 t e occasion of my v sit. The substance < f the 
 request was that a wall might be built to keep 
 out beggars. There was a path along the north- 
 east side. The permission I gave was to erect a 
 low wall at the north, but there was nothing 
 said about a gate to prevent beggars getting in 
 by this path. Between the wall and the 
 mission house the ground was not very steep. 
 I have seen leases between Chinese exactly 
 like the one of 1867. Leases between Chinese 
 are always signed by the landlord as well as 
 the tenant. Generally two copies are made 
 am ngst C' iuese, but for foreigners three are 
 made. It is not the custom among Chinese for 
 the lease to be a single document handed by the 
 tenant to the landlord. In Foochow there are 
 some leases that omit those words about not 
 letting to any other person. In such leases as 
 those it is the general custom that three months' 
 notice is given by the landlord of his intention 
 to eject the tenant. It is not the general custom 
 to let the tenant occupy the house for these 
 
THE WU SHIH SHAN CASE. 
 
 three months free of reut, but if the tenant has 
 occupied the hon;?e a long time the landlord may 
 let him off payment of rent for a month or two. 
 If a house is burnt d wn and tlie landlord does 
 not care about rebuilding it himself the tenant 
 must obtain the permission of the landlord before 
 he can do so, and then they can make an agree- 
 ment as to how long the tenant shall occupy it 
 before giving i up to the landlord. There is 
 no such custom as that of the tenant rebuilding 
 the house without coming to an agreement first. 
 I never heard of a lease containing the words 
 " yung yudn " made between Chinese before 
 foreigners arrived here. 
 
 Re-eximined by Mr. Hayllar — The words 
 " yung yuen " were invented for transactions 
 with foreigners, because the Chinese would not 
 write the words " to sell," and therefore substi- 
 tuted the tprm " perpetual lease." The transac- 
 tion is just the same as a sale between Chinese, 
 only a diiferent term is used. Among Chinese 
 the burning down of a house iu itself puts an 
 end to the contract under an agreement of rent 
 from year to year or from month to month if the 
 house is burnt down accidentally, but if through 
 the negligence of the tenant he must rebuild it. 
 The name of the deputy 1 sent to report about the 
 wall was Fuh. He made an official re^iort about 
 it. The document produced is the report. It 
 is dated the L'8th day of the 9th month of the 
 4th year of Tung Chi. 
 
 By his Lordship — I have seen a very large 
 number of leases between Chinese and foreigners, 
 several tens, but none for property within the 
 city except the one in question. The property 
 the other leases I have seen ajipliod to was out- 
 side the city. I have seen more perpetual leases 
 than leases for a term. I don't think I have seen 
 any leases for a term of years outside the city 
 between Chinese aud foreigners. The law and 
 custom with reference to leases is the same inside 
 and outside the city. There is no difPerence 
 throughout the province, but each px'ovince has 
 its own customs. 
 
 Ching Che Yeo, the present Haukwan District 
 Magistrate, said —I am a civil officer in the 
 service of the Emperor of China. There are tw . 
 district magistrates in the city of Foochow, the 
 Min and H tukwan. Part of my duties consists 
 of the administration of justice, aud also putting 
 my official seal on leases between Chinese and 
 foreigners and Chinese themselves. I am aware 
 of the laws and customs of this province as re- 
 gards leases, and it falls within my duties to 
 adjudicate upon such documents. The document 
 produced (the agreement of rent of 18 7) was 
 recorded in my yamen and I saw it when I entered 
 into office. I have seen it since. 
 
 Mr. Hannen too'c the same general objection 
 to the evidence of this witness as to the law of 
 
 China applicable to the document in quesi ion as 
 he took to the evidence of ti e last witness. 
 
 Evidence continued — As regards this instru. 
 ment, it is a temporary lease andn t a perpetual 
 one, and if the landlord wishes to have the pro- 
 perty back and to resume the place he can do so 
 under this agreement. Under the words tran- 
 slated in the petition " the rent to be paid quar- 
 terly in advance " it is at the option of the land- 
 lord to refuse the rent. If the landlord refuses 
 the rent it is equivalent to a notice to quit. Ac- 
 cording to law the tenant should go at once, bul< 
 he is generally allowed about half-a-month to 
 find another house, it being at the optica of the 
 landlord to allow him to remain for this period 
 free of rent or not. If the parties came to the 
 magistrate about it, the magistrate would 
 say the tenant must go. The same hiw 
 applies to cases where the rent is payable every 
 t ree months; the landlord might allow the te- 
 nant any time he thought proper to clear out ac- 
 cording to the friendship between them. Under 
 this agreement tlie landlord can't let t • any one 
 else. I here is a distinction recognised by Chi- 
 nese law between the landlord resuming for him- 
 self and letting to other people. In dealings in 
 land between foreigners and Chinese in Foochow 
 it is the custom for the Haukwan Magistrate to 
 affix his seal after the Consul has affixed his. 
 
 By Mr. Hannen —The Magistrate does not 
 affix his seal to agreements for rent between 
 Chinese, except when there is a sale. T he law of 
 China is that a tempoi'ary lease requires no 
 stamp, but a sale does. A lease to foreigners 
 containing the words " yung yuen " is about the 
 same as a sale between Chinese. I have seen 
 leases like this between Chinese ; such docu- 
 ments are almost all alike. It is not the custom 
 for the document which defines the tenancy to 
 be signed by the landlord. This one is signed 
 by the people who purport to be the 1 ludlords ; 
 that is because the tenants are foreigners. The 
 wording of the document is the same as the 
 usual form of lease between Chinese, but the 
 signing is diffi^rent. I have never known such 
 a document when between Chinese to be made 
 iu triplicate. The usual custom is that one 
 document is made out, signed by the tenant, and 
 handed t the landlord. The words in this docu- 
 ment " if the rent does not get into arrears tho 
 place cannot be let to any one else " are not 
 genei'ally omitted in Chinese leases but some- 
 times they are. Thex'e are more leases in Foo- 
 chow with the characters in than without. I 
 judge this from the knowl»^dge I have obtained 
 by people suing each other Under a lease from 
 which the words in question are absent, if the 
 landlord wishes to eject the tenant, according to 
 the law the tenant ought to go out at once. 
 There is no law that he shall live in the hou^ j 
 
26 
 
 THE WU SHIH SHAN CASE, 
 
 for a certain time rent free ; the people make 
 their own arrangements as to that. 
 
 Mr. Hayllar did not re-examine this witness. 
 
 The Court adjourned until the following day. 
 
 (Third Day, May 2nd.) 
 Evidence for the plaintiiis was ci ntinued. 
 Loo King Fah, one of the plaintiffs, said — I 
 am a director of one of the associations connected 
 ■with the Taou Shan Kwan Temple, the " Show 
 Shing Shea," the object of which is to show 
 respect for written papers. It is a voluntary 
 association of certain people in the city. A 
 person becomes a member by election by the 
 other members and the payment of subscription. 
 He is elected for no definite period and can leave 
 the association when he likes. The subscription 
 is a monthly one, and if a person fails to pay he 
 ceases to be a member. The association is 
 managed by directors, sometimes two and some- 
 times three in number, elected by the general 
 body of members. They are elected for 
 an indefinite period. I was elected in 1864 
 and have served ever since. The Taou Shan 
 Kwan premisfs ax-e public property. The 
 records of the temple show that the land origi- 
 •iially belonged to a man called Sun Chui Chang, 
 who was a literary examiner in the Chekiang 
 province, about the end of the Ming dynasty. 
 On the left hand side of the Taou Shan Kwan 
 there was a rock with the inscription " Son of 
 the Ming dynasty studied here." This rock was 
 removed in b71 by Mr. Wolfe when he built a 
 foreign house. At the beginning of the present 
 dynasty the descendants of Sun Chui Chang gave 
 the land to the public of the city to build temples 
 upon. Money was raised by public subscription 
 in the city of Foochow and temples were built. 
 The buildings are now kept in repair by voluntary 
 subscriptions. The temple has no money of its 
 own apart from these subscriptions. 'J here are 
 thirteen associations connected with the temple 
 iiow. In I860 and M-67 there were only nine. 
 Ihe names of some of the present associatii ns are: 
 — the Hsin-i-Shea, the object of which is to supply 
 incense; the Hsiang ung Shea for supplying 
 incense and lamps ; the Kwan t hea, for supplying 
 freshflowors; and theHengShea.forsupj)lyingoil 
 for the lamps kept burning before the idols. All 
 the a^ociations have kindred objects, but are in 
 iio way connected with each other. When the 
 temple i-equires repairs the directors of the as- 
 sociations collect the subsci'iptions, and combine 
 together for this purjjose. A 'laouist priest 
 conducts the services of the temple, and is 
 elected for that purpose by the directors of the 
 associations generally. 'J he directors have the 
 J)Ower of dismissing him. He has no regular 
 salary, but each association contributes some 
 rice to him, and when worshippers go to the 
 
 temple he gives them some tea, and they cum- 
 shaw him money in return ; this is called tea 
 money. The temple is open at all times, night 
 and day, and is one which is much frequented. 
 The associations in return for their services to 
 the temple have the use of apartments in the 
 temple, and each association meets five or six 
 times a year. The object of the meetings is to 
 celebrate the idols' birth days. They take place 
 in the first, second, fifth, eighth, and ninth moons 
 of each year. They have services wldch take the 
 form of theatrical performances, the burning of 
 incense, and the lighting of lamps. These 
 services are public. Besides these there are 
 feasts at which only the subscribers are present. 
 'J here is a small temple at Taou Shan Kwan 
 called the Blind Man's Temple, where the blind 
 men of the city meet for their religious services 
 and feasts. On two days in the year large num- 
 bers of people assemble on the Taou Shan Kwan 
 grounds. Ihese are the 14th day of the 8th and 
 14th day of the 9th moon. At the south-west 
 corner of the grounds is a rock called Lee Kung's 
 rock, or Wu Shih, which means black rock, and 
 it is Irom this the hill derives its name. There 
 is another rock called the Bird's Tongue Bridge. 
 1 he people attach great significance to these 
 rocks as they are supposed to be the origin of 
 fung shui and to be the dragon's pulse. In 1864, 
 when my connection with the temple as a direc- 
 tor commenced, the name of the priest in charge 
 was Chun Yuen Ching. Mr. Wolfe was at this 
 time in occupation of several buildings on the 
 premises and resided in the house which was 
 accidentally burnt down in 1871. About the 
 12th moon of the 4th year of lung Chi the do- 
 cument jiroduced was brought to my notice. 
 ($800 lease produced). I heard there was a private 
 contract between the priest and Mr. Wolfe. It 
 was spoken of publicly and I saw it on the 1st 
 moon of the succeeding year in the Taou ^ han 
 Kwan. This document had not been made with 
 the sanction of the directors ; they knew nothing 
 about it. When the directors of the temple 
 heard of this lease they objected to it. The 
 priest had not the least power to deal with the 
 property in this way, and the directors cancelled 
 the document. In the following year, the fifth 
 year of Tung Chi, the 3rd month, the directors 
 heard that the priest had again made an agree- 
 ment with Mr. Wolfe (:?500 lease produced), 
 I saw the document at the Haukwan Magistrate's 
 yamen, where the priest had been sent to be 
 punished. He was in prison there. The 
 directors never knew about the lease until 
 after it was made, and it was cancelled 
 by the Board of Trade in the same month. I do 
 not know if receipts were given for the rent 
 when it was paid by Mr. Wolfe ; that was a mat- 
 ter between Mr. Wolfe and the priest. Up to 
 
THE WU SHIH SHAN CASE. 
 
 27 
 
 this time the priest had collected the rent. The 
 document now shown to me (§500 promissory- 
 note) is a note of money borrowed purporting to 
 be made by Chun Yuen Chino-. dated August 
 13th, 1S66. I have seen this for the first time 
 to-day, but I have heard of it before. The direc- 
 tors had given no authority to Chun Yuen Ching 
 to bori'ow this money and set the rent off against 
 it ; they knew nothing about it. Some of the 
 directors reported to the Board of Trade about 
 the non-payment of rent by Mr. Wolfe. They 
 presented a petition in the usual way to the Board 
 of Trade, 'the document now shown me is the 
 reply of Mr. Sinclair to the Board of Ti-ade, 
 and the petition is copied in it. It is dated in 
 July, 1867. I see another answer from Mr. 
 Sinclair, dated in August, 1867. embodying 
 another petition on the same subject. I was 
 present when the draft of the agreement of rent 
 with Mr. Wolfe in 1867 was written. The 
 earlier agreements had been made with the 
 priests ; this was made with the directors. That 
 was because when it became known there had 
 been some peculiar dealings between the mis- 
 sionaries and the priest, the directors thought 
 they would make an agreement of rent with 
 the missionaries themselves. The draft agree- 
 ment was drawn by Chow Tao Wen and 
 Lin Yune Chin, two of the directors now de- 
 ceased. They were the directors who signed 
 the agreement after the di-aft had been returned 
 by the Consul. It was sent back in triplicate. 
 Chow Tao Wen belonged to the Shan Fun Shea, 
 or association for supplying lamps and incense, 
 and Lin Yune Chin to the association for sup- j 
 plying incense to the room appropriated to the j 
 gods wordshipped by the literati. These two 
 directors are both dead. All the directors of 
 the nine associations were present when the 
 agreement was signed. Befoi'e foreigners came 
 to China there was never such a thing as 
 the letting of Taouist property to anyone. I am 
 an inhabitant of the city of Foochow and have 
 lived here all my life. I am one of the literati. 
 I produce a map of the temple property, which 
 comes from the records of the temple. The date 
 of the map is about 1838. The property re- 
 mained in the condition there shown until the 
 year 1850. 
 
 By Mr. Hannen — T do not know whether the 
 plan is accurate as to small details. It is ac- 
 cnrate as to the enclosing wall as it appears on 
 the plan. The land outside the wall does not be- 
 long to the Taou Shan Kwan,but is public ground. 
 I myself saw the draft of the ag-reement of 1867 
 written by Chow Tao Wen. The document was no 
 composition of our own, but was written according 
 to the custom of Fuhkien. Some parts of it were 
 copied from documents of a similar kind, viz., 
 agreements of rent, one of which was the lease of 
 
 1850. We struck out the words which appear 
 in the lease of 1850 with reference to the option 
 of the lessees. Another of the documents we 
 copied from was the agreement of 1855. There 
 was no other document from which we copied. 
 
 Mr. Hannen asked the witness if he and his 
 fellow directors received anotice from Mr. Sinclair 
 requesting them to go and point out the exact 
 encroachments alleged against Mr. Wolfe. 
 
 Mr. Hayllar said he admitted such a notice 
 was received and that the plaintiffs, acting under 
 his advice, did not atteni. as it was after the 
 petition was filed and was one of the questions 
 to be decided. 
 
 Cross-examination continued — There is a blind 
 man's association connected with the temple, 
 which was in existence in 1864. I have myself 
 seen the rock I spoke of in my examiuation-in- 
 chief and the inscription on it — " Son of the 
 Ming dynasty studied here." The Wu Shih 
 rock is outside the mission premises. 
 
 Re-examined by Mr. Hayllar — The building 
 which was burnt down last year is outside the 
 enclosing wall of the Taou Shan Kwan as des- 
 cribed in the plan I have produced. 
 
 Wang Kan, one of the gentry of Foochow and 
 an elder of the city, said — I am seventy-three 
 years of age and a director of one of the associa- 
 tions connected with the Taou Shan Kwan and 
 have been so for twenty-six years. I belong to 
 the Hung Shea, or association for supplying 
 lamp oil to the temple. The enclosing- wall in- 
 dicated on the plan produced is correctly shown. 
 The land outside that is public ground and not 
 the property of the temple. The house burnt 
 down last year stood outside the enclosing wall. 
 By Mr. Hannen — The premises continued as 
 shown on the plan up to 1850. 
 
 The Court adjourned until the following day, 
 
 (Fourth Day, 3rd May.) 
 Evidence for the plaintiffs was continued. 
 Chun Yuen Ching said — I am a Buddhist 
 priest. I was formerly a Taouist priest, and was 
 at the Taou Shan Kwan. I joined that temple 
 in 1843, and was at that time the junior of three 
 priests. The head priest's name was Hwang" 
 Chiao Ming, and that of the second Ling Yun^ 
 Mow. I remember when foreigners first came ta 
 the temple in 1844. An Englishman named 
 Morrison at that time came to reside in the 
 temple. (Points out building on the plan). I re- 
 member the year 1850. The senior priest was 
 then Ling Yung Mow. In that year two misi 
 sionaries named Wung Tung (Welton) and Cha 
 Sing (Jackson) came to reside in the temple, 
 Cha Sing lived on the left hand side of the Taou 
 Shan Kwan in a place called the San Pao Tieu 
 and Wung Tung lived at the Wu Ss Tien, a 
 place also on the left hand side. There wari 
 
28 
 
 THE WU SHIH SHAN CASE. 
 
 idols in these two buildings before the arrival of 
 the missionaries, but they were removed when 
 the premises were let. TJae buildings were Chi- 
 nese structures without any upper story. I be- 
 came the head priest of the temple in 1853. Soon 
 after this I let a place on the right hand side of 
 the temple to Hwan Lee(Fearnley). There was 
 a written agreement The document produced 
 is that agreement. It is in my handwritiug. 
 
 A question here arose as to the signature to 
 the document, which was not the same as the 
 characters used in the body. Sir The mas Wade, 
 who was present, explained that most Chinamen, 
 in addition to the characters for their name which 
 appeared in the body oi documents, had a private 
 mark which they used as their signature. Prince 
 Kung used a sentence from Confucius for his 
 signature, and no one would know what it meant 
 without his explanation. 
 
 Examination continued — The building I let 
 was a one storied one. I have visited the place 
 recently. The three houses I have marked on 
 the map as having been let to the missionaries 
 are now entirely different from what they were 
 before. I saw the alterations being made in the 
 San Pao Tien in 1855. They were being made 
 by a missionary named Smith, who acted on his 
 own authority in the matter ; no one gave him 
 permission. The Wu Ss Tien was altered in 
 1856 or 1857 by Mr. Fearnley, who also acted 
 without permission, 'l he building when it was 
 altered did not cover the same ground as it did 
 originally. The Wu Ss Tien originally faced 
 the east. It was made to face the south and some 
 buildingsonthewestwei'ealtered. The house was 
 removed further towards the east up to the temple 
 Wall. (Witness points out on the plan the limits 
 of the land let under the lease of 1855.) The build- 
 ings I let in 1855 are not in the same state as tliey 
 were in when I let them. I don't know when they 
 were altered. I also let a small piece of ground 
 towardsthe north-west, outside theboubdary wall 
 of the temple property. I let that to Mr. Smith in 
 1861 by verbal agreement. The rent was $1 a 
 month. Formerly there was a door in the en- 
 closing wall of the Taou f-^han Kwau and in con- 
 sequence of people going through that door to 
 go up to an elevated place which overlooked the 
 mission premises Mr. Smith said he wanted the 
 piece of land in question to block up the door. 
 The place was called the Fang Xo Tien. I made 
 Bome other agreements in reference to the pro- 
 perty. It is so long ago that I cannot remem- 
 ber what they were, but I will recognise my 
 handwriting if I see them. I left the Taou Shan 
 Kwan in 1867. 
 
 The witness was asked why he left. He ap- 
 peared considerably affected and looking towards 
 Mr. Wolfe suggested that he should be asked the 
 question. 
 
 Evidence continued — I had dealings with Mr" 
 Wolfe in reference to this property. Mr. Wolfe 
 told me in 1865 that he would make a perpetual 
 lease with me so that it would prevent my going 
 for the yearly rent. A fter a great many con- 
 sultations between us the lease w s written. The 
 agreement was for S800 and I wrote the lease 
 with my own hand, but Mr. Wolfe gave me the 
 draft to copy from. The document shown to 
 me is not written by myself, but it bears my 
 signature. I thought I coj)ied it out, it is so 
 long ago, but I see it is not so. I don't know 
 who wrote it, but Mr. Wolfe brought it to me 
 for my signature. After I had signed it Mr. 
 Wolfe took it away and said he would himself 
 see about the aflBsing of the official seal by the 
 mandarins. I did not receive the ?S00 mentioned 
 in the agreement. Mr. Wolfe told me that if he 
 got the document stamped I would receive the 
 money and that if he did not I was not to receive 
 it. In 1867 there was another agreement. Mr. 
 Wolfe came to consult with me about another 
 perpetual lease for ?500. Such an agreement 
 was written. I do not remember who wrote it. 
 
 Mr. Hayllar explained that the original of the 
 agreement in question was sent to the Consulate 
 and could not now be found. He proposed to put 
 into the witness's hands a copy made in the ya- 
 men, which he would afterwards prove. 
 
 Evidence continued — The document produced 
 is an exact copy of the agreement. I never re- 
 ceived a cent of the S500 mentioned in it. I was 
 to receive it when the official seal was affixed to 
 it and it never was affixed. On account of this 
 document I was sent to the yamen and kept in 
 prison for four or five days. Mr. Wolfe bailed 
 me out. In the 7th moon of the same 
 year Mr. Wolfe came to me again and 
 wanted to consult about another perpetual lease, 
 but I said I had been imprisoned for four or five 
 days in consequence of the last one and I dare 
 not make another. Mr. Wolfe then told me that 
 he had a plan to suggest. He said we need not 
 make a perpetual lease, but he would lend me 
 the |50m on a promissory note, the interest on 
 which was to be $11 a month, which was the 
 equivalent of the rent. A promissory note was 
 brought to me by Mr. Wolfe and I signed it. 
 (Document shown to witness). The first part, 
 up to the signature, is the document as I signed 
 it, but the rest has been attached. 
 
 Mr. Hayllar ex^jlained that the appendage was 
 an enclosure from the Consulate which was at- 
 tached to the note in the yamen. 
 
 Evidence continued — I received the §500 men- 
 tioned in the note in three instalments after I 
 had signed the note. The first instalment was 
 about S200. I received the last instalment in 
 the 2ud moon of the 6th year of Tung Chi (1867), 
 some day after the 20th. That instalment was 
 
THE WU SHIH SHAN CASE. 
 
 29 
 
 3130 or §140. Mr. Wolfe ijaid me tbe money 
 and made a memorandum at the end of the docu- 
 ment. The memorandum i.s not on the docu- 
 ment now. After I received the last instal- 
 ment I heard that people outside had wind j 
 of the affair and in my fright I went to I 
 Mr. Wolfe to ask his advice a> to what I should I 
 do. Mr. Wolfe told me I had better go to some I 
 other place and hide fur a month or two. I acted i 
 on Mr. Wolfe's advice and went away at the end | 
 of the 2nd moon or begiuniny of the Srd moon of j 
 the 6th year of Tung Chi. I was afraid to come I 
 back and have remained in concealment up to the ' 
 present. _ > 
 
 Cross-examined by Mr. Hannon — It is true that 
 I executed a perpetual lease for the whole of the 
 property to Mr. Wolfe for §800, but it did not 
 come to anything. T had no right to make such 
 a lease. I had no right to execute the lease for 
 35U0 either. I have' said Mr. Wolfe told me be 
 had a plan. He meant a plan to obtain the same 
 end as a perpetual lease only in a different way. 
 I got the money for myself, not for the services 
 of the temple. Mr. Wolfe suggested this. I 
 had only dealings with Mr. Smith in reference to 
 one piece of ground. I think the characters on 
 the document now shown to me are my signature. 
 No y I see the body of the document I say it is 
 not genuine. Even if I get punished for it I say 
 so. As I read the document, it purports to be a 
 perpetual lease given by me for a small piece of 
 ground outside the temple for 325. The i)iece of 
 ground I let to Mr. Smith for §12 per annum 
 was over ten feet from east to west and about 
 twelve feet from north to south. The rent of 
 tbe four-roomed house I let at the south-west 
 corner was §20 per annum. As to the 8800 lease 
 I am sure Mr. Wolfe took the document away 
 with him and sent it to the yamen. I do not 
 remember whether there were two copies, of 
 which I kept one. First I sold the property for 
 $800, afterwards for §500. That was Mr. Wolfe's 
 idea. Mr. Wolfe might say the price was tens 
 of thousands of dollars, but he ought to have a 
 conscience before heaven. The price was not 
 91,500 but §500, and even that was not success- 
 ful. I only saw the document making the sale 
 for §500 once. The memorandum of the pay- 
 ments on the §500 promissory note was made at 
 the left hand side of the document. Up to 1867 
 the priest had always collected the rent and made 
 the agreements. I and the other priests knew 
 of the alterations made in the buildings. Before 
 Mr. Fearnley came no alterations had been made 
 outside the buildings. I made some objections 
 to the external alterations made by Mr. Fearnley. 
 I never sold or offered to sell the Blind Man's 
 Temple to Mr. Wolfe. 
 
 By Mr. Hayllar— When I spoke to Mr. Fearn- 
 ley about the alterations he said he was only go- 
 
 ing to make a few external alterations to keep 
 the sun off. I said nothing more. I never before 
 saw the document purporting to be a perpetual 
 lease of land to Mr. Smith for §12 nor did I ever 
 hear anything about it before to-day. 
 
 Sin Chee Chen said — I am the head priest at 
 the Taou Shan Kwan and became so in 1870. I 
 remember the mission house which was burnt 
 down in December of that year. The house which 
 has been built in its place occupies a larger site. 
 It has been extended towards the west. I see 
 marked on the plan tbe rock on which was the 
 inscription " Sou of the Ming dynasty studied 
 here." I knew the rock. As Mr. Mahood wished 
 to extend the house when he was rebuilding it 
 this rock was removed. At the time of the fire 
 the rock burst — I mean about an inch in thick- 
 ness broke off. Mr. Mahood removed part of the 
 rock when he was rebuilding and on part of it 
 the wall is built. After the fire some of the 
 gentry were worshipping at the temple and hear- 
 ing tbe noise of stone cutting they went over 
 with me and remonstrated with Mr. Mahood 
 about cutting that rock. Mr. Mahood said he 
 was rebuilding the house but did not intend to 
 encroach at all. There was an enclosing wall on 
 the north-west. In 1876 that wall was removed 
 and another wall put up further out. This wall 
 was removed. The wall now standing is not^^on 
 the sile of the one which was remo ed in 1876 ; 
 it is a little further out. 
 
 Cross-examined by Mr. Hannen — The distance 
 of the existing wall from the line of the original 
 wall varies. I cannot say what the greatest dis- 
 tance is. Before the house was burnt down in 
 1870 there were no buildings extending to the 
 door in the wall. I do not know if there were 
 not outhouses extending almost to the door, 
 (Witness marks on the plan the site occupipd by 
 the house burnt down in 1870, and that occupied 
 by the new building). The old house had one 
 storey above the ground floor. 
 
 Mr. Hayllar did not re-examine this witness. 
 
 Chow Chang Kung, one of the plaintiffs, was 
 called to prove his position as a director of one 
 of the associations connected with the temple. 
 
 By Mr. Hannen— I have known the premises 
 for about fifteen years. I can't point out the 
 site occupied by the house burnt down in 1870, 
 but I know the hou^e was a smaller one than the 
 present one. Lin King Ching and Sat Keck 
 Min are directors in the same way as I am. 
 The four plaintiffs mentioned in the petition 
 were ai^pointed by all the directors to represent 
 their interests. 
 
 This brought the evidence for the plaintiffs 
 to a close with the exception of the proof o f 
 documents to be prod'iced, and the court at its 
 rising adjourned until Monday, the 5th May. 
 
30 
 
 THE WU SHIH SHAN CASE. 
 
 (Fifth Day, May 5th.) 
 
 Mr. Hayllar now tendered in evidence the 
 documents which had been referi-ed to in the 
 plaintiffs' case. 
 
 Ho A.loy was called to prove the translations. 
 He said he was formerly chief interpreter in the 
 Police Court at Hongkong and resigned in 1866. 
 Fe gave formal evidence as to the accuracy of 
 the translations produced. 
 
 The agreements of rent of 1850 and 1855 were 
 admitted. 
 
 Two despatches of Mr. Consul Hewlitt to the 
 Prefect, and the Prefect's reply thereto, in re- 
 ference to the building of a wall outside the 
 temple grounds, were objected to by Mr. Han- 
 nen, on the ground that the defendant was not 
 bound by the documents, and that they could not 
 be evidence against him. After discussion Mr. 
 Hayllar withdrew the documents, Mr. Hannen 
 admitting the fact that permission to build the 
 wall referred to was applied for and granted. 
 
 The perpetual lease for $800, made by the 
 Taouist priest and afterwards cancelled, was ob- 
 jected to by Mr. Hannen on the ground that 
 there was no evidence where it came from or 
 whose it now was. All they knew was that a 
 certain document was laid before the priest, who 
 said it was a document he had seen before ; he 
 said Mr. Wolfe brought it to him and took it 
 away again, and it was not shown how it got into 
 other hands. 
 
 Mr. Hayllar argued that the document was 
 admissible on the evidence of the priest, who said 
 it was the document he signed. If the defen- 
 dants said it was forgery they could call proof 
 as to that, and it would be a matter of evidence. 
 
 Hi.s Lordship ruled that the document was 
 admissible, it being open to Mr. Hannen to con- 
 tradict it if he was able to do so. 
 
 With reference to the perpetual lease for .$500 
 made by the priest and afterwards cancelled, Mr. 
 Hannen objected to the document produced 
 being received in evidence on the ground that it 
 was only a copy and that nothing had been proved 
 as to the loss of the original document entitling 
 his friend to put in a copy. 
 
 Mr. Hayllar said he had the clearest proof that 
 the original was sent to the Consul, and he would 
 call evidence to prove that it was not in the con- 
 sulate now and that in the ordinary course it 
 "would most probably have been returned to Mr. 
 Wolfe. 
 
 Mr. C. A. Sinclair, H.B.M. Consul at Foochow, 
 gave evidence to the effect stated by the learned 
 eouasel. 
 
 Mr. Hayllar asked Mr. Hannen if he said the 
 copy was a forgery. 
 
 Mr. Ifannen said he did not, but there was a 
 jflistake in one of the amounts put down. 
 
 Mr. Hayllar wished to call his learned friend's 
 attention to the dispatches on the subject. In 
 Mr. Consul Carroll's dispatches it was referred 
 to over and over again as a §500 lease. 
 
 Mr. Hannen contended that notice ought to 
 have been given to the defendant to produce the 
 original. 
 
 Mr. Hayllar said he was under the impression 
 the document was in the Consulate, and it was 
 not until Saturday he found it was not. He 
 would, however, ask Mr. Wolfe if he had the 
 original. 
 
 Mr. Wolfe replied that he had not. 
 
 The document was then admitted in evidence. 
 
 The promissory note for iJoOO given by the 
 priest was admitted, and the agreement of rent 
 of 1867. 
 
 A dispatch from Mr. Consul Carroll to the 
 Prefect was tendered in evidence by Mr. HayUar. 
 
 Mr. Hannen objected to the reception of the 
 document on the ground that the defendant was 
 not a party to it and that it therefore i j no way 
 bound him. 
 
 Mr. Hayllar said the document showed that 
 the whole matter had been stirred up and that 
 the Consul gave an opinion on it, clearly acting 
 in an official character. He was not acting merely 
 in a quasi official character as the Consul some- 
 times did, and as Mr. Hewlitt did in reference to 
 the wall. Mr. Carroll said—- After careful con- 
 sideration of this matter, I see no reason why the 
 premises occupied by Mr. Wolfe should not be 
 still rented at a yearly tenancy, though their 
 being rented for a perpetual term is inconsistent 
 with reason." 
 
 His Lordship asked if Mr. Wolfe was to be 
 bound by all documents written by the Consul. 
 
 Mr. Hayllar — By no means, but he is bound 
 by this. 
 
 His Lordship — How do you show the privity ? 
 
 Mr. Hayllar said that was immaterial. The 
 Consul was acting under the powers conferred 
 upon him by treaty to act as a court of concilia- 
 tion. He was acting in an official capacity, and 
 this despatch was an official act in reference to 
 this case which subsequently had a most impor- 
 tant bearing upon it. He gave a decision that 
 after all that had been done, after the perpetual 
 lease had been refused, they should go on at a 
 yearly rental. The Chinese acted on Mr. Car- 
 roll's suggestion ; the official interference which 
 came at that time they yielded to. 
 
 The Judge asked if Mr. Hayllar contended 
 the court was to be bound by what Mr. Carroll 
 had done. 
 
 Mr. Hayllar said he did not contend the cour ^ 
 was bound by it, but the plaintiffs considered 
 they were. 
 
THE WU SHIH SHAN CASE. 
 
 31 
 
 Mr. Hannen — And we are bound by this letter 
 written behind our backs r* 
 
 Mr, Hayllar — He was your protector, not ours. 
 He was to do the best he could for you, not for 
 US; and, havingtaken into consideraliou the whole 
 case he makes a suggestion. 
 
 His Lordship — Dkl the defendants act upon 
 that suggestion ? 
 
 Mr. Hayllar — Yes. In po nt of fact we went 
 on upon the old lease until December, 1867. Offi- 
 cial acts in cases of this kind wei-e not to be 
 lightly set aside, because they entered into the 
 pith and marrow of the whole thing. "VVe say 
 this is the proper way of communicating with 
 us. Where the impropriety came in was when 
 they treated with our priest. This we regard as 
 a completely official act. It is the duty of the 
 Consul to interfere in all these cases. 
 
 His Lordship — And to bind the parties ? 
 
 Mr, Hayllar — Yes, when the act is accepted- 
 If Mr. Wolfe had not remained, the Consul's act 
 would not have bound him. Mr. Wolfe set the 
 thing in motion. He got the deed from the 
 priest, he sent it then to the Consul. He is the 
 person who is acting, not we. The Consul sends 
 it to the authorities, all on behalf of his interest. 
 The authorities send it back and then the 
 consul returns it to Mr. Wolfe and decides 
 " There is no reason why the premises occu- 
 pied by Mr. Wolfe should not be still rented 
 at a yearly tenancy, though their being rented 
 for a perpetual term is inconsistent with reason." 
 That was a judicial act with reference to the 
 lease of 1866 and the Consul's i-esolution upon it. 
 If it is anything, it is a judicial act as clearly 
 as a judicial act can be, that is to say, official. 
 The learned counsel then referred to the 17th 
 section of the Treaty of Tientsin, providing that 
 the Consul shall hear and settle in a friendly 
 manner complaints against Chinese by British 
 subjects and equally shall hear and endeavour 
 to settle complaints by Chinese against I'ritish 
 subjects. Here the Cninese had very great rea- 
 son to complain of a British subject, and it was 
 clearly under the treaty that Mr. Carroll had 
 been acting. 
 
 His Lordship — This is negotiating a lease. He 
 tried to get a good thing and did not succeed. 
 
 Mr. Hayllar — No; but how did he not succeed? 
 by our making complaint against a British sub- 
 ject. As soon as this lease was brought before 
 us we made very considerable complaint, and Mr. 
 Carroll then acted under article 17 of the Treaty. 
 Ninety-nine hundredths of the business between 
 Chinese and foreigners is managed in that way. 
 Fortunately it generally stops short of litigation, 
 and it is the business of the Consul to make it 
 stop short if he can. In this case he did. 
 
 His Loi'dship — You want to show that, having 
 regard to that letter, you cannot have intended 
 to confer anything more than an annual lease ? 
 
 Mr. Hayllar — Exactly. The question was then 
 stirred up and we did what we were asked to do. 
 
 His Lordship said be could not admit the do- 
 cument. He thought the defendant could not 
 be held to be bound in any way by this docu- 
 ment. It was a document written by Mr. Car- 
 roll to the Prefect, and was not brought to the 
 cognisance of the defendant. 
 
 Mr. Hayllar then tendered three other docu- 
 ments — a dispatch from Mr. Consul Sinclair to 
 the Board of Trade, one from the Board of Trade 
 to Mr. Sinclair, and another from Mr. Sinclair 
 to the Board of Trade — which he contended were 
 admissible as being the negotiations which led 
 to the lease of 1867. The learned counsel read 
 the dispatches, which were as follow; — 
 
 Sinclair, H.B.M. Consul for Foocliow, to Chang- Taotai 
 and others, the Committee of the Board of Foreign 
 Trade. 
 
 Sirs, — In your despatch which reached me on the 
 '20th day of the present month, a joint petition of Cliao 
 Tao Wen and others, directors of the Tao Shan Kwan 
 temple, is quoted which represents as follows : — 
 
 ' ' That the premises in the Tao Shan Kwan temple 
 were let to the foreigners at an annual rent of $172, 
 payable quarterly, which rent used to be handed over 
 to the Taouist priest at the temple named Chun Yuen 
 Ching, and his student Sit Min Yung, to defray the 
 expenses of the services therein ; that since Chnn 
 Yuen Ching absconded in the third month of the pre- 
 sent year the petitioners have employed another 
 Taouist priest named Tsai Min Ho to take charge of 
 the services above-mentioned, and. upon the Haukwan 
 District Magistrate submitting their petition to his 
 superior oiHcers, an official dispatch was forwarded 
 (to the Consul) requesting that the missionary Wolfe 
 should pay to Tsai Min Ho the rent for the summer 
 quarter and all rents thereafter becoming due, that 
 the same might be appropriated for defraying the ex- 
 penses of the services in the temple ; that the 
 petitioners have learnt with extreme surprise that the 
 missionary Wolfe has made a reply to the effect that 
 the rent for the summer quarter had already been 
 collected by Chun Yuen Ching and Sit Min Yung, and 
 also, on the 4th day of the TtH moon in the preceding 
 year borrowed of him .§500, agreeing that the interest 
 accruing therefrom might be set off against the rent ; 
 that the petitioners woiild call their Excellencies' 
 attention to the fact of Chun Yuen Ching and Sit Min 
 Yung having but recently in the 5th month last year 
 improperly and surreptitiously sold to the missionary 
 Wolfe worshipping rooms and land inside and outside 
 the Tao Shan Kwan temple respectively for building 
 piarposes. whom they (the petitioners) had seized and 
 brought for examination before the late Haukwan 
 District Magistrate. To him they (Chun Yuen Ching 
 and Sit Min Yung) confessed their guilt and were 
 imprisoned ; that subsequently the Consul in his die- 
 patch considering that as the property at the Tao 
 Shan Kwan temple could not be leased for a perpetual 
 term, owing to the temple having been built by the 
 gentry and people, gave up the lease. Accordingly 
 for the original premises occupied by him (Wolfe) he 
 
32 
 
 THE WU SHIH SHAN CASE. 
 
 I'Ibas centmned to pay annual rent as of old, and Ting, 
 
 "t^tte lute Prefect, having directed the District Magis- 
 '•trate to take a lenient view of the case, the priest 
 Chun Yuen Ching and his student were released on 
 bail, and consequently a proclamation prohibiting 
 surreptitious sale (of the property) was issued. That 
 it would be impossible for one to believe that the 
 missionary Wolfe would have agreed to give the priest 
 "that loan so shortly after the disposal of the case 
 above-mentioned, much less would one believe it as 
 the note of money loan does not bear the seal of the 
 Tepao nor the signature of a guarantor. It is quite 
 ■ evident that Wolfe, taking advantage of the absence 
 of the priest and none to come forward to contradict 
 has himseK made the note with a view to evade the 
 payments of rent. That supposing the loan was a fact, 
 it would be no more than a matter of private dealing 
 between tlie two parties. Separate proceedings ought 
 therefore to be taken for recovery of the money, and 
 lihe rent by no means can be set off against the in- 
 terest, which, if allowed, would interfere seriously 
 with the services in the temple. That the petitioners 
 sherefore pray that a communication be sent with a 
 irequest that the missionary Wolfe should immediately 
 pay the rent for the summer quarter of the present 
 year and all the rents hereafter due for each quarter 
 bo them (Chao Tao Wen and others of the gentry) that 
 ike same may be transmitted to the newly aj)pointed 
 priest for defraying the expenses of the services in the 
 
 . temple, and that proceedings for satisfying Wolfe's 
 
 I. olaim should be treated separately in order that the 
 
 i-:£iefit may not be appropriated, &c." 
 
 ^With reference to the case in question you state 
 ohat the Haukwan District Magistrate has made a 
 i'-ei:«3rt of the same which has been communicated to 
 me through the Board of Trade and to which I have 
 made a reply. You further state that while you have 
 
 • given instructions to the Magistrate of Fu Ching to 
 secretly arrest the priest for investigation and de- 
 •clKied an answer to the petition of the Directors, you 
 "Would also request me to immediately order that the 
 missionary Wolfe should make quarterly payments of 
 the rent commencing from the summer quarter of the 
 present year, and to answer yours on the same ; and 
 yon further state that as to the case of money loan 
 owed by Chun Yuen Ching it should stand over till 
 Chun Yuen Ching shall have been arrested and 
 brought to the city by the Fu Ching Magistrate, in 
 order that no complication may arise and friendly 
 relations may be maintained, etc., etc. The above I 
 liave duly noted, and I beg to state that on receipt of 
 .your former dispatch I had on the 3rd day of last 
 month looked up all the leases of past years and found 
 'that the total amount of rent per annum is in reaUty 
 $132, and, having communicated the same in my last 
 Teply to youi-s, I also pointed out that very likely the 
 T)irectors through a mistake add to their reckoning 
 ihe amount of rent which a British merchant who 
 lias returned to his native country, used to pay, 
 ■which would exactly make up the sum of $172. Now 
 the missionary John Wolfe has, in pursuance of my 
 torder payed .^33, being rent due for the summer quarter 
 4Bommcncing on the 1st April and ending on the 3uth 
 of .Tune this year, corresponding to the Chinese 27th 
 of the 3rd month to the 29th of the 5th month. The 
 same amount I herewith send you with this reply, 
 Taegging tJiat you will instruct Chao Tao Wen, the 
 Director, to immediately hand it over to the newly 
 appointed priest for the purpose of defraying the ex- 
 penses of the services in the temple. The priest may 
 personally call on the missionary Wolfe and collect 
 
 -.from him rent due for the autumn quarter commencing 
 
 on the 30th day of the 5th Chinese moon and ending on 
 the 3rd day of the 9th moon , corresponding to let July to 
 30th September, and from henceforth the said mission- 
 ary shall pay rent according to the English calendar 
 without giving the trouble of writing correspondence 
 about the same. With regard to the leases which I 
 forwarded to you for examination on the 3rd of last 
 month, I beg that you will first return them to me. 
 As to the note of the loan of Chun Yuen Chiag and 
 the order, I hope you will give strict orders to the 
 runners of the Prefect's Yamen to co-operate with 
 those of the Fu Ching Magistrate that 1 aey may in 
 earnest prosecute the search and apprehei, sion of the 
 absconding priest, Chun Yuen Ching, and his student, 
 etc., etc. 
 
 [L.S.] CHAS. A. SINCLAIE. 
 Tung Chi, 6th year, 6th moon, 25th day. 
 
 Chang Taotai and others. Committee of the Board of 
 Foreign Trade, to Sinclair, the British Consul for 
 Foochow. 
 
 Sir, — We have received through yon the sum of 
 $33, handed over to you by Missionary Wolfe and be- 
 ing payment of T;he rent of the Tao Shan Kwan pre- 
 mises due for the summer quarter ending the 29th 
 day of the 5th moon of the present year. You request 
 that Chao Tao Wen, the director of the temple should 
 at once deliver the money to the newly appointed 
 priest that he may apply it to the services therein ; 
 that the priest may hereafter personally call and col- 
 lect the rent from Mr. Wolfe with a view of saving 
 the trouble of writing dispatches ; that the lease or 
 leases which you have the other day sent us be re- 
 turned to you ; and that we should immediately order 
 the search and arrest of the jjriest Chun Yuen Ching, 
 who had fraudulently obtained the loan, etc., etc. 
 
 We have, as requested, instructed Chow Tao Wen 
 and other of the directors who have accordingly given 
 a receipt for and without delay handed over to the 
 priest Tsai Min Ho the money they received from us. 
 They represented that as the priests in charge are 
 generally employed at their pleasure and occasionally 
 dismissed for misconduct, a recurrence of the evil 
 may happen if the priest in charge should be allowed 
 to personally collect the rent. They consequently 
 pray us to communicate to you a request that the 
 quarterly rent paid by Mr. Wolfe be sent to the Board 
 through you and handed over to them for transmis- 
 sion to the priest in charge for defraying the expenses 
 of the services in the temple. They further pray that 
 the old lease or leases be cancelled and that Mr. Wolfe 
 be ordered to hire of them the premises and make in 
 lieu an agreement of rent which is to be sealed by both 
 (the Consul and Magistrate) and to be kept by the 
 respective parties. The rent we mentioned has here- 
 tofore been paid to the priest personally by the said 
 Missionary, but as the private loan case of the priest 
 Chun Yuen Ching has happened, the usual mode of 
 payment should change and cannot be continued. 
 That similar evils may not recur, we therefore grant 
 the prayer above mentioned and communicate the 
 same for your consideration. 
 
 While we have replied to the petition of the direc- 
 tors and filed the receipt given for the summer quar- 
 ter rent, same having been handed over to the priest 
 Tsai Min Ho for defraying the expenses of the ser- 
 vices by the directors, we now beg to send you this 
 reply with a copy of the draft of the agreement of 
 rent, begging that you will order Mr. WoKe to make 
 this day, according to the draft, an agreement of rent 
 in triplicate in lieu of the one or ones formerly made, 
 
THE WU SHIH SHAN CASE. 
 
 33 
 
 that the same may bo brought to us for transmission 
 to the District Mafjistrate, who shall ir.T>ress his seal 
 thereon, and that the same may be returned to you 
 throuijh the Board, with the exception of the one that 
 should be retained at the Magistracy. And with a 
 view of putting a stop to such evils we further beg 
 that you will send regularly quarterly payment of 
 rent that it may through the directors bo handed over 
 to the priest for defraying the expenses of the ser- 
 rices in the temple, etc., etc. 
 
 Tung Chi, 6th year, 7th month, 9th day (August 
 1878.) 
 
 Sinclair, British Consul for Foochow, to Chang Tao- 
 tai ; Wen, the Prefect of Foochow ; Li, the Pre- 
 fect of Jing-Ping-foo, Committee of the Board of 
 Trade. 
 
 Sirs,— The British Missionary John Wolfe having 
 handed over to me an agreement of rent in triplicate 
 for the Tao Shan Kwan premises in exchange (of the 
 old one), with a request that the three documents be 
 sent to the authorities to be stamped with an official 
 seal, in accordance with the established rules, I here- 
 with forward them on to you begging that you wi 11 order 
 the District Magistrate to impress his seal thereon 
 and return them to me after they have been so sealed 
 with the exception of one that is to be left with and 
 kept (at the Magistracy). The old agreement of rent 
 you are hereby also requested to return to me in order 
 that it may be cancelled. 
 
 With regard to the late priests of the temple, Chun 
 Yuen Ching and Sit Min Yung, who have absconded 
 with the S500 which they had borrowed of the said 
 Missionary, it is found, on inquiry that their family 
 house is in Fuh Ching and that they have often been 
 seen frequenting the Foochow city and may easily be 
 apprehended. You are therefore earnestly requested 
 to issue strict orders to the runners of the Prefect's 
 Yamen and those of the Fu Ching for their immediate 
 arrest and appearance in court, etc., etc. 
 
 The enclosures are as follow : — 
 
 Th/ee documents, agreement of rent in triplicate 
 made by John Wolfe in exchange of the old ones. 
 
 The draft of the above mentioned agreement of rent 
 originally sent to me. 
 
 Tung Chi, 6th year, 7th month, 18th day (August 
 18G7.) 
 
 After some discussion as to the admissibility 
 of these documents, bis Loixisbip asked Mr. 
 Hayllar if be insisted upon them. 
 
 Mr. Hayllar — Well, my Lord, we would offer 
 official documents in such a case as this rather 
 than in others. They are the evidence of our 
 good faith in the matter. I don't know with 
 what obJ3ct my learned friend keeps them out. 
 but that is neither here nor there. As your 
 Lordship sees, they don't carry the verbal 
 testimony much further, but there they are, the 
 official records of these acts which took place a 
 good many years a<ro. 
 
 llis Lordship — The question is whether you 
 can bring these letters home to Mr. Wolfe. 
 
 Mr. Hayllar — I dare say by and by I shall 
 have the opportunity of examining Mr. Wolfe 
 and seeing how they can be brouglit home to 
 him. At present I tender them as official records 
 to prove our good faith — more for that than 
 
 anything else. Perhaps in another kind of caso 
 I should not have thought it necessary, but in 
 such a case as this, where there is so much in 
 dispute which take; an explosive character it 
 seemed necessary to me that I should tender this 
 evidence. If my learned friend keeps them out 
 that is on his own responsibility. I don't wish 
 to snatch anything, and if your Lordship thinks 
 they are not admissible I should be the last 
 person to pi'ess it, but I consider it my duty to 
 tender them and to argue the point. 
 
 His Lordship — If Mr. Hannen objects I don't 
 think they are fairly admissible; I am speaking 
 now of the first one. 
 
 Mr. Hannen — I do object. 
 
 His Lordship — Then the second one ? 
 
 Mr. Hayllar — I don't think the documents 
 carry the case further than my verbal testimony, 
 but the question would naturally be asked on 
 the other side, why. as these things were con- 
 ducted through official dispatches, are the 
 despatches not here ? I tender them and I don't 
 withdraw them. 
 
 The second of the dispatches was disallowed 
 and the third admitted. 
 
 Mr. Hannen. not boing prepared to cross-ex- 
 amine Mr. Ho Aloy on the accuracy of his trans- 
 lations at this stage, 
 
 Mr. Hayllar said he would reteuder the wit- 
 ness for cross-examination at any time if his 
 friend wished it. There was one question with 
 reEereuce to the non-acceptance of rent as to 
 which he ought to have asked one of the directors. 
 He asked to be allowed to recall him and said 
 that would close his case. 
 
 Mr. Hannen objected to the evidence on the 
 formal ground that the allegation was not made 
 in the jjetilion. 
 
 Mr. Hayllar asked permission to amend the 
 petition on this point, which was granted, and 
 a paragraph was accordingly added making the 
 necessary alleg-ation. 
 
 Loo King Fah, recalled, proved that rent had 
 been refused since June last, $132 in all. 
 
 By Mr. Hannen — The rent was r ceived 
 thro gh the Board of Trade, and when it was 
 refused notice was gi' en to the Board. 
 
 Mr. Sinclair, I'ecalled, said he had been in- 
 formed that the rent had been refused. 
 
 By Mr. Hannen — He was not quite certain 
 whether he communicated the fact of the refusal 
 of the rent to Mr. Wolfe. 
 
 This closed the case for the plaintiffs. 
 
 Mr. Hannen asked that the petition be dis- 
 missed on the ground that no case had been 
 made out. He supported his application on 
 purely technical grounds, the principal point 
 taken being that no declaration of rights could 
 be made except upon application for spejific 
 relief. 
 
34 
 
 THE WU SHIH SHAN CASE. 
 
 After argument this point was overruled. 
 
 As the court was rising, his i ordship recom- 
 mended a compromise, and the learned counsel 
 were called into the Judge's private room. The 
 result of the conference had not transpired when 
 ©ur report left. 
 
 (Sixth Day, May 7th.) 
 The negotiations for a settlement of the case 
 Laving fallen through, Mr. Haunen now opened 
 the case for the defence. 
 
 The settlement proposed by the Chief Justice 
 was that the missionaries should remove their 
 schools and college from Wu Shih Shan into 
 premises to be provided by the Chinese Govern- 
 ment within the settlement, and should be al- 
 lowed to reside with their families in the build- 
 ings now occupied by them at the Taou Shan 
 Kwan. The following letters passed between 
 Counsel on the subject : — 
 
 FoocHOW, May 6th, 1879. 
 
 Mt Dear Hannen,— I understood from you this 
 morning that you were emijowei-ed to treat with us in 
 reference to the Judge's proposed compromise of the 
 Wu Shih Shan case only on the basis of being granted 
 a lease for a long term of years of the Mission pre- 
 mises. After a long and patient consideration of the 
 subject with me, my clients must decline to treat with 
 yours on that basis, as they find the condition one 
 which it is quite impossible to fulfil. The Chief- Jus- 
 tice's scheme of concihation must betherefore regarded 
 as having fallen through. 
 
 I have, however, laid before the Authorities the 
 alternative plan proposed by the Minister, and after 
 consulting the map of the city with Sir Thomas Wade 
 and myself they have, in deference to my wishes and 
 in order to promote peace, decided to offer you once 
 more the only one of the five or six sites in the city 
 previously offered to you which they regard as entirely 
 unobjectionable for the erection of both schools and 
 residence, viz., the one at the South-west corner of 
 the city. Sir Thomas Wade expressed to-day his 
 opinion that he would not hesitate to put a consulate 
 there, and the Taotais assure me that it is regarded 
 by the Chinese as being as healthy as any other part 
 of the city. I have personally used much exertion to 
 obtain this offer for your clients, and I trust they will 
 take it into their earnest consideration. 
 
 Faibng its acceptance there is no alternative before 
 us but to proceed with the trial. — I am, my dear Han- 
 nen, very truly yours, 
 
 Thomas C. Hatllar. 
 
 May 6th, 1879. 
 Mt Dear Hatllar,— I have laid before my clients 
 your letter to mo of this 1 ite and I enclose their reply. 
 I have communicated to the Chief-Justice the result 
 of our negotiations and have asked him not to sit 
 until 2 p.m. to-morrow. — Yours truly, 
 
 Nicholas J. Hannen. 
 T. C. Hayllar, Esq.,Q.C. 
 
 (Enclosure.) 
 
 May 6th, 1879. 
 
 Dear Mr. Hannen,— With reference to the pro- 
 
 posal contained in Mr. Hayllar's letter to you to-day. 
 
 offering us a piece of property to the south-west of 
 
 the city, a great part of which is at present covered 
 
 with water, as a compromise and settlement of the 
 questions now at issue between us, after careful 
 consideration we are compelled, on account of the un- 
 suitableness of the situation, and the opinion of Dr. 
 Stewart as to its unhealthiness, to decline accepting 
 it. — Tours very truly, 
 
 John E. Wolfe. 
 
 Mr. Hannen said — May it please your Lordship 
 it now becomes my duty to open the case for the 
 defence, and I shall endeavour to shorten as 
 much as I can the few remarks I have to make 
 at this stage of the case so that we may get on 
 to the main thing, the evidence, and hereafter, 
 when the oppox'tunity occurs for my recuri-ing 
 to any of the subjects if it is necessary, I can 
 lengthen and emphasise the points I now lay 
 before your Lordship as shortly as I can. Having 
 attended carefully to my learned friend's opening, 
 the case appears to be one which divi ies itself . 
 broadly into four points. The first, and one pro- 
 minent point which forces itself on my mind, and 
 which I am afraid is also in my client's mind, 
 is the priest's story. It is really a very unfor- 
 tunate thing that that story, which has really 
 nothing to do with the case, has been imported 
 into it — a story which depends upon the testi- 
 mony of one man, which in its insinuations is^ 
 very unpleasant, and which has no legal bearing 
 on this case. However there it is. There is 
 the priest's story and it stands like a thorn in 
 our way. The next chapter in the matter is the 
 alleged encroachments, another very unpleasant 
 thorn, but one which I feel quite confident will, 
 before this case has gone half through the rest 
 of its length, have fallen to the ground. After 
 that comes the question of the parcels, and after 
 that comes the legal effect of the documents 
 which have been laid before the court. I am 
 bound to come to the pi'iest's story first, and 
 I ask your Lordship to consider for a mo- 
 ment the excessive improbability of the whole 
 story. Wha' does it amou'it to ? It amounts 
 to a statement that in the 4th year of Tung 
 Chi my client attempted to seduce this innocent 
 old gentleman into making a sale of tbe property 
 for a sum of .^800; that, having failed in that, he 
 then, about a year afterwards, makes another at- 
 tempt, but this time, knowing that the directors 
 have refused to sanctionthe transaction, he thinks 
 it will be made a great deal more easy by his 
 offering .$500 instead of .S800. Then he winds up 
 with a deep laid scheme which shows he must have 
 known the whole of the law referring to property 
 in China as my learned friend hardly knows it 
 after his long study of this case and the assistance 
 he has been able to obtain from the authorities 
 and the various people connected with it. Now 
 I think that, on the very face of it, shows the 
 story to be so improbable as hardly to need any 
 refutation. On the other hand, what is Mr. 
 Wolfe's version of the story ? His account has 
 
THE WU SHIH SHAN CASE. 
 
 35 
 
 beon set out in his answer, but T may briefly put 
 it before your Lordsliip. It is simply this— 
 The priest goes first with a proposition, no doubt 
 suggested by my client, who is anxious to get 
 the Blind Man's Temple. It is exceedingly 
 probable, and in fact we have discovered in 
 turning over all sorts of records since this case 
 bega;:, matter which leads us to believe that there 
 ■was an actual offer to purchase that temple about 
 the time which is indicated in the petition by 
 the $800 lease. Therefore my client's case 
 is that at that time an attempt was made to 
 purchase the temple, that the pi-iest came and 
 said he had obtained the permission of the pro- 
 per authorities to sell it, and that there that 
 matter ended. It faded away. The proper 
 authorities afterwards would not give their con- 
 sent, or possibly, it is so long ago it is not easy 
 to remember, but it is possible some one came 
 afterwards iind said they could not ; but so far 
 as our case is concerned, the fact of thei*e having 
 been a deed for the sale of the temple for $800 is 
 outside our case ; we know nothing about it. Then 
 some considerable time after that — in the petition 
 it is laid at a distance of about five months — the 
 priest again goes and says " I have now obtained 
 the permission of the people connected with the 
 temple to sell the whole of the property which you 
 occupy."' Upon that my client set to work in 
 the ordinary way, a deed was drawn up, it was 
 shown to the priest, and it was sent to the Consul 
 in the ordinary manner. There was nothing in 
 the least underhand about it. The deeds were 
 sent by the Consul to the authorities in a formal 
 dispatch, and after some time they came back to 
 the Consul with the information that the priest 
 had no authority to sell, and there is an end of 
 the matter. Then my client naturally g'oes to 
 the priest and asks " How about that S500 paid 
 on account?" He says '• I cannot pay it now ; 
 I will give you a promissory note for it, and the 
 interest " — I suppose he said in his desire to calm 
 my client in his demand for the return of money 
 paid on account — " I will make the interest 
 on the amount equivalent to the rent, and 
 you shall not be bothered with any payment of 
 rent as long as I am hei-e." The next thing is 
 that the priest absconds, and the way this docu- 
 ment gets into the hands of the authorities is by 
 my client sending it to the Consul to forward to 
 the authorities in order to get his money back. 
 Mr. Sinclair sends the I'eply to my client. 
 My client writes back, " Ought I not to be en- 
 titled to set off what is due from the priest to me 
 against the rent ?" and Mr. Sinclair writes back 
 to say, " No. you ought not," and then the rent 
 is paid. There was no question of any order ; it 
 was simply an inquiry on the one part and an 
 answer on the other. That is the whole ex- 
 planation of the transaction which has been 
 
 made so much of, which has been put for- 
 ward in such an exceedingly unpleasant man- 
 ner. Now, with regard to the statements 
 the priest makes, the inferences which are to be 
 drawn from them and which are really on the 
 surface, although my learned friend, with his 
 well known tact and ability, has avoided actually 
 saying from his own mouth what they are — but 
 the insinuations which are contained in those 
 statements are utterly false, and not only false, 
 but absurd. To imagine my client could ai 
 that time have known so much of the law of 
 China as to believe that by in some way con- 
 triving not to pay the rent he would be able to 
 lay some claim to the premises is more than 
 any reasonable person could do. The danger 
 of the priest's story lies in the mixture of truth 
 and falsehood it contains. There was some kind 
 of negotiation first, there was a second nego- 
 tiation which had to do with $500, and there 
 was a promissory note. That has been so 
 contrived by the priest, whose plain interest 
 it is to make out he was an innocent party, 
 led off by my client to do what was wrong, 
 whose plain interest it is to say everything that 
 agrees with the plaintiffs' case — the plaintiffs 
 were the parties who arrested him once, the 
 plaintiffs are the people who will have a right 
 to complain of his conduct if they like, for he 
 has been in hiding, and therefore his most vital 
 interest lies in sr.ying everything he can in 
 favour of the plaintiffs' case and in opposition to 
 mine. Now, seeing what small corroboration 
 there is to the story, I don't think your Lord- 
 ship will give much consideration to it, but I 
 am bound, uutil I know your Lordship feels 
 no difficulty on the point, to put forward 
 every one of the considerations which it is neces- 
 sary to use in order to lay the foundation of my 
 argument that the whole thing should be entirely 
 swept away as beside the question, and if not be- 
 side the question, entirely false. Now, with 
 regard to that copy of the $800 deed, it is not 
 accounted for in any way whatever. 
 
 Mr. Hayllar — It is the original. 
 
 Mr. Hannen — Well, the original, if you like 
 to call it so. The way in which it is accounted 
 for, so far as it goes, is this : the priest says Mr. 
 Wolfe brought this document to him. He did 
 not tell us how he recognised it or anything. 
 He says he signed it and gave it back to Mr. 
 Wolfe. Now let us imagine that to be true; what 
 would Mr. Wolfe do with it ? He would take it 
 to the English Consul, the English Consul 
 would write a dispatch to the authorities and 
 send it in ; the authorities would refuse to have 
 anything to do with it, and it would be sent 
 back. There would be a dispatch from the En- 
 glish Consul and a dispatch from the Chinese 
 authorities. They have not produced the dis- 
 
36 
 
 THE WU SHIH SHAN CASE. 
 
 patch from the authorities, nor the dispatch from 
 the Consul, and I have had the records of the 
 Consulate searched and found nothing about it. 
 
 Mr. Hayllar — My learned friend has kept out 
 these documents. 
 
 Mr Hannen— No, not this. A formal dispatch 
 of this kind sending' the deeds in I have ex- 
 pressly admitted. It is not to be found, that is 
 the real truth. Well, that is so far as the .SSOO 
 deed is concerned. Now, then, we come to the 
 $500 deed. What do they produce as the evidence 
 of what the S50O deed contained? They pro- 
 duce a copy, which is only authenticated by the 
 priest, who says on looking at it — and if your 
 Lordship recollects he did not take very 
 long to look at it — he sayt;, " This is exactly 
 like the one I signed in character; the cha- 
 racters are all alike," and when I asked bim 
 how often he had seen it he said once. Now I 
 ask your Lordship whether it is possible to be- 
 lieve that ? 
 
 Mr. Hayllar — We have produced the dispatch 
 about this. 
 
 Mr. Hannen — I have not said you did not pro- 
 duce the dispatch about this. 
 
 Mr. Hayllar — But you kept it out. 
 
 Mr. Hannen — And I am giving you the reason 
 why I kept it out. With regard to the S800 
 deed we know nothing. The ::f500 deed we do 
 know something about. I don't know whether 
 it is a correct copy. I believe it is not a correct 
 copy. With regard to that it is a mere question 
 of memory, but the only person who in any way 
 testifies to the accuracy of that deed is the priest, 
 and the priest says he only saw it once and he 
 saj's off-hand it is a correct copy, and that I 
 maintain is no proof of its being a correct copy 
 in any way whatever. Well, with regard to the 
 $500 deed, we say we have not got in reality a 
 proper attestation of its truth, and there are 
 certain points about it which I may refer to 
 hereafter which show that in reality the deed is 
 not a correct copy of the deed which we sent in. 
 I am bound to say, however, that with regard to 
 the main difference, the difference in the amount. 
 $500 or $ ,500, which my client thinks was the 
 consideration money, but he cannot be certain — 
 when you have to deal with a person of the 
 character of the priest, who came here to acknow- 
 ledge that he had on one, on two. on three several 
 occasions, endeavoured to defraud the directors 
 of the temple of money — when you have such a 
 gentleman as that to deal with, and Mr. AVolfe 
 not being at that time able to read Chinese 
 characters, it is not impossible there may be 
 some diffei-ence introduced, some further fi-aud 
 on the part of the priest, which we are not able 
 to explain. However, I don't think it is very 
 material. What is certain is that we only 
 have his testimony as to the accuracy of the 
 
 deed and that my client denies the accuracy 
 of it. Now my learned friend has produced 
 this document, this copy, from a set of records 
 which come from the Chinese authorities. No 
 doubt they come from the proper authorities, 
 who have their custody, but I would point out 
 to your Lordship that they are very different 
 from the ordinary recoi'ds which are kept of 
 transactions of this kind. For instance, in the 
 English Consulate, the documents relating to 
 various transactions follow one another in 
 chronological order, whereas the whole of 
 these deeds are collected together with respect 
 to this case. Now, I don't for one moment in- 
 sinuate against the high Chinese authorities any 
 endeavour to introduce into the case anything 
 that cannot be brought there, but I say that 
 when a case is being prepared for my learned 
 friend there must of necessity be a number of 
 subordinates employed in the work. When 
 this is so we often find the over zeal of such 
 people carrying them away. How often have we 
 heard it remarked in England that when a police- 
 man or detective is .set to find out a certain thing 
 he invariably finds it out. So in this case, when 
 a series of documents have to be arranged to 
 complete a case a subordinate oflacer may find, 
 either from his own imagination or i-ecollection, 
 a copy which is only an emanation from his own 
 brain. 
 
 Mr. Hayllar — That is to say, a forg-ry. 
 
 Mr. Hannen — You may use what hard terms 
 you like about your clients ; I try to avoid them. 
 I say such a thing is possible, and that when you 
 don't in the least account for how the original of 
 the §800 deed came into your possession — I say 
 when my learned friend does not account for that 
 and does not account for the copy of the 
 .^500 deed, I am entitled to make remarks 
 upon that fact, and the least my learned friend 
 can do is to sit by and hear them. Now, of 
 course, my learned friend will make, as he in- 
 deed promises to make, a strong* remark on the 
 fact that I have refused to admit the documents, 
 which are copies, I believe, of things which 
 are in the English Consulate. Now, with regard 
 to that it is rather on the principle which I may 
 express as omne ignotum pro di iholo. I don't 
 know what they have in them, and I am not 
 going to have introduced into the case, if I can 
 help it, things I don't know anything about, 
 which I have not had time to consider, and which 
 my learned friend knows will make in his favour. 
 After listening to his opening and seeing the 
 kind of argument he makes out of a few words 
 in one deed, I don't wish to give him the 
 opportunity to go into another two hours' 
 dissertation as to what is the meaning of 
 a few words in another document. Under 
 these circumstances I think I am excused if I 
 
THE WU SHIH SHAN CASE. 
 
 37 
 
 exclude from the case documents which are 
 not faii'ly within it, and I think your Lordship 
 will uphold me in the argument that the Chinese, 
 having- brought this case into an English court 
 of law, should be bound by the strict rules of 
 evidence. That is all I wish to apply to them, 
 and that is all your Lordship has applied, and as 
 long" as that is so I don't think my learned friend 
 can have any complaint. But beyond that, there 
 is a strong practical objection to iinportini:;' i'.to 
 the case documents of this kind. Things ustd to 
 be and possibly are— I don't say here now, bvil a: 
 any rate in days gone by things were conducted 
 in a lax, loose manner. Now, it is of importance 
 that this laxity should not be brought to bear to 
 influence one party or the other in litigation. 
 What is the effect of this cross-communication 
 between three or four parties in reference to one 
 transaction ? On the one side are the clients of 
 my learned friend and on the other are mine. 
 The authorities put in their own way what they 
 have to communicate to his clients and the 
 Consul puts in his own way what he has to com- 
 municate to my client, and very often they come 
 to a misunderstanding, and i say if you bring 
 into the case these documents which are in- 
 terchanged between the parties you import a 
 further amount of insecurity in all the transac- 
 tions which took place between them. Here ai*e 
 things said which are never communicated to 
 my client, and which would possibly have been 
 binding upon him if my learned friend had suc- 
 ceeded in introducing them. Cinder these cir- 
 cumstances, I think it is only reasonable I should 
 exclude from the considez*ation of the Court these 
 documents which, according to the strict rules of 
 evidence, ai-e not admissible. I don't know in the 
 least what the communications were between the 
 plaintiffs and the Chinese authorities with regard 
 to the 1867 deed, but there is one thing apparent, 
 namely, that they made an important alteration 
 which was in no way communicated to my client. 
 My learned friend lays great stress on the fact 
 that they struck out the words about the option 
 of the lessees. That was never communicated 
 to my client in any way, and therefore it is im- 
 portant to keep out of the consideration of the 
 court things which may possibly lead the court, 
 or a superior court if the case should go to one, 
 to consider that things had been communi- 
 cated between the parties which never were as a 
 fact communicated to my client. Now, my 
 lord, I pass to the subject of the encroach- 
 ments. I ask your Lordship to look at the 
 new plan and to say upon it what the whole of 
 the encroachments amount to. There is this 
 pencilling in here which represents, as the 
 plaintiffs allege, the site of the old house. With 
 regard to that they have not proved that one 
 inch of the alleged encroachment is within their 
 
 grounds ; in fact I think it will appear that not 
 one inch is within ; it is encroachment outside, 
 and therefore they have no right to complain. 
 But with regard to that, as I have been obliged 
 to go into this as against the whole world, I shall 
 show to your Lordship that that is absolutely 
 and entirely false; that this present house stands 
 upon less ground than the old one. The old one 
 was a bungalow, as everyone in the city knows 
 ex(!ept that unfortunate priest, who came and 
 told us it was a two storey house. It has now 
 been converted into a two storey house and 
 possibly contains more cubic space. Now, with 
 regard to this other encroachment relating 
 to the wall outside, if your Lordship looks 
 at the pencil line the priest has drawn, you 
 will see it is a matter of a few feet. I shall 
 be able to prove that that is a mislake and that 
 the present wall follows the exact line of the old 
 one. But it is true there is a corner here — of 
 course it is a very serious thing to acknowledge 
 — where we may have encroached five or six 
 inches, and that is the whole of the question of 
 this encroachment so far as it concerns us It 
 is a question as to whether a corner should be 
 rouud or square. There is a place where the 
 man who built this last wall brought up one and 
 broiight down the other and they mot at an angle; 
 in the other it was a curve, and the amount of en- 
 croachment I believe is about a square foot. That 
 my clients are bound to admit after going care- 
 fully through it with their witnesses. They 
 come to this corner and they shake their heads, 
 and they say " Yes, six inches has been en- 
 croached upon." 
 
 His Lordship — Do you say that was land be- 
 longing to the temple ? 
 
 Mr. Hannen — -Yes, so far as we know. If my 
 learned friend comes forward and says it does 
 not, all wo can say is — " You let it to us." The 
 evidence I shall offer to your Lordship upon the 
 point — I am now speaking of the mere encroach- 
 ment, I have not come to the point about the 
 p;ircels yot — is that of persons who have seen 
 the wall in the old days and people who have 
 seen it now, and of the ordinary run of people a 
 
 great 
 
 miny can of course, know nothing as to 
 
 how it came into possession of the defendants. 
 I am now speaking of the evidence I shall 
 bring to show the wall has not been put 
 out as the priest says it has. 
 I shall use with regard to 
 is conclusive. T shall be able 
 workmen who did the work, Mr. 
 Mr. Stewart, who superintended the pulling 
 down of the one wall and the putting up of the 
 other, and perfectly independent persons who 
 were in the habit of visiting it. Things which 
 were put against the old wall are there still, the 
 roots of old vines, bits of what is called chunam,^ 
 
 The evidence 
 that I think 
 to produce the 
 Wolfe himself. 
 
38 
 
 THE WU SHIH SHAN CASE. 
 
 which were aarainst the old wall in a square, and 
 which are there still in the very same place. 
 With regard to this very portion which my 
 leai'ned friend lays stress on as an encroachment, 
 that was only lately pulled down. That portion 
 was naturally damaged by rain and so on, and the 
 pulling down of a portion of the wall adjoininir it, 
 but that was never pulled down until the mason 
 himself came and put up the present wall on the 
 very spot where the old one ran. That was 
 put up squarely on the line where the old one 
 stood, for it was onlv a few months after the 
 latter had been pulled flown. — The learned coun- 
 sel produced two photog'raphs of the place, one 
 an old one and the other taken a few days ago, 
 as a confirmation of his statem-^at on this point. 
 He also said it had the additional value that it 
 proved that the old house was a bungalow and 
 that there were out-buildings running out to- 
 wards the north-west. He continued — Now, 
 when I tender my evidence on that point, I have 
 not the remotest doubt what the decision of the 
 <5ourt will be as to the including of more ground 
 than before The present wall does not include 
 a scrap more ground than the old one, or perhaps 
 I ought not to say a scrap m >re, because there 
 are the six inches. 
 
 Mr. Hayllar — We admit there was a wall in 
 1869. 
 
 Mr. Hannen — Within a few inches of the pre- 
 sent one ? 
 
 Mr. Hayllar — Within a short distance — where 
 the priest marked it. 
 
 Mr. Hannen — He has marked a good deal more 
 than six ii ches. 
 
 Mr. Hayllar — Well, there it is ; of course, my 
 learned friend will try to make it worth as little 
 as he can. 
 
 Mr. Hannen — Now, to come to this question of 
 the parcels. With regard to that the state of 
 the case your Lordship will remember was this. 
 Mr. Wolfe came here in the year 1862. Messrs. 
 Welton, Fearnley, and Jackson had all gone. He 
 did not know them personally at all, he did not 
 know from his ov.'u i-nowledge anything they did. 
 When he came here Mr. Smith was the only mis- 
 sionary who lived upon those premises and he 
 was and appeared to be the tenant of a series of 
 buildings and certain land. Now, with regard 
 to that I shall be able to show that the whole of 
 the enclosing wall, as it now stands, was in 
 existence, I believe, then, but certainly be£oi-e 
 18j7, when the present agreement was inade. 
 Mr. Wolfe comes here and he sees Mr. Smith in 
 occupation of certain premises and certain land. 
 He is told, for at that tim^ he had not the mana- 
 gement of afPiirs, that these are held in a certain 
 way; there is a certain agreement made with 
 Fearnley and Jackson and a verbxl agreement 
 as to another piece of ground. — The learned 
 
 counsel read from the deeds the description of 
 the premises let and described on a model in wood 
 which he had had made their several positions. 
 He proceeded — The piece of ground on which 
 the college now stands is the piece we thought 
 was let to Mr. Smith for 312 a year and we used 
 it formerly as a garden. 
 
 Mr. Hayllar — Ah, as a garden ! 
 
 Mr. Hannen — As a fact, although it was used 
 as a garden, if that is the point my learned 
 friend is alluding to, houses were at various times 
 built on it. Before Mr. Smith had it, or before 
 he j)aid the rent for it, certain small buildings 
 were upon it. After he paid the rent for it he 
 put small buildings on it, and after Mr. Wolfe 
 came into occupation and before the agreement 
 of 1867, Mr. Wolfe put small building-s upon it, 
 such as cow-houses. That was the way that up 
 to that time it had been used. Now, of course, 
 it is impossible for me or my clients to say that 
 all the persons who pi'eceded him in the occupa- 
 tion of that place did not extend the domain 
 which was placed under them, because it is 
 simply surmise whether they did or not, but it 
 is at least reasonable to suppose they did not go 
 and inclose land they had no I'ight to. But Mr. 
 Wolfe comes into possession of a whole lot of 
 buildings and land enclosed together, and he 
 comes to the conclusion these are the premises 
 entire which are covered by these deeds 
 and agreements. It is also to be observed 
 that in the year 1^*65, according to the 
 petition, " After an inspection of the locus 
 in quo on the part of the local authorities 
 the prayer of the said petition was g-ranted." 
 The prayer was as to a wall, and this wall is the 
 consequence of it and it touches the wall which 
 we say had been in existence for some years. 
 Mr. Ting, the Prefect, came and inspected the 
 place carefully three or four times. I think he 
 says he sent a wei-yuen, a sub-ordinate officer, 
 in official costume ; they all saw this place and 
 not one « ord of objection was raised as to this 
 wall, which was in existence at that time. 
 
 Mr. Hayllar — He says there was not one. 
 
 Mr. Hannen — He says he does not remember 
 it, which is a very different tiling, and I think, 
 althou h it is years ago, he must have had very 
 poor eyesight if he did not see it, but we shall 
 be able to prove conclusively that the wall was 
 in existence. Also the wei-yuen who came and 
 inspected the place must have seen where that 
 wall was, and no complaint was made. The lease 
 of 1866 is then made with great care, all the 
 persons coming and having a most careful survey 
 of the ground, as they say. Well, if they had a 
 careful survey of the ground at the back it seems 
 almost impossible they should not have seen the 
 whole of the enclosure as it then existed, but not 
 one word of complaint is then made. In 1S67 
 
THE WU SHIH SHAN CASE. 
 
 39 
 
 4hey make a lease in which the parcels are 
 described. — The learned counsel pointed out on 
 the model the olaces which the other side said 
 they let to them, and proceeded — Now, they may 
 possibly have wished to let us a set of things 
 like that, but is it the least likely my client 
 would have taken a lease which was a fresh 
 agreement, a starting afresh, so that thin^rs 
 should be quiet and peaceable, of three bits of 
 land perfectly disunited and from which you 
 could not get from one to another? 
 
 His Lordship — What did you want the lease for ? 
 
 Mr. ITaauen — He wanted oue document to 
 show for land which he was holding- uuder three 
 deeds, and according to their story what they let 
 to him was a very much smaller lot than he was 
 then holding'. There is another point which I 
 wish to advf^rt to in passing*. Here is their old 
 plan. The point I wish to call your Lordship's 
 attention to is that upon their own showing they 
 have a right to let laud outside the walls. The 
 Fang Ko Tien is outside the walls, that small bit 
 the priest marked is outside the walls. If it is a 
 question of right their right has been asserted by 
 themselves and they cannot deny it. They have 
 a right to let land outside the temple. By the 
 agreement of 867 they let that small bit of 
 ground whicli was rented to Mr. Smith for $12 
 a year they say. What I say is that my learned 
 friend's argument, saying they could not let this 
 piece because it did not belong to them, falls to 
 the ground, because they did let to us this piece, 
 which is outside the temi le grounds. That they 
 did do it is what they absolutely prove by their 
 ease. 
 
 Mr. Hayllar — But unfortunately the priest had 
 absconded, and we did not know what it was. 
 
 Mr. Hannen — They let us something, then, 
 without knowing in the least what they were 
 letting, and because it might pos-dbly be some- 
 thing they did not care about. I don't think 
 that story would hold. I think that when the 
 directors went about the thing with the care 
 they did they must have known what they were 
 doing, and when they let a piece of ground 
 formerly let to Mr. Smith they only had to 
 go to anyone about the place and they would 
 have seen it was this piece on which the college 
 stands. My client believed, and believes now, 
 that piece was Smith's bit, it was let to him by 
 the pi iutiffs, it was included in the agreement, 
 and we stand on it. The only other remark 
 upon that part of the case I have to make is that 
 my learned friend did not directly prove by any 
 evidence that they had not a right to let ground 
 outside contiguous to the temple. He never put 
 the direct question to any of the directors 
 whether they had any right to deal with land 
 outside contiguous to the temple. The only 
 evidence on the point is Ting's evidence, which 
 
 is that the whole of the grounds and the whole 
 of the temple belong to the Emperor. What he 
 meant by that is very clear ; the whole of the land 
 in China does in theory belongto the Emperor, but 
 he did not intend to say that other people had no 
 right to deal with it. We come now to the 
 consideration of the legal effect of this agree- 
 ment. As I wish as much as possible to shorten 
 what I have to say as to the case, it would be 
 better perhaps to leave that until I have got my 
 evidence before the court. It has not much to 
 do with the evidence ; it is purely dry legal argu- 
 ment, and will come better in my summing up. 
 What I contend for is that the lease of ISGT was 
 intended to include everything held by the mis- 
 sionaries at tie time of the making of it, that it 
 was intended to give a tenure at least as good as 
 that upon which the land had been held before, 
 and we contend that if it does not do this much, 
 both as to the ground and as to the nature of the 
 tenure, it does not carry out the intentions of 
 the parties. We say that in reality, if the proper 
 construction is put on that lease, it does carry 
 out the intentions of the parties, but if my learned 
 friend's construction is adopted it will not carry 
 out the intention of ihe pa.-ties, and we say if it 
 has been so framed as not to include everything 
 which we held at the time it was made and not 
 to give us as good a tenure as our predecessors 
 had. that has been contrived against us. 
 Mr. Hayllar — Predecessors ? 
 
 His Lordship — What do you mean by prede- 
 cessors ? 
 
 Mr. Hannen (laughing) — If there is any 
 particular meaning attached to the word " pre- 
 decessor " which binds me I deny that is what 
 I mean. 
 
 His Lordship — Predecessor in title you mean. 
 
 Mr. Hannen — But that is not what I was 
 meaning at the moment. My learned friend is 
 so very able in drawing out conclusions from 
 very small facts that I Jon't want to give him 
 the opportunity. What I mean is that there 
 were people before Mr. Wolfe. Now, my Lord, I 
 say that being the case, even supposing my learned 
 friend were to make out his case is correct, no 
 court of equity would enforce the view he- takes. 
 No coui't of equity would insist upon a construc- 
 tion such as my learned friend puts upon this 
 document, seeing the way in which it was ob- 
 tained. My lord, when I shali have called my 
 witnesses and once more addressed your Lord- 
 ship on the subject, I shall have done all that is 
 necessary for me to do in laying the matter be- 
 fore the court. There is not the slightest doubt 
 that, whatever may have been the circumstances 
 that have led to the present case, your 1 ordship 
 will determine in a fair and equitable man- 
 ner, and I only hope your decision will be as 
 
40 
 
 THE WU SHIH SHAN CASE. 
 
 satisfactory to my learned friend's clients as I 
 have no doubt it will be to mine. 
 
 Hi« Lordsiiip, referring to Mr. Kannen's ap- 
 plication made on the conclusion of the plaintiff's 
 case that the petition be dismissed, said his 
 ruling was only as to the 4th paragraph of the 
 prayer. 
 
 Mr. Hannen having again stated the grounds 
 on which he made his application as to the other 
 paragraphs of the prayer, 
 
 His Lordship said he could not rule the point 
 now, it must remain open for the present. 
 
 The Rev. John R. Wolfe, the defendant, 
 "was then called. He said — I first came to 
 Foochow in 1862, in the month of April. 
 Mr. George Smith, a missionary belonging to 
 the Church of England Missionary Society, 
 was in Foochow at that time. Th^re was no 
 other Missionary belonging to the Society. 
 Shortly after my arrival I went to reside at Wu 
 Shih Shan, at the Tao Shan Kwan. What is 
 now the girls' school was then Mr. smith's resi- 
 dence. It was in the same state as it is now, 
 with the exception of a kitchen to the north, 
 which has been built since. The Mission house 
 at that time consisted of a long' bungalow with 
 a verandah at the west end and two rooms at the 
 north-west corner. Those two roims extended 
 very nearly out to the door in the wail on to the 
 green patch of grass. In connection with that 
 house Mr. Smith occupied the ground at the 
 back and extending to the site of the college 
 which was burnt down last year and including it. 
 There Was a cross wail which ran across part of 
 what is now the kitchen garden running from the 
 Fang Ko Ting northwards to another wall. As 
 to the grass plat the verandah extended over part 
 of it and the North-west corner of it was occupied 
 by the two rooms spoken of. The rest was a small 
 flower garden. At the other side of the wall 
 (the west side) there was a deep hole, apparently 
 made by people digging sand out of it. From 
 that point down about half way was broken and 
 rocky land, and at the lower end was a flat por- 
 tion of ground on which the ruins of the college 
 now stand. Between the cross wall and the place 
 where the ruins stand there was a small level 
 space about half way. I afterwards built a cow- 
 house on that piece of land. t I'eached the rock 
 on one side and the wall on the other. The lower 
 piece of ground where the ruins now stand was 
 theuagrassplat. I rememberanoldcow-houseand 
 stable that Mr. Smith had erected, that is, they 
 were there when I arrived. All the land I have 
 spoken of was enclosed bya mud wall. At the upper 
 end that wall joined on to the out-houses at the 
 north-west. What is called the Morrison house 
 was also or-cupied by Mr. Smith. At that time 
 that consisted of four rooms straight in with the 
 kitchen built outside at the front. It was at 
 
 that time a bungalow. You got from that house 
 out towards the west by steps decending to a 
 door which opened out on the hill. Mr. Smith had 
 purchased a small i)iece of ground to the north at 
 the bottom of the hill, where tke present stable 
 stands. That was enclosed by the remains of an 
 old wall, the roots of old trees, and bamboos. The 
 present wall stands on the site of the old wall as 
 to a part of it. About one third of the grounds 
 within this wall, starting from the east end, had 
 been purchased by Mr. Smith. He never had 
 the deeds with regard to that purchase registered. 
 They were not sent to the Consulate nor was the 
 seal of the Haukwan magistrate put upon them. 
 They had thetepao's stamp put upon them. The 
 first alteration after I arrived was the putting 
 on of the second storey of the Morrison house. 
 I think that was in the spring or summer of 1873. 
 I don't remember whether there were other rooms 
 added below ; as far as I can remember there 
 were not. The priest of the temple certainly 
 knew about the alterations being made. I have 
 seen him frequently with the builders and the 
 wood which was used was stored facing the Mo 
 Shan Kwan temple for protection. The altera- 
 tions took three or four months in making. I 
 never heard of any objection being made to them. 
 The next alteration was the erection of the wall at 
 the north of the Morrisonhouse, which was erected 
 by leave of the authorities in 1865. I applied to 
 Mr. iTewlett, in consequence of the nuisances 
 caused by beggars and other matters, for permis- 
 sion to erect this wall to -keep out the thieves 
 and beggars and to have a door put up. I don't 
 remember whether the application was in writing 
 or not; I think it was verbal. I obtained the per- 
 mission applied for. In connection with the matter 
 Isawa seretai'y from the Board of Trade who came 
 and examined the place. The first looked round 
 the place and then came and asked me if there 
 were any graves within the ground I wanted to 
 enclose. I told them there were no graves, and 
 then they went away and said they would report 
 on the matter. I obtained the » erraission from 
 Mr. Hewlett, who told me he had spoken to the 
 ma darins. In consequence of that permission 
 I erected a wall and put a door in the wall and 
 erected two gates, one at the north-east and one 
 at the north-west. The gates were erected at 
 the same time as the wall. I frequently saw the 
 wei-yueu afterwards. He came to the house on 
 the next kite-flying day andnoti'ed the wall and 
 gates. At that time the authorities used to send 
 an officer to protect the premi -^s on kite-flying 
 day. The wei-yuen approvfid of the wall and 
 gates, and said we ought to have had that 
 done long' ago as it would have saved him a 
 good deal of trouble. The Consular interpreter 
 saw the wall and the gates. There was a path 
 leading by the side of the house which was 
 
THE WU SHIH SHAN CASE. 
 
 41 
 
 stopped np. It was by this way the beggars 
 came in and it was this path we applied for leave 
 to stop. When I was erecting the wall some 
 one came forward and claimed the land. I asked 
 him to produce his title deeds and he produced 
 some old deeds. I purchased the bit of land from 
 him and kept the title deeds. I had them sealed 
 only by the tepao. As we had got authority to 
 enclose the land I did not think it necessary to 
 send the deeds to the magistrate for his stamp. 
 This was in 1860'. Between my arrival at Foo- 
 chow and the year 1867 the ground between 
 where the hole was and the place where 
 the college stands had been altered. I filled 
 up the hole with earth. I cannot say who put 
 up the cross wall above the hole, but I believe it 
 was put up by Mr. Weltou. In 1863 or 1864 I 
 took down that wall, and in 1868 I erected the 
 present cross wall. Mr. Mahood arrived in 
 Foochow at that time and occupied Mr. Morri- 
 son's house. There was a door in that wall 
 through which the peoplecame fromthe hill. and I 
 erected the lower cross wall to prevent the people 
 roaming on to the garden and to separate the 
 houses. During the whole of this time the outer 
 wall was nevertouched. I livedin the oldMission 
 house, which was burnt down iu December, 1870. 
 The old house covered a larger area than the 
 present house. Towards the east the old 
 bungalow extended to the wall of the Lee- 
 chow-kung temple; to the west it extended 
 twelve or fifteen feet beyond the west end 
 of the present house ; towards the south about 
 five feet beyond the present house. I ha e 
 special means of remembering it did extend 
 further at the south-west corner, because there 
 is a tree standing there between which and the 
 old house there was hardly sufficient space for a 
 man to pass through and now the space is mu h 
 larger. On the north side, as far as I i*ecollect, 
 the present house extends seven or eight feet 
 beyond the former house. Iu 1876 I pulled 
 down the wall to the north-west. I did not pull 
 down the southernmost end of it, and it has 
 never been pulled down since I came to Foochow. 
 Later on I had the wall re-erected. It was re- 
 erected on the foundation of the old wall. 
 When it was re-erected you could tell where 
 the old one had stood. There were landmarks. 
 Inside there were vines which I had planted 
 in 1864. One vine is still standing just 
 above the cr ss-wall and there is also a root. 
 Outside at the north-west corner there is a rock 
 called the Pon-tow, which has never been re- 
 moved. There is a beud in the wall here which 
 causes the passage between the rock and the 
 wall to be a little narrower than before. The 
 wall has been thrown out about half a foot. 
 With this exception the present wall is in the 
 same position as the old one. The whole of the 
 
 land now enclosed was enclosed when I arrived. 
 in Foochow, with the exception of the half-foot 
 of which I have spoken and the piece which was 
 permitted to be enclosed by the authorities iu 
 1865. 
 
 The further examination of this witness was 
 adjourned until ten o'clock on the following 
 morning. 
 
 (Seventh Day, May 8th.) 
 The examination in chif-f of the defendant was 
 continued. He said — I do not remember early 
 in 1866 any proposition as to the purchase of the 
 property then occupied by me. I remember a 
 proposition made as to the purchase of a place 
 known as the Blind Man's Temple. An attempt 
 was made by me to purchase that temple, and the 
 attempt failed. As far as I can now recollect 
 wliat was done was this — we wanted the Blind 
 Man's Teuiple to convert it into a yard as the wall 
 of the temple then came up to the existing 
 school. There was a thin la* h and plaster partition 
 between the girls' school and the Blind Man's 
 Temple. I asked some one to ask the priest if 
 he could sell the temple. It was at that time iu 
 a very dilapidated state. It was used by the 
 blind men once or twice a year. The priest came 
 to my house and said he would sell it, that he had 
 asked the permission of some one — I think he 
 meant the heads of theBlind Man's Association — 
 and that they wanted to build a temple at another 
 place. As far as I recollect the price I offered 
 was §400 for the out and out purchase of it. The 
 negotiation failed. The Taou Shan Kwan people 
 heard of it, I suppose, and they got the priest 
 pwt in prison. I heard it was the Taou Shau 
 Kwan authorities that pre ented the transaction, 
 but I am not quite sure. I do not remember 
 whether I ever got from the priest any signed 
 deed of sale about this. Between this time and 
 the time of what has been called the $500 
 deed I made no further attempt to obtain any 
 other purchase. About the time of the attempted 
 pui'chase of the Blind iVIan's Temple nor before 
 that time had I made any attempt to purchase 
 the whole of the land occnpiod bV me. I have 
 read through the translation of the §800 deed 
 mentioned in the 10th paragraph of the petition. 
 I never had such a deed drawn up. The evidence 
 of the priest Chun Yuen Ching upon this deed 
 in his examinatiou-in-chief is, So far as I re- 
 member, untrue. If what he says had ocaiirred 
 and 1 had attempted to enter into a deed of 
 this kind 1 certainly must have recollected 
 it. A little time after the attempted purchase 
 of the Blind Man's Temple there was some ti"an- 
 saction as to the purchase of the whole of the 
 premises then occupied by me. As far as I 
 remember, the priest came to my house and 
 we had some conversation about the Blind Man's 
 
42 
 
 THE WU SHIH SHAN CASE. 
 
 Temple, and the f ai ure of the transaction, and he 
 said he was willing to sell me the property which 
 we held nnder the old lease. I said I was willing 
 to buy if the property could be tr-insferred to 
 me by legal authority. I agreed then, as far as 
 I can now recollect, to purchase the property for 
 $1,500, and as far as I remember I asked my 
 teacher to make a draft of a deed of i)urchase of 
 the property, to be taken by the priest to be 
 copied in triplicate. The priest took the draft 
 away and brought it back in triplicate, and I sent 
 it in the oi'dinary course to Her Majesty's Con- 
 sul. I paid the priest part of the purchase 
 money, 8500, when he brought the copy. I think 
 I paid him in two instalments. As far as I re- 
 member he said it was incouvenieut to take away 
 the $500 at once. The Consul sent the copies 
 baC'^ to me for my signature. Mr. Carroll was 
 the Consul. I sent them back to him signed, and 
 the next I saw or heard of them was that they 
 came back to me in two or three months wi h a 
 note from Mr. Carroll. I have not g'ot the letter 
 received from Mr. Carroll. After receiving back 
 the deeds I sent for the priest and informed him 
 of the fact that the deeds had been returned to 
 me with a note from Mr. ( arroll saying the pur- 
 chase could not be effected. I asked him to hand 
 me back the money I had given him, the S500. 
 He said he had not got it, that he had s ent it. 
 I told him that if he could not give me back the 
 money I should inform the Consul. He begged 
 me not to do this, and then promised to give me 
 a promissory note. He brought me a promissory 
 note for 8500 either on that day or the nest. I 
 cannot say whether the translation of the note 
 in the petition is correct, but I think it is in sub- 
 stance correct. I am p"i*iectly certain I paid him 
 the money the very day he brought me the 
 deeds in triplicate. As to the deed of 1867, I 
 heard from the Consul, Mr. Sinclair, that a new 
 deed was to be drawn up which should include 
 the whole property ; that was, as far as I under- 
 stood it, the whole propf>rty within the A'alls. 
 That was the first intimation I had of it. I have 
 heard that the words " That it should be at the 
 option of the lessee to continue the hiring of the 
 houses " wei'e struck out. I had no intimation 
 that this was to be done. I think it was ia con- 
 sequence of my trouble with the priest in re- 
 ference to the §500 that this new document came 
 about. I sent the note to the Consul. I am 
 not sure whether the information from the Con- 
 sul about the new deed came by letter or in con- 
 versation. If it came by letter I have not got 
 the letter. I don't remember refusing to pay 
 the rent, in fact I don't remember any one call- 
 ing for the i-ent. but 1 had a letter from the Con- 
 sul. I have not now got that letter. I said in 
 answer that as the priest had got the §500 and 
 had run away, the rent should be allowed to re- 
 
 main in my hands until the §500 was paid np, 
 and asked him if he did not think that was reason- 
 able. He wrote back to say he did not think it 
 was reasonable, and I at once paid the rent. 
 After that the agreement of 1867 was drawn up. 
 Before the drawing up of this document it was 
 never suggested to me I was to hold any part of 
 the property on a different tenure from that I 
 held it on before. 
 
 Mr. Hannen asked the witness if he considered 
 his tenure under the agreement of 1867 was 
 equivalent to the tenure under which he held 
 under the various previous arrangements. 
 
 Mr. Hayllar objected to the question on the 
 ground that the document spoke for itself. 
 
 The objection was allowed. 
 
 Mr. Hannen — Had you known that an altera- 
 tion in the terms of the agreement of 1850 was to 
 be made would you have signed that deed. 
 
 Mr. Hayllar objected to this question also, and 
 the objection was allowed. 
 
 Examination continued — I know nothing of 
 any negotiations having taken place with the 
 high authorities in England in 1878, as stated 
 in the 24th paragraph of the petition. If any 
 such negotiations did take place, I had nothing 
 to do with them. If by the high authorities in 
 England is meant the Church Missionary Society, 
 they had nothing to do with it. Mr. Smith died, 
 I think, in September, 1863. He died suddenly 
 at Amoy and his papers were left in disorder. 
 
 Cross-examined by Mr. Hayllar — The Church 
 Missionary Society is a voluntary society. It 
 possesses no charter nor anything of that kind, 
 nor does it come under the Charitable Tr" .;ts 
 Act. The members, I believe, are the anuaal 
 subscribers. 
 
 In reply to a question as to the constitution of 
 the governing body of the society, the witness 
 produced the rules and regulations. 
 
 Cross-examination continued — Messrs. Welton 
 and Jackson were appointed under these rules, I 
 suppose, as I have been. I was not here in 1 70 
 when the house used as a residence was accidentally 
 burnt down, nor was I here while the present 
 one was being built. It was built by Mr. Mahood. 
 I don't know whether any authority or permission 
 was asked as to its having that top storey. — With 
 your yreat knowledge of the Chinese, is not that 
 a kind of building that you think would offend 
 their prejudices a good deal ? I don't know. I 
 have never heard any objection again-' c it at all. 
 — Do you suspect that it would ? It may offend 
 some people. — Is it not offensive to their super- 
 stitions, as we will call them ? I cannot 
 say. — Have you any suspicions that it is? 
 I have heard some people say that it is, some of 
 the gentry. — You have been told so by the gentry? 
 The gentry have not told me. but the mandarins 
 said the gentry objected to it on the ground of 
 
THE WU SHIH SHAN CASE. 
 
 43 
 
 fung shui. I heard this from some of the man- 
 darins who came on to the hill on the occasion 
 of the examination of the ground on the day of 
 the riot, the 30th August last. — If you had been 
 here. Mr. Wolfe, do you think you would have 
 erected a house so elevated as that ? I don't 
 think I should. — You were here, I think, when 
 the top storey was put on what is called Mor- 
 rison's house ? Yes, I was.— Did you ask the 
 authorities of the city or your consul for permis- 
 sion to do that, or did you do it entirely without 
 consultation with them ? I did not ask. — Why 
 not ? I had not the management of the property 
 then at all.— Did anybody ask ? I don't know. 
 — Don't you think you should have known ? I 
 don't think so. The upper storey was put on in 
 1863. The house had been turned into a school 
 before I came here, and when I arrived the school 
 had been broken up. The present girls' school 
 was turned into a school in 1876 or 1877. Be- 
 fore that it was a residence. I don't think any 
 permission was asked to turn it into a girls' 
 school. I asked no permission from anybody. — 
 The witness points out the cross-wall he stated 
 in his examination-in-chief he put up to prevent 
 people who came from the hill going through the 
 garden. — I did not ask anybody's permission 
 to put up that wall. The people had not a per- 
 fect right to go through the garden into my 
 compound. I considered it private property. — 
 And over whose property did you erect that 
 cross-wall, did you consider ? I fancied it was 
 rented from the priest.— Did you make any in- 
 quiry ? Yes. — From whom ? From Mr. Smith, 
 before he died. — How long after Mr. Smith's 
 death did you put up the wall ? Mr. Smith died 
 in 1863, and I erected the wall in 1868.— And 
 during these five years the people had been in 
 the habit of going across that pi'operty ? No. — 
 I thought you said they had ? What I said was 
 that when Mr. Mahood moved to that house the 
 servants and p'.;jple who came to S2e him roamed 
 into the gardeu. — But did you not say the public 
 came in too ? No ; I don't think I did. Of 
 course the people who came to see Mr. Mahood 
 came from the bill; thei-e is no doubt about that. 
 — Now, about the mud wall which you say has 
 always been there ; you say you found that in 
 existence when you came ? Yes. — That was a 
 low mud wall ? No ; it was not a low mud wall. 
 It was the same height as now. — Do you know 
 who put it up ? I cannot tell who put this part 
 of it up ; it was all built before I came in. — I 
 suppose you have not any deed, or any permis- 
 sion from the Prefect, or anything of that kind 
 to show your title to that particular wall ? No ; 
 I have nothing to show my title to that wall. — 
 Now, going back to the mission house, when that 
 house was built in 1871 was not the situation of 
 the gate which you speak of as having been put 
 
 up in 1865 when the Prefect gave you permis- 
 sion to erect that other w^all lemoved further 
 east ? No. — Was there not a certain riot about 
 it at the time ; don't you remember the people 
 coming round about and insistincr on the gate 
 behig removed and complaining of the right of 
 way being stopped ? I never heard of such a 
 thing. You must remember I was in England. 
 — Mow you told us about that wall being pulled 
 down, what we called the mud wall, in 1876 ; had 
 you not at that time bought a piece of property 
 outside, to the north-west, from a Buddhist 
 priest called King Po ? I rented it. — Then you 
 threw out your west wall so as to include that 
 piece of iand, did you not ? Yes. — There was a 
 great deal of difficulty about it ? Not at the 
 time. — But there was a complaint to tl.e Consul 
 on the subject, was there not ? Not about 
 putting up the wall ; I wanted to erect a house 
 on the piece I had rented from the priest and it 
 was then the trouble arose. — Then the matter 
 was referred to the Consul, was it not, in 1876 ? 
 Yes. — And the result was that you were enjoined 
 to pull down that wall? Yes — You had to 
 do that on the ground that the piece you 
 had enclosed was public ground ? I don't 
 think so. — Were you not informed by the 
 Consul that you had enclosed a piece of public 
 land ? I dcn't think so. I am not sure. 
 — Are you sure you were not ? I don't re- 
 member that he told me I had enclosed a piece 
 of public ground. — But don't you know that was 
 the ground of the decision ? Mr. Pedder, the 
 Acting Consul, told me the mandarins had told 
 him I had attempted to erect a house on a piece 
 of land King Po had no right to let to me. — It 
 led to a great deal of trouble ; there has been 
 trouble ever since, has there not ? Yes. — Now, 
 with regard to this $800 deed, at the time that 
 that bears date, 1865, you had learnt Chinese, I 
 suppose, pretty well ? Very fairly, not very well. 
 The translation of the deed referred to is as 
 follows : — 
 
 A deed of an absolute receipt of rent for a perpetual 
 term made bj' Chun Yuen Ching, student of a Taouist 
 priest called Lin Yung Mow, at the Taou Shan Kwan 
 Temple on the Wu Sliih Shan. Whereas in the 30th 
 year of Tao Kwang (1850) two houses situate on the 
 left hand side of the Taou Shan Kwan temple, one in 
 front and the other at the back, were let to Eritish 
 Missionary Welton for building a house for residence, 
 at an annual rent of |100, and subsequently a piece of 
 ground was also :et to him at an annual rent of $32. 
 Now British Missionary Mr. Wolfe being desirous of 
 making an absolute payment of rent for a perpetual 
 term, doth hereby pay .?S00 as a payment in full of the 
 rent for the term above mentioned. Therefore neither 
 Chun Yuen Ching nor any of the other priests at the 
 temple shall from henceforth collect any more rent. 
 If Mr. Wolfe should return to England, neither Chun 
 Yuen Ching himse f, nor any of the other priests at 
 the temple, shall call to collect rent from any of the 
 missionaries, whoever they may be. The boundary 
 
44 
 
 THE WU SHIH SIIAN CASE. 
 
 of tho ground of the premises given in the following 
 is agreed to by Chun Yuen Ching, that is, in front 
 thereof it abuts on the edge of the main road in front 
 of the Taou Shan Kwan ; at the back thereof on the 
 main road leading to Wan Chang l\ung temple; on 
 the left hand side thereof (east) on the edge of the 
 road by the wall of the Ne Toh Sze Monastery ; and 
 on the right hand side thereof (West) on the wa 1 of 
 the Pan Leong Tang MDuastery. The boundary on 
 the four sides b'^inj distinctly specified, and the sum 
 of §3JJ, being tho whole amount of rent for a perpe- 
 tual tet-m, having been this day received in full by 
 Chun Yuen Chiu'j, he (Chun Yuen Ching) nor any of 
 the other priests at the Taou Shan Kwan Temple 
 shall from henoefoi-th give no cause of troubles, or call 
 to collect any mora rent. Fearing words of mouth 
 will not afford evidence, this deed of an absolute re- 
 ceipt of rent for a perpetunl term is therefore drawn 
 to serve as proof, and a copy of an agreement of rent 
 is also given up as proof. 
 
 (Signed) Ching Woo Kun, witness Tepao's stamp. 
 
 (Signed) ChqhYuen Ching maker of the above 
 deed of an absolnte receipt of rent for a perpetual 
 term. 
 
 Tung Chi, 4th year, 12th moon, 17th day. 
 
 Could you have read that deed do you think ? I 
 cannot say ; I would have had the help of my 
 Chinese teacher. — Gould you have read it without 
 the help of your teacher? No. — Could you not 
 have read that in 1865 ? Not by myself, but wilh 
 the help of a teacher. — Were you in the habit of 
 going through yourdocumeuts withyour teacher ? 
 Not always. — But were you in the habit of 
 reading them ? Yes. — Then you must have seen 
 that in the agreement of rent of 1867 the 
 words about the option of the lessees were 
 omitted. You must ha e improved in your 
 studies between 1865 and 1867. Perhaps you 
 had advanced so for as to be able to do without 
 the help of a teacher ? No. — Bat you could have 
 read the agreement of reut of 1867 with the aid 
 of a teacher ? Yes. — Did you do so ? I think 
 I read it through. — Could you write Chinese 
 then? No; not well. —Then when you wanted 
 any drafting done, or any documents drawn, 
 I suppose you got your teacher to do it ? Yes, 
 1 think that would be the ordinary way. — 
 Well, when that SiOO transaction about the 
 Blind Man's Temple was on the tapis, was there 
 any document drawn up about it ; were the terms 
 reduced as a preliminary to writing ? I don't 
 remember. — But really, this comes to be of great 
 importance. I must ask you to charge your 
 memory if you can as to whether that transac- 
 tion about the Blind Man's Temple was reduced 
 to writing by anybody ? I cannot say ; it may 
 have been done or it may not. — If it had been 
 done for you it would ha e been done by your 
 teacher, would it not ? Most probably. — He 
 would have shown it to you ? Probably he would. 
 — And perhaps not ? Perhaps not. 
 
 By his Lordship — My teacher's name was 
 Ting. He was a literai-y man. I really don't 
 
 know what has become of him. I think he is in 
 the city somewhere. 
 
 Cross-examination continued — Are you quite 
 sure he did not write that ? I really cannot say. 
 — Had your teacher anything to do with your 
 interviews with the p -iest, Chun Yuen Ching, 
 about this Blind Man's Temple ; was he present ? 
 I think he knew of the general idea. I don't 
 think ho was present. — I suppose you discussed 
 the matter with your teacher 'a good deal and 
 that he knew all about what you were wanting? 
 I am not aware I discussed it with him ; he knew 
 I wanted to buy the place. — Did you discuss it 
 with him ? No, not particularly. — But at all ? 
 I told him I wanted to buy it. — And your negotia- 
 tions with the priest took place personally ? Yes. 
 — Andyoucannotsay whetherthe§iOOagreement 
 was reduced to writing by your teacher or any one 
 else ? I really cannot say now. — Can you swear, 
 looking at that §800 document, that you never 
 saw it before ? I dare not swear I saw it before. 
 — My question was that you never saw it before ? 
 I don't think I ever saw it before. — But I want 
 something more than that. I want to know 
 whether, with your power of reading Chinese, 
 you can swear you never saw that document ? I 
 swear that I have not the slightest recollection 
 of ever seeing this document. — Or any document 
 about the Blind Man's Temple? I don't re- 
 member seeing any such document. — Well, now, 
 I want to call your attention to this S800 deed. 
 According to the translation we have, which 
 stands uncontradicted, it purports to be a very 
 sweeping document and to convey to you a much 
 larger piece of ground than is conveyed in the 
 §500 deed. What I want to know from you, Mr. 
 Wolfe, is whether you had been at that time 
 negotiating with the priest for the purchase, not 
 only of the property you now hold, but of that 
 included within the boundaries there men- 
 tioned? Certainly not; I don't remember. — You 
 don't remember, but will you swear, at this 
 length of Cime, that the priest is absolutely false 
 when he says you had ? I am prepared to go 
 that length. — That the priest was absolutely 
 false when he says you were negotiating for the 
 land with all these boundaries ? I have no recol- 
 lection of it. 
 
 His Lordship — That is not Mr. Hayllar's 
 question ; you must know that as an educated 
 man. 
 
 Witness — Will you put your question again ? 
 — The document I produced is the one before 
 you. It is a i-ecord of the Government of China. 
 A man comes here and swears that is his signa- 
 ture. The document purports to convey to you 
 the property included within the walls and a 
 great deal outside, and what I want to know is 
 whether you are prepared to swear that man is 
 telling a falsehood when he says you were nego- 
 
THE WU SHIH SHAN CASE. 
 
 45 
 
 tiating- with him for the purchase of all that 
 property ? I swear he is telling a falsehood. — 
 Just read the name of the signatory there, the 
 witness, Chaug Woo Kit ; can you read that ? I 
 see that. — Now, was he not one of your servants? 
 I don't remember it. — Was he not a water carrier 
 established about your premises ? I don't re- 
 member it. — Woo Kit, perhaps you called him ? 
 I never remember having a man of that name. — 
 You never recollect having such a man in your 
 servii'e as a water carrier ? No. — Will you swear 
 you never had such a man ? Well, that is hard 
 to swear. I don't remember the man's name. I 
 don't know who he is. — He purports to be the 
 witness to that document, which is an important 
 one ? Yes. — He was also called Kow Fo ; do you 
 remember having a man of that name in your 
 employment ? I don't remember such a man. — 
 Have you got the deeds you received from the 
 man ( King Po) when you built that wall without 
 the permission of the Prefect ? 
 
 Mr. Hannen objected that no notice had been 
 given to produce the deeds. 
 
 Mr. Hayllar said Mr. Hannen had stated the 
 previous day that the deeds were in court, 
 stamped by the tepao. 
 
 The deeds were produced. 
 
 Cross-examination continued — Now, that is the 
 tepao 's seal on the deed you got from that man 
 in 1865, which I have not seen until this moment ? 
 Yes. — Now, will you just compare these two seals 
 together (the 880l> deed and King Po's deed) and 
 see whether they are the same ? As far as I can 
 see they are the same, but I cannot be sure. — 
 You cannot be sure ! We will see whether that 
 is so. Now, do you know the name of the tepao 
 who signs that ? No.— Is it not a universal prac- 
 tice that in any dealing whatever with laud the 
 document should first be sealed by the tepao ? I 
 believe it is. — He is the headman of the hundred, 
 or district, whose duty it is to look after that 
 business ? Yes. — Is not the tepao a man appointed 
 pro tern by the District Magistrate ; he is the 
 headman of the neighbourhood who gets his 
 appointment from the magistrate, is he not ? I 
 think so. 
 
 Mr. Hannen — Do you know anything about 
 this arrangement, really ? 
 
 Witnes.s — No. 
 
 Cross-examination continued — Do you not 
 know the tepao's seals are constantly changing, 
 that they are changed with every magistrate that 
 comes in ? Idon'tknow. — Don't you know these 
 things are done to guard the revenue of China, 
 when it is necessary the Emperor should know all 
 documents are genuine.^ I don"t know the revenue 
 arrangements of China ; I know the tepao 
 exists. — But don't you know the reason these 
 things are sealed is that the Emperor may know 
 -where to get his taxes ? I don't know. — 
 
 Have you paid any taxes to the Emperor 
 of China on these documents (the deeds of 
 the land sold by King Po) ? No, I have 
 not. — Now, let us come down to what I call 
 the .?500 deed. That is a copy I show you. 
 Are jwi prepared to swear that that is not 
 an absolutely correct copy of the ?500 document 
 you made with the priest in every particular ? 
 I really cannot swear. — You cannot swear, but 
 is it not ? How can I possibly swear at this 
 length of time ; I have not the original before 
 me. — Do you impu'rn that, either yourself or 
 through your counsel; I want to know whether 
 you can swear that is not an absolutely correct 
 copy ? I cannot say at all. — Now, in that 
 document occurs these words, " But he, feeling 
 very much the inconvenience of the Taouist 
 priest's calls, is willing to pay to the said priest 
 the sum of §500 in order that he shall never 
 again call to collect the rent." Do you see those 
 words there ; can you follow in Chinese ? No I 
 don't think I can. — Well, we will point them out 
 to you ? Yes, I see here that this deed says I 
 willingly give out 500 Mexican dollars to the 
 priest so that he may not come again for the 
 rent. — The words you see there are " willing to 
 give ;" are you sure upoii reading those words you 
 did give him §500 ? I am siire I gave him |!500. 
 — That being one transaction, the giving of that 
 deed and the payment of the §500 ? — Yes; I gave 
 him the S500, I think, in two instalments. — Had 
 you paid §500 in reference to the Blind Man's 
 Temple before ? No, I Lad not. — And yet 
 you knew that transaction had fallen through 
 because it could not be registered ? No. 
 — You knew the transaction had fallen through ? 
 Yes. — ow, do you mean to say you did not 
 think from that there was a great I'isk of this 
 falling throug'h ? No, I did not. — No risk at 
 all ? No, I did not. — You told us just now the 
 directors objected ? I heai-d so. — Then do you 
 mean to say you paid §500 to this priest when 
 you had the risk before your mind ? There was 
 no risk in my mind. — Do you mean to say 
 that ? You must remember I had rented that 
 property, as I thought, by a lease under 
 which I could never be turned out as long as I 
 paid rent.— Now, do just think, Mr. Wolfe, if 
 you can bring your memory back to the time, 
 if you did not think there was a good deal 
 of risk of that transaction falling through ? 
 I did not think there was any risk at all. — 
 Now, you know this man was taken to the 
 yamen to be punished for one of the transac- 
 tions ; you have said it was for the S400 one ? 
 Yes. — Don't you know that if a man is punished 
 for a transaction it must be a very bad one in 
 their eyes ? I suppose so. — Now, are you sure 
 it was not after the §500 transaction he was 
 taken to the yamen ; I shall call your attentioa 
 
46 
 
 THE WU SHIH SHAN CASE. 
 
 to some documents presently ? I am quite cer- 
 tain. — Did you go and see Mr. Carroll about it ? 
 I spoke to Mr. Carroll about the priest's being 
 imprisoned. — And did not you yourself get Mr. 
 Carx'oll to intercede ? I believe I did. — Now will 
 you swear — because we are on ground we must 
 be very careful about, and it is an important 
 question — will you swear it was not about the 
 |500 transaction you interceded ? I swear it was 
 not. — Do you know that letter (letter from Con- 
 sul Carroll to the Chinese authorities) ? No. — 
 Do you know that signature ? No, I don't re- 
 member it. — Have you any reason to doubt the 
 genuineness of that signature ? I don't know 
 anything about it. — Have you never seen Mr. 
 Carroll's signature ? I have seen his signature, 
 but I cannot swear whether this is his signature. 
 — I don't ask you to swear ; I ask you to say 
 whether you have any reason to doubt it ? I 
 don't know anything about it ; that is the simple 
 answer. 
 
 His Lordship — Is it signed by Mr. Carroll in 
 Chinese ? 
 
 Mr. Hayllar — In English, my Lord. There 
 is no date to the letter, but the date of receipt is 
 put in. 
 
 Cross-exa iiination continued — Now, this is 
 that letter — 
 
 (translation. ) 
 
 Sir, — I trust you have duly received the letter I 
 sent yon yesterday, and was surprised to find that 
 the Taouist priest Chun Yuen Ching has not been re- 
 leased, whose re'ease is of importance. I personally 
 called upon the Haukwan District Magistrate to-day 
 inquiring of the cause of his (the priest's) still not 
 being released, and received a reply that he dare not 
 himself take the responsibility of discharging him as 
 he has not obtained an order from the Prefect to that 
 effect. After careful consideration of this matter, I 
 see there is no reason why the premises occupied by 
 Mr. Wolfe should not be still rented at a year'y ten- 
 ancy, though their being rented for a perpetual term 
 is inconsistent with reason. Why should an innocent 
 man be suffering in this matter ? It is therefore most 
 sincerely hoped that the Taouist priest Chun Yuen 
 Ching, as well as his student priest, may immediately 
 be released without any further delay. With best 
 wishes. 
 
 (Signed) Charles Carroll. 
 The card of Consul Carrol'. 
 
 To the Prefect of Foochow-foo. 
 
 I wanttokuow whether, after hearing that letter, 
 you say the priest was not put in prison with 
 reference to letting the premises occupied by you 
 for a perpetual term ? It was not after the per- 
 petual lease the priest was punished. — Well, here 
 are the words, it is impossible to misunderstand 
 them: "I see no reason why the premi.5es oc- 
 cupied by Mr. Wolfe should not be still rented 
 at a yearly tenancy, though their being rented 
 for a perpetual term is inconsistent with reason," 
 showing it had uotliiug to do with the Blind 
 Man's Temple, but the premises rented by you. 
 
 I want to know whether, after hearing that let- 
 ter, you adhere to your statement that the priest 
 was imprisoned for the $400 document? I adhere 
 to that statement. 
 
 "P is Lordship — What is the date of that letter. 
 
 Mr. Hannen —There is no date. 
 
 Mr. Hayllar — I am not putting it in in refer- 
 ence to the date, but to this particular passage. 
 
 His Lordship — Is it in evidence ? 
 
 Mr. Hayllar — No ; I am asking in cross-ex- 
 amination. 
 
 Cross-examination continued — Now, did you 
 not ask Mr. Carroll to intercede for this priest, 
 Chun Yuen Ching? I did. — When, in what year? 
 I think it was in 1866. — Can you bring to your re- 
 collection the date ? It was after the transaction 
 about the Blind Man's Temple, audi think it was 
 in March or April, I cannot say positively. — 
 But, Mr. Wolfe, that is a Government record 
 filed by us ; it is a matter we know nothing of 
 except from that record ; now, do you think Mr. 
 Carroll is playing the fool with the Chinese au- 
 thorities to send them such a letter ? I don't 
 know. — Can you give any reason for the thing, 
 any explanation at all as to why Mr. Carroll 
 should have written that letter ? No. — Just 
 consider a moment. Why should Mr. Carroll 
 write to us and say that after careful considera- 
 tion you may still go on holding these premises ? 
 Was not the priest imprisoned because he let you 
 the premises for §500 ? 
 
 His Lordship — Read the document. 
 
 Witness — I read it yesterday. 
 
 His Lordship — Well, read it again. 
 
 Witness reads the document. 
 
 Cross-examination continued — After reading 
 that you still say you know nothing about it ? 
 I still say I know nothing about it. I know the 
 priest was imprisoned, and I know Mr. Carroll 
 interfered. — Was he imprisoned twice ? No, only 
 once.— He was imprisoned for the first offence 
 and not for the second ; is that what you say ? 
 Yes. 
 
 His Lordship — Does he state that as a fact ? 
 
 Mr. Hayllar — Do you state that as a fact ? 
 that he was imprisoned for the $400 transaction 
 a d not for the second one ? 
 
 Witness — I state that he was imprisoned on 
 account of the transaction about the Blind Man's 
 Temple and not the §500 deed. 
 
 Mr. Hayllar — And that you state as a fact of 
 your own knowledg'e ? 
 
 Witness — That I state as a fact of my own 
 knowledge. 
 
 His I ordship — But look here, Mr. Wolfe, were 
 you in treaty at the time of the -^400 tran.saction 
 for the purcha e of the whole of the premises ? 
 
 Witness — No, my lord. 
 
 His Lordship — What interval was there be- 
 tween the !*400 transaction and the purchase you 
 
THE WU SHIH SHAN CASE. 
 
 4r 
 
 speak of of the whole of the premises in respect 
 of which the §500 was paid ou accouHt. 
 
 Witness — As far as I can recollect, three or 
 four months. 
 
 i is Lordship — How long was he in prison 
 with regard to the §400 ? 
 
 Witness — I think, my Lord, no longer than a 
 week. 
 
 His Lordship — When did the negotiations for 
 the ptirchase of the whole of the property com- 
 mence ? 
 
 Witness — I really cannot state the exact 
 month. I think it must have been in July or 
 August. 
 
 His Lordship — Well, now, Mr. Wolfe, after 
 these answers to me, can you adhere to your 
 statement ? Look at that letter again. 
 
 Witness — I am certain, my Lord. 
 
 His Lordship — Now, be good enough to con- 
 sider, Mr. Wolfe. We know your sacred position , 
 and we give you credit for recollecting* you are 
 under an oath. 
 
 Witness — Certainly. I adhere to my state- 
 ment. 
 
 His Lordship — You know you have sworn 
 positively. I will read you my notes of your 
 answers if you like. 
 
 Witness — Do you wish me to answer ? 
 
 His Lordship — Well, I simply want to know 
 if you adhere to your statement ? 
 
 Witness — Yes, I do. 
 
 His Lordship — Then the Consul must have had 
 a sort of prevision as to what was going to take 
 place. 
 
 Mr. Hannen — He says he adheres to it. 
 
 His Lordship — You see yourself what it is. 
 
 Mr. Hannen — ile says himself he cannot un- 
 derstand that letter, and there is an end of it. 
 
 His Lordship — It appears from what he says 
 that the man must have been liberated long be- 
 fore that letter was written. 
 
 Mr. Hannen — Perhaps Mr. Carroll wrote it | 
 under a misapprehension. 
 
 Mr. Hayllar — Oh. let me read the words — 'I he 
 learned counsel again read the letter. 
 
 Cross-examination continue J — I suppose you 
 went yourself and told him the priest was not 
 liberated ? It is probable I did. — But didn't 
 you ? Well, it is quite probable I did. — And 
 that was in reference to the S400 deed ? Yes. — 
 Then how could Mr. Carroll know anything about 
 the perpetual lease ? I cannot explain it. 
 
 His Lordship — Where does that come from ? 
 
 Mr. Hayllar — From our records. It bears 
 Mr. Carroll's signature and his card accom- 
 panies it. 
 
 Mr. Consul Sinclair explains to his Lord.ship 
 that the document in question is a note, and that 
 it is not usual to date notes in China ; official 
 
 commnnications are dated, but unofficial letters 
 are not dated. 
 
 At this stage the court adjourned for luncheon. 
 On the court resuming, Mr. Hayllar continued 
 his cross-examination. Hesaid — Now, Mr. Wolfe, 
 you have, I suppose, had permission by yourself 
 or your counsel to examine the official records 
 in reference to this case in the Consulate. 
 Mr. Hannen — I have had premission. 
 Mr. Hayllar — Well, have you found any refer- 
 ence to this !?400 lease or the imprisonment of 
 the priest ? I only ask for information. 
 
 Mr. Hannen — I am the only person who hag 
 looked at the papers and I have made no notes of 
 what I saw. I have asked Mr. Playfair to search 
 carefully for any communication from the Consul 
 to the authorities forwarding the §800 deed and 
 he has informed me, and I purpose proving it, 
 that no such communication is there. 
 
 lilr. Hayllar — Most clearly, because it never 
 was forwarded. But I want to know whether 
 there is any reference to this §400 deed or the 
 priest being imprisoned in connection with it. 
 
 Mr. Hannen — I have not looked for it, because 
 according to our story it never came to anything 
 at all. Mr. Wolfe's account is that it never went 
 further than preliminaries and therefore it would 
 not appear there according to our view. 
 
 His Lordship — Yes, but you have not looked 
 for it ? 
 
 Mr. Hannen — I have not looked for it. 
 His Lordship — Then Mi-. Hayllar's question 
 was, have you by yourself or counsel examined 
 the records of the Consulate in reference to this 
 matter, that was with regard to the §400 transac- 
 tion. 
 
 Mr. Hayllar— Yes, with regard to the whole 
 trau action — the I'un of the papers in fact. 
 
 Mr. Hannen — There are fifteen volumes of 
 various things, and I am allowed look at anything 
 I like. They are not collected together li!:;: raj 
 learned friend's. 
 
 Mr. Hayllar — But excuse me, we have had to 
 look over a hundred volumes to get these; they 
 are only stuck in for the purposes of this case. 
 
 His Lordship — But Mr. Hayllar's question 
 was, have you had permission by youiself or 
 counsel to examine the records of the consulate. 
 Then what does the witness say, does he say 
 yes ? But Mr. Hannen says yes. 
 Witness — I think so, my Lord. 
 Cross-examination continued — But going 
 through the Taou Shan Kwan property, you 
 knew about the date when this took place ? Ye» 
 I knew the date. — Well didn't you tell your 
 counsel, or give him some clue to find documents 
 about it ? I don't remember. — But this is a very 
 serious question. Did you not give him a clue 
 to look for the documents about the §4o0 deed if 
 there is such a thing ? Yes, I told him the date. 
 
48 
 
 THE WU SHIH SHAN CASE. 
 
 — Did you find anything about the release of the 
 priest, anything whatever ? No. 
 
 His Lordship — Does he know anything about 
 it, has he ever been near ? 
 
 Mr. Hannen — No, he has not. 
 
 Mr. Hayllar — Well, that is his own fault, if he 
 does not like to look after his own business. 
 
 Cross-examiua .ii)n continued — Now, according 
 to you, Mr. Wolfe, that transaction about the 
 $500 deed having fallen through, left the priest 
 in your debt S500 ? Yes. — That is the way in 
 which you put it; and then in order to repay 
 yourself the .^500, as you put it, you made him 
 make this promissory note ? I did not make him 
 make it ; I asked him to and he promised to. — 
 Well, you asked him to, quite so. Now, you paid 
 $132 a year; that was your rent, was it not? 
 Yes, I think so. — Are you not quite co^tian? 
 Don't fence with the question. Was not that 
 the rent ? Yes. — Well, then, it was the rent. 
 Don't think anything about such questions as 
 that. 
 
 His LorJship — You are a witness, Mr. Wolfe; 
 if you know a fact don't say " I think " or " to 
 the best of my recollection." You want to make 
 me believe you are the witness of truth. 
 
 Witness — Yes. 
 
 His Lordship — Then speak as you suppose a 
 truth-speaker would. 
 
 Mr. Hayllar — Then what I want to ask is why 
 you didn't set this rent off against the principal 
 if your object was simply to get back the money ? 
 Wliy didn't you set it off for four years and let it 
 end t;o, instead of charging $11 per mooth and 
 making it at the rate of 24^ per cent, interest ? 
 
 His f ordship — I made the calculation here 
 somewhere. It was 26f I think. 
 
 Mr. Hayllar — My question is this — If your 
 object was to get back the §500, if your true, 
 honest, real object was to get back that SoOO, 
 why didn't you merely set off the rent against it 
 and let it be wii)ed out, instead of letting it be 
 in such a way as in this case — it wipes out the 
 rent for ever. 
 
 Witness — When I asked the priest for the 
 8500 he said he had not the money ; he had spent 
 it. I told him I should report him to the Con- 
 sul, and he begged me not t<j report to the Consul 
 and said that if I did not report to the Consul 
 he would allow the rent m remain as interest on 
 the S500 until such time as he would refund to 
 me the §500. That is the only explanation I can 
 give. 
 
 Cross-examination continued — Well, but, Mr. 
 Wolfe, let me usi: you this question. This is 
 an old Taouist priest, and he told you he had 
 spent the money. Did you honestly, in your 
 own mind, think that money ever was going to 
 be repaid ? I certainly expected, I hoped, he 
 
 would repay it. — That is not my question. In, 
 your heart of hearts, sir, did you think that 
 money ever was going to be repaid ? 1 really 
 cannot say whether the priest intended to repay 
 me or not ; I hoped it would be paid sometime. 
 — That is not my question. In your conscience 
 did you think that money was ever going to be 
 repaid or did you think by this promissory note 
 you had got a perpetual hold on that property ? 
 I fully thoug'ht the money would be paid to me 
 sometime or other by the priest. — W'ith that 
 rate of iutei'est on it ? That is all I say. — 
 With that rate of interest ? I fully expected 
 the priest would repay me the money; I fully 
 expected he had not spent the money and that 
 he Lad said he had spent it to avoid payment. — 
 And so to facilitate his repaying it you put that 
 rate of interest on it ? He himself put that rate 
 of interest on it and I consented. — '■ ou consented, 
 yes ? Well, that is the truth, I cannot say any- 
 thing more. — Let me call your attention to one 
 clause in this document. This document was 
 made in 1866. Your intention was not to go 
 home to England very soon ? No, not very soon ; 
 two or three years. — Oh, but pei-manently I mean ? 
 No, it was not my intention. — Now let me call 
 your attention to this in the document " None of 
 the missionaries, whoever they be, shall after the 
 return of Mr. Wolfe to England be called upon 
 to pay rent." Now, I ask you if that did not 
 mean in your honest heart an intention on your 
 part +o get that property in perpetuity ? It cer- 
 tainly was not my intention to get the property 
 in perpetuity by that. — That is your answer ? 
 That is my answer. — Well, why did you make 
 the interest such a curious interest, such as two 
 and two per month so as to make it exactly cover 
 the rent ? He told me the rent was to be placed 
 over against the 3iOO until such time as the §500 
 was refunded ; I cannot make it anything more 
 than that. — But you see it is such a curious sum, 
 two and two per month, so as to bring it to ex- 
 actly that amount. I suppose you had some talk 
 about that amount? Yes. — And how came it to 
 be fixed at this extraordinary rate ? The priest 
 himself fixed it. — Oh, but you talked about it 
 with him ? Yes, of course I did. - Were you not 
 aware of the fact that if the priest did not 
 pay the money you had the property in per- 
 petuity ? No, I was not. — You were not ; 
 singular ! Now did you send that document to 
 the Consulate to be registered ? Certainly not. 
 — It was not a kind of document that ought to 
 be registered, was it ? I don't know. — I suppose 
 if it had been you would ha e sent it, like an 
 honest man ? I really don't know, it never struck 
 me. 
 
 Ml*. Hannen — I really don't know whether we 
 have reached a stage of the case when a question 
 can be put in that form — " as an honest man." 
 
 N. 
 
THE WU SHIH SHAN CASE. 
 
 49 
 
 Mr. Ilayllar — Yes, but it is a question of 
 accusing us of forgery. You have impugned a 
 document in our records. 
 
 Mr. Hannen^ We simply say we know nothing 
 about it. 
 
 Mr. Hayllar — Because, as you said to me yes- 
 terday, you have too much tact to use the word. 
 It has now become a question between us, which 
 is true and which is false, and my duty now is 
 to carry the matter out in a manner I can under- 
 stand. 
 
 Mr. Hannen — There is no i-etison why you 
 should use words to fluster a witness. 
 Mr. Hayllar — No; I don't want to. 
 Mr. Hannen — Then don't do it. 
 Mr. Hayllar — Then I will put it without. 
 Cross-examination continued — I ask you now, 
 do you know whether it ousrht to be registered 
 or not ? I don't know. — Did you inquire ? I 
 don't know. — Did you think it was your busi- 
 ness to inquire when you had a document of this 
 kind ? I never thought about it. - It is a matter 
 of such slight importance that you did not 
 inquiro? I never thought about it. — ' r was 
 it that you did not want to inquire ? I 
 never thought about it one way or the other. 
 — Come, let us have a little common sense. 
 Here is a document, the effect of which is that if 
 the priest did not pay this money you had the 
 property free of rent for good and all. Now. I 
 want to know from you whether it never occurred 
 to you that it ought to be brought to the notice 
 of the authorities ? It never occurred to my 
 mind; that ir, the truth. — You were going pretty 
 constantly to the Consulate, if I mistake not ? 
 Yes. — Pretty nearly every day, with one com- 
 plaint or another ? I don't say that. — You had 
 a good deal of business in official and missionary 
 matters? I had some business ; I won't say it 
 was a good deal. — You have been there very 
 frequently ? Yes, I have been there very often. 
 — Did it ever occur to you just to inquire in a 
 friendly way, " I have g'ot this document, it is a 
 matter of some importance, ought it to be I'e- 
 gistered or not ?" Did it ever occur to you ? 
 Never. — Then the priest bolted, didn't he? Yes. 
 — There was not much chance of his paying back 
 the money then, was there ? None. — Then did 
 you go openly to the persons who were next in- 
 terested in the mattei' and say, " I have had this 
 transaction with your old priest ; I am not going 
 to pay any more rent ?" No, I don't remember 
 having done that. — Did you doit? I will ex- 
 plain to you. — I just want that explnned. Did 
 you go openly to the authorities of the city or 
 any one and say, " I have got this transaction, 
 and I am not going to pay any more rent ?" 
 
 No. — You did not; why not? 
 not say. I waited, I suppose, 
 •rom them, from the Tuou 
 
 I really can- 
 until I heard 
 Shan Kwan 
 
 people. — Waited till you heard from them, 
 Mr. Wolfe ! Didn't you bring to their notice 
 that their priest li:.(; gone, having fled from 
 punishment or sometliing else, and that yon held 
 a document of this man's ? No ; not formally.^ 
 But in any way whatever ? I was going to teU 
 you. One day, standing in the garden, I saw- 
 two men connected with the temple, and we had 
 some conversation about the priest, and this note 
 was mentioned. I t(dd them the priest had 
 given me this note for the §5U0 which I -ad 
 paid him when he signed the deed. I told 
 them the whole story then. The next thing 
 I heard was when I had a letter from the Con- 
 sul. — Yes, and the Consul told you to pay 
 the rent ? Yes ; but I think I had sent 
 the document in the meantime to Mr. Sinclair, 
 complairring of the priest. — You think you had ? 
 Yes, as far as I remember. — But what I want to 
 know is this ; with this document in your hand, 
 for ^."lOO, you got the property in perpetuity. 
 What had you got to complain of the priest 
 about, if he had given you such a bargain as 
 that ? Because he went away with the $500. — 
 But you had got this in return, the advantage of 
 never paying any more I'ent for these premises ; 
 what had you to complain about ? That he ran 
 away with the money. — But I say you had this 
 splendid equivalent, what had you to complain 
 against him for ? Because he ran away with this 
 money. — But you don't answer my question. 
 There is no complaint if he gav-j you this 
 equivalent. If he ran away once i. I'l for all it 
 is clear if that document was to hold good 
 you would never pay any more rent ? When 
 he went away of course the rent was to be paid 
 to other people. — Why was it to be paid to other 
 people ? As the priest ran away the other priests 
 would have <o get the i-ent. — But, look here, 
 " The rent wrl not be paid till the loan is re- 
 funded, and before the repayment of the said loan 
 neither the Taouist priest himself nor any of the 
 other pi-iests at the temple shall call to oullect 
 the rent." Now, what do you say to that ; if 
 that was a true document what did it matter 
 whether the priest had run away or not ? Of 
 course I can't say. — But what had you to com- 
 plain of ? My question is, if you had got this 
 splendid equivalent for your .SoOO, what had you 
 to complain of ? Because I exijected when the 
 priest had run away the whole thing had 
 come to an end. I expected when that note, 
 was made the priest would have remained 
 in the temple, and I should have received 
 the rent until such time as he paid back ^I;a 
 ^500. When he ran away then I felt there 
 was no more security for my getting the money, 
 either the rent or the S'lOO. That is all the ex- 
 planation I can give. — But I am just going to 
 aak you a question upon that. Did not the mat- 
 
50 
 
 THE WU SHIH SHAN CASE. 
 
 ter come to the knowledge of the Consul, because 
 the people connected with the temple complained 
 that you did not pay the x'ent ? Did not that 
 bring the whole thing out ? Now, just be a 
 little cautious, because I will call your attention 
 to some documents before you answer that 
 question. My question, founded on these docu- 
 ments, is whether it was not a fact that you did 
 not pay the rent, and that put the fat in 
 the fire and brought the thing out once and for 
 all ? I will just call your attention to that dis- 
 patch from Mr. Sinclair to the Taotai. That 
 is the translation, which you can probably read 
 with more facility than you can the Chinese. 
 We have the original here. 
 
 Witness — Is it necessary for me to read all 
 through this ? 
 
 Mr. Hayllar — That is a matter for your own 
 consideration. 
 
 Witness — I don't know anything about this. 
 This document was written by the Consul and 
 I don't call it in question at all. 
 
 Mr. Hayllar — That is what we call fencing. 
 
 Mr. Hauuen — He says he does not dispute it. 
 That is not fencing. 
 
 Cross-examination continued— I give you this 
 for your own protection, and I ask you whether 
 it was not brought out by your not paying rent ? 
 I don't remember any person coming to my house 
 fort ie rent. 
 
 M '. Hayllar — Then that is neglecting. I put 
 it to you, neglect or refusal ? 
 
 His Lordship — Did he pay the rent ? It is 
 quite possible he may have paid it without any- 
 body calling for it. 
 
 Mr. Hayllar — Yes, my question is whether you 
 did not neglect or refuse to pay the rent for the 
 summer quarter after the priest had absconded. 
 
 Witness — I did not refuse to pay the rent. 
 
 Mr. Kaylliir — You see, your neglect may be 
 the same ti.;73g. 
 
 His Lordsuip — Was it your non-payment of 
 rent that brought the matter to the notice of the 
 authorities ? 
 
 Cross-examination continued — Yes ; but you 
 did know, as I understand, if your former an- 
 swers are corr' 3t. If you sent a note to Mr. 
 Sinclair you did know. Was it not the fact 
 that you dia either neglect or refuse to pay the 
 the 1 ent ? I don't remember. The only thing I 
 remember about the matter is my having spoken 
 to two of the men of the Taou Shan Kwan Temple. 
 They were on the temple grounds below, and I 
 ■was in the garden. I spoke to them fro the 
 hill, and we had a convei-sation about the priest 
 and this S500. I think I said to them on that 
 occasion that the rent ought to be left with me 
 nntil the S500 was paid up. It wag not a refusal 
 on my part. — That is just what I come to. Yon 
 knew the priest had then run away ? Of course 
 
 I did. — Then how were yon to be recouped th« 
 
 $500 ? Did yon»never hear the Chinese had 
 
 complained to Mr. Sinclair of your not having 
 
 paid the summer quax-ter's rent ; did you never 
 
 hear that, as a fact ? I never heard that as a 
 
 fact, that is, before Mr. Sinclair's letter came ta 
 
 me. — You did know then from Mr. Sinclair that 
 
 a complaint had been made by the Chinese to 
 
 that effect ? As far as I remember Mr. Sinclair 
 
 wrote to me to that effect. — And tlien he having 
 
 wiitten to you to that effect you paid the rent ? 
 
 I wrote back to Mr. Sinclair. — Ob, but did you 
 
 pay it? Not then. — Now what I want to know 
 
 is this, did you never hear the people connected 
 
 with the Taou Shan Kwan, the directors and 
 
 others, were very much incensed in conseqaenceof 
 
 your dealings with the priest ? I heard they did 
 
 not like it when the priest ran away, when 
 
 they found it out. — When they found it out ! 
 
 Well, when they found it out, as you say, they 
 
 didn't like it ; but didn't you have a talk with 
 
 with the priest yourself 'i Didn't he communicate 
 
 to you the fact that they were very ang-ry with 
 
 him ? I really don't remember ; I cannot say 
 
 whether he did or not.— Did you never speak 
 
 to him on the subject ? You see this is not 
 
 a light matter; it is a serious matter, and didn't 
 
 you speak to him upon the question whether the 
 
 people of the temple did like it or didn't 
 
 like it ? Cannot you chax-ge your memory to 
 
 that extent ? I spoke to him on the matter.^ 
 
 What fUd you say ? I told him he was 
 
 to x-efuud the 850l) to me; if not I would 
 
 infox'm the Consul about it. — But later than that, 
 
 did not the priest came to you and tell you the 
 
 thing had leaked out and the directors were very 
 
 angry with him? No; I don't remember bis 
 
 having told me that. — Knowing what you did 
 
 about his being punished before, didn't you think 
 
 it was a kind of thing that would make them 
 
 vexy angry with him ? I x-eally cannot say. — I 
 
 don't ask you whether you remember; I ask you 
 
 whether you don't think this was a kind of thing 
 
 that would make them very angry ? Certainly 
 
 it would, if he had done it without the consent 
 
 of anybody. 
 
 Mr. Hannen — You keeponsaying "the thing;" 
 which do you refer to ? 
 
 Ml*. Hayllar — The note; that is a thing. 
 
 Witness — I did not understand you to meaa 
 the note. I thouglit you meant the lease. 
 
 Cx'oss-examiuation continued — I mean the 
 whole transaction. Didn't you think that waa 
 a kind of business which would make them very 
 angry? If tixe priest had not authority to sell 
 the pi'operty of coui'se it would be a natux-al feel- 
 ing in their mind. — No ; but to give up the reafc 
 in this way, was not that a kind of thing that 
 would make them very angry ? I suppose it 
 would. I beg your pardon, I thought jou meant 
 
THE WU SHIH SHAN CASE. 
 
 51 
 
 ihe lease. — No, I mean the note ; don't you 
 think that was a kind of thing- that would make 
 them very angry ? I don't think that. — My 
 question is. didn't you think the whole transac- 
 tion in coiinoc'tion with the §500 note was a kind 
 v: business to make the directors very angry 
 
 when it came to their knowledge ? 
 
 I did not 
 Well, then, 
 
 think so at the time. — At the time ! 
 why didn't j^outell them openly? 
 
 Mr. Haiinen — He has just told us he did tell 
 them openly. 
 
 Cross-oi mination continued — I will ask you 
 this question : didn't you think when that busi- 
 ness camj out about the promissory note the 
 priest wo'ild be liable to punishment, and very 
 severe punishment, if he were found, knowing 
 how he had been punished befoi-e ? I didn't 
 think so. — Did you take the trouble to inquire 
 into such a matter as that ? No. — Now, I want 
 to know again from you, Mr. Wolfe, after that 
 poor old ruined priest, ruined and broken by this 
 trarsaction, a poor old Taouist priest, it doesn't 
 much matter perhaps, but I want to know whether 
 he didn't come to you in terrible trouble about it 
 and ask your advice ? H 3 certainly did not. — 
 Did you not have nuy inkling that this poor old 
 fellow was going to run away in consequence ? 
 I had not the slightest idea. — Did you ever 
 inquire about him ? I sent for him as soon 
 as the deeds were sent back from the Prefect. 
 —Very, well. Now then, Mr. Wolfe, I am 
 just coming to another part of the subject 
 for a minute or two. We have come down to 
 1876, and we have heard that from 1876 you 
 have had a good deal of trouble with the 
 Chinese about buildings and one thing and an- 
 other. You have, have yon not ? Yes. — Since 
 1876 you have had a good deal of trouble with 
 the Chinese? I said some trouble. — About the 
 Taou Shan Kwan property ? No. — About other 
 property ? About the house I intended to build 
 outside the wall, on the King Po ground. — Then 
 you or soroe of your colleagues, I dont know 
 which of them, put up that building which was 
 burnt down in 1878 ? Yes. — Now, in your answer 
 you state with reference to that matter, which is of 
 some considerable importance, " I admit that the 
 college was, with the sanction of Her Britannic 
 Majesty's Consul at Foochow, and without visible 
 objection on the part of the plaintiffs or any 
 other person, erected during tiie year 1878 on a 
 piece of land enclosed witliin the said wall." 
 Now. I want to know whether you did get per- 
 mission from the Consul to erect a buiidin ' of 
 this kind, such as you put up ? Yes. — Have you 
 got the pei-mission you received — I am very 
 anxious to see it ? Yes. 
 
 Mr. Hannen said he would get the document. 
 
 Cross-examination continued — Well, there was 
 so much trouble going on about this building 
 
 outside the walls that a good many negotiations 
 went on through the Consul about your chang- 
 ing the property in ! 877 and 1878 ? Yes. — There 
 was some negotiation about your going elsewhere, 
 was there not? There was some talk about 
 removing the house outside and giving us another 
 'iite. — Where was it to go to ? 
 
 His Lordship — What house ? 
 
 Witness — Not the house that was burnt down , 
 a house we intended to build in 1876 or 1877. 
 
 His Lordship — That is the first we have heard 
 of that. 
 
 Mr. Hay liar — Yes ; I understood it was about 
 this house that was built. 
 
 Mr. Hannen— At first Mr. Wolfe intended to 
 build a house on a piece of land he bought from 
 King Po, and that was squash erl, and he built 
 the house he intended to build there on this 
 piece of ground, and in the meantime some nego- 
 tiation was going on. 
 
 Cross-examination continued — Was it no t 
 while these negotiations were going on that you 
 continued to go on building this place ? No, I 
 am not aware of any negotiations taking place 
 when we built on the piece of Liud whei-e the 
 ruined house stands. — At the time the lease of 
 1866 was mp-de, referring to the property out- 
 side, were the buildings you have g-ot there now 
 already in progress ? Not the buildings. Not 
 part of them. No part of the buildings. — 
 Was there anything in progress ? The wall s 
 were up. — Well, they are large retaining walls 
 are they not ? Mud walls. — Well, you had al- 
 ready got that property under some other docu- 
 ments ? Yes. — And these are the documents 
 which are referred to in the lease of September, 
 1866, as the false deeds, seven in number, given 
 by Hwang Shang Sheng and others ? Yes. — 
 Under those deeds, seven in number, you had 
 entered into possession of the property and had 
 put up certain walls ; that is what I want to 
 know ? Yes, having got this property and the 
 lease from this maa we put up certain walls - 
 Then you sent it to be registere i, I suppose. Is 
 this the deed yoxi sf nt — 
 
 A lease of perpetual tena' cy entered into by Hwang- 
 Shavg Sheng who by ab-solute purchase is in posses- 
 sion of a house and a g-arden sitizated at Taou Shan 
 Poo in the Haiikwan district. The house is fa'-ing' 
 the North consisti g of two rooms with three wi- dow 
 shutters east, a hal . an outhouse, a d a sitting room 
 — five rooms in all. It abuts at the front on the main 
 road a'd fit the back Oil the ed^e f the road in fron 
 of Li Chou Kang Temp'e, on tlse I'ffc on the house o 
 the Shen family, and on the right '.'■•. a garde". The 
 roof and rafters above ai d the grmud inclosed in the 
 housf wal s below are also included. The garden 
 abu'T ■ front on the main road a' d at the baeko" the 
 edge 1 'he road in froi t of the Li ChoeKurg Temple, 
 on thi, I ft on bis own house, and oi the right om the 
 house i,^ the Chong family. It measures eight chai gs 
 and two cc'^ids long and nine changs and eight covida, 
 broad. 
 
52 
 
 THE WU SHIH SliAN CASE. 
 
 The above house and garden he of his owr, ac- 
 «3ord agrees to let to Mr. Wo fe for a perpetual term, 
 the price of which perpetual tena cy, namely, §145, 
 has been paid in full to aud received by him this day. 
 The tenants shall be at liberty to pu 1 down any 
 thi g ill the premises a d make alterations therto and 
 may, to suit their convenience, build thereupon for 
 dwelling purposes. All the material of the old house 
 Buch as beams, rafters, door, and window shutters, 
 flooring tiles and bricks, when taken down, shall be 
 taken back by Hwaiig Shang Sheng. The tenant, 
 after having paid in full the price of perpetual tenancy, 
 will never have to pay any rent and Hwang Shang 
 Sheng shall refi-ain from giving any cause for troiibles. 
 If there should be any question raised as to the ante- 
 rior rights or ownership of the property or incum- 
 brances thereon, he (Hwang Shang Sheng) shall un- 
 dertake to settle it, which will not concern the tenant. 
 It is also proper to declare that tax is payable upon 
 the property. It being thought advisable to have 
 evidence for the above this lease of ijerpetual tenancy 
 is drawn up and handed over together with five old 
 title deeds to be kept as proof. 
 
 (Signed) Woo Ut Ut, go-between. Hwang Kew 
 TiK, witness. 
 
 (Signed) Hwang Shang Sheng, maker of lease of 
 perpetual tenancy. 
 
 Lin Chang Yung, writer deputed. 
 
 Tung Chi, 5th year, 5th moon, 22nd day (1866). 
 Is that the deed you sent ; it bears the Consular 
 seal, you see ? Yes, I see; as far as I remember 
 that is correct — Well, it was not registered, was 
 it? No. 
 
 Mr. Hayllar— And the Haukwan District 
 Magistrate did not put his seal on it. Then I 
 ptit that in, I shall have something to say about 
 it presently. Aud eventually it resulted in your 
 entering into the lease of 1876 for twenty years. 
 Re-examined by Mr. Ilanuen — Will you ex- 
 plain, please, as well as you can, the transaction 
 ■with x-egard to those deeds which are mentioned 
 in the petition as the false deeds which were 
 given up ; what was the nature of their false- 
 hood ? They had not the stamps of the 
 Haukwan Magistrate on them ; that was the 
 only reason alleged for their falsehood by 
 the authorities. — For bow long did those 
 deeds trace back the property ? At this moment 
 I really cannot say how f«r, but I should say 
 for over a hundred years. — Was there a piece of 
 land immediately alongside this piece, enclosed 
 and occuxjied ? At both siaes of it. — Occupied 
 ly Chinese ? Occupied by Chinese. — And still 
 occupied by Chinese ? Yes. 
 
 Mr. Hannen pointed out the piece of land re- 
 ferred to on the model and said it was a piece of 
 Go\ernment property wedged in between two 
 native houses. 
 
 At this stage the Court adjourned until the 
 following day. 
 
 (Eighth Day, May 9th.) 
 Mr. Hannen continued his re-examination of 
 the defendant. — Will you tell me whether the 
 gate at the east end of the mission premises was 
 
 put up in its present position in 1865, after that 
 pei-missiou from the authorities ? Yes. — Now 
 with reg-ard to the sale v)f the whole of that pro- 
 perty, I mean the occasion when you bent tri- 
 plicate deeds through the Consul to the city ; 
 did the priest tell you he had authority to sell ? 
 He did. — You to'd us you did not believe the 
 priest had speiit, the money ; is that so ? Yes. — 
 That H IS after the triplicate deeds came back ? 
 Yes. — Did you believe that if the priest ran away 
 that promissory note would give you any title 
 to the property ? I did not. — Did you ever hear 
 of a promissory note like that being registered 
 at the Consulate ? No. — Up to the de^'d of 1867, 
 was it not the [.riest who had always received 
 the rent for his own building* ? Yes, always. — 
 Is that why yt u did not think the directors 
 would be angry at his alienating it ? Yes. — 
 My learned friend made a great point, and in- 
 deed the whole jietition does also, that the first 
 attempted transaction was for the purchase of 
 the whole of the i)roperty ; have you any parti- 
 cular reusan by which you can remember it was 
 for the Blind Man's Temple ? Yes.— What is 
 it ? Thero is a note in the mission minute book 
 about it. 
 
 Mr. Hannen tenders the minute refei'red to in 
 evidence and says — It confirms hv: statement as 
 to his negotiation for the purchase early in 1866 
 being for the Blind Man's Temple. 
 
 Mr. Hayllar — That you tried to purchase the 
 Blind Man's Temple I have no doubt. 
 
 Mr. Hannen — Well, that is all I make of it. 
 
 His I ordship — The note I have is that " there 
 is a note in the minute book which confirms my 
 statement as to the r;e;;otiation early in 1866, 
 being for the purchase of the Blind Man's 
 Temple." 
 
 Mr. Hannen — Yes. The minute is dated 5th 
 February, l86v>, and is — 
 
 At a meeting of the Finance Committee, C. M. S., 
 Foochow, held at the house of Rev. J. Wolfe, Febru- 
 ary 5th, 1866 (Tung Chi, 4th year, 12th moon, 25th 
 day.) 
 
 Present Eev. J. S. Wolfe, Rev. A. W. Ckible. 
 
 It was resolved — 
 
 (2) — That considering much damage has been done 
 to the lower mission house (Rev. A. W. Crible's) by 
 the inroads of the white ants coming in swarms from 
 the adjoining Blind Man's Temple, and thereby 
 causing considerable expense on the society from time 
 to time for repairs, and also considering the gre.;t 
 danger to the mission house in case fire should break 
 out from the discharge of fire crackers during the 
 tumultuous orgies at the said temple, stej-s should be 
 at once taken with a view to the purchase of the tem- 
 ple for the society and if the attem; t .should prove 
 successful that the old building should i:e pulled down 
 and converted into a yard for the convenience of the 
 lower mission house. 
 
 Mr. Hannen stated that the next witnesses he 
 should call were Chinese and asked that the iier. 
 
THE WU SHIH SHAN CASE. 
 
 Mr. Hartwell, of the American Board of Foreign 
 Missions, should be sworn as interpreter. 
 
 Mr. Hayllar not objecting, Mr. Hartwell was 
 sworn. 
 
 Wong Kin Taik, a Christian, said — I am a 
 doctor. I first came to the premises occupied by 
 the missionaries about the Taou Shan Kwan in 
 1863. I resided there for some time. I was 
 living there in 1864. I have gone carefully over 
 the premises recently, that is, between twenty 
 and thirty days ago. 
 
 Mr. Haunen was going into the question of the 
 position of the present wall as compared with the 
 position of the old one, when Mr. Hayllar con- 
 sented that for the purposes of this suit the 
 statement of Mr. Wolfe with regard to the en- 
 croachment be taken as accurate. 
 
 The question as to whether the pi*esent dwell- 
 ing house covered more or less ground than the 
 old bungalow was also disposed of on the same 
 basis, Mr. Hayllar stating that this was imma- 
 terial to his case, his contention being that the 
 house occupied more land than was let ; the old 
 one might also have occupied more ground. 
 
 Evidence continued — When the present mis- 
 sion house was built I was living at a mission 
 chapel in South-street, in the city, but was 
 frequently at the new building. I never heard 
 of any objection being made to the upper storey 
 being put on the house. If any objection had 
 been made to it I think I must have heard of it. 
 
 By Mr. Hayllar — When the mission house 
 was burnt I do not remember there being a row 
 about the east gate. 
 
 Ling Ayei Nei said — I am a mason. I knew 
 the mission premises in Mr. Smith's time. I 
 first knew them in 1859. I remember the place 
 where the college now stands. That ground was 
 enclosed, but the wall was low. I repaired the 
 wall for Mr. Smith. 
 
 By Mr. Hayllar — It was a mud wall, only 
 about eight or nine feet high. I have no books. 
 I live at a place called Paun Yu San, outside the 
 city. Since 1859 I have done no work at the 
 premises. Mr. Wolfe invited ma to come for- 
 ward as a witness. When I was doing work for 
 Mr. Smith he introduced me to Mr. Wolfe. Mr. 
 Wolfe sent and called me in connection with 
 this case. A man named Ka Siu came to 
 me. He is Mr. Wolfe's cook. He is not 
 a friend of mine. I have worked for Mr. 
 Wolfe while Ka Siu has been Mr. Wolfe's cook. 
 I have done work for Mr. Wolfe. I i-epaired a 
 wall for him in 1866. It was the wall at the 
 noi'th-east. I have done no work since 1866. Ka 
 Siu was Mr. Wolfe's cook at that time. He was 
 not at the mission house when I repaired the wall 
 in 1-59, but there was a brother of his called Ka 
 Kiu who was in the service. I came from my 
 house to-day. I have been at Mr. Wolfe's house 
 
 recently. Mr. Wolfe sent for me yesterday. I 
 was there two days befoi-e and have gone when* 
 ever Mr. Wolfe has called me. 
 
 Mr. Hauuen said he now proposed to call Mr. 
 Stewart, chiefly to aiford his learned friend au 
 opportunity of cross-examining him. 
 
 liev. K. VV. Stewart, M A., Trinity College, 
 Dublin, said — I am a missionary of the Church 
 Missionary Society. The new building which 
 was burnt last year was built under my super, 
 intendence. I came to Foochow in November, 
 1876. The letter produced is the one i received 
 from Mr. Sinclair in reference to the building of 
 that college. 
 
 The letter, which was put in evidence, was as 
 follows — 
 
 DH\a Mr. Stewart, — I should have preferred 
 waiting' for the reply I am expecting from the Foreiijn 
 Olfice to my dispatch concerning the exchange of 
 houses, but as you desire so anxiously to begin opera- 
 tions I cease to have any objections to yonr doing so, 
 but on one con lition, which you will allow m3 to make, 
 namely, thit at the iirst symptom of opposition on 
 the part of the gentry you at ouce discontinue the 
 work of building. I hope sincsrely you will go on 
 quietly and that you will not be troubled. — Faithfully 
 yours, Charles A. Sinclair. 
 
 Tuesday, April 2nd. 
 
 Ex imination continued — 'There was some op- 
 position shown by the gentry afterwards. The 
 building was completed as to the walls and roof 
 and general exterior when that opposition cam© 
 to my knowledge. This was a little over three 
 months afber I received Mr. Sinclair's letter. 
 Mr. Sinclair then as ced me to discontinue work 
 on the house. I declined. Mr. Sinclair wrote 
 to me to say the gentry were miking objections 
 and begging m.i to stop the work. I replied 
 stating* that the house was finished exteruall/ 
 and there was nothing now for me to stop. Mr. 
 Sinclair came and saw the house himself and 
 said there was nothing now for him to do but to 
 write and tell the authorities th^re was nothing 
 to stop. Tivo days afterwards Mr. Sinclaix* 
 wrote asking me to stop the work inside, which, 
 requast I d^jliued to accede to. 
 
 Mr. tLaa.ua was putting a question as to what 
 the witue^s considered the condition mentioned 
 in Mr. Siujlair's first letter referred to. 
 
 Mr. Hayilar objected to the question and asked 
 that Mr. Stewart's reply to Mr. Sinclair be pro- 
 duced. 
 
 Mr. Hannen said the letter was not in the 
 defendant's possession.* 
 
 * The following is a copy of the letter referred to :^ 
 Dear Mr. Sixclair, — Many thanks for your kind, 
 note. I m 'ke yon the promise yon ask, but hope very 
 much thefo *vill be no need to fulfil it; indeed, I do not 
 see what fault the gentry can find in our building a 
 native-looking house on this particular spot, unseen^ 
 as it will be from the city. — Yours faithfully, 
 
 (Signed) ROBERT W. Stewart^ 
 April 2nd, 1878. 
 
54 
 
 THE WU SHIH SHAN CASE. 
 
 Examination continued — I never undertook to 
 irtop the work pending a reference to the high 
 authorities at home. I went yesterday and 
 searched the records of the Consulate for corre- 
 spondence relating' to the period about 1865 and 
 1866. I searched the records from 1862 to 1^67. 
 From 1864 to 1866 there were no translations. 
 
 Mr. Hannen said he had intended to call Mr. 
 Playfair, of the Consulate, to prove that there 
 was no record of any such document as the deed 
 of 1868 having been forwarded through the Con- 
 sulate to the Chinese authorities. 
 
 Mr. Hayllar allowed this and said the case he 
 made against the defendant was that that deed 
 ■was never intended to go through the Consulate. 
 
 Mr. Hannen wished a note to be made of the 
 fact. 
 
 Mr. Sinclair, recalled, said — With regard to 
 informal not->s, the substance is given to the 
 writer, who afterwards brings the note for signa- 
 ture. The Consul, of course, reads it through. 
 The substance of the note may be communicated 
 to the writer through the interpreter. We keep 
 no copy. 
 
 By M 1-. Hayllar— I see the note of Mr. Carroll's. 
 This is the form in which notes are sent. There 
 is a date here; the witnesses said there was no 
 date. The card has been pasted over it. The 
 date is the 16th day of the 5th moon, but with- 
 out any year being given. I know Mr. Carroll's 
 signature very well, and it is subscribed to the 
 document. The note follows a dispatch dated 
 the 1st day of the 4th month of the 5th year of 
 Tung Chi, so that the date of the note would 
 probably be in June, 1866. The i*eference in my 
 note to Mr. Stewart to the reply I was expecting 
 from the Foreign Office was with regard to an 
 offer made by Ting Futai, for exchange of the 
 mission property at Wu Shih Shan for the tele- 
 graph property and S5,000 down. The telegraph 
 property is on the island of Nantai, near Gilman 
 and Co.'s private residence. The offer was made 
 by Ting Futai through me to Mr. Wolfe. That 
 was the negotiation referred to in that letter. 
 I reported to the Foreign Office and to the Lega- 
 tion that the offer had been made and forwarded 
 copies of my dispatches. At the time I wrote 
 that letter I was expecting an answer from the 
 Foreign Office. The letter was written on 2nd 
 April, I'^'^O, bat the year is omitted. The tepao 
 affixes his seal to documents relating to land. 
 He does so after they are written. We require 
 them at the Consulate for all leases in pernctnity. 
 Leases without the tepao's seal are sent lack. 
 When a new magistrate comes fresh stamps are 
 issued to the tepao-!. I don't know whether that 
 is for purposes of r venue ; I imagine it may be. 
 The revenue is coli cted with the assistance of 
 the tepao, who goes round with the tax-collector. 
 
 This concluded the evidence. 
 
 Mr. Hannen then summed up his case. He 
 said — May it please your Lordship, I must begin 
 by reiterating the objections which I raised to 
 the petition before. Those objections, I hold, 
 still stand. More than that, they ai'e supple- 
 mented and enforced by the evidence which has 
 been given for the defendant. It is not necessary 
 for me to go through them again ; your Lordship 
 has a note of them and they will remain on the 
 record for your Lordship to consider. I would 
 now briefly point out, running through the 
 petition, the points which appear to me to be 
 important and which have not been made out, as 
 I contend, by the plaintiff's case on evidence. 
 The first thing that is to be observed is the 5th 
 paragraph of the re-amended petition — " The 
 above-mentioned two houses were Chinese built 
 and were erected on land belonging to and formed 
 part of the out buildings of the Taou Shan Kwan 
 Temple. Having entered into possession thereof 
 under the said agreement of rent the said lessees 
 did subsequently, in breach of the terms and the 
 true intent and meaning thereof and without the 
 licence or authoi'ity of any one authorised in that 
 behalf remove the said two houses and erect in 
 their stead two structures of foreign design 
 occupying sites considerably larger than those of 
 the original buildings." This has not been 
 proved and there is not one tittle of evidence to 
 support it. Next, in the 6th pai-agraph it is said 
 that the priest let the premises which were let 
 to Messrs. Fearnley and Welton " without the 
 consent or knowledge of any one authorised in 
 that behalf." Now the whole course of the story 
 tends to show that he was authorised in that 
 behalf. Before 1867 the agreements were always 
 made with the priest. Before that time the 
 priest really was the agent of the directors for 
 conducting the business, whatever it might be, 
 concerned with the letting of the temple, and 
 inasmuch as that lease was confirmed by the 
 lease of 1867, supposing a jury were sitting 
 here it would be inght to direct the jury 
 that there was evidence, from the fact of that 
 confirmation of the lease of 1850, that there was 
 authority in the priest to make the lease which is 
 there set out. In that same paragraph, at the 
 end. it is said " The said document was not re- 
 corded at the British Consulate, nor did it bear 
 the said Consular seal, nor that of the Haukwan 
 District Magistrate." It was expressly proved 
 by the evidence of Chiug Che Yeo, the Haukwan 
 District Magistrate, that that is not necessary 
 with i-egard to a leasts of this kind in Chinese 
 law and thex'efore the whole of the suggestion, 
 whatever it may be, falls to the ground. Again, 
 in the 7th paragraph, I have already pointed out, 
 but I would again remind your Lordship, that the 
 j allegations there, that the missionaries ''having 
 entered into possession of the said rooms did, 
 
THE WU SHIH SHAN CASE. 
 
 55 
 
 •with out reference to the said or to any local 
 authorities, and without any licence or authority, 
 and in breach of the intent and meaning of the 
 said last mentioned agreement, alter and extend 
 the said rooms by adding an upper storey and 
 other rooms below," were not supported by any 
 proof, at least as to extending them below, on the 
 plaiutiifs' part, and is expressly denied by the 
 evidence which has been brought on behalf of the 
 defendants. Again, in the ISth paragraph, it is 
 said the lease to the Rev. George Smith was 
 without any authority. With regard to that no 
 evidence has been brought foi'ward to show the 
 priest bad not authority, but. on the contrary, 
 with regard to former leases the priest was the 
 person dealt with. In the contract of 1850 he 
 was expressly made a party and the validity of 
 that lease has never been denied, and it is with 
 the sanction of the Haukwan District Magistrate, 
 so that the priest's authority to let under some 
 circumstances really cannot he denied and has 
 not been disproved. Here we have the first 
 agreement made with the priest and the Hau- 
 kwan District Magistrate being a party to 
 it, the second agreement made with the priest, 
 and afterwards the third agreement made with 
 the priest and afterwards confirmed. There 
 is therefore no ground for saying that up to 
 1867 the priest had no authority to let the pre- 
 mises. Now, I pass over the next paragraphs, 
 because I mu-t refer to them by and bye, and I 
 come to the 19th paragraph, and there again is 
 an allegation that in 1871, when the present 
 house was being built, the defendant " encroached 
 on land other than that leased to him and des- 
 troyed and removed a large rock." They have 
 produced ro evidence whatever to prove that the 
 house now standing stands on a larger area than 
 the old temples, and we have pi'oved, and they 
 have admitted, that the present house occupies 
 less space than the old one, and they have not 
 proved that the old one occupied any land belong- 
 ing to the Taou Shan Kwau which was not 
 leased. Now, with regard to the 20th paragraph. 
 " In constructing a gateway and entrance road 
 to the said house the defendant has interfered 
 with and blocked up n ancient public right of 
 way," they have not produced any evidence 
 whatever to show that. Apparently the only 
 way they intended to prove that was by cross- 
 examining my witnesses, and they failed to prove 
 it. That 20th paragraph is not supported by 
 any evidence on the plaintiffs' side whatever. 
 Then my lord, it really comes to this, that not 
 one encroachment and not one breach of agree- 
 ment has been proved. 
 
 Mr. Hayllar — Would you excuse my inter- 
 rupting you to ask a question, do you say the 
 land outside the walla is not ours ? 
 
 Mr. Hannen — I say you have not proTed that 
 
 we have encroached on land belonging to yoTi, 
 and that we have not encroached on any other 
 property than that which was let to us. Whe- 
 1 ther it belonged to you or not, and you wrong- 
 fully let it to us, we are not in a position to say. 
 We suppose it did belong to you, as you let it. 
 As far as your own case is concerned we say wa 
 have not enci-oached on any of the proj)erty which 
 belongs to you. 
 
 Mr. Hayllar — Do you say that rock was let to 
 you or not ? 
 
 Mr. Hannen — Yes, we say it was. I shall 
 come to that directly. At the present moment 
 T merely wish to call your Lordship's attention, 
 to the fact that not one single encroachment or 
 breach of agreement has been proved, and there- 
 fore the 25th paragraph falls to the ground ; in 
 fact, all the encroachments have been abandoned 
 except the one with regard to this new house 
 having been built upon land belonging* to the 
 temple which was not leased to the defendant, 
 and I have proved distinctly that this house stood 
 upon less ground than the old one. What was 
 let to us was the old house. 
 
 Ris Lordship — Assuming the agreement of 
 1867 to be vaUd ? 
 
 Mr. Hannen — Yes, my lord. We, therefore, 
 have reduced the matter in reality to these three 
 portions, the legal construction of the document, 
 what was the vacant piece of ground, one of the 
 parcels mentioned in the deed, and what was >'r, 
 George Smith's piece of ground rented to him at 
 812 a year. That contains the whole gist of the 
 petition as it now stands. It has been compli- 
 cated by the story of the Taouist priest, which is 
 ■ a perfectly collateral state of things, and beyond 
 i what I have stated there is nothing in the petition 
 ! now standing. There is simply — what is the 
 I construction of this agreement, what is the piece 
 j of land called the vacant piece of land, and vhat 
 I is Mr. George Smith's piece of land ? It is 
 true there is a question as to the rights 
 of the parties under the lease of 1866, but 
 with regard to that I propose passing it by. 
 It is impossible for me to answer suddenly any 
 construction my friend puts on that. If your 
 Lordship thinks it necessary to put a construe- 
 tion upon this agreement and y ur Lordship 
 makes any order we must be content to abide 
 by it. 
 
 His Lordship — With regard to that agree- 
 ment, I don't see how the plaintiffs have shown 
 their right to any relief in regard to it. They 
 have not alleged they have any right of property 
 in respect of that land. That, I supposed, would 
 be your point upon that agreement. As I un- 
 derstand it these directors sue as representing th» 
 temple. 
 
 Mr. Hayllar — Your Lordship is quit« right. 
 
<.^. 
 
 56 
 
 THE WU SHIH SHAN CASE. 
 
 Mr. Hannen — That is the construction I put 
 upon it. 
 
 His Lordship— Well, then, they Biust show 
 that tbey. as directors of the Taou Shau K-wan, 
 Lave a right of suit upon the agreement of 1865. 
 Is that shown on the petition? 
 
 Mr. Haunen — No, my lord. 
 
 His Lordship — Well that is a point I should 
 be disposed to ask Mr. Hayllar to address me 
 upon. That seems to me to go to the gist of 
 the whole. 
 
 Mr. Hannen — Yes, as to that. 
 
 Mr. Hayllar— Your Lordship sees they .struck 
 ont the gentry as parties to the suit, but they 
 did not strike out this paragraph. 
 
 His Lordship— Will you strike out the agree- 
 ment of IStitJ now? 
 
 Mr. Hayllar — No, my Lord, lam not going to 
 strike it ovA now. 
 
 His Lordshi}) — The question is whether the 
 plaintiffs, as the pleadings now stand, have shown 
 a right of suit under this agreement. 
 
 Mr. Hannen — But supposing that after hear- 
 ing Mr. Hayllar your Lordship should hold they 
 Lad, I caimot argue upon the rights of the 
 parties under the deed, because no speciiic am- 
 oiguity, breach, or anything else is alleged. I 
 come to the trial of this case without knowing 
 in the least what my learned friend is going to 
 allege about it. 
 
 His Lordshij) — They have not proved the 
 agreenjeut of 1866. 
 
 Mr. Hayllar — It is admitted in the answer. 
 
 Mr. Hannen — Practically it is admitted. At 
 the time of drawing up the answer to the petition 
 ■we could not admit the accuracy of the transla- 
 tion, and at the present moment I have no reason 
 for challenging its accuracy. 
 
 His Lordship — There has been no ambiguity 
 alleged except at the bar, and Mr. Hayllar's argu- 
 ment is, supposing Mr. Wolfe goes way or be- 
 comes defunct, who are " the others " to whom he 
 is to look. He is looking for something and he 
 finds a shadow 
 
 Mr. Hayllar — Yes, my lord, and he has made 
 an agreement not to sublet. 
 
 Mr. Haunen — It really is, as I imagine, a lease 
 to Mr. Wolfe in trust for himself and others 
 connected with the Cbui-ch Mission. However, 
 I decline to bind myself with regard to that I 
 say I cannot answer it, because I have not been 
 put in a position to do so — at least, I ought not 
 to be put in that position, because the plaintiffs 
 Lave not shown their interest. 
 
 His Lordsliip — That is what I say. 
 
 Mr. Hannen- Nor have they shown It in the 
 course of the case. Well, I pass from these 
 objections to the petition and proof to what still 
 remains. I say, therefore, now, that we really 
 vftre brought face to face with the three points, 
 
 what is the construction of the document, what 
 was the piece of land mentioned in paragraph 16, 
 and what was the piece of land leased to Mr. 
 Smith ? 
 
 Mr. Hayllar — Allow me to call your attention 
 to the word *' local authoi'ities " which you use 
 in the I4th paragraph of the answer — " I admit 
 that, as stattd in the 14th paragraph of the 
 amended petition, an agreement to rent some 
 land for building purposes close to the Wan 
 Chang Kiing Temple was, in or about the month 
 of September. 1866, entered into between myself 
 and others of the English Church Missionary 
 Society and 'he local authorities." Is that so 
 or is it not ? We are " local authoi'ities " — ". ery 
 local. 
 
 ^r. Hannen -It is only an acknowledgment 
 of the agreement The authorities we allude to 
 are the authorities mentioned in the agreement. 
 
 Mr. Hayllar — And you didn't make your agree- 
 ment with them. 
 
 Mr. Hannen — We say it is. 
 
 Mr. Payllar — The Government? 
 
 Mr. Hannen — Apparently it was the Govern- 
 ment, and the gentry, and all united together. 
 Now, I am obliged, before entering on the legal 
 construction of the agreement of 186 , to allude 
 once more to this story of the pi'iest and his 
 three documents and Mr. Wolfe's reply to it. Mr. 
 Hayllar attempted to puzzle Mr. Wolfe by the 
 introduction of that note from Mr. Carroll. It 
 did not in the least shake Mr. Wolfe's distinct 
 impression as to what was the truth of the mat- 
 ter. Although, no doubt, that note as placed in 
 his hands was on the face of it difficult to ex- 
 plain, and although Mr. Wolfe had an oppoi-tu- 
 nity of reconsidering what he said, he still ad- 
 hered, and adheres still, to the statement he 
 made that the priest was iminisoned on ac- 
 count of the iirst transaction and not on account 
 of the second, and although fifty people were to 
 try to place documents in his hand and divert 
 his attention from that fact, he still maintains 
 that it was with regard to the first ti'ansaction 
 and not with regard to the second. Now, the 
 whole gist of Mr. Hayllar's cross-examination 
 on that point was that having looked at BIr. 
 Carroll's letter on that point Mr. Wolfe ought 
 to say he was mistaken because Mr. 
 roll's letter speaks of the lease of the 
 
 of the ground occupied by 
 let us see what that letter 
 was an uuoifipial note. The 
 unofficial i ote is drawn up 
 this morning by Mr. Sinclair. 
 
 Car- 
 whole 
 But 
 letter 
 
 Mr. Wolfe, 
 was. That 
 way in which an 
 was detailed to us 
 The Consul tells 
 
 shortly, possibly through the interpreter, to the 
 writer what he is to say and the writer draws up 
 what the letter is. ^ ow, inasmuch as there had 
 been at that time, no doubt, a complaint made 
 about the attempt to sell the Blind Man's Tern- 
 
THE WTJ SHIH SHAN CASE. 
 
 »i 
 
 pie, no doubt that had come to the knowledge of 
 Mr. Carroll through the authorities. Then 
 comes the question of the priest being- imprisoned. 
 It has never been said that anything* definite was 
 brought to the knowledge of the Consul, it is 
 not said on the other side that Mr. Wolfe 
 passed these documents through the Con- 
 sular books in order to go to the authori- 
 ties ; therefore the Consul had nothing but 
 tt verbal report of some kind as to what took 
 place, the main gist of which was that a perpetual 
 lease of some kind had been attempted to be ob- 
 tained by Mr. Wolfe and had failed. That being 
 so, the writer seems to have assumed this related 
 to the whole of the pi-emises. whereas it related 
 only to the Blind au's Temple. And in an 
 unofficial note, drafted in this loose way, this 
 mention is made, and then the whole of Mr. 
 Wolfe's credit is to be shaken — although he 
 swears most strongly what the transaction was 
 — by tlie writer having put in words which my 
 learned friend contends show that the transac- 
 tion had taken place with regard to the whole of 
 the property instead of the Blind Man's Temple 
 only ! Now I think that is very unfair. He is 
 here on his oath, he knows his responsibility 
 and the penalty for not speaking the truth 
 far better than can be known by the witnesses on 
 the other side. The penalty for perjury is far 
 greater, as applied to a person in his position, 
 both in its moral condemnation and actual pun- 
 ishment, than is inflicted, if any is inflicted, on 
 Chinese. A loose note, which may have been 
 written through a double interpretation, is pro- 
 duced, and that it should be suggested Mr. 
 Wolfe's testimony is untrue, because it didn't 
 agree with that which appears to be in that note, 
 is unfair. Now, there is also the 3800 deed to 
 be accounted for. That deed is accounted for at 
 first by my learned friend in this way, he says 
 that was drawn up by Mr. Wolfe, was handed 
 to the priest for his signature, was handed back 
 to Mr. Wolfe, and when I objected to its pro- 
 duction he says " I have traced it into your 
 possession." He has, but how does he trace 
 it out ? The only way would be through 
 the Consulate. But then we sbould have had 
 a note in the Consular books to that eff jct, 
 and we have shown, and my learned friend has 
 admitted, there is no such note. Therefore he 
 has traced the note into Mr. Wolfe's hands and 
 he leaves it there, and yet it turns up in the 
 archives of a Chinese yamen. Then, again, a 
 very grave charge is attempted to be rested by 
 Mr. Hayllaron that. The charge which is made, 
 which on the testimony of the priest alone would 
 have very little chance of biding believed, is 
 corroborated by a document the appearance of 
 which among the Chinese archives was never 
 accounted for. It is simply placed baldly before 
 
 the witness, and not one single word of proof i& 
 given as to how it came there. Now upon theaa 
 documents rested another thing, the fact that 
 there was an attempt to purchase something, 
 which failed, and then, shortly afterwards, an 
 attempt to purchase something and a payment 
 of money on account, and my learned f fiend laid 
 great stress in his cross-examination up^n that 
 — that although the first attempt had failed yet 
 Mr. Wolfe was willing to pay i:^500 on account 
 of the second. But Mr. Wolfe's account makes 
 that perfectly clear. He says the first was a a 
 attempt to buy the Blind Man's Temple. That- 
 was perfectly fresh property. He attempted to 
 extend his premises then and failed, but that 
 was no reason why he should think the directors 
 would be unwilling to sell what he was alrea ly 
 occupying. What he was already occupying Kad 
 been changed by other people from the original 
 estate, and it might well be the directors would ba 
 willing to sell him that although they would 
 not be willing to sell him fresh property, more 
 especially as he was under the impression he 
 held under a lease which gave him power to hold 
 as long as he liiced. The effect of the priest 
 having attempted to sell and failed on the first 
 occasion would only make Mr. Wolfe think when 
 he came again and said, " Now I have authority 
 to sell" — what would pass through his mind 
 would be, " I suppose he really has got tha 
 authority of the directors this time," so it is far 
 less likely he would imagine there was any 
 doubt as to the success of the second transaction 
 than that there would be as to the first, more 
 especially as the property was actually in hiii 
 possession, whereas wliat he attempted to pur- 
 chase before was a temple and was not in his pos- 
 session. Now, there is another point which my 
 learned friend alluded to, perhaps oulybyasneer— 
 the fact that Mr. Wolfe aud Mr. Smith had in 
 their possession what are called false deeds. 
 With regard to this, the reason the deeds came 
 into their possession is very clear. The first 
 preliminaries as to the purchase of little bits of 
 ground are simply these : you get the deeds from 
 t!ie owner, they are .sent to the tepao, and they 
 are then sent to the Consulate. AVith regard to 
 that we hear that Mr. Smith died suddenly and 
 his papers were loft in confusion, and these deeds 
 which he had got, and which he probably would 
 have passed through the regular channel and got 
 stamped, were not stamped, and Mr. Wolfe, wha 
 had only been here a little time, did not know 
 the importance of it. 
 
 Mr. Hayllar — We had no evidence of that. 
 
 Mr. ' aunen — He has said himself that he 
 came in 18i>2 and this was in i863, a!id he states 
 he had not had the management of the pro- 
 perty. The whole thing being in confusion it i* 
 not at all extraordinary he did not take the ji.- i- 
 
58 
 
 THE WU SHIH SHAN CASE. 
 
 eantion which he oaght to have done of having 
 these deeds passed through the regular channel. 
 Now there is only one incidental point I want to 
 touch upon, and that is as to my having ob- 
 jected to the documents. My learned friend will 
 make a great deal of that. It only amounts to 
 this, that not knowing their effect if they were 
 in evidence, I preferred they should not be in- 
 troduced into the case. I have never had any 
 chance of seeing them before, and most of them 
 refer to a time during which no English transla- 
 tions were kept in the Consulate. I had there- 
 fore had no opportunity of seeing them, they 
 came upon me perfectly fresh, and with regard 
 to the greater portion of them I thought it pru- 
 dent, as I had not had time to consider them, 
 not to admit them. Mr. Stewart has shown 
 that between 1864 and nearly the end of 1866, 
 during the time Mr. Sinclair was absent, 
 there is a hiatus of translations in the con- 
 sular records. That accounts fully, I main- 
 tain, for the objections I have made, and my 
 friend must take all the advantage he can. 1 
 am, of course, bound by what I have done and 
 the course I have taken. Now, the next point 
 we come to is the lot of ground mentioned in the 
 agreement of 18*^7, "A small piece of land 
 formei'ly hired iinder a verbal agi'eement by the 
 Missionary George Smith." When we point out 
 that this is the piece of land on which the college 
 stands, my learned friend says it could not be 
 that because the directors had no right to let it. 
 Mr. Hayllar — Excuse me, you have not given 
 one word of evidence on the subject. 
 
 Mr. Hannen — We have given Mr. Wolfe's 
 evidence that he believed this was the piece, and 
 you have no more. 
 
 Mr. Hayllar — We have the priest who let it. 
 Mr. Hannen — Well, he comes and tells us he 
 let this piece (pointing it out on the map) at .'§12, 
 while he let this other piece with the house on it 
 at $20. The thing is ridiculous. This was done 
 bofoi'e our time. It was simply impossible for 
 lis to have any direct testimony of what was let 
 to Mr. Smith ; all we know is what appeared to 
 be let to us in the ag-roemeut of 1S67. One of 
 my learned friend's arguments is that the dire'- 
 tors had no power to let it, but when they come 
 to point out what they did let they poijit out a 
 piece which, according to their own showing, they 
 had no right to let. 
 
 Mr. Hayllar — The directors did not; Chun Yuen 
 Ching did. 
 
 Mr. Hannen — The two together show they 
 had let a piece of ground not within the walls. 
 If they did that than there is no more reason 
 why they should not lot this piece of land than 
 there is for imagining they let the piece they 
 Bay they did. At the time Mr. Wolfe made the 
 agreement of 1867 the only piece of waste ground 
 
 was the piece at the back of the house and that 
 represented in Mr. Wolfe's mind the piece of 
 vacant ground referred to in the first part of 
 the agreement. If the directors, who were con- 
 stantly at the Taou Shan Kwan, drew up in the 
 deliberate way in which they did this lease, it 
 seems extraordinary they should go and speak 
 of a house with so many rooms with a piece of 
 vacant ground, when in reality they say that 
 piece of ground did not exist. It was only 
 natural on Mr. Wolfe's part to believe they in- 
 tended to rent to him the piece of vacant ground 
 which was and is attached to the house. It is a 
 very extraordinary thing indeed if these directors 
 actually go and describe what is a house having 
 no vacant ground as a house with a vacant 
 piece of ground ; if it had been their intention to 
 have let a house attached to which there was no 
 vacant ground they would not have said there 
 was any. Under the circumstances it does not 
 seem to me so very extraordinary that Mr. Wolfe 
 should have taken that to be the land and have 
 used it accordingly. I say they have to prove as 
 an affirmative fact that that is not the piece of 
 ground and they have not proved affirmatively 
 what is the piece. We, having acted in perfectly 
 good faith, are not to be held blameable for it. 
 They tell us they have let us a piece of vacant 
 ground. We imagine we have got it and use it, and 
 if your Lordship tells us that is not the piece we 
 give it up willingly. We imagined this was it, 
 and we certainly would not have entered into 
 this agreement, which we believed was to include 
 everything within the walls, if we had known it 
 was not. 
 
 His Lordship — There is nothing in the least 
 to show that you were to have everything within 
 the walls. 
 
 Mr. Hannen — No ; there is not ; but what Mr. 
 Wolfe understood was that he was to have one 
 single document representing the whole of the 
 ground within the walls. It does not seem an 
 improbable story, at least, that when he is in 
 occupation of this property and a fresh lease is 
 to be made, it should be intended to include all 
 he was in possession of, and it has never been 
 disputed for ten years. He has been in posses- 
 sion for ten years without any dispute, and it 
 has never been disputed until other outside ques- 
 tions were imported into it. 
 
 Mr. Hayllar — Until you attempted to build on 
 it, which was the only way in which it could 
 come into dispute. 
 
 Mr. Hannen — But they have not said they did 
 not know it was used before. Are these gentle- 
 men who come to the temple twice a month to be 
 supposed not to l<now we were in occupation? 
 For ten years you don't say a word against it 
 until something quite different from the present 
 point I am upon — whether it was leased at all or 
 
THE WU SHIH SHAN CASE. 
 
 59 
 
 not — arises. For ten years you g-o on taking our 
 rent without saying we are occupying land we 
 ought not to. 
 
 His Lordship — You were on the land. 
 
 Mr. Hayllar — They were squatters on Govern- 
 ment ground. 
 
 His Lordship — They were enclosed squattei's. 
 
 Mr. H muen — And the land had been enclosed 
 for twenty years. 
 
 Mr. Hayllar — Yes, according to the cook's 
 friend. 
 
 Mr. Hannen — We have proved distinctly it 
 has been enclosed since 1862, the time of Mi*. 
 Wolfe's arrival. He swears it was enclosed 
 then, and my learned friend admitted it. Well 
 then, according to Mr. Wolfe's account and 
 according to the mason's account, that ground 
 has been enclosed, for twenty years according to 
 the mason, since 1862 according to Mr. Wolfe, 
 and we have been in occupation for ten years and 
 more without any objection having been made. 
 Now, of course, in what I have to say with re- 
 gard to the buildings upon that piece of land I 
 assume, as I believe it to be true and as I believe 
 my case has made it out to be, that that land was 
 leased to us by the agreement of 1867. With 
 regard to that, it is for my learned friend to 
 make out that building upon a piece of ground uf 
 that sort is not allowed, first of all, and as he has 
 even spoken of taking advantage of the forfeiture 
 if he proved it to be theirs, he has also to prove 
 that building upon a piece of land of this sort 
 works a forfeiture. Now, I must say a word as 
 to how it came to be built upon. It was built 
 upon because they thought they had a right, 
 and Mr. Sinclair thought so at the time, or at 
 any rate, that he did not think to the contrary 
 is shown by his note in which he withdraws his 
 objection. He thinks it inexpedient, but at that 
 time there was a bond fide belief that they were 
 entitled to build. That being s i, supposing us 
 not to have a right, no penalty ought to be in- 
 flicted on us for doing what we believed we had 
 a right to do, and what was done in a perfectly 
 bond fide s-ph-it. I say that, supposing tliere is 
 a custom of forfeiture. But my learned friend 
 has to prove that, and he has not done so. The 
 only evidence he has on the subjec<- was 
 (that he asked the ex-Prefect Ting whe- 
 ther, under an agreement of this kind, a build- 
 ing could be placed on ground like this. 
 That may be, but it does not follow that it 
 works a forfeiture. Now there is another reason 
 why, even supposing it to be an unauthorised 
 and unlawful act, it ought not to work a for- 
 feiture, and that is this very broad one. a prin- 
 ciple which permeates every law and which is a 
 law of reason as well as the law of England, and 
 that is that when in an agreement of this kind 
 one thing is expressed then what is not ex- 
 
 pressed is understood. Here it says tliat the 
 rent is not to get into arrears ; should this 
 happen the directors may resume "^^^ let the 
 place to somebody else. Under these circum- 
 stances, they having expressed a ground of for- 
 feiture, that is the only one which can ho. allowed 
 to work ; the expression of that shows it was the 
 only ground of forfeiture and no other ground 
 can be imported into it. With regard to the 
 construction we put upon this document, wo 
 must say now, although I think under the peti- 
 tion we ought not to be called upon to do so, 
 yet we have to say what construction we put 
 upon that lease. We say it is a lease to us for 
 so long as we j)ay i-eut. 
 
 His Lordship — That is, assuming the lease to 
 be valid ? 
 
 Mr. Hannen — Yes. 
 
 His Lordship — You say that is expressed ? 
 
 Mr. Hannen — Yes. If you read that docu- 
 ment by the light of common sense and nothing 
 else you come to the conclusion it is a lease to 
 us for so long as we pay rent. 
 
 H is Lordship — You would not call it a lease 
 in perpetuity ? 
 
 Mr. Hannen — No. 
 
 His Lordship — Because you might throw it up. 
 
 j\ir. Hannen — We might throw it up. And 
 there is nothing repugnant to reason in such a 
 lease, and nothing repugnant to the law of China 
 so far as it has been shown to us, or even 
 in a perpetual lease, because they have made 
 perpetual leases of the ground which has beea 
 transferred to foreigners throughout the coun- 
 try. But this perpetual lease has beeu invented 
 by them, and therefore it is only reasonable to 
 suppose it is not contrary to their views of what 
 may be taken. If then a perpetual lease can be 
 taken, a fortiori, a lease for so long as a pei'son 
 pays rent cannot be repugnant. Now, I say the 
 only construction of this document is, as I put 
 it, a lease for so long as we pay rent. My learned 
 friend, on the other hand, puts a perfectly forced 
 construction upon it, and bases that upon what 
 he says is the law of China. The evidence of 
 that, my Lord, I venture to submit is very weak. 
 It is the evidence given by two pei'sons, Ting, 
 the former Prefect, and the present Haukwau 
 Magistrate. These two gentlemen contradictedl 
 each other flatly as to the law and custom 
 with regard to leases. The one said that a lea^d 
 between landlord and tenant was drawn up ia 
 duplicate, it was signed by both of them, and 
 each held a copy. The other said, what is tha 
 fact, that the lease is drawn up by the tenant 
 and handed to the landlord, and that is no doubt 
 because prima /acie the person in possession o£ 
 the land is the person who would be taken to b» 
 the owner, and when that is not the case lie 
 hands a document to the landlord as proof o^ 
 
60 
 
 THE WU SHIH SHAN CASE- 
 
 this. That, I believe, is the correct form of the 
 lease, but, whatever it is, these two geutleraen 
 directly coutradicted themselves. Therefore I 
 say it is not very strong evidence as to what the 
 law of the place is, when the only witnesses called 
 to prove it contradict each other flatly. Now, 
 there is more than that. Both these gentle- 
 men admit this is a case entirely beyond their 
 comprehension and ordinai-y practice. Their 
 evidence is that before foreigners came to China 
 temple lauds were never let at all ; therefore it 
 is impossible they should know the form of 
 agreement when temple lands are let. They say 
 the ordinary custom is that a landloi'd can re- 
 sume either to live in the house himself or let it 
 to his son. But such cases as that do nqt apply 
 to temple lands and the circumstances of the 
 present case, and therefore they cannot be made 
 here to force a construction of the document 
 which tlie document on its face does not bear. 
 It is perfectly distinct on the face of it what it 
 means, and if you import into it what is the 
 custom with regard to shops and ordinai'y houses, 
 you get into what my friend called shifting 
 sands and have no solid ground. We want 
 to follow simply the deed and not to have 
 imported any custom which is not certain, 
 as shown by the persons called to prove it. We 
 want simply to go upon the c'eed according to 
 what it means on the face of it. But there is 
 always this contention underlying my friend's 
 ai'gument, that the main reason why we should 
 not interpret this to be a lease of this kind is 
 that the directors could not make such a lease 
 and therefore could not intend to make it. We 
 have had no direct evidence as to that, but my 
 learned friend entered into an exceedingly in- 
 teresting description of what these societies were, 
 in order to prove it was not likely they would be 
 able to let tem le lands. But what they are and 
 what they profess to do has nothing to do with the 
 matter. They are societies whose directors as- 
 sumed to deal with theselands and whom vre assume 
 had the right to do so, and there js no intrinsic rea- 
 son why. because a society occupies itself with 
 the supidyinq- of lamps and incense to the temple, 
 it should not in common with others let the land. 
 The diroctor.s may well be the directors of an as- 
 sociation which nominally does this, but which 
 really, in common with the others, has the man- 
 agement of these lands. They say they are 
 called together, and meet, and make arrange- 
 ments, and so on, and why should we believe, 
 merely on ray learned friend's expose of the na- 
 ture of these societies, that they have not this 
 power? They tell us they did draw this lease up 
 in solemn form, and then my learned friend wants 
 to make us believe it was to ma e a lease 
 which might be upset at the end of three 
 months, and which by the evidence of the 
 
 Haukwan Magistrate, would terminate without 
 any warning. By his evidence, if the landlord 
 refuses to receive the rent, out the tenant 
 must go without any warning whatever. They 
 took such care to frame it in the way they did, 
 and all this in order to draw up a lease which 
 was only to have effect for thi'ee mouths! I ven- 
 ture to think that is preposterou.'^, and that they 
 intended it to have a very much longer effect 
 than three months, and that in fact it was to give 
 a tenancy which did last undisputed for ten years 
 and was to last as long as the rent was paid. 
 My learned friend's couteution is that during the 
 whole of that time the directors, and people, and 
 everyone, were opposed to the residence of the 
 missionaries there. 
 
 His Lordship — And they gave you a lease in 
 .1866 ? 
 
 Mr. Hannen — Yes. My learned friend says it 
 was merely to give us a licence, but they allowed 
 us to reside for ten years under this licence 
 without once attempting to eject us under what 
 everybody knows to be a custom, although all the 
 time they were grumbling at our residence. 
 The agreement of 1867 says " On the other hand, 
 if the rent does not get into arrears the place 
 may not be let to any one else. Both parties 
 being of the same mind neither of them can 
 withdi'aw." What, then, is the meaning of neither 
 of them being able to withdraw, if one party can 
 withdraw at the end ot three months; I don't 
 understand. My learned friend's contention is 
 that the lessors can withdraw at the end of three 
 months and leave the lessees to scramble out of 
 the place as quickly as they can. These seem to 
 me to be very important words to get over. 
 Your Loi'dship will also observe that in the 
 agreement of 18- •6, towards the end, it says 
 " At the expiration of the said term, if 
 before the departure of the tenants for their 
 native countx'y, China should require the said 
 ground for her own use, one month's previous 
 notice to that effect will be given to the tenants 
 who will then give up possession of it without 
 the least hindrance." My contention is that when 
 it is intended by the landlord to resume posses- 
 sion without the consent of the tenant these are 
 the sort of words tbat are used. " If China 
 should require the said ground for her own use ; '*j 
 it is paraphrasing what would be said if it was 
 an ordinary landlord, " If the landlord should 
 require tlie said land," etc. Supposing it to be 
 the law of Chi a that a landlord can at any 
 time eject a tenant at the end of three months, 
 or one month as the District Magistrate said, 
 what would be the object of putting in an 
 express provision in this deed that if China 
 should require the land she can take it by 
 giving one month's notice. If my learned 
 friend's contention is correct, China would 
 
THE WU sum SHAN CASE. 
 
 Gl 
 
 be able to resume without this clause. But that 
 is the sort of deed drawu up between Chinese 
 when they intend the hindlord shall be entitled 
 to resume, and if they had intended that here, 
 in the leas^i of 1867, they would have put in an 
 express clan.se that au the end of three months 
 the landlord mi^ht resume for his own use. That 
 not being so, the landlord cannot resume. 
 
 His Lordship — You see, with refi)rence to the 
 a.areement of 1866, you are the tenant for twenty 
 yi^'irs; then you may be turned out at th.e ex- 
 ^•ii-vfcion of tha twenty years upon one month's 
 notice,- that is to say. if they g'ive you one month's 
 notice at the end of nineteen years and eleven 
 months you have to go at the end of the twenty 
 years. 
 
 Mr. Hannen — It contemplates something else. 
 It says " at the expiration of the said term, if 
 before the departure of the tenants for their 
 native country, China should require the ground 
 for her own use, one month's previous notice to 
 that effect will be given to the tenants who will 
 then give up possession of it without the least 
 bindranci)" There they expressly put in the 
 clause wiiich is the general way of doing it in 
 ordinary leases between Chinese. Reading these 
 two documents, and reading the one which more 
 nearly corresponds to the documents between 
 Chinese, I say there is a deed having this clause 
 in, and if it is the law that they can do it without 
 why should they put it in ? And I draw 
 from that the inference that it should be put in. 
 if it is intended the landlord should resume. 
 
 Mr. Hayllar — T..ere is the strongest evidence 
 that agreements i>i' terms of years are unknown 
 in China, they are only given for the benefit of 
 foreigners. 
 
 Mr. HaTiueu — It is also to be observed, with 
 regard to the point I was mentioning just now, 
 that although the authorities and people have 
 always been restive imder the residence of the 
 missionaries there, yet they did not for ten years 
 try the proce lure of giving notice or refusing- 
 the rent, but we have it in evidence from Mr. 
 Sinclair that in oi'der to get rid of the mis 
 sionaries from that place they offered a vei-y 
 large and handsome compensation. Now, is it 
 to be belie ve^l that if they could have got rid 
 of them by on-; stroke of the pen they would give 
 this compensation ? If they had known this 
 was the law would they not there and then have 
 given the notice? 
 
 His Lordship —I think, from my present ex- 
 perience, they would have been vei*y glad to have 
 got rid of ill these proceedings. 
 
 Mr. 11 ayllar — 'My lord, rather than have had 
 this suit China would have paid ^50,000. 
 
 Mr. Hannen — That is hai-dly a matter of evi- 
 dence. Now, my lord, almost the last thing 
 I wish to point out is that according to their 
 
 own view of the matter, although the plaintiffs 
 could resume, they could not, according to the 
 strict words of this agreement, let the place to 
 any body else. Now, as to that, how is your 
 Lordship and this court going to bind the 
 plaintiffs. They may, the moment they have 
 got rid of us, let it to somebody else, and your 
 Lordship will have no control over them whatever. 
 I think a court of equitj^ will be very slow to 
 make a decree over which it has no control so 
 far as one of the parties is concerned. 
 
 Mr. Hayllar — Well, my Lord, I will gi' e abend 
 with the highest possible penalty and the defen- 
 dant can sue upon it. 
 
 Mr. Hannen — \ly learned friend lias taught 
 me theold style of pleading has not gone out so 
 much as I hoped i' had. I thought the time of 
 interrupting counsel and bullying witnesses had 
 gone by. 
 
 Mr. Hayllar — Did I bully witnesses ? 
 
 Mr. Hannen, in reply, referred to Mr. Hayllar "s 
 cross-examination of the defendant. He then, 
 addres.siug the court, said he thought he had 
 gone through the whole of the case so far as it 
 was necessary. 
 
 His Lordship — Have you gone through the 
 whole of the law ? 
 
 Mr. Hannen — I think 1 have. 
 
 His Lordship — There is one point I think myself 
 bound to call your attention to. Mr. Hayllar's 
 argument is, and he put it in the very front, that 
 the lease is void. 
 
 Mr. Hannen— But he has not proved that. 
 He says the lease is void on the ground that the 
 directors had no right to make it. 
 
 His Lordship — No, that there was no com- 
 mencement. 
 
 Mr. Hannen — That the directors had no right 
 to make it. 
 
 His Lordship — No ; assuming they had a per- 
 fectly Vi'.Iid title, assuming this was a lease of 
 land under the Duke of Davoushire, the lease is 
 void because no commencement is stated in the 
 lea.se. Then again comes in the question, if the 
 lease is void, wh?^t then ? It is out of the way. 
 I don't think you can overlook the point, because 
 it is a very important one. I have not had an 
 opportunity of looking into the cases referred to 
 in support of Mr. Havllar's position, namely, 
 that the commencement of a lease as well as the 
 termination must be asserted. Now, here Mr. 
 Hayllar's point is that there is no commencement. 
 Suppose you did not pay rent and action was 
 brought, your answer would be, when does the 
 rent commence ? Is that not what you say ? 
 
 Mr. Hayllar— Yes. 
 
 Mr. Haijnen — That would be no answer. 
 
 His Lordship — Certainly it would be an 
 answer. Suppose you had not entered into 
 possession ? 
 
62 
 
 THE WUiSHIH SHAN CASE. 
 
 ^ Mr. Hannen — But we had entered into posses- 
 ;sion, and that makes all the difference, my lord. 
 
 His Lordship — The question is, whether it 
 does make any difference. 
 
 Mr. Hannen — According to English law I can- 
 saot pretend this lease would be valid. 
 
 His Lordship — You cannot say it, but it is a 
 point I must consider. You see we have got to 
 look to English law and we have got to look to 
 Chinese law, but supposing I feel myself com- 
 pelled on the very threshold of the case to decide 
 thispoiutintheplaiutiffs'favourlneed not go any 
 further. Mr. Hayllar might have had books here 
 which would have settled the point at once. 
 If he had it would have saved a good deal of 
 trouble. It may be these cases are conclusive 
 on the point. There is no doubt you are in 
 possession, and therefore it is I should like to see 
 ^hat these cases say. Well, then there is this, 
 supposing the lease is void then there is no lease 
 whatever and you would come under your former 
 documents. Would that not be so ? 
 
 Mr. Hayllar — No. my lord, that would not be 
 •so ; we have got them. 
 
 His Lordship — Have you surrendered your 
 former documents ? 
 
 Mr. Hannen — Yes ; I have never contended 
 >that. 
 
 His Lordship — But you have not considered 
 that point, or not advanced it in argument. 
 
 Mr. Hannen — *o; what I say is, fii-st of all. 
 with regard to this lease, we have parted with 
 the documents we held before. That is a fact 
 we cannot get over. 
 
 His Lordship — ave you made what in Eng- 
 lish law would be considered a surrender of your 
 previous lease ? 
 
 Mr. Hannen — Yes, we have. My Lord, this is 
 the very reason why at the very threshold I ob- 
 jected to going into these questions. I said at 
 the beginning that my learned friend ought to 
 Lave alleged what he was going to say about 
 these two leases, that it was void for a particular 
 reason, whereas I come down here — we are en- 
 tirely away from our books — and I don't know 
 what he is going to contend. 
 
 His Lordship — He has stated at the bar. 
 
 Mr. Hannen — But I have not had time to send 
 to Shanghai for my books. 
 
 His Lordship — I shall not give judgment at 
 the conclu.sion of the argument ; I must look at 
 the authorities. 
 
 Mr. Hannen — I am saying this partly to 
 strengthen my previous objection and also to 
 excuse myself for not assisting your Lordship 
 so much as I otherwise should have been able 
 to do. 
 
 His Lordship — Well, that is a point I must 
 
 look to, and as to what would be the effect of 
 
 I ease void I have nothing to do with. I shall 
 
 consider myself bound to consider what Mr, 
 Hayllar stated, namely, that the comraencemeni 
 of a lease must be asserted as well as the termi- 
 nation, but as matters stand we have only to d» 
 with the commencement ; there is no commence- 
 ment stated. 
 
 Mr. Hannen — It is an agreement made on a 
 particular day to do a particular thing. 
 
 His Lordship — No, there is no date, it is not 
 stated when the term is to commence. 
 
 Mr. Hannen — It is true it is not dated on a 
 day, but it dated in the month of August. 
 
 His Lordship — But there is no statement in 
 the body of the lease of the term which is to be 
 the commencement of the lease. As I said to you, 
 suppose these Chinese people had tried to fasten 
 you with rent, suppose you had not taken pos- 
 session and they had gone to Mr. Sinclair and 
 filed a petition in his Court for the payment of the 
 rent, where would they have been ? Why, the 
 whole thing would have been nowhere. 
 
 Mr. Hannen — The whole aspect of the matter 
 is changed by entry. 
 
 His Lordship — Well, that is your argument. 
 
 Mr. annen — Yes. 
 
 His Lordship — Of course, but T mean to say 
 I cannot decid^i <he point merely upon argument. 
 It is a poiat I have not lost sight of and there- 
 fore I thought it as well to draw your attentioa 
 to it before you sat down. 
 
 Mr. Hannen — My argument is that in a lease 
 of real property of this kind the strict rules of 
 English law cannot be imported, and 1 believe it 
 is my friend's case, too. The question arose 
 sorae time ago and the opinion of the law officers 
 of ihe Crown was asked. That was published in 
 the Hongkong Govermu ,d Gazette, and it is the 
 old rule that the lex loi:', reisWje prevails; I mean 
 that tho English laws as to real property ought 
 not to be imported into questions of real property 
 here. — The learned counsel then read the opinion 
 referred to, published in the Hongkong Govern- 
 ment Gazette in the year 185'i. It was to the 
 effect that such cases ought to be decided accord- 
 ing to the lex loci where it could be ascertained, 
 and where it could not, according to the principles 
 of natural justice. 
 
 His Lordship — How do you apply thi« to the 
 present case? I am merely drawing your atten- 
 tion to Mr. Hayllsr's argument. Do you say this 
 opinion answers that ? 
 
 Mr. Hannen — I think it applies. There is 
 nothing extraordinary or ambiguous about this 
 lease in reality. Here is a document dated and 
 drawn up, etc. I say that if the rule of common 
 justice is applied it must mean what I say. 
 
 His Lordship — Well, lat us apply the rule of 
 common justice you are not obliged to enter P 
 
 Mr. Hannen — Then I don't think I ought to 
 be made to pay rent. 
 
THE WU SHIH SHAN CASE. 
 
 63 
 
 His Lordship — But bore is yonr contract ; if it 
 had said you entered on the 1st August you 
 would bo bound ? 
 
 Mr. Hanuen — Why, then of course we would 
 be bound to pay it. 
 
 His Lordship — Well, thfni. suppose under this 
 agreement you had not entered and the plaintiffs 
 had brought an action against you, would you 
 have paid the rent in court ? 
 
 Mr. Hayllar — My Lord, why should I take into 
 •onsideration in a case 
 
 HiS Lordship — Oh, if you decline to answer it 
 there is an end of it. It is a very common tiling 
 to put cases to counsel in argument. Well, now, 
 I say, how would the plaintilfs here have been 
 able to fix upon any time frou) which the payment 
 of I'ent was to commence? If it had stated the 
 1st August you said you would have been liable. 
 How would you say the Court ought to determine 
 the rent if you did not enter into possession ? 
 
 Mr. Hanuen — The date itself not being* men- 
 tioned, if they could fix the date by internal evi- 
 dence they would then be entitled to rent accord- 
 ing Lo what the law officers of the Crown call the 
 common rules of justice. 
 
 His Lordship — They miglit be able to show 
 alieiide, by something dehors the agreement, from 
 what term. But the case I am putting is not 
 entering into possession, and also what Mr. 
 Hayllar was saying the other day about the 
 necessity of having a commencement stated. 
 
 Mr. liannen — Well, that is what I say is one 
 of the rules that was intended to be excluded by 
 the law officers of the Crown. 
 
 His Lordship — But have you shown me that 
 in anything I say there is anything that runs 
 counter to the law of hina ? 
 
 Mr. Hannen — I say the law of China has not 
 been ascertained, and therefoi'e the rules of com- 
 mon justice must be applied. 
 
 His Liordship — And that where the law of 
 England is express it is to be tlirown over and 
 the rules of common justice applial, which vary 
 according to the measure of the foot of the man 
 who happens to preside in Court. 
 
 Mr. Hannen — I must again apologise for not 
 having been able to render more assistance to 
 your Lordship on this point. I have looked 
 through everything that has come within my 
 ken and have laid all the argument before you I 
 have been able to do. I am very sorry, for your 
 Lordship and my client, that I have not been able 
 to do more, but your Lordship understands my 
 position. 
 
 His Lordship — Certainly. 
 
 The Court adjoui-ne I uii^^il the following day. 
 
 (Ninth Day, May 10th.) 
 Mr. Hannen said he found his clients, on look- 
 ing at their documents, had discovered the old 
 
 lease of 1850. 
 
 had been given 
 
 He was under the impression it 
 up, but it had not, and there it 
 was. 
 
 Mr. Hayllar said the Chinese author? lies had 
 had the 1 ase in question returned to them in an 
 official form by Mr. Sinclair, as he was able to 
 prove. 
 
 Mr. Hannen said there might have been more 
 than one copy. 
 
 After some discussion Mr. Hayllar consented 
 to the document being received in evidence 
 qunnhmi valeat. 
 
 His Lordship said that in this case he could 
 not pronounce any opinion as to the effect of the 
 old document ; he had merely suggested to Mr. 
 Hannen that in case the lease of 1867 were in- 
 valid, the old one might revive. 
 
 Mr. Ha nen referred his Lordship to several 
 cases bearing upon points at issue in the present 
 case, and also nut in evidence receipts for rent 
 given to the plaintiffs, signed by the Board <f 
 Trade, the last of which was d^ted the Pth 
 October and was for the quarter ending 31st De- 
 cember, 1878. 
 
 Mr. Hayllar then replied. He said — May it 
 please you my Lord, there are three or four points 
 to which I would just call your Lordship's atten- 
 tion to begin with. The first is, why did my 
 learned friend, with that opinion before him, 
 which I un erstand he piit in last night, try 
 to keep out my foreign law, my evidence on 
 Chinese law ? 
 
 Mr. Hannen — On the ground which I stated, 
 that it ought to have been alleged in the petition. 
 
 His Lordship — I don't think Mr. Hannen w nt 
 so far as to say no evidence ought to be received, 
 but he said you have not alleged and therefore 
 you ought not to prove. 
 
 Mr. Hayllar — Yes, that is so, but I am goin g 
 to found one or two remarks upon it. Now, my 
 Lord, upon that thei'e is nothing' more clear, I 
 apprehend, in the English law than that foreign 
 law, the lex loci rei sitce must govern this case. 
 Your Lordship asked me yesterday to bring in 
 Forsyth's Opinions, and here is a perfect cloud o f 
 authorities.' The learned counsel quoted a pas- 
 sage from Forsyth, and proceeded — that being 
 so, the case, I put it, really lies in a complete 
 nutshell. If I had h: d the remote.st conception 
 of the course which my learned frien ' was g'oing 
 to take, if I had had the slig'htest idea that my 
 evidence on Chinpse law, which I tendered to 
 your Lordship and which you will find — and 
 this is a point I could not offer evidence upon, 
 but it is a matter of common knowledge— comes 
 from the only source from which such evidence 
 can be obtained, namely, those who administer 
 the law in China— if I had known this evidence 
 was to remain uncontradicted in any way, I would 
 not have troubled your Lordship at such length. 
 
64 
 
 THE WU SHIH SHAN CASE. 
 
 I shall have a word or two to say about custom, 
 But if my learned friend had no evidence to con- 
 tradict that, I cannot undoL^^tand why he is here. 
 
 His Lordship — Or why a special case could 
 not have been submitted to the court. 
 
 Mr. Hauuen— If they had chosen to do that 
 we might have agreed to it. 
 
 Mr. Hayllar— If I had had the slightest idea 
 of what the line taken by my learned friend was 
 going to be, I certainly should not have troubled 
 myself with what has been the main portion of 
 my case, namely, corroborative testimony. 
 Tour Lordship sees, my position was this — I had 
 expected, as it turns out wrongly, that my learned 
 friend would contend that .',he law and custom 
 were not in favour of that document, and I saw 
 a great many gentlemen here whom I thought 
 were going to give evidence on that point. 
 However, they were not called and I took an 
 immense amount of -^Ki'is, and I took up a great 
 deal of your Lordship's time, in an attempt to 
 show, and Lthiuk to successfully show, that the 
 state of the law, as I alleged it to be, was in the 
 minds and knowledge of the parties when they 
 made that agreement of 1867. That it was in 
 the minds of the Chinese parties must now be 
 obvious to everyone, for this i'eason,that as we had 
 tak<n an infinity of pains to prevent this gentle- 
 man getting by direct means a permanent location 
 on this site, we were certainly not by a side wind 
 going to give him what we had refused to give 
 Lim directly, and more especially so as we were 
 at the time particularly incensed with him. That 
 is so far as the Chinese are concerned. What 
 Mr. Wolfe's knowledge of the law of China was 
 en that particular point of course I don'c know, 
 "but he was a gentleman upon his own showing 
 very active in seeking and getting property, and 
 "he had a Chinese teacher by him, and it is not 
 likely he app'roached this important subject in 
 complete innocence of the law bearing upon it. 
 I don't know that the two former documents, 
 the one of 1850 and the one of 1855, throw much 
 light upon his acts, because Mr. Wolfe must 
 have known enough of the position of liis society 
 and of his I'elatio.'i with that society, and clearly 
 of his relations with those gentlemen whom Mr. 
 Hannen has alluded to in his speech as his pre- 
 decessors, to know perfectly well that documents 
 marie between the Chinese priest and Messrs. 
 Weiton and Fearnley would not enure to his 
 benefit, could not possibly do so by any means, 
 and that therefore he clearly held the property 
 under a yearly agreement. That is what Mr. 
 Wolfe must have known. But Mr. Wolfe had 
 received in the course of these transactions one 
 or two lessons on the law. He had found in the 
 first instance, according to his own statement, 
 that it was impossible to buy the Blind Man's 
 Temple out and out. He had found that it was 
 
 impossible tor him to get the property he held, 
 which he attempted to purchase, possibly, as ho 
 says, for - .1,500. certainly, as I say, for §500. 
 He had then, as we say, gone a circuitous course 
 still to get hold of the property in a sort of per- 
 manent way. He puts it tliat the vital interest 
 of getting back $500 led him to the situation in 
 which he made this contract called the promis- 
 sory note. I put it on the evidence of the priest 
 that he did it deliberately, and I think I shall 
 show your Lordship presently the completest 
 proof that the story of the priest is the real 
 vruth of the transaction. But Mr. Wolfe had 
 found out that that did not succeed, that in 
 opint of fact it raised a tremendous storm, 
 and he then received from the directors of the 
 temple a document headed in the English lan- 
 guage "agreement of rent," which, as your 
 Lordship recollects, is not recorded at the Con- 
 sulate, and vv^as not, from its very nature, in- 
 tended to have a permanent effect. He received 
 that document and under the circumstances he 
 must have drawn the innvitable conclusion that 
 it gave him nothing more than a tenancy from 
 year to year. Now, Mr. Wolfe is a gentleman 
 who, according to his own admission, goes back- 
 wards and forwards to the Consulate pretty fre- 
 quent y. We know of a despatch which has been 
 referred to by Mr. Consul Si nclair, v.- 1 : ' • h ray friend 
 called Mr. Sinclair's evidence about, and we know 
 what that despatch says about an annual tenancy, 
 and how could Mr. Carroll when he wrote it know 
 anything about this matter except from Mr. 
 Wolfe ? How comes Mr. Consul Carroll to refer 
 to an annual tenancy in his despatch ? My Lord, 
 it could only have been thoug'h Mr. Wolfe being 
 very considerably alarmed at wha had happened 
 to the priest —whether the pi'iest had been taken 
 into custody for the S-tOO or ^>500 the alarm 
 would be the same. He must have felt his posi- 
 tion was pretty perilous, and he must have asked 
 the assistance of the Consul about it. There- 
 fore, certainly at that period what Mr. Wolfe 
 was trying to g-et in a legitimate way was an 
 annual tenancy, and when after that Le entered 
 into that transaction about the promissory note, 
 that slippery transaction as I call it. he must 
 have known perfectly well that it could only be 
 carried through by a trick and that all he could 
 hope to obtain from tlie Chinese authorities 
 through the proper channel was a tenancy from 
 year to year. Now, my Lord, these are my two 
 pieces of corroborative testimony, that the Chi- 
 nese would nei'or have given indirectly what 
 they would no' give directly, what they strug- 
 gled against, and that Mr. Wolfe himself 
 mudt have acted on that understanding. My 
 learned friend shut out all evidence of custom 
 by his objections. I shonl 1 have been glad to 
 have tried the case, so far as this went, on a 
 
THE WU SHIH SHAN CASE. 
 
 much more open basis tban it at present stands 
 on. I should have been glad to liave called a 
 great many more witnesses ou the subject of the 
 custom, and I should have been very glad o£ any 
 evidence of Mr. Wolfe himself in contradiction if 
 it had been forthcominnr. I am not here, as I 
 have told your Lordship, in any way to snatch 
 an advautagft. I have treated this case with all 
 the candour and openness which I tbink its im- 
 portance demands. I have looked t!i rough all 
 the despatches which have been open to me and 
 I have tendei-ed them in evidence. My leai-ned 
 friend looked through the despatches as he him- 
 self says. He kept my despatches out. Now, 
 my lord, what is the inference to be drawn from 
 that ? What inference could common sense 
 draw except that my learned friend is afraid of 
 them ? 
 
 Mr. Hannen — As to the period for which there 
 are no records in English in the Consulate these 
 remarks don't apply. 
 
 Mr. Havllar— There is not a word of evidence 
 that the Chinese dc^cuments themselves are not 
 there. My learned friend was at liberty to use 
 my translations, I gave them to him, he cannot 
 impugn their genuineness ; there they are, they 
 have been offered to the court, they have been kept 
 out by my learned friend. I thought documents 
 referring to a period over which memory cannot 
 be expected to extend with any great accuracy — 
 I thought ignorantly that they formed the best 
 kind of evidence. My learned friend has taught 
 me better. 
 
 His Lordship — Excuse me a moment, with 
 reference to that matter. Mr. Hannen, I in- 
 ferred from what you said yesterday that Mr. 
 Playfair's search had been in reference to the 
 Chinese documents as well. ,. 
 
 Mr. FTannen — That was one particular thing 
 which was suggested to me in the course of the 
 trial. 
 
 His Lordship — Your observation applies to 
 the Chinese documents ? 
 
 Mr. Hannen — It does ; Mr. Playfair searched. 
 
 Mr. Hayllar — But there are a great many 
 other despatches which my learned friend has 
 kept out, not only within that period but within 
 recent periods. I would have been very glad, 
 could I have done it, to have laid before your 
 Lordship all the despatches, because I think the 
 real truth of this case lies in the despatches. 
 Prom the peculiar way in which affairs with 
 reference to land are conducted, namely, through 
 the authorities, surely the best evidence of what 
 took place, if not the best evidence legally — I 
 mean the best evidence as a matter of accuracy 
 and genuineness, are the despatches. My learned 
 friend ha~! kept mine out, that is all that is to be 
 said. 
 
 His Lordship — Is there no record kept in the 
 Consulate here of leases in perpetuity? 
 Mr. ayllar Yes. 
 Mr. Sinclair — There is a register. 
 Mr. Hannen — Is not this agreement of 1867 
 registered ? 
 Mr. Sinclair — Not in the land register. 
 Mr. Hannen — But it is put somewhere else? 
 Mr. JSinclair — It is in an iron chest. 
 Mr. Hayllar — There is no registration fee 
 paid on it ? 
 
 Mr. Sinclair — No. 
 
 His Lordship — What is this register ? 
 Mr. Sinclair — They are registered in a book 
 and numbered. There is the name of the lessor, 
 the name of the lessee, and sometimes the terms. 
 Agreements of rent are not registered. 
 
 Mr. Hannen — But this agreement has a 
 number and is there in an envelope and a fee 
 has been paid for whatever was done. 
 Ml'. Sinclair — No fee has been paid. 
 Mr. Hannen — Not a fee of one dollar ? 
 Mr. Sinclair -I think not. 
 Mr. Hannen — My client says he paid SI for 
 what he thought was the registration, and that 
 the document was numbered. 
 
 Mr. Sinclair — The number is very likely its 
 number among the documents deposited ; every 
 document deposited receives a number and is put 
 into an iron chest. 
 
 His Lordship — I am asking Mr. Sinclair now 
 — you say this document has not been registered? 
 Mr. Sinclair — No, not in the land register. 
 Mr. Hajllar — All I say about this is, that 
 considering the knowledge of the Chinese on 
 the subject, and the knowledge which I say was 
 with Mr. Wolfe on the subject, the fact that the 
 document v/as not recorded shows that it had no 
 character of permanence about it and that that 
 was a fact which was perfectly well understood 
 by all the parties. My lord, I only use that as 
 corroborative testimony, because I argue that, 
 uncontradicted, your Lordship has no alternative 
 standing as it does, but to accept the evidence 
 of these high officers of the Government of 
 China that I called before your Lordship as 
 the correct exposition of the law. My learned 
 friend pointed out one or two apparent dis- 
 crepancies between the evidence of the old 
 gentleman, the Prefect, who has been for so 
 many years here, and the present Kaul<wan 
 District Magistrate, who is at present adminis- 
 tering the law in a very large district here, the 
 discrepancy being as to whether a Chinese lease 
 was made out in dnplicate or not. I believe 
 it is not, generally. I believe, the more 
 correct opinion was expressed by the Haukwan 
 District agistrate. But that is a difference 
 really not in the slightest degree affecting 
 their credibility ou a point of law which 
 
66 
 
 THE WU SHIH SHAN CASE. 
 
 they were prepared to give evidence upon and 
 which they had themselves deliberately looked up. 
 If a lawyer, or doctor, or any body else, is taken 
 into the witness box to give scientific evidence, 
 it is a perfectly different thing from his being 
 taken into the box to give evidence of a fact, 
 because he would have prepared himself on the 
 subject and looked up documents relating to it, 
 and I have here sheaves of leases which have been 
 looked up for me from all parts between Chinese 
 themselves and between Chinese and foreigners, 
 and I say the evidence of these gentlemen who 
 are brought here, unless they are perjured men, 
 is conclusive on the subject. And are they per- 
 jured men ? Surely my learned friend could have 
 brought something, some tittle, some jot of testi- 
 mony fi'om the various friends he has about him 
 to contradict this evidence, if it could be contra- 
 dicted, and yet it stands on your Lordship's notes 
 absolutely uncontradicted. Now, who are these 
 gentlemen ? One of them has attained a very 
 high rank indeed in the government service ; he 
 was brought down here from Peking about that 
 wall business and abo it other business which I 
 did not know might not form matters in dispute. 
 He happened to have been the Prefect here 
 during that critical period when all this went on 
 about the negotiations for the wall and the lease 
 of 1 867. He was here at that time. I placed him 
 in the box asking him such questions as were 
 necessary for my case. My learned friend did 
 not cross-examine him on these points. How- 
 ever, the matter did not become of much im- 
 portance, because 1 used him chiefly as an ex- 
 pert, a man whose duty it is to adiminister the 
 law, and who has had forty years' experience of 
 it. Now it is not an abstruse point of law, it is 
 not one on which there can be much difference 
 of opinion. It is a common point, and I would 
 ask your Lordship to enquire either from foreign 
 oflBcials or Chinese whether these persons 
 are not the right persons for me to h ive placed 
 in the box. Of course your Lordship has not 
 been in China so long as to know all the little 
 ins and outs of these things, nor do many 
 foreigners know them, but the position of 
 these two men is too high for them to come 
 forward and risk it— it would be known every- 
 where that they had told one thing in this 
 court and wore administering another sort 
 of law in their own courts if what they have 
 stated was not correct. My learned friend's 
 clients, who have not a very little position in the 
 city, could have found all that out, but there the 
 evidence stands on your Lordship's notes as the 
 exposition of th'i law of China on the subject, 
 and, as I shall show your Lordship, it jumps with 
 the real meaning of the document and with what 
 my learned friend has finally rested his case upon, 
 namely, natural justice. 
 
 Now, my Lord, leaving for a moment, that sub- 
 ject of foreign law, I am anxious to meet my 
 friend on that very ground of natural justice. 
 He says, where there is no law — I have shown 
 there is a law — where there is no law it is not 
 English law that is to be applied, that being a 
 thing which was brought out by your Lordship's 
 pushing home rather an important question 
 about English law ; my learned friend to a 
 certain extent, as it wei-e, scouted English law, 
 and then puts in an opinion that if it is not to 
 be tried by Chinese law, then it must be tried 
 according to the principles of natural justice. 
 
 I have laid before your Lordship the birth, 
 growth, and coming to maturity of what is 
 known in China as a missionary ri t. I have 
 shown your Lordship the steps by which they come 
 to their full growth, and it is an illustration^of the 
 patient, curious character of the people among 
 who u we are, who watch while you think they 
 are notwatching.who remember thingswhich you 
 think have passed out oftheir memory as not being 
 of the slightest importance, but who pile up their 
 injuries one upon another, it may befx-om father to 
 son, at last to break out at some final piece of 
 aggravation. Now, you see my lord, this port 
 was only opened in the year 1843. Missionaries 
 were not exactly in the contemplation of the Go- 
 vernment of England or of the Government of 
 China when this port was opened. In the second 
 pai'agraph of the treaty of Nanking, which opened 
 this port, the words ai'e used " His Majesty the 
 Emperor of China agrees that British subjects, 
 with their families and establishments, shall be 
 allowed to reside, for the purpose of carrying on 
 their mercantile pursuits, without molestation 
 or restraint, at the cities and towns of Canton, 
 Amoy, Foochow-fu, Ningpo, and bhanghai." 
 Now Foochow is a city of literates ; the literary- 
 element is universally said by all standard books,- 
 which your Lord.ship may consult on the subject, 
 to be very strong here, and for seven years after 
 the opening of the port appai'ently there was very 
 little ti'ade and foreigners were very little known. 
 
 His Lordship — It is, I suppose, the Athens of 
 China. 
 
 Mr. Hayllar — No, but it is a place full of 
 literary people who have made it their home. It 
 is a very old place. On the rocks at Wu-shih- 
 shan there are inscriptions twelve hundred years 
 old, in many languages, one being in Sanscrit. 
 The city is a place with a very strong literary 
 element in it, and before 1850, so far as 1 can 
 discover, the people knew nothing of thit parti- 
 cular product of civilisation, the Protestant 
 missionary. Before 1850, a gentleman or two, 
 Mr. Canting and Mr. Morrison, had been allowed 
 to reside in this temple. The history of these 
 things is this, when a new place is opened the 
 foreigners' eclectic tastes are scarcely suited by 
 
THE WU SHIH 8HAN CASE. 
 
 67 
 
 ordinary Chinese buildings and there is nothing 
 else for a foreigner to reside in exoept the 
 tetnijles. The temples are generally built in 
 Chinese cities in the finest, the airiest, and 
 the most beautiful positions. If your Lordship) 
 will go through any part of China you will see 
 that to be the case. They are very desirable 
 places, and the Chinese Go eminent, finding 
 strangers without dwellings, kindly place these 
 temples at their disposal, as they have recently 
 done at Wenchow. Now here we had had before 
 the missionaries came an admii'able experience 
 of a merchant and a Government official. The 
 Government official was Mr. Morrison, who had 
 come to live in one of our temples. He had 
 treated us with the most perfect candour and 
 fairness, he had not altered it except as we allowed 
 him to do it, and he had gone away. But in 1850 
 there wander into the city two gentlemen whose 
 calling", to the literates and to everybody else, is 
 more or less of a mystery — they don't know 
 much about them, but they know they are fo- 
 reigners; foreigners have obtained a good nam r 
 as quiet people, aud they are placed in a templo 
 in precisely the same way as previous foreigners. 
 That these foreigners were the avant couriers 
 of a string of other foi*eigners coming with like 
 objects could never have entered into the 
 minds of these literates. That their object 
 could be otherwise than mercantile, or having 
 a good deal of the mercantile element about it. 
 could never be known to the authorities, be- 
 cause they had only given permission by treaty 
 for people to come here for mercantile pursuits, 
 and the idea of their Temple being used as 
 it subsequently has been used for thirty years 
 came as a complete revelation to them. How 
 should they know anything about it ? The 
 priest of the temple, doubtless at the order — it 
 does not matter whether it is at the order, let us 
 say at the desire of the Chinese Government — 
 gives these two foreig-ners Welton and Jackson, 
 permission to dwell in two of their sacred build- 
 ings, one of which I believe is called the Five 
 Fairies' Temple. They kindly, and with that 
 exquisite courtesy which marks the Chinese man- 
 darin when he desires to be friendly, remove 
 the gods and give these people permission to use 
 this place as a residence (your Lordship sees by 
 the deed of 1850 there is nothing but residence 
 mentioned) and it could not have entered any- 
 body's mind that that was not all that 
 was wanted. They give them permission to 
 alter the inside of the premises to suit their con- 
 venience, a thing which they did not mind. Any 
 alteration to the inside oB the premises they were 
 at liberty to make, and then they might reside 
 there, possibly at their option. Well, thesegentle- 
 men did so, as far as I know, with the most com- 
 plete good faith. Others came, perhaps not so 
 
 wise in their generations, perhaps with university 
 education, and so on, but not altogether trained 
 fully in the ways of the world or Chinese philo- 
 sophy or ideas. They perhaps did not know all 
 about the way in which the original persons got 
 possession of the temples, and they began, when 
 they came, to treat them in a different way. Very 
 well. We then find altei'ations beginning. Houses 
 that were let to them are turned into a different 
 kind of structures and so on, and as time goes 
 on and the missionary interest in China grows 
 a little bigger, it by and bye becomes a sub- 
 ject of treaty. Between this time and the 
 year 1860 there is another war, and there is 
 put into the treaty of IS'^O an article known 
 as Article 8, dealing specially with missionary 
 subjects, upon which I have a word or two 
 to say. Now this is a very remarkable article 
 in its wording. The Chinese are always being 
 told that these missionaries are men coming here 
 with high and holy aims, they are always being 
 told to put up proclamations of that kind, stating 
 that they are come to do them good, although it 
 must be admitted the upper classes don't like 
 their doctrines (but that is neither here nor 
 there) and they are told by this article itself 
 what very excellent people these missionaries 
 are. This says — " The Christian religion, as 
 professed by Pr testants or R iman Catholics, 
 inculcates the practice of virtue, and teaches 
 man to do as he would be done by." 
 
 His Lordship — It only speaks of the doctrine. 
 
 Mr. Hayllar — But the Chinese would naturally 
 suppose the people inculcating that doctrine 
 would be the persons who would deal fairly with 
 them. But after that maxim put in in that way 
 comes another, like a beautiful insect with a 
 tremendous sting in its tail. " Persons teaching 
 it or professing it," says this article, '■ shall be 
 entitled to the protection of the Chinese autho- 
 rities," which is all very well — " nor shall any 
 such, jieaceably pursuing their calling and n >t 
 offending against the laws be persecuted or inter- 
 fered wit 1." Now, my lord, had your Lord- 
 ship been here long enough to have become 
 acquainted with what has been done under that 
 article of the treaty, your Lord -hip might 
 have been prepared to project your mind with 
 some fresh light in it upon the meaning of 
 what my learned friend calls in his answer our 
 " acquiescence." Acquiescence has a good many 
 meanings. Tour Lordship does not suppose this 
 was an article very acceptable, nor was it one 
 very easy to construe, but the literature con- 
 tained in the hundreds of blue books with 
 reference to missionaiy questions in China, if 
 it shows anything, shows that up to 1871, 
 when the question was finally decided against 
 their pretensions, missionaries did assume to 
 themselves tinder that article much more than 
 
68 
 
 THE WU SHIH SHAN CASE. 
 
 the privileges of tlie ni'^re Civis Rotnall^^,s. They 
 became vei-v awkward customers to deal with 
 indeed, and that was the kind of reputation which 
 they liked to get. It was a useful one. In the 
 rear was the force of the British Empire, her 
 armies, her fleets, and her gunboats so often 
 called in to repress disturbance or difficulty. 
 In the front was the missionary with his treaty, 
 with his splendid precept at the beginning, and 
 his right not to be interfered with at the end. 
 That was the position. Now, my lord, after a 
 war which had resulted in this treaty with this 
 kind of thing in it, it is not to be wondered at 
 that the authorities became extremely timid. 
 The missionaries were emboldened in proportion 
 as the authorities were intimidated — I am upon 
 the question now of natural justice — the gentry 
 and the authorities saw these things going on. 
 My learned friend says they were probably very 
 much incensed. They were, indeed, very much in- 
 censed. They were piling their injuries up in 
 their minds, not forgetting them, and they some- 
 times even ventured to remonstrate. But such 
 remonstrances were bound to be snubbed, not by 
 Mr. Sinclair, decidedly, for I must say the copies 
 of the dispatches laid before me show an equitable 
 fairness of dealing in all these matters in that 
 quarter. The people hesitated to come forward. 
 How were they to understand how to prevent the 
 things they objected to, how to assert their 
 rights ? They have a way in the background, 
 at first by offering other terms, and unfortunately 
 when that fails they, knowing no better, resort to 
 violence. The Chinese miud and the Chinese 
 temper will bear a great deal before it is 
 forced into active hostility against any foreigner, 
 much less a missionary, and therefore they doubt- 
 less did stand by and see many things done to 
 which they objected. But what is to be said of 
 those who did them ? There they are, jjlaced 
 temporarily, as they well know, on land which if 
 there is any certainty about the law of China, is 
 most certainly inalienable, which has never been 
 let in the history of the world, as far as we know, 
 except to fdreigners, and then only because other 
 sites could not be obtained. They find them- 
 selves in a position which thoy like and which, 
 if they can, they intend to stick to. Naturally 
 too, for it is a beautiful site. It was chosen as 
 such, as the sites of all temples aie. Therefoi'e, 
 forsooth this temple here and all tlie rights of this 
 great city, are to be sacrificed to the demands of 
 these missionaries, utterly unfounded in common 
 sense, law, or justice, becau.se they ask for it. 
 My lord, if they had contented themselves simply 
 with asking for it it would not have mattered so 
 much, but bearing about him the charmed life of 
 a foreigner, a person not subject to the strict 
 discipline of the bamboo, the foreigner does what 
 would bring a Chinaman to instant grief. He 
 
 begins to tamper with the guardian of the tem- 
 l)le, the old man that he has about him, whom he 
 sees in his daily life, and whom he by cajolery 
 and bribes induces to make documents utterly 
 false and wholly nefarious. That is how the 
 truth of the matter stands. That is the natural 
 justice of this business. Not caring what be- 
 comes of the old man, utterly regardless of the 
 broken career of this poor old heathen, although 
 he had before him the fact that making a deed 
 with this old man about another matter had 
 broug'ht him to punishment — no matter whether 
 it was the Blind Man's Temple or what it was — 
 the foreigner again brings the old man into the 
 130 wer of the authorities and leads him into a 
 danger which is simply the brink of the grave for 
 him. 
 
 My Lord, I cross-examined Mr. Wolfe, to whom 
 I am alluding, intheseremarks — I cross-examined 
 him with a severity which my learned friend has 
 termed bullying. I don't regret one of the ques- 
 tions I put to Mr. Wolfe, nor do I regret the seve- 
 rity which the cross-examination assumed, and I 
 shall, I think — and this is of importance at this 
 part of the case as showing something else — I 
 think I shall show your Lordship that on two or 
 thi-ee points Mr. Wolfe's evidence is palpably 
 untrue, and through the whole of it completely 
 shifty. Non mi recordo — I don't remember, was 
 the burden of his evidence. My Lord, at the end 
 of my learned friend's examination of his own 
 witness, in order to contradict some paragraph 
 in my petition, my learned friend, who of course 
 was acting on instrmtions, asked a question 
 about certain negotiations which had taken place 
 in 1878, which I had alleged in my petition as 
 having taken place, perhaps a trifle too briefly. 
 ' owever, as we shall see, they are substantially 
 true. Mr. Wolfe, in answer to his own counsel, 
 says, " I know nothing of any negotiations 
 having taken place with the high authorities in 
 England." My learned friend is so completely 
 left in ignorance by his client that he asked me 
 if by the " high authorities " I meant the 
 Missionary Society, which I certainly did not. 
 Mr. Wolfe goes on. " having taken place in 1878 
 as stated in the 24-th paragraph of the petition. 
 If any such negotiations did take place I had 
 nothing to do with them. If by the high autho- 
 rities in England is meant the Church Missionary 
 ociety they had nothing to do with it." I am 
 sorry to say that is not quite true. Now, my 
 lord, yesterday Mr. Stewart is put in the box 
 and he produces a letter which leads to my 
 asking in re-examination a few pertinent ques- 
 tions of Mr. Sinclair And then it turns out 
 that the negotiations which Mr. Wolfe had told 
 me in cross-examination, varying from his state- 
 ment in his examination-in-chief, only had re- 
 ference to a building he was going to place on a 
 
THE WU SHIH SHAN CASE. 
 
 69 
 
 piece of land boug'ht from King Po — iu truth 
 had reference to an offer made by Ting Futai 
 to purchase the whole of this piece of property — 
 and that the business had gone so far that Mr. 
 Sinclair had actually written home to the Foreign 
 Office on the subject and had referred to it in a 
 letter to Mr. Stewart as a reason for stating that 
 he should have preferred not giving any permission 
 to build until an answer to his letter had come. 
 I^ow, my lord, t at i egotiatioa had bee i com- 
 mu icated perso ally by Mr. Si clair to Mr. 
 Wolfe, a d I ask w at is t e inea ing of t at 
 eviae ce ? Was it ■ ot obvious to any mi d, deal- 
 ing wit 1 my petition, k owi g t e subject, tliat 
 ti at egotiatio was w^at I referred to. So 
 t ere we begin at o e of t e few poi ts at w ic 
 we I ave a opportu ity of testi g Mr. Wolfe's 
 accuracy by i depe de t testimo y. We fi d 
 tliere at leas a very co siderable !■ accuracy. 
 That, I say. characterises lis evide ce tlirough- 
 out. A id t en t ere comes a transactio i or 
 two wbicb ! liave already referred to, and wiiic 
 I do 't inte d to go t roug i at a y le gt >. 
 Mr. Wolfe says i e tried to get tie Blii.d Ma 's 
 Temple, a d in proof of t at e produces a 
 mi ute from i is mi ute books wit reference to 
 tne pure ase of t is temple. I wit'i great ca - 
 dour admitted t at as evide ce. I oticed, ' ow- 
 ever, t ere was •■ o mi ute produced with refer- 
 ence to the §500 deed. I do 't k ow whether 
 there is such a minute or whether there is not. 
 At any rate, it is not here, yet there is ue with 
 reference to the purchase of the Blind Man's 
 Temple. Well, all I can say about that is that 
 it only adds one more grievance to those I 
 know of. I did n t know before I came into 
 this court that any effort had been made to buy 
 the Bli-d Ma 's Temple alo e, but y ur L rd- 
 ship sees there is a curious sort if admission in 
 t' at minute that it is known that if this thing 
 were attempted to be carried t'u-ough there 
 would be some difficulty, because t ey use the 
 words " if it prove successful," clearly s > wing- 
 there was in tie minds of the Fina ce Com- 
 mittee a d ubt whet'er they could buy this tem- 
 ple. Now, Mr. W Ife says this was the trans- 
 action which led to t e imprison me t of the 
 priest. But t e funny part of it is that Mr. Wolfe 
 is t ereby placed iu such a dilemma that » e is un- 
 able to say eit er one way or the other w ether 
 that document was ever reduced to writing, whe- 
 t er, in point of fact, t 'e tra sacti 'i. about t e 
 §400 for t e temple ever took the form of an 
 agreement. Well, if it did ot, li' w c uld we 
 know anyt ing about it, how could t eauthorities 
 have know i anything about it and imprisoned 
 tt e priest ? If it did, why is there no reference 
 to the docume t in t e despatches wit reference 
 to the release of • hmiYuenCIji g;wliy, inpd t 
 of fact, is a totally different dooume t re erred 
 
 t ■ ? I do 't believe myself that it ever took the 
 form of a d cument, because our arc! lives are 
 so carefully kept and we have i o record of it, 
 but the fact that he tried to buy the Blind Man's 
 Temple is not questioned, for the earth hunger 
 at this particular period of his career was very 
 strong on Mr. Wolfe, as we .shall see, and it 
 might well be that when he began to talk and 
 tamper, as I put it, with the old priest, the Blind 
 Man's Temple as well as a great deal more 
 came under consideration. The " tumultuous 
 orgies " in the temple were most likely as offen- 
 sive to the gf'utleman who was favouring us with 
 his 'ociety in the temjile, where we don't want 
 him, as his presence was to us. Not only was he 
 anxious to get i-id of the " tumultuous orgies " of 
 these poor blind men whom he wished to deprive 
 of their place of recreation, but he probably 
 said to himself, " Surely if we can get rid of 
 the blind men we can get rid of a gi-eat many 
 who are not blind, we can get rid of the people 
 coming into our ground by making a very clean 
 sweep by purchasing not only the property we 
 have now, but a great deal which lies outside 
 the walls." My lord, in support of that view 
 of the man's evidence I produce the deed for 
 S800. All my learned friend can say about that 
 deed is that it perhaps was the work of some 
 zealous subordinate. Well, there may be zealous 
 subordinates, but any zealous subordinate who 
 forged that document must have had a curious 
 insight into my mind, because it was only I my- 
 self who selected the documents for my petition. 
 I have had them a long time, an 1 that these do- 
 cument^ had any bearing upon the case is due 
 to my perhaps — as my learned friend would say 
 — misplaced ingenuity. That a cancelled docu- 
 ment should be forged and put away is a noveUy 
 in the history of forgeries, unless by people 
 so diabolically ingenious that they can read the 
 future. It was simply put in my petition because 
 it happened to be the first of the series which I 
 found, and the S400 deed, if it ever existed, would 
 have answered my purpose j ust as well — indeed per- 
 haps better. But the §S00 deed does not answer 
 Mr. Wolfe's purpose, and I will show your Lord- 
 shin how it does not answer his purpose directly. 
 It does not answer his purpose because your Lord- 
 ship sees he says he paid 8500 down when he 
 made the second dead, and having adraittesl he 
 had not paid any dollars down with reference to 
 the S40U transaction he had to give some reason 
 for it. Now the reason for not paying the !? tUO 
 was because he thought he might fail in the pur- 
 chase of the temple, but he did not thin it was 
 in the least degree likely he Wi uld fail in pur- 
 chasing the whole of the property. Oh ! no, 
 th'.ii'i was no doubt about that — he had no reason, 
 to doubt it ! So the witness hums and haws a 
 great deal about this document, whether he 
 
70 
 
 THE WTI SHIH SHAN CASE. 
 
 had seen it or had not, and about his 
 teacher, but at last he pledges himself, I 
 think, to the fact that he ne er did see it. 
 He thus, as he thinks, gets rid of a perfectly 
 unanswerable argument, that if he had failed in 
 that he certainly would not have paid the $500 
 on the other. Now that is where the pi'iest's 
 story is so likely. I must say, in drawiug 
 any comparison between these two ministers of 
 different religions as to straightforwai'duess and 
 telling even things damaging to himself, the 
 palm lies with the Fuddhist, and the truth lies 
 with him. Now, the S500 deed beiug made — I 
 am not going to draw your Lordship's attention 
 to it much more except to make one very signi- 
 ficant observation. I told you ?t!r. Wolfe had 
 something in his mind which prevented his 
 acknowledging the truth about the Priest being 
 imprisoned for the $500 deed, and it was this, 
 if he had paid |500 to the priest and he had 
 not got the property, would Mr. Carroll have 
 alluded to the jiriest as an innocent man ? Would 
 he not after that transaction rather have alluded 
 to him as an old vagabond ? 
 
 Mr. Hannen — My learned friend complained of 
 my having kept oat documents. He has been 
 for the last half-hour commenting on a document 
 which is not in. 
 
 Mr. Hayllar — But I contend it is in. My 
 learned fi-iend produced a witness, Mr. Sinclair, 
 and laid that before him. I cross-examined 
 upon it and therefore I have a right to allude to 
 it. And there is the fact that the man is alluded 
 to as an innocent man, and I put it he would not 
 have been alluded to as an innocent man if he 
 bad had the .$500. Of course with regard to the 
 promissory note, if the $500 had been previously 
 paid on the deed the transaction takes a 
 slightly modified form ; it is not quite so bad as 
 it is if the priest has told the truth. But look- 
 ing at the document itself, did any body ever 
 read in the history of usury such an extraordin- 
 ary thing as the converting of a lease into what 
 is tantamount to an absolute assignment by a 
 three years' purchase ? Whoever heard in the 
 history of equity of such a transaction as that, 
 and yet, my Lord, that is done in the teeth of a 
 treaty —and we are upon natural justice — which 
 says, it is article 12, "'British subjects w ether 
 at t e ports or ther p aces, desiring t > build or 
 open h uses, wareh uses, churches, hospitals, ><r 
 burial grounds, shall make t eir agreement for 
 the land i.r buildings they require, at the rates 
 prevailing among the people, equitably, and 
 without exaction n either side." At the rates 
 prevailing among the people for the finest 
 site in the city of Foochow ! obviously so 
 to anybody who goes there — $500 and something 
 like 2*3 per cent, interest a year ! Now, I ask your 
 Lordship if that is not where the natural justice 
 
 The 
 
 which my learned friend relies on comes in.P 
 natural justice is with us. 
 
 Now, after the shaking which Mr. Wolfe had 
 got about the former dee-l, one certainly is a 
 little surprised at the pertinacity of the man. 
 The pi-iest absconds and his absconding may 
 have been a fact which was a benefit to Mr. 
 Wolfe or not — I don't know, perhaps not, perhaps 
 it would have been better for him if the priest 
 had stayed, because if the priest had stayed 
 the transaction could have been hushed up pro- 
 bably, or possibly, for three or four years, 
 and then the document might have been sprung 
 upon us, and as no rent had been paid the 
 property would have been the missionaries'. 
 But the priest had to run away to avoid his just 
 deserts brought upon him, be it remembered, 
 by a person who was bound by treaty to in- 
 culcate the practice of virtue upon him ; yet I do 
 not suppose his ruin had been intentionally 
 brought about, as Mr. Wolfe pi-obably would 
 have p'-eferred it the other way, but as things 
 turned out this document became a rather 
 ticklish business. On this subject my accusa- 
 tion against Mr. Wolfe is that he did not pay 
 the rent < ill he was ordered to do so. That is 
 very plain to my mind, as I read the evidence 
 in the case. But he does not say so — I don't 
 know exactly what he does say in fact — all he 
 admits is that he met some directors in his garden 
 and they had a conversation, the substance of 
 which is not very clear, but the effect is, that 
 is how the fact came out that the rent was 
 not paid, and a complaint was made, and then 
 he asks the opinion of his Consul, as he says, 
 whether it was I'easonable he should pay the 
 x*ent or not. That is the most extraordinary 
 thing I ever heard of, obviously his intention 
 still being in 1^67 to hang on to his rights under 
 the promissory note if he could make use of it. 
 
 Then comes the transaction in which a little 
 of the natural justice I think is again on our side. 
 Instead of telling him then, as we might have 
 done " really these things are of sach a kind 
 that we cannot trust you in the least degree," by 
 the friendly intercession of the Consul another 
 document is drawn uj) — these patient long-suffer- 
 ing people, who don't want the rent, but simply 
 desire to give these gentlemen the facilities for 
 carrying on their work, draw up a document 
 against which Mr. Wolfe cannot prevent himself 
 from making a nasty imputation, to the effect 
 that nobody called it to his notice that the words 
 about the option of continuing to hire the pre- 
 mises Avex-e left out. Now, whose business was 
 it to call it to his notice ? Here is a gentleman 
 who had been then five years in the country. I 
 just led him on a little about his knowledge 
 of Chinese, about the deed of 1866, to test 
 a little his knowledge of Chinese, because by 
 
THE WU SHIH SHAN CASE. 
 
 71 
 
 that time I had some experience of Mr. 
 Wolfe's method of giving evidence, and then 
 it became clear that he had advanced so far 
 as to be able to read the agreement with his 
 teacher (and he admitted that he generally did 
 read his documents), and having done so he wrote 
 " I agree to the above terms," having the terms 
 before him. Now. where is the want of natural 
 justice or equity on our part there P Surely by 
 this time we had had enough experience of these 
 gentlemen to reserve to ourselves the power of 
 getting rid of them at such time as they carried 
 their practices past all endurance. Now that is 
 exactly what we find they have done. We find 
 them building a cross wall, to which I cannot 
 discover what title they have at all. In 18G6 
 they were working under what Mr. Wolfe under 
 his own signature admits were false deeds. The 
 answer these persons would give no doubt is, 
 this wretched Chinese Government won't have 
 foreigners buying land in the City. We won't 
 have them buying land ai-ound that temple, but 
 they may build in any convenient place they can 
 find. Have we not offered them other places ? 
 But we look at these transactions from a totally 
 different stand point. We say that they are sur- 
 reptitious and offensive in the last degree to our 
 laws. They get hold of some chair-bearer, some 
 Taouist priest, some fellow or other who will 
 sell anything, and then ti\y by such means, 
 to get possession of land and by not registering 
 their deeds to secure their ends. These pi'ac- 
 tices were still going on, until after 1867 it was 
 found it would not do to carry them on, and so 
 things went on for some time quietly. Well, 
 then comes 1871. There is a bungalow up to 
 the end of 1870 where that elevated structure 
 (pointing to the model) now sj;ands. That was 
 burned down and this building was substituted 
 for it. Mr. Wolfe himself admitted that if 
 he had been here he would not have built that 
 building ; he knew it was offensive to our pre- 
 judices. But I put it not only on that ground; 
 not only was it offensive to our prejudices, it was 
 also a source of danger. So he goes on up to 
 1876. Then he is again at the same work ; he 
 pulls down that wall, he buys a piece of land from 
 a Buddhist priest that turns out to be public 
 land, and he builds another wall. After a deal 
 of trouble the wall is ordered to be pulled 
 down by the Consul ; it is rebuilt again and there 
 it stands. Well, then he turns that building, 
 without any permission whatever, the under- 
 standingbeing that they should onlybe residences 
 — he turns that building into a girls' school, 
 just close to the temple, of all places in the 
 world to put a girls' school. He then obtains 
 permission from Mr. Sinclair — Mr. Sinclair not 
 being aware of the details of the question 
 whether that piece of land on which he put the 
 
 ruined house came in under the lease of 1867 or 
 not ; Mr. Sinclair was not here in the time of 
 Mr. Smith, as far as I know, and it is not for 
 him to know a piece of land let verbally — Mr. 
 Wolfe obtains permission to put that building 
 on a piece of ground which be says now is 
 includ' d in the lease of 1867. We say it is 
 not, and the only evidence for the defendant 
 on the subject, as a matter of natural justice, 
 appears to have been Mr. Wolfe's imagination. 
 I asked him if he made any inquiry ; he said, no. 
 Of course he didn't make any inquiry, because 
 if he had he would have known what it would 
 have led to. There is the want of natural justice 
 in not making inquiries which would lead to awk- 
 ward revelations. He makes no inquiry, he com- 
 mences the building, I say throwing dust in the 
 eyes of Mr. Sinclair. 
 
 The piece of land let by the priest was the 
 piece he pointed out ; the man was the witness 
 of truth throughout, and it stands to reason 
 that was the piece, because if it had not been 
 a piece marked out by its own natu al boun- 
 daries some better identification of it would 
 have been given, but being as it is a sort of belle- 
 vedere its own boundaries are marked out, where- 
 as on the other piece there are no natural limits 
 and it would have been described by metes and 
 bounds. It would have been described with still 
 greater certainty if it had been land let for 
 building purposes. Well, our evidence being 
 entirely uncontradicted, they commence this 
 building, and then Mr. Stewart, who has just 
 come, as he tells us, with the polish of Trinity Col- 
 lege. Dublin, upon him, a very desirable addition 
 to the place, no doubt — he comes here and he has 
 the charge of these transactions. Mr. irtewart 
 was burning with anxiety to be cross-examined 
 yesterday, he was placed in t' e box to be 
 cr ss-examined. but his evidence as it stood 
 was so exceedingly favourable to the view 
 I take of the transaction that I thought 
 it wiser to leave so formidable an antagonist 
 alone ; so he has given his evidence with the 
 honour of not being cross-examined. However, 
 we take it from him that he got the permission 
 from Mr. Sinclair in a very carefully worded 
 letter to build only until there came some opposi- 
 tion from the gentry; and. said my learned friend 
 to him, " Did any opposition come ? " " Yes, I 
 received a i-equest from Mr. Sinclair to discon- 
 tinue building," " And you declined ?" Well, 
 there Mr. Stewart lengthened outintoa history of 
 how he came to decline by referring to documents 
 with extreme volubility, and your Lordship said 
 it would be better that he should answer the 
 question, and he accordingly did so, and he said 
 he did decline. ."^ o Mr. Stewart comes into the 
 box to represent himself as a gentleman who, in 
 a very important matter, has broken a solemn 
 
72 
 
 THE WU SHIH SHAN CASE. 
 
 promise. That is the attitiide in which the. 
 secon'^1 missionary of this society stands before 
 your Lordship. Having obtained from the Con- 
 sul this i3ermi.ssion,he jDooh-poohs that authority, 
 and the opinion of that kindly p-entleraan, who 
 has so greataknowlec'ge of the Chinese, who has 
 li\ ed among them the better part oi his life, who 
 knows the signs of a gathering storm and that 
 in these countries things are not perhaps quite 
 so fair as they .seem, and who knows perfectly 
 well it is not- a danger to be lightly risked. This 
 gentleman of 1^76, who has been here two years, 
 fi-om Trinity College, Dublin, knows all about 
 fung shui and the views of these people ! and he 
 says " I a'n not going to stop my works, I am 
 only doing them inside." Well, but was not 
 Mr. Sinclair perfectly right ? Whether he was 
 doing them inside or out the feeling might have 
 been allayed if the Chinese had seen that Mr. 
 Stewart had shown the slightest signs of keeping 
 good faith, that he was not going ou putting in 
 doors and windows and making this property, 
 "which had to be pulled down, as everyone knew, 
 more valuable, and which the Chinese knew from 
 former experience they would have to pay 
 very stiffly for — that is always the end of these 
 cases, the Chinese have to pay — and so they go on. 
 Well, the storm did break and the Ciiinese 
 destroyed a piece of building which was theirs, 
 which. they had a perfect right to deal with as 
 they liked, only they took the unfortunate form 
 of doing it by violence. That I don't stard here 
 to justify ; it is a pity, but it is what every one 
 must have known would have happened. 
 
 Now.onefurther word as to natural justice, that 
 pure equity to which my learned friend appeals. 
 Avery distinguished governorof this place indeed. 
 Ting, a man whose name is known throughout 
 China as one of the most distinguished men in 
 it, seeing the position of affairs, knowing the 
 dangers that were rising, knowing how suddenly 
 a storm breaks, how difficult it is to quell, and 
 how much China has always to pay — because the 
 attitude of complete firmness which these mis- 
 sionary gentlemen take up always leads in the 
 end to something better for them — seeing all 
 the.se things Ting did, through Mr. Sinclair, 
 make an offer, the liberality of which is I think 
 unquestioned. That telegraph place, which they 
 turn up their noses ^t, cost the Government, as 
 I liave found by inquiry, 817,000, and they could 
 ha> e let it, and still can let it at any moment, 
 for Sl.OOO a year. We have only been holding 
 it over for their benefit. This they might 
 ■"have had as a free gift with another piece of 
 land and go '0 besides, and it is while this magni- 
 ficent offer, dealing with the natural justice of 
 the question, is standing before th^im that Mr. 
 Stewart goos on with his work. Now I don't 
 think, with this little tale to meet, mv learned 
 
 friend has any right to appeal to natural justice. 
 I say it is the pushing of a dominant race, with 
 energy and with all the power behind it of a 
 mighty empire, against an old, good natured, 
 and apathetic one. That is the ti-ue pith of this 
 case. If it had been legitimate pushing, if the 
 pushing had not taken the form as I say it did of 
 aggression and tricks, it would not have so much 
 mattei-ed, but that that is the form it did take no 
 one who has heard the evidence in this court can in 
 the slightest degree doubt. 
 
 Now, my lord, these are the two points on 
 which I say the case has been placed. My learned 
 finend, by putting in that document which ho 
 did, or rather by laying the law before you, by 
 his own admission removes the case, or he wishes 
 to remove the case, from the domain of strict 
 English law, and he appeals to your Lordship to 
 deal with the matter equitably. I think the case 
 clearly stands on foreign law, but if it is to go on 
 the second ground your Lordship must look at 
 the transactions from beginning to end. 
 
 But whether it goes on foreign law, as I con- 
 tend it ought to go, or on natural justice, there 
 ai*e still one or two elements in the case which I 
 have to call your Lordship's attention to in the 
 briefest possible manner which I think even 
 natural justice must take notice of. And the first 
 is, what is the position which this society takes 
 up ? I don't understand it myself. It is a fluctu- 
 ating body of subscribers, here to-day and there 
 to-morrow; you don't knowwhoisthebodyorhow 
 it is be affected by any decree. S ould Mr. Wolfe 
 leave this place who are we to look to for our 
 rent ? Who is to be his successor ? My learned 
 friend speaks of Mr. Wolfe's predecessors. That 
 is the mischief of the thing. We might like 
 one gentleman with whom we made an agreement 
 for rent, as we might have liked Messrs. Welton 
 and Jackson ; we don't like another, as may be, 
 for sake of example, Mr. Stewart. And is Mr. 
 Stewart to have the benefit of Mr. Wolfe's con- 
 tract, or who is to have it ? The ideas, doubtless, 
 of the Government of China, or whoever does 
 these things, the directors of the temple, are 
 greatly modified, like those of all Chinese and in- 
 deed of people all over the world, by personal con- 
 siderations. They have, for instance, the greatest 
 faith in the fair dealing with their property of 
 the English Government. The English Consul 
 has as a summer residence a small temple, as 
 your Lordship must have seen personally on your 
 visit to Wu Shih Shan. The English Govern- 
 ment, through its officers here, has preserved 
 towards the Chinese Government in dealing 
 with that temple that kind of faith which 
 your Lordship knows is called uberrima fides. 
 Mr. Welton and Mr. Jackson may have d ne 
 the same for all I know. We say Mr._ " olfe 
 has not. We gave him a document which was 
 
THE WU SHIH SHAN CASE. 
 
 7.{ 
 
 meant to be an annual lease, and we say "As 
 you have not preserved that kind of faith with 
 us we don't make a contract with anybody to 
 follow you." Mr. Stewart — I don't know whether 
 he is to be here or whether he is not — Mr. 
 Stewart is unfortunately the g-entleman who has 
 broken his promise to the Consul. That is 
 known perfectly well to the Chinese; therefore 
 they don't believe in him, and it would be a very 
 bard thing* ou the directors of this temple if any 
 decree of this court could leave it in the hands 
 of Mr. Wolfe or anybody else to select a succes- 
 sor. We should like to select him ourselves. 
 But that is not all ; the law steps in, and why 
 a missionaiy society, because it is a missionary 
 society, or for any reason on earth, say i'ecause 
 it is in China, should have a different status from 
 what it has in any other part of the world, merely 
 becaus ■ it is a society established in England 
 for certain hig-h purposes — I don't know why, 
 I say, such a society should have any privileg-e 
 higher than if I associated myself with other 
 people for any purpose in the world. There- 
 fore it stands that the true reading of the docu- 
 ment of 1867 is as a personal contract with 
 Mr. Wolfe. When we came to give a more 
 formal document (we certainly did it in one 
 particular in a very clumsy manner, because 
 we gave it to Mr. Wolfe and others ; the docu- 
 ment itself is made with others, but those others 
 are not named) the intention is made obvious 
 that the tenancy should continue after Mr. Wolfe 
 went away. The passing out of the poi-t of any 
 missionary, as far as the Chinese are concerned, 
 is equivalent to his passing into a better world — 
 they know no more of him, and therefore the idea 
 of the document itself is clear, and it goes to 
 show what was the intention,of the document of 
 1867, that it should be pers nally, with Mr. Wolfe. 
 But what the missionaries wanted all along, as 
 shown by their promissory note, and what they 
 want now is that they should get a decree that 
 the property should be made over to their society, 
 a thing impossible, because there is nothing it 
 could be made over to. My learned fiiend did 
 not touch upon that in his speech, although I 
 asked Mr. Wolfe about it in the lirst instance and 
 put it in the forefront of my case. 
 
 My learned friend also has not contradicted 
 my evidence about these Cliiiiese associations. 
 In point of fact, so far from contradicting it 
 he acknowledged through Mr. Wolfe the ex- 
 istence of one of these societies, namely, the 
 Blind Man's Association. Now could a decree 
 be made to cover associations of this kind ? 
 No. And the real meaning of it is that it 
 never was meant to do so, it was not meant to 
 be a formal document of that kind, either on the 
 part of the Missionary Society or the Associations, 
 for the simple reason that the thing was impos- 
 
 sible. The propei-ty never having been let in 'he 
 history of time before foreigners came here it was 
 not in the contemplation ofanybody to from a kind 
 of association for the letting of the property. Tha 
 directors were put in the document of 1867, not 
 to give a higher or better title, not because they 
 wanted to continue the tenancy, but in order to 
 prevent the continuation of a fraud, and they 
 were therefore, as I put it in ray opening address, 
 the mere channels through which the rent poured 
 into the incense and lamp department of the 
 temple. So much for the directors. 
 
 But before I sit down, there is one other 
 point upon which also my learned friend offered 
 no ai'g'ument, to which I must refer. Whe- 
 ther we deal with the case by English law 
 or natui'al justice we look for precedents in 
 some way to guide us. Now, I have made a 
 search so far as my limited powers of search 
 could be extended in this place, and, indeed, 
 before I came here, to find if there was referred 
 to in any book any English document any- 
 thing like this form, with such words as 
 '■ May not be let to anybody else " in it. I have 
 found nothing of the kind in English law; the 
 words in fact are utterly unknown. They 
 are in a foreign language. These are the 
 words around which the battle rages. Bat 
 the "may not be let to any one else" is an ex- 
 pression unknown only in English drafting; 
 therefore if we have to deal with it on the 
 basis of natural justice we know perfectly well 
 what it means in China. We may also look ta 
 see what the words actually do mean. My 
 learned friend wants to import, as I understand 
 his contention, another woi-d which we have in 
 our language, which we know perfectly well, and. 
 which occurs in the same document in another 
 sentence ; he wants to import the word '* re* 
 To make his contention according to 
 
 sume. 
 
 natural justice — and I am anxious to turn this 
 case in every light before your Lordship's eyes—" 
 my learned friend wants to import into his read- 
 ing of that expression the word " resume." The 
 word " resume " being there, accompanying these 
 same words in another part of the document 
 " may resume '"I? let to any one else" clearly 
 shows that according to the natural mean- 
 ing of the words in the same document there 
 is a distinction between the two. We havft 
 a term which we translate " resume," but which 
 literally means "take back." The words are 
 there and are " may resume "o"* let to any 
 one else." Therefore, according- to that kind of 
 reading of the case which my learned friend 
 wants, I think he is entirely out of court ; I 
 think it would not be competent for the court, 
 to add a term to this contract which is not there, 
 which is certainly known to the writers of ii, 
 and which occurs in the same document «. 
 
74 
 
 THE WU SHIH SHAN CASE. 
 
 another place. Looking at it in that light, 
 without any reference to its being a common 
 term among the Chinese, simply on the basis 
 which my learned friend puts it on, I think your 
 Lordship could only make a decree that "they 
 should not let it to any one else." Your Lord- 
 ship has on your notes the cases in English law 
 on the subject and I don't intend to toiich upon 
 them any more. The case I handed up to your 
 Lordship la.st night is only a case which is 
 referred to in other cases about an agreement not 
 to give a notice to quit being repugnant to an 
 animal lease. That is what I quoted as the 
 decision of an Irish court. Therefore I say on 
 English law pure and simple the law is with us, 
 and on natural justice and on English and 
 foreign law T ask your Lordship for a declaration 
 of our rights. What form the decree would take 
 would depend. I apprehend, supposing your Lord- 
 ship is in our favour, on which of these branches 
 your Lordship decides it upon. Ihe form the 
 decree would take if it were for the defendants 
 would naturally be very simple, but the form a 
 decree for the plaintiffs would take would depend 
 upon one of three points. If your Lordship ac- 
 cepted, as I contend you are bound to do, Chinese 
 law, then I apprehend the non-acceptance of rent 
 for nine months, would according to their books, 
 be the foundation for an order or decree that the 
 lease had ceased. I presume that if that were the 
 case my learned friend, of course subject to his 
 appealing, would not go any further. I did not 
 bring the case in the form of an action simply 
 for ejectment, because I had some doubt in my 
 mind as to which law your Lord.ship would think 
 would pi-evail. If it is English law of course 
 they would have to the end of the year if your 
 Lordship could find a date. According to Eng- 
 lish law their notice would have to expire at the 
 end of a year. 1 hat has not yet expired ; the 
 suit did not take that form. But if your 1 ord- 
 ship is of opinion that the lease has exjiired 
 according to Chinese custom the form of your 
 decree I suppose will say so, and if your Lordship 
 gives that decree we shall know how to deal with 
 it. I presume the matter would end there. 
 
 Now, my Lord, I leave the case in your hands 
 to do equity in any way your Lordship shall 
 think right. We are not dealing with this 
 case as we do with a bill of exchange ; it is a 
 case for a declaration of rights and is not 
 a case, of course, in which we desire to inflict 
 hardship. Supposing your Lordship were to 
 hold in our favour. I think any suggestion, or 
 leaving it to ourselves to deal with it equitably, 
 I may give my own word for it, would have the 
 greatest weight. Supposing the deoi-ee to be in 
 our favour, any terms we would offer are not 
 things I can mention, but any suggestion from 
 your Lordship would have great weight, at any 
 
 rate with me, and I stand here in a responsible 
 position in saying a thing of that kind. 
 
 His Lordship — Mr. Hayllar, with reference to 
 the agreement of 1866 how can I give you any 
 relief ? 
 
 Mr. Hayllar — I don't ask for any. Your Lord- 
 ship sees how the thing occurred. I made the 
 gentry parties to begin with to represent this 
 piece of property, as well as others, and they 
 were struck out. 
 
 His Lordship — It was by a slip this paragraph 
 was kept in, then ? 
 
 Mr. Hayllar — It was not exactly by a slip, but 
 there it is. 
 
 His Lordship — Then I understand you to say, 
 with reference to the first prayer — 
 
 Mr. Hayllar — It may be struck out. 
 
 His Lordship — Then upon another point, para- 
 graph 20, about that right of way ? 
 
 Mr. Hayllar — I don't offer any evidence upon 
 it, except that Mr. Wolfe himself said there was 
 a path going across there and in point of fact 
 there was. 
 
 His Lordship — Having regard to the im- 
 portance of the case, I shall defer my juds"ment, 
 and perhaps it may be as well I should state the 
 course I intend to pursue with reference to that. 
 What I propose to do is to send my judgment 
 to Mr. Sinclair and ask him to be good enough 
 to read it to the parties here. 
 
 The Court then rose. 
 
 JUDGMENT. 
 
 (Read at Foochow, July 19th.) 
 The following is the judgment of His Lord- 
 ship in this case : — 
 
 The petition in this case, in its re-amended 
 form, was filed on behalf of four of the directors 
 of the Tao Shan Kwan Temple, situate at Wu 
 Si'ih Shan in the city of Foochow, in the Empire 
 of China, against the Reverend John Richard 
 Wolfe, a British subject, and a clerk in Holy 
 Orders, residing at Foochow, who was also sued 
 on behalf of the English Church Missionary 
 Society; and it prayed (l) that the rights of the 
 parties interested in and under a certain lease of 
 Sej)tember, 1866, might be ascertained and de- 
 clared ; (2) that an agreement of rent dated 
 August, 1867, between the defendant and Chow 
 Taou Wen and Lin Yuen Chin, both now de- 
 ceased, might be declared and decreed to be void; 
 (3) that it might be ordered and decreed that the 
 defendant had by his unauthorized and wrongful 
 dealings with the land and buildings comprised 
 in the agreement of August, 1867, forfeited all 
 his right and title in and to such lands and build- 
 ings; (4) that the rights of the parties interested 
 in that agreement might be ascertained and pre- 
 scribed; (5) that the boundaries of the land com- 
 
THE WU SHIH SHAN CASE. 
 
 75 
 
 prised in t!'e same agreement mig-bt be ascer- 
 tained and declared ; and (•>) that the plaintiffs 
 mig-ht have such fui'ther and other relief as the 
 nature of the case mig-ht require. When the 
 petition was amended the names of some of the 
 original plaintiffs who alone claimed to be entitled 
 to sue in respect of the agreement of September, 
 1S66, were struck out; but the statement of 
 that ag-reement. and the part of the prayer 
 which related to it wore retained in the peti- 
 tion. It did not therefore appear in the form 
 in which the petition was presented to the court 
 at the hearing- of the cause what was the nature 
 of the plaintiffs' interest in respect of the 
 property comprised in the ag'reement of Sep- 
 tember, 186*^, or how they were entitled to sue 
 in x-espect of such agreement ; and, in x'eply to 
 a question touching such interest and right of 
 suit addressed by the Court to Mr. Hay liar at 
 the conclusion of his reply, that learned coxmsel 
 said that he did not ask for any declaration by 
 the Court in regard to that agreement. The 
 questions, then, which the Court has to consider 
 and determine are those which arise under and 
 in connection with the agreement of August, 
 1867. The petition stated that the Tao Shan 
 Kwan Temple, witn the buildings and lands be- 
 longing thereto, was the property of the city of 
 Foochow, that the direction and management of 
 the temple lauds and the control and expenditure 
 of the funds belonging thereto were vested in 
 directors duly appointed ; that the plaintiffs. 
 Chow Chang Kung, Lin King Chang, Loo King* 
 Fah and Sat Keok Min, were four of such direc- 
 tors and sued for themselves and the other direc- 
 tors ; that by an agreement of rent dated the 
 18th December, 1850, Welton and Jackson, who 
 were then the representatives- at Foochow of the 
 English Church Missionary b'ociety, rented from 
 a Taouist priest named Lin Yung Mow two houses 
 situated respectively at the back and front of 
 the left hand of the Tao Shan Kwan, which were 
 described as follows : — One house with five rooms 
 in a row, broadwise to which was attached an 
 outhouse and an open yard at back and front. 
 One bouse with four I'ooms in a row, broadwise 
 at the back to which was attached an outhouse 
 having an upper storey of two rooms and a lower 
 storey of one room and an open yard. It was 
 also thereby agreed that the rent of the above 
 houses should be §100 per annum, and that 
 rent for three mouths should be paid in ad- 
 vance according to the English Calendar ; 
 that the said Taouist priest should not interfere 
 with orobstinict any works that might be going 
 on or repairs that might be made inside the 
 houses, wl ich were to be done at the expense of 
 the lessees ; that it should be at the option of the 
 lessees to continue the hiring of the said houses, 
 and that the said Taouist priest should not be at 
 
 liberty to let them to other persons. Tho docu- 
 ment bore the Seal of the British Consulate and 
 that of the Hau Kwan District Magistrate. The 
 above two houses were of Chinese structure and 
 wore ei'ected on land belonging to the Tao Shan 
 Kwan Temple and foi-med part of the out-build- 
 ings of that Temple. It appeared in evidence 
 that those houses were, subsequently to the date 
 of the agreement of December, 1850, viz., the one 
 in 1-55, and the other in 1857 removed by the 
 missionaries, and that in the place of one of them 
 a large buns'alow, which was used as a mission 
 house, and in that of the other a residence, but 
 which was row and had been since 1877 a girls' 
 school, was built. Thus the character of the 
 structures leased in 1850 was entirely altered. Ib 
 1855, Fearnley and Welton. who then represented 
 the English Church Missionary Society at Foo- 
 chow, entered into an agreement in the Chines© 
 language with a Taouist priest of the Tao Shaa 
 Kwan Temple, named Chun Yuen Chiug, whereby 
 the Taouist priest agreed to let to Fearnley and 
 Welton a row of four rooms going* straight in, 
 situated on the right hand side of the Tao Sham 
 Kwan Temple, at an annual rent of §20 payable 
 quarterly. It was also agreed that no rent should! 
 be allowed to fall into arrear, and that should ifc 
 fall into arrear Chun Yuen Ching might re- 
 sume and let the property ;o other persons, 
 and that if rent was properly paid the pro- 
 perty might not be let to anyone else. That 
 document was not recorded at the British 
 Consulate, nor did it bear either that seal op 
 the seal of the Hau Kwan District Magistrate.. 
 The four rooms comprised in the last mentioned 
 agreement consisted of three dwelling rooms and 
 0"e servant's room. In or about the summer of 
 1863, t'e missionaries added an upper storey to 
 those rooms. In 1861, one George Smith, d -- 
 ceased, who was a Missionary of the Englii-i 
 Church Missionary Society, rented verbally a 
 small piece of land contig'uous to the temple for 
 12 dollars a year. One of the contests in tla 
 case was the site of this piece of land ; the plain- 
 tiffs contending that it was on a hillock just 
 outside the Tao Sban Kwan Temple, and the 
 defendant that it lay to the North of the rooms 
 let to Fearnley and Welton in 1855. Early in 
 1866 the defendant entered into a treaty with a 
 pi-iest of the Tao Shan Kwan Temple for the 
 absolute purchase for the sum of 400 dollars o£ 
 the Blind Man's Temple, which was a tempio > 
 outside the Ta> Shan Kwan Temple, and only a 
 few yards from it ; but the negotiation failed, 
 the '1 ao Shun Kwan authorities having inter- 
 fered to prevent the sale to Wolfe. Aboat 
 three or four months after the failure of that 
 negotiation, Wolfe entered into another negotia- 
 tion with the same priest for the absolute pur- 
 chase for 1,500 dollars of the property then in 
 
76 
 
 THE WU SHIH SHAN CASE. 
 
 his occupation aad comprised in tbe agreements 
 of 1850 and 1855, and in the verbal agreement to 
 wbicli tlie missionary George Smith was a 
 party ; and for all which premises he paid an 
 aggregate annual rent of §132. But this nego- 
 tiation likewise failed. J here was no doubt, 
 upon the evidence, that the priest at tl;e Tao 
 Shau Kwan had got into trouble with the 
 authorities of the Temple through his negotia- 
 tions for the sale to Wolfe of some of the Tao 
 Shau Kwan property ; and that such trouble was 
 the cause of the agreement of August, 1867. In- 
 deed, Wolfe himself in his evidence said, '' I think 
 the deed of 1867 arose out of my trouble with he 
 priest." Wolfe's evidence in that respect con- 
 firmed what had been previously stated in his 
 evidence by Loo King Fah, one of the plaintiffs, 
 who said that " when it was found that there had 
 been some strange or peculiar dealings between 
 the Taouist priest and the missionaries, the 
 Directors thought that they would themselves 
 make a new agreement of rent with the mission- 
 aries." The same witness, Loo King Fah, said 
 that one of the documents from which the agree- 
 ment of August, 1867, was drawn, was the a.a-ee- 
 ineu' of 1850, and that the directors of the temple 
 ■wlo tlipmselves framed the draft of the agreement 
 of August, 1867, struf k out the words " at the 
 op<i* n of the lessees," which were in the agree- 
 ment of 18o0. The following is a translation of 
 the agreement of August, 1867, which was in 
 the Chinese language : " Agreement of rent. 
 The British missionary John R. Wolfe agrees 
 -with the directors of the Tao Shan Kwan Temple 
 to rent from them the following property, which 
 was formerly, in the 30th year Tau Kwan, 
 rented by the missionaries Welton and Jackson, 
 namely, two houses situated respectively at the 
 bai-k and at the front of the left hand side of the 
 Tao Fhan Kwan [these two houses are as follow] 
 1. One five-roomed house with an outhouse and 
 some waste ground at back and front. 2. One 
 four-rcomed house at the back with an outhouse 
 Laving an ujoper storey and a lower storey of 
 one room and a piece of waste ground. The 
 re it of the above to be as of old, SlOO per annum. 
 Also (Mr. Wolfe agrees) to rent the following 
 prop ily which was originally rented in the fifth 
 year Ilsien Ft-ng to the missionaries Welton and 
 Feariiley. namely, four rooms on the right hand 
 side of the Tao Shan Kwan, going straight in. 
 The rent to be as of old, 820 per annum. Also, 
 a small piece of land formerly hired under a verbal 
 agreement by the missionary George Smith : the 
 rent t ■ be as of old, 8 2 per annum. These 
 amount in all to a yearly sum of §132. The first 
 Dstalment of which for the summer quarier, viz., 
 $38, to be paid at once to the Trade Committee for 
 transmission through the directors of the Temple 
 to the Ta.uist priests, to be used in the service of 
 
 t' e Temple. It is agreed that the same sum be 
 paid quarterly in advance according to the 
 English calendar to the Trade Committee for 
 transmission, and the rent be not allowed to get 
 ino arrears. Should this happen, the directors 
 may resume [or*] let the place to some one else. 
 On the other hand if the rent does not get into 
 arrears the place may not be let to any one else. 
 Both parties being of the same mind, neither of 
 them can withdraw. It is therefore considered 
 advisable to draw up this agreement in triplicate, 
 to be kept by the different parties. 
 
 Guarantor, CoNSTJL .SiKCLIB. 
 Dated, August, 1867. 
 (Signed) Chou Taou Wen, 1 Dii-ectors of the 
 Lin Yune Chin, J Tao Shi:a Kwan. 
 I agree to the terms specified in t'je above 
 agreement. 
 
 (Signed) John R. "VV ,>lfe. 
 
 ^ [Seal of [British 
 
 Hau-kwan Consular 
 
 Magistrate.] Seal.] 
 
 The two directors of the Tao Shan Kwan 
 
 Temple who signed the above agreement are now 
 
 dead. It will have b'-en seen that the description 
 
 of the houses mentioned in the agreement of 
 
 August, 1867, was substantially the same as the 
 
 descriptions of the houses mentioned in the 
 
 agreements of 1850 and 1855; but in August, 
 
 1867, the houses mentioned in the agreement of 
 
 1850 were not standing; and that mentioned in 
 
 the agreement of 1855 had been altered. The 
 
 only explanation of that circumstance was what 
 
 was understood by the Court to be a suggestion 
 
 made at the hearing of the cause by the learned 
 
 Counsel for the plaintiffs that the descriptions 
 
 given in the agreements of 1850 and 1855 of the 
 
 properties therein respectively comprised had 
 
 been foil wed in the agreement of August, 1^67, 
 
 in order to secure their return by the defendant, 
 
 on his giving up possession to the lessors, in the 
 
 same state in which they were at the respective 
 
 periods of the agreements of 1850 and 1855. In 
 
 1870, the bungalow or mission house which had 
 
 been built on the site of one of those leased in 
 
 1850 to Messrs. Jackson and Welton, and which 
 
 had been occupied as a residence by the defendant 
 
 and other missionaries, was burnt down ; and the 
 
 existing mission house was built in its place on 
 
 a .site nearly corresponding to ti e site of that 
 
 which had been burrt down. The new structure 
 
 had an upper storey, which did not exist in the 
 
 house which was burnt down ; and the defendant 
 
 said he had been told by some Maudatins that 
 
 its height was ffensive to their superstitions. 
 
 The plaintiff's in their petition complained that 
 
 the defendant had, witliout any pro| er license or 
 
 authority, erected a wall which wrongfully en- 
 
 * Kot in the original. 
 
THE WU SHIH SHAN CASE. 
 
 77 
 
 elosed, tog-ether with a portion of the ground com- 
 prised in the agreement of August, 1.^67, other 
 ground and several famous and uiemorial rocks 
 standing thereon, wrongfully claimed by him under 
 that agreement. It appeared that t:ie wall now 
 standing had been erected by the defendant in 
 1S76 in place of another wall; and, upon the 
 evidence, I find that it had then been thrown out 
 at one corner of it about half a foot beyond the 
 position of the original enclosing- wall. The 
 evidence for the plaintiffs showed that no part 
 of the land on which the wall was erected was 
 temple land; but the defen !ant contended that, 
 except as to the encroachment just mentioned, 
 it stood on land comprised in the agreement ot 
 August, 1 67. But, whether t is be so or not, 
 the evidence for the plaintiffs showed that no 
 part of the land on which the wall was erected 
 was Temple land. The petition also stated that 
 during the year 1878 the defendant, without any 
 proper license or authority, proceeded to erect 
 on ground enclosed within the wall just men- 
 tioned, a lofty and prominent structure of foreig-n 
 design ; that the gentry and inhabitants of 
 Foochow complained to the local authorities and 
 the matter was referred to the Biitibh Consul ; 
 that negotiations ensued and certain terms of 
 arrangement which had been arrived at were 
 referred to England for settlement ; that ponding 
 such settlement the defendant wrongfully and in 
 breach of good faith proceeded with the said 
 building, and, when the same was nearly com- 
 pleted it was burnt by a mob; that the walls of 
 the building were still standing, and that the 
 defendan claimed to hold the land on which such 
 building was erected under the agreement of 
 August, 1867. The allegations just mentioned 
 did not in any way affect the questions which 
 the Court had to determine. The defendant 
 by his answer denied some of the allega'ions of 
 the petition ; but the answer raised no material 
 issue. It was stated in evidence that the land on 
 which the Tao Shan Kwan stands is Govern- 
 ment property and belongs to the Emperor, and 
 that the temple was built by public subscription, 
 and belongs to the public of the city of Foochow. 
 It was also admitted at the bar by the learned 
 Counsel for the plaintiffs that they had nO estate 
 in the temple ; and it was said that they were 
 merely directors of it. Several associations, 
 thirteen in all, which existed in Foochow, were 
 formed for the purpose of keeping the Tao han 
 ]< wan temple in repair and enabling its services 
 to be conducted, and the associations subsisted 
 solely for those purposes. Each association had, 
 for the most part, its separate object iu connec- 
 tion with the worship of the temple; but they all 
 subscribed in cominon for its repairs. A person 
 became a member of one of the associations by 
 the payment of a subscription after election by 
 
 the other members of the association. The asso- 
 ciations were managed by directors cho-^en from 
 the general body of their respective members ; 
 and the directors of the several associations were 
 directors of the temple. The tirst couiideratiou 
 which arises in the de'ermination of tlds case is 
 tlie principle which is t ■ g-overn the Court lu 
 interpreting the contract of August, 1867. Is it 
 to be interpreted by the law of England, or by the 
 law of China? The contract was executed ia 
 China; and it relates to land situate in China; and 
 iu conformity with the general principle applic- 
 able to eases in vol ving the construction of cent racta 
 relating to land, which is that the law of the 
 place where the land, the subject of the con- 
 tract, is situate, governs its coustrctiou, the law 
 of China applicable to the contract in question 
 must govern its construction. The mode o' proce- 
 dure of the Court which is resorted to for the 
 purpose of enforcing the contract is to be adopted, 
 and the law to bo applied in interpreting the con- 
 tract must be given in evidence to the C urt as 
 a fact by pr fessional or official witnesses, inas- 
 much as since their positio i requires sufficient 
 knowledg'e to prove the law, it may be presumed 
 that they possess it. (The Sussex Peerage, 
 Case. 11 Clarke & Fin. 85 ; Duchess di Sora v. 
 Phillips, 2 New R. .553 ; Taylor on Evid. § 1280 
 A 4th Edit.) The late Mr. Burge, in his com- 
 mentaries on Colonial and Foreign Law (vol. 4, 
 j)ar. 2, ch. 12, p. 577), said—" It is admitted by- 
 all jurists that the transfer of and title to real 
 propex'ty must be regulated by the lex loci rei 
 sitcc." '■ The general pi-incipal of the commoa 
 law is that the law of the place where real or im- 
 mo\ eable property is situate exclusively governs 
 in respect t > the i-ights of the parties, the modes 
 of transfer and the solemnities which should ac- 
 company them. The title, therefore, to real pro- 
 perty can be acquired, passed, and lost only ac- 
 cording to the lex loci rei sitae." (Story's Confiict 
 of Laws, sec. 424, 2nd edit.) — " The consent o£ 
 the tribunals acting under the Common 1 aw, 
 both in England a d America, is, in a practical 
 sense, al)solutely uniform on the same sub- 
 ject. All the authorities in both countries, 
 so far as they go, recognise the principle in it 3 
 fullest import, that real estate or immoveable 
 property is exclusively subject to the laws of 
 the govei-nment within whose territory it is 
 situate." Ibid, sect. 4-28, '" Contracts to be ef- 
 fectual must be in the form prescribed by tlie 
 lex loci ." Ibid, sect 435 — The principle seems 
 to be founded upon the i inconvenience which it 
 would be to any nation to suffer property, locally 
 and permanently situate within its territory^ to 
 be subject to be transferred and dealt with by 
 any other laws than its own ; and thus introduce 
 into the bosom of its own jurisprudence all the 
 innumerable diversities of foreign laws to regu- 
 
78 
 
 THE WU SHIH SHAN CASE. 
 
 &te its own titles to such property, many of 
 •wrhich laws can be imperfectly ascertained, and 
 aoauy of which may become matters of subtle 
 «outroversy {Ibid, sect. 440.) In the present 
 «ase, two witnesses were called on behalf of the 
 ■plaintiffs to prove the law applicable to the con- 
 tract. One, Ting Kia Wai, being interpreted, 
 described himself as follows : — " I am an officer 
 at Peking in the service of the Emperor. I am 
 Yiceroy of Chihli. I have been Prefect in Foo- 
 «how for three years, and I was previously in 
 she Fokien province as an official over thirty 
 jears. I have held the office of District Magis- 
 trate as well as Prefect and Sub-prefect in the 
 Fo-kien pro- iuce. As District Magistrate and 
 Prefect and r-ub-Prefect, I bad to administer 
 
 jastice in civil matters I have had 
 
 i,o decide questions arising on similar docu- 
 ments," that is, on documents similar to the 
 agreement of A ugust, 1867. The other witness 
 sailed to prove the law of China applicable to 
 tw> the contract was Ching Che Yeo. Being in- 
 terpreted, he said — " I am Hau Kwan Disti-ict 
 Magistrate and in the service of the Emperor of 
 Ghina. There are two District Magistrates in 
 the city of Foochow, the Ming and the Hau 
 Kwan. Part of my duties as District Magistrate 
 consists in the administration of justice in civil 
 scatters and in putting the official seal to docu- 
 ments between Chinese and between foreigners 
 ■4ud between foreigners and Chinese. I am ac- 
 quainted with the laws and customs of this pro- 
 vince (that is, the province of Fokien in which 
 Foochow is situate), as regards leases. It is 
 part of my duty to adjudicate on leases." When 
 these witnesses were asked, the former what was 
 the law of China, and the latter what was the law 
 of the province of Fokien applicable to the agree- 
 ment of August, 1867, Mr. Hannen, on behalf of the 
 defendant, objected that, as foreign laws were not 
 within the cognisance of this Court, and nothing 
 had been stated in the petition with reference of 
 the construction of that agreement being go- 
 verned by the law of China, evidence was not 
 admissible to prove what that law was. My 
 opinion was that as the agreement had been 
 stated in the petition, and it thereby appeared 
 that it related to lands in China, and that as it 
 was a well recognized principle of English law 
 that the lex loci rei sitce, or the law of the place 
 <vhere the property is situate, of which evidence 
 must be given to the Court as a fact, was to be 
 observed in the construction of agreements re- 
 lating to land, the law of China with reference 
 to the agreement need not be averred ; and I ac- 
 cordingly oveiTuled the objection. The witness, 
 Ting Kia Wai, on being asked what is the law 
 of China applicable to the agreement of August, 
 1867, said, " If rent is owing, the landlord can 
 lake back his house. If no rent is owing, the 
 
 lessor cannot let to anyone else ; but if the land- 
 lord wishes to have the house for himself then 
 the tenant must give it up to the landlord. The 
 landlord generally gives a month or two's notice. 
 If the tenant has been in occupation for a long 
 time, then it is at the option of the landlord 
 either to charge rent for a month or two or to 
 let the tenant occupy for a month or two 
 rent free. Under an agreement of this kind 
 a tenant would not be allowed to erect any 
 buildings, not would Le be allowed to 
 alter buildings already ei'ected at the time 
 of the agreement so as to alter their character." 
 The same witness said that the words in the 
 agreement which are translated " if the rent does 
 not g-et into ari-ear the place may not be let to 
 any one else," are what in England would be 
 called in the legal profession " common form " in 
 a lease for no definite period, and that " if a lease 
 were in \ erpetuity it would be expressed to be in 
 perpetuity; " and, in reply to Mr. Hannen, that 
 witness said, " If a house is burnt down and the 
 tenant rebuilds, an agreement is come to first by 
 which it may be agreed how long the tenant may 
 occupy before giving up possession to the land- 
 lord. There is no custom that tenant should 
 rebuild after a house is burnt down without 
 coming to an agreement with his landlord." The 
 witness, Ching Che Yeo, when asked what is the 
 law of the province of Fokien in regard to the 
 instrument of August, 1867, said, " The instru- 
 ment is a temporary lease, and not a perpetual 
 one; and if the landlord wishes to have the 
 property back and resume possession he can 
 do so under this agreement." And when asked 
 whether under the woi-ds "rent to be paid 
 quarterly in advance," it is at the option of the 
 landlord to refuse rent or not, he replied, 
 — " If the landlord refuses rent, the tenant 
 has to go at once according to law. Generally 
 a tenant has about half a mouth to find a house. 
 Whether rent is to be paid for that period is at 
 the option of the landlord. If the parties went 
 to a magistrate, he would say t e tenant should 
 go at once. If the rent were paid three months 
 in advance, the tenant then woul I have to go at 
 end of three months, if the landlord refused rent. 
 The landlord might give the tenant ten days or 
 a month, or a month and-a-half, according as he 
 chose, before taking possession. Under the words 
 in the agreement, ' the landlord cannot let to any 
 one else than the tenant,' if the landlord wanted 
 the premises for himself he could have them 
 back." By the agreement of August, 1867, it 
 was provided that the rent should be paid quar- 
 terly in advance to t e Trade Committee. Since 
 June, 1878, the directors of the Tao Shan Kwan. 
 had refused, through the Board of Trade, to 
 receive the rent reserved by the agreement of 
 August, 1867; but Mr. Consul Sinclair stated 
 
THE WU SHIH SHAN CASE. 
 
 79 
 
 that he was not quite certain whether he had 
 communicated that refusal to the defendant. No 
 evidence was given on the part of the defendant 
 as to the law of China applicable to the agree- 
 ment of Auij-ust, 1867. Each of the witnesses, 
 Ting Kia Wai and Ching Che Yeo, the former 
 speaking of the law of China and the latter of the 
 law of the province of Fokien, said that if the 
 landlord wanted the land for himself he could 
 resume possession. Neither of those witnesses 
 was either asked or expressed any opinion as to 
 the right of the landlord to take back the premises 
 if he did not himself require them. The con- 
 clusion at which I arrive on their evidence is 
 that the landlord, in order to establish the right 
 to the resumption of property leased in such 
 terms as those mentioned in the agreement of 
 August, 1867, would have t> show that he bond 
 fide required the property for himself, or, in the 
 pi'esent case, for the purposes of the temple. 
 But there is no averment in the petition, nor is 
 there any proof of such fact. The absence of 
 any evidence that the jjlaintiffs required the pro- 
 perty compised in the agreement of August, 
 1867, either for themselves or for the purposes 
 of the Tao Shan Kwan, seems to me to proven*- 
 the Cour from making* a decree declaratory of 
 the plaintiffs' present right to resume possession 
 of that property. If the plaintiffs relied upon 
 the law of China in support of their right under 
 the agreement of August, 1887, to take back the 
 property therein comprised, they ought at all 
 events to have shown by evidence that they re- 
 quired such property for the purposes of the Tao 
 iShan Kvvan Temple. That they have not done. 
 No point was taken at the bar in avoidance to 
 this extent of the agreement of August, 1'"'67, 
 that two, at all events, of the houses therein 
 described were n it then standiug. Nor 
 was t lere any evidence to show that the 
 agreement of August, 1867, was void on any 
 other ground according to the law of Chiua. 
 Also, no evidence was given oq the part of the 
 plaintiffs as to the person or persons (if any) on 
 whom Wolfe's interest in the agreement of 
 August, 1867, would devolve in case of his death, 
 before the property therein comprised was re- 
 quired for the purposes of the temple or he had 
 given up possession of it. The petition prayed 
 that it might be ordered and decreed that the 
 defendant had by his unauthorized and wrongful 
 dealings with tie land and buildings comprised 
 in the agreement of August, 1^67, forfeited all 
 his right and title in and to such lands and build- 
 ings. No evidence was given on the plaintiffs' 
 part to show that the defendant had so dealt 
 with the property comprised in the agreement of 
 August, 1867, as to entitle the plaintiffs to the 
 relief here prayed. The rebuilding of the Mis- 
 sion House in its present form after the former 
 
 one had been burnt down in 1870. was not shown 
 to be an act of forfeiture on the part of tho de- 
 fendant according to the law of China. The 
 removal, too, of the houses compi'ised in the 
 agreement of l-:'50, and the building of other 
 structures of a different character in their place 
 had occurred prior to August, 1 86 7. The petition 
 also prayel that the boundaries of the land com- 
 prised in the agreement of August, 1867, might 
 be ascertained and declared. No declaration that 
 the court could make under the head of relief 
 here asked would be conclusive and binding on 
 the rights of the adjoining land owners, they 
 not being before the court. Such a declaration in 
 this suit might give rise to greater difficulties 
 than it was intended to obviate. With reference 
 to the land let verbally to the Missionary, Ge.>rge 
 Smith, in 1855, the evidence, in my view, shows 
 that the land on which the college stood which 
 was burnt down in August, 1878, was a part of 
 that land. Upon the heai'ing of the causi, au- 
 thorities in the English courts of law were citgd, 
 and it may be asked what would be the opinion 
 of the court on the agreement of August, 18ii7, 
 if it had to decide on the validity or invalidity of 
 that agreement by reference to English law ex- 
 clusively, and not with any reference to Chinese 
 law. If I am right in the view I have expressed, 
 that the case is governed by Chinese law, any 
 expression of opinion of mine on the heal now 
 suggested would be of little avail, and perhaps out 
 of place. I may here observe that the case itself 
 is an anomalous one, and not likely to be of value 
 as a precedent. Nor is the value of the interests 
 involved in it of much moment. But other cir- 
 cumstances have drawn to it a factitious degree 
 of attention which neither the value of the inte- 
 rests involved nor the importance of the points 
 raised justify. The order made by the court is 
 as follows : Dismiss the petition so far as the 
 same relates to the agreement of September. 
 1866, as against the defendant John Richard 
 Wolfe, and as against him as being suel on be- 
 half of the English Church Missionary Sotsiety, 
 with costs to be paid by the plaintiffs to the de- 
 fendant and to the English Church Missionary- 
 Society in the same manner as if the petition 
 had, as soon as it was amended, been demurred 
 to so far as it related to the said agreement of 
 September, 1866, and such demurrer had been 
 allowed. Declare that the agreement of August, 
 18}7, is a valid and subsisting agreement, and 
 that the same ought t > be carried int > effect. 
 Declare that the said agreement of August, 1867, 
 has been in no way forfeited. Declare that the 
 plaintiffs will be entitled to resume possession 
 of the property in the occupation of the defen- 
 dant as lessee of the plaintiffs under the said 
 agreement of August, 186/, on their bond fide 
 requiring the same for the purposes of the Tao 
 
80 
 
 THE WU SHIH SHAN CASE. 
 
 Shan Kwan Temple, and giving" three calendar 
 months' notice thereof to the defenrlaut ; sucb 
 notice to expire on one of the quarterly days on 
 which rent is payable under the said agreement 
 ©£ August, 1867. 
 
 Declare that the defendant is entitled to hold, 
 for the term of his natural life, the property 
 comprised in the agreement of August, 1867, 
 
 subject to tl e payment of the rent thereby re- 
 served, quarterly in advai ce, and subject also to 
 the plaintiffs' right to lesume possession of the 
 same property as before declared. No further 
 costs on either side. 
 
 (Signed) Geokge French, 
 
 Chief Justice. 
 
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