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the administration of a law so peculiar as this, among a people like the Chinese, circumstances under which it would be tantamount to a denial of justice to prevent parties impeaching the evidence of the register on the ground of fraud or mistake, or for some kindred reason.
In the next place, it is beyond dispute that a register kept with the professed object of preventing the commission of frauds should in itself be in a high degree trustworthy. Otherwise, instead of being re- garded as a safeguard, it would be apt to be looked upon in the light of a snare. Now it seems to me to be a part of the inherent weakness of the scheme that in carrying it out, you have to rely on the integrity of some at least of the very persons against whose assumed lack of integrity the Ordinance is directed. In other words, you must needs assume that persons will faithfully register themselves, or allow themselves to be faithfully registered, who, if not so registered, might hereafter fraudulently seek to evade their liabi- lities. To me, who have had some opportunity of studying that side of Chinese human nature which too frequently displays itself in our Courts of law, this seems to be assuming a good deal. I anticipate that the register books would be honeycombed with inaccuracies ab initio, originating, perhaps, sometimes in mistake but more often in design. But even admitting this conjecture to be too gloomy, and that the register would in its early stages be likely to be reasonably accurate, how long would it probably remain so?
Turning to the Ordinance, we find section XXIV to be as follows:--
“XXIV. Upon any change taking place in the partners or their residence, or in the manager or his residence, or in any other of the foregoing matters, the master or manager of the business shall, within fourteen days thereafter, furnish the Registrar-General with full particulars of such change for entry in the register."
The register is thus made subject to perpetual changes without restriction: such a provision being indeed in the nature of things essential. But what is likely to be its effect upon the trustworthiness of the record? We have only to look to the reports of the liquidation of many a joint-stock company, subject to further calls, to find the too probable answer. The Law Reports teem with cases in which upon the approach of difficulties shareholders' registers have been manipulated for the purposes of shifting ultimate liability from responsible parties to the shoulders of men of straw. As Chinese traders do not enjoy the reputation of being either less astute or more scrupulous than other people, can it be doubted that a similar result would follow ?
It becomes, moreover, obvious that to be of any practical benefit, this register would require, owing to its liability to change, very frequent consultation. But little reflection, I think, is required to shew that it would not and could not be so consulted as a matter of business. How many people, for instance, before purchasing shares in, or doing business with, joint-stock companies, consult the register of shareholders ? How often in daily business life is the register of Bills of Sale consulted? In both cases most valuable information might frequently be given. Nevertheless it is a matter of common experience that reference is but rarely made to them. So long as a business concern was really or apparently successful, parties dealing with it and trusting it would probably never dream of consulting any official document relating to it at all. Once, however, let it approach the border of difficulties, and the chances are that the "register" would display upon reference the unexpected results I have indicated.
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I come next to a class of difficulties which arise from the application of the Bill to the law of partner- ship. The term “ "partners" not being defined, a very considerable field of inquiry is left open as to its precise meaning. How, in the first place, is it to be interpreted? According to the law of England simply? or are we to be at liberty to take into consideration the usages and customs of the Chinese traders? These are incorporated without doubt into their dealings with each other, and although they are never formulated they are nevertheless tacitly accepted and acted on, and form a law of partnership possessing an organization of considerable complexity. Suppose some of these customs and usages to be opposed to any leading dogma of the English law, may they be imparted into the contract of partnership, or are they to be rejected in toto?
Ordinance 12 of 1873, section I., following the earlier Ordinances ou the same subject, enacts that the law of England shall be in force in the Colony "except in so far as the said laws shall be inapplicable to the local circumstances of the Colony or its inhabitants." In giving their decision in a recent case of appeal (1872) from India on a question of partnership, the Privy Council made some remarks very perti- nent to this difficulty, and having an important bearing on the meaning of the above section. They say, “The case has been argued in the Courts of India and at their Lordships' bar, on the basis that the law of England relating to partnerships should govern the decision of it. Their Lordships agree that in the absence of any law or well-established custom existing in India on the subject, English law may properly be resorted to in mercantile affairs for principles and rules to guide the Court in that country to a right decision. But whilst this is so, it should be observed that in applying them, the usages of trade and habits of business of the people of India, so far as they may be peculiar, and differ from those in England, ought to to be borne in mind." (Maliwo and March v. The Court of Awards-Law Reports 4 Privy Council 433). Are the Colonial Courts, in construing the word "partners," to follow this reasonable rule, or are they to assume that it is used rigidly in its English sense?