Subject therefore to one or two somewhat technical questions to which I shall refer later, I treat this action as two-fold—for written words contained in the letter to the Consul-General which have produced damage: for maliciously and without reasonable and probable cause setting the Chinese Authorities in motion,
In order to clear away all technical difficulties I should add this: that I apprehend there is no difference between setting a foreign Court in motion, and setting a Chinese Authority (who is called by us a "Magistrate") in such motion as to procure the issue of a document (which is called by us a "warrant"), because it might eventually transpire that the procedure was an executive rather than a judicial process.
Now on this state of things two questions of fact arise: 1. As to the nine plaintiffs, whose names were not mentioned in the letter of the Consul-General, were they partners in the Kwong Hing Cheong silk shop?
2. As to the three plaintiffs, whose names were mentioned in that letter, were they partners in the Cheong Loong sugar shop?
These questions go to the root of the matter; because even if the three plaintiffs were in fact partners in the sugar shop, that would not entitle the defendant to seize the property of persons not partners; and this much may be assumed that all the partners had some share in the property of the firm, and therefore, if there was a silk firm of 12 partners, there was no allegation that they were all partners in the sugar firm, and therefore on the defendants' own case the property has been wrongfully seized.
The third question deals with reasonable and probable cause; it is certainly involved in the action for maliciously setting the foreign procedure in motion, and possibly also in the action for words.
I omit any reference to the fourth question—which relates to libel, for the present. I think these questions cover the whole ground, though as I pointed out in my summing up it is possible that the question of truth may have to be specially considered. Were then the answers of the jury to these questions contrary to the evidence or against the weight of evidence?
First, what evidence was there that the 9 plaintiffs were partners in the silk firm? The whole difficulty arises of course from the fact that they have subscribed to the partnership in their tong names. They each sued (after an amendment had been allowed) in their tong names, with the addition to each "otherwise" their real names, in which they had sued originally. Of course the use of tong names is very puzzling to English people, and it is intended sometimes to puzzle the Chinese themselves. But it is a recognised Chinese custom of carrying on business, more especially partnership business, for purposes which it does not concern this Court to enquire into in the abstract, though it might have to in a concrete case. I have no hesitation in repeating what I said in my summing up—the Court is bound to recognise the existence of this custom, this Court especially, which is open to the Chinese as to British and foreign suitors. The question of identity of the persons suing with their tong partners is of course a difficult problem, but it is not one which the Court, being what it is, can shirk and it must apply to it those legal principles with which it is familiar for ascertaining the truth. If this Court is to retain its hold on the confidence of Chinese suitors, and if it lost that confidence its doors should be closed, it dare not discard evidence on so important a question, merely because the custom is a perplexing one, or one which some of us may disapprove of. Certainly I agree that if the custom could be done away with it might be beneficial; but the Chinese may look at the question from another point of view, and if the Legislature does not think fit to interfere it is not for the Court to do so.
Indeed we should have to go further, for there is not much if any difference between a tong name and what we call an alias, of which most Chinese have many; and also as I said to the jury it does not differ materially in principle from the common mercantile custom of the West, where
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