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Now the first question which arises is, was there in fact reasonable and probable cause for making the statement to the Consul? The answer is obviously-No. I assume one missing fact, that Mok Kun supplied the names; he must have done so on or about the 18th February: that is to say, he must, as the correspondence shows, have furnished them at the last moment. In view of the doubt and uncertainty even with regard to Leung Lai Sang, it is not possible to say that there was reasoliable and probable cause for believing Mok Kun's sudden introduction of two other names. Something was said about the onus of proof being on the plaintiffs to show absence of reasonable and probable cause; they have shewn it out of the mouths of the witnesses called by the defendants and the documents. If the rule as to the onus means that the defendant is at liberty to keep back evidence and witnesses, and so get a verdict, the sooner the law is altered the better. I do not think it is so.
As to the 3rd question, whether the verdict on this question can stand, I say unhesitatingly, that if the matter rested here the verdict could not stand for a moment. It would be absolutely incomprehensible that business men should believe that this was a proper and reasonable way of carrying on business; as a means of extorting money at haphazard it is excellent, but I never believed that a jury in an English Court could look with favour on a statement made as to the liability of a person, made with a view of getting him arrested and the goods seized, not even on suspicion, but in the most reckless fashion, without the slight- est enquiry whether the information was true, or even believ able, but made in the hope of rushing the matter through and so getting a debt paid in advance of other creditors, in spite of the pendency of bankruptcy proceedings.
This describes the action of the defendants in writing the letter of 21st February for which they had not the merest tittle of reason or excuse. I will go further, though it touches on the other branch of the case, if this is the kind of action which the Treaties of Tientsin encourage, the sooner they are torn up the better.
the
I am relieved however from criticising the verdict of the jury on these grounds, because there is a probability that their answer to the 3rd question was merely a corollary from their answer to the 2nd. I had pointed out to them in my summing up, that, although the letter of 21st February might have been written, taking the risk of the statements being true, yet if it subsequently transpired that statements were in fact true, the defendants might perhaps in law get the benefit of the truth, It seems to me there- fore probable that, although the majorities by which the verdicts to the two questions were given varied, the actual majority of 4 which found that the defendants had acted with reasonable and probable cause did so because they had already found the 3 men were in fact partners in the Cheong Loong. It follows that if the verdict on the 2nd question cannot stand, the verdict on the 3rd question must fall with it.
I must at this point criticise my own summing up. Lister v. Perryman () was referred to on the argument in the Full Court by Counsel for defendants as warranting the finding of the jury, by Counsel for the plaintiffs in the opposite sense. But the point on which much stress was laid by the learned Law Lords in that case was that the question of what is reasonable and probable cause in an action for malicious prosecution is to be determined by the Judge, the decision of the Exchequer Chamber in Pan- ton v. Williams () being approved. The only excuse for my not referring to this rule, is, that we have so few actions of tort in the Colony, and the case so bristled with other points, that it escaped my memory, as also that of the Counsel engaged. The point was not taken in the motion, and I do not suppose that the fact that I left a question to the jury which I ought to decide myself would of itself vitiate the verdict. But it seems to me advisable that I should express my view more formally on this question then I have hitherto done, in order to bring the Case within the ideas conveyed by the judgment of the Lords in that leading case, where the facts in some way resemble the facts in this case. I assume that the law is the