It is perfectly true that the compradore stands in a position of confidence to his firm, that they must rely in large measure on the information he gives them with regard to the credit of Chinese customers; but in the circumstances of this case, having in view more especially these facts, first that he had never, while the Cheong Loong was actually trading with the defendants, given the slightest indication, as would have been his duty, that these Canton men were partners: secondly, that he had only mentioned one—Leung Lai Sang—as being a partner, up to the very last minute, when I assume that he mentioned the three: thirdly, that, bearing in mind the first fact, no enquiry into his reasons for alleging that Leung Lai Sang was a partner, was ever made, which, in view of the uncertainty which was apparent as to the reliability of this fact even, it was in my opinion their duty to make, I am of opinion that the action which they suddenly took on 21st February, in stating to the Consul that these 3 men were partners, was without reasonable and probable cause: and that it was also without reasonable and probable cause with regard to Leung Lai Sang.
There was a suggestion thrown out in argument that the defendants really knew all the time that three men were partners, but that they wanted to get hold of the rich man Leung Lai Sang first, and then despairing of getting him they launched the Consul-General and the Chinese Magistrate against all three as they always had intended. The facts and the correspondence do not warrant the acceptance of this suggestion.
I think I may give now a satisfactory explanation of the effect of subsequently ascertained truth, as to which I do not think that there is any decided case to which I could look for guidance. It can only affect the quantum of damages. The question whether the defendants acted with reasonable and probable cause when they wrote the letter of 21st February is a question of fact, dependent on the circumstances of the case. They must act in such a matter as people are supposed to act in other matters: that is to say, they act at their peril, that is to say, if they have made a false statement they must take the consequences—they take the risk. If what they have said turns out to be true that will go to reduce the damages; the plaintiff would be entitled to a verdict, but the jury would be justified in returning nominal damages.
From all points of view, therefore, I think the verdict on this question cannot stand. There was not, as I have said, a tittle of evidence to support a negative answer to the question, and no reasonable jury could possibly have found such a verdict: and if they did look on it, in consequence of my direction, as a necessary consequence of their answer to the second question, they were inadvertently wrong. Apart from this, the finding on that question being itself against the weight of evidence, it cannot stand as being merely linked on to the verdict on that question.
The remaining question is whether this letter constitutes a libel: and this also the jury have answered in the negative. I explained in my summing-up the respective functions of Judge and jury in actions of libel: that the Judge was to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and he must then leave it to the jury to say whether the publication has the meaning ascribed to it. This part of the summing up is not very accurately reported, but I think the substance of what I said is reported. There is a slight complication in this part of the case because the words alleged to have been used which bore innuendos had been abandoned: and we then had only to deal with following statements: that the 3 plaintiffs were partners in the Cheong Loong: that the Cheong Loong were indebted to the defendants in the sum of about $50,000; and that the plaintiffs and their firm and property were liable to pay this sum (less $5,000). There is no innuendo wanted here: it is merely a statement alleged to be false, which would on the face of it cause damage to the plaintiffs in their trade as merchants, and which would, therefore, if false, be actionable. I have some doubts whether in an action for words of this sort it is necessary
Page 419