CO129-355 - Governor Sir Lugard - 1909 [1-3] — Page 412

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firms are known by their old established names, often long after the original partners and their descendants have ceased to have any connexion with it.

The point on which I think it is necessary to insist is that there is nothing inherent in the question which the use of tong names presents to necessitate any departure from the ordinary rules of evidence. This evidence is of two classes, the sworn testimony of witnesses and the silent testimony of the books of the firm. I know of no rule which says that the person professing to be the owner of a toug name must go into the witness box and swear he is the man because he is one of many plaintiffs: that must be for the plaintiffs' advisers to decide, if they think that the other evidence is not sufficiently stable. The evidence was this: the two plaintiffs, Wong Hiu Tong and Leung Lai Sang,swore that they themselves and the other plaintiffs on the record were in fact the owners of the tong names used in the partnership books, and partners in the firm: further, one of the vine, Leung Lai Nam, was called and swore as to his tong name, and to being a partner, as also to the other eight. The plain. tiff Cheung Tsz Yuen was an original partner, but he took no active part in the business and did not speak as to the other plaintiffs. It was curious that there happened to be in his case some little explanation required as to a change in his tong name: if I can believe one part of his story I can believe the rest. But there is this further observation to be made: if these tong names were wholly imaginary as the defendants tried to make out, this man would assuredly have selected another us to which no explanation was re- quired: a witness of untruth does not go out of his way to court difficulties in the way of establishing his story. I must go ahead a little way before leaving this part of the case. If there were anything in the rest of the evidence of these witnesses which would lead me to doubt their words, I should do so as to this part: but I do not disbelieve the rest of the evidence. Now I turn to the books: and here we come to the Evidence Ordinance. If the books are well kept, if they are apparently kept regularly and in the course of business, they are to be admitted as prima facie evidence of the truth of their contents; but they are not to be suffi- cient alone to establish liability. That condition is satisfied in this case by the evidence of four of the partners. It then really becomes a question of law: if the prima facies is not rebutted it ought to be admitted.

Now the way in which I put the evidence to be derived from the books was this. The partnership document, not agreement, for it did not profess to be that, had the names of 12 tongs written in it by the man Wong Hiu Tung, who drew it up. Now did the books show that there were in fact 12 partners?

The partnership book which contained the partnership receipts of capital and payments of interest and profits, shewed these 12 tong nanies. This being challenged the man went immediately to Canton and within 48 hours produced seven old and new cash books for the years 1893, 1894, 1895, 1901, 1902, 1906, and 1907. He explained the absence of the others by destruction by white ants and by loss of a box which was sunk in the river, during the seizure. Now some comment was made as to the books not being complete, and it was pointed out that the missing years were just those (1903 to 1905) when the Cheong Loong was doing business. I am unable to follow this argument, because it loses sight of the object with which these books were produced, which was to support the entries made in the partnership book: and when we find that a series of books which comprised years at the begin- ning, in the middle, and at the end, all of them containing the entries which they ought to contain if the partnership book is genuine, how is it possible to say that the whole series is not genuine, and does not prove conclusively that there were 12 partners, and that these 12 partners had these 12 tong names. But it is said, Ob the jury might have discredited them on account of the loss of the remain- ing cash books. But it is not permissible for a jury to take up any random suggestion which may occur to them: it must at least have some relation to the question for which the books were produced. What could the missing

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