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books show to disprove what the other books prove?
I really fail to see: that some of the 12 tongs names disap- peared, and then re-appeared: nothing else that I can imagine. No, these books on the face of them were palpably genuine and bore out the statements of payments of capital and interest entered in the partnership book. It was proved to my mind as conclusively and legally as books could prove anything, that there were 12 tong partners. The only question is whether the 12 plaintiffs were as they alleged the owners of the 12 tong names. The only other alternative was that there were 12 other men who also owned them and not these 12 men To my mind to find that these were not the 12 men would be an impossiblity.
But was there anything in the way of evidence on the other side which could prevent this conclusion being come to? Mok Kun asserted that it is common to use tong names in business but that the surname must appear: though he limited this in practice to 9 cases out of 10. But his evidence does not amount to much beyond begging the ques- tion: except this, that if the surname was not used no one could tell who the name belonged to, which is in fact the point which lies at the bottom of the use of tong names. Then he said, one man might use several tong names: but his evidence was given in so shifty a manner on this point, that it was entirely unsatisfactory; it ought not to have weighed for a single instant with the jury against the positive and conclusive evidence on the other side.
But before coming to a final opinion on the question I must briefly refer to the well-known cases which lay down the principles on which verdicts of juries may be set aside, as being against the weight of evidence. The law is contained in Metropolitan Railway Company v. Wright, (1) Webster v. Wiedeberg (2) and Jones v. Spencer (3). The rule is stat- ed some what differently in different cases: but I am satisfied that this case falls within any form of words which could be framed in order to express the rule.
(1) 7 App. Cas. 152.
(2) 17 Q. B. D. 736. (3) 77 L. T. 536.
The verdict on this question was one which no reason- able men ought to have found: it was a verdict which no reasonable men should or could, or might have found. I do not see that the recent decision in the Privy Council in Toronto Ry. Co. v. King (4) lays down any rule different from the other cases. But it may be advisable for me to add that in my view the statement on this point of Mok Kun was not worthy of the name of evidence: that at most it was an inconclusive expression of opinion; and that in view of the unsatisfactory nature of the rest of his evidence even this opinion was not to be and ought not to have been relied on. (4) 1908 A. C. 260.
I have looked at this question without reference to the remarks made by the jury on the question of the use of tong names. They were in these terms "The Jury feel it their duty to draw the attention of Your Lordship to the very objectionable system pursued by Chinese firms of concealing the identity of their partners in their accounts by the use of fictitious designations or Tong' names, and are of opinion that firms that keep their books in this manner should not be allowed the benefit of the Courts of this Colony."
The sting of these remarks lies in the last sentence. It was argued strenuously that these remarks should not have been put upon the file, that they are not a 'rider,' are in fact nothing at all, and that the question of the verdict should be considered as if they had never been spoken. That the effect of their having been uttered was very keenly felt by the defendants is shewn by the fact that it was argued that the word 'Government', which was struck out by the jury themselves, and Your Lordship' written in, should be looked upon as if it had not been struck out. The presentation of these remaks is a fact which can- not be denied nor can it be overlooked: the fact is that with these thoughts in their mind the jury gave their verdict, and the question is were those gentlemen of the jury who found that the nine men were not partners in the silk store influenc ed in coming to that conclusion by this thought which was
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