H. OF L.]

ABERDEEN ARCTIC COMPANY v. SUTTER.

[H. OF

into that, because I have arrived at the conce which I submit to your Lordships as the proper e that there is nothing to exempt these ships fisting. the Cumberland Inlet from the application of the dinary rule of fast and loose; and, if that be so. :) hardly attempted to dispute that this was a los at the time when it was taken possession of ly boats of the Alibi. I must therefore advise your L ships to reverse the judgment of the Inner He to affirm the interlocutor which was pronounced ba Lord Ordinary.

It govern

with that suggestion, and the drog does not appear to have been used by Bullygar at all for the primary and original purpose of drog-fishing, as it is described by the resps. I am, therefore, obliged to answer these several inquiries in the negative. I mean by inquiries the following questions. Have the vessels, in resorting to Cumberland Inlet, arrived at an understanding among themselves that the rule of fast and loose should not be applicable? My Lords, I answer that question upon evidence in the cause decidedly in the negative. Next I inquire whether the ships resorting to Cumberland Inlet have been in the habit of adopting a different Lord CHELMSFORD.-My Lords, a majority d mode of fishing, to which the rule of fast and loose judges of the First Division of the Court of Se was never applicable? I am obliged to answer that agreed upon three points in this case. First, th question also in the negative. There appears to be custom in whale fishing, commonly called the be no indication that, so far as Europeans were concerned, "fast and loose," must be excluded; secondly, any other mode of fishing was practised by them in there is no settled usage prevailing in Cambri Cumberland Inlet than the old mode of harpoon and Inlet which can take the place of this enstom; line fishing. I ask in the third place whether there therefore, thirdly, that the only law applicable is any evidence that the English and Scotch ships dispute which has arisen is the law of occupancy resorting to Cumberland Inlet were in the habit vailing in Scotland. The importance of havi of employing native Esquimaux to fish for them, accord-settled rule, and of adhering to it in all cases whe ing to the native custom, and according to the alleged can be properly applied, is obvious. usage of drog-fishing? And I am obliged to answer that rights, not of whalers from one country only, question by observing that the Clara alone in the pre- rival nations upon fishing-ground common to them sent case appears to have employed an Esquimaux and it prevents the violent collisions and contests boat's crew, but to have furnished that crew with the would inevitably arise out of conflicting claims t English implements for the purpose of pursuing the possession of the same object of pursuit. Pete general mode of fishing by harpoon and line which had better illustration of the danger of permitting a du been commonly practised. I answer it further by ob- to break upon this general rule of the Northern Wa serving, that it does not appear from the evidence that Fisheries could not be afforded than by the pres either the Alibi or the Sophia had any boat's crew in the case, in which the question whether it had employment of either vessel. One Esquimaux, a man of superseded by an usage peculiar to a limited p the name of Tessuin, appears to have been in the em- the seas in which it prevailed, produced i ployment of the Alibi, but he seems to have been danger of a fierce struggle between the crews employed in his character of harpooner, as the Esqui- two vessels claiming the prize, and led, though maux are more expert in the practice of harpooning slight extent, to bloodshed. The custom than the English fishermen are generally considered to regulates the rights of parties engaged in be. I find therefore that the answers to these ques- fishing in the North Seas, is one which has bee tions entirely exclude the possibility of this action being established, and which has been recognised in dexar maintained. There is nothing at all to warrant the of the highest authority. A majority of the jonotion which has been come to in the court below, either the First Division, however, whilst admitting the that in the whale fishing practised in the Cumberland ence of the custom throughout the North Seas gene Inlet the English and Scotch ships have adopted a held that it was inapplicable to the present case, different mode of fishing from that which is practised cause in Cumberland Inlet, where the dispute in other parts of the Northern Whale Fishery, or that a new and peculiar kind of fishing is carried on, these particular ships were in the practice of another was employed in the capture of the whale in qu mode of fishing, or that this whale was killed by the This mode of fishing, which is shortly describe. operation of a mode of fishing subject to a different rule from that which regulates the mode of fishing adopted Esquimaux, who, when the intercourse between the "drog fishing," was derived by the whalers from t in other portions of the Northern Whale Fishery. Upon and Europeans commenced, appear to have app these grounds, therefore, I must advise your Lordships almost entirely to seal fishing. This they carried a to concur with the conclusion of the Lord Ordinary their light boats, capable of holding only one and with the reasoning of the Lord Ordinary, using lines of about 35 feet long, with drogs rather than with the reasoning of the majority of the end, consisting of inflated seal-skins of about five judges of the Inner House. There is a further ques-feet in length, and about three feet in circumferenc tion in this case which this view of the subject would render it unnecessary to consider, namely, supposing the rule of fast and loose to be superseded by the peculiar practice prevailing in Cumberland Inlet, the question would then be, whether the right of property in the whale would not be governed by the ordinary rule of law, namely, the law of occupancy? It would then become a matter of inquiry whether, in truth, according to the expression of that law found in the best Scotch institutional writers, the fish should be considered to have been so far captured by what Bullygar had done in wounding and entangling it as to give a right to Bullygar's employers to pursue and claim the fish altogether. The actual death was attributable to the harpoons from the boats of the Alibi. If it were necessary to decide that question, I should still further be of opinion that there is not sufficient evidence in the cause to show that, by the law of occupancy, as interpreted in the law of Scotland, this fish belonged to the Clara; but I think it unnecessary to decide or enter

The object of using drogs is to impede the way of fish after it has been struck, and probably also to dicate its position when it rises to the surface duran the pursuit. It is obvious that the Esquimaux not, with the boats and gear which they employed re in fishing for seals, keep their lines attached to the boat. The small extent of their lines would be inst cient to give scope to the fish to exhaust itself befor the whole length was run out, and their light bathi would have been instantly upset if the lines had be retained on board. This species of fishing natives was therefore almost a matter of neces and there is no

words of one of the witnesses) that they reason to suppose (to use the keeping the lines attached to the boat. The Es ever in the habit of fishing with long lines Capt. Penny, who has longer experience in these maux were first employed by the whalers in 18 than any of the other witnesses, says, that origina he did not engage them as seamen, but merely pai

H. OF L.]

ABERDEEN ARCTIC COMPANY v. SUTTER.

46

[H. OF L.

The

hem on board the boats to instruct his seamen in the rest of the fishings. It appears from the evidence that, abits of the whale. He first employed them as sea- when it first became known to the whalers, it was not en in 1853, but never anywhere else than in Cum-resorted to except at the end of the season, when they erland Inlet. From that time the practice of making had failed to make a good fishing in the north; and se of the services of the natives became so well esta- that it is so distinct that some regular whaling vesished that the whaling vessels proceeded on their out- sels have written orders not to go there, and others, ard voyages shorthanded, reckoning upon being able with a smaller crew, go to that fishing alone to obtain fill up the complement of their crew from the the assistance of the natives." The drog-fishing caratives in the event of their fishing in Cumberland ried on in Cumberland Inlet, and apparently not in let. In this manner drog-fishing was first intro- other parts of the North Seas, is also alleged to be a aced amongst the whalers resorting to this inlet. totally different mode of fishing from that previously he usages of the Esquimaux with regard to the employed; because the object of the old method is, if roperty in a captured fish appears to have been that possible, to keep the whale fast, and the essence of he first person whose harpoon struck and remained in drog-fishing is to part with the lines and drogs, leaving ne fish with the lines and drogs attached, was en- the fish, after being struck, to carry them off for the tled to it, although it might be afterwards killed and purpose of retarding its flight. Had the whalers aken possession of by another. I do not find any resorting to this fishing-ground, which is nomiroof that this native rule was ever accepted by the nally at least distinguished from Davis's Straits halers visiting Cumberland Inlet. The time during and the rest of the North Seas, confined themhich drog-fishing has been practised was, of course, selves exclusively to the peculiar mode of fishing uch too short to admit of any new usage tacitly which they learnt from the natives there might have owing up and supplanting the old established one; been some opening for a presumption that a new usage it there was nothing to prevent the adoption of the was to prevail amongst them. But this is not the tive rule, or of any other, by a general agreement case. For it clearly appears that drog-fishing has not nongst the persons engaged in fishing in this part of excluded the old method of fishing in Cumberland e North Seas. An agreement of this kind might Inlet, but that both are carried on together at the same ave been expressly entered into, or it might be im- time. Now it is hardly possible to conceive anylied from circumstances. That no agreement can be thing much more inconvenient or more likely to lead nplied is evident from the fact that the witnesses to endless disputes than in a comparatively narrow iffer amongst themselves as to the period during which range of fishing-ground to have two modes of fishing le use of drogs secures the right to the first harpooner. going on simultaneously, and subject to two different ne witness thinks that the fish would continue a rules, which must be continually conflicting with each fast fish" so long as there was a pursuit of it, but other. But happily the two me:hods of fishing are at it would be a "loose fish" after the crew had lost not separate and independent of each other; but the ght of it for two hours. Another, that it would re-drog-fishing carried on in Cumberland Inlet only forms ain a "fast" fish for any length of time so long as part of the general fishing operations there. e drogs were attached to it, although the pursuit had ordinary method is employed, but drog-fishing with en abandoned; and a third, that even if the drogs the assistance of the natives is added to it. The ad been detached from the coil of the lines, the fish natives appear to be retained not merely for drogould belong to the party who first drogged it. The fishing, but for whale-fishing generally, and no disistence of an express agreement on the subject is tinction can be made between them and the other seastinctly negatived; for it is stated by one of the men engaged in the service. The evidence in this itnesses that an attempt was made by the masters of case clearly shows the general employment of the me vessels other than British to have the Esquimaux natives, and that their services were not confined to istom agreed to by the British whalers as the law or their own peculiar mode of fishing. The boat used sage for fishing in those seas; that Capt. Stewart, of by Bullygar, the native employed by the captain of e Alibi, was the only person who opposed it, and no the Clara, was supplied with long lines similar to those greement of the kind was ever entered into. The in the other boats-lines of a length never used by w of "fast and loose" must therefore prevail in Esquimaux in their fishing, nor capable of being used umberland Inlet as in the rest of the North Seas, together with their boats. The whale in question nless the fishing carried on there is so peculiar and so having been harpooned by Bullygar, the lines were sentially different from the mode of fishing previously paid out for about ten minutes before they were ractised as to render the custom altogether inappli- parted with. The entry in the log-book of the able. This is the opinion of the majority of the Clara gives in a few words the description of Bullygar's adges of the First Division, and holding, as they do, proceedings. This log-book, it must be remembered, hat no other usage has been substituted, they con- was made up on the very day on which the whale ider (to use the words of the Lord President) that was killed, and no doubt after the dispute had arisen he question must be solved by the principles as to the property in it. It is in these words, of their own laws of occupancy. I cannot forbear" Bullygar was obliged to drog his lines, according to he remark that, although the application of the Scotch native custom." Now, I collect from this entry, and aw of occupancy created no difficulty in this case, as from the evidence, that Bullygar intended, if possible, oth the contending parties belonged to Scotland, yet to keep the whale fast, and paid off his lines with that f the fishery in Cumberland Inlet is governed by no intention; but, when they were entirely run out, he isage, but is left to the general law, many perplexing could no longer safely retain them in the boat, and he questions may hereafter arise between the natives of was therefore compelled to part with the drogs at the ifferent countries in which different principles as to end. If Bullygar's boat was engaged solely in drogghts acquired by occupancy may prevail. But I fishing there would have been no more occasion to think it may be fairly questioned whether the drog- mention the necessity of using his drogs than to state fishing carried on in Cumberland Inlet is so essentially that he struck the whale with his harpoon. These different from the former method of fishing as neces-circumstances appear to me to conclude the question, sarily to exclude the established custom. The resps. and to render any further observations unnecessary. not only assert this to be the case, but also endeavour But I must add, that, assuming drog-fishing to be to distinguish Cumberland Inlet from the rest of the essentially different from the former method of fishing North Seas, as an entirely separate and distinct fishing-(upon which a doubt may be fairly entertained), it ground. To a certain extent they have succeeded in must be remembered that, when the whalers, a very giving it something of a distinctive character from the few years ago, adopted it from the natives, and intro

Vel. VI., No. 130, N.S.

[CHAN

CHAN.] Ex parte EDMONDSON, re THOMPSON-Ex parte JOHNSTONE, re NEWTON.

duced it as part of their operations, they were governed
by the established custom of whale-fishing in the
North Seas. They knew that, according to that
custom, a drogged fish would be a loose fish, and the
prize of any one who could afterwards secure it. They
carried with them into Cumberland Inlet their old
method of fishing, and with it the custom which
attached upon it. They might, if they pleased, have
excluded, by common consent, this custom from the
novel mode of fishing which they introduced, or have
substituted some other rule for it within the inlet.
And an endeavour seems to have been made to regulate
their rights by an agreement, confined to that part of
the seas. This having failed, and it being admitted
that there is no local usage to take the place of the
general custom, there seems to me to be nothing in
the character of the Cumberland Inlet, or in the pecu-
liar nature of drog-fishing, which is necessarily incom-
patible with the prevalence of the custom within
those limits, and that it must therefore attach upon
the fishery operations carried on there, in the same
manner as throughout the whole fisheries in the rest
of the North Seas. For these reasons I agree in the
opinions of the majority of the judges in Scotland;
and think this judgment ought to be reversed.
Lord KINGSDOWN concurred.

Judgment reversed.

Equity Courts.

COURT OF APPEAL IN CHANCERY.

Reported by C. H. KEENE and THOMAS BROOKSBANK,
Esqrs., Barristers-at-Law.

Friday, Feb. 21.

(Before the LORDS JUSTICES.)
Ex parte EDMONDSON, re THOMPSON.
Costs-Action by assignees-Consent of creditors
Jurisdiction.

An action to try whether the bankrupt had been in
partnership with A. was brought by the assignees,
with the consent of a majority of the creditors,
and ended in the defeat of the plts. Some of
the creditors then objected to payment of the costs
out of the estate, on the ground that this was
not an action within the meaning of sect. 153 of
the Bankrupt Law Consolidation Act 1849. The
learned Commissioner having refused to order the
payment of costs,

Their Lordships, on appeal, reversed the decision, being of opinion that the creditors desiring to oppose should have taken the objection before the result of the action was known.

This case came before the court on an appeal from Mr. Commissioner Ayrton, of the Leeds District Court of Bankruptcy.

leave was, however, given them to move to enter a verdict in their favour, if the court should be opinion that the agreement in question constituted a partnership. The court was accordingly moved, but t motion failed; and, upon this, notice was given by th resp. upon the motion to the registrar not to alv the assignees the costs of the action out of the esta the resp. relying chiefly upon the ground that ta commissioner had no jurisdiction to give leave to th assignees to bring the action.

This question was afterwards adjourned befor commissioner himself, and he directed that a meeting of creditors should be called, for the purpose: considering the question and taking their opinion e the propriety of allowing the costs. At this meeting. majority was in favour of allowing them; but allowance was again opposed by the original oppone who contended before the commissioner that the 152 section of the Bankrupt Law Consolidation Act 18 which section is not repealed by the Act of 19 and which enacts "that the assignees, with the of the court first obtained upon application to court, but not otherwise, may commence, prosecut, defend any action at law or suit in equity which & bankrupt might have commenced or prosecuted defended, and in such case the costs to which the may be put in such suit or action shall be allowed of the proceeds of the estate and effects of the bus rupt," only applied to actions which the bankrupt self might, but for his bankruptcy, have brought. Th learned Commissioner put this construction apetis section, and held that he had no jurisdiction to payment of the costs out of the estate, and the assignees appealed.

De Gex supported the appeal, and argued thr 153rd section authorised such an order; but that ens if it did not, the commissioner had jurisdicti sanction proceedings at law and to provide for the out of the estate.

Bacon, Q. C., for the creditors who had opposed allowance, contended that the view of the learned fr missioner was right, and that he had no jurist He also argued that the action ought never to been brought, and that it could not have been of så vantage to the estate.

Follett, Q. C., for the official assignee, submitted question to their Lordships, but stated that the mained not more than 2501. of the estate, which w be insufficient to pay the costs of this application ata before the commissioner, if the costs of the action to be now allowed.

De Gex, in reply, said that no objection to the arti was made until after it had failed. The propert for objecting to it was when the application was at to the court to authorise it.

Saturday, March 1.
(Before the LORDS JUSTICES.)
Ex parte JOHNStone, re Newton.
Bankruptcy Act 1861-Sect. 171-Discharge of hal-

Their LORDSHIPS thought the resps. were bound their own conduct. If they objected to the action,t The adjudication against Mr. Thompson took place ought not to have waited till the result was knowa in the summer of last year, and soon afterwards a fore they objected to the jurisdiction and the question arose whether there had not been a partner-missioner's first order. They must order the casts 13 ship existing between the bankrupt and Mr. Blakey.be paid out of the estate. The opinion of counsel was that there had been such a partnership, and, after an examination of the parties before the commissioner, the sense of a meeting of creditors called to consider the question, whether an action should be brought to try the question, was taken; and a resolution that an action should be begun was carried by a majority in number and value of the creditors. Upon this the learned Commissioner made an order authorising the assignees to bring the action either in their own names or otherwise, as they might be advised, and either against the alleged partner, Mr. Blakey, or such other person as they might be advised. At the trial an agreement between the parties was attempted to be set up, but the result was a nonsuit of the plts.;

rupt-Surprise within that section. The meeting for the final examination and dischar a bankrupt was fixed for a certain day before que of the learned commissioners. A creditor who # tended to oppose instructed his solicitor, who seat the court on that morning and was there informal that the case would not be taken that day,

the case inserted on either of the lists of busi The creditor did not attend, but an order of die was made on that day by another of the cam

CHAN.]

Re THE NATIONAL ASSURANCE AND INVESTMENT ASSOCIATION.

sioners. Upon motion to vary or discharge that order,

Held, that this was a case of surprise within sect. 171 of the statute, and the case was remitted to the court below, with liberty to the bankrupt to renew his application there.

This was a motion on behalf of Mr. Johnstone, one of the creditors (who had proved his debt) of the bankrupt, Mr. Augustus Newton, seeking to reverse or vary an order bearing date the 29th Jan. 1862, whereby Mr. Commissioner Holroyd, sitting for Mr. Commissioner Fonblanque and on his behalf, had ordered the discharge of the bankrupt. The circumstances were these:

[ROLLS.

I believe, that Mr. Newton's case would not come before the court on the 29th Jan. last, the day for which he had originally understood that it was fixed, and no negligence could be imputed to him. He ought, therefore, not to be deprived of his right of opposing, and the order for the discharge of the bankrupt must be cancelled or reversed, with liberty for him to renew his application to the court, and the deposit must be returned to the opposing creditor.

Lord Justice TURNER concurred, being clearly of opinion that this was a case of surprise within the 171st section of the new Act.

Solicitor for the opposing creditor, Mr. Mallam.

ROLLS COURT.

Reported by H. R. YOUNG, Esq., Barrister-at-Law.
Wednesday, March 19.

ASSOCIATION.

butory.

The meeting for the final examination and the discharge of the bankrupt was fixed for the day on which the above order was made, and accordingly on that morning Mr. Johnstone's solicitor, being instructed to oppose the bankrupt's discharge, sent one of his clerks to the Bankruptcy Court in Basinghall-street, to ascer- Re THE NATIONAL ASSURANCE AND INVESTMENT tain whether the case would come before the court on that day. The messenger was informed in the court | Joint-stock company-Director and trustee-Contriof Mr. Commissioner Fonblanque, to which this particular bankruptcy was attached, that the case was not in the paper for hearing on that day, and that it would not come on. The clerk was not satisfied with this, but, upon further investigation, he ascertained that the case was not on the general list exhibited in the hall, nor on the special paper of business before Mr. Commissioner Fonblanque. Relying upon this information, neither Mr. Johnstone nor his solicitor on his behalf appeared to oppose. The case was, however, taken by Mr. Commissioner Holroyd, the bankrupt passed his final examination and received his order of discharge.

If a person authorises a director of a company to apply to the board of it to elect him as a director, he must be taken to authorise the directors who elect him to do all that is legal and necessary to constitute him a director of the company; and he cannot afterwards say that he did not authorise them to take the proper course they may for the purpose; or that authority was not given them to do

80:

The Marquis of Abercorn was held to be a contributory to the above-mentioned association; though the extent of his liabilities was not stated.

66

:

Under these circumstances, which were duly proved, This case was reported ante, p. 118, on the question an application was made by Mr. Johnstone to Mr. Com-whether the depositors" in the association were conmissioner Fonblanque to rehear the case, but he, being tributories to it and the points to be now decided of opinion that he had no jurisdiction under the Act, were, whether the Marquis of Abercorn ought to be refused the application, and the present motion was placed on the list of contributories; and, if so, whether as a director and trustee, or in either and which of such characters?

made.

Sargood supported the application, and submitted that the court had entire jurisdiction upon appeal against any decision with respect to an order of discharge, whether the order were made or refused, and he referred to the 171st section of the Act of 1861, which provides that "at any time within thirty days after any order of discharge shall have been allowed or refused, and subject to such order as to deposit of costs as general orders shall direct, any creditor of the bankrupt, or any creditors' assignee, or the bankrupt, may, if the order of discharge has been made or refused by any commissioner or County Court judge, apply to the Court of Appeal in Chancery that such order of discharge may be granted or recalled and delivered up to be cancelled; and such court may, on good cause shown, order such order of discharge to be granted, or to be recalled and cancelled." The order made under the circumstances in evidence was a clear case of surprise upon the opposing creditor, and he was entitled to have the case remitted to the court below, and there considered, which had in fact never been done at all. Mr. Newton, the bankrupt, in person, urged that every requisition of the law had been strictly complied with, and it was through no misstatement, neglect, or fault on his part that the mistake had occurred; it would therefore be unjust to subject him to the expense and annoyance of undergoing another examination, and applying for a second order of discharge. Lord Justice KNIGHT BRUCE said that, however the mistake might have occurred, whether it was by the fault of any person connected with the court in Basinghall-street, or whether it was by a mere accident, it was quite clear that the opposing creditor had been misled by no fault of his own or of his solicitor. Mr. Johnstone had been led to believe, and did in fact

By the deed of settlement of the association, and which was dated the 9th Dec. 1851, it was (inter alia) provided by sect. 45 as follows:

"Until the ordinary general meeting in the year 1857, no person shall be or continue a director of the association unless he shall hold stock to the amount of 100%. at least, or shall hold a mutual policy or mutual policies for the term of life of sums amounting in the aggregate to the sum of 9997. at least in the association :-And at, from, and after the holding of the ordinary general meeting in 1857 no person shall be elected or continue a director of the association unless he shall hold stock to the amount of 250l. at least, or shall hold a mutual policy or mutual policies for the term of life and for sums amounting in the aggregate to 1998. at least in the association, or shall hold stock to the amount of 125. at least, and also a mutual policy or mutual policies in the association for the term of life, and for sums amounting in the aggregate to not less than 999/., but no act, matter, or thing whatever which shall be made, done, or performed by the persons acting as directors for the time being shall be invalidated by reason of any disqualification of any one or more of the directors."

By another clause of the deed it was provided that any managing or other director, auditor, or trustee, or actuary, might resign his office, by sending notice in writing of such resignation to the directors, and that two months after the receipt of such notice by the directors his office should be vacant.

At a meeting of the association, held in the month of Oct. 1853, it was unanimously resolved, "That the Marquis of Abercorn, having applied by letter to Mr. Wells to be made a director of the association,

Exple Official Liquidat

B.

Re THE NATIONAL ASSURANCE AND INVESTMENT ASSOCIATION.

"P. MORRISON. "April 19, 1856. "My Lord, I had yesterday the honour of receiving your Lordship's letter of the 15th inst., referring to a conversation which I recently had with your Lordship on the subject of becoming a holder of some of the stock of the National Assurance and Investment Association and Bank of Deposit; and in reply, I beg leave to state that your Lordship is not a holder of any of the capital stock of the company. The stock which Mr. Wells had arranged for your Lordship to have was never transferred into your Lordship's name.-I have the honour, &c.,

"P. MORRISON, Managing Director." May 26, 1856. "My Lord,-Referring to the letter which I had the honour of addressing to your Lordship on the 19th ult., it may be satisfactory for me to add that your| Lordship's name was, at the request of Mr. Wells, withdrawn from the list of directors of this company at the end of Dec. 1854, and from that date your Lordship ceased to be a director of the company. Permit me further to say that your Lordship's name now only remains in the list of honorary trustees, to whom no liability attaches.-I have the honour, &c., "P. MORRISON."

Redvaterloo Life vel or Saunders Case 10 L. I.P. S. 3. £ J.J.