IMAGE EVALUATION TEST TARGET (MT-S) .'A 1.0 I.I 1.25 f.^ Illil .J llllitt 1122 t li£ 12.0 1.4 Photographic Sciences Corporation 1.8 1.6 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 w Ijl iW;»m5jjJS;!,5||lp,^iijit,4, s. €< ^o CIHM/ICMH Microfiche Series. CIHM/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques Is :\ \ __^ - '• ■■-"'- ^■■--.^w.k-W*AuUA'53fili^Xi^viJ--ilfe«M^^ ■■^■/■-^.■A.-'-^^r-iv: Technical and Bibliographic Notes/Notes techniques et bibllographiques The Institute has attempted to obtain the best original copy available for filming. Features of this copy which may be bibliographically unique, which may alter any of the images In the reproduction, or which may significantly change the usual method of filming, are checked below. D D D I — I Coloured maps/ Coloured covers/ Couverture de couleur Covers damaged/ Couverture endommagde Covers restored and/or laminated/ Couverture restaurde et/ou pellicul6e Cover title missing/ Le titre de couverture nanque D D D D D D Cartes gdographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Rell6 avec d'autres documents Tight binding may cause shadows or distortion along interior margin/ La reliure serr^e peut causer de I'ombre ou de la distortion le long de la marge int^rieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajoutdes lors d'une restauration apparaissent dans le texte, mais, lorsque cela 6tait possible, ces pages n'ont pas 6t6 film^es. Additional comments:/ Commentaires suppldmentaires; L'Institut a microfilmd le meilleur exemplaira qu'il lui a 6t6 possible de se procurer. Les details de cet exemplaire qui sont peut-dtre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la m6thode normale de filmage sont indiqu6s ci-dessous. I — I Coloured pages/ Pages de couleur Pages damaged/ Pages endommagdes Pages restored and/oi Pages restaurdes et/ou pellicul6es Pages discoloured, stained or foxei Pages d6color6es, tachetdes ou piqu^es Pages detached/ Pages ddtach^es Showthrough/ Transparence Quality of prir Qualitd indgale de I'impression Includes supplementary materh Comprend du materiel supplementaire Only edition available/ Seula Edition disponible I — I Pages damaged/ I — I Pages restored and/or laminated/ I — I Pages discoloured, stained or foxed/ I — I Pages detached/ I I Showthrough/ I — I Quality of print varies/ I — I Includes supplementary material/ I — I Only edition available/ D Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partiellement obscurcies par un feuillet d'errata, une pelure, etc., ont 6t6 filmdes d nouveau de fapon d obtenir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film6 au taux de reduction indiqud ci-dessous. 10X 14X 18X 22X 26X 30X ^^^^ 1 1 12X 16X 20X 24X 28X 32X 1 1 1 plaire es details liques du )nt modifier ixiger une de filmage The copy filmed hjre has been reproduced thanks to the generosity of: Library of Congress Photodupiication Service The images appearing here are the best quality possible considering the condition and legibility of the origina: copy and in keeping with the filming contract specifications. L'exemplaire film6 fut reproduit grdce d la g6n6rosit6 de: Library of Congress Photodupiication Service Les images suivantes ont 6x6 reproduites avec lo plus grand soin, compte tenu de la condition et de la nettetd de Texemplaire filmd, et en conformity avec les conditions du contrat de filmage. ed/ iqu^es Original copies in printed paper covers are filmed beginning with the front cover and ending on the last page with a printed or illustrated imp'-3s- sion, or the back cover when appropriate. All other original copies are filmed beginning on the first page with a printed or illustrated impres- sion, and ending on the last page with a printed or illustrated impression. The last recorded frame on each microfiche shall contain the symbol — ^> (meaning 'CON- TINUED"), or the symbol V (meaning "END"), whichever applies. Les exemplaires originaux dont la couverture en papier est imprimde sont filmds en commenpant par le premier plat et en terminant soit par la dernf^re page qui comporte une empreinte d'impiession ou d'illustration, soit par le second plat, selon le cas. Tous les autres exemplaires originaux sont film^s en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la dernidre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — ^> signifie "A SUIVRE", le symbole V signifie "FIN". ntaire Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc.. peuvent dtre film6s d des taux de reduction diffdrents. Lorsque le document est trop grand pour dtre reproduit en un seul clich6, il est filmd d partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la m^thode. >d by errata ilmed to iment 3, une pelure, le fapon d tie. 1 2 3 32X 1 2 3 4 5 6 nr THE YIGE-ABMIBALTT COUBT 07 NOVA SCOTIA. >•■ 7- 41 Heu Majesty the Queen, plaintiff, ) against I The Ship oe Vessel '< David J. Adams" & hee VNo. cargo. Action for forleiture of said vessel and I cargo, &c., &c. 3 472. May 10, 1886. A writ of summonB was issued to Wallace Qraham on behalf of the Attorney General of Canada against the ship David J. Adams and her cargo in an action for violation of the convention of 1818. Also for the forfeiture of said vossel and cargo for violation of sundry acts of the Dominion Parliament as above set forth. May 10. Wallace Graham filed copy of writ of summons. May 13. The Judge at Chambers on the application of Robert L. Borden Counsel for plaintiff ordered that the writ of summons be amended by striking out cer'<:^in words in the title of the action and by striking out certain words in the indorsement of claim on said writ of summons. May 13. B. L. Borden filed his own affidavit made this day, the order to amend summons, the affidavit of P. A. Scott to lead warrant, and the copy of amended summons with minute of filing. May 13. A warrant was issued to Wallace Graham on behalf of Her Majesty the Queen against the ship David J. Adams and her cargo in an action for forfeiture of said vessel and cargo. On the 13th day of May, 1886. Before the Honorable James McDon- ald, Judge. Upon reading the writ of summons herein and the several indorse- ments thereon and the affidavit and certificate of Benjamin Van Blar- «om of the service thereof and the affidavit of Bobert L. Borden herein sworn the 13th day of May 1886 and upon hearing Mr. Borden on be- half of the Crown- It is ordered that the writ of summons in this action be amended by striking out of the title of the action and immediately before the words ''Victoria by the Grace of God " in the said writ of summons the words "Also for forfeiture of the said vessel and her cargo for violation of chapter 12 of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1883 and the Acts in amendment thereof 104 A 1 :i^/^ 1.1 : V,*-'W|WfV= ft flBii^fliWMip^'T'"' tv 2 and also that tbo said writ of sammons and tbe~ indorsement of clait or statement of the nature of the claim endorsed on said writ of sum mons be amended by striking out of the said endorsement of claim oi statement of the nature of the claim indorsed on said writ of summons the following words or paragraph at the end of the said indorsement of claim or statement of the nature of the claim indorseil on the said writ of summons namely " The said Honorable John 8. ]). Thompson Hei Majesty's Attorney General for the Dominion of Canada also claims on behalf of Her Majesty tlie (jueen to have the said ship David J. Adama and her cargo condemned as forfeited to Her Majesty the Queen for violation of chapter 12 of the Acts of the Parliament of the Dominion of Oanada made and passoil in the year 1883 and intituled the Customs Act 1883 and the Acts of the said Parliament of the Dominion of Can- ada in amendment thereof and the said writ of summons and the sev- eral indorsements thereon and the said indorsement of claim or state- ment of the nature of the claim indorsed on the said writ of summons^ and all other proceedings in this cause are hereby amended accordingly. May 15. The Judge at Chambers on the application of II. L. Borden ordered the immediate sale of a portion of the cargo of said vessel viz^ about 1500 lbs. fresh unsalted halibut and 15 bbls. fresh unsalted bait or herrings by the Marshal or his Deputy at public Auction at or near Digby and without a Commission of sale being issued. May 18. The Marshal filed onginal warrant with deputation and affi- davit of service attached. May 20. W. Graham filed original amended writ of sammons with two affidavits of Van Blarcom annexed thereto, the affidavit of P. A. Scott made 13th inst., the affidavit of B. L. Bonlen maon his own affidavit >r pleadings with min- ott and two affidavits dge having heard So- ld; order acco'tlingly rith minute of filing. >f filing. « of filing, remainder of cargo, minute of filing, h minute of filing, tiff issued to Wallace niffute of filing. ;^^ 5 8 orter. Mr. Graham concluded his argument in about ten min- utes when Mr. Meagher commenced for the defence. Atlo'clkaAJoumed for 4S minutes, resumed at 1.46 and sat until Mr. Meagher still ar- guing, then adjourned to Monday at 10 o'clk a. m. June 6. Court opened at 10 o'clk. a. m^ Present W. Graham & R. L. Borden for Crown. N. H. Meagher for defs. Raporter W. W. MoLellan entered at 10.25. Mr. Meagher resumed his argument and concluded at 10.50 a. m. when Mr. Borden commenced to reply and finished at 12 noon, when the Court adjourned sine die. IV THE VICE ADKIBALTT OOVBT OF HOVA SOOTIA. Heb Majesty the Queen, plaintiff, 1 against ] The Ship ob Vessel "David J. Adams" and ^No. 472. her cargo. Action for forfeiture of said vessel I and cargo, &c., &c. } I Lewis W. DesBanes Registrar of said Court do hereby Certify that the foregoing paper writing is a true and correct transcript of the record of all the proceedings in said cause entered in the Minute Book of said ' Vice Admiralty Court. Witness ray hand seal of said Court at Halifax Nova Scotia this nine- teenth d^y of October 1887. [seal.] L. W. Pes Babbes, Registrar. (Indorsed :) Vice- Admiralty Court of Nova Scotia. Queen & Adams Memo. Trial. IN THE VICE ADMIBALTT GOUBT OF NOVA SCOTIA Heb Majesty the Queen, plaintiff, against The Ship " Ella M. Doughty" and heb Gabgo. }^No. 473. Action for forfeiture of the said vessel and her cargo &c. &c. May 20, 1886. A writ of summons was issued to Wallace Graham on behalf of the Attorney General of Canada against the ship Mia M, Doughty and her cargo in an action for violation of the convention of l)4aiM&iiMrfiBHi'fcuiiui> BD absent was sent i, 6, & 6 by Jndge. itlo'ol'kadUonrned Then adjoarned to aham Boss & Bor- 8, also W. W. Mo- lt iu about tea min- Uio'clka^jonrned r. Meagher still ar- ^ Graham & B. L. »r W. W. MoLellan mt and conoladed ly and finished at i SCOTIA. ). 472. reby Certify that ript of the record late Book of said Scotia this nine- Babbes, Hegistrar. Queen & Jdams SCOTIA. [). 473. ace Graham on ship Mia M. i convention of 1818. Also for the forfeitare of said vessel and cargo for violation of sundry acts of the Dominion Parliament as above set forth. May 20. Wallace Graham filed copy of summons. May 28. W. Graham filed the affidavit of Lauchliu G. Campbell, to lead the warrant sworn 25th inst. May 28. A warrant was issued to Wallace Graham on behalf of Her M^esty the Queen against the ship Ella M. Doughty and her cargo in an action for forfeiture of said vessel and cargo. June 19. N. H. Meagher filed bond of John Lyle for $240. The claim of Warren A. Doughty & others and affidavit of W. A. Doughty, con- sent of Wallace Graham to bail & release of ship &c., and the Bail Bond of John Lyle and H. A. Fuller in $3000.00. June 19. A Belease of the ship & cargo was issued to N. H. Meaghor. June 23. The Marshal filed the warrant with affidavit of L. G. Camp- bell annexed. Jnne 24. N. H. Meagher filed appearance for Warren A. Doughty with minute of filing. June 28. B. L. Borden filed his own affidavit with exhibit made this day and notice of motion for pleadings with minute of filing. June 28. B. L. Borden filed original writ of summons. . June 29. At Chambers 12 o'clk. noon. The Judge having heard So- licitors on both sides ordered pleadings to be filed — order accordingly signed by Begistrar. Jnne 30. W. Graham filed order for pleadings with minute of filing. July 6. W. Graham filed petition with minute of flliug. July 23. N. H. Meagher filed defence with minute of filing. Sept. 6. N. H. Meagher filed notice for hearing with minute of filing. Sept. 7. W. Graham filed Beply with minute of filing. Nov. 3. N. H. Meagher filed his own affidavit made this day, and demand of further particulars, with affidavit of service and minute of filing. Nov. 4. N. H. Meagher filed notice of motion for further particulars. Nov. 6. Chambers held at 12.50 p. m to hear Mr. MeaghePs notice of f motion for further particulars — present B. L. Borden for plaintiff, N. H. Meagher for defendants. There being a similar notice of motion in the case against David J. Adanu, one argument sufficed for both. 0. A. V. Judge took N. H. Meagher's affidavit & notice of motiim. Ad- journed at 2.20 p. m. Nov. 11. N. H. Meagher filed notice for hearing with minute of filing. Mar. 5, 1887. The Begistrar signed and sealed order for B. L. Borden to examine witnesses granted by consent. Mar. 5. Ten subpoenas in blank issued to Wallace Graham. May 19. N. H. Meagher filed notice to produce letters, telegrams &o. with minute. June 2. Court opened at 10.30 a. m. — Trial Present W. Graham for the Crown and N. H. Meagher for defendants. W. W. McLellan, short hand Beporter, sworn to take evidence. The following witnesses on the part of defendants were sworn and examined and their evidence taken down by the Beporter, viz Warren A. Doughty, Henrj) B. Lawrence and Horace M. Sargent. Two papers put in evidence. Court adjoarned at 1 p. m. 6 nr THE VIOE-ADMIEALTT OOUKT OF VOVA 8C0TIA. Hkb Majesty tiik Queen, plaintiff, ] against ] The Ship "Ella M. Douohty" and i. No. 473. her cargo. Action for forfeiture of the I said vessel and her cargo, &c. &c. ) I, Lewis W. DesBarres, Registrar of said Court, do liereby Certifj' that the foregoing pa)>er writing is a true and C'art, and the I United Stat<-fl of America of the other part, made and nigned at Lon- don in Great Britain on the twentieth day of October in the year of onr Lord 1818 And also for violation of the Act of the Parliament of the United Kingdom of Great Britain and Ireland made and piMsed in the fltty-ninth year of the ruigo of His late Majesty George tlie third, King of the United Kingdom of Great Britain and Ireland, being chap- ter thirty eight of the Acts of the said Parliament made and passed in the said year, and being intituled "An Act to enable His Majesty to make regulations with respect to the taking and curing of Ush in cer- tain i>art8 of the Coast of Newfoundland and Labrador and His said Majesty's other possessions in North America according to a conven- tion made between His Majesty and the United States of America." The said Honorable John S. D. Thompson, Her Majesty's Attorney General for the Dominion of Canada also claims on behalf of Her Maj- esty the Queen to have the said ship David J. AdamH and her cargo condemned as forfeited to Her Majesty the Queen for violation of chap- ter sixty one of the Acts of the Parliament of the Dominion of Canada I made and passed in the year 1868, and intituled "An Act respecting fishing by foreign vessels," and for violation of chapter fifteen of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1870, and intit'uled "An Act to amend the Act respecting fishing by foreign vessels," and for violation of chapter twenty three of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1871, and intituleil "An Act further to amend the Act re- specting fishing by foreign vessels." The said ship David J. Adams is a foreign vessel, not navigated ac- cording to the laws of the United Kingdom of Great Britain and Ire- land or of the Dominion of Canada and is registered in the United States of America, and is owned by foreigners residing in the said United States of America. I further make oath and say that the aid of this Court is required to enforce the said claim. I am a Fishery Officer on board of a vessel belonging to and in the service of the Government of Canada and employed iu the service of protecting the fisheries. P. A. Scott. On the 13th day of May A. D.1886 the said Peter A. Scott was daly sworn to the truth of this affidavit of Halifax, iu the County of Halifax. Before me L. W. DesBarbes, Registrar, (Indorsed :) Y. Admiralty Court. Begina vs. David J. Adams. Af- fidavit of Peter A. Scott to lead warrant. Filed 13 May 1880. A correct copy. L. W. Des Barres. Registrar. 'It nr THE VIOE AOMIBALTT OOUBT OF HALIFAX I'l I i ! I i ill HEB MA.IKHTY THK (jUEBN, I'LAINTIFP, against . „ .-., TiiE Ship ob Vessel David J. Adams '^ '*" niul bor Cargo. Action for tbrroitiirn or tliu HHid ve8flel nnd her carf;o for violation a certain convention between His late MujeHty George tlie tbird Ki of the United Kingdom of Great Britain and Ireland of tbe one p and tbe United States of America of tbe otber part made on tbe tw( tietb day of October 1818 And for violation of tbe Act of tbe Parliaroc of tbe United Kingdon of Great Britain and Ireland made andpase in tbe tlfty-nintb year of tbe reign of bis late Majesty George tbe tb King of tbe United Kingdom of Great Britain aiid Ireland being cbi ter tbirty-cigbt of tbe Acts of tbe said last named Parliament nnido a passed in tbe said yenr. Also for forfeitnre of tbe said vessel and 1 cargo for violation of cbapter sixty one of tbe Acts of tbe Parliament tbe Dominion of Canada made and juissed in tbe year 18U8 and of cbapl tlfteen of tb<) Acts of tbe said Parliament passed and made in tbe y( 1870 and of cbapter twenty tbree of tbe Acts of tbe said Parliame made and passed in tbe year 1871. Also for forfeitnre of tbe said vesi and ber cargo for violation of cbapter twelve of tiie A<;ts of tbe Pari; inent of tbe Dominion of Canada made and passed iu tbe year 1883 ai tbe Acts in amendment tbereof. I, Bobert L. Borden of Halifax, in tbe County of Halifax, Barrister Law, make oatb and say as follows : 1. I am tbo partner iu business of Wallace Grabam Solicitor for t1 Attorney General of Canada iu tbis cause. 2. Hereto annexed marked ^*A" is a true copy of tbe writ of summoi in tbis cause wbicb was issued on tbe teutb day of May instant ai wbicb was served on tbe twelftb day of May instant by Bei\jam Van Blarcom, Higb Sberiff of tbe County of Dighy. No appearance h yet been entered in tbis cause. 3. Tbe Crown is not desirous of claiming orpr. ssin^' for tbe condei nation of tbe said sbip David J. Adams under t. le Customs Act 18 iu tbis action : and tbe claim to bave tbe said sbip or vessel condemni to Her Majesty in tbis action for violation of tbe Customs Act 1883 ai Acts in amendment tbereof was inserted tbrougb misunderstanding instructions received by telegram. 3. Tbe Crown is desirous of baving tbe writ of summons amend( herein by striking out of tbe title of tbe action and out of tbe indore ment on tbe said writ of summons of the nature of tbe plaintiflfs clai all such portions tbereof as mention or relate to a claim, forfeitnre condemnation of tbe said sbip David J. Adams and her^argo for viol tion of tbe Customs Act 1883 and acts in amendment thereof. BoBERT L Borden. On the 13tb day of May A. D. 1886, tbe said Robert L. Borden was du sworn to the trath of tbis affidavit at Halifax, in tbe County of Halifa Before me L. W. Des B abbes, Eegistrar. OP HAUPAX 1 472. her ciirfro for violation of ty (lecirffe the third Kinir IreljiiHl of the one nan I* part made on the twen- the Act of the Parliament lie and made and passed MajeHty George the third 1 and frolandbeinjf chap. nedParJiameMtmHdoand A . S"''^ ^'♦**«««'' a'Hl her ActsofthePiirliumentof e year 18«S and of chapter sed and made in the year N of tlie 8aid Parliament •rfeitnreofthe said vessel JftlieActsof theParlia- Hscdiutlie year 1883 and y of Halifax, Barrister at Graham Solicitor for the >y of the writ of summons day of May instant and ly instant by Benjamin g^J. JVo appearance has pr. ssinff for the condem- [tie Customs Act 1883 Hip or vessel condemned B Customs Act 1883 and «u misunderstanding of t of summons amended and out of the indorse- i of the plaintiff's claim oa claim, forfeiture or ind her^argo for viola- men t thereof. KoBEBT L Borden. )ert L. Borden was duly the County of Halifax, ^ Des Babbes, Registrar. 9 nr THE yiOEADXIBALTT GOVBT OP HAUPAX. Ebb Majesty thb Quben, plaintiff, ^ against Ino 47** 'he Ship ob Vessel David J. Adams?" * and her cargo. 3 Action for forfeiture of the said vessel and her cargo for violation of oertan convention between His late Mt\jesty George the third King of Ue United Kingdom of Great Britain and Ireland of the one part and he United States of America of the other part made on the twentieth ay of October 1818. And for violation of the Act of the Parliament f the United Kingdom of Great Britain and Ireland made and passed n the fifty-ninth year of the reign of His late Majesty George the third iKiug of the United 'Kingdom of Great Britain and Ireland, being chap- ter thirty eight of the Acts of the said last named Parliament made and passed in the said year. Also for forfeiture of the said vessel and her cargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliament passed and nuule in the year 1870, and of chapter twenty three of the Acts of the said Par- liament made and passed in the year 1871. Also for forfeiture of the said vessel and her cargo for violation of chapter twelve of the Acts of the Parliameut of the Dominion of Canada made and passed in the year 1883, and the Acts in amendment thereof. Victoria bv the Grace of God of the United Kingdom of Great Bri- tain and Ireland Queen, Defender of the Faith, Empress of India. To the owners and all others interested in the ship David J. Adams and her cargo. We command you that within one week after the service of this writ exclusive of the day of sncb service vou do cause an appearance to be entered for you in our Vice Admiralty Court of Halifax in the above named action and take notice that in default of your so doing the said action may proceed and judgment maybe given in your absence. Given at Hnli^ax in our said Court under the seal thereof this tenth day of May A. D. 1886. This writ may oe served within six months from the date thereof ex- clusive of the day of such date but not afterwards. The defendants may appear hereto by entering an appearance either personally or by Solicitor at the Bc^ristry of the said Court situate at number thirty five Bedford Bow, in the City of Halifax and Province of Nova Scotia. 1. The Honorable John S. D. Thompson, Her Majesty's Attorney Gen- eral for the Dominion of Canada, claims on liehalf of Her Mt^esty the Queen to have the ship David J. Adams, beiug a foreign ship or vessel not navigated according to the laws of the United Kingdom aforesaid or of Canada and registered in and owned by foreigners residing in the United States of America, and her cargo, condemned as forfeited to Her Mi^esty the Queen for violation of a certain conventiou between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland of the one part and the United States of America of the other part made and signed at London, in Great Britain, on the twen- tieth day of October in the year of Our Lord 1818, and also for violatiou '^^g- !? :S ^a *! ^ '^" ' ^ -r^sswHSHaOtt 10 of the Act of tbe Parliament of tbe United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the leign of His late Majesty George the third King of the United Kingdom of Great Britain and Ireland being chapter thirty eight of the Acts of the said Parliament i:!?.'Je and passed in the said year and being intituled, "An Act to enable His Majesty to make regulations with respect to the tak- ing and curing of fish ii» certain i)art8 of the coasts of Newfoundland and Labrador, and his said Majesty's other possessions in North America, according ton convention made between His Majesty and the United States of America." The said Honorable John S. D. Thompson, Her Majesty's Attorney General for the Dominion of Canada also claims on behalf of Her Majesty the Queen to have the said ship David J. Adams, being a foreign ship or vessel as aforesaid, and her cargo, condemned as forfeited to Her Majesty the Queen for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1808, and intituled "An Act respecting fishing by foreign vessels" and of chapter fifteen of tiie Acts of the Parliament of the Dominion of Can- ada made and passed in the year 1870, and intituled "An Act to amend the Act respecting fishing by foreign vessels " and of chapter twenty three of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1871, intituled "An Act further to amend tbe Act respecting fishing by foreign vessels." The said Honorable John S. D. Thompson, Her Majestys Attorney General for the Dominion of Canada also claims on behalf of Her Majesty the Queen to have the said ship David J. Adams and her cargo condemned as forfeited to Her Majesty the Queen for violation of chap- ter twelve of the Acts of the Parliament of the Dominion of Canada made and passed in the year 188^), and untitnled " The Customs Act 1883," and the Acts of the said Parliament of the Dominion of Canada in amendment thereof. 2. This writ was issued by Wallace Graham of 119 Hollis Street, in the City of Halifax and Province of Nova Scotia, Solicitor for the Attor- ney General of Canada. 3. Ail documents required to be served upon the Crown in this action may be left at 119 Holiis Street, in the City of Halifax and Province of Nova Scotia. (Indorsed:) V. Admiralty Court. Affidavit of K. L. Borden. Filed 13 May 1886. A correct copy. Tbe Queen vs. David J. Adams. L. W. Des Babbbs, Registrar. m THE VICE-ADMIRALTT COUBT OF HALIFAX. Heb Majesty the Queen, plaintiff,^ against \^ .^g The Ship ob Vessel David J. Adams C ' and her cargo. ) Action for forfeiture of the said vessel and her cargo for violation of a certain convention between His late Majesty George the third King ^ >m of Great Britain r of the reign of His Kingdom of Great the Acts of tbe said >eing intituled, "An h respect to the tak- ts of Newfoundland ns in North America, sty and the United Majesty's Attorney ehalf of Her Majesty being a foreign ship as forfeited to Her ic of the Acts of the I passed in tbe year r«ign vessels" and of le Dominion of Can- d * and upon the cargo )r a short time to the leaving a copy of the I the said ship David AN BLA.RCOM, High Sheriff. (Indorsed :) V. Admiralty Court. Queen vs. David J. Adams. Order amend. Filed 13 May, 1886. A correct copy. L. W. Des Barres, Registrar. 4beriflb fees. Travel l«' record — W service '" .return ^-^ jiffldavit and swearing 70 . . 2.60 B. Van Blarcom. IN THE VIGE-ADMIEALTT COURT OF HillFAX. Heb Majesty the Queen, plaintiff, ] against I f^ .«„ Phb Ship or Vessel David J. Adams p "• »•*• and her cargo. \ Action for forfeiture of the said vessel and her cargo for violation of la certain convention between His late Majesty George the third King of Ithe United Kingdom of Great Britain and Ireland of the one part and Jthe United States of America of the other part made on the twentietu iart made on the twen-] the Act of the Parlia- iiid Ireland made and i late Majesty George t Ikitaiu and Ireland,! id last named Parlia ^ »r forfeiture of the saidi f one of the Acts of the \ ad passed in the year ^ Parliament passed and ' iree of the Acts of the i n. ity of Digby and Prov- ty of Digby, make oath < ay 1886, duly serve the | ed A before the same id J^ Adams and upon id J. Adams by attach- same was amended, to idams for a short time rit of summons before ist of the said ship or UN Van Blabooh. 1 the County of Digby, a to the truth of this . B. Stewaet, Ice-Admiralty Court. ^HALIFAX. 72 cargo for violation of ^eorge the third King eland of the one part d the United States of America of the other part made on the twen- th day of October 1818. And for violation of the Act of the Parlia- lent of the United Kingdom of Great Britain and Ireland made and ;em. High Sheriff of the | K-rit for a short time to j I David J. Adams and < led to the said main- ts on Wednesday the | Vim Blaboom, the County of JHghy. enjamin Van Blarcom, \ I ship David J. Adams^ i chiug the said original j maiQmast of the said j said original amended | if the said ship or ves- j A. D. 1886, Van Blaboom, High Sheriff. 78. David J. Adanu.] Des Babbes Registrar. 10 10 70 1.00 70 2.60 K Van Bijlbcom, Sheriff. IN THE VISE-AOMIBALTT COUST OF HAIIFAZ 1866. i- No. 472 Heb Majesty the Queen PLAir:riKF against [HE Saip OB Vessel David J. Adams and her cargo. ) Action for forfeiture of the said vessel and her cargo fur violation of certain convention l>etween His late Mujesty George the third King Df the Lnited Kingdom of Great Britain and Ireland of the one part and |the United States of America of the otlier part made on the twentieth lay of October 1818. And for violation of the Act of the Parliiiment of kbe United Kingdom of Great Britain and Ireland made and passed in [he fifty ninth year of the reign of His late Majesty George the third [ing of the United Kingdom of Great Biituiii and Ireland being chap- er thirty eight of the Acts of the said lant named Parliament made and lassed in the said ye>>r. Also for forfeiture of tlie said vessel and her irgo for vio!n*>c'a of chapter sixty one of the Acts of the Parliament of ^he Dominion of Canada made and passed in the year 1868, and of chap- ar fifteen of tbe Acts of the said Parliament passed and made in the ^ear 1870, and of chapter twenty three of the Acts of the said Parlia- lent made and passed in the year 1871. L'o Benjamin Van Blarcom of Digby, in the County of Digby, in the Province of Nova Scotia and Domiuion of Canada, High Sheriff of the said County of Digby, Greeting : These are to empower you and authorize yon to act as my Deputy in ^e matter of the arrest and custody of the ship or vessel called the tavid J. Adams, under the warrant issued out of this Court in the above tause. Given under my hand and seal at Halifax this 13th day of May A. D. L886. William Twining, Marshal of the Vice- Admiralty Court of Halifax, Nova Scotia. IN THE VICE-ADMIBALTT COURT OF HALIFAX. [Heb Majesty the Queen, plaintiff, ") against I j^ \„o Ship ob Vessel David J. Adams p "• ''-^ and her cargo. ) Action for forfeiture of the said vesssel and her cargo for violation of certain convention between His late Majesty George the third King ^f the United Kingdom of Great Britain au J Ireland of the one part ami le United States of America of the other part made on the twentieth lay of October 1818. And for violation of the Act of the Parliament of le United Kingdom of Great Britain and Ireland made and passed in le fifty ninth year of the reign of His late Majesty George the third Ling of the United Kingdom of Great Britain and Ireland,. being chap- er thirty eight of the Acts of the said last named Parliament made and 104 A 2 SH 18 passed in tlm said year. Also for forfuituru of tbu said vuMttel and her cargo for violation of cliapter sixty one of the Acts of the Parliament of the Dominion of Canada made and pttssed in the year 18U8, and of chap- ter flfteon of the Acts of the said Parliament parsed and made in the year 1870, and of chapter twenty-three of the Acts of the said Parlia- ment nitulo and fiassed in the year 1871. I, Benjamin Van lilarcom of Digby, in the ('ounty of Digby, High Sheritt'of the said County of Digby, make oath and say as follows : 1. That on Friday the 14th day of May A. D^ 1886, 1 did, hh the Deputy duly appointed of William Twining, Marshal of the Vice Admiralty Court of Ilalifax, duly serve the original warrant herein hereunto an- nexed marked A upon the said sliip or vessel David J. Adamt above named and upon the said cargo of the said vessel on board of the said ship or vessel David J. Adama by attaching the said original warrant to the mainmast of the said ship or vessel David J. Adamn for a ' hort time and by attaching and leaving attached to the said mainmast u erne copy of the said original warrant. 2 That I am the deputy duly authorized in this l>ehalf of the said William Twining, the Marshal of the Vice Admiralty Court of Halifax. Benjamin ' V^ AN Blabcom. On the 15th day of May A. ^). 1886, at Digby, in the County of Digby, the said Beivjamin Van Blaruom was duly sworn tu the truth of this affidavit. Before me, W. B. Stswabt, A Commisaioner to adminiuter oatha in the Vice- Admiralty Court, A. IN THE YICB-ADMIRAITT COURT OF HALIFAX. Hbb Majesty the Queen, plaintiff, ) against [yr .-o The Ship or Vessel " David J. Adams" p''"- •'^• and her cargo. 3 Action for forfeiture of the said vessel and her cargo for violation of a certain convention between His late Majesty George the third Kingj of the United Kingdom of Great Britain and Ireland of the one part and the United States of America of the other part maile on tbci twentieth day of October 1818. And fbr violation of the Act of the^ Parliament of the United Kingdom of Great Britain and Ireland made; and passed in the fifty ninth year of the reign of His late Majest.v; George the third King of the United Kingdom of Great Britain andi Ireland, being chapter thirty eight of the Acts of the said last namedj Parliament made and passed in the said year. Also for forfeiture off the said vessel and her cargo for violation of chapter sixty one of tb(>i Acts of the Parliament of the Dominion of Canada made and passc(l| in the year 1868, and of chapter fifteen of the Acts of the said Parlia | ment passed and made in the year 1870, and of chapter twenty three ot| the Acts of the said Parliament made and passed in the year 1871. m I 8uid vuMMel and her of the Parliament of tar 1808, and of chap- ped and mudo in the » of tlie said Parlia* nnty of DIgby, High d HHy UH follows : (, I did, HH the Deputy the Vice Admiralty herein hereunto an- icid J. Adams above on board of the said id original warrant to [damti for n ' hort time inainmi^iit >% erne copy 18 l>ehalf of the 8aid cdty Court of Halifax. IN Van Blabcou. the County of Digby, | I to the truth of this , B. Stewart, ce-Admiralty Court, r HALIFAZ. 472. cargo for violation oil eorge the third Kiogl Bland of the one part] er part made on the! tion of the Act of the! tain and Ireland madel of His late Majest.vj of Great Britain and! )f the said last named! Also for forfeiture of| apter sixty one of thej lada made and passcdj cts of the said Parlia I hapter twenty three of| d in the year 1871. I Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the faith, Kmpress of India. To the Marshal of our Vice Admiralty Court of Halifax. We hereby command yon to arrest the ship or vessel David J. AdaiAa [and her car^o and to keep the same under safe arrest until you siiall receive further orders from u?. Given at Halifax in the Province of Nova Hcotia in our said Court inder the seal thereof this thirteenth day of May A. D. 1880. " L. W. Des Babbeb " Registrar. Warrant taken out by Wallace Graham, Solicitor for the Attorney ieneral of Canada. Tbto warrant was served by Bei\jamin Van Blarcom, High Sheriflf of the Comity of Digby, a Deputy of the Marshal of this Court duly ap- . Dinted for tlMt purpose, by affixing the said warrant for a short time to the mainnMst of the /iaid ship or vessel called the David J. Adams ind leaving a copy of tbe same attached thereto on the fourteenth day )f May instant as will appear by the Certificate of the said Beivjamin iVan Blarcom endorsed hereon. Halifbx, N. S. May 17, 1880. William Twining, Marshal of the Viee-Admiraliif Court of Halifax^ N. 8. This warrant was Served by William Twining, Marshal of the Vice Ldmiralty Court of Halifax, by the hands of Beiyamin Van Blarcom, ligh Sheriff of the County of Digby, acting as the Depaty duly ap- )ointed and authorised of the said William Twining, Marshal of the Moe Admiralty Court of Halifax, on the within named ship or vessel ^ ivid J. Adams and upon the said cargo on board the said ohip or ves- irel David J. Adams by attaching the said original warrant for a short lime to the mainmast of the said ship or vessel David J. Adams and }y leaving a true copy of the said original warrant attached to the said lainmast on friday the 14th day of May A. D. 1886. Digby, 14th day of May 1886. Benjamin Van Blaboom, High Sheriff, (Indorsed :) V. Admiralty Court. No 472. Her Mt^esty the Queen St. the ship or vessel David J. Adams & her cargo. Warrant filed 18 May 1886. A correct copy. L. W. Des Babbes, Registrar. f-iJ 2U IH THE VIOX-AOMntAITY COURT OF HALTTAl. .1, 1 1 ^|l! 1 '''i ■ I ;M" It ■ .| ■ 1 '^'^ I! m Heb Majesty the Queen, plaintiff, against The Ship ob Vessel "David J. Adams" and ber cargo. No 472. i' ' Action for forfeiture pf the said voHsel and ber cargo for violatioa of a certain convention between' His late Mi^coty George the thini King of the United Kingdom of Great Britian nnd Ireland of the one part and the United States of America of the other part made on the twentieth day of October 1818. And for violation of the Act of the Parliament of the United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the reign of Ilis late M^esty George the third King of the United Kingdom of Great Britain and Ireland, being chap- ter thirty eight of tlie Acts of the said last named Parliament mf^e and passed in the said year. Also for forfeiture of the said vessel and ber cargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliament passed and made in the year 1870, and of chapter twenty three of the Acts of the said Parliament made and passed in the year 1871. I, Peter A. Scott of Ilalifax, in the County of Halifax and Province of Nova Scotia, fishery officer of the Dominion of Canada, make oath and say as follows : 1. That the above named ship or vessel David J. Adams and her cargo were oi) the sorenth day of May 1886, seized by me for violation of the above named Acti* and convention. 2. That I am a fishery officer on board of a vessel belonging to and in the service of the Government of Canada and employed in the serv- ice of protecting the fisheries and as such fishery officer I seized the said ship David J. Adams and her cargo as aforesaid in the Annapolis Basin, in the Province of Nova Scotia, within three marine miles of the shore of the Province of Nova Scotia, for the said violation of the said several acts and convention. 3. That since the said ship was seized by me as aforesaid this action has been commenced in this Honorable Court for the condemnation of the said vessel and her cargo for violation of the said above named acts and convention. The writ of summons herein was issued on the 10th day of May instant. A warrant in this action for the arrest of the said vessel and her cargo has been issued this day but the same has not yet been served and I am informed and do verily believe that it is the in- \ tention of the Crown to have the said vessel and her cargo arrested , forthwith under the said warrant issued this day. 4. The cargo of the said vessel consists wholly or almost wholly of a ^1 quantity of fresh herring and a quantity of fresh halibut. The said halibut are not kept on ice and are rapidly deteriorating and spoiling ; and it is absolutely necessary to prevent the same from being wholly lost | that they should be sold at once as in a few days they will be in a very i bad and unsaleable condition as I verily believe. The said herrings ] are kept on ice as I am infbrmed and do verily believe and are not de- teriorating so rapidly as the said halibut, but I verily believe that tbe| same are deteriorating to some extent and that loss and damage will be| saved if the said herring are also sold forthwith. li lALXFAX. 12. 'go for violation of a ^e the thini King of of the one part aud 4e on the twentieth It of the Parliament nd made and passed sty George the third Ireland, being chap- arliament made and said vessel and her ts of the Parliament he year 1868, and of passed and made in be Acts of the said lalifax and Province Canada, make oath Adams and her cargo le for violation of the lel belonging to and mployed in the serv- y officer I seized the aid in the Annapolis e marine milett of the violation of the said aforesaid this action the condemnation of aid above named acts 18 issued on the 10th | the arrest of the said i the same has not yet j liuve that it is the in- her cargo arrested | or almost wholly of a ih halibut. The said i iorating and spoiling j rom being wholly lost I they will be in a very B. The said herrings | ieve and are not de- erily believe that the! 3S and damage will be] S. The said vessel David J. Adam$ and her said cargo which iu on I board of the said vessel are now in the Annapolis Uasin and at or near Digb)', in tlio County of DIgby aud Province of Nova Hcotia. 0. 1 lielitive that it is in the interest of all parties concerned that the I said cargo of the said vessel David •/. Adamt should be sohl aud dis- posed of without delay. P. A. Scott. On the 13th day of May A. D. 1880, the said Peter A. Scott was duly I sworn to the truth of this affidavit at Ualifax, in the County of Ualifax. Before me, L. W. DKH BARBE8, Regittrar. (Indorsed:) V. Admiralty Oonrt. Regiua vs David J. Adamt. Affl- ! davit of Peter A. Scott for sale of cargo, filed 20 May 1836. A correct copy. L. W. Des Babbeh, Regiatrar, IH THE VICE-AOMIRALTT COURT OF HALIFAX. Heb Majesty the Queen, plaintiff, ") against I ^^ .-„ IThe Ship ob Vessel "David J. Adams" f ^°' *'^' and her cargo. 3 Action for forfeiture of the said vessel and her cargo for violation of certain convention between His late Mi^esty George the thinl King of the United Kingdom of Great Britain and Ireland of the one part ind the United States of America of the other part made on the twen- Meth day of October 1818. And for violation of the Act of the Parlia- lent of the United K'ngdom of Great Britain and Ireland made and lassed in the fifty-ninth year of the reign of his late Majesty George [he third King of the United Kingvlom of Great Britain end Ireland, Bing chapter thirty-eight of the Acts of the said last named Parlia- (lent made and passed in the said year. Also for forfeiture of the said ^essel and her cargo for violation of chapter sixty -one of the Acts of Ihe Parliament of the Dominion of Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliament passed yoA made in the year 1870, and of chapter twenty-three of the Acts of 'le said Parliament made and passed in the year 1871. I, Robert L. Borden, of Halifax, in the County of Halifax, Barrister at »w, make oath and say as follows : 1. I am a partner in business of the Solicitor for the Attorney Gen- eral of Canada in this cause. 2.. On the 13th day of May instant a warrant was duly issued out of lis Honorable Court for the arrest of the said ship or vessel David J. \.Aam» and her cargo. 3. The said warrant was, as I verily believe, duly served upon the said [hip or vessel David J. Adams and her cargo on friday the 14th day of fay instant by Betyamin Van Blarcom, Sheriff of the County of Digby, ■i-l 22 avting ill tliut iMilmir m tbo duly authorized deputy of WiUiaui Twinin MHrMliiil uf tlio Vice Adtniralty Court of Ualifax. 4. TliJH uioriiiiiK I recuiviHl the telegram Uereuuto auiiexed markett for I)it(l>y on fridi morning for the purpoHe, ainon^ other thiiiKM, of inHtriiutiiif; the m Hheritl' aH to Haid arrent and he arranf^ud with mo before he left Ilalifi for Digby aM aforevaid, that he would telegraph to me when the Ha veaael and her cargo had Iweu arrested in order that i might apply neceHHary for an order or coinniiHMioii to have the cargo or the perixnab ]>ortion thereof Hold. The Huid veMm>l and the Haid cargo art) now aa verily believe under the arrent of thia Court under the Haid warrant 8ued herein on the 13th day of May iiiHtant— copy of which Haid warrai is hereto annexed marked Jt. I beg leave to refer to the writ of aummon afildavitH and itaperH on tile herein — 0. I verily believe that the tlfteen hundred pounds of halibut or tber abouts, and the llfteen barreln of bait mentioned in the naid telegraii require to bo Hold iinniediately, and that the Haid halibut and bait ai deteriorating in value, and I further Ray that 1 verily believe the sa halibut and bait are of Hniall value. On the 10th day of May 1886, the aaid Uobert L. Bonlen was du! sworn to the truth of this atUdavit at Ualifax, in thiH County of Ualifa: lioBEUT. li. Borden. Before me, L. W. Dx8 Babbes. • Regiatrar. Dated, Digby, N. 8. 15 May 1886 To R S Borden Hl/r. Warrant served yesterday not over fifteen hundred ponnds baliba and fifteen barrels bait all rec'd unsalted and of little value— require io mediate sale — rest will keep for present. Wallace Obaham. B IN THE YIGE-ADinSALTT COUBT OF HALIFAX. Hbb Majesty the Queen, plaintiff, agaiHst The Ship or Vessel David J. Adams and her cargo. No. 472. Action for forfeiture of the said vessel and her cargo for violation c a certain convention between His late Majesty George the third Kin of the United Kingdom of Great Britain and Ireland of the one pai and the United States of Amerioa of the other part made on the twei tieth day of October 1818. And for violation of the Act of the Parlii ment of the United Kingdom of Great Britain and Ireland made an IMkssed in the fifty-ninth year of the reign of His late Majesty Georg the third King of the United Kingdom of Great Britain and Irelanc being chapter thirty-eight of the Acts of the said last named Parlii aty of Williatu Twining, X. iiuto annexed niurlied A, the Attorney Ueneral ot' n li^tl fur l>it{l>y on friduy I, of inHtructihK tlie hiiUI no boforu \n\ loft lluilfux >li to me wlien tb(^ Haiti er tliat I mitflit apply if le cari;o or tlie periHlialile Bald car^o are now m 1 uder tlio Haipy of wliicb Haid warrant ;r to tbo writ of suuimonH, >undN of lialibnt or tbere- lod in tlie Haid telograni, itaid lialibnt and l>ait are 1 verily iMlieve tbe said ert L. Borden was duly n tbiH Oouuty of Halifax. KOBEKT. L. BORDKN. w. DE0 Babres. Registrar. lent made and paMNcd in tbu Haid year. AIho for forfeiture of tlieMaid BHM>I and her carK" '"i* violation of chapter nixty-one of the Acts of le I'arlianient of tbe Dominion of Canada made and paNHed in the \ar IHUM, and of (;bapter fltleen of the actH of tbe Haid I'urliauient xHed and made in tbe year 1H70, and of <;liapter twenty-three of tbe IvtH of tbe Haid Parliament made and panned in tbe year 187i. lictoria by tbe (iraee of Uod of the United KinKdom of (ireat Britain land In>land Queen, Defender of tbe Faith. HnipreHM of India. To tbo MarMbal of our VHue Admiralty Court of llalilax. ! We hereby command you to arrest tbe ship or venHel David J, Adamn [id her car^o and to ktn^p tbe name under nafe arrent until you Hball kceive further orderH from uh. 'Given at Halifax, in tbe Province of Nova Scotia, in our Haid Court fider tbe neal thereof this thirteenth day of May A, IJ, 188ti. L. W. Dk8 Barukh, Jiegiatrar. Warrant taken out l>y Wallace (Irabam, Solicitor for tbe Attorney general of Canada. i Indorsed:) Vice-Admiralty Court. Itegina vh David J Adama. Idavit of U. L. Borden for Hale of cargo, tiled 20 May 1880. A correct oopy, L. W. Dbh Barbeh, Registrar, IB THE VIOEADMIBALTT COUBT OF HALIFAX. luudred ponuds balibat little value— require im- Wallaoe Graham. OF HALIFAX. 0. 472. er cargo for violation of ' George tbe third King Ireland of the one part part made on the twen- f the Act of tbe Parlia- aud Ireland made and lis late Majesty George lat Britain and Ireland, said last named Parlia- IBR Majesty the Queen, plaintiff, against PHE SHIP OU VESSEL " DAVID J. ADAMS" and her cargo. N0..472. Action for forfeiture of tbe said vessel and her cargo for violation ~ a certain convention between His late M^esty George the third [ing of tbe United Kingdom of Great Britain and Ireland of the one \skTt and tbe United States of America of tbe other part made on tbe |wentietb day of October 1818. And for violation of the Act of tbe Parliament of tbe United Kingdom of Great Britain and Ireland made knd passed in tbe fifty ninth year of tbo reign of His late Majesty lieorgb L..8 third King of tbe United Kingdom of Great Britain and belaud, being chapter thirty ei<(bt of tbe Acts of the said last named Parliament made and passed in tbe said year. Also for forfeiture of 'le said vessel and ber cargo for violation of chapter sixty one of tbe Lots of the Parliament.of tbe Dominion of Canada made and passed in le year 18C8, and of chapter fifteen of tbe Acts of tbe said Parliament kassed and made in tbe year 1870, and of chapter twenty three of the \ct8 of tlie said Parliament made and passed in tbe year 1871. I, Robert L. Borden of Halifax, in tbe County of Halifax, Barrister at . iw, make oath and say as follows : I am a partner in business of Wallace Graham, solicitor of the At- >rney General of Canada, in this cause. fys: 24 2. That as I am informeil, aud do verily believe, the remainder of thel cargo of the said ship or vessel David J. Adams is i)eri8hable and isl deteriorating iu value. The said cargo consists, as I verily believe andl as I am informed, of salted or corned fish and of ships stores such as porkj and other articles of food. 3. I produce and annex hereto marked "A" a true copy of a letterl received this day by the said Wallace Graham irom the Sht.'rifi' of tbej County of Digby, in whose custody the said ship or vessel and her car9o| are at present. 4. I verily believe that loss and damage will be sustained unless the! said cargo be sold forthwith and I believe it will be for the benefit of I all persons concerned or interested that the said cargo should be so} sold forthwith. BoBEBT L. Borden. On the 22d day of May A. D. 1886, the said Bobert L. Borden was I duly sworn to the truth of this atfidavit at Halifax, in the County of | Halifax, before me, '■J!'\r' Beenton H. Eaton ., .- >. .vr.. -^ -. .;^ / : n^( V Deputy Registrar. ^ ' ' ^ Digby, Jfay 21, 1886. Wallace Graham, Esq., Dear Sir. I attended to the posting of the handbills for the sale of I fresh fish on board of schr. David J. Adams; conld get no bidder thef fish being completely spoilt so much so that I was tbrthwith notified by the Health Wardens to remove the nuisance at once and cleanse the vessel or they would do so at once on my expense which, of coarse, l| had to obey. I send returns to-morrow. B. Van Blarcom Shall 1 resalt the corned fish to prevent them from spoiling f ^, j^ ,..,,■ J...-J bvb (Indorsed:) V. Admiralty Court. 2nd sale. Begiua vs David J,\ Adams. Affidavit of B. L. Borden. Copy of within M'as served on Messrs Meagher, Drysdale & Newcombe, I on May 22d 1886. Wallace Graham Solr.for Atty. General of Canada. ' Filed 28 June 1886. A correct copy. L. W. Des Barres, Registrar, IN THE VICE-ADMIBALTT COUBT OF HALIFAX. Her Majesty the Queen, plaintiff, ^ against \^ ,.^ The ship or vfc.ssEL " David J. Adams » r " aud her cargo. } Action for forfeiture of the said vessel aud her cargo for violation of a certain convention between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland of the one part -^ms^asx^asmi. i remainder of the! perishable and is] rerily believe and] tores such as pork] e copy of a letter! he Sheriff of the] iseland her cargo | itained unless the! for the benefit of I rgo should be sol IT L. BOEDEN. L. Borden was I in the County of | H. Eaton iputy Registrar. , May 21, 1886. lis for the sale of i ;et no bidder the! brthwith notified | B and cleanse the bich, of coarse, 1 1 VAN Blaecom spoiling! BVB iua vs David J, I ale & Newcombe, Graham 'ral of Canada. 26 id the United States of America of the other part made on the twenti- [h day of October 1818. Also for violation of the Act of the Parliament th ) United Kingdom of Great Britain and Ireland made and passed the fifty ninth year of the reign of His late Majesty George the third lug of the United Kingdom of Great Britain and Ireland, being chapter kirty eight of the Acts of tlie said last named Parliament made and ised in the said year. Also for forfeiture of the said vessel and her irgo for violation of chapter sixty one of the Acta of the Parliament ~ the Dominion of Canada made and passed in the year 1868, and of lapter fifteen of the Acts of the said Parliament passed and made in le year 1870, and of chapter twenty three of the Acts of the said Par- lament made and passed in the y^ar 1871. J, Benjamin Van Blarcom, High Sheriff of the County of Digby, the |uly authorised deputy of William Twining, Marshal of the Vice Admi- ilty Court of Halifax, to execute and carry out the order of sale herein jfiven and dated the fifteenth day of May A. D. 1886, do hereby returu to phe said order of sale and certify that 1 caused the said fish and bait to- )e advertised by handbills posted up in the Town of Digby and ia >ther public plac/Cts adjacent to the place of sale and in the town of Lnnapolis Boyal fov a period of more than 48 hours before the day of the sale hereinafter mentioned. I annex hereto a copy of the said land bills. That on the twentieth day of May 1886, at the Court House in the- ?6wn of Digby aforesaid, being the time and place mentioned iu the kid hand bills I put up the said fish and bait at public Auction and ifter the same bad been exposed for sale for some time they were knocked ■down to for the sum of could not get any oft'er as- Ithe said fish was in a decomposed condition. , he being the Ibighcst and best bidder therefor. That in pursuance of the said or- Ider of sale I have paid the proceeds of the said sale which amount to [the sum of into the hands of the Begistrar of this Honorable I Court. In Witness whereof, I have hereunto my hand subscribed and set this. |2l8t day of May A. D. 1886, Benjamin Van Blaboom A Deputy Marshal of the Vice Admiralty Court of Halifax.. IK THE VICE AOHniALTT GOURTOF HALIFAX Barbes, Registrar, lEhX. for violation of i the third King of the one oart Hbb Majesty the Queen, plaintiff, against, The Ship ob Vessel "David J. Adams" and her cargo. So 472. Action for forfeiture of the said vessel and her cargo for violation of a certain convention between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland of the one part and the United States of America of the other part made on the twenti- eth day of October 1818. And for violation of the Act of the Parliament of the United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the reign of His late Majesty George the third. King of the United Kingdom of Great Britain and Ireland, being chapter thirty eight of the Acts of the said last named Parliament made and passed in the said year. Also for forfeiture of the said vessel and her pp iaWMMIM tmm 26 cargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1868, and of j chapter fifteen of the Act} of the said Parliament passed and made in the year 1870, and of chapter twenty three of the Acts of the said Par- liament made and passed in the year 1871. To Benjamin Van lilarcom of Digby, in the County of Digby, High Sheriff of the said County of Digby — I, William Twining, of Halifax, in the County of Halifax, Martthal of the Vice Admiralty Court of Halifax, do hereby nominate constitute and appoint you my deputy to execute and carry out the order made in this cause on the 13th day of May 1886, for the sale of a portion of the cargo of the said ship or vessel David J. Adams and to sell the said portion of said cargo in the manner thereby directed and to do all things and tiertbrm all acts necessary or expedient in that behalf or required to be -done by the terms of said order as validly and effectually as 1 could 4o the same if personally present — Dated Halifax, 15th May 1886. William Twining Marshal Vice Admiralty Court of Halifax N. 8. nr THE VICE ASMUIALTT COUBT OF HALIFAX Her Majesty the Queen, plaintiff, against The Ship or Vessel David J. and her cargo. ADAMS [n«*72. Action for forfeiture of the said vessel and her cargo for violation of a certain convention between His late Majesty George the third King of the United Kingdom of Great Britain anil Ireland of the one part and the United States of America of the other part made on the twen- tieth day of October, 1818. And for violation of the Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the reign of His late Majesty George the third King of the United Kingdom of Great Britain and Ireland, being chapter thirty eight of the Acts of the said last named Parlia- ment made and parsed in the said year. Also for forfeiture of the said vessel and her cargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion o^' Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliamciit passed and made in the year 1870, and of chapter twenty three of the Acts of the said Parliament made and passed in the year 1871. On the 14th day of May 1886 before the Honorable Jaiiies McDonald, Judge Upon reading the two affidavits of Robert L. Borden, sworn herein the 15th day of May 1886, and the exhibits thereto annexed. The affl* •davit of Peter A. Scott, sworn herein the 13th day of May 1886, the writ -of summons and papers on file herein, the notice of motion herein and -affidavit of service thereof and upon hearing Counsel for the Grown — SS^^SSTtST^^ cts of the ParUamentl he year 1868, and of! t passed and made inf Acts of the said Par! unty of Digby, High rby— • )f Halifax, Marshal of I ninate constitute and I be order made in this I a portion of the cargo I sell the said portion to do all things and half or required to be Bctually as I could 4o LIAM TwiNiNe ^rt of Halifax N^. S. 27 is ordered that the followiug portion of the cargo of the said ship jessel David J. Adatmt namely — A lot of fresh unsalted halibnt being it fifteen hundred pounds or thereaboutii in weight and fifteen bar- |of fresh unsalted bait or herring be sold forthwith by the Marshal lis Court, or his De]>uty, at Public Auction at or near Digby in the |nty of Digby il having been made to appear to the Court that the property is deteriorating in value and is of small value. It is fur- ordered that the said property be sold without a Commission of being issued. And it is further ordered that the said property be by the said Marshal, or his Deputy, forthwith at Pnblic Auction fcr forty eight hours notice by handbills posted up in the Town of py and other public places adjacent to the place of aa^e. It is fur- ' orderetl that as soon as possible after the said salu the said Mar- Il or his Deputy shall pay into the Registry of this Court the gross loeeds of the said sale and shall file this order in the said Registry |h a return of the manner in whicli it has been executed. It is further ordered that handbills giving notice of the said sale and the time and place thereof shall be posted up in the Town of Aunap- Royal not less than 48 hours before the time of said sale. James McDonald. Judge. L W. Des Babbes Regiatrar. ^^TTP/^X »472. nr THE VICE ADMIBALTT COUBT OF HALIFAX. cargo for violation of eorge the third King Bland of the one part rt made on the twen- ;he Act of the Parlia- id Ireland made and late Majesty George Britain and Ireland, I last named Parlia- forfeitnre of the said r one of the Acts of id passed in the year d Parliament passed three of the Acts of .871. e Jahies McDonald, orden, sworn herein annexed. The afH< f May 1886, the writ ' motion herein and lel for the Crown— [eb Majesty the Queen, plaintiff, against IE Ship ob Vessel "David J. Adams" and her cargo. No. 473. [l, Benjamin Van Blarnom, High Sheriff of the County of Digby, the ily authorized deputy of William Twining, Marshal of the Vice Ad- iralty Court of Halifax, to execute and carry ont the 'order of sale brein given and dated the 15th day of May A. D. 1886, do hereby re- ^m to the said order of sale and certify that I caused the said fish and lit to be advertised by hand bills posted up in the Town of Digby and other public places adjacent to the place of sale and in the Town of LnnatH>lis Royal for a period of more than 48 hours before the da; of le sale hereinafter mentioned, I annex hereto a copy of the said landbills. That on Thursday, the 20th day of May A. D. 1886, at the lourt House in the Town of Digby afoi-esaid, being the time and place mentioned in the said handbills, I put up the said fish and bait at public Luotion and atter the same had b^n exposed for sale for some time in lie presence of about twelve persons could not get any offer for said Ish and bait as they were iu a decomposed conditiou and immediately Ifter exposing said fish and bait for sale 1 was served by Healtu War- lens with a notice to remove them, a copy of said uotice is hereto uu- liexed. In obedience to said notice I caused said fish and bait to be Bmoved and the vessel cleansed. In Witness whereof, I have hereunto my hand subscribed and set this 51st day of May A. D. 1886, Benjamin Van Blabcom A Deputy Marshal of the Vice Admiralty Court of Halifax. 28 DiQBY, May 20th U B. Van Blarcom, Esq., High Sheriff. Deab Sm : I bave to notify yoa that the smell for the contents ol sch'r. David J. Adams now lying at the wharf is soraelhing dreadfall complaints have been made to us about it. I am instructed to say | yon must at once rejiove all offensive materials from said schc otherwise we will have to bave the same removed and the vessel cleail and at your expense. This must be done at once. You will see this is attended to. I am yours &o., A. J. 8. Copp, Seoty. Health Warde The execution of this order appears by the annexed certificate turn of Benjamin Van Blarcom, High Sheriff of the County of Digb, Deputy of the Marshal of this Court pro hoc vice, dated ttie 21s( da; May A D. 1886, TYiLLiAM Twining, Marshal Vice Admiralty Court of Halifax N. Halifax, N. S. May 25, 1886, HANDBILL. IN THE VICE-ADMIRATT COUBT OF HALIFAX. Heb Majesty the Queen, plaintiff, against The ship or Vessel <» David J. Adams" and her cargo. No 472. To be sold at Public Auction by the undersigned at the Court Hoi in Digby, in the County of Digby, on thnrsday the 20th day of May D. 1^6, at Ave o'clock in the afternoon, pursuant to an order of t Judge of the said Court made herein the 15th day of May A. D. 1886, t following lots of Fish and Bait forming purt of the cargo of the School David J. Adams now held in the custody of the said Court under a Wj rant thereof in the above named action, viz : A Lot of Fresh nnsalted halibut about fifteen hundred pounds weight. Also 15 bbls. Fresh Bait or herring. The above must be sold on the day named unreservedly and for ca Benjamin Van Blaboom. A Deputy Marshal of the Vice Admiralty Court of Halifax Digby, 17 May 1886. (Indorsed:) V. Admiralty Court No 472. Begina vs David Adams. Order for sale of a portion of cargo, returns &c. Filed 27 May 1886. A true copy. L. W. Des Babbes Registrar ^ DiODY, May 20. aniv nn vrsset. "David J. Adams" \ A. J. 8. Copp, Seoty, Health Wardem. s annexed certificate & ., ' of the County of Digby,! vice, dated the 2l8t day ViLLiAM Twining, ^y Court of Halifax N. A SHIP OK VESSEL "David J. Adams" [ and her cargo. 3 jaixon for forfeiture of the said vessel and her cargo for violation of irtain convention between Ilis late Majesty George the third King le United Kingdom of Great Britain and Ireland of the one part the United States of America of the other part made on the twen- |h day of October 1818. And for violation of the Act of the Parlia- it of the United Kingdom of Great Britain and Ireland made and tsed in theflftyninth yearof the reign of His late Majesty George the :d King of the United Kingdom of Great Britain and Ireland, being ipter thirty eight of the Acts of the said last named Parliament |de and passed in the said year. Also for forfeiture of the said vessel her cargo for violation of chapter sixty one of the Acts of the Par- lent of the Dominion of Canada made and passed in the year 1868, of chapter fifteen of the Acts of the said Parliament passed and le in the year 1870, and of chapter twenty three of the Acts of the Id Parliament made and passed in the year 1871. Uobert L. Borden of Halifax, in the County of Halifax, Barrister at make oath and say as follows: I am a partner in business of the Solicitor of the Attorney General Canada in this cause. This is an action brought by Her Majesty for the forfeiture of the said [ssel and her cargo. Annexed hereto marked A is a true copy of the 'it of summons herein and indorsements thereon— the writ of sum- tns was issued on the tenth day of May A. D. 1880, and was duly 'ved on the said ship and cargo, and the said vessel and her cargo ive been duly arrested under a warrant issued out of this Honorable turt in this action. I beg leave to refer to the original writ of sum- ins and to the original warrant on file herein, and to the returns lereto, and to the papers on file in this cause in the office of the Beg- ir nt Halifax. 3. N. H. Meagher Esquire, Q. C. has appeared f^v Jesse Lewis herein the tenth day of June A. D. 1886. 4. It is desirable, as I am instructed and do verily believe, that there lould be pleadings in this action and I believe that by means thereof lis action can be more conveniently tried and that a saving of expense ill thereby be effected. That unless pleadings are ordered herein the isues of fact will be of an exceedingly general D.iture so that it will almost or quite impossible for either party to have any idea except surmise of what specific questions of fact are really in dispute >rein. 5. That on account of the absence of the Honorable the rihief Justice circuit I have been unable to make this motion at an earlier date. lioBEBT L. Borden. i* Begina vs David Jm ^^ ^^® ^^^^ ^^^ of June A. D. 1886, the said Bobert L. Borden was etnrns &c. 1"'^ sworn to the truth of this affidavit at Halifax, in the County of nialifax. Before me. W. Dks Babbes I Ij^'W. Des Babbes. Registrar. I Registrar, ' OF WAT.n>/^y No 472. igned at the Coart Hoe J the 20th day of May ^ suant to an order of tu lay of May A. D. 1886, tfai^ the cargo of the Sohoonei 5 said Court under a War] teen hundred pounds iJ nreservedly and for casbj NT Van Blaboom. ralty Court of Halifax. 30 TtM pai>er writiufr roferred to in tbia affidavit as annexed markc is a true copy of the amended writ of summons and tlie same a« nexed to B. Van Blarcom's affidavits made 15th day of May 1»86, L. W. Des Barbes , Regiitt (Indorsed :) V. Admiralty Court. 473 The Queen vs. David J, ams. Afi'v't of R. L. Borden. Filed 28 June 188G ... I certify that a trne copy of the within affidavit was served on Solicitor of the defendant before 12 o'clock, noon on 28 Jane 1886. WALLA.OK OBAHAH, 8oVr. o/AtVy. Oeneral of Catuu A correct copy. L. W. Oes BAKBES, Regiatri m THE VICE-ADKIBALTT OOUBT OF HALIFAX. Heb Majesty the Queen, plaintiff, 1 against ( jr- 470 The Ship ob Vessel " David J. Adams" f ^ ' and her cargo. ) Action for forfeiture of the said vessel and her cargo for violati a certain convention between his late Mfgesty George the third of the United Kingdom of Great Britain and Ireland of the one and the United States of America of the other part made on the 1 tieth day of October 181H. And for violation of the Act of the Pi ment of the United Kingdom of Great Britain and Ireland mad< passed in the flfty-nlnth year of the reign of His late Majesty G( the third King of the United Kingdom of Great Britain and Ireland,] chapter thirty-eight of the Acts of the said last named Parlia made and passed in the said year. Also for forfeiture of the vessel and her cargo for violation of chapter 6ixty-one of the A» the Parliament of the Dominion of Canada made and passed ii year 1868, and of chapter fifteen of the Acts of the said Parlia passed and made in the year 1870, and of chapter twenty-thi the Acts of the said Parliament made and passed in the year 18'3 I Robert L. Borden, of Halifax, in the County of Halifax, Barrie law make oath and say as follows: 1. I am a partner in business of the Solicitor for the Attorney eral of Canada in this cause. 2. That yesterday Mr. N. H. Meagher, Q. C. informed me that he 1 probably appear for the owners of the above named vessel and < This morning I waited upon Mr. Meagher with a view of obtainii order for the sale of a portion of the cargo of the said vessel, whe Meagher informed me that it was not certain that he would a herein as there had been so^ne misunderstanding. This afterm caused to be served upon Mr. Meagher at about half past three o the notice of motion annexed to the affidavit of James M. Power, 1 sworn this day. I again saw Mr. Meagher and he and I called some persons familiar with the value of fish and were informi them that halibut on board the said vessel would not be worth mow 81 lavit as annexed marked Imons and the same as n| 15th day of May 1886. L. W. Des Barbes Itegi$trar I ["lie Queen vs. David J. Ai [affidavit was served on , uoon ou 28 June 1886. Wallace Gbaham, '^AtVy. General of Canada, L, W. Des Barbes, Registrar. KT OF HALIFAX. No. 472. nd ber cargo for violation u jesty George the third Kin] and Ireland of the one p^ ther part made on the twenl ion of the Act of the Parlia itain and Ireland made and of His late Majesty Georm sat Britain and Ireland, beina Bid last uamed Parliameni for forfeiture of the said ter sixty-one of the Acts o1 ft made and passed in ihJ lots of the said Parliameni of chapter twenty-three oi passed in the year 1871. | auty of Halifax, BarristeraJ icitor for tlie Attorney QenJ i. informed me that hewouloi re> named vessel and carcol ith a view of obtaining aid >t the said vessel, when Mr. ain that he would appear anding. This afternoon II bout half past three o'olockl of James M. Power, hereinl and he and I calleard the siiid vessel Md not be worth more than two dollars per barrel. Mr. Meagher en informed me that he would not appear at the time mentioned in ^d notice but that he would have no objection to a*i order passing for I sale of the said fifteen hundred pounds or thei ""bouts of halibut Id the said fifteen barrels of bait and that it w: ^,t-obabIe altho' not rtain that he would appear in this cause for the owners of the vessel Id cargo. pi. No api>earance has yet been entered herein. Robert. L. Bobden. |On the 15th day of May 1886, the said Robert L. Borden was duly rorn to the truth of this affidavit at Halifax, in the County of Hall- Be fore nie. L. W. Des Barbes, Registrar. (Indorsed:) V. Admiralty Court. Regina vs I>arid J. ^dam*. Seo- ad affld't. of R. L. Borden for sale of cargo, filed 28 June 1886. A correct copy. L. W. Des Babbes, t Registrar. TE THE VIOEADIIIBALTT OOVST OF HALIFAX. lEB Majesty the Qttben, plaintiff, against rHB Ship ob Vessel "David J. Adams" and her cargo. No. 472. Action for forfeitare of the said vessel and her cargo for violation of certain convention between His late Majesty George the third King \t the United Kingdom of Great Britain and Ireland of the one part >nd the United States of America m the other part made on the twen- liethday of October 1818. Andfor violation of the Act of the Parliament if the United Kingdom of Great Britain and Ireland made and passed |n the fltty-ninth year of the reign of His late Majesty George the third Ling of the United Kingdom of GreatBritain and Ireland, being chapter lirty-eight of the Acts of the said last-named Parliament made and >assed in the said year. Also for forfeitare of the said vessel and her sirgo for violation of chapter sixty-one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliament passed and made in the year 1870, and of chapter twenty-three of the Acts of the said Par- liament made and passed in the year 1871. Take notice that on taesday the 29th day of June A. D. 1886, at 12 o'clock noon, at the County Court Honse Halifax, the plaintiff will by 'Counsel move the Judge in Chambers to order that the parties hereto \o file and serve pleadings herein in the manner and at the times pro- dded by the rales respecting prooedare when an order is made for ileadings. <^ 32 Said uiotioD will be made upon tbe affidavit of Bobert L. Bordei filed this day and on the papers on file. Dated, Halifax, 28th June i:30. Waixaok Gbauam, Solicitor of the Attorney Oensral of Catwda. (Indorsed:) V. Admiralty Court. 472. Tbe Qaeen vs David j\ Aaama. Notice of motion, tiled 28 June 1880. the I Certify that a true copy of this notice was served on the Solicitor of e defendant before 12 o'clk. noon on the 28th Jnoe 1886. A true copy. Wallace Obahah, Solicitor of Attorney Oeneral of Vanada. L. W. Des Babbes, Registrar. ni THE VICEAOltniALTT COURT 07 WAT.nrAir Heb Majesty the Queen, plaintiff, V again»t 1 ^ .-„ The Ship ob Vessel David J. Adams f ^ "' **'^' and her cargo. j Action for forfeiture of the said vessel and her cargo for violation of a certain convention between His late Miyesty George tho third King of the United Kingdom of Great Britain and Ireland of the one part ana the United States of America of the other part made on the twentieth ilay of October 1818. And for violation of the Act of the Parliament of the United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the reign of His late Majesty George tbe third King of the United Kingdom of Great Britain and Ireland, being chap- ter thirty eight of the Acts of the said last named Parliament made and passed in the said year. Also for forfeiture of the said vessel and her eargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made aud passed In the year 1868, and of •chapter fifteen of the Acts of the said Parliament passed and made in the year 1870, and of chapter twenty three of the Acts of the said Par- liament made and passed in the year 1871. On the 29th day of June 1886, Before the Honorable James McDonald Judge: Upon hearing Counsel for the plaintift' audoftheonepartan3 adeouthetwenUeth toftheParJiamentof made and passed in sty GeoMfe the thiid ^Ireland, being chap- arliamentmadeattd L*^Ak^' ^"d her |8 of the Parliament oeyearl868,andof passed and made in k-ctsofthesaidPar- le James McDonald lefeodantand upon rein on the twentv 3 herein on the 28th r of the service and [ings and that (he Che manner and at Her Majesty the Queen, PLAiNtiFF, agaiTMt i:bb Ship or Vessel «* David I. Adams" and her cargo. No. 472. Action for forfeiture of the said vessel and her cargo for violation of I a certain convention between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland of the one part I and the United States of America of the other part made on the twen- tieth day of October 1818. And for violation of the Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland made and , passed in the fifty-ninth year of the reign of His late Majesty George the third King of the United Kingdom of Great Britain and Ireland, being chapter thirty-eight of the Acts of the said last named Parliament made and passed in the said year. Aho for forfeiture of the said vessel and her cargo for violation of chapter sixty one of the Acts of the Par- liament of the Dominion of Canada madS and passed in the year 1868, and of chapter fifteen of the Acts of said Parliament passed and made in the year 1870, and of chapter twenty three of the Acts of the said Parliament made and passed in the year 1871. Writ issued on the 10th day of May 1886. 1. A certain convention between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland and the United States of America was made and signed at London on the 20th day of Octol)er 1818, and by the first article thereof after reciting that differences had arisen respecting the lilierty claimed by the said United 'States for the inhabitants thereof to take, dry and cure fish on certain coa8t;8, bays, har- bors and creeks of His Britannic Majesty'e Dominions in America it was agreed between the High contracting parties that the inhabitants of the said United States should have forever in common with the subjects of His Britannic Majesty the liberty to take fish of every kind on that part of the Southern Coast of Newfonndland which extends from Cape Kay to the Bamean Islands on the western and northern coasts of Newfound- land fh>m the said Cape Bay to the Quirpon Islands on the shores of the Magdalen Islands, and also on the coasts, bays, harbors and creeks from 104 A 3 "m 34 t'vk P#.:, 11^' Mount Joly on th» Southern ooastof Labrador to and tbroagh theStiraitN of licllu Isle and thiMiceuortbwardly indefinitely along tbe coast without prcjudivu however to any of the exoUtHJve rights of tlie IIiidsnn'H Bny Company : and that the Aineriuun tlHhermen Hhould also have liberty forever to dry and cure flsii in any of the uunettled buys, harborti and creckH of the Hontheni part of the coast of Newfoundland therealM)ve deHcribed and of tlie coast of Labrador; but as soon as the same or any portion thereof should be settled it should not bo lawful for the naiU lishermen to dry and cure flsii at such porlion so settled without previ- ous n{;reeinent for such pur|>ose with the inhabitants, proprietors or ihm- sessors of the ground. And the said United States tluH'oby renounce forever any lil)erty theretofore enjoyed or claimed by the inhabitants thereof to take, dry or cure tlsh on or within three marine miles of any of the coasts, bays, creeks or harbors of his ^Ll,je8ty's Dominions in America not included within the above mentioned limits: Provided, how- ever, that the American fishermen should be admitted to enter such bays or harbors for the purpose of shelter and of repairing damages therein, ofpurcliasingwood and of obtaining witter and for no other purpose what- ever. But they should be under sucli restrictions as might be necessary to prevent their taking, drying or curing fish therein or in any other manner whatever abusing the privileges thereby reserved to them. 2. That a certain Act of the Parliament of the United Kingdom of Great Britain and Ireland was made and passed in the lU'tyninth year of the reign of His said late Majesty King George the third, being chap- ter "8 of the Acts of the said Parliament made and passed in the fifty- ninth year of the reign of liis said late Majesty King George the third and being intituled ''An Act to enable His Majesty to make regulations with respect to the taking and curing of fish on certain parts of the coasts of Newfoundland, Labrador and His Majesty's other ]>ossession8 in North America according to a convention made between His Mi^jesty and the United States of America. 3. That on the 29th day of March A. D. 1867, a certain other Act of the Parliament of the United Kingdom of Gr4>at Britain and Ireland was made and passed, being chapter three of the Acts (»f the said Parlia- ment passed in the thirty and thirty-first years of the reign of Her pres- ent MsOesty Victoria Queen of the United Kingdom of Great Britain and Ireland and being intituled "An art for the union ot Canada, Nova Scotia and New Brunswick aiid the Government thereof and tor pur- poses connected therewith," which said Act is cited and known as the British North America Act "1867." 4. That a certain Act of the Parliament of Canada was made and passed in the thirty- first year of the reign of Her said Majesty Queen Victoria, being chapter 61 of the Acts of the said Parliament made and passed in the year 1868, and being intituled "An Act respecting fishing by foreign vessels." And a certain other Act of the Parliament of Can- ada was made .and passed in the thirty third year of the reign of Her said Majesty Queen Victoria, being chapter 15 of the Acts of the said Parliament made and passed in the year 1870, and being intituled "An Act to amend the Act resi)ecting fishing by foreign vessels." And in the thirty fourth year of the reign of Her said IMajesty Queen Victoria a certain other Act of the said Parliament of Canada was made and passed, being chapter 23 of the Acts of the said Parliament made and passed in the year 1871, and being intituled "An act further to amend the Act respecting fishing by foreign vessels " 5. That the said convention and the said several acts hereinbefore mentioned were and are still in fall force and effect. lid through the strain .aloiiy the ooaot without » of fhe IIiuIsoii'h Bajl ^piihl also have liberty} ped bu.vs, harbors aiidj KoiiD'UaiMl thereabovej M>oii aH the Maine or uQvj bo hiwfnl for the «aiU| sottloil without previ. »nt8, proprietors or itos- 1 »te8 thiH-oby roiiouiice M by the iiihabitantH Be marl lie iiiihiN of any "jesty's Doiuiuioua in limits: Provided, how- tten certain parts of the ;sty's other possessions le between His Mt^jesty a certain other Act of ; Britain and Ireland A-ctsofthesaidParlia- rthereignof Jlerpres- dom of Great Britain in ion of Canada, Nova ; thereof and for pur. 8d and known as the ianada was made aud said Majesty Queen i'arhament made and |.ct respecting fishing aePailiamentofCan- r of tlie reign of Her tue Actsof the said I being intituled "An rn vessels." And in wty Queen Victoria a i^as made and passed, Jut made and passed er to amend the Act »1 acts hereinbefore 85 The Annapolis Basin lying in and between the counties of Digby Annapolis in the Province of Nova Scotia, together witli its outlet Ithe Bay of Fuiidy, Digby Out, all hereinafter designatend« m CaiMi Kay to the Bamean Islands on the western and northern stM of Newtbundland from the aaid Gape Kay to theQuii'|Min IslandM the shores of the Magdalen Islands or on the coasts, bays, harbors and ks from Mount Joly on the Southern coast of Laltrador to and ■rough the Straits of Belle Isle and thence northwardly indefinitely »)£ the coast. 7. Tliat the said hMi^ DavulJ. Adams, whereof one Aldon Kinney who iiH not a natural born subject of Her Majesty, was or is Master, is a reign ship or vessel not navigated accortling to the laws of the United iiigdotn of Great Britain and Ireland ov according to the laws of anad'k but was and is a ship of the United States of America ownetl foreigners, that is to say bv persons residing in and being citizens of ! United States of America where the said ship or vessel was built iid enrolled and the said shii> or vessel David J Adamn was at the ine hereinafter mentioned licensed and permitted to carry on the fish- I'ies but not to trade under and in pursuance of the Acts of the United tates of America and was engaged in the proHecution of the fisheries nd on a fishing voyage and without a permit to engage in trade and as and is without a license to Ash or any license whatsoever in that half from the Government of Canada or of Nova Scotia under the tatutes of Canada or of Nova Scotia in that behalf. 8. On or about the Gth day of May 1880, the said Aldon Kinney the taster of the said ship or vessel David J. Adama aud the officers nd crew of the said ship or vessel David J. Adam$, did, in and with he said ship or vessel David J. Adams, enter into the Annapolis Basin foresaid within three marine miles of the sboras of the said Anna- lid Basin and within three marine miles of the coasts, bays, creeks nd harbors of those imrtions of the Dominions iu America of Hia aid late Majesty King George the thinl being now the Dominiohs America of Her Majesty Queen Victoria not included within the imits specified and defined in the said first article of the said conven- tion and set out and recited in the first paragraph hereof for the pur- se of procuring bait, that is to say, herrings wherewith to fish, and ice for the preservation on board said vessel of bait to be useil in fishing nd of fresh fish to be fished for, taken and caught by and upon the said essel and by the master, officers and crew thereof and did procure such )ait wherewith to fish aud such ice for the purposes aforesiud and did enter for other purposes than the purpose of shelter or repairing amages or of purchasing wood or of obtaining water contrary to the rovisions of the said convention and of the said sevx il Acts aud the aid vessel David J Adams and her cargo were thereup(.a seizeHet|nt in tbo Haiti Hliip t>r veHHtU David J. Adamn, in the AnniiptiliM li afort!Hnitl, antl while be anil they ami the Haiti nhip or veHHol Dav Adamn wore within three marine inlleH of tlie t;oaHtH or Hhf>reH of Baiti Annapolis liasin and within three marine miloH of the t3o shores, bayH, fireeks and liarliorH of tht)He pttrtitms t>f the Dominioi America of His Haiti late MajeHty Kuik OetirKo tlie thirtl, bein^; the DoniinionH in America of Jler Majesty Queen Victoria, not incli within the limits Hpeciiletl and defined in the Haiti tirat article ot said convention and set out entl reoite or vewel Davidi MU[ Hlij|) or veiwel David J. \ M«.y lH8ekM or bar- trs of tliuHC parts or portions of the Domitiions in America of His said ite Mi\jt!Hty King George the third, being now the Dominions in America ~ Her present Majesty Queen Victoria, not included within the limits spe- Itled a'ld defined in the said first article of the said Convention and set it and reciced in the tlrst paragraph hereof the said ship or vessel lariV/ >/. AdamM, was found to have Iu <■ •' olls Basin within three marine miles of the shores thereof, md within three marine miles of the coasts, bays, creeks or harbors of ;ho8e parts or portions of the Dominions in America of His said late ajesty King George the third, being now the Dominions in America of [er present Majesty Queen Victoria, not included withiu the limits ape- Icified and defined in the said first article of the said Convention and set put and recited in the first paragraph hereof the said ship or vessel JMvt'd J. Adanu was found to be preparing to fish within the said dis- tance of three marine miles of the said coasts, bays, creeks and harbors contrary to the provisions of the said Convention and of the said several Acts. 14. During the months of April and May 1886, the said Aldon Kinney, the master of the said ship or vessel David J. Adams, and the officers and crew of the said ship or vessel David J. Adatnt, did, iu the said ship or vessel David J. Adams, enter within three marine miles of the coasts, bays, creeks and harbors of the province of Nova Scotia, being a {vortion of the Dominions in America formerly of His said late Majesty King George the third and now of Her said Majesty Queen Victoria, not included within the limits specified and defined in the said first article of the said Convention and set out and recited in the first paragraph hereof for the purpose of procuring bait, that is to say herrings, therewith to fish, and ice for the preservation on board said vessel of bait to be used in fishing and of fresh fish to be fished for, taken and caught by and upon the said /essel and by the Master officers and crew thereof, aud did procure such bait whei-ewith to fish, and such ice for the purposes aforesaid, and did so enter for other purposes than the purpose of shelter or repairing damages or of purchasing wood or of obtaining water contmry to the provisions of the said Convention aud of the said several Acts and the said vessel David J. Adams and her cargo were thereupon seized within three ma- rine miles of the coasts or shores of the said Province of Nova Scotia by Peter A. Scott, a fishery officer on board of the steamship Lansdotone, a 88 Wt"i i vessel belougJDg to and in the service of the Government of Canada and employed in the service of protecting the fisheries, as being liable to for- feiture for breach or violation of the said Convention and of the said several Acts. 15. During the months of April and May 1886, the said Aldon Kinney, the Master of the said ship or vcHsel David J. Adanu, and the officers and crew of the said ship or vessel David J. Adams, did, in the said ship or vessel David J. Adanu, and while he and they and the said ship or vessel Darid J. Adams were within three marine miles of the coasts, bays, creeks and harbors of the Province of Nova Scotia, being a portion of the Domiuions in -America formerly of His said late Majesty King George the third and now of Her Majesty Queen Victoria, not included within the limits specified and defined in the said first article of the said Convention and set out and recited in the first paragraph hereof, fish for fish, take fish, and dry and cure fish and were preparing to fish within the meaning of the said Convention and of the several Acts hereinbe- fore mentioned contrary to the provisions of the said Convention and oi the said several acts auil the said vessel David J. Adams and her cargo were thereupon seized within three marine miles of the coasts or shores of the said Province of Nova Scotia, by Peter A. Scott, a fishery officer on board of the steamship Lansdotcne, a vessel belonging to and in the serv- ice of the Government of Canada and emploj'ed in the service of pro- tecting the fisrheries, as being liable to forfeiture for breach or violation of the said convention and of the said several acts. IG. During the months of April and May, 1886, the said Aldon Kinney, the master of the said ship or vessel David J. Adams, and the officers and crew of the said ship or vessel David J. Adams, were in the said s'iip or vessel David J. Adams and while he and they and the said ship or vesHel David J. Adams were within three marine miles of the coasts, bays, creeks and harbors of the Province of Nova Scotia, being a portion of the Dominions in America formerly of His said late Majesty King George the third and now of Her Majesty Queen Victoria, not included within the limits specified and defined in the said first articleof the said Convention and set out and recited in the first paragraph hereof, pre- paring to fish within the meaning of the said Convention and of the several Acts hereinbefore mentioned contrary to the provisions of the said Convention and of the said several Acts and the said vessel DavitZ J. Adams and her cargo were thereupon seized within three marine miles of the coasts or shores of the said Province of Nova Scotia, by Peter A. Scott, a fishery officer on board of the steamship Lansdotone^ a vessel belonging to and in tbeservioeof the Government of Canada and employed in the service of protecting the flbheries, as being liable to for feiture for breach or violation of the said Convention and of the sail several Acts. The Honorable John S. D. Thompson, Her Majesty's Attorney Gen eral for the Dominion of Canada, on behalf of Her Majesty the Queen claims the condemnation of the said ship and her cargo and her gnuf ammunition, tackle, apparel, furniture and stores for violation of th( said Convention and of the said several acts. Wallace Gbahah Solicitor of the Attorney Oeneral of Canada. (Indorsed :) V. Admiralty Court. Begina vs David J. Adams. Pe tition. File>ddeck, in the County of Victoria and Province of Nova Scotia, Dominion of Canada, Collector of Customs greeting : Phese are to authorize and empower you to act as my Deputy in the itter of tbe arrest and custody of the ship or vessel called the Ella Doughty, and her cargo, under the Warrant issued out of this Court j the above cause dated this day. IWituess my band and seal at Halifax, this 28th day of May A. D. 36. [[L. s.] William Twining, Marshal of the Vice Admiralty Court of Halifaa', Nova Scotia. [(Indorsed:) V. AdmiraKy Court 1886. 473. The Queen a'g't Ella I. Doughty & cargo. Afifd't of L. G. Campbell. Warrant &c. 1 Filed 23 June 1886. I A correct copy. L. W. De8 Babbes, Registrar. IS THE YIOE-ASMiaAITT OOUBT OF HALIFAX. Heb Majesty the Qijeen, plaintiff, 1 againat I ■«• ,^n IE Ship oe Vessel "Ella M. Doughty" f^"- *'^' and her cargo. j Action for forfeiture of tbe said vessel and her cargo for violation of [certain convention between His late Majesty George the third King ^ tbe United Kingdom of Great Britain and Ireland of the one part id tbe United States of America of the other part made on tbe twenti- 44 eth (lay of October 1818. And for violation of the Act of the Parliame of tlio LJuited Kingdom of Great Britain and Ireland made and pafio in the flfty ninth year of the reign of His late MtOesty George the thi King of the United Kingdom of Great Britain and Ireland, being ohu ter thirty eight of the Acts of the 8ainaldMcAulaywa8dulJ n the County of ViotoriJ iLBx'B Taylor, \ to administer oatha 'ally Court of Halifax. ►FHAUPAX. No. 473. r cargo for violation ofl ieorge the third Kimrr Inland of the one part Ttmadeonthetwenti. heAct of the Parlia- nu Ireland made and Nate Majesty George iintam and Ireland, «t named Pariiament Hure of the said ves- ne of the Acts of the i passed in the year I Id Parliament passed I three of the Acts of -o7I. 4ft lOonald MoAulay, of St Anns, in the County of Victoria, in the Frov- lof Nova Scotia, subCoUeotor, make oath and say as follows: I That I did on tnesday the twenty fifth day of May A. D. 1886, duly the writ of summons hereto annexed marked A upon the said ship Bsel EUa M Doughty and the cargo on briard thereof, by attaching lid original writ of summons for a short time to the mainmast of lid above-named ship or vessel EUa M. Doughty and by leaving a Tcopy of the said original writ of summons attached to the main- of the said ship or vessel EUa M. Doughty. Donald MoAulay, 8ub-eoUeotor. the 26th day of May A. D. 1886, the said Donald McAulay was duly rn to the truth of this affidavit, ut Baddeok, in the County of Victoria Province of Nova Scotia, lefore me, ALEx'n Taylor A OommiaaUmer dulyappointed to adminiater oatha i» the Vice Admiralty Court of Halifax. A. nr THE yice-adxibaltt goust of HALTFAX. |HER IkfAJESTY THE QUEEN, PLAINTIFF, againat lNn47.l OR VESSEL "Ella M. Doughty " p^" *"»• and her cargo. i SHIP J Action for forfeiture of the said vessel and her cargo for violation of |certain convention between His late Majesty George the third King the United Kingdom of Great Britain and Ireland of the one part jd the United States of America of the other part made on the twen- Bth day of October 1818. And for violation of the Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland made dud iissed in the fifty ninth year of the reign of Hi8 late Majesty George ke third King of the United Kingdom of Great Britain and Ireland, >ing chapter thirty eight of the Acts of the said last named Parliament lade and passed in the said year. Also for forfeiture of the said ves- M and her cargo for violation of chapter sixty one of the Acts of the |arliament of the Dominion of Canada made and passed iu the year ~S, and of chapter fifteen of the Acts of the said Parliament passed id made in the year 1870, and of chapter twenty three of the Acts of ke said Parliament made and passed in the year 1871. iictoria by the Grace of God of the United Kingdom Of Great Britain I and Ireland Queen, Defender of the Faith, Empress of India — to the I owners and all others interested in the ship Ella M. Doughty and her \ cargo. . We command you that within one week after the service of this writ tdnsive of the day of such service you do cause an appearance to be itered for you in Our Vice Admiralty Court of Halifax in the above ' 1 46 named action and tako notice that in default of your so doing tlie w action may proceed and judgment may lie given in your abeeoce. Given at Uaiifax, in our aaid Court, under the seal thereof this tw tieth day of May A. D. 1886. Thia writ may lie served within six months fh>m the date thereof « elusive of the day of such date but not afterwards. The defendants may appear hereto by entering an appearance eitl personally or by Solicitor at the liegistry of the said Court situate number thirty five Bedford Bow, in the City of Halifax and Province ISova Scotia. 1. The IIonornl)lo John S. D. Thompson, Her Mt^jesty's Attorney 6< cral for the Don»nion of Canadit, claims on behalf of Her Majesty t Queen to have the ship HUa M. haughty, being a foreign ship or vest not iiHviiiated according to the laws of the United Kingdom aforesa or of Cauutia, 3olicitor for the At- ' >n the Crown in this ac- of Halifax and Province | McAulay, sub Colleot4}r, the said cargo on ooard immons for a short time 'y and by leaving a copy .o the said mainmast of 47 I said ship or vessel ElUt M. Doughty, oa toesday the twenty flfth day 'lay A. D. 1886. DONA.LD MoAULAT, Hndorsetl:) V. Admiralty Court. 473. The Queen ag't Ella M. wqhty & cargo, affidts. D. McAnlay & writ of summons, 'lied June 28. 1880. correct copy. L. W. DBS Babbes, Regiatrar. IN THE VIOE-ASMIRALTY COUKT OF HALTFAX. lER Majesty the Queen, plaintiff, eufainnt iPi Ship or Vessel " Ella M. Douodty" and her cargo. No. 473. [Action for forfeiture of the said vessel and her cargo for violation of certain convention between his late Mi^jesty George the third King [the United King part made on the 'an of the Act of Britain and Ireland n of His late Mtyesty f Great Britain and the said last named lIso for forfeiture of [>ter sixty one of the la made and passed cs of the said Purlin Eipter twenty three of | in the year 1871. yof June A.D.188C, at 12 o'clock noon at the County Coort House, Ualifiuc, the plaintiff will by Counsel move the Judge in Chambers to order that the partict hereto do tile and serve pleadings herein in the manner and at the times provided by the rules respecting procedure when an order is made fot pleadings. Said motion will be made upon the allldavit of Robert L. Bonlen, filed this day and on the patters on file. Dateil, Halifax, 28 June 188U. Wallace Gbaham, Solicitor of the Attorney Oeneral of Canada. (Indorseil:) Vice Admiralty Court 473. The Queen vs. EUa M. Doughty. Notice of Motion, filed 28 June 1880. I Certify that a true copy of this notice was served on the Solicitor of the defendant before 12 o'clock noon on the 28 June 1880. Wallace Graham, Solicitor of Attorney Oeneral of Canada. A correct copy. L. W. DBS Barrbh, Registrar. m THB VIOS-AOMIBALTT COURT OF HALIFAX. Her Majesty the Qitbbn, plaintiff, ") against V^ ,-„ The Ship or Vessel Ella M. Doughty r ■""• ' '•»• and her cargo. 3 Action for forfeiture of the said vessel and her cargo for violation of iv certain convention between His late Majesty George the third King of the United Kingdom of Great Britain and Ireland of the one part and the United States of America of the other part made on the twen- tieth day of Octx)ber 1818. And for violation of the Act of the Parlia- ment of the United Kingdom of Great Britain and Ireland made and passed in the fifty ninth year of the reign of His late M^esty George the third King of the United Kiugdon of Great Britain and Ireland, being chapter thirty eight of the Acts of the said last named Parlia- ment made end passed In the said year. Also for forfeiture of the said vessel and her cargo for violation of chapter sixty one of the Acts of the Parliament of the Dominion of Canada made and passed in the year 1868, and of chapter fifteen of the Acts of the said Parliament passed and made in the year 1870, and of chapter twenty three of the Acts of the said Parliament made and passed in the year 1871. On the 29th day of June A. D. 1886, Before the Honorable James Mc- Donald Judge. Upon hearing Counsel for the plaintiff and for the defendant and upon reading the affidavit of Robert L. Borden filed herein on the 28th day of June 1886, and the notice of motion filed herein on the 28th day of June 1886, and the affidavit of James M. Power of the service and filing thereof: It is ordered that this action be heard with pleadings and that the 104 A 4 ■ v>:fs.'-B^a>s)W>*."-*T^-^;^--* 50 )>tirti«ti liHroto tlo file and nerve |>lAA(iiu(;ii herein iu the luaiiiK' the times pruHorilietl in hucIi oane by the riileii and jimotioe of tl oroblo Court and that the vAmtn of thU application lie ooRtH in tl L. W. I)BH IlAKRt lief, (Ind:) Y. Adniirulty Court. The Queen vh. JilUi M. Order for p'.i^adinf;^. Filed June M), 188<{. I Certify that a copy of the within order was wrvt'il «p Meagher, Enq. on the 30th day of June 1886. Wallack Oraiia Solicitor /or the Attorney Oenerat of C A correct copy. L. W. I)E8 Bakue lieg IS THE VIOE-ADMISALTT COUBT OF HAUPAX. Her Majesty tub Queen, plaintiff, again$t The Ship or Vessel '*Ella M. Doughty" and her cari^o. No 473. Action for forfeiture of the said vesHel and lier uargo for vio a certain convention between His late Mt^jesty George tihe third the United Kingdom of Great Britain and Ireland of the ' ne the UniteougktA nnU'v wiiM MtU'Vfd u\hh\ N. Ill 1886. Wallack Graham, A ttorney lieneral of Canada. L. W. Dkh Barkbh, Hegiatrar, OURT OF HALIFAX. riFF, ohty" No 473. )1 aud lier uargo for violation ofl [i^jesty Ueorge the third King ofl ind Ireland of the ' ne part and! her part niiule on tne tweutietbl I of the aot of the Parliament off nd Ireland made and parsed inl e Mf^esty George the third King! >nd Ireland, being chapter thirty Parliament made and passed inl le said vessel and her cargo fori ts of the Parliament of the Do [ he year 1868, and of chapter tlf I assed and made in the year 1870.1 of the said Parliament made autlf k. D. 1886, I late Majesty George the thirdl itaiu and Ireland and the Unitedl d at London on the 20th day off tiereof after reciting that diiferl laimed by the said U nited States! and cnre flsh on certain coasts,! Majesty's Dominions in AmerkaT ting parties that the inhabitantsl orcver in common with the sal>-| erty to take flsh of every kindl ' Newfoundland which extends! I on the weatem and northeml , U of Newfoundland (kom the said Cafie Bay to the Quirixin Island* tlio hIiom'S of the Magilaleo IslamlH, and tUso on the ooasts, bays, har- ^rs and craeks firom Mount .loly on the Southern ooaat of IjabnMlor to k(l tliroiigh the Straits of lielle Isle und thence Northwardly indeflnitely Etiig the coast without prejudice however to any of the exclusive rights ^th«« IliidMoiis Hay Com|Mny : and that the American fishermen should fto liavc lilwrty forever to dry and cure Ash in any of tiie unsettletl lyH, liarlMin and creeks of the southern |>art of the coast of Newfound- id tlicre aliove described and of the coast of Labrador: but so soon tiic HAine or any portion thereof should lie Mettled it sliouUI not be rful for the said flshemien to dry and cun^ Ash at such (lortion so set- Fd without previous agreement for such piiritose with the inhabitants, iprietors or posseMors of the ground. And the said United States kcreby renounced forever any liberty then^foro enjoyed or claimed by ke inhabitants thereof to take, dry or cure Ash on or wittiin three marine |iles of any of the coasts, bays, creeks or harbors of His Mi^esty's I>o- |inions in America not included within the altove-mentioned limits ; rovided however that the American flshermen should lie admitted to iter such baysor harbors forthe purposeof shelterandof repairingdam- ;es therein, of purchasing wood ami of obtaining water and for no other liirpowt whatever. But they shoald be under snob restrictions as might necessary to prevent their taking drying and oaring flsh therein or any other manner whatever abusing the privileges thereby reserved them. 2. That a certain Act of the Parliament of the United Kingdom of ^reat Hritaiu and Ireland was made and passed in the flfty-nintb year [f the reign of His late Majesty King George the third being chapter lirty-eight of the Acts of the said Parliament made and passed in the |t'ty-ninth year of the reign of His said late Majesty King George the linl and being entituled *' An Act to enable His Majesty to make regu- tion« with resjtect to the taking and curing of flsh on certain parts of Ihe coasts of Newfoandlaud, Labrador, and His Majesty's other posses- )ions in North America ueeording to a convention made between His lajesty and the United States of America." 3. That on the 20th day of Maroh A. D. 180Y, a certain other Act of the Parliament of the United Kingdom of Great Britain and Ireland was lade and passed, being chapter three of the Acts of the said Parliament kassed in the thirtieth and thirty first years of the reign of Her present jlajesty Victoria Qneen of the Unitef the coasts or shores ofl Id McAnlayand Lauchlinf da, as being liable to for- tturefor breach or violation of the said Convention and of the said Iveral Acts. [u. The said Warren A. Do ughty, the master of the said ship or vessel ]ilM M. Doughty, and the ofiicers and crew of the said ship or vessel Ella Doughty Uiu, between the tent h and seventeenth days of May 1886, )d suuseiiueuciy in tlie said ship or vessel Ella M, Doughty in the Bay lid barbur of iSc Anus aforesaid and while he and t-hey and the said ^ip or vessel Ella M. Doughty we re within three marine miles of the iiMts or sliures of tnu said B ay and harbor of St Anns and within ^ree murine miles of the coasts, sliores, bays,creek8 and harbors of those )rtious of the Dominions in America of Ilis said late Mt^esty King [eorge the third being now the Dominions in America of Her Majesty lueeu Victoria net included within the limits specified and defined in m said tlrst article of the said Convention and set out and recited in le said first jiaragraph hereof fish for fish and take fish and did dry iid cure fish and were preparing to fish within the meaning of the said lonveution and of the said several acts hereinbefore mentioned con- rary to the provisions of the said Convention and of the said several Bts and the said vessel Ella M. Doughty and her cargo were thereupon sized within three marine miles of the coasts or shores of the said Bay Ind harbor of St Anns by Donald McAulay and Lauchlin G. Campbell, IfiUcers of the Customs ot Canada, as being liable to forfeiture for viola- lion of the said Convention and of the said several Acts. 10. The said Warren A. Doughty, the master of the said ship or vessel Klla M. Dotighty, and the oflicers and crew of the said ship and vessel Ella M. Doughty, were between the said tenth and seventeenth days of lay 188U, and subsequently in the said ship or vessel Ella M. Doughty [n tue Bay and liarbor of Sc Anns aforesaid and while he and they and ];he said sni[> or vessel Ella M. Doughty were within three marine miles i>f the coasts or shores ot the said Bay and harbor of St Anns and within |;hree marine miles of the coasts, shores, bays, creeks and harbors of those jrtious of the Dominions in America of His late Majesty King George ^he third being now the Dominions in America of lier Majesty Queen Victoria not included within the limits specified and defined in the said irst article of the said Convention and set out and recited in the first paragraph hereof preparing to fish within the meaning of the Conven- tion and of the several Acts hereinbelore mentioned contrary to the ji'ovisious of the said Convention and of the said several acts and the ^aid vessel Ella M. Doughty and her cargo were thereupon seized with,iu three marine miles of the coasts or shores of the said Bay and harbor >f St. Anus by Donald McAulay and Lauchlin G. Campbell, officers of the Customs of Canada, as being liable to forfeiture for breach or viola- tion ot the said Convention and of the said several Acts. 11. Between the said tenth and seventeenth days of May 188G, and bubsequeutly in the said Bay and harbor of St Anns within three ma- rine uules ot the shoi'es thereof and within three marine miles of the boast«, bays, creeks and harbors of those portions or parts of the Domiu- louH in America of His late Majesty King George tlie third being now me Dominions in America of Her present Majesty Queen Victoria not [uciuded within the limits specified and defined in tlie said first article }f the said Convention and set out and recited in the said first para- graph hereof, the said ship or vessel Ella M. Doughty was found to be ' shing within the said distance of three marine miles of the said coasts. Jays, creeks and harbors contrary to the provisions of the said conveu- Mon and of the said several acts and tlie said vessel Ella M. Doughty |ind her cargo were thereupon seized within three mtrtion of the Dominion of America of His said late Majesty Kin George the third and now of Her said Majesty Queen Yictoria, not ii eluded within the limits specified and defined in the said first article < the said Convention and set out and recited in the first paragraph herec for the puri>ose of procuriug bait, that is to say, Herrrings, wherewit to O-jh, and ice lor the preservation on board said vessel of bait to 1 r.i«ed in fishing, aud of fresh fish to be fished for, taken and caught I and upon the said vessel and by the master, officers and ci-ew therec and did procure such bait wherewith to fish and such ice for the pu poses aforesaid and did so enter for other purposes than the purpose < shelter or repairing dami^ges or of purchasing wood or of obtainiu water contrary to the provisions of the said Convention and of tbe sai 55 St Anns by Donald Me, le GnstomH of Canada, ai m of the said Convention days of M«y 188G, andl rbor of St Anns, witbinl nthin three marine miltsj B parts or i)ortion8 of tbd King George the third! present Majesty Queeil d and deQiied in the saidf b and recited in the said] lla M, Doughty, was foundl of three marine miles off rary to the provisions ofl ict« and the said vessel! pon seized within three! id Bay and Harbor of sJ Campbell, Officers of tbel ■e for breach or violationl Act8. I h days of May 188G, andl \t Anns and within tfareel three marine miles of thel or portions of the Domin f r George the third being,! Majesty Queen Victoria,! defined in the said flrstl recited in the flrit para- 1 Doughty was found to 1»| hree marine miles of thel 7 to the provisions of thel and the said vessel Mla\ Bed within three marine j r harbor «)f St Ann's by I >fficers of the Customs of I »u of the said convention [ J86, the said Warren A., BUa M. Dmtghty, and the I M. Doughty, did, in tbe lin three marine miles ot | lince of Nova Scotia, be- 8 said late Majesty King Queen Victoria, not in- f n the said first article oil le first paragraph hereof. r, Herrriugs, wherewith | Jaid vessel of bait to be »r, taken and caught by fficers and crew thereof, | id such ice for the pur )ses than the purpose of ? wood or of obtaining nvention and of tbe said jral acts and the said vessel Ella M. Doughty and her cargo were supon seized within three marine miles of the coasts or shores of said Province of Nova Scotia by Donald McAnlay and Lauchlin G. ipbell, officers of the Customs of Canada, as being liable to forfeiture I breach or violation of the said Convention and of the said several During the months of April and May 1886, the said Warren A. ighty, the Master of the said ship or vessel Ella M. Doughty, and the sers and crew of the said ship or vessel Ella M. Doughty, did, in the ship or vessel Ella M. Doughty, and while he and they and the said J) or vessel Ella M. Doughty were within three marine miles of the fsts, bays, creeks and harbors of the Province of Nova Scotia, being irtion of the Dominions in America formerly of his said late Majesty ig George the third and now of Eer Majesty Queen Victoria, not in- ' within the limits specified and defined in the said first article of said Convention and set out and recited in the said first paragraph ^eof, fish for fi.'^h, take fish, and dry and cure fish and were preparing within the meaning of the said convention and of the several ^ts hereinbefore mentioned contrary to the provisions of the said Con- ition and of the said several Acts and the said vessel Ella M. Doughty |d l.er cargo were thereupon seized within three marine miles of the »ts or shores of the said Province of Nova Scotia by Donald Mc- ilay and Lauchlin G. Campbell, of^cf j of the f'^-^tnms of Canada, as ling liable to forfeiture for bre^h or Violation of tlie said Convention Id of the said several Acts. |1G. During the months of April and May 1886, the said Warren A. >ughty, the Master of the said ship or vessel EUa U. Doughty, and the Seers and crew of the said ship or vessel EUa M. Doughty, were, in the kid ship or vessel Ella if. Doughty, and while ba and they and the said lip or vessel Ella M. Doughty were within three marine miles of the ^ast«, bays, creeks and harbors uf the Province of Nova Scotia, being a ortiou of the Dominions in America formerly of nis late Majesty King Borge tbe third, and now of Her Majesty Queen Victoria, not inclndsd ^thiu the limits specified and defined in tbe said llrst article of the ' Convention set out and recited in the first paragraph hereof pre- l^nng to fish within the meaning of the said Convention and of the iveral Acts hereinbefore mentioned contrary to the provisions of tbe ^id Convention and of the said several Acts and the said vessel Ella Doughty and her cargo were thereupon seized within three marine ^es of the coasts or shores of the said Province of Nova Scotia by )nald McAulay and Lauchlin G. Campbell, officers of the Customs of inada, as being liable to forfeiture for violation of the said convention id of the said several Acts. [The Honorable John S. D. Thompson, Her Majesty's Attorney Gen- ral lor the Dominion of Canada, on behalf of Her Majes:,j the Queen, |aims the condemnation of the said ship and her cargo and her gans, lumuQition, tackle, apparel, furniture and stores for violation of the ^id Convention and of the said several Acts. Wallace Gbaham, Solicitor for the Attorney General of Canada. [(Indorsed :) V. Admiralty Court. The Queen vs Ella U Doughty. ^tition. I Filed 6, July 1886. ft6 I Certify that a copy of the within Petition was served upon N. Meagher, the Solicitor of the defendants herein, on this, 6th dayof Jn 1886. Wallace Graham, SoUoitor/or the Attorney General of Canada. A correct copy. L. W. Des Babbes, Registrar. m THE VICE-AOMIBALTT COURT AT HALIFAX. Heb Majesty the Queen, plaintiff, against The Ship oe Vessel "David J. Adams" and her cargo, defendants. •No. 472. Action for fortieiture. Writ issued 10th May 1886. The defendant, the owner of the said vessel, to wit: Jesse Lewis, sayi as follows: 1. That there was not, at the time of the alleged seizure of the 8ai( vessel, nor at any time after her sailing from Gloucester, in the State o Massachusetts, as hereinafter set out, any cargo aboard said vessel ex cept supplies suitable and necessary for the fishing voyage hereinaftei set out, and except a certain amount of fresh halibut, between 1500 anc 1800 pounds, caught by the master and crew while aboard of said ves sel on the western banks in waters where said vessel and the master am crew thereof were lawfully entitled to flsh for said halibut. 2. He admits the allegations set forth in the first paragraph of the petition filed herein as to the making and signing of the treaty or cou- vention of October the 20th 1818, therein referred to. But for greatei certainty they crave leave to refer to said treaty when produced at the trial of this action. And they further say that they submit and will insist that said treaty is to be construed in connection with the treaty between the United States of America and Great Britain made in A. i>. 1783, and especially article third thereof. 3. As to second paragraph of said petition the defendant admits the passage as therein alleged of a certain act of the Parliament of Great Britain and Ireland in the fifty ninth year of the reign of George the Third, being chapter 38 of acts of said Parliament, and he also admits as therein alleged the passage of the act of the Parliament of Great Brit ain and Ireland referred to in paragraph 3 of said petition and also the passage by the Parliament of Canada of the several acts referred to in the fourth paragraph of said petition. But he denies that either oi said acts prohibited the purchase of bait or ice as alleged in said peti tiou or that there ever have been any order or orders in council, regqia tious, directions, or instructions as provided in said act of Parliameni passed in the fifty ninth year of the reign of George the Third, prohib iting the purchase of bait or ice as alleged in said petition or any acl either of the Parliament of Great Britain and Ireland or of the Parlia ment of the Dominion of Canada or any order or orders in council, reg ulations, directions or instructions imposing penalty of forfeitura undei or by virtue of which said vessel, the David J. Adams, is liable to for I was served upon N. J,on thiSjGthdayof Juj ALLACK GbaHAM, nej/ General 0/ Canada. W. Des Babbes, Segistrar. AT HALIFAX. . 472. 1886. wit: Jesse Lewis, sayJ Bjfed seizure of the sai Icucester, in the State aboard said vessel eU iing voyage hereinaftei ilibut, between 1600 anc i^hile aboard of said ves. essel and the master andj said halibut. 1 first paragraph of the ngof the treaty or cou-l red to. But for greateij y when produced at the t they submit and will] inection with the treaty eat Britain made in A. le defendant admits thel he Parliament of Great! he reign of George thai t, and he also admits as I rliament of Great Britf id petition and also the eral acts referred to in| J denies that either olj as alleged in said peti- rders in council, regqla i said act of Parliament >rgethe Third, prohib aid petition or any act eland or of the Parlia- orders in council, reg- *lty of forfeiture under Adama, is liable to for- luv< lion 67 re for the purchase of bait or ice or for entering Annapolis basin he purchase of bait or ice as alleged in said petition. That, as to the several acts of the Parliament of the Dominion of ada referred to in the fourth paragraph of the said petition, defend^ ivers and says that the Parliament of Great Britain and Ireland lated in reference to the subject matter of said treaties and con- ion by the said act of the fifty ninth year of George the Third which remains in full force and by its terms necessarily is inconsistent with, necessarily excludes any legislation of the Parliament of the Do- on of Ciinada, concerning the subject matter thereof and all regn- ns whatever in relation thereto except as expressly provided in said of Pnrliament of Great Britain and Ireland. And that all legisla- of the Dominion of Canada is unauthorized, null and void so far as same relates or assumes to relate to the matters set out in said pe- n or to said vessel, David J. Adamn. With reference to the fifth article of said petition they admit that said convention and the said several acts passed by the Parliament reat Britain and Ireland, hereinbefore mentioned, were and still ar& ull force and effect, save and except that additional privileges have n given to vessels of the United States and other foreign vessels by sequent statutes and regulations hereinafter referred to. With reference to paragraph 6 of said petition he admits that An- lis basin, together with its outlet, Digby Gut, into the Bay of Fundy,,. in and between the counties of Digby and Annapolis in the Province Nova Scotia, and he admits the further statements in said sixth par- iph contained. He admits the statements contained in the seventh paragraph of [ petition, bat he avers that said David J. Adain8f under the treaties force and the laws and regulations in that behalf had the right to- e, so far at least as the purchase of bait wherewith to carry on deep sea fishing outside of and beyond said limits was concerned, in. L Annapolis basin or in any other Canadian port. 8. With reference to the statements contained in the eighth para- aph of said petition save and except as herein specifically admitted denies the same and every of them. He however admits that on or out the sixth day of May in the year of our Ijord 1886, Aldon Kinney,. master, and the officers and crew of the said ship or vessel David J. m«, did, in and with the said ship or vessel David J. Adama, enter o the said Annapolis basin and within three maride miles of the coast Annapolis basin aforesaid, and within three marine miles of those rtious of the dominions in America described in said paragraph. But avers that said entry into said basin and port was made without his owledge or consent and against his wishes and in direct violation of e orders given by him to said Aldon Kinney in that behalf respecting id voyage. And he further admits that said master, officers and crew tered said basin in and with the said vessel on or about the sixth dav May and did then and there procure by purchase and by payrnet;'. money therefor and in no other way, bait, to wit, herrings, where- tli to fish in the open sea and outside and beyond the limits and do- iuious aforesaid and outside of three marine miles and to fish there- th in no other place than in said open sea without and beyond said minions said limits and said three marine miles. And he denies that id master, officers and crew, or either of them, did prcaure by pur- ase or otherwise any ice within said bay or harbor or within said three larine miles. lid 58 And he denies that said roaster, officers and crew or either of tbei •in and with said vessel, or said vessel did at or aboat the time allege in said paragraph of said {letition or subsequently and within said ba«i of Annapolis or within said three mariuo miles, any act or thing wha ever contrary to the provisions of the said convention ; and he deni( that said roaster, officers and crew or either or them iu and with sai vessel or said vessel did at or abont the time alleged In said paragrap or subsequently in said basin of Annapolis or within said three marin miles anything whatever contrary to the provisions of the said seven acts or any of them even if said acts and all of them were of fall force validity and effect. And he further denies that the said vessel David J. Adams and tk property aboard her or either of them were seized within three marin miles of the coasts or shores of the said basin by Peter A. Scott, or thii they or either of them were seized at or about the time named in sai paragraph at or about the place therein named or at any other time c place or by any person authorized to seize the same or that the sam were or either of them was ever seized under any law aathorizing sai seizure. And he further denies that said Peter A. Scott was a fishery office as alleged in said petition or was duly authorized by law to seize salt vessel and cargo. And he further denies that said vessel or cargo wai liable as alleged in said paragraph to forfeiture for breach or violatioi of said convention and said several acts or either of them. The said owner further says that the said bait was bought by tL( master of the said vessel to be used as hereinbefore set out in flshins on the banks outside of all bays, harbors and said three marine mile« and outside of all waters prohibited by said convention and not else where. He avers that the purchase of the said bait at the place au( time and under the circumstances and for the purposes in this answei stated wafl lawful. 9. And the defendant farther says that said vessel on or about tlie tenth of April last in command of said Aldon Kinney, with a crew oi 12 men, lawfully sailed from Gloucester, in the State of Massachusetts, bound on a halibat fishing voyage to the Western Banks so called and to and kt a place or places not within the limits specified and defined jn said first article of the said convention bat at a place or places where she was lawfully entitled to fish for halibut as aforesaid in accordance with the laws of the United States of America and in accordance witli said convention and said treaty of 1783, and the laws of nations. Sbe proceded on her said voyage and arrived at the said banks and for « period of about 12 days jirosecuted her said fishing voyage on said banks and caught a quantity of fish and her bait becoming exhausted she proceeded to Eastport, in the State of Maine, to procure a furthei sapply thereof bot being unable to procure at Eastport aforesaid hei needed supply of bait for the prosecution and completion of the sai^ voyage, she proceeded as she lawfully might under said treaty, stat tttes, and regulations and proclamations and the laws in force on thai behalf to the said Annapolis Basin and entered the same and whilt there she purchased and i>aid for several barrels of bait, to wit, herrings wherewith to enable her to prosecute her said fishing voyage with sue cess and complete the same as she had a lawful right to do and at am daring all the time and times in this paragraph stated and at and prioi to said sixth of May and snbseqaently said vessel held and had a licens( to fish daly granted to her under the laws of said United States o America, and he further alleges and says that all the acts, matters an( I crew or either of thcj laboat the time allege] py and within said baflil [any act or thing whai rention ; and be denij them in and with sal] leged in said paragrapi rithin said three marin pions of the said sever them were of full fore lavid J. Adams and tb letl within three marin, 7Peter A.Scott, or thill the time named in saif or at any other time same or that the saoii ly law aathorizing saij )tt was a fishery ofBceJ id by law to seize saif laid vessel or cargo wa2 for breach or violatioJ iT of them. 1 )ait was bought by tbJ afore set out in fishing said three marine milei •nvention and not else] 1 bait at the place aui •urposes in this answeif vessel on or about tlii Kinney, with a crew o1 3tate of Massachusetts! Brn Banks so called and 8 specified and define i a place or places wher™ iforesaid in accordance! md in accordance witiil e laws of nations. Sbel > said banks and for al ashing voyage on saidl nt becoming exhanstedl e, to procure a furtherl Eastport aforesaid herl completion of the saidl inder said treaty, statl I laws in force on that! d the same and whilel )f bait, to wit, herringsJ ming voyage with sue I 'iffht to do and at and! itated and at and priori held and had a license! laid United States ofl I the acts, matters and f 09 IgH herein set out as done or omitted to be done by said master, officer icrew of said vessel, were lawful and were not in contravention of {law, statute, regulation, order, treaty, or convention whatever; and owner further avers and says that said bait was bought as herein- bv set out with the intention and for the purpose of being used ly ill flsiiiiii* on the said Western Banks and outside of all said bays, [)orH and said three marine miles and outside of nil waters prohibited Uid convention and not elsewhere. With reference to the statements contained in the several para- )hs of said petition numbered from to 10 each inclusive, said owner !ests that the several statements and allegations therein contained in respect to one and the same matter or cause of action and not it or ditt'erent; be denies the triitli of the several statements con- fed in said paragraphs and every of them, subject nevertheless to following; — that if by the several allegations contained in said ition as to preparing to fish it was intended to allege that said Btcr, ofiicers and crew of said vessel or either of them did prepare liu said tliree marine miles to take fish without said three marine ss and in waters not prohibited by said convention and by said acts bitber of them as in said several paragraphs particularly set out, the le is true to the extent and in the manner hereinbefore set out and I otherwise true. [1. And he further denies that on or about the said sixth day of May (subsequently said Aldou Kinney, master of the said ship or vessel fvid J. Adams, and the officers and crew thereof, or either of them, in |l with said vessel David J. Adams or either in or with said vessel within said basin of Annapolis or within three marine miles of any the coasts, bays, or creeks and harbors alleged in said petition fish fish, take fish, dry flsb, cure fish or was fonnd fishing, or was found sparing or did prepare within said three marine miles or elsewhere, to within three marine miles of any of the bays, coasts, creeks or har- rs alleged or referred to in said petition. And be further says that the said basin of Annapolis, as described haid petition, being the place where said master purchased the "c^it hereinbefore set out was at the time when he purchased the bait jresaid a commercial port in the Domininion of Canada and a port of |e Dominion of Canada established by law in accordance with the cus- IS acts and other statutes of said Dominion into which vessels were law permitted to freely enter and from which they were permitted to bely depart subject only to the provisions of the customs acts and ^ler general regulations of the ports provided in that behalf; that so ich of said convention entered into on the 20th. day of October 1818, I)rovided that fishermen should be admitted to enter bays and har- \t» for the purposes therein set out, has relation to bays and harbors bnerally and is not inconsistent with the matters in this article alleged lat with reference to said basin of Annapolis and all other bays and jtrbors, constituted ports as aforesaid, there did not exist at any time May 1886, or subsequently either in the laws of Great Britain and eland or in those of the Dominion of Canada or in any treaty or.con- Mition any prohibition against the entry into said port or ports in the koe of peace of k^ny vessels whatsoever belonging to a friendly nation, kI lawfhlly enrolled, licensed ut registered according to laws of said ^endly nation, for the pnr|>ose of obtaining necessary or reasonable kpplies for her voyage, and occupation in which she may be lawfully hgaged nor against said vessels having so entered providing them- klves with all necessary and reasonable supplies for their lawful voy- - n'»'?i;*j«*;i»iA.wnj^ * 'iJI 60 ages and oocapations and departing with the same ; and that the Uiii States of America was at all the times alleged in said petition, to during the 6th. day of May and snbsoquently at peace with the Qnei> Great Britain and Ireland and all her dominions and on terms of an and friendship with all the same. 12. And said owner further says that pursuuni to the proclamat of the King of GiOut Britain and Ireland, concurred in by the pr council bearing date on or about the sixth of November A. D. 1830, i which proclamation was issued in pursuance of appropriate legislat in that behalf, ships of and belonging to the United States of Amei were authorized freely to export goods from the dominions of Gr Britain and Ireland including what is now the Dominion of Gunadt be carried to any foreign country wliatever; and by sul^sequent le, lation of the Parliament of Great Britain and Ireland all vessels of United States of America lawfully registered, enrolled or licensed accordance with the laws of said United States during all of said moi of May 188G, & subsequently as to voyages from and to ports ( places in the dominions of Great Britain and Ireland including Dominion of Canada and as to trading at such ports or places as ii dental to such voyages were mdde subject to the same prohibitions ( restrictions and to no other to which ships and vessels of Great Brit and Ireland engaged in like voyages or trading were then subject, that said ship or vessel, David J. Adams, and her master, officers a crew were thereby fully authorized and permittetl to purchase bait der the circumstances and for the purposes hereinbefore set out at t time and place when said master purchased the same. Dated the day of July 1880. (Indorsed :) Copy. Aug. 7, «86. Filed. The Queen v. The David J. Adams. Defence IN THE VICE-AOMIBALTT COUBT AT KAT.TTAX. Heb Majesty the Queen, plaintiff, versus The Ship ob Vessel " Ella M. Doughty " and her cargo, defendants. No. 473. Action for forieitare. Writ issueil May 20th 1886. The defendants, the owners of said vessel, to wit: Warren A. Dougl and others say as follows, — 1. That there was not at the time of the seizure of said vessel or any time after her sailing from Portland, in the State of Maine, as her after set out, any cargo aboard said vessel except supplies suitable f 'necessary for the fishing voyage hereinafter set out, and except a ( tain amount of fresh halibut, between fifteen hundred and two thousi pounds, caught by the master and crew while aboard of said vessel the western banks about twenty miles south of Sable island in wat where said vessel and the master and crew thereof were lawfully titled to fish for said halibut. 2. They admit the allegations set forth in the first paragraph of petition filed herein as to the making and signing of the treaty or c vention of October 20th 1818, therein referred to. But for greater < tainty they crave leave to refer to said treaty when produced at '"**iiitiSK '?' ^ id J. Adams. Defence. P AT HAUPAX. 61 . of tbiii actiou. And they further my that Ihey Hubuiit uud will ^t that said treaty is to be construed in connection with the treaty irceu the United States of America and Great Britain made A. D. and especially article third thereof. Ah to Rocond paragraph of Haid petition tlio dofeudantH admit the ^age aH therein alleged of a certain act of the Parlian-.cnt of Great lin and Ireland in the fifty ninth year of the reign of George Third, ig chapter 38 of acts of said Parliament and thoy also admit as rein alleged the passage of the act of the Parliament of Great Urit- [and Ireland referred to in paragraph three of said ]>etition and also [passage by the Parliament of Canada of the several acts referred to lie fourth paragraph of said petition. But they deny that cither of acts prohibited the parchase of bait or ice ae alleged in said peti- L or that there ever have been any order or orders in coancil, regu- lons, directions or instructions as piyvided in said ant of Parliament Ised in the fifty ninth year of George the Third prohibiting the pur- Ise of bait or ice as alleged in said petition or any act either of the Vliament of Great Britain and Ireland or of the Parliament of the liiiiou of Canada, or any order or orders in council, regulations, di- tions or instructions imposing penalty of forfeiture under or by vir- I of which said ve sel, the Ella M. Doughty, is liable to forfeiture for purchase of bait or ice or for entering said bay or harbor of St. \ns for the purchase of bait or ice as alleged in said petition. That as to the several acts of the Parliament of the Dominion of nada referred to in the fourth paragraph of said petition the defend- ta, aver and say that the Parliament of Great Britain and Ireland did |[islate in reference to the subject matter of said treaties and conven- I by the said act of the fifty ninth year of George the Third, which remains in full force and by its terms necessarily is inconsistent th and necessarily excludes any legislation of the Parliament of the )minion of Canada concerning the subject matter thereof, and all regu- [ions whatever in relation thereto except as expressly provided in Id act of Parliament of Great Britain and Ireland. And all legisla- ^n of the Dominion of Canada is nnantborized, nnll and void so far as same relates or assumes to relate to the matter set out in said iieti- or to said vessel, Ellm M. Doughty. With reference to tne fifth article of said petition they admit that id convention and the said several acts by the Parliament of Greao ritain and Ireland hereinafter mentioned were and still are in fn 1 fee and ejB'eot, save and except that additional privileges have ' a ecu to vessels of the United States and other foreign vessels by snb- ]uent statutes and regulations hereinafter referred to. [». With reference to paragraph six of said petition they admit that le bay and harbor of St. Anns are sk <3ted in the county of Victoria Id province of Nova Scotia, and they admit the further statements in lid sixth paragraph contained. |7. They admit the statements contained in the seventh paragraph of lid petition and they also allege that in accordance with the laws of ^e United States of America said ship or vessel, Ella M. Doughty, was the time and times mentioned in said paragraph fiot only licensed id permitted to carry on the fisheries as therein alleged but was in ac- ^rdance with the Revised Statutes of the United States of America, fection 4304, licensed and permitted so far as the said United States could Iwfully do the same to touch and trade at any port foreign to the said Inited States in such manner as may not be inconsistent with the law- 11 regulations of said foreign port. ■w 02 •H 8. With reference to the stuteuients ooutainetlin tlio eigbtb paroon of Haid petition tlioy admit thatou or ubont the 11th day of May in t jear of our Lord l«Mfl, the Hiiid Warren A. Douffbtv, the inaHter, and t officers and crew of tlie said abip or reiMtil, Ella M. Doughty, did ^ri the said ship or vesMel EUa M. Jhmgktff enter into tLe bay and harli of St. Anns aforesaid and within three marine uiilei! (tf the coast said buy and harbor of St. Anu8 and within ttireu railes of the coai of thPHu portions of the Dominion in America describeil in Haid pai graph; but they deny that tlio said master, officers and crew, enten Huid bay and liarbor and within said three marine miles or either them in or with the vessel aforesaid or otherwise for the purpose of pt curing any bait or ice whatever. And they farther deny that said mi ter, officers and crew, or cither of them, in or with said ship or vessel il at or about the time named in said paragraph or ever, enter said barb and bay and witliin said thrce^nariuo miles or either for any pnrpo other than of obtaining shelter. Bnt they admit that said master, ol cers and crew, entered said bay and harbor in and with the said vesa on or abotkt the 11th day of Mayas will bs hereinafter particolail set ont and did then and there procnre by purchase and by payment i money therefor and in no other way, b&itto wit : herrings, wherewithi fish in the open sea and outside and beyond the dominions and liml aforesaid and outside of said three marine miles and to flsh tberewit in no other place than in said open sea without and beyond said doroii ion and said three marine miles. And they deny that said master, of cers and crew, or either of them, did procnre by purchase or otherwii any ice within said bay or harbor or within said three marine miles. And they deny that said master, officers and crew, or either of thet in or within said vessel, or said vessel did at or about the time alleg« in said paragraph of said petition or subsequently and within said ba and harbor of St. Anns, or within said three marine miles, any act ( thing whatever contrary' to the provisions of the said convention ; an they deny that said master, officers and crew, or either of them, in an within said vessel or said vessel did at or about the time alleged in nai paragraph or subsequently in said bay or harbor of St. Anus, or withJ said three marine miles, anything whatever contrary to the provisioi of the said several acts or any of them even if said acts and all of the were of full force, validity and effect. And they further deny that the said vessel Ella M. Doughty, at the property a1)oard her or either of them were seized within three in rine miles of the coast or shores of the said bay and harbor of St. Aui or elsewhere by Donald McAuly and Lauchlin G. Campbell, or by eithi of tbeui, or that they or either of them were seized at or about the tin named in said paragraph at or about the place therein named or i any other time or place by any person authorized to seize the same i that the same were, or cither of them was ever seized under any la authorizing said seizure And they further deny that said Donald McAuly and Lauchlin ( Campbell, or either of them, were officers of the customs of Canada i allegeil in said petition or were duly authorized by law to seize sa vessel and cargo. And they further deny that said vessel or caij were liable as alleged in said paragraph to forfeiture for breach or vi lation of Siiid convention and said several acts or either of them. And further answering said eighth paragraph they say that said ve sel, Ella M. Doughty, under command of Warren A. Doughty, with crew of 11 men lawfully sailed from Portland, in the State of Maine, ( the 26th day of April in the year of our Lord 1886, bound on a balibi wlin tLo eighth paragraJ >e IKbdayorMayrn tl [ghtV| the muster, and tj lla M. Dovghty, dJd wil into tlitt buy und harli Irioe uiilei) ot the coast i three mites of tb« com| 'ft described in said pan [)fficers and crew, enter nariuo miles or either, ise for the purpose of pij irther deny that said mi ith said ship or vessel (H or ever, enter said harb or either for any pnrpo, mit that said master, of 1 and with the said vesi J hereinafter partiealai^ ■chase and by payment) t: herrings, wherewith! •he dominions and limjS les and to fish therewij it and beyond said doniij eny that said master, oil by parchase or otherwid d three marine miles, d crew, or either of then or about the time allege ently and within said b^ I marine miles, any act ( the said convention ; an or either of them, in an. It the time alleged in sail x)r of St. Anus, or withS ontrary to the provisioJ 'said acts and all of theij b! Ella M. Doughty, ani B seized within three ma' y and harbor of St. Aun [>. Campbell, or by eithe ized at or about tJie tii »co therein named or _ zed to seize the same (ij ijr seized under any lai IcAuIy and Lauchlin oj le customs of Canada ai 'd by law to seize sail lat said vessel or carg(j eiture for breach or vio or either of them. ii they say that said ve» en A. Doughty, with a n the State of Maine, oiJ 886, bound on a halibnl lug voyn;::e to the Wester Banks at a p1ac« or places not within the linion ufoiettaid, nor within said tbret^ marine miles und not within the Its B|)ecifled auddetlued in the said first article of the sikid convention ; I at a place or places where she was lawfully entitled to ttsh for hali- UH afuresaid, in accordance with the laws of the United States of frU'JH und iu acconlance with said (X)nveution anurpoNeB ker Huid intended voyage. That she proceetled upon her said inteiKled fuge and arrivtnl at the banks aforesaid and aoiihored thereon at a cu not in any of the waters prohibiteose [obtaining shelter from said ice and for no other pur|H>se all of which le was lawfully and of right entitled to do. That on the morning of le 12th of said May being the first suitable opportunity therefor, she >parter of Wlishtown or St. Anns, all of which was rendered necessary for her ^foty and for the purpose of shelter. That thereafterwards she re- [aiued for some time to wit: 4 days, until her alleged seizure in said irbor of St. Anns solely because said fields of ice continued as herein- bfore described and she was unable for the reason hereinbefore set out proceed in safety upon her voyage as aforesaid; that her resorting each of the several times hereinbefore described to the harbors of )ui8burg and Sidney and said harbor and bay of St. Anns was solely brough stress of weather and by compulsion of said fields of ice l^cause Be was unable to proceed with safety against the same and because bsorting to said harbors and bay and each of them at the times bere- ktofore set out was required for her safety and she remained therein lid in each of them for shelter as hereinbefore set out and for no other irpose whatever. Tliut by ivuHoii of lieiiift coin|iull«(l to rosort to aud renn procured aiitl put al)o»rd Raid venHel at I'ort liert'iiibotbru Htatcd waH damaged aud ttaid master upon dlHin Haid damage wUicii liu tlrHt did on or about tliu 12tb (bty of Ma, Haid waM appretHMiHivo that the Hame might not serve for hin ii voyage an aloreHaid : — Tliaton the 12th n>(>t' the buiti nl Haid voHsel ut Tortluud ail laid master upon diiW!Overiiig| Hit tliu 12th day of May arorel ^ht not serve for his iiiteii(U>(ll ay of May afor(>Haied to sea as aforesaid a bout I I to Hell to said master, bait t«l of said schooner, his bait beitigl II ({(Hid faith to make jfood andl fii barrels of herrlii);H and paid I which he htwl a lawful ri^ht tol at they except as speciflcallyl i^ht, none of the allegations oil cillcally deny each and nil tbel I the acts, matters and (hiuKil •lie by said master, officers andl or by said vessel were lawful | iw, statute, regulation, order, said bait was bought by the I inbefore set out in tishing on and said three marine miles I said convention and not else- ;ontained in the sovoral para- 1 nine to 10 each inclusivo, said its and allegations therein con- I matter or cause of action, and inbefore specifically admitted, ' nientH contained in said para- theless to the following to wit: ioutained in said petition as to I ;e that said muster officer? and 'epare within said three marine iarine miles and in waters not | lid acts or either of them as ia tut, the same is true to the ex- »ut and not otherwise true. f time during the said months I onghty, master of the said ship srs and crew ( hereof, or either la M. Doughty,, or either in or j harbor of St. Anns or withiu liays or creeks and harbors al- tlsii, dry tlsh, cure fish or was did prepare within said three I three marine miles of any tif d in said ))etition. bay and harbor of St. Anus, [)lace where said master pur- was at the time when he pur- >rt in the Dominion of Canada, tablished by law in accordance with the caatomi oots and other Rtatutea of laid Dominion into which vcHHcIs were by law iiermitted to fireely enter and ft^m which they were IHTiiiitted freely to depart sabjeot only t4> the proviHions of the customs m;t.s and other genernl rt^gnlationsof the ports provided in that l>ehair; that HO much of said convention euteretate8 during all of said mouths of April and May 1886. as to voyages from and to {lorts and places in tho Dominion luf Great Britain and Ireland, including the Dominion of Canada, and as Ito trading at such ports or plaoes were, as incidental to such voyages, jmade suUi^ct to the same prohibitions and lestrictions, and to no other, Ito which ships and vessels of Great Britain and Irelaud engaged in like I voyages or trading were then subject, — so that said ship or vessel Ella I M. Doughty, and her master, officers and crew, were t hereby fully aut bor- lized and permitted to purchase bait under the circumstances and for ■the purposes Bereinbefore set out at the time and place when said mas- |ter purchased the same. 104 11 ,>^M .: -• ."^.l^'i ,■ ^^i^-i^-' -'-■■' -'iMriilllliMmiiiri ml 66 nr THE VIGE-ADMIBALTT COUBT AT HALIFAX. Beforb Ciiikf Justice McDonald. Hee Majesty the Queen, plaintiff, 1 V8. I The Ship oe Vessel "Ella M. Doughty' and her cargo, defendants. ■"I Halifax, June 2, 188^ Wabben a. Doughty, called by the defense, sworn and testified follows : Examined by Mr. Meaohee. Q. How old are you captain ? — A. Thirty-seven. Q. What iH your occupation f — A. Fisherman. Q. How long have you been engaged in the fishing business t— Twenty three or twenty four years. Q. What position on board a fishing vessel do you hold f — A. Mas Q. How long have you filled that position t— A. About thirteen yei Q. In what class of fishing have you been principally engaged f- cod and halibut. Q. Fitting out where ? — A. Portland, Maine. Q. What vessel were yon in command of during 1886f — A. The i M. Doughty of Portland. Q. During one of the voyages of last year she was seized at so timet— A. Yes. Q. What time on that voyagedid you leave Portland, what month A. April the twenty sixth. Q. What class of fishing voyage was itf — A. Halibut fishing. Q. Where ! — A. On the Western banks. Q. How far from the nearest part of Nova Scotia are the Wesi banks, ronghly speaking T— A. The nearest land is about eight] ninety miles from Nova Scotia proper. Q. How fur from Sable Island f — A. About twenty four miles, the south western part of the banks is nearly one huni^red miles. The CoUBT. The Western banks are between the main land of United States and Sable Island f — A. Yes. Mr. Meagheb. Q. How near Sable Island is the nearest part of banks ? — A. About twenty four miles. Q. What were you, hand-lining or trawling t — A. Trawling. Q. Haiil you any hand lines on board ? — A. No sir, we had not. Q. Outside of your fishing supplies what cargo had you on boan A. Nothing. Q. About how long have you been engaged in halibut fishii trawling on the banks f — A. About three years. Q. As master, altogether ?— A. As master the last three years. Q. In your experience is it usual for vessels that fit out on a he trawling voyage to fish in shore ? (Objected to and excluded.) Q. Where was the first place you anchored t — A. On the Wei banks. Q. Did you anchor more than once on the Western banks at timef — A. No sir. Q. About how far were you from Sable island t — A. About tw four miles. AT HAUFAZ. >NALD. "I Ealifax, June 2, 1887. 186, sworn and testified i even. lan. he fishing business f — i do you hold 1 — A. Mast -A. About thirteen yean principally engaged 1—.\ ae. * uring 1886!— A. The M r she was seized at son Portland, what month f- A. Halibut fishing. v& Scotia are the Wester b land is about eighty »ut twenty four miles, bd y onehunt^red miles, reen the main land of tb 1 is the nearest part of tb gt — A. Trawling. .. No sir, we had not. :argo had you on board t- ^aged in halibut fishing" ars. : the last three years. Is that fit out on a halibo •edf— A. On the Wester le Western baulks at tbal island f — A. About twent; 67 What day of the week did you leave Portland f — A. Saturday. U. On the Saturday followiup: you anchored on the banks t— A. Yos. Q. What did you do after anchoring f — A. Set our trawls. How many times on that voyage did yon set your trawls for fish- up to the time you were seized f — A. Twice. Where did you set them the second time? — A. In the same place. |Q. You didn't change your anchorage ground ; on what day did you them the second time t — A. The same day. Did you take in any of the trawls t — A. Very few. What length of time did you remain on the Western banks on »t occasion f — A. Only one day ; I only remained that Saturday. At the time you were seized you had some fish on board ; what 111 were they 1 — A. Halibut, cod, cask and hake. Where were they caught 1 — A. On the Western banks. Q. Between the interval you have spoken of, the Saturday on which set your trawls twice, and the time of your seizure, what had you ae in the way of fishing or trying to fish f — A. None. How far from the ship were the trawls set T — A. All around the \\}, close by. When did you leave the Western banks f— A. On Saturday the St day of May. That was the day you had your trawls set 1 — A. Yes. And you left for where ? — A. For the purpose of fishing north. I. Can you give the place where you were going to ! — A. Saint Pauls ik. Had you ever been on Saint Pauls bank before f Mr. Graham. I shall object to this witness giving any evidence of intention. Che Court. I think it is reasonable for him to state what he left the ling ground for. You can ask him if he left to get bait. I think it proper question. Ir. Meagher. Q. Had you ever been on the Saint Pauls bank be- 1 1 — A. No sir. Had you any person on board that had been ?— A. Yes Mr. Law- ice. Now state shortly what followed after leaving the Western banks; ^re was the next place you touched at ? — A. Louisburg. What day was that T— A, Monday. Were you into Louisburg f — A. Yes. Why did you go in there f— A. On account of the ice, it drove |in. That would be the third of May T— A. Yes. \i. How long did you remain there t — A. Cntil Thursday following. Why did you remain there so long t — A. On account of the ice. Why on account of the ice f — A. Because we couldn't get out. You were kept there by the ice until the Thursday following ; then Jit did you do f— A. Started for Saint Pauls banks. Did you get there 1 — A. No we were forced into Sidney by the ice. On what day did you get into Sidney t— A. Friday. Sidney or North Sidney t— A. North Sidney. How long did you remain there ! — A. Until Monday morning. Why didn't you leave there in the mean time t— A. We couldn't account of the ice and weather. You left there on Monday morning !— A. Yes. Where did you leave for then f— A. Saint Pauls banks. r i M w^ Q. Q. Q. Q. 68 Go ou and describe tbo voyage aud where yoa got to next. — A We got up to Bear Head that night. Q. Where is that ! — A. Up above Ingonish. Q. What occurred there t — A. We anchored there that uight ; it wa blowing heavy with ice outside of ns and we laid there until the nex morning. Q. Ilow far away from you was the ice at Bear Head f — A. AboD two or three miles. Q. What was its character T — A. Heavy. Q. How was the wi>>e to ask if there wa» i )U went into St. Anne'sj Hong. ty aftcriioon or Tuesdajj F — A. No sir, I do not. the harbor light. le next morning. ? — A. Fair and the win^ >nt seven or eight miles.! ir^ed for St. Panl'* baiiksf »yagef — A. Yes. lies out ? — A. We got »i ;k. e harbor of St. Anoe'8. when you got back T- A. Early Thursday moral EM Bird island, d away and we got as fai he ice; it was calm. Tb tit then the wind bi«ez boat east north east, harbor T — A. Just m e harbor the next nor Much or little t — A. It kept coming in all the time. Did you have to do anything while in the harbor in consequence the icef — A. We bad to shift over on the northern side. Q. This was Thursday evening when yon got back ; did you attempt go out in the interval between that time and the time the vessel was zed t— A. No sir. Q. Why uott— A. We couldn't get out for ice. Q. About how long does a voyage usually last! — A. From three to ir weeks. Q. About bow long do yon usually remain on the banks trawling t — About two weeks. |Q. What sort of bait do yon use on these trawling voyages T — A. rring, mackerel or any other kind of fish we can get. Q. What kind of a bait did yon take on that voyage f— A. Herring. Q. Whatquantityf— A. About ten thousand. Q. What quantity would be ordinarily sufficient for a voyage of that nd t— A. Anywhere from five to fifteen or twenty barrels. Q. Do you know how many herring ordinarily fill a barrel T — A. No I do not. |Q. What fish were they that yon hadt — A. Frozen herring. Q. Any name for tbemf — ^A. No sir. Q. Is that the only kind of bait you used while on the banksf — A. 10 sir, we used any kind of fish that we caught on the trawls. I Q. On Wednesday morning, the first Wednesday, you were up the y of St Anne's at anchor ; do yon remember of any person coming to e vessel t — A. Yes. Q. While you were at St. Anne's — I am speaking now of the bay and rbor — what efforts did yon personally make, if any, to inquire for or tain bait f — A. None sir. Q. Did yon send anybody to make any inquiries for baitf — A. No sir. Q. You say on Wednesday morning a boat came alongside; state bat took place between the party and yourself. — A. A boat came ongside with herring and asked if I wanted to buy. Q. More than one man in the boat f — ^A. No sir. Q. Did you know any person down there V — A. No sir, 1 didn't. Q. Did yon know the name of any person from whom you got baitf — . No sir. Q. State what took place between you and this party. — A. He asked if I wanted to buy any bait. I told him I didn't know as I did. I ked him what he asked for bis bait. Then I went into the hold and ked at the bait and saw how it was. Q. How did you find it f — A. It was getting soft. Q. What effect on the bait has its getting rioirt f — A. It spoils it ; fish out take it. Q. You say yon found the bait soft, what did you do tlien f — ^^A. I lid bim I would take ttm bait. Q. What further conversation did yon have with bim f — A. I dont member. (Mr. Meagher began to read from a deposition when Mr. Graham ob- ted.) The GoxTBT. What do yea propose to ask him Mr. Meagher f Mr. Meagheb. The witnesses were examined before with a view of owing that they took the bait flrom the side of the vessel away from e town, and i want to show that it was a matter of convenience «f iking the fish in. f I :fe: 70 • • Q. From \vbat Hide of the vessel was tbe fish taken on' board t — A. On tbe starboard side. Q. To nrbat side of tbe vessel did tbe boat first come with tbe baitf— A. To tbe port side. Q. Wby did bo come around to tbe starboard sidef — A. Because it was more convenient to get tbe bait in; our dories were on that side and we bud to put tbe bait in on tbe starboard side. Q. Uow mucb more bait did you buy wbite tbere, the entire qnan- tity f — A. About ten or twelve barrels. Q. On what days did you buy f — A. Wednesday and Thursday. Q. The day this man came and tbe day following f — A. Yes. Q. Did yon buy them all from one party or different parties t— A. Different parties. Q. Where were you when the boats first came to you with bait onl that Thursday morning f — A. Got out through tbe passage from tbe| harbor into tbe bay. Q. The boats made fast to you did they nott — A. Tes. Q. Did you take the bait from them as soon as they came alongside! and made fast or afterwards I — A. Afterwards. Q. Wby was that done? — A. Because I told them I had no money to| buy bait and couldn't pay what they asked. Q. You afterwards diti buy 1 — A. Yes. Q. Where did you get the money for that purpose? — A. From thd crew. The CouBT. I should suppose a master must be pretty bard pre8sed| for bait to borrow money from the crew. Mr. Meagher. He was, my lord. The CoTTBT. I understood him to say be bad a plenty of bait. Mr. Meagher. So he bad but it was spuilt. Q. How far out did tbe boats continue with you l>efore you got the| bait from them ? — A. It might have been a half a mile. Q. Half a mile from where t — A. From the entrance of the harbor. Q. Is it settled on bothisides of the harbor f — A. Yes. Q. Mucb diftierence in tbe character of the settlement as to the thick-l ness of the settlement f — A. No. Q; One of tbe witnesses states this, " When we went on the vessell she went out some distance with ns and then ranged up and tacked iol shore. We didn't leave the vessel opposite our own place because tbtl raptain told us not to leave until he got the herring. He didn't tak(| them then because be didn't like the people on shore to see what he wai| doing." (Objected to by Mr. Graham.) The CotTRT. The witness is only giving the motive of the captain'^j conduct 'f he is not giving any conversation. Mr. Meagher may ask tbi$| witness if he bad any such reason. Mr. Meagher. Q. What was tbe reason for not taking the fish iinj mediately when be came alongside ? The Court. He has given that. Mr. Meagher. Q. Wby did you tack in shore f The Court. If the witness stated that he tacked in shore tor a pari po8e but does not say that tlie captain told him the purpose, tbe testij mony is valueless. Mr. Meagher. The witness does say " We didn't leave the vessel op-l po^iite our own place because the captain told as not to leave until he[ got the herring ; be didn't take tbem then because be didn't like tb« people on shore to see him". .ken on' board f — ^A, ome with the baitf— | idef — A. Because it I sa were on that sidcl e. I «>re, the entire qaan-j y and Thuraday. pt— A. Yes. ffereut parties T— A.| to you with bait onl ho passage from tLe| A. Yes. they came alongside! em I had no money tol ■poset — A. From thel e pretty hard pressed! plenty of bait. ou before you got th(| i mile. ranee of the harbor. A. Yes. lement as to the thickl ire went on the vessel! iged up and tacked iol )wn place because tb«| xing. He didn't takcl ore to see what he wail otive of the captain'^ Meagher may ask thisl lot taking the fish iinl ked in shore for a purl the purpose, the testi] n't leave the vessel op I not to leave until h«| Luse he didn't like tb« [The Court. I will allow you to ask him i^ he gave any reason for not Iking the herring there. 1 Mr. Meaoheb. Q. Did you give any reason to any of the men at that 16 that came from the shore with the boat, why you didn't take the nit at that time f — A. No sir. I Q. Did you keep on out or did you return T — A. We had to tack. Q. Why f — A. Because so as to stand across on the eastern side of |ie bay. jQ. In relation to that tack, when did you let them off! — A. When le tacked again to stand out of the bay. Q. When you were going on that tack to stand out of the bay you lot jjemoflft— A. Yes. i The CouET. What side of the bay did you cast off the fishermen's [>ats that you bought of f— A. On the south oast side. Mr. Meaoheb. Q. You tacked from the north west side of the bay I the south east t — A. Yes. Q. When you got there you cast off t — A. . Yes. Q. Where did they go f — A. They went ashore on the south east side. Q. Some of the witnesses stated that you gave them fresh halibut; [here were those halibut caught ? — A. On the Western banks. Q. Do you remember another vessel being in the bay while you were lieref — A. Yes. Q. Do you remember of the captain coming on board ? — A. Yes. Q. You had a conversation with him f — A. Yes. Q. He states that you called him down in the forecastle and asked Ini if he thought there was any danger iu buying bait there and if tiere was any bait to be got; that he told you there was danger be- Emse the officer on shore was a very particular man about his duties ad if found buying bait there you would be seized immediately. . Did ly such conversation as that take place between you f — A. No, sir. Q. Did you take him into the forecastle f — A. Yes sir. Q. Who were present, do you remember ?— A. No sir. Q. How did you happen to go into the forecastle t — A. I was show- kg him around the vesel. I Q. Do you remember Mr McAuley coming on board and seizing the Bssel! — A. Yes. I Q. He Etates that yon gave him the names of the men from whom [>u bought the bait ; is tbat correct ? — A. No sir, I didn't know the ime of a man'there. [ Q. What was done with the ten or twelve barrels of bait that you }ughtf — A. We put it on ice the same morning that it was bought. I Q. Where were you going with that bait; where were you going to Be it for the purpose of your voyage. I (Objected to. Admitted.) I A. On the bank of St. Paul. I Q. After buying the bait and putting the ice on it what, if anything, las done in the way of prosecuting your voyage while in the bay and iirbor of St. Anne's at the time you were in the harbor spoken off — A. lothing. IQ. Referring to the other places that you were at, Lonisburg, Sid- Kv> Bear's Head and Bird Island, what was done at any of these laces f— A. Nothing. iTho Court. There is no allegation in the libel that there was any- jing done except in the harbor of St. Anne's. |Mr. Meaoheb. I don't know my lord, there is an allegation that they fish, and dry and cure fish within three marine miles of the coast or lores of Nova Scotia. i i . h I { ii.4 ■; ■[ '■■ — i ■■■•■• ;il t -'s' 12 Q. What did yoa do towards caring or preserving the halibut th yon caught f — A. We threw them dowu amoogst the ice. Q. You cleaned them and pnt them on the ice f — A. Yes. Q. When was that donef — A. The same day t\, iy were caught. Q. Where were you then f — A. On the Western Banlcs. Q. From that time to the seizure of the vessel had anything bet done to them f — A. No sir. Q. Dow long will halibut that have been cleaned and pnt on ice ke fresh f — A. About three weeks. Q. Putting fresh fish on ice, will Vsa!, cure them f — A. It will not, will only preserve them for a short time. Q. Describe how you preserve tLe hulibut, how you put them on tk ice f — A. We break up the ice after we TMtoh the fish and put them ( it and put the ice around them. Q. When do you break up the ice and pat it on the fish f — A. Ait the fish are caught and ready to go in the ice pen. Q. Is it customary to break the ice up before the fish are caught t A. No sir, the ice would all melt. ^Mr. Meagher passes the witness a paper.) Q. Look at that paper ; where did yon get that T— A. At North Si uey. Q. When t — A. On Saturday at the time I was in there that I hai spoken of. Q. Yon say that you got this paper at North Sidney at the time yo were in there ; how did you happen t^ get it t The CouBT. I understand Mr Grauam to admit that the paper w signed by the collector of customs at Sidney. Mr. Meaghbb. I tender the paper now. Mr. Gbaham. It has no pertinenoy to any of the issues here. The Court. I will receive it as evidence of legal entry at the oostn house nnder the customs act at Sidney. Q. What is this paper now shown you f — A. A permit to touoh trade. Q. By whom is it signed: did you see it signed f — A. Yes. Q. Who signed it t — A. Samuel Dow, collector. Q. Whose signature is that f — A. SamuelJ. Anderson. Q. Who is he ?— A. Collector of customs, Portland, Maine. Q. Did you see him sign it T — A. Yes sir. Q. Have you frequently entered at that port and cleared 1 — A. I neT« entered there on a fishing voyage. Q. Have you had any business with him as collector in oonnectio with your vessels in his capacity of collector of customs f — A. Yes. Q. Whom did you receive that paper from f — A. The man at the oiu torn house Q. What was his name f — A. I don't know his name. Q. Where did you get itf — A. In the custom house of Portland. Q. Had you that paper with you on that voyage f — A. Yes. Cross-examination by Mr. GbahAM : Q. I believe you are one of the owners of the Ella M. Doughtg f— i Yes. Q. How long were yon sailing as master of the EUa M, Doughty t- A. Three years. Q. Thatisher age, Ism^iose? — A. Yes. Q. She is constructed tor fishing ? — ^A. Yes. Q. And fitted out for flshiug j her build, hold are all for fishing f—> Yes. ^ing the halibut th It the ice. ]!— A. Ye«. \h 3y were caught, ru Banks, al bad auything led and pat on ice ke lemr— A. It will not,! f w you put tbem on ttj fl8b and put tbem i on the fish f— A. At )n. the fish are caught t-| att— A. At North sa as in there that I bai Sidney at the time ya tnit that the paper wi the issues here, igal entry at tiie oust A permit to touch Bd f— A. Yes. or. Anderson, tland, Maine. id cleared f — A. Inev collector in oonnectio customs f — A. Tes. ■A. The man at the < B name. house of Portland. agef— A. Yes. I JSUa M. Doughty 1—i he, UUaM. Doughty U are all for Ashing f—i Q. How many years previously had you been master of a fishing ves- ^1 !— A. About thirteen years. Q. During that time yon never entered or cleared at the custont )U8o!— A. Never but once. Q. Then you never had a paper like this paper before T [License tO' jucb and trade.] — A. No. Q. I suppose you had Insen into port before this ; I am not asking in elation to the flsbing regulations ; you ha-A. No sir. Q. Can yon tell me your course after you got under way at the West- ■ern banks, what course you sailed ! — A. No sir. Q. Or anything near it ! — A. No sir, we sailed different courses. Q. On what day did you see the ice and in what direction was it!— A. Inshore of us. Q. Wlien you first saw the ice it was inshore of you ! — A. Yes, we ii not cod fluhing as | Im. io sir, only when it | [hen she was seized t eft home, seized!— A. I don't le of the men. ce and then a layer what he catches or nount a man catches n^ere fishing on, the one. wero is about forty- four hnndred miles, lad not good lack at The same place. ike for Cape North I bank t— A. I don't in;; anything on set- • Cape North." Did n down there didn't if. i with f— A. No sir. er way at the West- fferent courses, direction was itf— you f— A. Yes, we —A. No sir. T5 Q. It would not have prevented yon from going to any of the other ^>aiik8T— A. No, sir. Cj. 1 suppose you remember the conversation that took place between you and the captain of the Lady Franklin f — A. No sir. Q. You didnt go to visit the grave of the great Angus McOastlet — \A. No sir, 1 was not on stiore. Q. When ypu examined your bait, when the first nmn came on board, roil knew you. wanted bait thenf — A. Yes. Q. And you wanted a complete supply t — A. Yes. Q. When you first examined it you knew you would waut a complete supply of baitt — A. Yes. Q. Dhlyou know any means of getting itf — A. He was alongside nth it. Q. Did' you know any means of getting it from any other person f — No sir. Q. About how much did you require f — A. Anywhere from eight to twelve or fifteen barrels. Q. Yon bought a little over that f— A. No sir I dont think there was Isvny over twelve barrels of it. Q. There might be a barrel over thatt — A. I can't say. Q. About what time was this man on board on Tuesday, about what Ibour of the day, the first iterson that came on board f — A. Some time |iu the afternoon of Tuesday. Q. I am speaking of the first mau that brought baitt — A. In the imorniug. Q. The captain of the Lady Franklin you had seen on Monday after- luoon f -A. No sir Tuesday atltern<>ou. Q. Do you recollect the name of the iMdy Franklin? — A. Yes I Irecollect the uame of the Lady Franklin, Q. And he was aboard on Tuenc'iiy t — A. Yes. Q. When you speak of having frozen herring you mean they were on lice ? — A. No sir, they were frozen in the winter and when we left home Itbey were frozen and we put them in the ice house frozen without any lice on them. Q. I suppose if you had not got any at St. Paul's bank you would |have gone bomef — A. No sir, I dont know whether I should or not. Q. You would have been likely to have tried some other place t — I A. Probably we should. Q. So that \rhen you state that the bait was to be used on St. Paul's I bank, you mean St. Paul's bank or any other place where you could (catch fish f — A. \-*& outside of the three mile limit. Q. Oh! It was oily to be used on St. Paul's bank; then you knew I the law abont the three mile limit f — A. Yes. Q. You had heard al)out it that spring f— A. Yes. Q. You didn't feel safe down in that neighborhood did you f — A. Yes I I felt safe enough. Q. You would not have had any objection to using this bait on the I Western bank or Quero bank! — A. 1 dont understand the question. Q. You could use this bait on the Western bank as well as on St. [Paul's bankT— A. Yes I could use it on any bank. TIeney B. Lawbbnce, called by the defendants. Examined by Mr. Mgaodeb. Q. What is your agel — A. Forty one years. ^. What business have you been engaged in f — A. Fishing, mostly. ^^4«m the island t — A. Six or seven mile»| north of the island. Q. When yon left the Western banks tell me where yon intended tol go, to what place did you proceed for t — A. We intended to go to St. f Paul's banks. (Objected to.) The (JouBT. Yon allege that he bought bait intending to fish and 1 1 don't see how you can prevent asking him if he did intend to fish. The! allegation of the Grown is based on the intent. I think he may continue. Q. When you left the Western banks where were you proceeding toT| —A. To St. Paul's banks. Q. You say that yoa had been there the summer previous f — A. Yes. | Q. Uow did you find the halibut fishing the summer previous f— A. Fair fishing. Q. Who had chargo of the navigation of the vessel t — A. The captaiaj himself. Q. Anybody assist him f — A. I did. ;:^. i>i- Ytm. ^e made when nI -A. Nothing Dion I—A. The twenty! [trip bound to the flshf— A. No RirJ Yo8 we catoh mostl I fish T— A. We iiwl ling business f->-Aj ren. tber fish home but >rino!paIly for bait;! irawlH, had you anjf s. I uks did yoa proceed] latarday. B that day. :ht. Paul's. the summer before^ e trip. > the island in what I the island about Hixl I Six or seven mile»l lere yon intended to ^nded to go to St. mding to fish and I intend to fish. The Dk he may continue. [ yon proceeding to t| jrevious t—A. Yes. mer previous?— A. It — A. The captain I Q. How waa the weaUier and wind goiug upf — A. The wind was to tli«' oastward. (j. Always theaame way f— A. The wind was to the east that night bill)] the next day and we stood on a north course as well as we could IiiihI i;ot into Lonisburg the next morning. (j. How did you happen to go in there t -A. That Satnnlay night we it'll in with the ice and all the next day the ice kept increasing and as vi>i Htood in shore we found more ice outside of us ; it looked stormy and |w« 8toove catch I number of Ash on the balibut gear, but it would not pay to rig out for liibut when you only intended to catch codfish. (.}. Dont vessels coming into these iK>rts, frequently' have as manv Itlsh as halibut 1 — A. Yes, but they are fitted out for both codfish |nd halibut, two sets of gear. Q. When you first saw ice after leaving the Western banks what was ^H distance and course f — A. It was to the eastward of us. (j. To the northeast f — A. From northeast to southeast. Q. About what distance! — A. We fell in with it that night, never saw until in the night and in the morning we were surrounded. Q. At what distance when you first saw itf— A. There was scatter- ]g ice ch)8o to us when we noticed it; the heft of it might be three or )ur miles to the eastward of us. IIouACE M. Saboeant, one of the owners, sworn and testified : Examined by Mr. Meagheb : Q. Where do you reside! — A. I reside at Falmouth, just out of Port- ind. Q. You are one of the owners of the Ella M. Doughty f—A. Yes. (i. Do you know the collector of customs at Portland !— A. Yes. Q. Have you transacted business with him in his capacity as such ! — Yes. Q. Who is he !--A. Samuel J. Anderson. Q. How long has he filled that position ! — A. About two years. Q. Have you seen him write!— A. Yes, I have seen his signature sev- |ral times. Q. Is that his signature to paper marked " J. McD. 2"!— A. Yes. Q. Have you received papers signed by him and sealed with the seal \f the custom house!— A. Yes. .' a"i. •■■■ij - ^..i.'-.-.-^-^V......L..-Y,'','| . 80 Q. Look at the seal on that paper t— A. That ia the regular custom lionse seal. Q. Yon have received papers sealed with the custom-house seal t— | A. Yes. Q. And seen it applied ? — A. Yes. Mr. Meaoher. I offer the paper. [License to touch and trade] (Admitted subject to objection.) Cross-examination by Mr. Graham : Q. Do yon own a lot of fishing vessels f — A. Yes sir. Q. Any of them engaged in the firozen herring trade f — A. Yes. Q. That frozen herring trade consists of buying cargoes of frozen her- ring at Newfoundland f — A. I never was in the Newfoundland trade, I j have been in Eastport and Grand Menan. Q. Thatconsistsof buying cargoes of fish f — A. Buying and catebiug, | 4>)th. Q. For an ordinary fishing voyage, not embracing the purchase of I cargoes, do you take out a permit to touch and trade ? — A. I took out a permit to touch and trade since the trouble, when coming this way;| we used tx) take them out before the Washington treaty. Q. For trade I— A. Yes. Q. But you don't take them out except when there is trouble on the I shores of I3ritish North America f — A. Our Grovernment issued orders j ibr all vessels to take them. Q. I am not talking about that ; you took them out before the Wash- ington treaty. — A. Yes. Q. But not during the Washington treaty f — A. No sir. Q. But subsequently to the cessation of the Washington treaty you began to take them again ? — A. Yes. Q. Your vessels were fishing during the Washington treaty f — A. Tes. [This closed the evidence in the case of the Ella M. Dotighty.] :.:i-. JS THE YICE-ASlOaALTY COXTBT AT ffAT.TTAX. Bi>.roiiK Chikf Justice McDonald, Her Majesty The Queen, Plaiktiff, vs. The Ship or Vessel '^ David J. Adams" and her cargo, Delendants. Wallace Gr^vham, Q. G., for the Grown. N. H. Meagher, Q. O., for the defense. Henry B. Lawrence, called by the defendants, testified : . Examined by Mr. Meagher. Q. How long have you been engaged in the fishing business f — A. About twenty years. Q. Are you familiar with the use of ice in connection with fish f— A. Yes. Q. How long hare you been in the business f — A. Off and on for ten years. ^^M|igiiiii^^^ le regular custom torn-house seal f— I ;h and tradei] tr. lef— A. Yes. goes of frozen ber- tbundland trade, 1 1 ying and catehiug, the purchase of i t — A. I took out [ coming this way ; | sty. I is trouble on the I lent issued orders | t before the Wash- o sir. ingtou treaty you igton treaty f—A. Doughty.] &LIFAX. [eagher, Q. 0., for estified : . ng business? — A. on with flsh f—A. OflF and on for ten Q. Will putting fresh fish on ice cure them f — A. [serves them for a short while. Q. About how long will it preserve codHsh T — A. Three weeks at the I longest fit for consumption. Q. How long will it preserve fresh herring that is usually used for I baitf — A. Ice will not preserve them louger than three weeks at the I most. Cross examination by Mr. Graham. Q. How long does the ice last f — A. A good deal depends on the ice I house ; a good ice house will keep ice longer but the fish will not keep in tlie ice no matter how much you put in longer than about three weeks. . Q. With halibut how often do you have to apply the ice ? — A. Only I once except on top ; we never disturb them until they are taken out. If the ice melts off the top we replenish it. Q. You have to replenish during the three weeks f — A. On top, yes. Q. Not very often t — A. No sir. Q. How often ? — A. In the summer time when the weather is real hot, I we may have to once or twice on going home. Q. How many days are you going home 1 — A. From eight to ten days. Q. You may have to replenish it once or twice during that period ? — I A. Yes. Q. The ice is continually melting f — A. Tes, on top. Adjourned until Friday morning. Fbidat Mornino, June 3. Counsel for the Grown puts in the treaty of 1818, on page 159 i, of the I annals of Congress. Revised Statutes, sections 4220 ; 437 L 4334 ; 4L3L ; 4337; 4320; 4321; 4365; 4377; 43L0. Also the case of the Nymph, 1 I Sumner, 510. Notice to produce the fishermen's license of the David J. Adams is [admitted. It is also admitted that Oaptaiu Peter A. Scott is a fishery officer un- |der the statute and was at the time of the seizure. Mr. Meagher. I am not going to raise any question about the for- jmality of tiie seizure but I shall contend that that act was not in force at I that time. • Peter A. Soott, called by the Crown, testified : Examined by Mr. Graham. Q. Were you commander of the Lansdowne at the time of the seizure |of the David J. Adams t — A. I was. Q. You lield a commission at the time of the seizure T — A. I did. You made the seizure in May one year ago T — A. In May one year I ago. Q. Aldon Kinney was maator of that vessel. — A. Yes. Did you ask him for the papers of the ship t — A. I did a few days [afterwards ; between the tenth and thirteenth of May. Q. Whereabouts T — ^A. In Annapolis basin. Q. What did he aay or do f—A. He told me he would not give them to me. Q. The David J, Adams was a fishing vessel f — A. A fishing vess^L 104 A G iH l! 5 , ' I i 'i': J: i;; I; S to I didn't go into | supplies and 88 Cross examiuatioD by Mr. MEAOHiiB. Q. Were jou on board of her 1 — A. I was. Q. Were yon iu the hold ! — A. I put my head down, th^old. Q. Had she any cargo on board other than fishing fish t — A. Not any. Q. When were you on board of her t — A. On the sixth of May. Q. I mean at the time you looked into the bold f— A. The sixth of { Hay, the same day I seizeid her. Mr. Obaham. HaviuK given notice to produce a fishertnau's license to engage iu fishery and having called upon them to produce it as far ! back as Septsmber 1886, and having called for it this morning and it | not having been produced, I propose to read in evidence the form of a license to fish. It is in evidence that she was a fishing vessel, and it is ] therefore presumed that she bad a license as require-'' by law. Mr. Mbagbeb. It is alleged and not denied that abe was a fishing j vessel. ETIDENOR FOB DEFENDANTS. Counsel for defendant puts in a proclamation by the President of the I fifth of Octol>er 1830, volume 4, U. S. Statutes at Large, page 817 ; also [ an order in council of the fifth of November 1830. Mr. Gbaham. I object to them. I admit the execution of the doca- 1 ments but I do not admit their rektvancy. Counsel for the defendant also puts in sections 4364 ; 2497 ; 2498; of I the Revised Statutes of the United States. Also the evidence taken at Boston under the commission and the testimony or deposition taken | yesterday of Henry R. Lawrence. The CouBT. How do yon propose to address the court ; in what ordetT | Mr. Ob AH AH. In the usual order of an argument. Mr. Wallace Gbaham for the Crown : My LOBD : This action is brought for the condemnation of the J>avu(| J. A^ama and her cargo for violation of the statute of 59 George the III, chapter 38 and the statutes of Canada 31 Victoria, chapter 61 and 33 Victoria, chapter 23. It was conimeuoed on the tenth of May 1886. The claimant filed his claim on the tenth day of June 1886. Jessie Levris of Glou tester, of the United States, is the owner of that vessel. I have prepared an abstract of the pleadings in that case and if my I learned friend has no objection I will hand it to your lordship. I wi]t { state it briefly, my lord, because the pleadings are long. The charge against this vessel is preparing to fish within prohibited | waters and fi.>^bing within prohibited waters. The defense is that the David J. Adamn was not preparing to fish ; that whilA they admii; the purchase of bait within the prohibited waters, they deny that to be ''a preparation to fish." They also contend' that the statute is aimed at fishing and not at preparations. to fish within our bays and harbors and within the three mile belt. They also say that the statutes of Canada] are beyond the powers of the Dominion parliament ; that the vessd, al- though she may have violated the statute, yet, inasmuch as the owner | was innocent or ignorant of the violation, the vessel could not be con- demned. And they have further answered in respect to the prepara-l tiou to fish that under an order in council they bad a right to proonrel |i. I didn't go into I ing sapplies and isth of May. —A. The sixth of j shertnau's license produce it as far morning and it nee the form of a ng vessel, and it is | ^ by law. she was a fishing j le President of the ge, page 817; also iution of the doca- 'A; 2497; 2498; of ) evidence taken at tr deposition takeu art ; in what ordeff nation of the I>avtuid Samuel B. Ellis for the bait On that evening the master of the ifavid J. Adams went a^ore to the fishing bouse of one Taylor, who has given his evidence in this case. 'IRiat man's nets were ashore. The master toH Taylor to set his nets and whatever herring he would catch he would take from him and pay him a certain rate for the fish. The man Taylor set his nets and the next morning took this bait on board and received bis pay for it, lie and one Keene. Keene iiad also caught fish, having heard the captain say he required herring for baitj they both took their bait on boiard together and sold it to the master of the vessel. The vessel at this time, as sworn to by these wit- nesses, had her name concealed by an old sail whidi hang down over her stern. The next morning she sailed past the wharf at Digby and two witnesses on the wharf, one Riley and one Dodge, saw the vessel and they testify that at this time the vessel's name was concealed in the manner I have described. She proceeded over to the other shore iind there came to anchor. While she was thbre the master of the Adams purchased fi-ora one Broom, four barrels of bait and about two ions of ice. This ioe and bait were taken on board of the David J. Adams by a young man by the name of Spurr. The vessel remained there during rlie night and on the next morning contempiNraneons with the appear- ance, to them, of the Lansdoumej she got nnder way and set sail. The Lansdotvne was at anchor in Digby and Annapolis basin, having [arrived from a oratse the day before, and in the morning, the mate aving received certain information, proceeded in a boat to board the I vessel. He asked oertain qaestimis and the master of the Adams denied I that he had any bait on IxHud. The boat returned to the Laiudowne 84 and the Adama proceeded to go out of the basin through St. George's, channel. It seems that more information reached the ears of those on board the Lanadoicne, and again the first oiAcer of the Lanadowne went on board of the D, eid J. Adams and examined the bait. The master was asked in reference to that bait and he said that it was tun days old. They couldn't elicit the fact of his having procured it, as ho did, the day before. Conversation took place which shows that tue master of the Adams intended to mislead tbe officer of the Lanadowne In respect to the purchase of that bait. The bait was examined and found in tbe opiuion of those on boitrd to be quite frcih. After an investigation the vessel was seized by tlie Lanadowne and Captain Scott, as stated in your lordship's hearing today, he being a officer duly authorized under the statute, seized the vessel. Three days afterwards he demanded from the master of the Adama the ships papers. The master of the Adama declined and refused to produce the papers and thej^^ have not yet been produced. Now if your lordship pleases, withont- wearying your lordship with these extracts from the evidence, I propose to deal with the legal aspects in this case. But I contend in the first place that tbe David J. Adamn was found preparing to fish within three marine miles of the coasts, bays, creeks and harbors prohibited in 59 George III, chap. 3S. Now, in tbe first place taking the term '.'preparing to fish" by itself both in the English' statute and the Canaclian statutes to which I have referred, without the context, it is quite broau enough to cover the acts of the master and crew of the David J. Adams. There is tbe purchase of | bait and ice ; tbe breaking up of tbe ice ; and the preparation of tbe bait for fishing. The Court. I suppose Mr Meagher will not deny this is preparation for fishing. Mr Graham. Tbe storing of the bait with the ice was, as I contend, " preparing to fish " and I think that would be the way in which an ordinary person, even if not familiar with fishing, would understand it The CoisBT. I don't understand tbe pleadings to deny that. Tbe pleadings deny that there was any preparation to fish within tbe pro- hibited waters. Mr Meaghkb. I admit at once that the acts proved is a preparation to fish but it is net tbe preparation to fish prohibited by tbe treaty or the act. Mr Graham. I say tliese acts would be construed to bo a prepara- tion to fish. Isaiah Roberts was asked this question " What was done j while the vessel was in 'the basin in the way of fishing or getting read; to fish 1" V id he answered '* nothing but cutting up the ice and icing j the bait." He considered that as getting ready to fish. In Winfield on Words aiid Phrases, page 479, it says *' Preparation j consists in devising or arranging the means or measures necessary for tbe commission ot tbe atfense. Tbe attempt is the direct movement [ toward tbe commission ai'rcr the preparations are made." In the case of The People vs Murray 14 Cal. 1 40, the judgment of the j supreme court was delivered by Field, C. J. now one of the most dis- tinguished judges of the Supreme Court of the L'u|ted States, and this! same distinction is made. In that decision he says that between the [ pn-paration of tbe attempt and tbe attempt itself there is a wide dif- ference. [ Ueads from the opinion. | So that the purchase of a gun with | tbe declared intention to shoot was there given as an illustration ofl preparation as distinguished from the attempt. Now if purchasing and { loading a gun with the declared intention to shoot his neighbor is pre- mmm -•-.sa •ough St. George'a, e ears of those on le Lansdoume went t. The master was was ten days old. it, as ho did, the that the master of ladowno in respect d and found in the n investigation the icott, as stated in y authorized under ards he demanded The master of the and they have not rour lordship with th the legal aspects He David J. Adam miles of the coasts, II, chap. 38. Now, . » by itself both in lich I have referred, ver the acts of the is the purchase of! preparation ot the this is preparation e was, as I contend, e way in which an rould understand it. to deny that. The tlsh within the pro- ed is a preparation id by the treaty or | ed to be a prepara- 111 »« What was done | ing or getting readj ) the ice and iciug sh. says " Preparation ksures necessary for I e direct movement] nade." the judgment of the aue of the most dis- ited States, and this 8 that between tlie[ there is a wide dif- rchaseof agunwithj vs an illustration of j ■w if purchasing and his neighbor is pre' 86 paving to shoot him, the purchasing or procuring of bait and ice and tLe preparation and storing of the same for fishing afe comprised, it seems to mo, jH the term "preparing to fish." Now Mr. Sabine in his report to the Secretary of the Treasury on the fisheries refers to this expression " preparing to fish " page 303. His contention was that the expression ishould not have been introduced into the provincial statute inasmuch as it was not in the treaty, but he admits that the term '* preparing to fish" covers the repairing of dam- ages to sails, rigging and boats, the arranging or reeling of lines, the preparation of bait etc. And he says "an American vessel when within three miles of the coast, or when in a harbor for shelter can not escape seizure if the colonial cutters enforcn the law, for it is obvious that everything done on board may be e»< braced in the comprehensive words 'preparing to fish.' What, then, is tho) common sense construction of these words f I reply tb^t a fishing vessel at home secured at her owner's wharf is said to be preparing to fish, when among other things hjr crew are repairing her and taking in wood and water, and that a repetition of these acts when in a colonial harbor constitutes the same preparation." Now 1 propose my lord, in order to arrive at the meaning of the actt to look, not merely at the words, the technical term " preparing to fish," bnt to look at the convention of 1818, which that act was parsed to ren- der operative and also to the object which the legislature had in view in passing the English act of 1819, and also to the contextof the statute. I think it is pretty well admitted that the convention itself absolut«ly I prohibits any fishing vessels of the United States from entering within three miles of our coasts, bays, creeks or harbors except for one of the four specified purposes. I think it will be admitte\v to know precisely what our fishermen may and may not do in the kMiitorial waters adjacent to the British Dominions. VVhat they may ft) may be stated as follows : (1) They have the liberty to take fish " on that part of the southern ^ast of Newfoundland which extends from Cape Bay to the Kamean slands." *' I'if ?if 86 (2) Tbey bave the right to take fish " on the western and northern ooaots of NewfoBndland from Cape Bay to the Qoirpon Islands." (3) Also '* on the shores of the Magdalen Islands.'' (4) Also '' on the coasts, bays, harbors and creeks from Mount Joly on the southern coast of Labrador to and through the straits of Belle Isle, and thence northwardly indefinitely along the coast' subject to any exclusive rights of the Hudson Bay Company. (5) The right " to dry and cure fish in any of tlie unsettled bays, har- bors and creeks of the southern part of the coast of Newfoundland " be- fore described and of the coast of Labrailor, without interfering witb the rights of settlers etc. (G) The right of American fishermen in their character as such to enter the bays and harbors of Great Britain in America for the purposes of shelter, of repalrinj; damages, of purchasing wood, of obtaining water - and for no other purpose whatever. But they are to be under such restrictions in respect of "their entry into bays and harbors where they are not entitled to fish, as may b« ni^cessary to prevent their taking, drying or curing fish therein, or in any other manner whatever abusing the priviliges hereby reserved to | them." The things that by this article American fishermen must not do are: (1) "Fish within three miles of any of the shores of the British Do-j minions, excepting those specially above named." (2) "Enter within this three mile limit except for the purposes last] stated." Tiiat report may be found on page 56 of the correspondence respect- j ing the North American fisheries presented to both Houses of Parlia-j ment by command of Her Majesty in 1887. Now the English Parliament had this convention before them wfaeu I they were called upon to pass an act to make it operative, and whatever j else can be said in this case in respect to that act of Parliament, it is] quite obvious that the fishing vessels of the United States are prohib- ited from entering into the territorial waters of the Dominion of Can- ada, except for one of t he four specified purposes. The language in the j proviso, the prohibitory language, is the same, both in the convention] and in the English statute and the legislature having this treaty or} convention before them and desiring to ma ko it operative made tbej statute as broad as the convention itself. ] The duty was cast upon the legislature to make the conveotlbn oper-l ative and to prevent any extension or abuse of the privilege of putMugl in for repairs, wood and water. And it is quite obvious that they had! before their minds the purchase of wood and the obtaining of water.] Those were not privileges they could claim by the law of nations, wbat-] evei may bo said with respect to shelter. Then in addition to the convention the attention of Parliament would] be called t>o matters that bad taken place previous to this convention.] While we cannot recite what was said by the members oC Parliament] 'at the time any measure was debated we can examine the evils tbatl Parliament was called ui>on to remedy and the matters which nucessi-j tated the legislation. Now Maxwell on the construction of statutes, page 27, says, " Tol arrive at the real meaning it is always necessary to take a broad gen-f eral view of the act, so as to got an exact conception of its aim, scopal and object. It is necessary, according to Lord (3oke, to consider (1)1 what was the law before the act was passed ; (2) what was the raisciiiei] or defect for which the law had not provided ; (3) what remedy Parlia-l 87 tern and northern )n Islands." from Mount Joly lie straits of Belle coast' subject to uitettled bays, har- [ewfoandland " be- lt interfering with ter as such to enter for the purposes of of obtaining water ect of " their entry to fish, as may b« r flsh therein, or in hereby reserved to j m must not do are : I of the British Do- j )r the purposes last aspondence respect- h Houses of Parlia- 1 before them wheu •ative, and whatever j )f Parliament, it is] [ States are prohib- s Dominion of Can- ThelaDguagHintbel h in the convention I aviug this treaty or )perative made tbej the conveotfen oper-i privilege o£ putting I vious that they hadj obtaining of water.! %\r of nations, what-] >f Parliament wonldj » to this convention. I uberB oi' Parliamentl ^mine the evils that I ktters which necessiF page 27, says, " Tol o take a broad geni ion of its aim, scitpej Joke, to consider (1)1 bat was the raiscbisfj what remedy Parlia-j Iment has appointed ; (4) the reason of the remedy. According to an- lotlier authority the true meaning is to be found, not merely from the jwords of the act, but from the cause and necessity of its being made, Ifroui a comparison of its several parts and from external circum- I stances." Now this report that was presented by Senator Edmunds to Congress l&ays that the committee came to this conclusion. 'The committee is of the opinion in view of the history and of the plain ]liii)guage above quoted [the first article of the convention] that this |:irticle was intended to deal and did deal only with the subject of the L(liiii88ion of American fishermen within the territorial jurisdiction of ]lli8 Britannic Majesty as defined by the law of nations." 1 now wish to call your lordship's attention to what had taken place |])r(>viou8 to this convention. There bad been seizures on the coa»t of ItliiH very province for violation of the territorial rights of Great Britain. JLord Bathurst in a letter to the governor of Newfoundland, dated the |l7 of June 1815, which I will hand to your lordship, says: Mr. Meagheb. He can refer to this as a part of his argument, but as to liandiug it to your lordship to be read as evidence, I cannot consent that. Mr. Gkauam. His instructions were that United States fishing ves- Isels were to be excluded from the bays, harbors, rivers, creeks and in- jlets of all of Bis Majesty's possessiona ; they were to be excluded frmn , ill the jurisdictional waters of Great Britain. And the instructions to ulmiral Milne, dated the 12 of May 1817, were as follows : " Ou your meeting with any foreign vessels fishing or at anchor in toy of the harbors or oreeks in His Majesty's North American prov- inces, or within our maritime jurisdiction, you will seize and send such vessel so trespassing to Halifax for adjudication, unless it should clearly uppear that they htul Ixen obliged to put in there in consequence of listvess." Now under these instrnetiong the commander of the Dee seized a iinniber of veKvels down off Cape Negro and in Ragged Island harbor. The grounds of the seizure are stated in Bathurst's letter to Mr. Rush. jthe American minister, ilated August 8 18L7. By these papers you will iMirceive that the vesselti in question were in the habit of occupying and fvere at the time of the seizure aetnaliy occupying, for the purpose of ishing, certain harl)ors in His Majesty's dominion in violation of the •rders made of foreign \ easels making similar encroachments, to which is not to be supposed ttie masters of the vessels could be ignorant. Cben these vessels were seized and bionght to Halifax. Proceedings |^ve^e taken against them in the vice-admiralty court, and the judge de- rided that the previous treaty nnder which the American fishing ves- V>l8 had the liberty of fishing in our territorial waters had been abro- gated by the war and sustaining the right to exclude the vessels from Dur territorial waters; but inasmuch as there was n6 convention and no [itatnte, he decreed that the vessels should be released. That was pre- nou8 to the convention and previous to the statute. The decision is not reported and I was obliged to resort to American literature to find it. Now all the correspondence that passed in reference to the treaty in Respect to the negotiations that took place before the convention of jsis, show that England was contending for her territorial rights. (At tluM ]>oiut Mr. Graham read from the annals of Congress, extracts roin a letter of Mr, Adams to the Secretary of State, dated February 1^ 1816, another letter dated October 20, 1818, to Messrs. Galatin and ^usli and also from a letter from Lord Bathurst dated October 30 1815.) .3!;' * ( ■'f I- : 88 Now *t appears tbat there had been contention in respect to the limitations of tlie territorial Jarlsdiction of his Britannic Mt^esty and an order had been given in one case by the captain of a sloop of war, Jaseur^ to an American fishing vessel that was sailing within four or five miles of Gape Sable to go ontside and not approach within sixty miles of the coast. Admiral Griffith had issued an order that vesseli | were to be removed altogether from the coasts of the British colonies. Now the point I have ^en endeavoring to make is that the legislature I in passing this ant had l)efore them not merely the question of fish— and the mere taking of the fish from the waters was not considereil a very valuable thing at that time — but they did have in mind the very im|)ortant matter of the preoccupation of their bays and harbors by American fishermen. They had heard the complaints made by British | subjects in res[)ect to this preoccupation. That was a period of non- intercourse. American trading vessels were not allowed to bring any I goods into Nova Scotia ; if they did they were forfeited. British ves- sels were not allowed to enter the ports of the United States and every vessel leaving the United States was obliged to give bonds that they I would not enter the ports of the British dominion. The legislature! would have an object in restricting in every possible way the privileges! of the American fishermen coming within our bays and harbors and to do all in their power to prevent any extension of the right that they] had given them by this treaty to purchase wood and procure water. Now the view which I am now pressing ui>on your lordship has been I advanced before and you will find it useful to refer to the article which I is contained in the fifth American Law Beview page 410. It is an .article I said to have been written by Judge Pomeroy, I think the author of tbe| work on constitutional law. He is dealing with the claims of the fish- ing vessels of the United States and he considers first, the claim ofl right to enter for shelter, for repairs and for wood and water and to] anchor when not driven in by storm to escape iminent danger ; then he] comes to the second claim, ov' right to lay at anchor in bays and hurborsl and otiier territorial waters tor other purposes and he says : [reads from | an article in the fifth American Law Beview page 410.J Now if we look at the context of this act we find that the exprfutsiuul " preparing to fish "is used with the expression *' fishing." I suppose I it is necessary to arrive at the meaning of the word fishing, and iny] contention is that it is not restricted to the act of catching the fii ' There is nothing about it that implies success. It includes the attempt I to fish. The law officers of the Grown, in an opinion given in 1841 referl to this question. They were asked in reference to the right to pass I through the Strait of Ganso, which they could not do without comiDj^l within the prescribed limits, and whether casting bait to lure fish in I the track of a vessel was fishing within the meaning of the conventioai and they said, '* we are also of the opinion that casting bait to lure fl8h| in the track of any American vessel navigating the passage would cou- stitute a fishing within the negative terms of the convention." Thatj also will be found in Sabine's report page 287. I find that it is contended on the part of the United States that thel liberty to take fish on the coast of Newfoundland and of the Magdalenl islands embraces the right to purchase bait as w«ll ; and now they arel putting forward the claim that the two vessels, Thomas F. Bayard, and! the Mascot, were improperly prevented from purchasing bait on thosej coasts. In a letter from Mr. Phelps, the present minister in LondonJ to Lord Iddesleigh he says : *< These vessels were proposing to fish iul waters in which the right* to fish is expressly secured to AmericAos byl ^^m^uii. >n in respect to the ritannio Mt^eoty and in of a sloop of war, ailing within four or ppronoli witliin sixty in order that vessele | :.he British colonies. s that the legislature I he question of fish— xras not considered a we in mind the very bays and harbors by ints made by Britisli [ vas a period of uon- allowed to bring any I rfeited. British ves- ted States and every give bonds that they I ion. The legislature! le way the privileges I s and harbors and to the right that they [ tid procure water, ur lordship has beenl r to the article wbicbl d 410. It is an article I nk the author of thel tie claims of the fish- srs first, the claim of I A and water and to I ent danger ; then he] [* in bays and hurbors I he says : [reads from 410.J \ 1 that the exprensluu 1 fishing." I suppose I ord fishing, and my] of catching the fish. I includes the attempt I m given in 1841 referj to the right to pass! t do without couiiDj^l ; bait to lure fish in I iig of the conventiool sting bait to lure fl8h| 3 passage would ecu- I convention." That! nited States that thel and of the MagdalenI 1 ; and now they arel xomm F. Bayard, and! ihasing bait on thosej minister in London,! proposing to fish iul ired to AuiericADS byl the terms of the treaty of 1818 ; the former in Bonne bay, on the north- wt'st coast of Newfoundland, and the latter near the shores of the Mng- I (iiilen islands." For this purpose the Bayard attempted to pnrchase bait in the port I of Bonne l)ay, having reported at the custom house and announced its ol)ject. The Maaoot made a similar attempt at Port Amherst in the iMiigdalen islands, and also desired to take on board a i)iloc. Both vessels were refused ]ierini8sion by the authorities to pnrchase biiit, and the Mascot to take a pilot, and were notified to leave the ports within twenty four hours on penalty of seizure. They were therefore compelled to depart, to break up their voyages, and to return home, to their very great loss. I append copies of the attidavits of tiie masters of these vessels, stating the facta Your lordship will observe, upon reference to the treaty, not only that the right to fish in these waters is conferred by it, but that the clause i)roliibiting entry by American fishermen into Canadian ports, except for certain specified purposes, whicls in relied on by the Canadian Government in the cases of the Adams a\u} of some other vessels, has no applicatioi\ whatever to the ports from which the Bayard and the Mascot were excluded. The only prohibition in the treaty having ref- erence to those ports is against curing and drying fish there, without leave of the inhabitants, which the vessels excluded had no intention of doing. I am considering the use of the term " to take fish" in the treaty.. They contend that that is broad enough to cover the ])uruhase of bait as well as the actual fishing. If it is broad enough for that purpose [which I don't admit for I think the contention is extreme] I tliiiik the term fishing as we find it here is sufficiently broad to cover any attempts at fishing, like the lowering of lines into the water or any arrangements that are made in respect to fishing without the actual catching of the fish. Mr. Meaohbr. I should not dispute that putting lines into the water is iishing. Mr. Gbaham. Then if your lordship pleases "preparing to fish" is something ve>y much broader than fishing. If fishing does not imply the catching of fish but covers the lowering of lines into the water, then "preparing to fish" must have a much broader signification. If the words were to be used in the sense of arranging the lines for fishing the legislature could have used other words which would have expressed its meaning very much better. They could have used the words " attempt to fish " which they evidently intended to cover prep- arations, which would not be embraced in the expression <' attempting to fish " and which is certainly broader than the expression " fishing." And that, if your lordship pleases, is the fallacj-, as Icontend, in. the case of the White Fawn, decided in the province of St. John by Judge Uazen of the vice admiralty court. [Reads from the opinion in the case of the White Fawn.] Now in this case my learned friend ou the other side admits that the term " preparing to fish" does embrace the acts committed by the cap- tain and the crew of the David J. Adams. The CouET. The only point decided there, isj that before you can ob- tain a forfeiture under the statute you must prove on the part of the down that the preparation to fish was to fish within the three mile limit. I understand him to say that althongli a fishing vessel be within the limit — she is not caught fishing, she is not caught with any onboard aa having fished, but she is lying within the waters with her lines already M'} # 90 Srepared to throw over ttud ctMt bait, and he nays that ia propariag to ah in British watertt. Mr. Graham. My whole argument hnH been to show that the expre*- •ion ''preparing to tish" ih iuii(;li bi-oador than the learned Judge was bound to limit it to. My contention of courtte is that the act was aimed, uot HO much at ttnliing. an tlie preparation to Anh.. The (.'OURT. I uuderMtand your argument, I was only stating what I thouglit Judge Huzen decided. My Mea in that he decided that the Crown to recover nne a forfeiture; but that there could be no forfeiture, although tite preparation to flsli was manifest and proven, if that preparation was to i)e eti'ected, if the (iMliing was to be carried out beyond the three mile limit. That was under tlie statute as it. then stood. He was dealing with a different statute than the one now under consideration. « Mr. Graham. The point I am dealing with now is that ho limited the words ** preparing to fish " to the setting of nets and lines. The Court. I thought in reading it that he used that rather as an illustratiou. Mr. Graham. No, my lord, he says the object the legislature had in view was to prevent the escape of the vessel, that if she was found set- ting nets and lines that was to be sufficient evidence of the ttshiug. And the setting of nets and lines, as we agree here to day, would be actual fishing. So that the term '' preparing to fish," as I contend, is much more comprehensive. My contention is not that the legislature was dealing with the diffi- culties of catching the American fishing vessels in the act of fishing, bat was seeking means to prevent their making preparations on our coasts and in our bays and harl)Ors for fishing ; to prevent their fitting out their vessels and making our bays and harbors a base for obtain- ing their supplies to engage in the fisheries. They were seeking to prevent the American fishermen I'rom coming in competition with our fishermen. The Court. I fancy that your view as stated now could not be suc- cessfully controverted if stated in the words you used — simply ficihiug or preparing to fish; but the statute goes further and says " fishing in British waters" and '^ preparing to fish in British waters." Mr. Graham. I will come to that in a few moments. There in an- other thing to which I wish to call your lordships attention and that is the proviso or exception contained in section 3. The prohibition is in section 2 and it prevents fishing or preparing to fish in the bays and harbors spe'iified and my contention is that that must imply a proliiibi- tion against procuring and purchasing articles preparatory to fishing because section 3 contains an exception. The legislature must have contemplated when they prohibited American vessels from fishing or preparing to fish that there was a possibility of thac being oonstrue^l to «xciude them from our port^s, betutuse the exception was made that they might enter the ports tor procuring wood and water and for shelter and repairs. I am referring to the convention and the statute as well, but 1 am more particularly dealing with the statute. I contend that the prohibition is against procuring and purcuasing supplies prepura- tory to fishiqg, because it is alleged by the way of proviso and excep- tion that they shall have the right to purchase certain articles. They 4say you shail uot prepare to fish but by way of exception yon may that is prepariag to low that the exprec- learned judge waa t the act was aimed, onl,y stating what I e decided tliar. the , that although the evideuoe that that 1 waters within the there could be no ifest and proven, if AM to be carried out ) statute as it then 1 the one now under that ho limited the 1 lines. d that rather as an I leginlature had io she was found set- sfthefishiug. And y, would be actual I coutend, is much aliug with the dlffi- the act of fl»hing, reparations on our •re vent their fitting a base for obtain- y were soekicig to tnpetitiou with our r could not be sno- led — simply fl«ihiug ad says " tfshiiig in ftters." suts. There itu an- attention and that Ttie prohibition i8 sli iu the bays and St imply a proliiibi- )aratory to flsiiing ^lature must have Is from fishing or being coustru^ to )n was made that iter and for shelter be statute as well, e. I contend that supplies prepura- proviso and excep- iin articles. They xception you may 91 piinhase wOod and proonre water; so that the legislature in using th« korils "preparing to fish'' must have taken it for granted that that loiild imply the exclusion of vessels from purchasing such articles as ro(Hl or they would not have enaote«l the third section by way of proviso br exception. It is obvious that the legislature bail the purchase of but [>no article in its mind when the act was passed and that in nsing the rords *'prepiiring to fish" it intended to use » term broad enough to Eovor all aotM which the master and crew of the vessel might i)erform ^vliitive to the voyage which ho was about to undertake. Now I shall deal next with the question which your lonlship has in- liitiited— whether or not it refers to preparing within ]>rohil)it«>d waters to (iMh in the prohibited waters, or whether the expression '< preparing to dsh" is a compound word used to comprehend all such acts im the ^tiirchnso of bait and fitting out the vessel which is my contention. Tlicru can be no doubt about the language of the treaty or the language )f tin; statute ; that it prohibits the vessels of the Unitml States from entering the jnrisilictional waters of Her Majesty except for the four Blx'ciHcd purposes. But the point is whether there can be a forfeiture |for preparing to fish. Now if your lordship lor ks at the language of this act yon will find — of coursel make nothing of punctuation, butsofar AS it goes I say that *' preparing to fish" is used as a comiionnd word. If they were dealing with the subjects I was calling your lordship's at- tention to they would have been obliged to use this awkward expres- sion, " if she shall have been found preparing within such a distance of Buch coast to fish,** thus separating the word '' preparing ^ from the «x- [])re88ion " to fish." Sly contention is that the emphasis is placed ujion the preparation, and not upon the fishing but that if the preparation within the three mile limit there is a forfeiture. The designation [)f the place qualifies the whole expression *' preparing to fish.'' The GouBT. Your argument is that the policy of the treaty was to ■protect the British fishermen against intrusion and competition and jtliiit applied as far as their coast extends to a strip of territory three liniles out ; that they shall not fish within that and shall not-prepare to llish within that ; that they shall not prepare to fish at all because it is IjuHt as bad to bily bait and fish outside, as if they were allowed to fish I on onr own coast. That is your argument. Mr. Graham. That is my argument my lord. I contend that the icoiiHtruction must be that there is a foriieitnre if there is a preparation I within the three mile limit Instead of the legislature saying, "if the vessel is found purchasing bait, if she is found refitting etc., within the tliree mile limit " they have grouped all those acts which a vessel might perform preparatory to going on a fishing voyage and have nsed this comprehensive term " preparing to fish ; " so that the designation of the expression qualifies the whole term and does not qualify the mere I expression " to fish." It is ambiguous bnt it must be construed in that I way to prevent an evasion. ' I " Itevenue laws are not penal laws in the sense that requires them to I be construed with great strictness in favor of the defendant. They are rather to be regarded as remedial in their character intended to pre- vent fraud, suppress public wrong and promote public good. They should bo so construed as to carry out the intention of the legislature in passing them and most effeotoally aooomplish those objecto." 3 Wallace 145. Now, if yonr lordship pleases, if the oonstrootion I have contended I for is not to be adopted an evasion must take place in almost every in- stance. A vessel is fonnd preparing to .fUh, the parties can always .j-i.^,t..^ju^^^.<^-.' - "■-■t-Y-|-| mttmrnmammmmmatsamn mm mmm im as BBn ■■■■■■■ ^•fe^ w . A/. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I if iii IIM »" litt III 2.2 1.8 1.25 1.4 lA .« 6" ► Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 # \ iV \\ ^9) .V -b^ -\^<^ ^Z'^^ '%'■ PI? ! '! ' ^-y..^ ■ ^ji^Bfe>--^t.fjl ' .^' ' ^ ' -^ ? W ' }l^R/^HA't■^ ,•^^^jg^^ o *'••> % CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques ¥7 92 4 m* V-ii come forward and say that Ibis pruparation is solely in reference flshinft outside of the three mile limit. We had an illustration of iti yesterday. We had tlio evidence in this case, five witnesses called by! the counsel for the claimant said in respect to this preparation "\ve| didiit intend to fish within the three mile limit." It vould be impos-l sible to i)revent the fiwhini; vessels from making; preparations becaiml they could always come forward aiid.«ay that they intended to flsh ontl side of ^he three mile limit, and as I say the legislature could not have| intended that such a construction should be placed on those words. I now wish to refer your lordship to the decision of this court in tliej case of the J. II. Nickerson [reads from the opinion]. The Court. Thejudge was dealing solely with preparations to flsh;| there was not a particle of evidence over and beyond the purchase ()f| bait. Mr. Meagher. I think there was evidence that the gills of the ilsli] were fresh an^hat there was blood on the rail. Mr. Graham. No, I have read the evidence all through. There wasi some shadow of evidence about theta being scales on the mainsail. The Court. But the judge rejected that and his decision is solely | and entirely on the ])re|>aratiou to fish. [Mr. Graham reads the last part of the opinion.] The Court. That is very general as to the acts of Parliament. It I would look as if the learned judge thought that in his opinion the pur- chase of bait was a violation of the treaty and a forfeitable ottense;] that appears to me as begging the question. Mr. Graham. The learned judge could not have decided that it was ! forfeited for violation of the convention, he must have dealt squarely | with the question of preparation to fish as contained in the statute. The J. H. Alckerson is exactly on all fours with tliis case. If the J. U. Nickerson was properly condemned the David J. Adams must also I be condemned. The Court. I agree with you that if that judgment is binding on me this case is decided. If the judgment dealt squarely with the questiou that the buying of bait in prohibited waters is a forfeitable offense, without proving on the part of the Crown that the fishing for which the preparation was made was to be effected within the English waters Mr. Meagher. I don't know as it would be binding on your lordship then. The Court. I didn't say it would. I said, if it were binding on mo. In the New Brunswick case this very point was decided the other way. I think they both agree upou what " preparing to fish" means. I think the New Brunswick case was decided squarely on the point that the Crown could not convict under that statute without ])r()ving that the preparation was for fishing within prohibited waters, while Sir William Young held that it was not necessary to prove and it was for the other party, although he does not say so, to prove that the intention was not in violation of the statute — to fish within ])rohibited waters. Mr. Graham. If my contention is sound, ihat the legislature was dealing with the preparation, then we must place the emphasis on the word "preparing" and that is the contention I make, and I think- that was the fallacy of the New Brunswick judge that he limited the ex- pression " preparing to fish " to the mere casting of lines. He was obliged to say that in order to britig out the theory that what the leg- islature was dealing with was fishing and to prevent that. But I con- tend that the legislature was not dealing with the questiou of taking a ,^^i,.,^i ,o;S.2ii.WiU 93 1 jolely in reference wa I an illustration of iti e witnesses called byl his preparation "Wej It would beimposl preparntions because intended toflshoiitl ature could not hav»| d on those words. »i of this court in tliel lij. preparations to flali;, vorid the purchase ofl ; the gills of the fislij throuRh. There was on the mainsail, his decision is solely | s of Parliament. It) 1 his oj>inion the pur- a forfeitable ottense;] s decided that it was ; have dealt squarely allied in the statute, this case. If the J. J. Adams must also lent is binding on me ely with the question a forfeitable oft'enRe, the fishing for which within the English ling on your lordship were binding on mc. icided the other way. ish" means. I think I the i)oint that the lut jiroviiig that the re, while Sir William it was for the other lie intention was not ;d waters. the legislature was the emphasis on the ke, and I think that t he limited the ex- r of lines. He was y that what the leg- it that. But I cou- luestiou of taking a lew flsii, flsb not being at that time or at the present time materially diminished in numbers by the catch within prohibited waters. It was the more important question of territorial jurisdiction and the right to prevent fishing vessels from coming into the harbor and making her preparations to fish. If that is the construction to be placed upon it, tlieii the legislature is dealing solely with the preparations in respect to the harbors, bays and coasts. Now I wiah to refer to certain other decisions of the Vice-Admiralty Court with this view ; that after these decisions were rendered anil after vessels were seized and condemned in the Vice-Admiralty Court for preparing to fish under the statutes of the Crown and the statute of Great Uritain, the Dominion Parliament passed an act in 18U8, in which it uses the same expression "preparing to fish," and that construc- tion having been placed upon it by the court prior to the act, Parlia- ment must have ratified that construction by the use of that expression. [Mr. Graham here read from Sabine's report the cases of The Hart, Magnolia, The Charles and the Papineau and Mary, which he contended were seized and condemned for purchasing bait.] So that previous to 1868, when the Dominion Parliament was called upon to pass an act upon this subject, there bad been seizures under similar statutes for preparing to fish and for purchasing bait, and when the legislature used the expression " preparing to fish," the expression it had used in the previous acts of this province as well as the province of New Brunswick and Prince Edward Island, it must have intended that a similar construction would be placed on the words similar to that which bad been placed upon it by the courts under the previous statutes. [At this point court adjourned until afternoon.) . ,v ' ■'■■■'-- AFTEENOOX. . Mr. Graham resumed his argument at two o'clock. ' . The act of smuggling provides that the ' argo is not to be brought ■on deck or to be remov^ed in any way or shape until the vessel is at her port of destination ; that liquors shall be carried in casks of a certain size so as to prevent the opportunity of smuggling. And our own pro- vincial legislature wishing to destroy the sale of intoxicating liquors lias enacted that no man shall keep a bar on his premises. Now keeping u bar' is a perfectly innocent thing, the carrying of liquor in small ciisks — all these acts are perfectly innocent, but the law knowing that if it i)ermits these things to be done, will not be able to prevent the jrieater offenses of smuggling and selling liquor without a license, pre- vents the inception of the evil and prohibits anything that may lead to it. Judge Pomeroy in The American Law Review says : "Preparing to lisli if permitted would render it almost impossible to prevent a(!tnal lishiug — when from considerations of policy statutes are made to de- clare some final result illegal the legislature uniformly forbids the pre- liminary steps which are directly connected with that result, lead up to it and facilitate its accomplishments, etc." So if it is to have only the restricted meaning as Judge Hazen gives it. of casting the lines, or even the broader meaning, the legislature in »riU>r to prevent the taking offish in the waters, have prohibited them non from making preparations because it may lead to fishing within «:••*.'■■ f hli; V, t 94 E""'- the probibited waters, and the qaestioD of intention would be quite ir relevant because the danger is just as imminent that tliey will tisb within the three mile limit tw it is that thej' will flsh outside. So that the legislature has made these very preparations to fish, evidence tlial fishing will take place. As in the game cases, the legislature alw.iy.v takes good care to make provisions which will enable the courts to pre vent an evasion of the law. They prohibit all acts that have any i-efi^r ence to the violation of the statute to poach ; they deal w ith everythin;; that may facilitate the carrying out of robbery. Now I want to refer your lordship to a previous point one moment. If the expression ''pre- paring to flsh" compi%heuds and includes the procuring of bait we can read that in the act and the act would say " if she is found fishing or procuring bait within such a distance of the coasts, bays, etc." it is my contention that when dealing with the word »' fishing" the legislature was preventing the United States' vessels from fishing in her harbors and when it usele tbe courts to pre that have any refer- leal with everything ifo'.v 1 want to refer :he expression "pre- iring of bait we can is found fishing or bays, etc." it is my iiig" the legislature ihing in her harbor» j sh" it is preventing it in our harbors to I irence does it make! the legislature, and luse they only allow tuiedied what differ- rhat the legislature i and procuring bait vessels, what differ- ty you must not pre- This is monopoly, h on the part of the d States that there rded the purchase of iaus from it doesn't tit. :he statute prohibits ;; of bait and doesn't h1 at all, because the I te(«t tbat I apply, of to fish " — as long as & that the forfeiture tnre was preventing rence where the flsli- sel from coming into li" lias the meauiiig^ ans preparing within Nthin the three mile dship to look at this iced on the claimant, that the fishing was be burden upon the le acts of 1868. ie cases is this : The to do certain thin},'8 seizure. The seizure ms the property. It puts forward a claim. I Tlio legality of the seizure is then to be tried. Of course the form of the pli'iulings may be like the ordinary common law actions, as if it was be- tween a plaintiff and defendant ; but the question which your lordship- is called upon to try is the legality of the seizure — was it a case where tlu; utiicer was justified in making u seizure. And under nil revenue laws the burden of proving the illegality of the seizure is placed on I the claimant, uuu mat is the exact language of this statute. Now in Clifton vs. The United States, 4 Howard, 252, we have a simi- lliir provision and in the John Gritfiu, 15 AVallatte, 20, the section with I which the court is dealing is as follows : "Section 71. That in actions, suitsor informations to be brougLt where . I any seizure shall be made pursuant to this act, if the ])roperty be claimed l!)y any person, in every such case, the onus probundi shall be upon the li'iaimant." In that case there was a conflict of testimony. It was a lease of the seizure of cigars and the captain came forward and swore ] positively that the cigars were never aboard his vessel with his knowl- \vi\ge and consent and to his belief they were not there at all. Ue ad- linitted an interview with the owner ot the cigars iu regard to a trunk land barrel package. He equivocated alrant the authorship of the let- Iter produced by the owner, who was the principal Government witness, laud said it might have been written by bim and that it looked like his Ihand writing. Mr. Justice Miller in delivering the decision of the court, Isays: "The case, as thus made, <*mounts to something more than the Iprobable cause, which by section 71 of the act of 1799, throws the oiins- Iprobandi on the claimant of the vessel. It is a clear prima facie case land both by the statutes and the ordinary rules of evidence required lof the claimant such testimony as should satisfactorily rebut the pre- JHuniption of guilt which it raised." Now this stotute had no such clause as thef statute of 1799, passed by ICongress providing that there must be probable cause made out for the ■seizure. The provision in the statutes of the United States, section 909, is Ithut "iu statutes or informations brought, where any seizure is made jmrsnant to any act providing for the regulating or collo'ition of dut'.dS m imports or tonnage, if the proi>erty is claimed by any person, tUe l)urden of proof shall lie upon snch claimant : Provided, that probable cause is shown for such prosecution, to be judged of by the court." In Locke vs the United States, 7 Cranch, .339, which was for tLe coii- |iIemnation of a cargo forfeited to the United States, the counsel iu ar- lunient said iu the court below that "probable cause is prima facie evi- klence and whenever that is shown the onus proband! falls of course kipoii the othei"^ party." While the counsel on the other side claimed that W'obable cause doesn't mean prima facie evidence but simply reason- fiblc f^rounds of suspicion. Now Chief Justice Marshall who delivered tlie opinion of the court says : "These combined circumstances furnish, Jin the opinion of the court, just cause to suspect that the goods, wares fuul merchandise against which the information in this case was filed, lave incurred the penalties of the law." Then he recites the statute klii(;h I have read. He then says, "It is contended that probable cause paeans prima facie evidenide, or in other words, such evidence as in the lahsence of exculpatory proof would justify condemnation. "This argu- laeiit has been very satisfactorily answered on the part of the United ptates by the observation, that this would render the provision totally Inoperative. It may be added, that the term • probable cause' accord- In^ to its usual acceptation, means less than evidence which would jus- JtitV coudemnation ; and, in all cases of seizure, has a fixed and well irr ,. : . 96 known uieaniug. It imports a. seizure made uuder ciroumstauces wbic warrant Muapicion. In tbia, its legal neuse, the court must unilerstaii iho term to have been used by Congress.*' Tlie next ease was tbe case of tbe Luminary, 8, Wbeatou 407. 1 timtcase a mere suppression was bcld to make out a probable cause f( the seizure and to justify tbe court in giving judgment for condeniiii tion. Suspicion rested on tbe claimant wbo bad it in bis power to miili a clear case by producing bis title deeds but refuse*^ to produce tbei and tbe vessel was condemned. Mr. Justice Story in delivering tii opinion of tbe court says, "Tbe suppression, tberefore, justifies tii court in saying tbat tbe United States bave made out a prima facie cat and tbat tbe burden of proof to rohut it rests on tbe claimant." Tbat is wbere tbere was no evidence at all but sometbing tbat wii kept back and it was held sufficient to justify tbe seizure and condemiit tion. In tbe 3 of Wallace, already cited, tbe court recognizes the ru! of tbe onus probandi and says tbat it lias always been regarded an permanent feature of the revenue system of the country. Now the burden, if your lordship pleases, is placed here on the clairi ant by tbe statute. The decisions which I have recited so. far as tl United States statute is concerned, which places the burden upon tL claimant, show what kifid of evidence the court will require before pr ceedin;? to the condemnation. They hold that suspicions circumstance anything that leads tbe court to suspect that an infringment of the la was contemplated, even, a suppression, will be sutUcicut to have jnd; mcnt given against the claimant unless he removes tbe onus probaui which is cast upon him. Mow in reference to the facts of tbis case. I detailed the facts th morning and I do not propose to go into them very fully again. Tli vessel with tbe captain and crew on board are not in a ])Ositiou to gi^ evidence of their intention or wbere they intended to lisb. It will I seen th'«t they fished anywhere they could get them. Tbis vessel tb fitted out for the Georges bank didn't go to the Georges. She went three other places ; she went to the Western bank and failed in the fli instance in obtaining fish, then went to another place and then Brown's bank. Suppose they had fitted out for one of these banks, could not bo given in evidence tbat they intended to fish at any specifi place, because they fish and their intention is to fish wherever they c£ Tbe master is uot produced at all ; be has not given any evidence tbis case and none of tbe rest of tbe crew except these five witness have been produced. Four young fellows were examined in Bost and they are asked tbe question *' VVhere did you intend to fish with bait." *' Ob ! We intended to fish on Brown's bank." They only mei that they intended to fish there if they could get fish, but if there was fish tbere they would go to some other place. They were not tied do to any i)articular place. Tbe vessel was in Eastport and procured tbere and comes over to tbe Bay of Fnndy and the evidence shows t there was an opportunity for her fishing there; tbat a fleet of tis men from Annapolis basin consisting of twenty or thirty vessels w fishing in tbe liay of Fundy ; that tbere is cod fishing within tli miles of tbe shore and tbis vessel comes over and conceals her nsii Tbat is proved by a half a dozen witnesses and I do not use "bal dozen" in any loose sense. 1 say at least six witnesses bave pro' that tbe master and crew, wbo knew that they were doing an ille act, concealed tbe name of the ship. And although the claimant called five witnesses, uot one of them waa asked in respect to cover ■or concealing tbe name of the vessel with tbat sail. Tbe witnet rr-iijh.WHryill-; 97 ler circutnatauceswbicbl court uiuat uiKlerstaiidl ri/, 8, Wheatou 407. lul out a probable cause lot udginent for coudennia ' d itiu his power to make I efusec^ to produce tbeiiil Story iu deli\'eriug tliel therefore, justifios tlif de out a prima facie CAiie| )n the claimaut." but somethiu;; that was I e seizure and coudemiial sourt recognizes the rulel vays been regarded m ii| le country. )laced hereon the claim I ivve recited so. far as tboj ces the burden upon tbel t will require before prof iuspiciouH circumstances,! m infringment of the laivl e sufficient to have judjr [ moves the onus probau(li| I detailed the facts tliisl u very fully again. Tbijj } not in a ])ositiou to girel ended to tish. It will bcl t them. This vessel thati he Georges. She wenttol lank and failed in the flrsti lother place and then t«l for one of these banks, itl lied to tish at any speciflcdl to llsli wherever they caal not given any evidence inl Cept these five witnessesj ?ere examined in Bostonl ^'ou intend to fish with tbel bank." They only meautl :et fish, but if there was no I They were not tied downl asti)ort and procured baiti d the evidence shows thatI ere; that a fleet of tisberl nty or thirty vessels weni cod fishing within tlire«l r and conceals her ujimi'.l and I do not use "half «! ix witnesses have provdl hey were doing an illegal although the claimant Ivm ied in respect to coveriiigl that sail. The wituessesi examined in Boston wore never asked that question as to the cover- ing' of the name of the vessel with the sail and our witnesses hjve proved it conclusively, that there was a concealment, a suppression as .Mr. .lustice Story called it in one of the cases I have referred to. And then when the master is asked about this bait he concealed the f.icf« in respect to it. Perhaps that is owing to the fact that he thought it was illegal, but he didnt give any satisfactory account of what he was do- ing. He said he was up seeing an aunt of his. It was pretended after- wards that that was a joke, that there was no aunt in the case. Then lie is asked for the vessel's ])apers, but he produced no paper to show where he cleared for. Captain Scott demanded the papers from him and he doesn't produce them and they are called for to day and not pro- duced. It doesn't appear to have been a good month for fishing on the Western bank and although they had been out three weeks — and the average voyage is only three or fonr weeks — they had a broken f.ire and with the desire to catch fish and the opportunity for catching them within the three mile limit I think your lordship will not find that they didn't intend to fish within that limit. I imagine there was no unwill- ingness on their part to catch fish and the burden of i)roof is upon them to prove that they didn't intend to fish within the three mile limit. Now the witnesses were asked the question "Did you intend to fish within tlie three mile limit; did you intend to use the bait within the three mile limit" and they all answer "Oh no, we didn't intend to." Surely it can not be that the claimant can satisfy the burden that is cast upon him by giving such testimony as that. It is illegal and the intention has nothing to do with it. The person who takes a horse quite innocently but takes it without any leave is not allowed to say that he only in- tended to do this or that or another thing; that he had no criminal in- tent. The Court. In the case you put he would not be guilty of a criminal ofiense. If be went into the stable at night and took the horse the fact of his taking it would be prima facie evidence of the intent, but he could rebut the fact by saying that he believed he was the owner of the burse and had a right to take it. Mr. Geaham. lie could show facts, but here no facts are shown. The CouET. I think it is evidence; but it is the weakest kind of evi- dence. Mr. Graham. It is not evidence. They must show facts. The opera- tions of one's mind, that is continually changing, surely cannot ^be evi- dence. If it was there could not be a forfeiture under the statute at all. A forfeiture could only take place in a very exceptional case be- cause the preparations would always relate to the fishing outside. Tiiey would come forward and say wo never intended to fish on the siiore of the Bay of Fundy at all, we intended to go to another place outside. That is all the evidence with respect to intention as to where this fishing was to be carried on and I contend that they have not sat- isfied the burden that it cast upon them in that respect. Now, if your lordship pleases, we come to another point, and that is on the ])oint of fishing. It is a well known ])rinciple of law that a man is liable for what he does by his agent. What he does by his agent he does by himself. If the master of the David J. Adams employs an- other person to catch fish, in law he catches the fish himself. 1 referred to that evidence this morning and I do not wish to take the time to go over it again. Of course, there is in this case the purchase of the fish on (Elements shore from Brown, and in each place and from each per- 104 A 7 '1-f ^ I i' •JIL son from wboni the niustor purchased bait, he obtained a promise that thoy would supply him with a subsequent catch. Mr. MEAaHKB. There is no «har(;;e in tlie libel or petition that would cover an act of this kind at all, and therefore the evidence is not ad- missible. The CouBT. lie is contendin^f that the fishing of Taylor was the fish- ing of the nnister. One of the illustrations from the books is, a pro- vision dealer saiu suffer sometime by the wrongful ac^ of the master. (Phile rs i^hip Aniut, I Dallas, 107; The Bella Corrunes, G Wheaton, 15:i; Bishop on Criin. Law, SliG.) It is no matter what the intentions of the owners are, if the act is com- mitted. by the master the forfeiture attaches. Now there is another point suggested in the answer and that is that the Canadiau statute was beyond the powers of the Dominion Parlia- ment. 1 do not know, really, whether that is intended to be raised or nut seriously, but 1 judge from what my learned friend said this morn- ing that . t is. There ;s no question but that the power was delegated to the Domin- ion Parliament, because under the British North American act the Par- litunent of Canada has the power to legislate on all these subjects, to deal with navigation and shipping, sea coast and inland fisheries. The CouKT. The act of last winter which goes further than any pre- vious act was assented to by the Grown. It is not in force in this case but shows how the government of the country and the law officers of the Crown view this question of ultra vires. I am expressing no opin- ion about it. Mr. Graham. It is plain that the British Parliament in passing the British North American act has given the Dominion Parliament power to legislate on these subjects, and t>he same section gives it power to legislate on all subjects that are not exclusively reserved to the local legislatures of the provinces. 1 1 has the power so far as the Parliament ot Great Britain can give it power. I suppose it would not be denied that the Parliament of Canada has the same power, if not greater, that the provincial legislatures bad previous to the British North American act. The statute passed by the province of Nova Scotia, which is exactly similar to this, was attacked upon that ground, viz : that the provinc'al legislature had not power to make provisions in respect to United States Hsliiug vessels coming within the territorial waters of the provinces. Thiit was the case of the Creole for infringing the tishery act 1836. The Creole was a vessel that formerly belonged to American citiiens but whether to evade the fishery laws or not, I don't know, was in 1853. transferred to some person claiming to be a British subject in the United •States ; she came within the territorial waters and violated the pro- risious of the Nova Scotian statute. It appears, however, that on some question respecting the ownership the vice-admiralty court decreed that the vessel should be released. The Attorney General was not at all satistied with the decision of the vice-admiralty court and he consult^ the law oiUcers of the Crown in England. I do not ask your lordship to be bound by any opinion given by mere officers of the Crown, although one of them was Sir Alexander Cookbum afterwards Lord (Jhief Justice au*i anything he said in his judicial capacity would be binding. [Mr •.11 -'{•y 100 Ortibtiin h(>ri> read thuii tbe opinion of the law offlcen of tbe Grown in the ctt«! of the Creole.] Now. NO far hh tliMt o|iiiiii>ii goea, certainly, it wan denliiig with the point 1 am now considering, which it4 the pomer of the I'rovincial lefj- itilatnre to paH8 laws in rcHpect to the matters embraced in the Dominion BtatutcH npon which thin action in partly framed. And certainly n{>on » goo4l ground : namely, that the Provincial legislature had power to p»*'«N an enactment in reference to its own territory, anything within thiee mileH of its shoret^, and if the Provincial legiHlature had that power, and these powers were certainly given to the Dominion Parliit- nient, I contend that this act which wo are now considering is valid and binding and that United States vessels coming within the three mile limit, irrespective of tbe convention, supposing the act is broader than tbe convention, are liable to forfeiture if they infringe any of its pro visions. Mr. Meauher. Your contention is that the Dominion legislatnrc could legislate to such an exteut as to infringe upon and take away some of the rights given by the treaty f Mr. Gbaiiam. Not at all, but I say tbe court umnot consider whether the treaty has been infringed or not. The CoiMiT. if the Englisb act did infringe the treaty this court will be obliged to follow tbe act and let tbe government deal with tbe other question. Mr. Mkaohkr. louly wanted to get Mr. Graham's contention as to the Canadian act. Mr. Graham. I contend that it had tbe same power as tbe Provincial legislature and that when tbe Parliament of England delegated that ])ower to ]>»ss laws in i-espect to all subjects it gave the power to pass tbe act we are now considering. Now, there is another defense set up here and that is, that the order in council, put in evidence by the counsel for the claimant operates as a repeal of tbe Imperial statute. That was an order in council passed under the imperial act of .1825, an act to regulate tbe trade of the Brit ish possessions abroad. [Beads tbe act and the order in council.] Now, tbe contention must either be that this order in council is a repeal of the Englisb act or that tbe David J. Adam« was not a Ashing vessel. Tbe evidence is overwhelming in this case that the Adams is a fishing vessel. The admission on the record is that she was a ilsbing vessel. She was constructed for tisbiug; she was engaged in fishing and we know nothing else about her but that she was a fishing vessel. Now this statute deals specitlcaliy with tbe question of fishing vessels and their rights or their privileges in British waters. The order and coun- cil is a general provision and applies to vessels exporting goods from the British ])08ses8ions abroad. It applies to all vessels other than fish- ing vessels. The fishing question is a specific one which tbe statute of 1819 deals with specially. Now, if the fishing act was a specific one with which tbe English statute dealt solely and we have a general pro- vision applying to vessels exjwrting goods, then the well known i>rii!- ciple of construction of statutes applies, that tbe general act in such a case is to be construed as not repealing tbe particular one. (Maxwell on tbe construction of statutes, 42.) The order in council gave the au- thority to deal with trading vessels to export goods from the colonies to any foreign country whatever. The contention of my learned friend is that that gives authority to go in and buy bait. I say there is no repeal because it is perfectly consistent with the act relating to fisheries that the order in council should be passed, and we know from history ■»'i'R 101 rs of tbe Grown in H deivliiiK with the 10 I'roviiicial leu- u(l in tli<^ Dominion lnii uru hud power to y, ttnythiiiK within giHluturu hH(l thut Doniinioii Parlia- (luriii;; is vtUitl and tliin the three niii«> iict Ih broader tliaii nge any of ito pro minion legiHlature )on and take away )t consider whether •eaty this conrt will deal with the other n's contention as to cr as the Provincial and delegated that e the power to pass I at is, that the order claimant operates as ier in council passed hie trade of the Brit sr in council.] Now, iouncil is a repeal of not a Ushing vessel. e Adams is a Ashing was a fishing vessel. d in fishing and we ishing vessel. Now fishing vessels and The order and coun- :porting goods from ssels other than fisb- which the statute of t was a specific one : have a general pro- he well known priu- ^eneral act in such a ular one. (Maxwell council gave the au- tds from the colonies of my learned friend it. I say there is no t relating to fisheries e know from history that it wnN pnMed in relation to trading vessels giving them the right to export go(HlM tO(»ther rountries without any repeal of the act respect- ing' flHheries. I think this is no case of doubt i>ut I tliink in a case of doubt if the general act is passed subsequent to the siH'cial act it will nut re|»eal the Rpecial act liecause the general act will cover other cases not provided for in the special act. And tlie very history, if your lordship pleases, of this treaty <»f 1818, shows that there was no intcLMled repeal of the tM;t or of the conven- tion itself; that they didnt Intend in any way to abrogate the conven- tion of 1818. Because in that very convention that ])rohibited fishing vessels from entering our bays and harbors, they proposed to insert in that treaty a clause just as broad as the order in council that was framed years allerwards in 1830; and that clause they propoHe«l to put in in addition to the stringent proviHions against fishing vessels. The American plenipotentiaries were anxious to remove the noniiiter<;onrse oxisting between the British Colonies and the United States. "And they shall likewise have liberty to export in the Hame manner, any other article of the growth, produce or manufacture of the sai«l province tiie exportation of which to every foreign country shall not be entirely prohibited." This provision was to give the United States liberty to export goods, products, and manufactures, the exportation of which to every other foreign country was not entirely ]>rohibited. So, that so far from it being inconsistent with the convention and with the act of Parliament, which we are now considering, we find it entering into their negotiations at that time ; that they proposed to put in a ohiuse in al- most the identical terms with the order in council, side by side with the clause prohibiting vessels ft-om coming into our ports, in the convention of 1818. At that time they were anxious to secure trade for their ships; they were anxious to import goods from the West Indies, the good Ja- maica mm and articles produced there, and they were anxions to supply the British West Indies with goods ; they were anxious to get };oods that were produced in these provinces at the time and they were doubly anxious to have employment for their vessels but it was not until this order in council was passed that these objects were secured. Now, that article that I have referred to was not inserted in the con- vention of 1818, because the negotiation fell through. They couldn't i)};i'ee about it and it wasuot until 1830, when President Jackson through ^Ir. McLane obtained the removal of the restrictions on commercial in- tercourse, that the order in council was passed. But, if your lordship pleases, if you take the language of the order you will see that it never applied to fishing vessels because they were to export goods from British Possessions to be carried to any foreign country whatever ; and the negotiations and all the correspondence relating to the McLane arrangement, so called — because he was the American minister and negotiated it in London — show that the parties were not dealing with the question of fishing vessels but with the ques- tion of trade and trading vessels, giving them the right to import goods into the colonies and provinces of British NortJi America and to export goods. The correspondence and President Jackson's message to Congress in 1S30, will be found in the same volume I have already cited, page 2 of tlie appendix. I refer to these for the juirposo of showing what was tlie history of the order in council which my learned friend hits prodnced in evidence for the claimant today. It was a matter upon which he congratulated Congress that after five or six Presidents had failed he Wilis the first to bring about intercourse between the British possessions :te:- ' - -'Hfeai'MT— fe-i..*;^ Trt-^ - ^ \iri And tlic TiiiU'd Stiit»««. In tlu> tronty of 1H15, tliero war no prbviRinn niiiil«^ for tlit> Anifi'iciin colnnicH. It wns not until I'roNidnnt <)>i(;kHoii undertook tlic task tlcit thiH roHult wun hroui^ht about and thn ordi^ in council that my learned friend has put in waH nuide on tlie part of Oreat Itritain and the |)ro(;lanu)tion of IVesident .lackHon on the ]mrt of the United States. The whole history of the arrani;enient shows that, they Here dealing solely with tra(;otiationH. HliiiiK vcshpIs they vcHHols tlicy havo StatoH liuH always f vohhcIh and their [iMtinetion \h recop- pod in the tlHlierieN ngiipinf; in trade; enpaped in tnule. i:haHe(i goodM, came iiider tlie American er that was enpap- It that was inciden- urtinp, and was not ch was the case of one of the charges lit for which she was ■y says : " Tlie next , for employment in )r a distinct employ- ) inpenions and tible ediy of opinion, that oils for tliutopiniou. icrminorum, cannot ire incident and be- confers on the party ade ; for a right to sual and customary 'he right to dip, pur- d transport salt, and are therefore clearly s procure these sup- he statutes relating I trade at all. The hased bait, was not ING, June 4, 1887. nments to a close to- as dealing with yes- le order in council is "ies, there is nothing nion act is in almost used; we have the term "preparing to tlsh" in the Dominion net as well as in the Knglisb act. Ah a matter of course the Dominion Parliament has power to imM any legislation in respect to the territorial waters of the Dominion, not intringing on any of the statutes of the rarlianient of (ireat Itritain. {Ueads from .liidgo I'omeroys arthtle, page 414.| These remarks of Judge I'omeroy are based solely upon the treaty of 1H18. It is suggested that it is possible that some provisions in the (■ommercial convention between the United States and (Ireat Hrirain might require some moditication of his conclusions. I have endeavored to show that the order in council and proclamation of the President np«m which the intercourse is founded doesn^t contlict with the fishery act, and therefore bis remarks hold good in resi>ect to the power of the Parliament of Canada to deal with the subject of excluding vessels from purchasing supplies. Now we have no right, I suppose, to invoke the statutes of the Uni- ted States against the David J. Adfunii, but certainly she is not entitled to the favorable consideration of the court, for if it be trading, as my learned friend will contend for the defense and as he has contended in tiie answer, then under our own laws she has no right whatever to pur- chase bait because she^ias no right to engage in trade. She was not even possessed of the document permitting her to touch and trade that was produced in the case of the Doughty. She is not entitled to the favorable consideration of the court inasmuch as quite irrespective of the statute law she has violated i)lainly the terms of the (convention, and by the Constitution of the United States that convention is as bind- ing upon her as any statute ])assed by Congress. I do not intend to repeat anything 1 said yesterday but I will say that tiie vessel David J. Adanm should be condemned because she was mak- ing preparations to fish and was engaging, as I contend, in actual fish- ing within prohibited waters. • ' AKGUMENTS FOE DEFENDANTS. Mr. N. II. Mbaoheb began the argument for the defense at eleven o'clock. If your lordship please, I regret that I shall bo obliged, in view of the lengthy argumeut made by the learned counsel for the prosecution, and the questions raised by the pleadings, to take up a great deal of your lordsbip's.time in dealing with this matter. In the first place, ])er- liaps, it would be best for me to refer to the evidence relating to the David J. Adams. I suppose your lordship has since yesterday probably road the evidence. That evidence shows this: That this vessel fitted out for the Georges. Now, if you will refer to the evidence of Roberts, line 1570, you will find the expression that whenever a vessel is fitted out, hand-lining for any of the banks, it is a general term that is used, and it does not fol- low that they are going to the banks but going to fish. The learned counsel seemed to make a point of that yestertlay in connection with the fact that it was shown she was fitted out for the Georges. I only otter that in explanation of that evidence. Now, what the effect of section 10 of the act of 1868, may be I will (leal with hereafter, but I want to call your lordship's attention to this i'a(;t. The pleadiugs were obtained in this case on application of the Crown. The Crown has thought proper to file pleadings alleging a u 104 certain state of facts antl we liavc filed an answer to that petition de- nying what the defense thought were the material allegations of the petition, and upon that an issue on the ]>art of the Crown lias beeo taken, and so far as the pleadings sta^id the Crown has assumed tbe burden of showing that this vessel liid violated the provisions, not merely of the treaty, bnt also of the imperial act and the Canadian acts on the subject. The terms and meaning of the statute I will deal with presently. Now, your lordship will see from the evidence given at Boston and tbe evidence of Roberts given here that this vesael fitted out and went out on to the Western or Brown's bank and fished there and caught a quantity of fish. That she subsequently put into Eastport for bait; she got a small quantity there, all she could get, and then came to Digby and got the balance that she required for the purposes of the voyage. Now, in that connection I want to refer your lordship to line 1850, where he says: " We had left Eastport that morning; went into Eastport for bait; got some, couldn't say how much ; two or three barrels more or less ; 1 didn't handle it and don't know ; got al' we could." That is elicited from one of the witnesses on cross examuiation by the learned counsel. Now that shows that there was a ni^cessity for her going to Eastport for bait ; that there she got all the bait that waa available, and not getting all she requiretion would be tbey would not do that because there could be a supplj obtained every day. Still further, I think the evidence shows that there was no oppor- tunity — at all events no opportunity within the limit iu the vicinity of Digby and Annapolis basin that would make it worth her while to pnr- sne fishing there. On that point I call your lordship's attention to the cross exaniinatiou of Owen llilev. There is unother fact, if the vessel went codfishing within the limits of Digby a large portion of her gear would be useless. She was fitted for both cod and halibut fishing but tbo gear intended for halibut fishing would lie idle. The evidence es- tablishes the fact that there was no fishing there to make it worth this vessel's while, that is within the limit, to pursue her voyage and that, (■(tupled with the fact that she had fitted oui for another and difterent place before she came to Digby, rebut? any possible inference that conld be drawn from the fact of h«r coming there to buy bait. Now, it is true that Broom, one of the witnesses, does attempt to show [780 to 785] that there were opportunities there to make it worth tlieir while to fish and yet when be comes to the cross examination you wdl see thitt it amounts simply to hearsay. He had little or no expe- rience anartially con cealed the iiauic ; that ia, he says, he only read David J. More than I that the saineyonng uuui says that when he went on buiiril ht^iisked tlie captain where the vessel was from and he told him it was the Atuimi, Now that is the pait of the name that they say was concealed at that time. The captain could have no motive in conce nceal the name or homo of the vessel. It seems to me it would be car- rying the contention a long way to say that because the captain lied I therefore he must have fished, or therefore his intention was to fii within the three mile limit. ■ Mr. Graham. It is like the poacher blacking his face. Mr. Mp^GHEB. I do not think so. Now, your lordship knows that | there is such a difference between the appearance and bnihl of Ameri- can and Nova Scotia vessels that they can be distinguished quite readily I and some of the witnesses say that they knew she was an American vessel. If that iy so there would be no object for concealing the name of the vessel. If, from her rig and build, they could see that she wa« an American vessel then there would be no reason for her concealiug | her name. The CouET. I do not know how it is now but it used to be a common | thing to have American vessels under a Nova Scotia register. Mr. Graham. The captain told Ellis that she had been an American | vessel but had changed her register. Mr. Meaqher. I say that what was done by the vessel while in the | basin is perfectly consistent with no violation of the statute. In cor- roboration of the contention I am making your lordship will observe I that the bait was all bought openly and went aboard the vessel in an| open manner. Now the learned counsel seemed to lay great stress on the point that I the captain of the >l examine the captain ind resisted the mo- d master. Of course! the statement in the I entering any British! remember that wheal jt that 1 expected to I 107 prove it was said that it would not be stricily evidence. But with respect to the captain I sought a commission to take his evidence at his home in his own country. That was refused. I am not stt.> ing that uuder the circumstances it was not properly refused. But we had no means of bringing bim here. He is not under our control and has not been since he left the ship. We cannot take him by the ear and bring him down here and compel him to give up his business and attend this trial. There is no law that can bring him here and therefore, for that reason alone, are we today without his testimony. And after the effort of the learned counsel had been successful in ])reventing us from getting the commiss'on to examine him abroad 1 think it was pressing it a little severely to complain that we had not called him. He knows as well as I do, and probsibly a good deal better, that we couldn't get him here. Mr. Graham. You brought Isaiah Roberts here. Mr. Meagher. Isaiah Koberts was living within the province of Nova Scotia and we brought him hero on a subpoina. He was a resi- dent of Argyle. The captain knew that the learned counsel had a judgiiient against him and for that reason he might have been a little reluctant to come. What is the result? The counsel says the burden of proof is upon us to show our innocence and then a course ia taken which liaa the effect to prevent us from getting the evidence of the cai)- tain and now the learned counsel urges against us the fact that we did not call him as a witness. Now, I do not think that t shall trouble your lordship any further on - the question of fishing except to refer for a moment to a statement by my learned friend yesterday as to Taylor's evidence. liCt us See the extent to which that goes. ' Yonr lordsliip will see that that took place on shore. He says at line 1419 [reads Taylor's testimony]. Now, I am only going to deal at present with the quality of evidence. I submit that there is none of the elements of hiring in it and it is evi- dent that the witness used the word "told" in the light of answering a question, as equivalent to " said." " He first asked me if I had any l)ait and I told him yes. He then asked me to take it aboard his ves- sel, lie then told me to set my net that night and said I will take what- ever you get in the net tonight." The captain of the vessel knew from having been at his fish-house and having got bait from him before that that WHS his business. The evidence given as it is was simply this " If you set your nets tonight and get any herring I will take your catch." 1 submit that it really does not and could not go beyond that. The caiitain knew, as I have said, that he was dealing with a man whose business it was to pursue that work and it was simply equivalent to saying to him " If you get any herring in your nets tonight 1 will take them." There was no hiring about it, there was no price fixed, there was no limit in any way put upon it, there was nothing said as to when the herring should become the property of the captain and there were none of the terms, particulars or elements of a bargain in it, at least none are detailed here. Moreover if you take it to amount to a bargain it was not a bargain that could by any possibility have been enforced. I mention that point to show that it really did not within itselt contain the elements of hiring or a special bargain beyond saying "If you set your nets and get any fish I will take them." It did not chaiiire the relative position of the parties in the slightest degree. It did not impose any obligations on Taylor to set his nets that night and if he (lid and went with the fish to the master the master was at liberty to take them or not as be pleased. Of course, I admit that an arrange- MlWJUWJJ^WWWIMIriW m I 108 ment might be uiade by which the provisions of the statate might b« I violated iu that way but I thiuk all I nee)e I delivered to you on the ground that she was illegally seized. They say I why. You say because she violated iio law which authorized you to [seize her. Mr. Meagher. What intention had the legislature in deliberately I departing from the well settled provision in cases of this kind where I tliey want to throw the general burden of proof on the party defending. Now, in our statutes and in the United States statutes where it is in- IteiHied to throw the general burden of proof upon the claimant the words "burtlenof proof " generally, or " onus probandi " or some equiv- alent expression was used. After these other statutes have l>een en- acted and have been in force and in common use for a long time, we find the legislature deliberately departs from that customary mode and uses an expression entirely different. And not only that but it leaves ()ut what shall bethe effect of averment in pleading on the part of the prosecution. Now they must have had some jHirpose^ some object in view in doing that. Now, I submit that your lordship must start with the fact in view that the legislature has departed from the accustomed mode of expression which would have the effect of throwing the burden of proof upon the defendant generally and if you can from the words of the statue itself give it a meaning otberwise, then I think your lordship would be justified in saying that it referreth his cliiiin submit such evidence as wouhl raise a prima facie case in his favor oth- erwise his claim to defend will not be admitted. I say a reasonable and sensible interpretation of that section can be given iu that way. ]Jut apart from that I call your lordship's attention to the fact that the Grown hastulicu the burden of |>roof, has taken the attlrinativo here by the itleadiugs. There is nothing in the act which provides that a mere averment of certain things shall be sutDcient unless the coutrary is proved. Now section 3 of the act of 18(58 says : " If such ship, vessel or boat has been found fishing within three marine miles etc. without a license etc. she shall be forfeited." Now whether or not the party would be obliged to show at the time he made his claim that ho had a license or whether his license had expired before he should be admitted to defend in that action, is another point which I think shows that the statute may be read in this light. Now assuming that this section goes the length that is contended for by the other side, that is that it throws the entire burden of proof iu every particular, no matter in what shape the pleadings may be, on the party defenIe and iu tliat way. ion to tlie fact tliat tlie afflrinativo here ich provides that a unless the contrary ip, vessel or boat has without a license etc. rty would be oblijjed a license or whether ed to defend in that the sttitute may be that is couteuiled for burden of proof in din^s may be, on the i> rlie fact that there Now 1 submit if it rer of the Dominion North American act the recitals iu that ided. Now 1 subinit ly, that it took away en or previously had g in shape an agree- parties and was iu- b the Dominion aud ich other and was not ilature any power the must be kept iu view eterred to yesterday they shall have, the bt is quite correct as lat is all the act pro- lat) it would be abro- iuioD legislature the latters. [Beads sec- necessary or proper 1 or provinces thereof | atries. But it didn't n as would infringe ate any part of the e people of the conn- I concur with you in 'Mr. Meagher. Now I say if the Canadian Parliament had the power I to enact a provision of the effect contended for, it could go on further and place such burden upon vessels coining in here as would entirely destroy the rights given by the treaty. If they have the right to show that the burden of proof shall rest upon the claimant can they not go a step further ami say that none of the owners and none of the men connected with that vessel shall be competent witnesses to establish their innocence in re8|)ect to the charges made f Tiiey couhl go further and say that ten disinterested witnesses should be required to establish the huwlen of proof, that the burden of proof which is jmt tipon them shall not be satisfied until they call ten disinteresteil witnesses. Now that would be an im])ossibility, so that it would oidy be necessary that I a vessel should be seized and in nine hundred and ninety nine cases imt of a thousand a condemnation wouhl inevitably follow. The Court. If they should do that would not cannon be the argu- I iiient instead of a legal iliscussion ! Suppose the Dominion I'arliament did all tbut you say, violated every principle of justice in uiie manifest open attempt to exclude all vessels of this oharactci trom our ports, should we not he obliged to recognize the enayond, and i Bubinit it docH go beyond, theproviHions of the treaty and ]m>«8eM an act throw, ing the bnrden upon them, I nay it may |>ut the Ameiivan veHselH in such a i>o»ition that they conhl not .jnstify their entrien here even tor any one of the four Hpecitied i)urpo8e8 ; ane abrogated and I nay that is a power wliieh tlie British Morth Ameriean act didn't give to the legnslature nt Canada. It gave it the power to iM>rform the obligalitms of ('anada but didn't give it power to take away the provi.siouH of any treaty. Tlie treaty-making power doesn't exist in Canada. (Canada could not to morrow make a treaty with any foreign power without iiermission ol the Itritish Ciovernment and if they could not make a treaty itHeenisto me they can not pass legislation that will in ett'eet destroy ir. • Now we had yesterday a good many Htate ))a])ers referreil to. I am going to refer your lordship to one on that point. Lord Salisbury in u letter which will be found on page 4 of tlie Fishery correspondence, in speaking of the question whether or not the Newfoundland legislatiin' could enact laws which would atfect treaty rights says : " On the other Land her Majesty's Government will readily admit what is, indeed, self evident, that liritish sovereignty as regards these matters, is limited in its scope by the engagements of the treaty of Washington which can not be modified or affected by any municipal legislation." Now there were certain rights given to the American vessels to enter bere and no burden of jiroof was placed upon them by the terms of tlic treaty, which would have the ettect, as such a statute necessarily would have, of placing greater burdens upon the American vessels coming here. The learned counsel says that they had the power to make certain re- strictions. That, I submit, means police regulations or other regulations of that kind. It may be that a power to enact such a statute exists in the Imperial legislature but I don't think it has been given to any colonial legislature. At all events we need not go that far, because "the efiect of such a statute would be, that that which under the treaty was per- missible and could be done without fear of any violation of law, would be difficult, if not impossible, because bj' throwing or changing the bur- den of proof upon the party proceeded against, it would in efiect and in fact put an additional burden upon him not iniftosed by the treaty. Now apply it in another sense. A fishing vessel may enter for tlie purposes specified in the treaty. Supiwse a vessel to come in here in need of water, wood or shelter. She has fishing gear on board but she enters lawfully under circumstances which, under the treaty, would justify her entering. She is seized and by reason of the change made by the Canadian statute the very presence of the implements necessary for the prosecution of the voyage she was on, bait, trawls and other fishing gear would be made evidence to show her guilt. Now that, I submit, shows that this statute entirely changes the position of Ameri- can fishing vessels under the terms of the treaty and it is therefore for i that reason invalid. I only supposed the case of a statute disqualifying | the parties on board the vessel and requiring disinterested witnesvses, to show that they need only go a st«p farther in order to entirely de- stroy the privileges given by that treaty. A vessel arrives from the I bank and perhaps there was no vessel within fifty miles of her and uo | 118 terdii}', evidences of piven. 1) Ik« on the intuiition i»r lit least four h|k'c- c.VoihI, iiiul i submit imt(8t'H ';,ii Hct throw- AiiieiicHii veBselH in iitries here oven for t extent the |)rivih>(?e i)i.y that iH a power to the ief;ishiture ot ationHot'l/anadn but of any treaty. The 'ana jays : " On the other : what is, indeed, self matters, is limited in rishinj^ton which cuii dation." ■ican vessels to enter II by the tei-rns of tiic lite necessarily would ricaii vessels cotniu;,' Br to make certain re- 8 or other regulationB a statute exists in the ;;iven to any colonial *r, because the eftect r the treaty was per- lolation of law, would ; or changing the bur- ; would in etlect and nj»osed by the treaty. sel may enter for the tel to come in here in ^ear on board but she er the treaty, would I of the change made mplements necessary )ait, trawls and other er guilt. Now that, I he position of Ameri- and it is therefore tor j statute disqualifying j iinterested witnesses, { 1 order to entirely de- Bssel arrives from the I y miles of her and no | witness that could testify to tbo circumstances that drove her in here, and yot if a stntuto of that kind was fiassed, she would have no escape ill the world from forfeiture and condemnation. Ho 1 think it is obvi- ous that it ecifled reasons. Mr. Meaghbr. For the four puri)oses named she may legally enter. Now there is a general presumption of law that a party is innocent of any oft'euce of which he is charged until the contrary is shown and it is only where it is expressly changed by statute, such as the customs law and other statutes, that it lies upon the other party. Now the iw>- ri(Hl betweeu the time the treaty was completed and 1836, so far as Nova iScutia was concerned aud so far as the Imperial legislature was concerned, there was no provision in any statute which put the burden of proving inno<:ence upon the party proceeded against or of the vessel seized. And if no prosecution had taken place in Nova Scotia prior to the passage of that act of 1836, 1 submit that I am right in contending that, notwithstanding the provision of the treaty and the Imperial^et, it would have been incumbent on the Crown to have established the guilt of the party beyond a reasonable doubt. If that is conceded, as- suming that this ace has the effect contended for, does it not pnt the vessels of the United States in a different position and under greater burdens, as respects the treaty than existed during that time? Now with resjiect to the historical part of it that my learned friend referred to yesterday I am not going to say very much almut it. I do not think the opinion of Mr. Sabine or Professor Pomeroy, the one, merely a report, and the other a sort of half literary and half legal arti- cle written for a magazine, is going to weigh much in this connection. lUit I wanted to show your lordship that they are not in many instances correct, to say the least. It is unfortunate that 1 have n^ been able to get at the records of the court in the various cases, but with refer- ence to the Charleg, which was one Mr. Sabine refers to, Mr. S. li. Thomp- son in addressing the Fishery Commission [page 810J says that the Vliarks was actually seized in the very act ot tishing. That is one of the cases the learned counsel cited yesterday as having been condemned tor the purchase of bait. Two others were the Mary and the Papineau, and 1 have the papers relating to them. They were seized in 1840 and th(^ two are in one affidavit. Here is an affidavit of the somewhat fa- mous Mr. Darby, who says Ike went on board of her at Ellenwood harbor, Tnsket island, and found green cod fish on board and recently salted that appeared to be caught that day. One of the crew informed the e linblo to for- feiture. I have ill uiy liaiul nil o)»iiiioii Riven by (T. ]). Ilimliiig, Fred TlieHMJ- ger and Kitxroy Kelly, law ofnc'ern of the Crown, and Kiven in IhA^ to the Karl of MaliiuiHbiiry, which can In^ found in tlio Nova 8f my ar^uiiicnt. "With regard to the iiHanniption in the uiMe of the •/. 11. NickertioH iim to the exprcHHion 'preparing to ()Hh' in the act of (ieorge III., tliat thu wonlH 'within Hiich diMtaiice of hiicIi uoaMt, bayH,' etc., refer to the wonl 'preparing,' and not to the word 'flnh,' thiH HeeiiiH to Im^ inharnuniioiix with the grainatical onler of the Nenteiice. More«iver, in that part of the Necond nection of that act which \» )>rohibltory, the wordH are, Mu flsh for, take, dry, or cure any fish within three marine niilcH, etc. ;' the ]iart in which the wonU ' preparing to IInIi ' are round Ih not tho jirohibitory part of the Hection, but only the part eHtabliHhing the for ieitnre. The |>rohibitory part in dearly limited to fishing within tho three marine miles ; and the part estaldiHliing the forfeiture in not to be HUi)poHed to extend the nature of the ott'eiiHe unlesa clear words arc used lor that purpose. The act of A. 1>. 18(18, sec. 3, go far as < preparing to flsh' is concornod, seems to be a mere re-enactment of the act of (leorgo III. Itoth of these statutes with reference to 'preparing to fish' are of universal application to all foreign llBhermcn, and are not limited to tlshcrnieu of the United States; that such was the intention, notwitli- standing the recitals at tho beginning of the statute of (ieorge III., Im made plain by the proviso at the end of the second section. Therefore if the rule laid down in the arture and she has no intention and no object in fishing elsewhere. With her fishing gear on board, 1 submit, that uotwithstaudiug the treaty or the aot she would have a ])erfect right to sail within a mile of Gape Negro through the waters. That while going through that water on her voyage to the Western l>auk she got her bait tubs ready or iced it, got her trawls ready or took a;!)" other steps looking to an immediate preparation for fishing — if the con- tention of the learned counsel is going to prevail she would be liable to forfeiture. That, surely, would be a most extreme interpretation to put upon the act. Here is a vessel doing that which I say she may lawfully do, she is not prouibited, she is not restricted from passing through water at that place. I am taking a place that is neither a bay not be linblo to for- nUiiir, Fred Theiwi- ml Kiveii ill lf*r>J to ruvaScutiaJoiirnulH litivt) liecii fiiriiiHlH'U t of my iirKuiiKMit. f J. II. Xiikenion iim leorK*^ HI., that tliu (•,., ri'fi'r to tlio word to Im> iii1iiu'iiioiiioii.s DVJT, ill tiiut part of , tlie words are, Mo iiiiiriiio iiiiU'M, etu. ;' re round ih not tliu t'stiiblisliiiiK tlie for o llHliiiiK witliin tli*; forfeiture is not to U'HH clear words are toflHh' is concerned, ge III. iring to fish' are of 1 are not limited to I intention, notwith- le of (Jeorgo III., is . Hectioii. a Nickerson isriglit. similar provision of re any vessel of any fish witbiu the liniitH ig on its voyage to »rly entitled to llsb, 8 of the Dominion of er those circumstnii- nigh the fishing wiw other uiiprohibitc'il find in some sections n another place only granted that there g this : A vessel fits itf^ide the prohibited he has no intention iiig gear on board, 1 she would have a through the waters. to the Western bauli Is ready or took ajy r fishing— if the con he would be liable to me interpretation to hich I say she may ;ricted from passing that is neither a bay 117 nor A harlior. I am taking a phuie where the vesiiel has an iindouhted right t4) Im; and where my learnetl friend would uol contend that she li;iil no right. TheCouKT. Hhe is in prohibited waters. iMr. Mkaohku. I Htibmit that "entering'' does not iiieaii sailing lirough but it diM'H mean the ordinary enteiTngor going in ; it d(H^K not imply a mere |>aHHing through the watern. If you give il tlie constniu- lion the learned eouiiHel says it should have .\ou would subjeet to for- tvitiire a vessel that was only doing that which she has a perfect right to do. ^^ The CovRT. Supiiose she went along from Cape Sable toCape North within H mile and a half of the shore and during all that time had her lilies and hooks hanging from the gunwale, the bait on deck and was HMuly at a moments notice to tlsh. Suppose she is a mackerel vessel with a seine tied in the boat ludiind her and ready to throw it. Then. tiie question comes up is that a preparation to fish under the words of tiie act. Mr. Meaoiirb. I admit that with such an advanced stage of prep- aration as that, it might Ih) fairly inferred that the iiieparation was to llsli within the three mile limit. Itut I am putting al fitted out at Eastt)ort and admitted to be bound for, and intending to fish no where but on the Western banks and she passes — it in:ght bo inudvert- ontly or from necessity by being drivOn on the coast — throu,'j;h waters within the three mile limit where she hasai>erfect right to pa.^s to i>ur- Kue her voyage. She is not restricted from coming within a mile of the coast, passing through the water within a mile of the shore on her voyage. I submit, that the test which I apply is a good o.ie , because surely, they never had in contemplation a forfeiture of the ven- ! under the cir- cninslauces I put. But if the statute is interpreted in the way the learned counsel says it shall be the \ jsel would be subject to forfeiture, although doing a perfecrly lunocen'; a<5t and being iu a place where tlicre was no objection to her being, ""'i to is nothing iu the treaty to pDvent her being within one hundreu yards of the shore, provided she is not hovering there. Now, look at the act itself. In the second section the act )>rofesses to carry into execution so much of the convention as is aliove recited. "If any foreign ship, vessel or boat shall be found fishing or to have hc'cii fishing or preparing to tiaii within such distance of such cosist." Xtiw if the words "found fishing" refer to the place within such distance tlie words "have l)eeii fishiug" must refer to within such distanci. be- cause the oftence only consists of ftshiug within that distance. Now, m ^ 118 bow is it possible that two nsembers of that sentence can be taken to apply tu different places. How can one he taken as applicable to fislt- ing within tbat distance and the other as applying to some other place. I submit, that the words "shall be found flsliiug" govern the whole sentence. "Shall be found fishing" and "have been found tishing" must mean Ashing witliin the prohibited limits. Now how can "prepiir- ing to fish " in the same sentc^nce mean preparing to fish at some other place? .<,' The Court. Preparing to fish where fishing would be illegal? ' Mr. Meagher. Precisely. I say you cannot separate it. It must inevitably result in bringing other words into that section before that interpretation could be put upon it and it would read something l^ke this: "If any such ship, vessel or boat shall be found fishing within such distance or to have been fishing withiu such distance, or prepar- ing within siich distance to fish anywhere." That is the addition tbat would have to be made to that section before that interpretation con- tended for could be given to it. Now, as 1 said before, it never could have been intended, that inas- much as they didn't restrict and didn't prohibit vessels from sailing within the three mile limit, it cannot surely be successfully contended, notwithstanding the absence of any words adopted for the purpose, that the intention was to interfere and restrict the rights of vessels passing through tlie three mile limit although there was no restriction put upon their sailing through. They have a i)erfect right and jwrfect liberty to sail through in going to some other place, but if they happen to do au act which could be construed into a i)reparing to fish they are forfeited. The Court. That is important if that be so. I want to understand your argument. Mr. Graham contends that under the treaty alouo a fishing schooner could not enter a port except for the four specified pur- poses. Now a vessel having entered in violation of the treaty, that is without entry, goes on and makes preparation to fish. Is that or not an act in contravention of the spirit of the treaty itself f I admit on the mere fact of buying liait your ground would be very strong; if we were only to discuss the question whether buying bait was a violation of the statute, simply buying bait, irrespective of the other evidence which you must take into consideration — whether the act of buying bait is to be hold as matter of law, evidence of a preparation to fish. ^Ir. iMbagher. If your lordship puts that in connection with the argument I was attempting to make, your proposition involves an entry into a port or harbor and the case I put does not involve that at all The piohibitiou in the act or the treaty with reference to the right to enter would not apply to the case of the vessel that I put, at all. It seems to me no country would, in its senses, think of saying that a ves- sel should not sail within three miles of its coast. Now to give the treaty and the statute the interpretation contended for would result in a vessel, situated as I stated, being forfeited. The Court. As I understand Mr. Graham he does not go any further than the port in which she is found." If she comes into Halifax or into Digby without the excuse of one of the four exceptions in the treaty, she comes in illegally and being in port ' ithout a legal excuse she pre- pares to fish. He says irrespective of where she intends to fish, under a fair construction of the treaty and statute it is a violation of the stat- ute. Of course, you say that it is not. But the mere fact of whether she has a right to go through the prohibited three mile limit as the public high way of nations is not involved here at all. 119 •e can be taken to api>Iicable to ftsh- some oilier place, govern the whole 1011 found tlshing" J how can " prepiir- fish at 8ome other li be illegal! ' >arate it. It must section before that ead something Hke jiuul fishing within listance, or prepar- is the addition tbat interpretation con- intended, that inaH- vessels from sailing sessfuUy contended, ibr the purpose, that 8 of vessels passing restriction put ui)oii ud perfect liberty to ey happen to do an artie8. It never could have been contemplated that a vessel having the right to sail through a particular place, never having renounced the right to sail through, that while sailing through, because 8lie made some trifling preparation to fish at the end of her voyage she could be forfeited. The effect would be that no fishing vessel could safely navigate within three miles of the coast of Nova Scotia. Coup- ling it with the section that puts the burden of proof upon her, to de- prive her of giving evidence of what her intention was, what would be the result f No vessel passing through within three miles of the coast of Nova Scotia, although not in a port or harbor, not one vessel could escape condemnation. The act of George III., relied on by the Crown, especially in its second and seventh sections, seems to cover the whole subject-matter of the treatv, by in part providing a direct prohibition and forfeiture, and by in paru providing that the regulations under the treaty shall be made by the Crown by and with the advice of the privy councd, or by the governors named, who are always imperial officers. This would seem by direct implication to exclude any other me.«;hod of regulation under the treaty, or appertaining to the treaty, except by the consent of the parliament of Great Britain and Ireland, and to necessarily exclude and shut out the action of the Dominion Parliament as to anything touching the subject-matter of the treaty, notwithstanding the general and proper clause couferring upon the Dominion Parliament jurisdiction to legislate about coast and inland fisheries. Now let us deal Wi.;h the question of the purchase of bait. I think I have sufficiently called your lordship's attention to the section of Uie act relied on and my contention is this; that other and different words would have to be added to the section before it could be constnied into a preparation within the throe mile limit to fish without, and under the case of the White Fawn I say it is incumbent on the Crown to show that ■ -7 .*. . »ii^ -- nnr-n'lTfiiil-Wfilili'lilV PBm I'- :P 120 y - the preparation was mailo with tlio inteutiou of fishing within that limit ; otherwise it does not cotne within a fair and reasonable construv- tion of that section. The Court. You say the preparini; to fish mast be to fish within tlie three mile limit. You say first the presence of the vessel within the limit and while there a preparing to fish within tliat limit. Mr. Meauheb. Yes, my lord. The Court. Would you say this preparation by the vessel outside the limit to flsli within the limit ivould not be an ofiense f Mr. Mbagqer. I should saj' that probably it could be ar^^ued that it was an ofiense. The Court. A groat deal turns on the meaning of these words '' pre- paring to fish in 13ritish waters." I think more apt words might be used. What is the meaning of these words 1 Does 'Mn the waters" refer to the fishing or to the preparation T If it refers to the fishing then a preparation outside to fish within the limits would not be nar- rowed by the words " British waters." • «.i. ■;, /y;,.ji ,< ■ ,,k Mr. Meaguer. I do not suppose it would. The Court. Then you admit it would be aa o£Pense against the aotf I don't say it is, I am only calling your attention to it. I am only deal- ing with that branch of the sentence '* preparing to fish within British waters." Here is an offense described by the three words " preparing to fish." There are two elements to that, one an active elenient and the other a descriptive element. The preparation is the active element and '' to fish " is what they are preparing to do, and now which of the two do the words " British waters" apply to. Mr. Meaoher. It seems to me that when you look at the act itself and at the words " shall be found fishing,^' which is the governing part of the whole sentence, which is carried all through ''shall be found fish- ing within such distance " or '< shall have been found fishing within such distance " and '' shall have been found preparing to fish within such dis- tance" — surely that only means a preparation within that distance to fish within that distance and not to a preparation within the distance to fish anywhere. Now, 1 say supjiosing the entry of the Adamii into the port or basin of Annapolis for the purpose of purchasing bait to have been in breach of the treaty, there is no statute which renders her liable to forfeiture. She may be warned 06° and the master may bo liable to a penalty for violation of the act I submit, that if any authority or further argu- ment is needed on that point that the fact of the act of the last session having been passed, is a legislative declaration that the law previoas to that did not warrant a forfeiture merely for an entry other than those muntioued in the statute. Now I submit still further that the purchase of bait is not a prepara- tion to fish such as was in contemplation within the meaning of the treaty. I submit that the words '' preparing to fish',' means the imme- diate preparations and not so remote a step as the 'more purchase of bait; otherwise, it seems to mo, a man beginning to construct a vessel, an American coming t(» Nova Scotia and undertaking to build a vessel here for the purpose of fishing would bo guilty of the violation of the act the moment he began the construction. I submit that the words ^'preparing to fish" meant the immediate stop's (i am speaking of the treaty) such as getting lines ready, getting nets into bouts or dories to be set and not one of the early stages of preparation to fish sutih as the mere purchase of bait and putting it on ice, which was done in this case and which, in this case, I submit shows an intent not to use it immcdi- llsbiiig within that 'easouable construe- be to flsli witbio tlie le veaHel within the it limit. he vessel oatside the set ould be ar^fued thut )f these words " pre- apt words might bo ues " in the waters" refers to the tishiug ■js would not be nar- nse agtiiust the aotT ) it. I am only deal- o fish within Britisli e words ** prefiaring itive element and the le active element and ow which of the two look at the act itself is the governing part ''shall be found flsli- id fishing within suck ) fish within such dis hiu that distance to within the distance Qto the port or basin have been in breacli r liable to Ibrfciture. able to a penalty for rity or further argu- ict of the last sessioa lat the law previous iitry other than those jiiit is not a prepara- the meaning of the h '' means the imme- 10 more purchase of to construct a vessel, iug to build a vessel the violation of tlic bmit thut the words am speaking of tlie ito boiits or dories to Dn to fish sutib as tliu was done in this case not to use it immudi- ately bat at some remote time which might extend over a period of three weeks. It was proved by one of the witnesses that bait put upon ice would keep about three weeks. I submit, that what was meant, was KU(;h a preparation as would establish an irresistible inference tliat the intention whs to fish in the immediate vicinity of the vessel, within the tliix'e mile limit. With respect to the burden of proof raised under section U), it seems to me, your lordship would not try a question of this kind in this suit, as to whether the officer or the party who seized her was a person author- ised to do so. The moment she was seized and libeled your lordship could not; ')e asked to go behind that and t^y whether the party seizing ber was authoriztd to do so. It seems to me that is a question your lordship cannot try, because once she was lilwled, the only question try- iible would be whether or not she committed the offense. Therefore that is another element going to show that that provision was intended for some specific purpose and not having relation to the main question. Suppose a case came before your lordship and the offense properly proved and the action properly brought, could your lordship go back and try the question whether the party who seized her was )>roperly authorized to seize her, notwithstanding the fact that the guilt of the vessel was established 1 Would your lordship dismiss the case because the man who seized her was not properly authorized f 1 do feel that there is a good deal of force in that iM)int to show that it was not intoudetl to throw the burden of proof in the whole case upon the claimant but was for some special purpose, some intedocutory proceed- in;;. Now I want to call yonr lordship's attention again to the words in the act : " Provided, however, that the American fishermen shall be al- lowed to enter such bays and harbors for the purpose of shelter and of repairing damages therein, of purchat>ing wood and of obtaining water and for no other purpose whatever." Now " repairing damages there- in." What damages are intended to ha repaired f Not merely dam- age to the hull but repairing any damages that the vessel or her eq^'p- lueuts, or materials uired in connection with the fishing voyage, might require to be repaired. I contend that it is immaterial whether it be a broken spar, a split sail or fishing gear. The CoUBT. If a vessel loses her seine or loses her salt she can leave her fishing ground and come in here and supply those articles T Mr. Meaohkb. Yes, and I say that applies to bait. There is nothing to limit it at all to the hull of the vessel or to the mere equipments of the vessel but it is gen -.al. As a vessel she could go back and pursue her voyage but as a fishing vessel with trawls broken or bait gone she could do nothing The CouBT. Don't you think that is inconsistent with the manifest intent of the treaty as recognized by both parties and the provision as to the four siiecial purposes for which she may enter f .Mr. Mkaoiieb. No, my lord, it seems to me this comes under one of the four special purposes. If the split one of her sails or lost her top- mast she could come in and replace it. The CoUBT. Do you think under these wortis a fishing vessel could come iu and buy beef and i>ork and fiour to fl*'> out with f Mr. MuAQHER. Yes, my lord, if the articles she had taken became from thei lapse of time unfit for use. The CouBT. 1 cannot assent to that view just now. Mr. MEAaHBB. I contend that if any part of the vessel is damaged or it' »he is damaged in anything that is necessary for the prosecution mwwuu w 122 . ■ of her voyage she bas a right to come in iiiid repair it; the wortlsof tiie treaty are uot coii^ned to the vessel. If the words of the treaty were to l)e construed literally, as the learned counsel contends, a vessel could come in and repair damages if she had the material on board to repair the damages with. She might bay wood and obtain water but if sh« wanted iron, rope or oakum to repair damages she coiila not buy it. The CoiTRT. I think she would have a right to obtam those articles to repair damages. Mr. MuAGHER. The contention I make is not carrying it one wbit further than yonr lordship's contention. Your lordship's view is that if she wanted oakum, rope and iron for the purpose of i-epairing dam- ages she could buy it. Now is it going any further than that to say that she may come in not merely to repair damages to the vessel but may also come in to repair damages to the outfit or material she uses iu connection with the voyage itself. I say the one interpretation is no stronger and no larger than the other. Suppose a vessel pursuing a fishing voyage has her main or foretop raast carried away. Althaugh it is not necessary for the furthei" prose- cution of her voyage s!iu can come in and repair it, but if her salt for salting the fish has become wet and damaged she cannot come in and replace it although it is a necessity to the completion of the voyage, She can come in and get that without which she could get along very well but she cannot come iu and get that which is necessary for the further prosecution of the voyage. It seems to me that It is carrying it to a very extreme length if you hold that repairing damages meant repairing damages generally. As to the Adams procuring ice I think there is uot much difference between ice and water. It is only water in another shape ; if melted it comes back to water again. It seems to me it is no more than if'she came in and got a few casks of water. However, it stands in no differ- ent i)osition from what the bait does. Now in reoi)ect to the treaty itself, I wish to call your lordship's at- teutiou to the fact that the treaty was made at a time when commercial intercourse bitween the two countries by the medium of fishing vessi aud the re»i»octive vessels of the two countries was practically prohib- ited. And i\ framing the treaty there is uo doubt whatever, or I snb- mit it is pretty evident, that the British authorities were anxious not to do anything which \/ouId extend commercial non-intercourse then ex- isting. At that time I think the navigation laws stood in such a poHi- tion that the vessels of one country could not import or export from or to the other country. JVith reference to the state of the navigation laws I will ask your lordship's attention to Holt on Shipping, pages 75 to 87, where the state of the law at that time is given very fully and concisely. Now 1 say in framing the treaty the object was to prevent this uou- intercourse from being broken in upon and therefore it was that these provisions were put in the treaty and subsequently in the act of Par- liameut. In other words, they were careful not to give iu the matter of navigation or carrying cargoes back and forth any privilege by this treaty. But the treaty did not take away any right that then existet whatever, or I sub- m were anxious not to •intercourse then ex- stood in such a poni- port or export from or Ette of the navigation n Shipping, pages 75 given very fully and to prevent this uou- rbre it was that these tly in the act of Par to give in the matter any privilege by this ;ht that then existed the subsequent legis- i and the time of that hat to such an extent 186 bait. an vessels under cir- Adam8, had a right under iDternational law to come in and get those supplies providing they were not permitted to do so under the terms of the treaty, which of course I do not admit. On that point I wish to call your lordship's attention to the authorities and to the argument that was made by Mr. Dana before the Commission, at pages 1582 and 1583 of the proceedings of the Halifax Commission and the authorities there cited. I say this was an enactment in the light of the existing international law and it cannot be supposed that it was the intention of the parties to give up any rights that they had under the international law. 1 contend that it was a case of distress in this sense, that she went else- where to get bait and failing to get it she could not continue her voyage successfully without it, and I contend that in that case it is a case ot necessity and disti'ess for her to come in here and get bait. Now my learned friend's contention would amount to this : If she is confined to the four puriioses of entering, namely, to repair damages, shelter and the purchase of wood and procuring of water, then she could come in and repair a sail that was split or a topmast that was lost but if she was actually in need of provisions or anything else that was nec- essar> for the subsistence of the crew, she could not come in and pro- cure it without a violation of the treaty unless it is to be construed in the light of existing international law which would give them the right to come in. Suppose an American fishing vessel having accommoda- tion for only ten men on board, fell in with a British barque containing fifteen or twenty men which was sinking, whom they rescued, and she brought them in to a British port to land them; if the terms of the treaty are to stiind literally, as contended for by my learned friend, antl are not to be construed in the light of international law, she would be liable to forfeiture because landing a distressed crew is neither repair- ing damages, purchasing wood, obtaining water or for the purpose of shelter. So I think that is an argument going to show that that pro- vision must have been made in the light of international law and comity between the countries, which, 1 submit, gives the right to American vessels to come in here for such purposes as the purchase of bait. Moreover, I cannot conceive any injury to the fisheries that would arise from permitting them to get bait. It is very well known that the shore of Nova Scotia produces very much more bait than is consumed here and therefore it could not be said to interfere in any manner with the supply of our own fishermen or detract from the income of our fish- eriueu iiu^ more than the coming in of the American vessels and getting their supply of wood and water. Now if it be contended that the statute goes any further than the treaty I would like to call your lordship's attention to Dr. Lushington's report?, page 300, where he says, in substance, that in Ciise of doubt the presumption would be that Parliament intended to legislate without violiiti ng any ru le of i nternational law and that the construction would be accordingly. Now I ask that the same principle be applied to this treaty; that the intention v :• "o^ to deprive and was not a renounce inent on the part of the Americans of any right that they had to come in here under the rules of international law and international comity and it is altogether unreasonable to suppose that the intention was to prevent American vessels from coming in here for the purpose of obtaining as- sistance and relief. I will ask your lordship to take a note of the following citations : Forsyth on Constitutional Law, page 400, aud the authorities there cited ; Hlu^kstoue's Commentaries, book 4, page 67 ; Kent's Commentaries, vol. i 124 1, page 33 to 35; tbe Case of the Fortuiia, 5 Robingon's Admiralty R«. IMitH, page 27 ; Fraacis ami Elisa, 8 Wheatoii, page 308. Tliiti last case arose under an act of CongresH of 1818 whioli provi(leeciully so in the light of the reciprocal legisla- tion as entitled this vessel to come in and make the purchase which she did. As your lordship has observed, the language of the convention is, in- deed, very peculiar. It renounces any liberty for United States flshing vessels to take, drj', or cure tish within three marine miles as therein si)e- cifled. Then comes the proviso which was undoubtedly intended to guar- anty a privilege to United States fishermen, subject to the qualificatioug imposed upon that privilege. In other words the proviso as a whole wan for the benotit of the United States lishermeu. If it is said they were deprivcil by it of the right recogtiized by all Christian nations, to enter for su[)plies, they were «leprivetl of a right which they would have en- joyed except for the proviso, and an intended privilege is converted into a restriction. This certainly was not its spirit, and a careful ex- amination of its language we think shows that this was not i:8 letter. Its languag:e is not, that they may enter bays or " iwrts" f>w the pur- looses therein named, but that they may enter b.iys or " harbors." This is a generic term, and was intended to secure all United States fisher- men the right of entering, for the specified purposes, bays and harbors generally, without reference to (ho fact whether or not such harbors or bays were established or recognized as |iroi>er commercial ports. The right to enter 'commercial ports was not under co'isideration in this paragraph, but only the right to enter bays and harbors iudiscrimi- uately. No provision was made with reference to ports as port-', but the broader right was secured for United States fishermen to enter bays and harbors, whether ports or hot ; and this broad right is all which is limited or restricted by the closing words of the paragraph of the con- vention iu question. Adjourned. • mm Monday Morning, June 6. Mr. Meaoh£B. When the court a^joarneil on Saturday, if your lordship pleases, I was referring to tbe first article of the treaty. I have stated before, my lord, that the words ** for no other purpose whatev.T'' were not intemled to exclude the right to enter for the purchase of baitj that the primary objetft of the treaty was to prevent the taking, dry- ing, and curing fish within the limit. Now, ill that connection, and for the purpose of assisting the inter- pretation I think your lordship would have the right to look at tbe iiiHon's Admiralty Re- •ajre 398. f 1818 which provided lolly or iu part by the 'iii{j;frorn any port tliut vIohchI agaiuHt vessels k'idtHl for confiscation, iritta 'O New Orleans lica while the master I not enter the harbor, was not liable to con- lediate British closed as done not under ex- k approached to it and apart from the treaty the reciprocal legisla- a the purchase wliivh ■ the convention is, in- United States fl8hiiif( le miles as therein spe- edly intended to gaar- ut to the qnaliticatious iroviso as a whole was [f it is said they were stiao nations, to enter ; they would have en- [)rivilege is converted irit, and a careful ex- his was not ii:s letter, "ports" fci* the |)ur- fs or " harbors." This United States fisher scd, bays and harbors >r not isnch harbors or [iinercial i)orts. nder coiisideration in ud harbors iudiscrimi- to ports as port-', bnt shermcn to enter bays d right is all which is [)aragraph of the con- ' MoBNiNG, June 6. n Saturday, if your of the treaty. 1 have sr purpose whatev.^r** the purchase of bait; ^ent the taking, dry- if assisting the inter- right to look at the .:, 125 >•• r ■»■■.*■ • . - previous treaty, and I call your lordship's attention to article 3 of the treaty of 1783. Vour lordship will see the care that is evidently taken in that to pre- vent any drying or cnring fish on the shore except in places where it WHS not settled. Now, there the freest liberty was given to take them, but they were not given liberty to dry and care them. All I say In reference to that is that your lordship in construing this treaty should do it in the same manner that you would a new act of Parliament which liml been substituted for or had repealed a prior act ; that is, it shonid be read in the light of the provisions of the prior statute. So this treaty should be read in the light of the prior treaty of 1783. Now, in the same connection the treaty of 1818 having been made solely in regard to the fishery question, the words '* for no other pur povse whatever" should be interpreted in this way: "For no purpose inconsistent with the primary object," that Is the taking, drying, or curing. And your lordship will see that by the treaty of 1783 the curing of fish on land was one of the principal objects that the promoters of tbe treaty seemed anxious to prevent. In support of my contention tbiit that was the primary object of the treaty, I wish to refer your lordship to the proviso at the end of article I. 1 say that the wording of the additional clause after the proviso goes to support my theory thiit really the principal object of the treaty was the prevention of the taking, drying, and cnring of the fish. The learned counsel seems to lay great stress on the words that follow "or in any other manner wiiatevcr abusing the privileges hereby reserved to them ;" but your lordship will see that there wvre other privileges given to them i)y the treaty, and I contend that the words "abusing the privileges hereby reserved to them " docs not nifer to the harbors, whore they were nqt allowed to fish at all, but have reference to the privileges given them on the shores of Newfoundland and on the coast of Labrador. I think that theory is also borne out by the course the imperial legis- lature took in the act to give e£fectto the treaty. I think that corrob- orates my view. Your lordship will see that they provided for (V>r- feiture only in the case of fishing according to the words of the treaty ; and in case of refusal to depart or in case of wrongful or imftropor en- try, the legislature only provided for such an oflfense a i)enalty against tbe captain. And again ynnr lordship will see that a vessel having entered, the restrictions to which they are to be made subject, accord- ing to my reading of it, are not to prevent the purchase of bait bnt to lirevent that which was the primary object of the treaty, namely, the taking, drying, and curing. Now I am not going into the historical part of the question at all. I dare say both countries have taken inconsistent positions at times on tbe question, but I say that no inference can be drawn in favor of tbe Crown from the practice that has resulted, because I have shown your lordship conclusively that, except in the case of the J. H. NicTceraon, tliere has not been a single case of condemnation merely for the pur- cbase of bait alone. If I were to refer to that l)ranch of it I should re- fer your lordship to the circular which will be found on the next page of tiie Nova Scotia journals, to the opinion of Thesiger and Kelly. Bnt I do not think the mere practice one way or the other can be invoked to aid the interpretation of the treaty. Now the learned counsel urged that the legislature in passing the act must have had tbe question of the privilege of buying bait and sup- plies before their eyes. I submit if they bad, they took an exceedingly awkward and clumsy way of preventing such an act as that. I contend ■' * M (""'■I'' '«'i --i 126 that if that was their intention they certainly wonUl linve been cnretui to have exi)reHHU(l it in sucli a way as to leave little, if any, room tor doubt about it ; whereas now I think it is open to a f;reat deal of doubt. At the Hanie time they would have the principles of international law before their eyes to which I referred your lordship on Saturday. If tbe treaty is to be taken literally and is not to be read in the light of inter- national law the result would be that they could not uomo in at all no matter how urgent or serious the distress. 1 also contend that the AdawH in coming in to purchase bait was simply refitting or repairing damages. Now I will ask your lordship to take these citations : Vattell, book 1, chap. 23, Ncution 288; book 2, chap. 0, sections 110 and 120. I was not able to And the book^ in our law library. I wish also to refer your lordship to the Gertrude, 3 Story, 08. I have not seen these authorities, but they were furnished me as authoritieH going to show that the Adamn was justified in entering and purchasing bait. The citations from Blackstone on Saturday and those immediately suctMieding were on this point that international law was a part of tlie common law, and 1 wish to add to that that the authorities are that no statute can alter the law of nations. 2 Dodson, 210 ; 4 Burroughs, 201G. Now, upon looking at the pleadings your lordship will tlud the alle- gation is that the JUiama was a fishing vessel having a license which we must take was a general license. Now I am instructed that tbe only reason why a distinction is made in the United States stntutu be- tween licenses in the different classes uf fishing was to ))revunt frauds on the Government through the bt/anty KyHtem. For years the United States had in force a system of laws giving l)ouiities to vessels that fitted out expressly for a particular fishery and of course they had to devise laws for the puri)ose of (ireventiug a vessel lliat fitted out really for mackerel but afterwards catching codfish, from coming in and get- ting auiy part of the bounty; that is, they wished to reserve it exclu- sively for those that fitted out for it. Beyond that 1 do not understand there is any diftereuco or distinction between the various licenses that are issued to the different classes of fishing vessels. Section 43G4 of tbe laws of the United States obliges vessels licensed for fishing in- tending to touch and trade at any foreign port to obtain from the col- lector a permit to t0u6h and trade. Section 2497 I do not tbink is material because it was simply intended to be used as a measure of retaliation against the vessels of other countries where similar restric tions were enforced. I now call your lonlship's attention to the proclamation by the Presi- dent of the United States, fifth of October 1830, and the order in council of the fifth of November 1830 on the part of Great Britain which were put in evidence. In that connection I ask your lordship to take a note of the last Eng- lish statute on the subject. The first English stiUnte on tbe subject is chap. 18 of the twelfth year of Charles II and will be foand in the stat- utes of that period for the year 1060 at page 166. But the last act on tbe subject is the 12 and 13 Victoria chap. 29. Now I am not goin;^ to deal with those further than to call your lordship's attention to the poi::t that at the time the treaty was passed non-iute> course by medium ot the vessels of each country between tbe other was prohibited. There were very protracted negotiations between tbe two countries which resulted in the passing of what is called the reciprocal legislation, atd my cou- ikl liavo boeii c»refiil ttle, if any, room for li f;reat deal of doubt, of iiiterna^iotiHl law OD Saturday. If tbe 1 in the light of inter- lot uomo in at all no HO Contend that tbe efttting or repairing itions : Vattell, book 110 and 120. I was (, 3 Story, 68. I have id me as nuthoritieH sring and purchaaing d those immediately aw was a part of the ithoriticH are that no » ; 4 Burroughs, 'Jim. lip will tiud the alle- ring a license whicli instructed that the ed StateH Mtntute be- i8 to jirovout frauds For ycur-s the United I ties to vcsselH that ' course tliey had to that titled out really n coming in and get- to reserve it exclu- ; I do not understand various licenses that )l8. Section 43G4 of snsed for fishing in- Dbtain from tbe col- 97 I do not think is sed as a measure of rhere similar restric mation by the Presi- 1 the order in council Britain which were note of tbe last Eng- ute on tbe subject is be found in the stat- But the last act on )w I am not going to ittention to the poi:.'t rse by medium of tbe bibited. There were itries which resulted islatiou, ai.d my con- . ._ . - 127 ; '• " tention is that that reciprocal legislation is not special at all but is gen- eral. It says " all vessels." The Court. The vessels of the United States that formerly hiid been excluded from our ports may enter to do whatT To export the produc- tions of this country and import tho productions of their country t Mr. Meaoheb. if your lordship will ta?(e my point, what I submit is tliJH : Assuming that the treaty went as far as my learned friend con- tended it did, that this subsequent legislation brought into efi'ect by virtue of the proclamation of tbe President on the one side and the uitler in council on the other made it legal for American llshiiig vessels to (!ome into our ports for the purpose of getting ordinary supplies. I siiy there is nothing in that reciprocal legislation which makes any dis- tiii(;tion between fishing and trading vessels. It refers to all vessels. Prior to the passage of the act, sixth of George IV, which is the one under which the order in council was made in 1830, the United States le^fislation discriminated between fishing and trading vessels but neither the British act nor the order in council makes any distinction between tliein. It refers to all vessels. If fishing vessels were intended to be excepted from that act it would have bci^n stated. It is true that a general statute ordinarily does not repeal an earlier special act but where there is no reservation, or exception, if the two are inconsistent ;is matter of course, the latter repeals the earlier statute. Now buying bait is an act of commerce and trading, and therefore I submit would fall within the protection given by the reciprocal legislation. The CouET. There is no question but that a schooner registered other than a fishing schooner has a right to come in. Mr. Meaoher. Suppose she filled both characters f The Court. She could not; they licensed her to trade but that does uot destroy her character as a fishing vessel. Mr. Meaoher. I called your lordship's attention a moment ago to section 4364 which provides for her obtaining from the collector the license to touch and trade. The Court. She would be forfeited in their own courts if she didn't obtain it. Mr. Meaohbr. Does she uot thereby acquire the character of a trad- ing vessel 1 Tbe Court. The agreement tbey made with us was that fishing ves- sels should not enter except for certain purposes, now can they, by mu- nicipal regulation of their own, authorize fishing vessels to trade and tiiereby practically annul that part of the treaty f Could their fishing vessels come in here and load with corn and potatoes and salt fish and take it away t Mr. Mbaobbh. That is the question we are discussing and I am con- tending that they can, iu the light of that section, if they have a permit to touch and trade. The Court. Then I do not see why the two countries should have occupied so much time in dealing with this treaty which would thereby bi) made absolutely null and void. Mr. Mbaghbb. 1 say a vessel in one aspect may be a fishing vessel and in another aspect she may lawfully touch and trade and thereby fall within the provisions of this reciprocal legislation. I iiave very little more to say. The argument 1 am making in this will apply to the Doughty case. Unless something new comes up I do Qot intend to say more. Prior to the adjudication in the case of the Niokerson I think I am safe in saying that there had been no case, certainly no contested oaso, 128 ill whiuii there liiul bpiiii a forfeiture decreed niinply for tlio pnrchiim^ of bait. Now, if I aiit rif^lit in that tlie paHHuge of the Ntatiite of 1808 con tniniii); thoHo wohIh that ha 8uid to have been enaeted in tlie light of previous deciMionn. I ndiiiit the principle that if deciHiouH iiave been niadu which gii'e to certain wordM a particuhir n)euiiing and ett'cut and tlie IcgiHhitnro of the name country wliere the decisions were given subsequently w«ed fhe same words it wouhl be a very strong circnmstance. The Court. I do not think Mr. (rrahani e.stabliHhed that proposition Hatisfactorily, that tiie subsequent legislation was in the light of this decision. Mr. Mkaoiiku. My argunient is this, that if there were no sucli casen then the act of 18(»S was not passed in that view and j'onr loidship would not be obliged to give it that interpretntion. Now, with respect to the question of intention, I have dealt with that to some extent bel'ore, bnt it seems to me that evidence of intention is admissible in a great many cases. Take the case of domicile, the pur pose or intention with which a man goes to reside in a foreign countrv. The time he is going to stay there and the intention in going there 'i» Hdmissible. In this case if the burden of proof is upon the vessel lu estiiblish her innocence it would be impossible for her to do so if she could not say where she was bound for and to what use they intended to put the bait. Now, as the argument has taken a somewhat wide range your lordship j will pardon me if I restate the points. ( 1 ) My contention is that the acts proved or which were admitted are not a violation, cither of the law, or the spirit of the treaty or the acts. The answer admits the purchaseof bait but not the purchase of ice; how- ever, that would make no difference because if one is legal the other is and if one was not the other would not be unless ice is to be considered hh water. (2) The buying of bait and ice under the circumstances wntly iiHeil fhe miine ilu'd tliiit ]iropo8itioi) in tlici light of this V were no Huch cases !W and yonr loidship ; have dealt with that d(!nt;e of intention is of domicile, the pur in a foreign country, on in going there \» is upon the vessel to ' her to do so if she lat nse they intended e range your lordship I ch were adniitted are he treaty or the acts, purchase of ice; how- is legal the other is | is to bu coiisidered as stances was not a pre- r acts and there is no j that the acts in qiieN- ' tishing within thoBC ] ave sustalnetl it; that iided for by the Crown il law and the recipro- 1 re lawful. Of course, atly expressed, that if ts in question the sub- make the act lawful; )itiug the purchase of | es the iwnalty of for n but these were the I Doughty there is any Qhase of bait. Apolo- j will submit the ciwe. 129 AUUUM^JNT I'OU TUK OBOWM IN UKVLY UV U. L. UUltUKN, g. O. Mr. ItoUDKN. If your lordship plenses, niM)n the point that the words " tor no other |)urpOHti whatever," it seems to me unnecessary to adopt any iuterpretatiuu other than the interpreUilion im|H>rteurchase of bait in Annapolis UaNin, to be used inside or outside the tliive mile limit, could be termed an exi.H)rtatiou of goods from the liiitish possessions to be carried to a foreigu couutry. I do not under- vstiind ni>on what principle these words could be extended so as to cover transactions of that kind. The learned counsijl says that it should have lecn ('Xi>ressly stated in the act of 1825 that ilshiug vessels wei-e ex- (hilled. Now I contend that it is not necessary, in order to exclude iliem, that they should have been mentioned, but on the contrary, if it was intended to include them they should have been mentioned, and tlic fact that the class of vessels which had been dealt with in the statute of 1813 was not mentioned is certainly the very best reason in till' world to show that thej' were not intended to be covered by the }ii-nerul expression in the statute of 18l.'0, which, on the very best con- struction my ieurued friend could put upon it, might and might not ia- chule these vessels. The statute of 1818 having expressly provided for ihi'ui, and the statute of 1825 not having provided for them, they would Ih' governeil by the i)rovisious of the former statute and not by the latter, unless expressly mentioned in it. And, as your lordship has ob- served from the argument of the learneroof under the Canadian act, my learned fiii'ud says, in the lirst pbce, that it does not relate to proceedings in tills court at all. Now, section 10 of the act of 18G8 follows sections 7, ">, and 9, which i)rovide for proceedings in this court. Section 7 says that any ])enalty or forfeiture under this act may be prosecuted and re- cu\ (>red in any court of vice-admiralty iu Canada. Section 8 provides that the judge of the court of vice-admiralty may, with the consent of the person seizing any goods, ship, vessel, or boat, • • • as for- 101 A 9 w \\U VM) ^ fuited under tliin tit-t, oi'dor tlu^ rcdi'livcry tlicrcof, on Nfcniity hy bond to be given by thu party, with two NMietieM, to the use of Her MiiJeHt.v, iind in eiiHe any {{oodtt, Hhip, veHHel, or Imai, or tiie taekle, riirein^, ap- parel, t'nrniliir«>, St oreH, and car^o »)> redelivered is eonneral (or Cuna tinit it doeH apply to proeeedin^H in thiH "ourtfbeeauHe it is found in the middle of HeetioiiH that apply to thiH eimrt. I did not underK*and the counNcI to what ]U'oeeedinK thiH Hection would apply. He Hpoki; about Home procee. If that is the case, then io what proceeding can this seetion in regard to tho burden of proof apply ! It evidently refers to legal pro<;eediii;,',s of some kind, and the party is here making liis claim now. This is what tbo statute inti^uds, and these are tho proceedings in respect to which the statute says the burden of proof sliull be on the claimant. Now, my learned friend cited some sections of the customs act whi<;b nre in ditfcrent terms from section 10 in this act. I do not see that any argument can be successfully made from the fact that another act ex- ]>resse8 tho same idea in other words or greater number of words. The sole questiou before your lordship is whether or not the words iu sec- tion 10, upon a reasonable construction thereof, have tho meaning which we claim for them ; and if they do admit of such n meaning it amounts to nothing that tho words in other acts are fiamed ditt'erontly. (Juuece!:* sary words may l>e used in another act, but that is no reason why tlie words iu this act should not bare the ordinary and plain meaidng which attaches to them. Your lordship will see that the words here are ]K>r- fectly plaiu; none could be plainer. ^^In case a dispute arises as to whether any seizure lias or has not been legally made, or as to whether the person seizing was or was not authorized to seize under this act, oral evidence may be heard thereupon, and tho burden of proving the illegal- ity of tho seizure shall be upon the owner or claimant." Then my learned friend took the point that as there were pleadinjiH iu this case tho Crown had assumed tho burden of proof. I iiiiy pciDilty 01' Diir lonlHliip tliiit it . foiiiMi ill i1h> iiiiildit' crKMiiMl t\w coiiiiNti .« N|iok() about Hoiiii' • the pnrpoHn of en- I lliitl no proviHioii any prHliininiiry in 'riii'io in nothing to » claim. VVIieii pro ■u i.s no prcliininui'.v 4 far HH 1 am awaro. liH Hcc.tion in regard to legal proroof. I do not iiii littereuce one way or g, that if there were Hithem; and if there it there are pleadings or the other. That atute upon any ques •ity for it. section 10 as being ;ued upon this point sary for me to go over lerican act gives the .8 to the sea-coast and | it because the parlia meat of tint Dominion of Canada might make unreasonable regiilationN or reRtrictions, therefore it had no right to makt any whatever. Mr. Mf.aoiikr. I went further, and said the powi r was not given them lit all to make any. Mr. ItouDBN. It is simply » qiiestion of tli<^ jiirisdietion of parlia- ment, i'arliametit has the power t«> legislate in regard to the s(>a-coast and inland tlsheries, and under this treaty the right is reservetl tonuike irstrictions or regulations respeect to the burden of proof iu all forfeiture cases, and my learned friend should come here and say that it was iu violation of the provisions of the treaty, as il is for him to say that this particular clause in this particular statute is a violatiou of the treaty and beyond the power of Parliament to make. It would be quite as reasonable to say that the statute res])ccting for- i'oitures is a restriction as to say that this section is a restriction. The statute provides for forfeiture for the purpose of carrying out the treaty, and provides the mode of procedure for tbo puri>ose of carrying out the tioaty ; and if the latter can bo called a. restriction and invalid on that Krouud, then my learned friend could argue that the provisions iu re- yard to forfeiture are invalid on that ac«ount. Of course, the statute as to forfeiture is ^ disadvantage to the Americans, because without it tlieir vessels could not be condemned at all ; but it is a procedure that \v(! adopt in regard to our own citizens under the customs act and in- land-revenue act, and which the United States have enacted in regard to their own citizens, and a provision that the English Parliament have made use of under the revenue laws. Now, my lord, we say iu regard to this provision that it is not a re- striction under the treaty at all. It is simply a matter of procedure in our own courts, simply a matter of evidence in respect to which the fishermen of the United States have no more right to complain than iliey have of the fact that we have any procedni-e at all. They might 3* 132 . ' ♦ as well say that we have uo right to have any procedure iu oar oonrts at all as to say that we have uo right to provide tor or limit our own procedure. I take it that it can not be denied that our legislature has the right to control the procedure in our own courts, and if this is procedure, as I contend it is, then, certainly, it is not a matter which the learned coun- sel can attack here on the ground that the act is ultra vim. It is a provision which has been in force iu this province for more than fifty years, and so far as I am aware this is the first time tbac its validity has ever been questioned. At all events I do not know of any case. I wish to touch very briefly u[)ou the question of fishing by the cap- tain of this vessel through his agent, as wo contend, Taylor. Suppose the mast«r should come up the Annapolis Basin and build a weir and catch fish in it; I do not think there could be much doubt but that would be fishing within the meaning of the act. Then take the case of his coming up and hiring one of the weirs for a night and getting fish in it; it does not seem that there could be much doubt but that would be a fishing within the moaning of the act. Your lordship will see the distinction, if there is any, between what whs done in this case a^d that case. The captain asks this man to set his uets that night, and agrees that he shall be remunerated in proportion to the catch. The civilians held that aa expectation dependent on a chance may he Hold, and the illuiitratiou aHually given is that of the tisheruian who ntrrces to sell a catit of his nets for n given price ; and this is adoitted hy Mr. Story. The illustratJon is i»erha|t8 not very well chosen. The case Hnppos8 hiDi' money to throw a cast of his net for the benefit of tliat person, the coutniot is iu its nature an employment of the fisheraian for hire. If the contract were that the tisherinan should throw his net for a week or a uionth, at a certain snm per week or mouth, and that the catch should belong to him who paid the money, no one would call this a contract by the fisherman for the sale of his catch, but a contract of hire of his labor in lishing for au employer. It is po more a contract of sale when he is paid by the job or piece for a siugle cast than wb u he is paid by the uiopth for all his casts. (Beujamin on Sales, page H7, third American edition.) So, we contend that this was a bargain and sale of goods or it must bo work or labor. That if it is not a bargain and sale of goods, then it must be work and labor; and if it is work and labor, it can only be con- sidered work and labor done by Taylor and Keeue for their principal, the captain, who is fishing just as much as if he cast the net with bis own hands and procured the fish. My learned friend took the point in regard to the pleadings on this subject that it should have been charged that it was done by the agent. I do not think it is the practice, nor is it necessary, in suing for work and labor to set out by whom the work was done. If I should contract today to work on a house and should bring an .ictionfor the work and labor done, and it should turn oift on proof that the work was done by my servants, I do not think it would be a valid objection that I had not set it out in the writ. I could prove that the work was done by my servants or agents as well as myself. Then as to the question of intention to fish in prohibited waters. Your lordship will see that we have these elements ; we have, in the first place, the bait that could be used for the purpose and the evident intention of using it for the purpose of fishing ; we have the opportu- nity to fish within the three-mile limit ; we have the fact that the vessel was a fishing-vessel, and the fact of the concealment of her identity ; we have the fact of the untrue replies given by the captain iu regard to the bait, and his statement that it was ten days old, and that he bad r#' lure iu our courts or limit our own [e haa tbo right to is procedure, as I thQ learued coun- \ltra vins. It is a >or more than fifty e that its validity low of any case, shing by the cap- Taylor. Suppose build a weir and ih doubt but that hen take the case nighc and getting ich doubt but that Your lordship will IS done in this case s uets that night, on to the catch. ce may be Hold.nnd the to sell a ctuit of his uets iHtratJou is i>«rhu)t8 uut xnd l»l)ur done than of i. c, his not. Whnt w If a third person givt-s ersou, the coutnict is in contract were that the ertain sum per week or nouey, uo one would call a contract of hire of his sale when he is paid by a luoQth for all his casts. of goods or it must iale of goods, then it r, it can only be con- t for their principal, :ast the net with his he pleadings on this IS done by the agent, •y, in suing for work If I should contract ion for the work and le work was done by iction that I had uot »rk wtis done by my 1 prohibited waters. its ; we have, in the >o8e and the evident 'e have the opportu- 9 fact that the vessel ent of her identity; captain in regard tu old, and that he- bad ;i'.s>cM«.a^r^UK.uf)p)«y|PiW»'-*^(nnM1 phrase of locality, :)rds all in the same difying words indic- )t according to the to be assumed that tes to them and not equ ires three words, it might be ex.- )out it. My learned he words ng within the three- nerican vessel came ouUl that act aloue Mr. ItORUKN. In the first place the vessel would have no right to <■ liter. The Court. I am putting it very strong in your favor that both were violating the tri'aty — that is, they came in here for an illegal iturpose, \vlii(-li is iH^tter for you as far as this proposition is concerned, ami what 1 am asking you is whether that act alone would be a '' preparing to lish^ under the statute? Mr. BoRDKN. I think if she purchased bait for the purpose of fishing it would bo a " preparing to fish." The Court. I am assuming that her bait was all gone and that she would have to dejnirt or go home if she did not procure a supply. Mr. UoUDEN. If she got it for the purpose of fishing I think it would Uc a "preparing to fish" within the terms of the statute. I was just stating that the argument of ray learned friend requires that these words, •' witlihi such distance of such coasts, bays, and harbors," shall be re- pt'ated twice or else it seems a very extraordinary construction of the statute shall ensue. Otherwise a preparation outside to fish inside would be an ofi'ense under the titatute and I do not think that would be a reasonable construction. Unless my learned friend repeats the words twice, and 1 see no reason why they should be, then he is driven to this: that a preparation outside or iu their own harbors or outside of the three-mile limit for the purpose of fishing within the prohibited waters would be an offense against this statute. Now, as to the contention of my learned friend that it is solely a ques- tion of what the party intends to do with the bait, it seems to me that that is a construction which Parliament never intended. If his conten- tion is correct it depends upon the intention of the party while he is making his preparation ; if he intends to use it iu prohibited waters it is an offense, and if be intends to use it without it is not an offense. The Court. You say it is an offense either way. Mr. Meagher says it is not an offense if he intends to use it outside. If he is right ip point of law, surely he ought to be allowed to show v/ith what intention the bait was procured. Bis intention would not come in at all if your view of the law is correct. Mr. BoBDEN. The intention does not come in at all; it is the overt act. He says it depends on the intention. Suppose a man is making jireparation to fish in the harbor. We say that is the offense, whether he is going to fish inside or outside. My learned friend says that is not .su,that it depends upon his intention. Now, what would be the resultf The result would be that th.it clause in the statute would be utterly useless and meaningless. He may have 120 particular intention about it. Suppose he has no iuteutiou at all, or in the course of his prejiara- tion he has the intention to fish inside and then changes it and intends to fish outside? He may change his mind a dozen time& within the course of his preparation. The CoUKT. Assuming that if he intended to fish outside it is not an )flense against the statute, then he never commits an offense by buying bait or preparing to fish whiin inside, and the offense is never com- pleted until he depai-ts from his intention and fishes inside. Mr. Borden. Then the words would have no meaning at all, because lie would never actually commit the offense until he fishes, and that is " fishing." The words must have some meaning or the legislature would not have used them, but my learned friend's construction makes tiiem without any object or meaning whatever, because it would be a liiedtion of intention within the party's own mind, which could not be tixed in any way until he committed some overt act, and that would be fishing itself, which has already been provided for. ^ h 136 . , Now, toy lord, 1 tbiiik it will be asMumed tbat the legislature endeav- ored to deal with acts and uot with intentions, and all the legislat- ure would be dealing with, if my learned friend's contention is correct, wonid be with intentions, because wuen the intention becomes an act that is already provided for. The Court. It seems to me you cannot escape a contemplation nf the intention, if it would be no oflense to procmre bait and prepare to lish in British waters, to fish outside of British waters. Jf' that would be no oflfiDse, then surely you must entertain the inteiitiou with which the party does the act. Mr. Borden. My i)oint is, thsit the legislature was uot dealing with the intention as the main point at all, but the legislature was dealioi^ with the act of preparing to fish. The Court. If the meaning be as contended for by the other side, then preparing in British waters to Ash outside prohibited waters is au innocent act, which the party has a right to do, and surely, then, whether the act was performed with the purpose of fishing in British waters or out of British waters, is a question of intention to be proved, and which can be proved by the conduct and acts of the party. Mr. Borden. Then the whole thing comes down to a question of in- tention witbi.i the party's own mind, which could not be proved, as he might change it a dozen times, and when he came to manifest the in- tention by an overt act, that would be fishing itself, already provided for, and therefore we must assume that the legislature meant some- thing more than that; that they referred lo "preparation," and were not lit to enter for four purposes only, and I think it would be a fair construction of the statute to assume that they intended to cover preparations to fish anywhere. The words " preparing to fish," acconling to onr con^trac tion, may not cover everything outside of wood, water, repairs, am shelter, but we contend that it would cover all such preparations as would be an object for onr own fishermen to have a prohibition in re- spect thereto. The words "preparing to fish," if they have the mean- ing we contend for, would probably cover the greater part of the objects for wiiich American <)8liermeu could enter, irrespective of these fourob jects that they have a right to enter for. I think it should be nssume( tbat the legislature, having giv^n them the right to enter for these four purposes, in using the words " preparing to fish" endeavored to cover all such purposes, outside of these that I have mentioned, as would reasonably be intended by a broad construction of these words. I do not see any reason why they should be limited, because the Americans have only the right to enter for the four purposes, and that is one reason for the broad construction- 1 ask to be given to it. My learned friend also argued that the pnrcbsvse of bait within the harbors would come within the term of repairing damages in the pro- viso. The Court. So fur as I am concerned, you need not take time to dis- cuss that, for I am not with Mr. Meagher on that point. Mr. Borden. Then, if your lordship pleases, I have nothing more tc 8av. legislatare etideav irt all tli« legislttt. 3ntention is correct, ^lon becomes an act a contemplation of I bait and prepare to -ters. Jf that woald Intention with which ras not dealing with lislnture was dealing; >r by the other side, >hibited waters is au sarelj', then, whether British waters or proved, and which to a* question of in not be proved, as he le to manifest the in- lelf, already provided ;i8laturo meant some- eparation," and were 18 wonld result if my emleavoi-ed to point Jt be changed a great >nlecial commissioner for that purpose ap- pointed by an order of this honorable coart, dated the flfth day of March, A. D. 1887. Donald McBitohie sworn. Ex. by Mr. Borden side is My occupation is fishing and farming ; am 53 yrs. of age, and resi iit Eel cove, St. Ann's, across the harbor from Englisbtown. It marked Smith's cove on the chart " W. W. M." I have been going to sea at various times, and commenced iishing about 30 years ago; been iisbing more or less over since. During the last four years I have been tishing. In the spring of the year we fish for spring herring. We com- mence fishing for them when the ice gets clear, generally about the first of May, but some years later. We catch them with nets in St. Ann's harbor and in St. Ann's bay. St. Ann's harbor, opposite to Englishtown, is about one mile wide, and farther up it is wider ; in its widest part it is between 3 and 4 miles wide. There is a narrow outlet from the har- bor into St. Ann's bay. The ontlet is not more than a quarter mile wide. St. Ann's bay, from the harbor out, gradually widens till near the outer part of it; at the outer part of it, from Cape Dauphin to Indian Brook bay, it is about 4 miles wide. Spring herring is generally salted down for home use, and is also sold for bait ; very few go to market. When I speak about bait, I mean bait for codfish. I do not know anything about herring being used for halibut bait. I saw the JSlla M. Doughty in May, 188G, and I remember the day she was seized ; it was on a Monday, and I can not say what day of the month it was, but it would be somewhere about the middle of the month. I first saw her on the Tuesday before she was seized as she was coming in St. Ann's bay. She came in and anchored about half a mile outside of the entrance to the harbor ; she anchored there in the afternoon of Tuesday. . The first time I boarded her was on the follow- ing day, Wednesday morning. I went out to her in a boat, and I had herring with me which 1 caught that same morning at Smith's cove, close to where I live. I asked the captain if he wanted to buy any her- ring for bait, and he answered that ho wanted a very few barrels, just enough to bait his trawls once. I told him I would sell him herring for 25 cents per hundred ; then he said he wonld buy them. After I made the bargain with him he told me to drop the boat around to the outside of his vessel, and that wonld take fish from that side. I dropped the boat around to the out- side of the vessel, counted out the herring into baskets, and handed them up on board, and the captain then paid me the amount due me. There were IMH) herring, more or less. 1 had some conversation with the captain. He told me that he had been into Sydney harbor and that he had a permit from his Government to touch and trade in any foreign. •port ; that lie went to tbo cuRtom-house in North Sj'dney and then' they told liiiu his permit was no good, and he allowed that the custom houK<> otliccrs down there did not nnderstaud the matter between the two <}overnnients. He said ho had been on the Western banks and eould not get any halibut, but was going to try lishing down by St. Pauls. 1 was on board for nearly an hour, or something less than an hoiii Aboutth(! time I was going to leave the vessel another boat came along side with Donald Mcliines, D. J. McAskill, and Donald John Morrison on board. They commenced hoisting the mainsail on the vessel just as I was leaving, but 1 conld not say exactly how long after that she started to go away. 1 don't think it was verj' long. The wind that out in that kind of ice. I know that tlie vessel was seized only iVom what other i)eople have tohl tno. f did not know any of the men I met on shore, and I had never seen any of them beft)re; they were travel ing abont oti shore, and were sailors lielonging to the vessel. TORQUEIL McLKAN. Signed and sworn at Halifax, in the county of Halifax, this 17th day of March, A. U. 1887, before me. W. W. MoLkllan, Commiamoner, etc. Malcolm McDonald sworn. Ex. by Mr. Bordkn^ I reside at Knglishtown. I saw the Ella M. Doughty on tbe evening of a Tuesday in the Kpring of 1880. She was in St. Ann's harbor and bay troni Tue8r wtiy iit tlie en triinco (»r tli<^ liat-hor. MorrJNOii and MfAMkell Wt>r« with me un that occiiMioii. Wo had horiiii); with iih in our boat. Wo wont on hanl, and tlion thoy would rotnrn. Thoy bought tho (Uh, about tliroo barrolH, and paid um tliroo dollarN lor thorn. Tho Iioumo in which 1 wan living at the tiino in about onohalf niilo outride Mio «;ntrnnco .o house in which 1 wan Ntayini;. Whoii thoy a};rood to tako tite bait on tho last art in the conversation with them, but I can not say who did the most talking' with them. I wont with them about a half a mile, and was talking with them during that time in the English language. I did my businoHS with the vessel in tho Knglish language. ["As 1 can understand more than I can speak." This lust was spoken by the witness in explanation, but objected to by Mr. Mestgher.] Tho crew «lid not say they came on shore for tho purpose of seeing McAKkell's grave, but that was the first sub- ject about which they began talking when we met them. It was on) Tuesday. 1 remember that it was Tuesday because I came from niyj own bouse on Monday, and the next day would be Tuesday. I do not I rememl»er it from talking to Mr. Miit;ht theflnh, ahniit The houHe in which «i^ that was the flrst sub- net them. It was on ause I came from my be Tu«*sday. I do not le rest of the men who e that I was on boanl se all ut the centre of Itch ; now I think the ere being taken out of I barrel on the deck of here is ice in the bay, ivith lines when theio i\Ir. Borden objects to lid not say what Mr. [r. Meagher refuses t& tuess. 143 Mr. Dorden undertakes to make nu further objection without Arst iiskiog the witness to retire.) ' DONAM) X MrlNNKH. mark. Signed and sworn at Halifax, in the county of Halifax, this eight tenth day of March, A. I). 1K87, the contents having lieen Hrst read over and explained to the said Donald Mclnnes in the(hielic language Uy Daniel McLennan, of Halifax, who tirst was duly sworn to interpret the same before me. W. VV. McLellan, CommiaHioner, etc. DONAI.l) J. MOKKIHON swoni. Kxamined by Mr. lioiiOKN: I live in EnglishtoAvn ; saw the Ella M. Doughty in the month of May, 188j^ y^^A^}■li'i\Ji^■Vi^ 14 w« went on iMHtril WodnetMluy tu twit iM>me horrin^ tbt\v told um tli«>.v woultl buy hoiiio, himI tlicy ditl ho. When we got a piuco i'roiu tlie uliom tlicy took tlit^ licri'inK on board, >in«l at that time wu wcra puMt our own place. We liuil puiutiMl it about a half milu. That morning wu biul about tliiru baiT(>lH (»t' lierriiiK niort) or Iomm, and wo received tor tbciii ono dollar <>acli in Amciiican niotx^y. VVbcn we w«^ut ou tbo vt^ssel ulu^ went out Hunit' diHtanco witb uh, then rounded up and tai;k4Ml iutoaborn and let um oH'; tlicu hIi« went out. We did not leave tbu veHMel oppu- Mite our own place becauHt^ tbo captain told um not to leave until lie couhl {;ut tlie herring, lie did not take them then because he did not liko the people on Hliore to Nee him doin^; ho. After the vensel wun HciKed Hhe wun anchored otf the custom hoiiHe oiUco at En^liHhlown, and Hhe remained tlier(> for about a uiuntli or two after that. We (;au|{lit the llMlt that we Hold the Hccond tinuM)n the Hanie morning that wuhoM tbeni. On the llrNt morninf; we had fourteen hundred herring nil told. CroHH-exauuned by Mr. MKAdiiKU: We all made the barKuitiH with tlieiu for the titth. When we wentoii board the Heex>nd time we told them we bad herring for Hale and wanted to know if they would buy them. Ou the ttrnt occanion I made the bar- gain for my Hharu of the IIhIi, and Mclnnen and McAHkell did the satue. I can not read ICnglinh. I wan not present when the vessel waii Ht'ized, and I only know that nhe waH neized by what otberM told me. Wo had no trouble in making the bargain for the ilMb, au the captain put tbo i>rice on them and wo ac^cepted it. That is about, all that was Haiti. When we went on board the second time the vesnel was und herrings nil told. WliiMi \v« went on for Hale u lid wanted sion I mode tbo har- Aukell did tbesuiuc. le vesKtel wuh Hoized, old ui(>. Wo had no aptuiii put tbo price at was Haid. Wbcu juder way goini; out lH8t and Hailed out bin } J. X MOIIKISON. iiiiirk. Iilifas, thin eighteenth V. MoLkllan, Cowimmioner, etc. jf St. Auu'h Harbor. In tbo bay and bar- lid, Halnion, haddock, commences about the Tbo cod fishing com- lied in St. Ann's Bay lick, bake, and squid, rts of the bay withiu larbor of St. Ann's is I widest part is about 3wdy Point across the ast. 1 saw schooner tr a month. Uemeu- e was seized. After red opposite the cus- rheu lying there an- ehored mIiu was over a mile from my plam^ and 1 eoiild not He«« her fioiii my lioune. She was sei/.ed on Monthly about the middle of the iiionth of May, in the year IHH<{. When I llrst saw her it was on the TiieHday before she wasseizetl. She was theiieomiiig up the buy. Hheaiiehored oiitsiut^ the entrance to the harbor. Saw some of hi>r crew at KngllMli- town that evening. We were just lM>giiiniiig to IIkIi at that time for herring, and we set our nets that evening. Donald Mcliines, Donald .1. Morrison, and myself settbe nets. The thret^ of us started the next morning to take up the nets, (lot alnrnt fourteen hundred herring and started home with tlieiii. In order to get home we would have to go through the entran(;e to the harbor. (Jii our way home a dory left tbo schooner and met us between the eiitrayce4<» the harbor and where we intended to land. The men in the dory asked us if we had any herring that morning. We said yes. They tnld us to land at the next |)oint, and that they would land above and would seiitl (uie of their men down to our boat, and he could go back again to let them know when we would be ready to go out to the vessel. We landed, and they landed above where we did, within a quarter of a mile from us. A man came out a iialf mile below my place. The vessel stood out the bay after that. Afterwards, tbo same evening, I saw her coming in ; and she was anchored in the harbor between that time and the time she was seized. I do not remember of seeing her go out on Friday or Saturday, but she might have done so for all I know. When we left her the first day she was getting under way to go out. 104 A 10 'dS K"j; ' ^!;%J|i^ 146 CrosR-examiaed by Mr. Meaoheb : Donald Mclnnes at that time was living with D. J. MorriHon, aboat three hundred yards below our place. When the ice is in the lower end of the bti.y we sometime-^ fish in the upper end. It is a rare thing to catch halibut in St. Ann's bay, bnt I have seen some caa'^ht there. 1 have sailed out of the bay, but not very far. The general fishing- grounds are outside of Cowdy point and Island point, but they some- times fish inside. They usually fish outside as far as five or six miles beyond Cape Dauphin. The cud-fishing had not begun at the time the vessel came there. It was somewhat late last year on account of ice. They did not do much at cod-fishing last year before the first of June. Only one man came ashore to us from the dory. The vessel was under way when we overtook her on the second occasion. We left the vessel that morning abouX a half mile below my place; when I was speaking of distances 1 was giving but a rough guess. The vessel was pretty near in tbe middle of the bay when going out. Dan. G. MoAskell. Signed and sworn at IIalifax,in the county of Halifax, this eighteenth day of March, A. 1). 1887. Before me, W. W. McLellan, Commissioner, etc. Adjourned till two p. m. , , Besuined. Angus McLeod sworn. Friday, March 18Ti account of ice. J the first of June. Ivessel was under ^e left the vessel In I was speaking (vessel was pretty G. MOASKELL. »x, this eighteenth yioLELLAN, ommiasioner, etc. ith,lS87—2 p. m. [a, C. B. Saw the ith of May, 1886; I's bay about a half »rd of her on Tires- of her crew, aJbd a 11 who represented [liu face, dark skin^ in height ; can not 'hen he said that he I cabin. He told uie ed States signed by 5 two Governments y would not allow t the custom-house. 1 the forecastle and ing bait there, and ere was danger, be- n about his duties^ 1 be seized immedi- and that he would It any fish. There took place between there about three faably two or three isel, and she bailed 147 4. i rt. - Cross-examined by Mr. Meaoheu : I am no relation to Mr. McAnlay. The name of my vessel was the Lady Franklin. 1 did not see the IJlla M. Douyhty go in the harbor, f left there on the seventeenth or eighteenth of May. 1 went on board of her merely on a visit. I told the collector of customs about this con- \crsaton when I was questioned about it some time after I came back from Saint Pierre, a long while after the vessel was seized. He was not the first person I spoke to al>out the conversation. 1 mentioned it to some parties, and they might have told him. I do not know how the collector of customs knew that I was on board of the vessel. I told my own crew about this conversation at the time that I heard that the ves- sel had been seized and 1 spoke to no one about it from the time it took place till the time when the vessel was seized, l said afterwards that 1 told the poor fellow to look out for himself; I told my crew that. I «lo not remember the name of any place Miiero he said they would not allow him to buy bait, 1 believe he said he was in to Sydney. He told me that he had a permit and that he thought that he could not buy bait because others were not al'owed to do so; 1 would not undertake to .swear that he tohl me thi they would not allow him to buy bait. 1 was about three quarters of an hour on board the vessel. 1 had not seen him before nor have I seen him since. I do not know who gave the information to the collector ; I never heard and 1 never made it my business. Angus MoLeod. Signed gnd sworn at Halifax, in the county of Halifax, this eight- eenth day of March, A. D. 1887. Before me, W. W. McLellan, Commissioner, etc. Donald MoAULAY sworn. Ex. by Mr. Borden : I reside at Englishtowu, in C. B. My position there is sub-collector of customs. Have been acting as such for 10 or 11 years. I first saw the schooner on the 11th May, 1886. When I saw her she was about coming to anchor outside the lighthouse in St. Ann's bay. I could see her from my own house, and 1 saw her all that evening. I seized the vessel after that on the 17th May, 1886, and at that time she was in the harbor on the north side. I saw her every day between the Tues- day when I first saw her and the Monday when I seized her. I saw her on Wednesday going out, and I saw her on Thursday, Friday, Sat- urday, and Sunday. I did not see the captain or any of the crew be- tween the 11th and the 17th of May. I heard people speaking about her on the Saturday before she was seized. 1 generally go on board of overy vessel that comes in, and I went on boanl of this one on Monday. When I went on board I asked the captain to show me his papers, and he did so. I asked him why he did not report, and he said he did not think there was any need to report. I asked him if he did not buy bait, and he did not say whether he did or not. I then asked him to .show me the bait that he had bought. He told one of the crew to go with me and show me the bait. We went to the bait, which was in the liold of the vessel put down in ice in a place built for it — a place which we call the kench. I looked at the bait and handled it. It was herring bait, and in a fresh condition, just as it came out of the nets. The fish were not opened. After that I went to the cabin and told the captain 148 ; ;l f"i' that I thought it was vory struiigo that iiu had not reported. Theu he presented his permit, aud said he had a right to toach and trade all aroiiDd the bay, and to buy bait, or soiuethiiig.Iike that. lam uot sure as to the exact words. 1 then told him that 1 wouhl have to seize his vessel. He did not say much about that, and I ran not remember ex- actly what he did say. We then went on deck. Mr. Duncan McLeod, the preventive officer, went on board with me. I put what we call the broad "arrow "on her main-mast, after which 1 took the captain'^< papers and went on shore, leaving the vessel in the charge oi" the pre- ventive officer, Mr. McLeod. 1 then telegraphed to Mr. Campbell, the collector in Baddeck, about the matter. I was on baaru of her again that day in the evening. 1 saw all the crew on board that time and Mr. McLeod was still there. I remained on board for an hour or two, and theu 1 left Mr. McLeod and two other men, whose names I have forgot- ten, in charge of the vessel. The two men went on board that evening and 1 left them there. I saw Mr. Campbell, the collector, on the same day of the seizure, but he did not go on board. A day or two after the vessel was seized she was taken over to the other side of the harbor, and 1 was on board of her wh'-u she was taken across. Mr. McLeod, Dan. McKay, William Sellon, and Murdock McKitchie, were also on board at the time, and that is all whom I can recollect. We took her to the Englishtown side opposite to the custom-house. I had somebody in charge of her all the time up to the time when we took her across. After she was taken across I had men in charge of her working under my orders all the time she was in there. We stripped her the next day after taking her over. I had instructions from Mr. Campbell to strip her. She remained there until she was released, on or about the 28th tlune, 188G. I made copies of the documents which the captain handed to me — wrote them myself from the originals. I comjjared them with the originals. I state that papers " W. W. M. 2 " are true copies. The captain and crew remained in the vessel until the following Sunday after she was seized, and they all left her on Sunday and some of them left on Saturday and left the place altogether. 1 saw the captain nearly every day after she was seized. Cross-examined by Mr. Meaoheb : Question. How far does your jurisdiction extendi (Objected to by Mr. Borden.) Answer. St. Ann's is supposed to be my port. Question. If a vessel came inside of a line drawn across from Island point to Cowdy point, would she be obliged to enter? (Objected to by Mr. Borden.) Answer. 1 do not knew. Question. Would you. consider that she would be within your juris- diction f ' , (Objected to.) .' Answer. I do not know. . Question. If a vessel came in from Boston and anchored inside the line druwufrom Cowdy point to Island point and commenced to land goods without entering at the custom-house, what would you do ? Answer. I would act according to \&w and seize her. I think my jurisdiction extends to Monroe b'^ac?-. Qu'^stion. Wliat is the area of the port of St. Ann's in relation to the custom-house ? Answer. I do not know ; it would extend over the whole of the bay and harbor of St. Ann's. I have been in the habit of exercising my irted. Tlieu be h ami trade all I am uot sure ve to seize bis t remember ex- )uii<;aii McLeod, bat we call tbe |)k tbe captaiu'ts arpe oi" tbe pre- T. Campbell, tbe lu of ber agaiu bat time and Mr. lOur or two, aud es I bave tbrgot- )ard tbat eveniiij; itor, ou tbe same or two after tbe lie of tbe barl)or, IS. Mr. Mcljeod, lie, were also ou it. We took her I bad somebody took ber across. ir working uuder ber tbe uext day Campbell to strip or about tbe 28tb le captain banded npared tbem with true copies. Tbe following Sunday and some of tbem tbe captain nearly across from Island within your juris- )red inside tbe line iced to land goods lu do ? her. I think my I in relation to the > whole of the bay of exercising my r Af mrn a r mi . i vVM es' ja^m tam- fi flf^fStfWfSSfSSi , ■■•; 149 ^■/-.'■^■•■^/.'■■^' ,:..; ,■'•... ;. duties all over that bay and harbor. Ou the outside uf the harbor the shore is settled on tbe south side, down as far as two or three miles, and on tbe north side it is settled as far as Cape Smt)key. I know Mr. Morrison's place and it is settled beU)w tbat as far as a mile at least. When I tirst saw tbe vessel I did not know that she was an American ship. I flrst heard tbat she was an American vessel un tbe day thai/ she came in. I did not board her for nearly a week after that; and 1 did not send any messenger to ber. American fishing vessels bave gone into the bay and harbor of St. Ann's, and some iiave entered at tbe customhouse and some bave not. » > ^. i.i. (Objected to by Mr. Borden.) During the last 11 years those that did uot report were in the minor- ity. I seized this vessel on the charge that she did uot report and tbat she bad bought bait ; she was seized on both charges. Question. What did you say in your telegi'am to Mr. Campbell ? (Objected to by Mr. Borden.) Answer. I forget the words, but tbe substance wsis that she was seized. I think 1 said that I had seized tbe vessel for buying bait, but 1 am not sure. Question. IIow many vessels had you seized before in your district? Answer. This was the second American vessel. The first one was a trading vessel seized some >ears ago, but she was allowed to go imme- diately afterwards. This was the first fishing vessel that I had ever seized. Question. When did you first receive instructions to seize American fishing vessels tbat come into tbe bay and harbor of St. Ann's without reporting at tbe custom-house ? ^'. (Objected to by Mr. Borden.) Answer. I decline to answer that question, because I am uot bound to answer it. I acted on instructious received all along. Question. Did you receive any instructions during the year 1886 to seize American fisbirig vessels coming into the bay or harbor and uot reporting f (Mr. Borden here interposes and asks tbe witness whether the in- structions which be received were in writing, and tbe witness states tbat all his instructions were in print. Mr. Borden now objects to Mr. Meagher's question on the ground that it involves the contents of a written document.) Answer. 1 do not recollect whether I did or not. Question. Will you swear tbat you did uot? Auswer. I do not recollect. I do not think I received any instructions about seizing American vessels any more than anj' other vessels. Question. Did you have any iustructions in May, 188G, to seize Amer- ican fishing vessels for uot reporting ? (All this is objected to by Mr. Borden.) Answer. I do not think I bad. Question. How is it that you seized this vessel for not reporting aud you did not seiTie other American vessels which came in there during the previous 11 years and which did not report ? Auswer. I 'Seizeil ber for trading and not reporting because I thought tbat she was the first vessel that had made a breach of tbe law in uot reporting. I know tbat during the last eleven years American vessels came in there aud did uot report aud I did not seize them. Previous to this they had the privilege of going in and out. Since the expiration of the treaty I have not received any instructions with reference to seizing American vessels for not reporting. The flrst person who told mmm WW It :,. . 150 me that the vessel bougbt bait was the captain himself, aud information abont ber previous to my boarding her. Question. Wei-e you told that she had bought bait before boarded her? Answer. I heard the boys speaking about it, but that is all the information I had about the matter. I saw her every day between Tuesday an was in balf and three it was the same seen there from ll me tbat be did lot. My memory McLeod is ali [rence to me bon " W. W. M. 2 " ot recollect who • and the first of harbor. In the need to report. sked him why he rt the same day fiu myself, and it ud on which you tis it was written tated it was for There are a few . I have beard mt I would not rried on in En- sKeuze Bowell in she bought bait Wednes. We got about seven or eight miles on our way to the Banks that day, when, on account of the ice, we had to put back ; then we w<)nt up into the harbor of St. Ann's. It was raining when we got back and the wind canted out. We next left there on Thursday morniug early for St. Paul banks. We got as far as Bird island on that occasion. Wo went as far as we could get for the ice ; then the wind died away and we layetl there. The ice was heavy. We remained there till nearly night wiien a breeze sprang up from about east-northeast; wo then ra:i buitk into the harbor and arrived there just before night. NL*xt morning there was ice in the harbor — coming in all the timi^ In conseiiuenie of the ice we had to shifc over to the northern side of the harbor. We did uot attempt to go out between that time and the time we were seized, because we couhl not get out for the ice. A voyage of that kuid usu- ally lasts three or four weeks. We usually remain on the Banks trawl- ing about two weeks. On these trawling voyages wo use herring, mackerel, and other kinds of fish for bait. We took herring for bait on that voyage, about ten thousand in quantity. From Ave to fifteen or twenty barrels would be sufficient for an ordinary voyage of that kinld him I would itiou I bad with 1 side. He first , because it wa» me of the dorys- ' twelve barrels- ^IlKt', ■V •>'^ ■•■/-•■ 153 \:^<'r ' of bait ou Wednesday and Thursday. The day that the man came on board, and the day following, 1 bought the bait from different parties. Before getting under way on Thursday morning I had not bought any bait. When the boat first came to us that moruing we were going ont through the harbor intothe bay. The boats made fast to me. I did not take the bait from them as soon as they came alongside, because as I told them, 1 had no money to buy bait and I could not jiay them what they asked. 1 afterwards bought the bait and I got the money from the crew. The boats continued with me before I took the bait for about a half mile from the entrauce to the harbor. The harbor is settled ou both sides. • Question. Did you give any reason to any person at that time why you did not take the bait then T Answer. No. From the time we started on that occasion when they made fast to us, we were obliged to tack across to the eastern side of the bay going out. We left them oft" of our vessel while we were on the tack. They went on shore on the southeast side of the bay. Question. Some of the witnesses said that you gave them fresh hali- but. Where were they caught f Answer. On the Western banks. I remember another vessel being in the bay while we were there. The captain came on board and I had a conversation with him. Question. A witness has stated (Angus McLeod, line 657), '' he called me down iu the forecastle and asked me if I thought there was any danger in buying bait there and if there was any bait to be got. I tolil him that there was danger, because the officer on shore was a very ])articular man about his duties, and that if he was found buying bait there he would be seized immediately " ; did that conversation take place between you ? Answer. No. I took him in the forecastle in showing him around the vessel. I do not remember who was present. I remember Mr. Mc- Aulay coming on board and seizing the vessel. Question. He states that you gave him the name of the man from whom you bought .'he bait; is that correct! Answer. No. I did not know the name of a man there. The bait that I bought there was put under ice on the same morning that it was bought. Question. Where were you going to use the bait that you bought in the bay and harbor of St. Ann's ? (Objected to by Mr. Graham.) Answer. On St. Paul's banks. Nothing was done in prosecuting the voyage while in the bay and harbor of St. Ann's further than buying the bait and putting it oh ice. Neither was anything done at Louis - burg, Sydney, Bird island, or Bear head. From the time that wo put the fish ou the ice until the seizure of the vessel nothing had been done iu the way of curing or preserving the fish. Halibut that bad been cleaned and put ou ice would keep fresh about three weeks. Put- ting fresh fish on ice will not cure them, but will preserve them for a tinje. We preserved halibut by breaking up the ice after catching the tish and putting the ice around them. We break up the ice after the fish is caught and cleaned and ready to go into the ice pen. It is not usual to break ice before the fish is caught. I got paper J. M. D. 1 at North Sydney on Saturday (tendered by Mr. Meagher, and its recep- tion objected to by Mr. Graham on the grounds of irrelevancy). I re- ceivo«l paper J. M. D. 2 from the custom-house ot Portland, Maine. It is signed by Samuel J. Anderson, collector of customs there; I saw I ' ^iiijgji j wi" 154 'i I him sign it. I iierer outered mid cluared from tliat port at any tiini'. I do not know any man in the cu8tom-hoHHO at Portland. I had timt paper witli me on tlie voyage. . , . , Cross examined by Mr. GRAHAM : I am one of tbe owners of tiie J-Jlla M. Jhiif/hty ; Horace M. 8ar{j[ent, Alphues G. Starling, Timothy U. Percy, lulward J. Skillam, James A Conley, J. & J. Fowler, Thomas Laughlin & Sons, Merrill Place, Luk( V. Wlialen, J. W. Tretitlier, W. T. Stndley, Edward S. Fernaltl, Symond Curtiss, Edward Cobb, Denjamin E. Griftin, and Isaac Doit>i;lity are also part owners. I was sailing as master of the Ella M. Duuylity for tliroo years. She was built and fitted out for herring and halibut tishing. 1 had been about thirteen years previously master of flshiug vessels. During that period 1 had never entered or cleared at a custom-houise but once. 1 never had a pai>er like J. M. 1). 2 before. Never had a per- mit to touch and trade before. Had been into ])ort frequently before this buying bait and supplies on Ashing voyages, and without any per- mit : it was never recpiired of me. Never was in the frozen-herring trade on the coast of Newfoundhuid. Have sailed as a Dsherman about twenty-four years inclusive of the time I was master. Paper J. M. D. 2 was the first permit I ever saw. My crew on this voyage numbered fonrt<>en all told. Part of them are sailing out of the New England States, making short voyages, anerore, and none of time of the seizure t and ten or twelve i: us well as halibut renewed ice on the )re ice. When she ird. It is the duty We iced the her- er of ice and then S men, but the cod 16 Banks of Qnero ut forty-five miles indred miles from 'estern banks that that if you did not awls you would go I have conversed nore than one man nan I talked with, d not tell yon what was inshore of us le northward of us. ring of the ice from 156 ' us, and it would not have prevented us from going to any of the other banks. I don't remember the conversation that took place between myself and the captain of the Lady Franklin. I did not go to visit the grave of the great Angus McAskill. When the first man came on board and I oxaminud my bait I knew that we wanted a complete supply, and I didn't know any other nieaus of getting it than from the man along- side. I required from eight to twelve to fifteen barrels. I could not say how much exactly I bought. The first man came on board in the morn- ing of Tuesday and the captain of the Lady Franklin auno ou board on Tuesday in the afternoon I recollect the name of his vessel was the Lady Franklin. When we left home bur herring was frozen and we put them in the ice-bouse without any ice on them. They were what is ealled frozen herring. If I had not got auy fish at St. Paul's banks I do not know whether I would have gone home or not. We would prob- ably have tried some other place. When I state that the bait was to be used at St. Paul's banks I mean that it was to be used there or any other bank that we should go to outside of the three-mile limit. 1 knew about the three-mile limit law, and I heard about it that spring. The bait could be. used on the Western banks or Quero as well as at St. Paul's banks or any other bank. ^ Henby li. Lawbenoe sworn. Examined by Mr. Meaoheb: ■.'''•: Am forty-one years of age. Been engaged mostly in fishing business. Have been master of coasting vessels. I was in the Ella M, Doughty on the trip when she left Portland in April, last year. I was a navigator on board. She left Portland the twenty-sixth of April on a halibut trip to the Western banks. She was fitted out for trawling for halibut. When trawling for halibut we often catch other kinds of fish. The other fish caught we use for bait. Never knew any of them being brought home. I have been about five years in the trawling business, making six or seven trips a year. We had nothing but trawls on board. We bad no hand-lines. We proceetled to the Western banks and ar- rived there the following Saturday, early in the morning, set our trawls twice that day and got a few fish, but we found them very scarce. We left there the same night for St. Paul's banks. I had been on the St. Paul's banks on one trip before. When we left the Western banks we were bound for the St. Paul's banks. On the previous season wo found fair fishing. The captain had charge of the vessel and I assisted him. The wind was to the eastward that night and the next day. We stood north and fetched into Louisburg on the Tuesday morning after we left the banks. We happened to go in because ou Saturday night we fell in with ice. All the next day the ice kept increasing. We tacked off and found more ice outside; it looked stormy, and we stood in towards Louisburg, and in trying to get in wc nearly lost the vessel on accouu of the ice crowding us inshore. On Thursday we left there for St. Paul's banks; got abreast of [Sydney when the wind changed to the eastward and the ice crowded us inshore, and we were obliged to go into Sydney, where we romaiucd until Monday morning. Sunday it was stormy. On Monday it cleared oft" and wc proceeded to St. Paul's banks. We got to a place called Bear head that night. Ice was with.in two miles of the shore and the wind blowing very heavily, and we re- mained there over night. In the morning we got under way, but the V^gjM?' iW- f] 156 wind cluiii|;o(l to tlio iiortlieiwt anil wo wvru obliged, on ncconnt of ice, to jfo into 8t. Ann's bay. Arriv»' out ttemptwe iiuitlt' npoNHiblo for iis IiikI bud weutlicr Jiiot ;jo on Nbor(> |u on Sundtij- on V way of inquir- Is H» i;ed w«i Imd WfBtern bunks. It set our tmwls ]h. In St. Ann'H raniii in tbu8unio with him. They |ii(;ted. I wtiH in nothing; bnt re- or twenty flvo )unk8. The flsU lit in the hohl on at time until the to give away one I wflg not a navi- en nio and any of ipe Breton before ure mostly Aoier- an who belongeur|iose, I administered an oath t/O and proceeded with the examination of the witnesses who were produced before me at lialifax on the days and at the times in the foregoing 30 pages mentioned, and in the presence of counsel for both ]>arties. That pages 40 to 55, both i:-«*'Hsive, contain the testimony of the re spective witnesses therein named, taken before his lordship Chief Jus- tice McDonald, the judge of this honorable court. That the testimony of said witnesses was taken by me in short-hand, and afterwards tmnscribed into long-hand, and said 55 pages include all the evidence so taken and are correct. That I have carefully couiiiared the foregoing 55 pages with the origi- nals on file in the office of the registrar of this honorable court and that the same are true and correct copies thereof. W. W. MoLellan, Commisaionerf etc. IN THE VICE ADMIRALTY COURT AT HALIFAX. Heb Majesty the Queen, plaintiff, ') against \ ^ ..^ .. , SHIP OK VESSEL DaVID J. ADAMS] ' and her cargo. 3 t. ,■ The Examination of witnesses in this action had before me, Wilson W. McLellan, a commissioner of the supreme court of Nova Scotia, specially appointed for that purpose by an order of this honorable court dated September fifteenth, A. D. 1886, this sixteenth day of September, A. D. 1886, at the supreme court-house at Halifax, Wallace Graham, Q. C, and Bobert L. Borden, esquire, solicitors on behalf of the attorney- r^ 168 • : ^:^ l^pnonil of ('aiiiidu, ami N. TI. Meagber, Q. C, Moliuitur fur tUu dufuud- .lAMKH n. Ilir.i. Hworn. ' ',\ lOxainini'd by Mr. (hi All AM: 1 atii vhivf oIllciM' of t\w LnuMdoinm. I joined tb(^ Kt(nuii(>r twcntj «'i}jlith of .Imu', 1H8.'). Hiiico tliii Htteeiith of Miiroli wo liavm b«i«n pro- t(> arrived in Di^by from Saint John on thu Mixtli of May in thrM. Wo boarded all vo!4moIh wIkho li^fhts were in Hif(lit. It wan my wati^li from four to cifrlit in the morninj;. Shortly after I cann^ on deek a boat trame alongside and {;ave us Home information. A Hchooner with a broken topmaHt was pointed ont to me b)' tiie pernon in the boat. She was lyin;; near Ib^ir island at anchor. She proved to be tlu; American schooner David J. Adatm, from aboard of her, and she immediately got under way. Our sti^amer was lyin$; <;lose to the Dit^by pier, and the schooner was about two miles from us. Four hands went in tiiu boat with mc. We rowel to cut her otf a little by the bow. When we f^ot alon^fside of her I asked him where ho haile(l from, and I.e answered from Gloucester. I asked him also what ho was in for. Fie saiJ . Adaim ; ami her owner, Jesse Lewis, and the mistor's name was A. Kinney. I asked him how many tons. Lie said sixty-six, and her port of registry was (Houcester. I asked him also if ho hail any bait on board, lie replied that he had not. 1 told him that he had no business in there. Question. Why did you ask him about the bait? Answer. We supposed that hu hail been there fi>r bait, preparing ifbr tlshing, and it was in conseiiuenc.c of information that 1 received that I asked him about it. 1 told him I 8uppo8ert to Captiiiu Scott. I have had experience in ray younger days about handling fish. 1 examined the bait, and saw the ioe-house was pretty near full of bait and ice together. My opinion is- for tlu) (K>ruii(l. Ih'jimer twenty liav(« i>«»ii pro- y 11 inn; llrHt Muw IoHh biiHiii. W(t iiy in flio /.a»»# I tli« vohmoIh wo lijj for Aiimriciiii n HJKhr. It WiiH piftor I ciiiiid on >ii. A H(;liooii«>r Noii ill tlio bout. OVImI to l)« till! I could nut N»,v of her, aiul hIir >.H« to tlio IHfjby ^>ll^ IiuikIh won't tlo by the bow. miled from, hikI lio wiiH ill tor. s vosHiil, and lio md the iniHtorV o Haid Nixty-Hix, n also if hi) had him that liu had it, propariii;; for ' received that I ' the law, and he I limits, and I re- ined there about Etklaat. Captain ecn taken liom the HawdiiMt. T!ie lilocKH of ice woalit Im^ about two feet long and eighteen liirhes wide, riie bait wim large l):gby herring. We came back to the LnnHdmrne and reported to ra]>tain 8cott. The next order was to return to the »(;hoonei', and l!aptain Dakin was ordered in the lM)at with me. Wo U-turned to tho H«'hooiii>r witii Oaptain Dakin and the Hume men who were witli ine iM't'orc. Oaptain Dakin, iiiyHelf, and Fretl Allan boarded the Hchooner on this occasion. The M^hooner had been trying to work iiut the gut all tliiH time. The wind was light, with a head tide. Allan and Captain Diikin lM)th went down the hold to examine the bait. < 'apt)tin Dakin |>icked out one of the IIhIi, and 1 hoard hitn give his opin- ion to the captain that it was |Hirfoctly fresh. No orders were given to liu* HclitHiner at that time. We all returned to the Ijttnmitwne, and ( 'ap- tain Dakin <;oininunieated with (.'aptain Scott. I was then ordered to I like the Hchooner into Digby and anchor close to the Lnmidoirne. The I .nmdoipne \i\w.\\o\v\\ at the pier, ami the NclnHMier anchored close along- side. I was in the boat in tow of the schooin'r on her way up to DigLy. 1 told the captain after we anchored that he would have to remain llieru until after an invoHtigaticni was held. The next order I gut was to get the boat ready. I got the men in the boat, and Captain iScott gut in, too, and told me to pro<;eed to V'icttiria bea(;h. We did so. Captain Scott and the tlshery otlbter went on ashore and found a man by the name of Kills. Shortly after that Captain Scott came ba<;k to the l)oat, and we went on iioard the Lnnftdoicne. Then (>aptain Scott, Captain DaUin, mysi>lf, and the men went in the boat to the schooner DaritI J. .hhimH, Captain Scott, Captain Dakin, and I went on board the schooner at this time. Captain Scott rearonounced the DaridJ. Adamn seized. Then there was a guard of four men and second ulHcer of the LaiiHdoipue placed on board the schooner. Next morning (Saturday) at four thirty her men were transferred to the Lamdowne. I and four men were left in charge of her, and we towed her to Saint John. We returned to Digby Sunday night. We sailed her back to Digby gut, and the LanHdoncnetoweiX us to Digby, and anchored there, myself and one man being left in charge of her. The s«;liooner was schooner rigged, with two jibs, main-topmast broken Just above the cap. I saw her name on on her stern ; I saw " David J. Adaim, Gloucester." She had about eight barrels of bait on board ; that is, from the appearance of the pile of ice and bait together. Cross-examined by Mr. Meaoueb ; Have been sailing in Government employ since twenty-eighth of last June; before that I followed a sea-faring business in sailing ships mostly, in freighting vessels to New York and the old country. 1 never had any experience in fishing vessels. 1 have attenile^ lj-)at» and bought shad and salmon from them on the shores of Cooqiiid bay. I followed that up for three years. That is all the exiierience I have had in the fish- ing business. Bear island lies near the Annapolis shore; it is about two and one-half miles from the public pier at Digby. When we first noticed the schooner the Lansdotcne was lying off the Digby pier, and the schooner was lying at anchor above Bear island. I could not ex- actly say whether it was above or below the island, but I think she was above, it and four or five schooner lengths from the shore, lying towards Granville. It was about four thirty o'clock in the morning when I went -' ' ,|f ! l.!iltf W' li^.i* rL •-"■ iy' ii ;|] ■1 ^ > 160 out in the boat to go to tbe sulioonor. It looked us if the scboouer bad got under way wben sbe saw me leaving tbe sbip; ber sails wont up togetber. "We bad four oars in our boat. Sbe was two and a balf miles from us. I could not say bow far we bad gone wbeu sbe got beadway on. We were about two miles away from ber wben sbe started. I did not go on board of ber tbat time. I was alongside of ber nearly fif- teen minutes. Sbe was under way tben. I was bolding on to ber with a boatbook. Tbe captain was on deck; someof tbe sailors were tbere,toc Tbe captain was in tbe after part of tbe sbip. We intercepted her when sbe was about balf way across tbe basin. Tbe wind was in. I do not know what way the wind is when it is in. I waa in Digby twice before that and once since. I remained there until tbe end of the following week after this event took place. I was there five days after coining back from Saint John. It waa about six o'cloiik when I returned to tb(i Lansdowne the first time we went to tbe schooner. It was about two miles from tbe place where we left ber to tbe place where tbe Lansdowne was. Wo puUed to tbe southward and westward to get back to the Lansdowne. The wind remained the same all day. The schooner could not stand out, bnt had to boat. She was on her way out when we first went alongside of her, and she continued on ber way out till I boarded her about ten, ten thirty, or eleven o'clock. That was tbe second time, and she was off Victoria beach. Sbe would be entering Digby gut viewed from tbe pier, and four or five miles from the pier. Question. As much as tbat? Answer. Three or four miles, or something like tbat; I could see ber all tbe time during tbe morning; I was watching her ; I could not see what tacks she made ; as far as I could see she kept under way from the time we first saw ber up to tbe time wo boarded her tbe second time. When we went on board the second time we did not order ber to heave to, as it was not necessary, there not being much wind. Sbe did not anchor before we left her, and we left her going on just as before, when we went back to tbe steamer. I did not give tbe captain of tbe schooner tbe name of tbe man who had reported that be had bought bait. I looked up the herring's gills and saw it was perfectly fresh. I do not remember whether 1 went down the hold tbat time or not. The first time I went on deck 1 saw about eight barrels of herring, as far a6 my judgment goes. There was oidy one fish handed up to me. I banded the fish tbat was handed up to me. I was in Digby before this occa- sion ; was there in July, 1885 ; I think we were there in April last for a short time. I did not handle or see any fish at tbat time. I have never seen any fish caught to any extent at Digby ; I have seen dories pass the steamer with fish in them. I did not see the vessel at any other place in tbe basin up to tbe time we brought ber up. After we boarded ber tbe second time we came back to Jb© steamer ; it was fifteen or twenty minutes; when I went back to tbe schooner again sbe bad drifted a little further inrx) the basin, that is, she was losing ground. Tbe steamer was close to tbe schooner when I left to go back to the schooner. The light-house is outside of tbat. Tbe schooner at the time we boarded her tbe third time, I should judge, would be two or four miles from the light-house. The Lansdowne's boat was fastened to tbe schooner, and sbe towed it back to the vicinity of the pier under a fair wind. We were at the strait side of the pier. There was good sea room between tbe Lamdowne and the pier. Tbe schooner was three or four ship- lengths from the outside of the pier. Wben I saw tbe ice-house it waa full of ice and mixed with fish; it was two thirds full, and looked like a bulk-heail ; it lies between tbe two hatches. I was down tbe hold ■Ml 1 be 8cboouer liad sr sails wont uj* and a half uiiles sUe got lieatlway e started. I did of her nearly fif- g on to Ler with a 8 were there, too rcepted her when was in. I do not igby twice before of the following ays after coining 1 returned to thtS was about two re the Lansdowne get back to the Hi schooner could out when we first )nt till I boarded the second time, ering Digby gut ler. t ; I could see her ; I could not see • under way from r the second time, rder her to heave Id. She did not [t as before, when in of the schooner bought bait. 1 fresh. I do not r not. The first 'ing, as far a^ my ;o me. I handed l)efore this occa- n April last for a le. I have never en dories pass the t any other i)lace r we boarded her fifteen or twenty lie had drifted a nd. The steamer e schooner. The time we boarded nr miles from the he schooner, and fair wind. We ea room between ee or four ship- ice-house it was aud looked like I down the hold ^-' m - ■ ' several times; there were tvom two to four feet from the top of the flsb and ice to the top of the ice-bouse. On the port side going out she wonld be about three-quarters of a mile from the land, and on the starboard side she would be prt^tty well over to the Annapolis shore. The captain and the crew were ordered on board the Lansdowne, ex- cepting three men, at>out five o'clock on Saturday morning of the eighth of May. The thi'ee men left her the sameday, about noon, after we got into Saint John ; they took their effects on shore from the vessel on Sunday in Saiui; John. The crew of the schooner came back to Digby ; none of them went on board of the schooner again. When we left Digby I do not know where they went. If this vessel is condemned I do not know what the result will be for me. Question. Don't you expect to get part of the proceeds of this ves- sel if she is condemned f Answer. I could not tell you ; I have no opinion. , ^ \ , Question. Do you expect anything I Answer. I expect my wages while I am in Government employ; if it is customary, I «xpect to get it ; 1 suppose I consider myself one of the captors or one of the prize men. Question. You said you told the captain that he had no business there f Answer. Yes. •'"■■: .'•■• ' ■ '■ /■ /■ Qnestion. What answer did he make 1 Answer. He made no ausver to that ; I said, you have no business here, and I suppose you know the law ; and he said yea. The schooner is painted black ; 1 think there is a white streak around her. I do not remember whether her name was on her bow or not. , . , , .. . . - James B. Hill, « Signed, deposed, and sworn at Halifax, in the oouuty of Halifax^ this lOtii day of September, A. D. 188fi, before me. r, (■■ W, W. McltBLLAN, .^,^ t .<,■;■ ^,.,^^.., ,j ^, ,..,.• -ir V •■> ■ ,■--■ /^f- ■■.•:-■- Commissioner. ■ • ' ' %'■ ,- '■; ''■ ^ - '' ______ ■ ••^••'•'.»>M ■ . . -. • ■ ' ••• !!■■ :''■ ; '• !;, 'iiv v, diAULES T. Dakin sworn. ..; ;^: : i ^ •: ^ ; - ■ ' Examined by Mr. Bobden : Am captain of the Lansdowne; have been oii- her since last June twelve month. Remember arriving in Digby in May last from Saint John ; we got to Digby about eleven-thirty at night, on the sixth of May, Two boats were sent on board some vessels to see whether they were Amer- icans ; we did not find any American vessels that evening. I saw one the next moi^ning ; she afterwards proved to be the David J. Adamn. She was a schooner with the main-topmast broken just above the cap ; she had no other tojimast. I first saw her about eight o'clock in the morning. I remember the first officer. Hill, coming back tVom the schooner. After he came back I went on shore to make enquiries about reports, and I got some information. We got under steam and pro- ceeded clown to the gut, where the vessel was, and while down there Hill boarded the schooner the second time. 1 went on board with Chief OQicer Hill and four men, the same crew that were on board of her be- fore. I went on board with a man by the name of Allan ; I don't re- 101 A 11 <■ < ,1 i -;' a ■'-'-■-^■r"^*"-^-'"-^--"-' ■ w^ '' SSI ; 162 member whether Hill weut ou or not. I asked for the captain, aud I said to him, it is reported that you bought four barrels of herring yester- day; is that correct? and he said, I don't think that is true. I told him that one Ellis sold him four barrels of bait yesterday. I ordered the hatches to be taken oil' and the apartment that the bait was in opened, and some of the bait brought up ; I examined it. The bait was in a larg6 bin, with a door and a cross-bar; tliere were fish and ice in it; examined the ftsh in the bin and examined some of it on deck also ; it wbm herring, and perfectly fresh ; I should think that the fish had b<>.en out of the water a very few hours. 1 have had experience in handling tish ; the gills were i>erfectly red and eyes bright. After they me dead awhile their eyes begin to turn red ; I should .judge there must have be«m eight or nine barrels of herring in the bin. I remarked that the bait wiiiS fresh, and I left and went ou board the Lansdowne and reported to Captain Scott. The ftrst officer and men were ordered back to take the vessel and anchor her. They weut back to the vessel, aud she weut up to anchor; we steamed up after her. I then went ou shore to ask the col- lector and the fishery officer to come ou boanl the stet^mer, as Captain Scott wanted to confer with them. Captain Scott t,ook the collector aud fishery officer and went down to the weir at the entrance of the Gut where the bait was bought; it is called Victoria Beach. I did not go down with them ; they were probably three hours away. When they came back Captain Scott took me and chief officer and four men and went on board the David J. Adams, and he read over papers and acts and seized the vessel. I was captain of the Lansdowne at that time, and Captain Scott was, as I suppose, commander of the whole fleet. I was born at Digby. The second officer and four meu were placed on boanl the schooner as guard. The next morning about four o'clock we left for Saint John. We took the captain and a number of the crew on board the Lansdowne, and took the schooner to Saint John. The next day about noon we left Saint John aud brought her back to Digby. Her crew bad the ©O'er to come back, but they declined. When we bronght her back to Digby we put her in the Backet, and the next day the collector of cus- toms took charge of her. When I first saw her she was down in the Gut. in the vicinity of Digby Gut within a distance of one mile or less of the shore there is good fishing grounds. Digby gut is said to be a mile wide, and it is the only outlet of the Annapolis basin to the sea. There would be good codfishing about April, May, and June in the vicinity of Digby gut. There is some little halibut fishing there, but they are not very plenty. I did not see any halibut on board the David J. Adams. The bait was herring; herring is used as bait principally for codfish, had- dock, and hake. Cross-examined by Mr. Meagher : Have been going to sea about twenty years, mostly in square-rigged vessels; I never fished in any fishing vessels; I fished in boats about thirty years ago at Briar Island. I belong to Digby, having lived there about eight years. There are vessels fitted out in Digby town for the fishing grounds referred to by me ; they fit out for the Bay of Fundy fishing ; they carry it on off the gut. They fit out to catch codfish and halibut. I cannot give you the name of any vessel that is used exclu- sively for codfish or halibut. They fit out very early in the season for halibut, sometimes in March, aud they follow that up until the season ia over, probably the last of May. They catch halibut sometimes within a couple of miles from the shore and sometimes six miles from the shore. captain, uud I herring yflster- |s true. I told ay. I ordered lie bait was in The bait was ill and ice in it; [eckaiso; itwa« li bad o*>en oat |i bandliii}; tish ; re dead awhile ave be«m eight bait Wiw fresh, ted to Captain take the vessel she went up to e to ask the col ;mer, as Captain )k the collector entrance of the each. I did not ay. When they ur men and went rs and acts and I; that time, and ole fleet. I was placed on board 'clock we left for e crew on board le next day about '. Her crew had )ronght her back 3 collector of cus- down in the Gut. lile or less of the bo be a mile wide, )a. There would ricinity of Digby liey are not very J. Adams. The for codfish, had- in square-rigged d in boats about aving lived there ?by town for the le Bay of Fundy atch codfish and at is used excln- in the season for until the season ometimes within 8 from the shore. . .:■•'. : 163 '--""'. ^'■^.'' = ■-■ " •■■ Lbave never seen them caught there, but I have seen them after they were brought in and reported as being caught; I was told where they were caught, but they might have been caught anywhere else for any- thing I know. During the last eight years 1 have never seen any hali- but caught in the vicinity of Digby, nor have I ever been intei^sted in any vessel titted out to catch halibut in that vicinity ; I only know fi*om being told where they were fitting out for; the whole fleet tits out every spring exclusively for halibut. 1 never saw any vessels catch halibut, and all I know is from reports that they are caught in such and such a place. When I was a boy I handled a great many herring. I was en- gaged in the business for several years, i)robably when fifteen to twenty years of age. We did not use any ice in those days. I have not had, much experience in using ice in connection with fish; the only experi- ence I have bad was to put a few herring in ice to keep for a day or so. I will not undertake to say what effect ice has upon herring. I opened the door of the bin of the schooner; I could not tell what was under- neath. When I say that tliere were eight barrels there it is only a rough guess; I assumed that the rest of the bin was the same as the top, and it was on that assumption that I said that there were eight barrels there. The David J. Adams was near Victoria Beach when I boarded her, that is probably three miles from Digby pier. She would be northeast from the pier. She was about the centre of the lower end of the basin ; she had not got out so far as the beginning of the entrance: she would be not more than half a mile from either shore. I have sailed as master into Digby before I went on this vessel. At the time we boarded her she Was in the port of Digby. I have entered at the cus- toms at Bear Itiver and Annapolis. At Bear Biver our vessel went up to the town. When we entered Annapolis our vessel was at Annapolis. I never saw a halibut or a codfish caught except in boats. Have never been to the banks fishing. I do not know what bait they use in fishing on the banks. I do not recollect of having any other conversation with the captain of the David J. Adams except what I have stated. I do not remember of having any conversation with him in the presence of Hill. Wo brought the schooner back from Saint John because Captain Scott said it was ordered from headquarters. I last saw some of the crew of the schooner in Digby on the day they came over from Saint John in the steamer; that was two or three days after I boarded the schooner. I did not personally make any report to the Government of what we had done with this vessel. I understood that Captain Scott did. I did not see any report, letter, or telegram from Captain Scott to the Government or to the minister of the marine and fishery department, but he told me that he had reported the facts of the case to the marine and fishery department. ' Question. Did he tell you what that report was f Answer. No. (Objected to by Mr. Graham.) I did not see it or hear it read. I do not expect a red cent out of this matter. If there is any thing left the Government has power to dispose of it to suit themselves. I do not intend to make a claim for any part of it, because I do not know that I am entitled to it. I think there are as many as twenty vessels fitting out for fishing at Digby each season, from 15 to 45 or 50 tons. The morning of the seizure the wind was to the north, blowing in ; when the schooner was attempting to go out the tide was flood. Be-examined by Mr. Bobden : I do not think the Annapolis basin is six miles wide in any place. .t • ,.-J.-..ls-?rjyY*j»,J^yn^^ m There is uo place in the basiu where yoa would uot be within three miles of the shore. , Chables T. Dakin. Signed, deposed, and sworn at Halifax, in the county of HaliAix, this 16th day of September, A. D. 1886. Before me. W. W. McLbllan, Commiaeioner. A^ourned till eleven o'clock Friday, September seventeenth, A. D. 1886. (Indorsed :) Queen v. Sch. David J. Adams. Sept. 22, '86. lieceived from N. U. Meagher in letter without date. Queen vs. Adams. Evidouce of Hill and Dakin. 4|- Feiday MOENING, September ITfft, 1886. Ezamioation resumed. Fbsdebick Allan sworn. ■'-' <'y' '■[■•'' f-u-.:^:;--': ^^ ■'..''' i-:ih. Examined by Mr. Borden : I was a seaman on the LanadO'Wne in May last. I remember the Law- eUncne coming from Saint John to Digby in May. We arrived at Digby about eleven-thirty at night. The chief officer, Hill, called for his boat's crew. I was coxswain in bis boat. We got the boat ready and lowered her, and rowed to some schooners there, bat they were all Canadian vessels. , We did not find any American schooners there at that time. I was in the morning watcb, from four to eight, ou the next morning. That next morning the chief officer oalled for his boat's crew again. There was a schooner lying down the basin in a northeast direction from the Lanadowney and quite handy the land. We rowed over to the schooner and took bold of her with a boat-hook. She was getting un- der way when we were rowing over to her. When we got alongsule of her Officer Bill asked the captain where he hailed from, and he said from Gloucester. He asked him the name ot the vessel, ami be said the David J. Adama, aud the captain's name was Kinney. I do not re- member what he said the owner's name was, but I think he said it was Lewis. The chief officer asked him if he bad any bait on board, and the captain answered " No." We shoved off and went back to the Lemi- dotone. We were ordered out that morning to board the Adams again. She had got down about to the iniiiir mouth of the gut. Chief Officer Hill went in command that time, and he and I wont on board the schooner. We asked one of the men to help to take the batch off, and one of them assisted, and 1 went down the hold. There were three ice- houses there ', there was one in each wing and one amidships ; the one amidships was underneath the hatch. I looked into the icehouses, and one of them in the wing bad ice in it; that was all I noticed in it; some of the ice was cut up into small pieces and some in junks about eighteen or twenty inches square. The ice-bouse in the other wing had some halibut in it; they looked to be fresh, and had ice ou them. The one in the middle was boarded up with a door and a bar across it ; it was shut when I went down. I took the bar off and looked in aud saw some herring in there ; there was ice in it cut up and mixed with the herring. I picked up one of the herring and passed it up to Chief Officer HiU, . i^.f. iA-Aat's crew again. »t direction from wed over to the was getting aa- » got atongs^e of om, and be said Bsel, and be said ley. I do not re- ak he said it was )n board, and the ack to the Lwm- be Adams again. It. Chief Officer it on board the le batch off, and re were three ice- idsbips; the one eicebouse8,and ^edinit; some of about eighteen wing bad some them. The one icro88 it ; it was in and saw some with the herring, lief Officer HiU, 165 -^ --■■ who WAS standiag by the hatch. I saw quite a number of Iiei i iiig on top: the herring were spread about with ice on them to keep tliom fresh ; the herring appeared to be all alike, but I didn't look n t tiiem particularly ; they appeared to bo bard and seemed to have been caught about two or three tides; the gills of the herring were red. Tim cap- tain was standing by the hatch when I handed up the burring to Iliil. Hill said, " They look kind of fresh, captain ; " and the captain said they were ten days old, and made some remark about the banks. I don't think Hill went down the bold that time. Wo went back in the boat to the Lansdowne. Our crew did not go aboard, but Hill did. Then Gap- tain Dakin and Hill came on the boat and we went over to the David J. Adams again. She was trying to get out in the mean time, but not making much progress, because there was a bead wind and title. Pre- vious to this the Lansdowne bad steamed down towards tba schooner. Geptain Dakin, the chief officer, and I went aboard the schooner. I want down the bold and passed up two or three herring to Captain Dakin. He looked at them and then he went down the hold, and bo turned a few of the fish over underneath that was in the same icehouse that I have been s[)eaking of. The captain of the schooner was there when Captain Dakin was examining the herring. I think that Captain Dakin said that the fish were too fresh and hard to be ten days old. Captain Kinney did not say anything in reply that I can recollect. After we made the examination we went back to the Lamdowne. The boat's crew did not go on board, but Hill did, and be came back to the boat and we went over to the David J. Adams again. Hill told the cap- tain of the schooner that be would have to put his vessel about. They gat her about and brought her up opposite the Digby pier. I was in a oat of the Lansdotcne in tow of the schooner, and the Lansdowne fol- lowed. The second officer and a boat's crew went on board the schooner afterwards. Our boat's crew took Captain Scott ashore after that. He %mained on shore for awhile and returned in company with a couple of gentlemen, and went on board the Lansdowne. Atter that Captain Dakin, Captain Scott, Chief Officer Hill, and a couple of other gent^- men who had come on board, went down to Victoria beach, landed there, and went up to some house. I remained in the boat. They re- mained there about a half an hoar, when they returned, and we started back to the Lansdowne. In the afternoon we took Captain Scott ashore. We took Captain Scott, Captain Dakin, the chief officer, and a coaple of other gentlemen on board the schooner. The chief officer and his crew took charge of the schooner fr om that until twelve o'clock, then they were relieved by the second officer and his crew. When we first saw the schooner in the morning I noticed that h er maintop mast was broken off by the cap ; she was on the side next to Digby gat. When I first saw her it was after we bad started to go to her, and when we were about half ways between her and the Lansdoitme. Cross-examined by Mr. Mbaohbr : Have been in the Government employ a year the fifteen th of this month, and am in the Lansdowne yet^ Have never talked over what evidence I was to give here. When I spoke to Mr. Borden 1 ast night that was the first time I spoke to anybody about it. I have to Id lots of people what was done that morning. Have never talked to Hill, Captain Dakin, or Captain Scott about what evidence I was to give here. When we went down to Victoria beach there were with us Cap- tain Dakin, Captain Scott, the chief officer, and a couple of other men. Our boat only went to Victoria beach once that day, and that was after ' 166 tiie vessitl was brought up and anchored at the pier. I have uo doubt that Ca|)taiu Scott, Captain Dakin, and Mr. Hill went in the boat at that time to Victoria beach. I understood the captain of the schooner to say that he had caught the flsh on the bank?, I know that be said something about the banks. When we went out the Urst time in the morning to go to the schooner we did not have to change our direc- tion from the time we started from the Lamdowne till we reached the schooner. I have no recollectiou of any conversation between Oaptain Dakin and the captain of the schooner any more than that he said the fish were too hard and fresh looking to be ten days old. Onshore I work in the occupation of a rigger. I ^jave beeu going to sea only since I have been on the Jva»«dot«ne. lle-examiued by Mr. BonDEN : I came here in consequence of a telegram. I was told to get ready and come to Halifax. . y Frederick Allan. Signed, deposed, and sworn at Halifax, in the county of Halifax, this 17th day of September, A. D. 1886, before me. V W. W. MoLellan, Commimoner. !.':^i '.'M ^ si Edwin C. Dodge sworn. Examined by R. Sedoewiok, Q. O. : I live at Digby ; have lived there for twenty years ; am a master me- chanic. In May last I was foreman of the Government pier at Digby ; it is called Digby pier. On the sixth of May last I was at work on the pier. That morning I noticed a vessel coming up the basin : it was some- time in the forenoon ; I noticed that she had no maintop mast ; she stood up and tacked below the wharf. It proved to be the David J. Adams. She came to within about one hundred and fifty yards from the wharf; she then tacked and stood over towards the Clement shore and an- chored about east-southeast from the wharf. I was just above and to the east of Bear island. There is a weir in that vicinity. She was anchored about one-quarter of a mile from the shore. I saw part of the stern of the vessel as she sailed past the pier. Part of her stern was covered up by canvas, and I could not see any name. The canvas hung over her stern around the taffrail, and it is unusual to see a ves- sel with a sail there. I am familiar with vessels, and 1 never saw one with a sail there before. I have seen the vessel every day since, and have been on board of her. ' Cross-examined by Mr. Meaoheb : I was not up to her while she was at anchor at the place I have spoken of. The place where she anchored was between three and four miles from the- pier. The Clement shore is low where the vessel was. I think the wind was easterly that day. She passed the wharf in the forenoon ; I could not say the exact hour. The canvas laid over her stern ; it covered the rail and hung down a foot or so from the top of the bulwarks. It was a dark piece of canvas, looked old, and appeared like a sail that had been used. Mr. Young, Riley, McKinnon, and Watt, and several others noticed the vessel also. I went on board of her some two or three days after that, when she was at the wharf at Digby ; in the mean time she had been to Saint John and back again. aave iio doabt lin the boat at |t' the scboooer tbat be said Irst time in the Inso our direc- Rvo reached tbe Itween Oaptain liat be said tbe Id. On- sbore J ng to Hca only d to get ready iicK Allan. of Halifax, tbis iLellan, Commissioner. am a master me- t pier at Digby ; B at work on tbe sin; it was some- )ma8t; sbe stood David J. Adams. from tbe wbarf; t sbore and au- just above and jinity. Sbe was [saw part of tbe >f ber stern was e. Tbe canvas aal to see a ves- L nevef saw one 7 day since, and le plaee I bave I tbree and four tbe vessel was. be wbarf in tbe s laid over ber from tbe top of d, and appeared mon, and Watt, 1 board of ber t tbe wharf at md back again. 167 1 did not go to Saiut John witb ber. Srbe got under wliH town. I told the captain to drop Lis Mcboouer off in tlie stream further, wbere she would lie floating, lie wanted tbe fol- lowing morning's catch for bait, and asked if I woald promise liim tbe morning's catch, and I told him yes; he said he wanted about twenty barrels more of bait; he was on shore after I came home about an hoar and a half. He engaged the next morning's catch at tbe rate of one dollar per barrel, lie talked about the treaty, and I said I oould see where his vesHcl came from ; he replied yes, she was an American vessel; tiiat he could get his supplies from New Brunswick, hire hie crew and carry his tish to Gloacester, pay tbe duty, and make more money than be could by fitting out in Gloucester, because he could hire his men cheaper and buy bis supplies cheaper. Next morning I noticed the vessel getting under way just about daylight; I mean by getting under way t^at she was getting up anchor and sails; next 1 noticed the cutter Lansdowne off of Digby and a boat on tbe way over to the schooner; it was a white boat. When tbe vessel started there was a very light breeze ; she stood right away for the gut. Tbe boat boarded her ; I saw the boat leave her, and she proceeded on down to go out tbe gut. When I saw the Lawidoicne she was at anchor. I saw the Lansdowne get under way some time afterwards and steam down to the gut ; I next saw the vessel haul down her, jib, and I beard she bad grounded; she waa then right across westerly fi-om Victoria beach. C then saw tbe Lans- downe steam down and the vessel went back to Digby ; I think it wa» tbe same vessel I saw off of my ico-bouso. Arthur Vrooui is interested in tbe weir situated about one mile from my place on tbe Clement shore. My partner, Spurr, came home about six o'clock that day, and Robert Spurr was there all day ; I did not notice the vessel's stern. I sell bait to the Digby iisbermen. There is quite a number of fishing fleet about tbe basin at Annapolis, Digby, and Clemcfitspnrt. In Clementsport there are about five, and in the other places from twenty ti Lweuty-tive. I supply them with bait when I have it. They Hsb iu the Bay of Fundy .. In the spring they catch codfish and halibut and iu tbe summer hake and haddock. They fish on the south shore of the Bay of Fundy, and one-balf way or more over. They go tbe Qraud Mauan banks some-, times. On the south shore they fish three miles off, sometimes further^ for codfish. Cross-examined b,y Mr. Meaoreb : ^ When the vessel started to go out in the morning it was ebb tide and there would be probably three fathoms of water where tbe vessel was anchored. To heave up her anchor and get under way I should day would take fifteen minutes. Where she was anchoi.'ed was above the month of Bear river about a mile. There is a custom-bouse at Digby, Bear river, Clementsport, OranVille^ ajud Annapolis. Robert Spurr is ia Halifax. I had never seen the captain of tbe schooner before this day. Tie was a smallish sized man, quite tall for iiis size, and rather ligbt- cumplected. I should suppose be was five feet ten inches. He had a mustache and a whisker on each side of his chin, and his chin was shaved. He had no whiskers on the side of his checK or jaw. I would not take him to be over twenty-four years of age. He wore rubber boots. My knowledge that he was captain was obtained from the £act that he said he was captain and his crew called him skipper. He gave me a twenty-dollar bill on the Bank of Salem. That did not excite my sus- picion in any way. I first saw him at my ice-house. I had nothing to- do with making the bargain for the bait or tbe ice. The widest part of m- id Hoboouer oflT jwanted tbe fol- 'OtniHe liiin tbo about twenty about an boar |tbe rate ot' one jd I oould see lerican vessel ; bin crew and •re money tban I biro bitt men I noticed tbe y getting under ticed tbe cutter [be Bcbooner ; it a very ligbt 'dedber; Isaw be gut. Wben Lanadowne get jut; I next Haw inded ; 8be wa» saw tbe Lans- I tbink it wa» om 18 interested ) Clement Hbore. ay, and Robert eru. I sell baft liing fleet about n Clementsport ^•ti iweuty-flve. aBay of Pundy. le summer bake • of Fuody, aod. xu banks some-, aetimest further^' as ebb tide and B tbe vessel was ay I should day 1 was above the [louse at Digby, •bert Spurr is la before tbis day. >nd rather light- :hes. Ho bail a Dd his chin was r jaw. I would >re rubber boots, tbe fact that he Be gave me a t excite my sus- [ had nothing to e widest part of 169 the Annapolis basin is six miles; some say it is not that much, but it is- always called six miles. While the boats were going back and forth to the vessel with tlie ico I and tbo skipper went up to my bouse. I did not see the boats go on the vessel. Where tbe vessel anchored was l>etween Ave and six miles from tbe Digby pier. I saw her getting under way next morning : it was daybreak, and I could just see where she was. I was on boanl of her in June and on the twenty-third day of July. She would bo about a half a mile from where I was when lying off my place. The wind was westerly that day. 8lio was lying parallel with the shore. I was nearly abreast of her, and was no nearer to her that day than that. I generally observe a vessel pretty closely. I could not tell yon whether she had one or more white streaks on her. She was rigged for mainsail, foresail, and two jibs. I was working in the weir that day for a couple of hours or better; then I was on tbe farm, right up tV'om the beach. I advised him to drop out so that he could lay afloat. When I saw her take down her jib she was well down to the gut. I have caught fish outside of Digby gut ; the last I caught there- was tour years ago. I have not pursued Ashing outside there to any extent. I once flsbed with a man for a week, and I have been there some three or four times besides that ; a half a dozen times would cover all my experience there, and that was boat Ashing only. I never caught halibut there and never saw them caught ; I only know from hearsay that they were caught there. There are vessels that At out to catch, halibut iu the vicinity of Digby ; they Ash just off-shore. I never saw much Ashing there ; I speak particularly from hearsay. I have never seen vessels catohiug halibut within three miles of the shore of that place. The general business of cod-Ashing is done more than three ■ miles from shore. ' There is a place called tbe Ledge and another tbe Horseshoe, about three miles from the light at the outer end of the strait, where cod-Ashing iscarried on. When I first boarded the schooner it was some time after tbe twentieth of Jane, and in tbe mean time I had not been on board of her. W hen the ice was paid for and Then I had conversation with the skipper Bobert Spurr was present, )vlso a. couple of old men. I was not on board the Lanadowne. 1 ne* 'ir told anybody that the skipper had bought bait or ice IVom me untii I saw Mr. Graham last June in Bridgetown, wben I was at court there. I did not send any person on board theLansdowne to tell them that I had been selling bait. Spurr did not go. The men were ashore, and I got their help to weigh the ice and take it away. I saw them start for the vessel and they brought my boat back. Be-examined by Mr. ObahaM: My brother has a telescope. I used it on this occasion. I was inter- «sted in the movement of the steamer and looked at her several times through tbe glass. I conld see the schooner wl^h the naked eye whea she was with the Lansdowne. Becross examined by Mr. Meagheb : I did not have the glass witii me at my work. I went up to my brother's house to use the glass ; that was during the forenoon. I could, not name the last time that I went to the house to see the vessel from the glass, bnt £ think it was before eleven o'clock in the morning. I was working in the weir at the time ; Bobert Spurr and my brother were working with me in two boats. When I went ashore my brother went with me. When I went to the house to look through the glass at the m vcHBol I was working oii tli« farm. Both times when I went to look through the gluHM I went from the farm tiiul not from the weir. Gkokob Yhoom. Signed, dopoHcd, and sworn at Halifax, in the county of Halifax, thin 17th day of Hcptomber, A. 1). 1886, before nie. W. W. McLellan, Commmioner. Robert Sin^BU sworn. '■ ■«■■ Examined by Mr. fioBDEN : I live at dements ; am seventeen years of age ; work with my father, Mr. William Spurr ; he owns part of a weir with Mr. George Vroom. I remember a schooner being anchored near our weir the sixth of May. She got there between eleven and twelve in the forenoon. My father vfa» not at home that day, and Mr. George Vroom was also away in the forenoon. Three persons came ashore from the schooner. 1 had con- versation with thup.i. They asked me who owueil the bait. There was bait in a boat there. The boat was anchored in the weir. I told the man that spoke to me that my father owned part of it and I could let him have it. There were four and a half barrels of bait in the boat. Ho said he wanted to get the bait, and I told him if he dropped his ves- sel abreast of our place and let me have one of his men, 1 could put it on board for him at the rate of one dollar per barrel ; he said he wanted more; that he would take the four and a half barrels, and would stay till the next morning to get what was in the weir in the morning's tide. The man who spoke to me was better dressed than the other two men who were with him. I did not see them come ashore. He left a man with me, and Jie aud I launched a boat. The vessel dropped up in the mean time. The man that made the bargain with me and the other man went down on board the vessel before she dropped up. She came to about a quarter of a mile below the weir and about a half a mile from •the shore. I tind the man took the bait alongside of the vessel. 1 dipped the flsh out of the basket, and a couple of men dipped them on deck and put them in barrels. While I was alongside of the vessel the captain asked me where he could get ice ; it was the same man who made the bargain with me for the bait. I told him we had ice at two dollars and a half a ton. He spoke to me about engaging the next <:atch, and said he would take two tons of ice at two dollars and a half a ton, and that he woUld be ashore immediately after dinner to get it. I was on the deck of the vessel for fifteen minutes. I saw *' David J." on the stern. There was a canvas hanging down over the stern. I asked the captain where he was from, and ho said from the North Shore. The man whom I suppose'ti to be the captain said she was the Adams Craft. This David J. was high up on the stern, under what is called the '< topgallant bulwark." He did not pay me for the bait at the time and said the smallest bill he bad was twenty dollars, and when he came ashore to pay for the ice he would pay for the bait. I saw him after dinner coming down to the shor6 ; he came to the ice-house ; some of bis crew were there, and Mr. George Vroom had returned in the mean time; he was in the ice-house when the captain came for the ice. He and I were weighing out the ice for this man to whom we had sold it ; it was hauled down to the shore and some of it put in our boat and some of in the vessel's dory. The vessel's crew took the ice off to the vessel and brought oar boat back. The captain did not go off with the ice, and I think be went ap to Mr. George Vroora's house. I remained ■on the beach while the boat went to the vessel. 1 saw her go to the w(>ut to look weir. lOB Vkoom. W Halifax, tliid LiELLAN, tommiationer. |withiny father, rgo Vrooni. I sixth of May. Ion. My father .Iso away in the er. I hart con- it. There was eir. I told the and I couhl let ait in the boat. Iropped liig ves- I, I could put it ssaid he wanted and would stay morning's tide. } other two men He left a man opped up In the id the other man |>. She came to half a mile from tf the vessel. 1 dipped them on of the vessel the same man who had ice at two gaging the next oUars and a half dinner to get it. law ^^ David J." er the stern. I from the North mid she teas the I, under what is ir the bait at the \r», and when he ait. I saw him ice-house ; some returned in the ame for the ice. om we had sold in our boat and he ice off to the ; gooff with the se. I remained iv her go to the 171 vessel. I dill not s(>e them put the ice on board. They put it on Atom the other side of the vessel. I saw them go around that side of the ves- sel and return with the boat without the ice. Wc took the ice from the ice!iouse to the boat with the ox-teaui. The blocks of ice would weigh f^om nue hundred and twenty-flve to two hundred and twenty-flve ponnds, and l)e about two and a half feet long, one foot deep, and tlf- teen inches broad. The vessel's crew came ashore, and the skipper went back on board. He paid Mr. Vroorn for the ice and bait, and he changed the twenty-dollar bill for him. They dropi)ed the vessel off in deeper water that afternoon. She was still there in the evening, and I saw her there the next morning about the same place. I supposed her to be the same vessel. I was going down to the shore when I saw her the next morning, and she was under way. I saw the steamer down at Digby. The schooner sailed towards the gut, and had her main top- mast broken off very olose or about one foot from the cap. She had two .jibs. There was no other vessel that I remember of that we sold ttny iiait or ice to that day. I saw her during the forenoon when she was going down ; and I saw boats go on board of her. I do not remem- ber how many times they went on board. I saw a boat board her when she was half way from our shore. The boat came from the west. That would be from the direction of the steamer. The boat looked white, but she was so far off I could not tell exactly what the color was. After that 1 saw the vessel go up to Digby. The steamer went down and the vessel went back to Digby with tlie steamer following. Thesteamer was quite close to the vessel after she got down to the gut. 1 am not sure whether they towed the schooner back or sailed her. Cross-examined by Mr. Meagher : . , ■ i I do not remember of seeing any money paid over to Mr. Vroom ; the only way I know that Mr. Vroom was paid anything is from the fact that others had told me. Bear island is about two and a half miles from the place where bait was put in the boat and about southwest from there; that would be further down the shore towards Digby. The ves- sel was between our place and Bear island. From our place to the lo.wer end of the basin near the gut it is called six miles, and it is seven miles to the light-house. I was on board of the vessel. I do not re- member what color she was. I do not remember of seeing any streaks on her hull. I did not notice whether her name was painted on any part of ber bow. I was only on board of her once and I did not take much liOtice of her. I only supposed the man was the captain. I have no means of knowing it. Have not seen him since and have not been on board the vessel since. She had a piece of canvas clewed up and hung to her davits ; it was rolled up pretty snug and tied to the davits when I saw it. It was outside of the railing and the davits extended ont over the st«ru. I went on board Of her from the inshore side. Her stern was pointing towards the shore. She hove to when I was on board of her. She stood inshore a little and then came to anchor. After she anchored I forget how she swung. She was heading towards tae part of the time when I was rowing out to her. Before I got to her she tacked and stood her head the other way. I was four or five rods away from her then. She tacked and hove to at the same time. I did not examine her very closely. Robert Spurr. Signed, deposed, and sworn at Halifax, in the eonnty of Halifax, this 17th day of September, A. D. 1886, before me. I seal.] W. W. MoLellan, Commissioner. Ill ', -vsyg'^^ JSSr^ ' y *^^ AuTiirii W. ViiooM Hworn. , . . ,"^' KMiiiiiiii'il h.v |{. Ski)(»k\vi(;k : I live itt CU'iiHMilH, iiltoiit II Miilo t«) till' «M»Mt of (itfor){u VrooniV weir*^ Oil tlic HJxtli of May liiNt I wiin pliuitiii); |N>tat(M>H, when a innii wlin had a vcNmil oft' th(^ |Hiiiit ouiiio to hvu uw hihI Haiti h<^ wiiM the captain of the eratl ; he waiiteil to m't a t\vent,voiif{lit the Ixiit from the weir, poiiitiii(( to Vrooiii anil 8puri-*M weirs. It wiim the only weir tlniHheU at that time. I (lid not (;liant;e the twenty-dollar bill. I huw the vtMitel come in that forenoon ; i (li«l not Hee her afterwards eomiuK near to the weir. I did not Hee her <;han};e hitr poHitiuii, but I m:iw boats K^i'mu out from the shore to the vesstO, backwards and forwards. That was the only veMsel there that day. She left the next luorniii^ ; I saw her lioistinK her nailH. She did not go out the ((iit, but changed her coiirsu and came Iwck to Diftby, and the Litttudoirne was behind her. 1 saw the vchmcI iifterwiirdM at Digby, and li(*r name was Ihtvid J. Adnnm. When I Haw her OH' the point I noticed she had no topmast, and subsequently at I>i(;by I hhw vuat it was broken oil'. OrosH examined by Ml. MkA(}HK1{: '. ' "^ ' I know it was the sixth of May, from the time I put in my i)otatoes ; i generally keep a ivcord of plantin;;^of my potatoes every year, and 1 looked at the reirord l)efoi'(> 1 came away. I was planting that day and also two days afterwards. I was alMtnt a mihi from the veHscl, and when she WAS there I was not any nean>r to her than that. At that time I did not notice that she had a broken topmast. I have never lieen to- sea a.s a seaman, but am i>retty familiar with vessels. It was about two weeks after I first saw her that 1 iKmrded her at Digby. I will Dot swear that the vessel I boarded at Digby was the same vessel that I first saw, but she looked like the same vessel from her whole riggiag.. her color, and her boom. 1 saw her taken up to Digby and beached, aua I was told that she was the same vessel. I could not tell you how inaoy white streaks she had ; she was a light-colored vessel, but I oould not give you the exact color. I was on board once only, but I was on the wharf once or twice since. Beexamined by Mr. Sedoewiok : I have a weir. I know that Mr. George Vroora keeps ice. - Arthur W. Vroom. ,11 [i Signed, deposed, and sworn at Halifax in the county of Halifax, thi» 17th day of September, A. D. 1886, before me. W. W. McLellan, Commmioner. Adjonrned till Satunlay, September 18th, 1886, at 10.!J0 o'clock. (Indorsed :) Queen v. Adams. Evidence of Allan Vroom, Spurr^ Dodge, and A. W. Vroom. Sept. 22, '86, rec'd from N. H. Meagher in letters without date. ■WW Vrooiii'M weir- mnii wlin had I vaptuiii of thff pay for mmti jir, |H>iiiriii|; to at that tiiD«. nl vonui ill that M weir. 1 (lid out Iroin tlit^ Itlii^only vcHHul lNtiiit(li«rNailH. Ill canio luick to iHMt'l afterwitrdH 8aw lier ofl' tfae It Dipby I Haw I Miy ))otatoos ; fry year, and I It? that day and 0Hscl,nnd when At that time I iievor lu»en to- t wa.s about two by. I will not le voMsel that I whole ritfgiug.. id bea<;hud, and I you how many but I could not [It I was on thfr i ice. W. Vboom. of Halifox, thi» LCLLAN, 7omtHis»ion€r. 30 o'clock. Vroom, Spurr^ out date. 173 Hrri'UDAV, Siptembeir liith, Itm. 'Exaniinatioii rt>HunH>d at 10,.'iU a. ni. MAMI'K.I. I). Kl.LIM Dworii. Kxaiiiined by Mr. (iiiAllAM: I have (HMMi thu Darid •/. Ailnmn about a dozen times, and recollect the time I llrHt Haw her. I wan at my hol:^:e at Vi<;toria beacli. My employment hart been that ut' ttshiuK; have Ih'cm. tlMliiiiK about ttl'ty Teara. In May laat 1 waacatchint; lierrini;. We call them netherriiiK- Digby herring ia a amall herring. I reineinl)er the time the Lanadoirne WOH at Digby. I Maw Captain Scott ; Haw the David •/. Adam$ anil the Lan»downe anuhoruil together Juat innide of the harlior abreaMt of Vic- toria beach ; a crew from the LanHdowne boarded the Datiid J. Adamn Jn a boat. I Haw tlie David J. Adamn two (lays before that ; ahe came from the northward ; when I tlrHt aaw her hIic was about three quarterH of a mile outnide coming in ; Hhe throw her dory over, and the captain and two or three men come on nhorn in the dory, and the captain wanted to know if I had any bait; I told him I had. The bait was in my Ash- ing h(»UMe; it was herring which I caught that morning. lie wanted to know if f would aell it to him. I told him no, beottuat^ it wat againat tlie law, and that 1 could not aell to American!!, lie replied that the Hcboonor had been an American, but the EngliHb had bought her. Ue asked me what the price of the bait waa, and I told him it wan (aie dol- lar a barrel, llcnaid he would give me one dollar and twenty-tlveceritM a bariiil for it if I would let him liave it. He ottered mo the one dollar and twenty- tlve, and I took it. There were four barrels of bait. 1 meaanred it in barrola. The two men from the Datid J. Adama helped me to meaaure. They carried it down, put it in the boat, and went on board the David J. AdamH with it. They carried it down in a barrel with handles on it. The tide comea in quite near my flsh-houae. 1 notice that the veaael waa black with a dirty white streak around her, and she had soipethiDg over her stern which looked like an old sail. It waa a dark piece of canvas. Uer topmast was carried away about one foot above the cap. She was so near that I could have talked to the men on board ; but I could not Hee any name for the canvas that was hanging down. The captain was right alongside of uiy llah-house when I was measuring the bait. Ue paitl me for the bait He did not get anything else from me. He left me and said be was going up the basin somewhere on the same business, and was coming back again, and if I had any bait then ho would get some more from me. I told him if I had any I would let him have it. I sold him all 1 had the first time. There was no bargain made as to what he was to pay mo for tlio second lot. When he came ba(ik I bad no bait for him. The Drat day he came there it was a dark day, and the wind waa blowing pretty strong. After the first time he was in he took his vessel inHi(le of the harbor out of my sight. Digby pier ia in about a south-southwest direction from Vic- toria beach. Victoria beach is not a farming place, but there are Home small gardens there, and it is on the east side of Digby gut. They use herring bait for halibut and cod-fish and whatever other kind of fish they are going for ; in the spring of year they use it for halibut and cod-fish. The herring is sliced up and cut into small pieces for cod-fish. If they are fishing for cod-fish and halibut they generally cut it in two pieces, but for cod-fish alone they cut it into four or five pieces. In keeping herring they break up some ice and put it over them, then more •herring. is put in, then more ice, and so on. It is necessary to ice her- 174 .1' rii){i^ at ouce, or tbey will uut keep; they will last us much us two duys without ice. I uever have been on fishing Bchooneis. When I saw the schooner po up to Digby it was after the Lamdowne boarded her. I saw the schooner afterwards lying off Digby after she had been docked. It was in the latter part of the day when I saw her go up to Digby after the Lamdowne boarded her, but I would not be certain. I saw the Lansdoicne lying off I3igby pier. The schooner passed where I lived and went a«ijore, and the Lansdoicne came down ; the vessel lay there grounded for a short time ; she had all canvas on when she went ashore, or some of it was left on her, but I cannot say how much. The main- sail and foresail were on her, but 1 cannot say about the jib. I knew she was aground, because she had fetched up, and the captain told mQ she grounded. That was about two and a half miles from where the Lansdoirne was at anchor. We took the flsh from the weir in boat» alive. We caught them with dip-nets. Cross-exumiued by Mr. Mkagher: ' ''•-•"' I was sixty-two years of age last April. I never had any experience exceptin boat fishing. We use herring for boat fishing. We principally catch codfish and pollock in the first part of the season, and in the latter part of the season haddock. Uur boat fishing season begins iii April. I have not done anything at boat fishing for five years, imt have looked after weir fishing during that time. I have had a boat engaged during those five years in outside fishing ; boat always goes off and comes iu on the same day, and takes its bait with it each morning; the boat is never out at night. I do not keep an ice-bouse ; in connection with boat fishitig we do not use ice ; have never been engaged in and have never had any experience in bank fishing. I first saw the vessel in the mouth of the'hurbor coming in about three-quarters of a mile outside of Victoria beach ; from Victoria beach, to the lowpi* end of the basin or the beginning of the gut it is about half a mile ; when I first Bawtbe vessel she was two miles from Victoria beach, just inside the harbor. The harbor extends thre o miles below Victoria beach seaward ; it is alt called Digby harbor trom inside the light-house up to Digby town. Tur- ner's Cove is part of D^gby harbor. The vessel was about one mile inside the light, thai is to say, one mile from the entrance of Digby harbor. When the dory left her to come ashore she was one and a half miles from where I live, and she was a little past the center of the harbor. From the lighthouse at the outer end of the strait to Digby I)ier I should think is about nine miles. The harbor of Digby extends down from the pier to the light house about nine miies ; from where she hove to and the dory came on shore from her to where the custom-house is would be about five and one-half miles ; when she sent the dory ashore she was in the harbor of Digby. The captain was kind of a tail man and I think sandy complected, not a very full face, le wore a black coat, but I do not know what kind of pantf hs wore ; 1 should judge that he was over thirty years of age. I saw him three times, twice iu one day and two days afterwards. I could not say that he had any whiskers. I do not know ; I will not undertake to say whether he hud any whiskers or beard. He had something on his face, but 1 could not say what. When the vessel hove to the first time, and the dory cauic ashore, she was about three-quarters of a mile from the shore ; she was between me and the mouth of the harbor ; when she came up she came abreast of Victoria beach. I was not on board that time. Wlii-n she came ashore for the bait it was iu the afternoon, about three o'clock ; they remained on shore about a half hour. I helped them measure the bait. The tide was low and I was up at the fish-house. The tide usuully &;*«. us two days lieu I Haw the larded lier. I |beeu docked. Digby after I saw the ^here I lived lasel lay there I wen fc ashore, The raain- Jjib. 1 knew Iptain told me pm where the relr in boata ny experience Ne principally id in the latter ns iu April. I It have looked igaged daring and comes iu j; the boat is unection with in and have le vessel in the a mile outside id of the basin 1 1 first saw the de the harbor, i^ard ; it is all fbytown. Tur- nout one mile •ance of Digby cas one and a center of the itrait to Digby Digby extends rom where she 3 custom-house sent the dory s kind of a tail e wore u black should judge times, twice iu It he had iuiy Aether he liail lut I could not the dory came hore ; she was le U]> she came e. Wlicii she three o'clock; n measure the hetideuNUiillv rises about twenty feet. The t-hore there slants with a gradual slope. My fish-house is about twenty' feet above high-water mark. I was not any nearer to her than that. It was somewhere about the seventh or eighth of May. The vessel left my place and went to the southward of me and went about a half mile out of my sight in the direction of in basin, up the harbor, going to the south and east of the pier, below the pier. The next time I saw her she was on the west side pretty much abreast of me ; that was the second day from the time she first came in. I did not see her from the first day she came in until the time she grounded. When the dory came on shore she was lying with stern towards shore. The cdnvas was black looking and it hung down over her stern ; I took it to be au old sail. I know that the man was the captain because he told me he was; that is the only means 1 have of knowinj^ it. Have never been on board the Lansdowne nor along- side of her in a boat. I never sent my boat to her, nor do I know of her ever having gone there. I never told them at the Lansdowne that the captain of the vessel had bought bait from me, but they came to me about it I have no knowledge of my boat going to her and reporting, and if she did so I did not know anything about it. The piece of can- vas hung down five or six feet from the top of the bulwarks ; that is my judgment : it was not fastened to the bulwarks at all and I could not tell you where the inside of it was fastened ; I did not notice that it covered the top of the rail ; all I noticed was that it hung down over the stern. I first refused to sell iiim bait, but I said the price was one dollar a barrel, then he oti'ered me one dollar and twenty-live cents and I took it. It took me about a half hour to measure out the bait and settle with the captain. I call the place where the vessel was at that *ime the harbor of Digby. She grounded on the Digby side of the har- bor, a mile from my place. The day she grounded I was not doing any- thing particularly. The day before I was at home in the vicinity of my fish-house. I could see as far as ten miles up towards Clements shore- and two miles above Bear island. I did not see her till she got about half a mile from where she went ashore. The white streak was not very large. I should supyiose it to be about two inches wide. I have not been on board of her since. She was lying at the wharf and I was there. Question. Will you &wear that the vessel that came and bouqfht the- bait from you and the vessel that grounded was the same vessel i Answer. I swear that the same captain came to me, but I do not know about the vessel. He came to me some time in the afternoon of the same day that she grounded. I s? w him coming. When I first saw him coming back he was coming across the harbor, perhaps a half mile from his vessel. It was about two hours after that when 1 saw her jo- ing up with the Lansdowne to the Digby pier. When the captain came back to me for bait he did not remain any time, but weut away. After he left me it was about four hours before I saw her going up with the Lansdowne towards the pier. 1 did not see any boats going to or from the vessel that day, but I saw the cutter's boat going there '; that was after she got afloat. From (he second time that he came to me for bait and left to go back to his vessel until I saw the cutter's boat going to wards the schooner, I should judge it was three hours, and from the fact that she had got afloat iu the mean time I think it was more than one hour. I can not reau or write. Ke-examiued by Mr. G^baham : I do not carry a watch, but 1 can tell the time by the clock. I keep a clock at home. Digby gut runs from the basin to the northward^ (I „• ii .■:5 i mti 17$ 4iuil is aboiu seven miles in longth and ruos north antl south. Thu light-hoase is ou the viest corner of the gut. (Mr. Meagher objects to further re-exaininatioii.) That is the beginning of the gut and it ninssoath about seven miles. Vessels go ou both sides of the pier; it is built for steamers. I never heard of Digby gut being called Saint Qeorge's channel. It is one mile wide troni the outside end to the inside end of the gut. On the west side there are two auchoring coves, and on the east side there are five. The east side is seftled ; the houses are from ten to tweivfi rods apart, and there are twelve or fourteen bouses in the place. The west side of the gut is not settled. I can not tell what day of the week the Lansdowne boarded the schooner. I should think it was about the tenth of the month. It was the seventh or eighth when I sold him the bait, but I think it was the tenth when she wots seized, but I could not tell the date exactly. I recollect when she came back from Saint John, but I can not te!! the day of the week as I paid no attention to dates. bU Samuei. p. X Ellis. - , -• *,.., Commissioner. Examination adjourned until Moudatj', September 20th, 1886, at xwo ■o'clock p. m. (Indorsed:) Queeu v. Adams. Evidence of Ellis. Sept. 22, '86. Bec'd from N. H. Meagher in letter without date. >('?ih! lit.;.' ;•' 'i Owen Bilby sworn. Monday, 8ep1emher 20 « ■'> Andeew Keans sworn. ' Examined by Mr. Obaham : v -.J I am a fisherman and belong to Victoria beach. £ know Stephen Taylor, and live about one hundred rods from him. Last spring he and I went on a vessel which afterwards proved to be the David J. Ad- ams. I SfliW her on the evening of the day that she came in, after she anchored. That was "Wednesday evening. We went to set our nets, and had to row close by her to get up to the berth where we set our nets. 1 noticed her maintop-mast was broken a short distance from her mainmast head. We set our nets that night, and the next morning, about five o'clock, I aud my son went out to our nets again. I got about a quarter of a barrel of flsh. We generally haul our net and her- ring into the boat and pick the herring out afterwards. I rowed down to Stepheu Taylor's landing with the nets and flsh, and then picked the herring out of the net and put them into my boat. Taylor and I put our herring together and took them on board the David J. Adams. The her- ring were in strap-tubs in the boat. Stephen Taylor, my son, and myself went oft' in the boat to the vessel. I noticed the stern of the David J. Adams the first time we rowed passed her and the next morning when we went on board with the flsh. In The morning there were some old sails hanging over the stern, and I noticed the words " David J.," but that is all that was visible. It was an old black piece of sail. I could not see the hailing place, as the canvas was hanging down too for. Mr. Taylor and I handed up the strap-tub of flsh, and I went on deck of the vessel. Both of our catches, I should Judge, amouMted to about a half barrel. Mr. Taylor settled for the flsh. We divided the money, but not until we got on shore again. I was paid for a quarter of a barrel. Mr. Taylor went down in the cabin to get his money on the invitation of a certain man they called Skipper. There were others on board at the time belonging to the vessel. 1 should Jiink it was about half-pajt five in the morning when we went on board. After leaving the vessel I saw her get under way, and she went up into the basin. I saw her the nest morning lying ashore on the west side of what we oall Digby gut That was the morning after we sold the bait to her. She was not there a great while after I first saw her. I saw the Dinsuowne that day right abreast of where the vessel was ashore and off che center of the gut ; saw the LansdouiwPs boats go on board the vessel ; saw a boat go aboard twice from the Lansdowne. She was afloat when I first saw a boat go aboard from the Lansdowne. 'Next I saw them square tha vessel away and with the Lansdowus run up to Digby. The first Sun- day after we sold bMt I saw the vessel when the Lantdowne brought 'her in, and I have been on board of her since at Digby. The first night [. put ID, and iamt and tbe >tinl of ber at lELLAN. mmisaioner, ^EN RiLBY. ter am, 1886. know Stephen idst spring he le David J. Ad- Ine in, after she set onr nets, ere we set onr stance from ber next morning, again. I got )ur net and ber- I rowed down then picked tbe >r and I put onr lams. Tbe ber- Hon, and myself of tbe David J. ; morning when J were some old « David J.," but of sail. I could wntoofUr. Mr. it on deck of tbe to about a half the money, but rter of a bari'el. a the invitation era on board at I about balf-pajt iving tbe vessel ,sin. I saw ber t we oall Digby > ber. She was Ixinedowne that iff cbe center of >sel ; saw a boat rben I first saw tiem square the The Ont San- tdowne brought Tbe first night 173 tbe vessel oame in she anubored at Porter's eddy. That is about two : hundred rodg fkx>m where I fish in tbe gut. Sheoould not be seen fix>ra< / tbe plaoo where we started to go out to set our nets on account of the j bend in the gut. We knew of the vessel wanting bait from worsed, and sworn at Halifax, in tbe county of Halifax, this 6tb day of December, A. D. 1886, before mo. W. W. MoLei,lan, ; Commis8ioner. Si^PHEW Taylor sworn. / Examined by Mr. Gbabam: I belong to Lower Granville, near Victoria beach, and am a fisher man. I know Andrew Keans, the last witness. I reo^Ieot of going on board of a vessel last spring with bait, with Mr. Keans; it was between five and six o'clock in tbe morning. I did not see her name. My fish- bonse is about one hundred rods from Mr. Keans's. Tbe morning that we took tbe fish to tbe vessel Mr. Keans came rowing along in a boat, accompanied by his son. He had a few bertiog in nis nets ; be took the herring out of the nets at my landing, and I put my herring with his. I had about a quarter of a barrel In a strap-tub. We then rowed off to the vessel; both Mr. Keans and myself went on board. I think it was the captain who settled with me for the bait. That, with what I had caught the night before, made a barrel and a quarter. That morn- ing we had a half a barrel between us. The night before I took three quarters of a barrel on board the vessel. The night before was tbe first time I: a»w the man who settled with me for the bait. I was working at some gear in tbe evening when be came to my flsh-hcH8e, I had the three-quarters «f a barrel of bait then standing in my fish- house. He asked me if I would Sell it, and I told him yes. He first asked me if I had any bait, and I told him yes. He tiien asked m« to take it on board his vessel. He then told me to set my qets that night, and stud, ^* I will take whatever you get iu th« nets to-night." He was to pay me ooe dol^ lar and tweoty-five contu per barrel ror thQ bait. [ set my netstbafe night, but only oaogUt a quarter of a barrel. Tiie first evening I took off to the vemei three-quarters of a barrel. 1 was alone in tbe boat the first time. On that occasion I did not go oc board, but remained along- 180 side. The mau took the flsb on deck, and I did not see wliat he did with them, and I returnes• (Indorsed:) Queen v, Adams. ■ Keans and Taylor. Defense resumed. :-:ii*fi:\ . t iV January 8, 1887. ISIAH BOBEBTS SWOm. Examined by Mr. Meagheb: I am forty-four years of age and have been ^'oing to sea twenty-six years ; have been engaged at bank fishing for twenty-six years on al- most all the banks, viz : Grand banks, Quero, Western banks, etc. I generally sailed from Gloucester. I was one of the crew of the David J. Adams last spring. She left Gloucester about the tenth April on the last trip that I was in her. When a vessel is fitted out for hand- Iwhat he did that night, >it until the ay I settled came along and getting nets in that taking ibem put both our The money iter we went ler, and when d five o'clock not come to I, and I didn't the morning. he nets were ist of my fish- Next saw the norning after Ishiug. It is ed ashore. I tb a steamer. and Saturday r to the north- I should think iS later, on ac- It is about When I saw miles distant. imer it was. EN Tayloe. of Halifax, this ts having been LiELLAN, hmmisaioner. AEY 8, 1887. sea twenty-six lix years on al- banks, etc. I ^ of the David tenth April on (i out for hand- 181 ':^Vvv: line fishing she is generally described as being fitted out for George's bank fishing. On that trip we fitted out for to catch codfish and liali- bnt ; for hand-line fishing. We caught fish on that voyage before the vessel was seized. We caught codfish and a few halibut ; these were caught on the Western bank abont ten miles from Sable Islauil. We could see the land from where we lay. It was ten miles from where we lay to the island. On that voyage we also caught fish about thirty- five miles further to the westward on the Western bank ; that would be about forty-five or fifty miles from the nearest land, and the nearest laud would be the island. We did not catch fish anywhere else on that voyage. We tried for fish at Brown's bank ; the northern edge of Brown's bank is about thirty-five miles from Cape Sable; where we tried for fish was on the southeastern edge of the bank, which would be about fifty-five miles from the nearest laud ; the three places spoken of were the only places where we tried for fish. We dressed and split and salted the codfish and dressed and iced the halibut when we got through fishing. I remember going into the Annapolis basin with the Adatng, and while we were in the basin we got some bait and ice. Question. Where was the bait that you bought intended to be used f (Objected to by Mr. Graham.) Answer. It was intended to be used on Brown's bank. Question. Besides buying the bait and ice what was done while the vessel was in the basin in the way of fishing or in getting ready for fishing t Answer. Nothing but cutting up ice and icing the bait. Question. While yon were in the basin I understand that yon au- chored up towards Bear river! ,i ;'!■,.> Answer. Yes. Question. Was her place of anchorage changed ? Answer. Yes ; on account of shoal water. We moved to get into deeper water. I remember the fact of the vessel being seized. I remember the time she was lying up in Annapolis channel, about six miles from Digby town. That morning we got under way a little before daylight ; the captain had charge in getting her under way. I was on deck. Question. By the time you had the sails on her how far could you seef Answer. A couple of niiles, as it was a very clear morning. From the time we began to get under way until we haA sails on it would be about an half hour. Gross-examined by Mr. Graham : ^ ' ^ V I was not mate of the vessel ; those vessels do not carry any mate. I have been in the vessel about three years and I belong to Yarmouth. I am a naturalized American citizen, and have been so for the last eight years. I was on shore while in the Annapolis basin ; was on shore the time we bought the ice; I went with the ca])tain in tue boat. I was not on shore at Digby gut while the vessel was there. James Swine- burg, Samuel Hooper, John Brown, Calvin Cook, Joseph Henley, Elroy Pryor, Ed. Symonda, Fred. Fisher, Frank Arnson, Joseph Boucher, John Beatoj, myself, and the skipper composed the crew of the Adams, thirteen all told. When we got the ice I believe th;it all hands were on shore except the cook, or tbere might have been one man left on board besides the cook. That was just to the eastward of Bear island, a couple of miles from where you go np to Bear river. We came to anchor near Bear island between twelve and one o'clock in the day. The captain and one man went on shore first; we anchored before they ■went on shore ; the captain came back to the vessel in a boat ; after- 182 wards Uie cnptaiu and the man who went on lihore with him came on with the bait ; it wati fresh-herring bait. The captain and all the men then went on shore for the ioe; I heliicd to break up and weigh the ice ; we lioisted it down into a team and took it down to the boat ; the crew handled the ice when it came on board, and I took part in that. There were two and one-half tons of ice; the whole crow helloed to break up the ice after it came on Itoard, and we iced the herring bait with it; that was while we were at anchor; we do not require to ice halibut very often ; when once iced they will keep three weeks. The vessel is boxed off into pens four or five feet square ; we have six pens ou board where we ice the bait and fish ; that includes the ice-house ; the places for the ice and tho!«c fur the &»h are all the same. A large herring will generally make four or live pieces for hook.8 for oodflshing, and for haliout the same when we use handliuea. We were not fitted out for halibut ftshing, but we could catch halibut with the same gear nsed for codfishing. I think there were five small halibut on board; they would weigh one hundred and fifty or two hundred i)onnds in all. Soon after we got under way we saw the Lanudotcne, as soon as it got light enongh ; we did not see her before we got our sails up because it was not light enough ; we were under way and standing out towards the gut when we saw the boat of the steamer come around her bow, and then we thought it must be a cutter; the cutter's boat boarded us while we were sailing. The man came alongside and I heard the ques- tions ; I am a little hard of hearing. He asked the captain what he was doing there, and the captain said that he came in to see his rela- tives. I do not know whether he saw his aunt or not. Nothing was said about bait that time, lie asked our captain what his name was and the owners of the vessel, where she belonged, and her tonnage, and told the captain to go out to sea. He asked about bait the second time the boat came on board. The captain told him that there was bait there on board, and he said he thought from the size of the herring tbat they were about ten days old. There was a boy about eighteen years old who brought off the bitit when we lay near Bear Island. We came to anchor at first when we took in our ice and bait, and after taking in the bait and ice we dropped off to deeper water. The captain pai^l for the bait and ice. I believe there was trouble in getting change there. It is a farming country place where we anchored, and not thickly settled, the houses being one-quarter or half a mile apari. I had been in the basin before and I knew it. The gut is about one mile across with very high land (in each side; on the western side it makes a straight shore, the other side is a cape of land. At the point where you enter the gut there aie about 25 fishermen's houses; on the west side as you go iu there is a light-house; from the light-house in to Digby is about one and a quarter miles: there are no houses after you leave the light- bouse until you get up about half a mile ; there are no villages on either side ; there are no farms on either side of the gut, but it is high, bar- ren land ; in the gut itself probably there are twenty houses on the east side, but on the other side there are none until you get half way up to Digby town. The people who live there are mostly fishermen. I do not know Mr. Ellis; 1 am not acquainted with any man iu the gut; .1 do not know the Fromes; while I was in the basiu I did not see any person that I knew; I did not find out the names of the persons who 'sold the ice; there were two men in the ice-house besides the boy; they were two middle-aged men ; the boy was driving the team ; I believe that the two men and the boy were all who were there; I do not think that some of the iee was taken in a dory ; we used a lighter ; I think Mm came on all tbe men Id weigh tbe lie boat ; the (part in that. Iw bellied to ] berrinf; bait require to ioe Iweet-^a. The lave six pens pe ice-house; le. A large ^r oodflsbing, Bre not fitted o same gear t on board; nnds in all. ooii as it got up because it oat towards and her bow, at boarded us iard the qnes- )tain what he see his rela- Nothing was his name was r tonnage, and 10 second time was bait there ring that they een years old We came to ' talking in the in )>aiJ for the inge there. It ihickly settled, ad been in tbe ile across with ikes a straight lere you enter ?8t side as you [)igby is about cave the light- lages on either it is high, bar- houses on the •i get half way ' ftshermen. I an in the gut; id not see any e persons who the boy ; they lam ; I believe 1 do not think fhter; I think KMi 188 ■we took it all in tbe man's boat. I am not positive about tbe dory, bnt it appears to me that we did not nso it. We left Eastport on Wednea- day, about eleven o'clock, for Digby, and arrived at Digby gut jnat as the snn was setting that day. I do not think we huileil any boat or vessel ; it was thick weather and there were no boats out that da v. Some of tbe people fhim the Lanadoume on tbe second trip to our vessel went down and examined tbe bait. Mr. Hill and one of his men went down. Uaytain Dakin came on board the third time and be examined the bait too. They were examining tbe bait to see bow old it was ; they did not ask any one of us how old it was, but when they first came on board tbey asked tbe captain, and be told them that be thought ftom tbeir size they were abont ten days old. Now, when I think of it, the cap- tain did hail a vessel just inside the light and inquired if there was any bait in there. ISIAH BOBBRTB. Signed, deposed, and sworn at Halifax, in the county of Halifax, this 8th day of January, A. D. 1887, before me. W^. W. McLbllan, Comniisaioner, etc. Besumed June 2nd, 1887, befoio his lordship Mr. Justice McDonald. Hemkt R. Lawrence sworn. - ' Examined by Mr. Meaoher: Have been engaged in Ashing about twenty years in both fresh and salt fish. 1 am familiar with the use of ice with fish. In that respect I have bad about ten years' experience. Patting fresh fish on ice will not cure, but will preierve them for a time. It will preserve codflsh three weeks and halibut about tbe same, and herring not more than three weeks at tbe most. Cross-examined by Mr. Graham: A good deal depends on the ice-house as to how long the ice will keep. With halibnt we have to supply the ice only once, except on top when it is melted, and then we replenish it. In the summer time wo may have to replenish it once or twice during eight or ten days, as the ice IS continually tijeitiu^ on the top. nr THE VICE-ADMIBALT7 COUBT AT HALIFAZ. Her Majesty the Queen, plaintiff, against The Shipor Vessel "David J. Adams" and her cargo. No. 473. ACTION FOR FORFEITURE. I, Wilson W. McLellan, of the city and county of Halifax, in the prov- ince of Nova Scotia and Dominion of (3anada, commissioner and stenog- rapher, hereby certify that in pursuance of an order of this honorable court, passed the 15th day of September, A. D. 1886, appointing me a special commissioner for that purpose, I administered an oath to, and U fi i 184 : • ; . Eroceeded witb the exaiuiiiatiou of, tli« witiiosHOH wbo wore prodncetl efore nio at Llulifax on the (hiyH aud at the tiineH in the foregoing 01 pageH mentioned, in the preMence of counHel tor both partieH, and thai page 012 contains the teBtiniony of Ueury H. Lawrence, taken in oi)en cQurt before hiH lordnhip Chief JuBtice McDonahl. That the tt^Htiinony of Hiiid witneoMCH whh talien by me in tthort-haud and afterwards transcribed into long-hand, and that the foregoing 02 pages include all the evidence so talien, and are correct. That I have carefully compared the said 02 pages with the originals on file in the ofllce of the registrar of this honorable eourt, and that the same are true aud correct copies thereof. ■.:■..■ ,-...-•••■-,(.:.,...■, W. W. McLellan, ' • Commiauioner, 0t4}» IN THE VICE-ADMIBALTT COURT OF HALIFAX, HO. 479. . • Hkr Majesty the Queen • ■'' ' againut The Ship ob Vessel David J. Adams and her Gaboo. tj/(. ■:ui 'iu. Action for forfeiture. Sb^; Writ issued 10th May, A. D. 1880. ..,,..- Before the chief justice in chambers. Ou argument of the motion aud upon reading the affidavits and papers used thereon, it la ordered that Samuel Hooper, James Stew< art, John Brown, E. D. Simmons, Joseph Butcher, Isaiah Boberts, John Bealon Blroy, Prior Frigel Fischer, Joseph Henley, Calvin Cox, and Frank Aenaer, and others, Iteing the crew of said vessel at the time of her seizure at Digby and witnesses for the defence herein, shall be examined before at Boston, in the State of Massachu- setts, a commissioner appointed for that purpose. The examination of said witnesses shall begin on the 10th day of November, now next ensuing, or at such other date as may be mutually agreed upon between the counsel for the parties herein, and said exami- nation shall go on continuously from day to day so far as may be prac- ticable, but with power, nevertheless, to said to adjourn the same from time to time as may be found necessary. The said is hereby authorized to swear all such wit- uesses, being part of said crew, as shall be prod by the commissioner. n M'liSm r« i>roilncec«, and also with leave to the defendant to re examine said witnesses viva voce npon now matters arising out of sueli viva roc^eroHS- examination, as well nsu|M)ii the examination under said erossinterrog- atories. The defendant shall 8<>rve upon jilaintilTM solicitor a copy of the writ- ten interrogatories he desires to have put to the said witnesses, within eight days after this date, and the plaintitTs solicitor shall within eight days thereafter serve upon the defendant's solicitor a copy of the cross- interrogatories be desires put to said witnesses, and if the plaintitl' in- tends to cross-examine said witnesses, or any of them, viva voce he shall give notice of such intention at least six days iHifore the time llxed fur such examination. If the plain tit!' does not within said periml of eight days furnish the defendant's solicitor with the written cross-interroga- tories he desires put to such witnesses, the defendant shall Int at lioerty to forward the commission without any cross interrogatories on the jiart of the plaintiff, but the witnesses may nevertheless be cross-examined viva voce. The i>lace and hour for the examination of said witn'':;.t>e8 shall be Axed by the commissioner, who shall give at least — days notice thereof to the solicitors for said parties, and in case one of said parties shall fail to attend, then the commissioner shall in his discretion be at liberty to proceed with the examination of such witnesses ex parte, or to at^jonru such examination. The depositions of said witnesses, together with any documents re- ferred to therein or produced by the witnesses, or any of them^ shall be sent to the register of this court at Halifax by the said commissioners, together with this order and the writ of commission which is hereby directed to be issued in accordance with the provision hereof, and such depositions may be given in evidence on the trial of this action by and on behalf of the defendant, saving all just and legal exceptions in the same manner us if such depositions had been taken in oi)en court on the trial of this action. Neither Aldon Kinney, the master of said vessel, nor Jesse Lewis, the owner thereof, shall be examined before said commissioner. The costs of this order and incident thereto and upon the motion there- for and upon and under the said commission shall, be subject to the fur- ther order of this court. The said depositions, together with this order, said commission, and any documents produced upon said examination, shall bo returned to this honorable court on or before the 26th day of November now next ensuing, or within such extended time as the judge may order. Dated at Halifax the 15th day of October, 1886. 11" i is order shall nmissiouer. I ;^ -fe i** ,vMSS^*****^"' !gjSSES5E:3aaSn»'=»«~- >^«a»^W' The ship or vessel '< David J. Adams " and her cARao. j Action for forfeiture. -.^r '^ 1? Writ issued lOtU May, 18S6. - . , / Interrogatories to be put to witnesses to be examined at Boston on bebalf of defendant : 1. State ycur name, age, occupation, and place of residence. 2. If }'ou say you are a tlsherman, please state what experience you have had as suub, and where. 3. Have you over bad any experience in halibut fishing on the banks t If so, how much ? 4. Do you Imow the schooner or vessel David J. Adams, of Glouces- ter, Massachusetts? 5. Were yon ever employed in her as one of her crev! If so, when and for how long, and on what voyages f Answer fully. 0. if you say you formed one of the crew of said vessel at any time, please state whether or not you sailed in her as one of her crew on a voyage made by her last spring. 7. If, ill answer to the next preceding interrogatory, you say you sailed in said vessel on said voyage made by her last spring, please state where she sailed from, and give the date and place she sailed from, and where she departed for. '■,'.:"' 8. What was the nature of such voyage f Answer fully. 9. If you say said vessel was then bound on a fishing voyage, please state what kind of fish she was fitted out to catch, and where she fitted out for. 10. Were any fish caught on said voyage f If so, where and by whom of said crew ? Answer fully and give the quantities caught as near as you can. 11. What kind of fish were caught and in what way were they caught on that voyage f 12. Describe fully the mode and means by which the fish were caught on said voyage. 13. What period of time elapsed between the time each catch of fish upon said voyage was made and the time when the fish so caught were cleaned ? 14. Give the time which elapsed in each case between every step taken towards preserving said fish, ftom the time the fish were caught until the time they were finally put away, not to be disturbed again until the end of the voyage ? 15. When did you leave said vessel, and where I 1(>. State as accurately as you can the place or places where said fish were resp-^ctively caught on said voyage, and state in respect to each time of fishing, as nearly a^ you an, the distance in miles said vessel then was from the nearest land of the province of Nova Scotia. 17. Have you in your last answer specified all the places at which said vessel, her master and crew, or any of them, fished for fi.sh, took fish, or attempted to fish, while on said voyage ? If not, please state ^ hat places you have omitted. I 1886. lOO. at Boston on lence. cperience you n the banks f IS, of Glouces- f If so, wbeu si at any time, her crew on a . you say you I spring, please lace she sailed voyage, please here she fitted where and by ities caaght as re they caught ih were caught h catch of fish lo caught were sen every step h were caught sturbed again ees where said iu respect to I in miles said fova Scotia. laces at which for fish, took t, please state 187 18. Did said vessel while on said voyage catch fish at any time or place witMn three marine miles of any part of the coasts, bays, harbours, or creeks of the Dominion of Canada t If so, when and where and bow often ! Answer fully and accurately as you can as to the place or places of fishing, and give, if you can, the beanngs and disuiuce of said vessel tat such time or times, respectively, from any cape, light-honse, or other prominent landmark nearest to said vessel at such time and times, respectively. 19. Describe what was done to the fish caught upon said v )yage for the purpose of preserving them. 20. Was, or was not, anything done towards that end w 'le said ves- sel was within three marine miles of any of the coasts, bays, harbours, or creeks of Nova Scotia during that voyage 1 If so, answer when and where as fully and particularly as you can. 21. Give the names of the several ports or places said vessel entered while on that voyage, and why she entered them, respectively. 22. Did you remain on board of her while she was in said Annapolis basin up to the time of her seizure ? 23. If you say you did not remain on board of her all that time, state how often you were absent and how long you were absent from her ; and specify where you went, and the time yon left, and the t'me you returned in each case, and on what duties or business yon went. 24. State, if you can, who went and returned with yon. 25. Was or were any preparations made by said vessel, her master or crew, or any of them, upon said voyage with the iutention or for the pur- pose of fishing for fish or taking fish within three marine miles of any part of the coasts, bays, harbours, or creeks of Nova Scotia or of Cauadat 26. Did or did not said vessel or her master, or some of her crew, fish for fish, take fish, or dry or cure tish while within three marine miles of any part of Canada during said voyage! 27. Was any bait or other article intended for use in curing or pre- serving fish bought or otherwise procured by said vessel while she was in said basin of Annapolis upon said voyage I If so, when and where, and from whom'? Answer lully and f;ive particular details. 28. In what mauner, for what purpose, and when aud where was the article or articles so bought or procured iu said basin intended to be used ! 29. If you say that bait was bought, please state if it was bought for the purpose or with the intention of being used to fish for fish or to take or catch fish within tliree marine miles of any i)art of the coasts, bays, creeks, or harbours of Nova Scotia or of Canada, or how otherwise. 30. 13id yoil ever state or admit, or did the master or any of the crew of said vessel, to your knowledge, ever state or admit that you or the said master, or any of the officers or members of the crew of said ves- sel, at any time during said voyage, made preparations to fish within three marine miles of any land in Nova Scotia t If so, by whom, to whom, and when and where was such statement or admission made ? 31. bid you ever state or admit, or did the master or any of the mem- bers of the crew of said vessel, to your knowledge, ever state or admit that you or the said master or any of the officers or members of the crew of the said vessel fished for fish, caught fish, took fish, or dried and cured fish while in said basin during the months of April or May last, or at any place within three marine miles of any part of Nova Scotia during the year 1886 f If so, by whom, to whom, and when and where was such statement or admission made! -tf" m 188 32. If you state that any such admissions or statements as those re- fernul to in the two next precedius interrogatories were or was made, please state whether or not such statement or admission was true or false. 33. State fully everything that was done, if anything was done, to your kuowledg*/, by or on board of said vesst'l while she was in said basin of Annapolis during said voyage towards the prosecution tber*»"<' 34. If you know anything lurther favorable to the defense herein, please state the same as fully as if you were specifically interroijated in relation thereto. 35. State where you were when the codfish were salted. s -' • N. H. MBAaHEB, , Defd'a Solicitor. IN THE VICE-ADMIBALTT COURT OF HALIFAX. Bktween Her Majesty the Queen, Plaintiff, against The Ship oe Vessel " David J. Adams" and heb Cargo i Action for forfeiture. /mIsJ"** f',v>!-M»' .V: TESTIMONY FOR DEFENDANTS. It was agreed by counsel for both parties that the taking of testimony under above commission should begin Nov. 11, 1886, at 11 o'clock, a. m. '''■'''''■^'■'■':^'" ' Nov. 11,1886. James Swansburg, being first duly sworn, in answer to the inter- rogatories annexed to the commission herein, testified as follows: Ans. 1. James Swansburg ; twenty-six ; cook on fishing vessels ; Shel- burne, Nova Scotia. Ans. 2. Have had experience banking, seining ten or twelve years — fishing on the Western banks, George's and Grand banks. Ans. 3. No, sir. „ ,-. -■ ;.^/i., ;., -^;. ''-. Ans. 4. Yes, sir. Ans. 5. Yes, sir; last winter, five trips ; was on the sixth when taken, all the voyages were to George's banks. Ans. 6. I did. Ans. 7. From Gloucester; couldn't tell the date ; in March, I think, or April, for Eastport, Me. Ans. 8. For bait and codfish. Ans. 9. For codfish and halibut; fitted out for George's. Ans. 10. Yes, sir ; at Western bank and on Brown's, by all hands ; about 13,000 weight of salt cod and about two thcusand weight of hali- but. Ans. LI. Codfish and halibut by hand lines, off the deck. Ans. 12. Caught on hooks and lines ; hand-lines, used no trawls or seines. Ans. 1.3. We caught them in the morning and dressed them at night; put them under salt tliem. Ans. 14. After we put them under salt we left them there until we should get back home ; did nothing to them. fa as tbose re- 3r was made, was true or was done, to tin said basin fcfense barein, iterroijated in LOHEB, l'« Solicitor. AX. SGO. ) , . i.> ■ of testimony o'clock, a. m. V. II, 1886. to the inter- follows : vessels; Shel- ivelve years — Ii when taken, ch, I think, or >y all hands; eight of hall- no trawls or lem at night ; ere until we Ans. Ans. Ans. Ans. Ans. 20. 21. 22. 23. 24. ■ 189 Ans. 15. At Digby, Nova Scotia, Friday, early in May ; left Eastport Wednesday, and she was seized the Friday after that. Ans. 16. On Brown's, about thirty to thirty-flve miles ft-om Capo Sa- ble, and on Western banks, which I suppose was forty to fifty miles from the nearest land ; might be more. Ans. 17. I have. Ans. 18. (Question objected to as leading and as involving questions of law, and as being really the question at issue in the case.) No, sir. Ans. 10. We salted the cod, aud put ice on the halibut. (Objected to as before.) No, sir. Eastport for bait, and Digby for bait. Yes, sir. I remained on board ?U the time. I remained on board. Ans. 25. (Oltjected to as before and also as eliciting an intention or purpose and not a statement of fact.) No, sir. Ans. 20. (Objected to as leading.) No- '-^ *■* Ane. 27. (Objected to as to interrogatory 25.) We procured bait at Bear Island, don't know the man's name; on Friday — the day after we got there. Ans. 28. (Objected to as to interrogatory 25.) Out on George's, Brown's, aud Western banks, for catching codfish and halibut when we could get there. Ans. 29, (Objected to as to interrogatory 25.) No, sir. Ans. 30. No, sir. :»,*!.> . v ► ^ .. -. ^-v" _ Ans. 31, No, sir. Ans. 32. I did not so state. - ; ;* • v' x;- « > ni^^" c- !- ■ C^i^ «' • '< Ans. 33. Only buying bait and ice. ■r'^jj:-' /':?■■■- mjivi^rivst . ? 'v Ji '.;■.;. Ans. 34. I know nothing further. > i Question put viva voce by consent of counsel.) nt. 35. State where the vessel was at the time said fish were salted. Ans. 35. On the banks. Gross-examination by Wallace Geaham, Esq., of connsel for com- plainants : Ans. The ice was purchased from the same man at Annapolis basin as the bait was, I think. I was on board when the ice came on board ; couldn't say how much, a large boat load from the shore, and some in the vessel's dory. The skipper Alden Kinney and two or three of the men went ashore for it ; don't know their names ; a young lad came off with the bait ; don't recollect of hearing his name ; couldn't say whether captain went ashore with the men in the dory ; I didn't hear any of the men from the shore called Vroom or Spurr ; had never been there be- fore; know it was near Bear island. It .was between one and two in the afternoon that the bait come off; ice a little later. We had come to anchor ; didn't come to anchor when captain first went ashore ; tide wouldn't let us go in, and we tacked back and forth. Don't recollect hoisting anchor and dropping out later. We got the bait and the ice quite away from the weir — we laid off the weir. I never saw the boy go on board or on board. I suppose he was fifteen or sixteen years old. This was on Thursday, the day before we were seized. We lay off the weir all Thursday night. Friday icorning we got under way about sun- rise. We saw the Lanadmcne about the time we got under way. This bait was herring ; couldn't say whether it came out of the weir. Should think we purchased altogether about eight barrels, three or four from this man, and the rest down further towards the gut; don't know from 190 \7boiii. Got these laut barrals on \ve(lnesiiay afteriiooo, near the gut lending into the basin. Cax)tain went UHhore tbr that about four o'olook We< of ])otatoes there be- sides bait and ice. I gave a deposition before the consul at Digby ; didn't tell about the ice ; he didn't ask : he didn't ask whether we got anything else. I was on deck when tue Lansdoicne's first bjat came on Friday ; they didn't come on board, but asked the captain some ques- tions. I heard the captain tell them he had been Kiere seeiug an aunt; didn't hear him say he had no bait; didn't hear the officer ask if he had. They asked him what he had been doing over there. I don't know whether the oiBcer asked them whether he had ba?t. On Friday, when he came the second tune, the ofiicer asked that; they boarded us three times after we got under way. The captain said then that bait was ten days old, or that the herring were ten days old. The second time, I think, the sailing captain came with the otSuer and crew that had been on board before. The mate of the Lamdowne went into the hold, I think. [ heard no conversation to the effect that the officer of Lans^ downe said " it was reported that you have bought bait," and the cap- tain said, '^ Bring the man here and I will call him a liar." I didn't hear any such conversation ; i t may have taken place. We got aground going out that Friday morning. I think they made us three visits before the seizure ; am not sure. I had heard of the Lamdowne before, and what she was engaged in ; heard she was tending the light-houses and put- ting down buoys ; heard she had a gun and was looking after American fishermen. Knew what the first boat was alter. Don't know where 1 heard her business ; may have been before I left Gloucester ; hame; couldn't andle i^, and under way lit- anding off to- were beating ore sundown, we got nnder idu't Hee him. >w whether or ly and Thurs- ters I heard, on Thursday. ) or three men ard where we er of herring, cd in the ice- rd,and wuhso between two order to beep :he bait. We A; not enouf/h, or not. The part of crew Hails from toes there be- ml at Digby; lietUer we got 'St bjat came lin some ques- seingauaunt; 'ask if he had. I don't know 1 Friday, when irded us three it bait was ten econd time, I that had been ;o the hold, I fflcer of Larui' ' and the cap- I didn't hear igronnd going lits before the bre, and what )nseH and pat- fter American «uow where 1 er; had heard jht out before Don't know 191 from whom the bait was purchased the second time in Eastport ; don't think I got any ice there. Got herring at Eastport for bait ; same kind as at Digby. We left at the time of seizure enough grub for three weeks' supply ; about a barrel of beef, half barrel ftf pork, two barrels of flour. Wo were nearly out of potatoes when we got there. There was a bushel of beans left in her, half barrel of sugar, coal, and tea and cofi^. Kedireot examination by C. L. Woodbury, Esq., on behalf of defend- ants : There were fonr or five hogsheads of salt on board, perhaps more* The deposition was before the American consul at I>igby ; Mr. Phelan, the Halifax consul, came down there and took it. We had one dory. Int. Where did you carry it ? (Objected to as not inquiring into new matter arising out of cross- examination.) t Aus. On the davits over the stern. Aus. When we got nnder way Thursday morning, I think we were heading out ; we were when I went on deck ; the tide was coming in. W^hen it breezed up she was inside the gut, at the mouth of it ; we turned and went up town. Wednesday night we lay two miles from DIgby. Thursday after we turned we passed a quarter of a mile from the town. Bear island is about two miles from l^igby, and wo anchored to the eastward of it. Friday morning, wind was about south, very light. Xaii«(?otfne was laying up to the town then. We layed our course out until we got ashore right in the gut two miles from Digby ; layed there about an hour. The iirst boat came to us at Bear island ; came next after we got off from ground ; very little wind then ; flood tide strong ; tide set us back towards Digby. The second boat, the sailing master, Oaptain Dalsiu, came aboard and examined cargo ; asked skipper no questions J know of; he returned to Lanadoicne ; 15 or 20 minutes later the boat came back with the mate; he ordered us to put about for Digby ; the Lansdoirne was then heaving up her anchor ; she ran past us, and after we put back she came down to us. Don't know as to order to anchor. After anchoring, another boat's crew of two men, not armed, came to us. We had layed there three hours before being ordered to haul down saih ; ^hree or four of their men were then on board and kept possession of the schooner, and she lay under the gun of the Lam- dovcne. Satnrday morning we were informed we must leave the ship ; vessel was at Digby ; we then left. We went aboard the Lansdovcne and were lauded at Saint John by her. When we sailed from Eastport the last time I didn't know where the vessel was bound. (Signed) James Swan^^bueg. DEPOSITION OF EMERSON D. SIMMONS. Nov. 11, 1886. Emebson D. Simmons, being first duly sworn, in answer to interrog- atories proposed under within commission, testified as follows, viz : Ans. 1. Emerson D.Simmons; twenty-six; fishing; Gloucester, Mass. Ans. 2. Been in the business since I was nine years old, fishing out of Gloucester and Portland at the banks. Ans. 3. I have ; one year. , , , ,. Ans. 4. I do. !'.^.r;- <,w;-:r; j;: •^ t : i \ ' -■ y' ^ ' f.m l fx^yfi'iiM liMiiiSiUiiilMiilii^ "i":':r-^ "' 192 AuH. 5. Iwun; on (lvotril)8; the Hixth I was seized; cml-flabing to the bankH. Alls. fi. I (li«l. Alls. 7. Sailed from Crloiicester in April, I tliink ; sailed for the banks. AiiH. 8. Cod Hshin;;, salt-tishint;, catching H.sli and salting every day; halibut we iced. Ans. 1). Codfish and halibut ; fitted out for the banks. Alls. 10. They were caught on Western banks aud Brown's banks, soine'where near 1;{,0(M) pounds codfish, by all the crew. Ans. 11. Codfish ; caught on hand lines. Caught on hand lines, with herring for bait. Fished through the day and cleaned the fish every after- Ans. V2. Aus. 13. noon. Ans. 14. Fished through the day; salted them in the afternoon, not to trouble them until we arrived home. - . , Ans. 15. At Digby, when she was taken. Ans. 10. On the Western banks and Brown's banks; the nearest land, I should think, was thirty-five miles. Ans 17. Those are all. Ans. 18. (Objected to as to int. 18 in Swausburg's deposition.) No, sir. Ans. 19. We dressed them and salted them; iced the halibut. Aus. 20. (Objected to as before.) There was not. Ans, yi. Eastport, to bait; we got our first bait there; we returned to Eastport after bait. I think we got very little there, two or three barrels there ; we couldn't get any more there, and the next port wo got to Digbv ; I suppose we went there for bait, but I didn't hear him say. Ar.o. 22. I did. Arid. 23. I was on shore about two hours the first evening we went there ; I went ashore to rove aronud in the evening about six o'clock ; got aboard about eight. Ans. 24. A number of the crew ; I couldn't tell who they were now. Ans. 25. (Objected to as before in int. 25, Swansburg.) There were not. Ans. 26. (Objected to as before.) No, sir. Ans. 27. (Objected to as before.) We got bait at Digby there ; I don't kuow from whom; I was not with him when he got it; was on board the vessel ; I don't know what day. Ans. 28. (Objected to as before.) Used for cod-flshiug on the banks as soon as we could get to the banks. .., ,. Ans. 29. (Objected to as before.) It was not. - Ans. 30. No, sir. . .. ,> . - , •, ■ :■ Ans. 31. No, sir. Aus. 32. I have stated it was not made. Ans. 33. We went there to get bait, I suppose; we got ice, I believe; that's all that I know. Ans. 34. I know of nothing further. Int. 35. State where the vessel was at the times said fish was salted. Ans. On the banks.; > .-.;»';",-- Cross-examination by Wallace Gbaham, Esq., counsel for com- plainants : I think It was W^ednesday evening I was ashore at Digby; I am not certain. Herring came aboard before that. This was the first place after we get by the light Victoria beach. It was the day we left Eastport. Bait went aboard somewhere about four or five o'clock. I did not go iflbingtothe for tlie banks, every day; )wri'8 banks, every after- frnoon, not to nearest land, sitiou.) No, ilibut. we returned , two or three ct port wo got lear Litn Bay. ling we went t six o'clock ; ' were now. There were gby there; I )t it ; was on 3n the banks ice, I believe j ih was salted, isel for com- by; T am not he first place left Eastport. I did not go ashore with captain and couldn't tell the names of the men who went with him ; I think only one went with him ; I don't think captain was ashore more than an hour; couldn't te!l how many barrels of bait they brought ; didn't see it at that time ; I was forward when it came aboard, but I knew of it. We got the ice close by Itear inland. I went ashore after tea; saw no one I knew; talked to no one; was in no house. Came to anchor Wednesday nipplit down at the beach. Got under way next morning between seven and nine ; about nine. We were at anchor about a mile from the light and about two from Digby. We st(K)d over towards Bear Island ; saw one weir, where we anchored ; got some bait from same man we got ice from; had nothing to do with handling it; we had to ice the bait after it got aboard ; I helped ; did it in the basin ; put a layer of ice, then a layer of bait ; broke up the ice with forks, to keep bait fresh. I helped to getundor way Thursday morning ; it was near nine o'clock ; after breakfast. No one went ashore, that 1 know of, that morning. I went with the captain to get the ice at Bear island — three or four; four besides myself and captain went ; don't recollect who. The herring came in a boat ; a boy of sixteen came with it ; alone, I think ; it didn't come off in the dory. I didn't go after the bait; think two men went with captain Thurs- day; don't know who they were; they were gone about an hour. The three came off again in the dory without bait, and then the boy came, alone I think ; he sculled it off; don't know his name ; didn't hear the name of Vroom. I went then with four men and the captain for the ice; we all came off with the ice,except captain, who remained ashore; be wasn't ashore over an hour after that. Don't know what time we came to anchor off Bear island ; it was in the forenoon ; after we got the bait and ice we got under way and dropped off and anchored. There was no wind to get out and we waited overnight. I saw the bait that came aboard there ; I helped put it on the ice. I saw no one ashore I knew ; there were two or three men there ; don't know their names. Redirect examination by C. L. Woodbuey, Esq. : Ans. The ice was fetched off in our dory, and in a boat we got there. Thursday morning we started out and we got pretty well out to the light and the wind died away and the tide set us back and we put up to Bear island. (Signed) E. D. Simmons. Adjourned to Nov. 16, at 10.30 a. m. ..•■(8i,;.'iv :?;■ ■,^.-(^. DEl'OSITION OF JOSEPH HANLEY. Nov. 10—10.30 A. M. Parties appeared and depositions proceeded as follows : Joseph Hanley, being dnly sworn, in answer to the interrogatories in the commission annexed, testified as follows : Ans. 1. Joseph Hanley: twenty-three; fishing; residence, St. George, N. B. Ans. 2. 1 have been fishing partly in New England vessels out of East- IM)rt and Gloucester for eight years at least ; never did anything else ; fishing on Western banks, George's, and La Have. 104 a 13 j:.: {I ■ m-mmmm "4w 194 AuH. 3. No, sir; never did. , « v>/' An«. 4. YoH, sir. AnH. 5. YeM, sir; l)ei;uii in March last ami wan in her np to time of seizure on a Western bank voyage. Adh. 6. I did. Ann. 7. Sailed tVoin Qloucester; can't tell exactly when ; went to Eaat- port; when we loft Eastport couldn't Hay where we intended to go; went for bait; we left EaHtport for the banks the first time. ■'-■^ r" Ans. 8. Fishing. Ans. 9. Codfish ; fitted out for George's. Ans. 10. They were caught on the Western banks; all of crew caught some ; about 0,000 pounds of cod, I should think ; don't know how much halibut. , ,,nii Ans. 11. Coclflsh and halibut ; caught by hand-lines. Ans. 12. We canglit them on hand lines, patting bait on our hooks and letting lines run to bottom. Ans. 13. About six hours. Ans. 14. We salted them the same day we caught them ; that was about all wo could do. Ans. 15. Left her in St. John. Ans. Id. The first place was on La Have ; I should judge thirty or thirty-five miles from the nearest land, and Western bank I think about sixty miles fVom land. , , ,,., ..»•)-.., Ans. 16. Yes, sir. Ans. 18. (Objected to as in previous deposition.) No, sir. Ans. 19. We dressed them, cat heads oft', washed them, put them be- low, and salted them ; the halibut we ioed. Ans. 20. (Objected to as before.) No, sir. Aus. 21. Easti)ort and Digby basin. I suppose it was on the intea- tionofbait , -■ . . ..,;; ■,;.,• :.,,,-,. k ,, ,.;,;;.■, ^* Ans. 22. Yes, sir. . . , Ans. 23. 1 was on her all the time she was there, except one evening we went ashore for two hours. We Went ashore to see the place about six o'clock and returned about eight. Ans. 24. Most of her crew. •, ;„ Ans. 25. (Objected to as Iwfore.) Not as I know of. Ans. 26. (Objected to as before.) No, sir. Ans. 27. (Objected to.) Yes, sir ; we got bait. I don't know exactly , how much or the man we got it from ; in Digby basin and Eastport. Ans. 28. (Objected to as before.) On Western bank, or La Have, or George's ; on the banks where we were fishing. Ans. 29. (Objected to as before.) No, sir, , , ,; ,/ <<* Ans. 30. No, sir. . - ,^ Ans. 31. No, sir. !■■ ...■.>^.. . -,-• • i...,...,, / , ,.' ' . ^ '■•■ " Ans. 32. I did not so state. Ans. 33. We didn't do much more than take bait I spoke of. Hove anchor once or twice and tried to get out of the basin. That was about all we did. Ans. 34. I know nothing further. Int. 35. State where the vessel was at the times said fish were salted. Ans. On the banks. Cross-examination by Wallace Gbaham, Esq., of connsel for com- plainants: Ans. I think we got ice there. I did not go after the ice; don't know who did ; can't say whether Simmons went ; can't say how many fi. lip to time of went to East- to go ; weot crow oaaght ow how much on our hooks BID ; that was idge thirty or I tbiuk about iir. , put them be- ll on the iuten- }t one evening tie place about ) I'V/li :...'' J. t know ezaotiy 1(1 Eastport. )r La Have, or [)ke of. Hove 'hat was about yyi: th were salted. nnsel for oom- tho ice; don't say how mauy 195 went. I think Brown went OHhore with captain for bait; am not Hure; it was at Dear island, I think. Don't know who went anhore at the gut with the captain. Tlie ctiptain in now ut (HouoeHter; got in Friday last. Three of crew are utdlouct'ster — the two who have given evidence and a (iortnnn. One is at (leorge'H in a vessel; don't know hn to the rest. Oalvin Cook whs drowneil. Tliese men have l>een sailing out of Oloncester this summer, averaging thre the bay. We went to Kast|H>rt for bait; think we hsu\ ice then; vy how nnu^li bait we had when we left East port ; can't make any estimate ; we generally take 18,(M)0 or L*(),(M)0 herring when we can get them ; ilve huixlred to a barrel. I think wo took Hevcn or eight bar- rels there at a rough gncHS. Don't think we got any there the He(;ond time. The tlrst time we went we got all we wanteil ; think it was thirty barrels ; we took enough for baiting; used ])art and heaved the rest away; tbey spoiled; should judge we used half and threw away the rest for want of ice. Don't know full fare for that vessel ; usually stay out four weeks; we had broken fare. We got second time at Eustport ; I think six bar- rels ; am not sure ; got no ice. Did not use on that bait all the ice we had. Should siiy we had four tons left when we sailed from Eastport ; am not sure al>out nine tons originally. Left Eastport Wednesday morning, made Nova Scotia shore, Digby basin ; spoke a little boat after entering gulf, and they told us there was bait at Bear river ; si)oke her in the morning, Thursday, and we went ashore In the att)ernoon. We were beating up. There were five in that little boat. We reached Digby gut Wednesday afternoon, and some bait came olT that after- noon ; spoke the boat next day ; she was fishing for co biiHiii over u iiiiitt rruiii iiioiitli of ^^^ i I'KV tlivro two Iioui'h; tide tUmtod iiHotI'. W» wcn^ bnardt'il bct'oro wn (!ot tiHliori^ and ordcivd (lilt ; hIic boardi>d iim aKaiti lialf an liniir iii'tor \v« i;ot ott'; wu wen> then (r.viiiff to K<'t out. Dait, after it is in a vchml'I a fortiiiK:lit in Hninincr, conldnU be saved b)' a veHHel load of ice ; it ttpoilH, and Iuim to be lioveover. Tliut'N what I mean by tlirowint; away Ibi- want ot ice ; it was thrown over be<;au80 it wasHoft and wouldn't Htay on the IiooUm. (Signed) Joseph Hamlky. DEPOSITION OF JOHN HBOWN. J'- m- John IJrown, bein^ first duly sworn, in answer to interrogatories In the foregoing com mission, testitled as follows: Ans. 1. John lirown; twenty-nine; flshcrman ; St. George, N. B. Ileen tishiii;;' out of Oloucester eight ywirs. Yes, sir; two or three trips. I do. Yes, sir; two winters; last winter and winter before; bank Ans Alls. .'{. Ans. 4. Ans. fi. llshiiig. Aus. 0. Yes, sir. Ans. 7. (rloucester; coiildn't give date; sailed for Eastport. Ans. H. Cod-tlsbing. Alls. 1>. For George's ; for codfish. Ans. 10. Thej' were caught on the Weatorn bank and Urowu's; caught by all hands ; couldn't say as to quantities. Aus. 11. Codfish; by hand-lines ; few halibut. Aus. 12. Caught by hand-lines, with two hooks to each man. Ans. !•'{. Fished all day, and they were dressed at night. Ans. 14. The fish caught in tlie moruing were put away and salted at night. Ans. lu. At Diglty; was taken on board the steamer; took my clotlies out at St. John. Aus. 10. On Western banks, all of sixty miles, and on Brown's, thirty or thirty-five miles, I should say, from laud. Aus. 17. As near as I can remember. Ans. 18. (Objected to as before.) No, sir. . •'.' . Ans. lU. Salted the codfish and iced the halibut. Ans. 20. ((>bjected to as before.) No, sir. Ans. 21. Eastport, first, for bait; we left there for Digby. Ans. 22. I went ashore Thursday morning. Aus. 23. First went ashore Wednesday night for about two hoars, only to walk round; Thursday m'>rning went ashore about nine or ten for two or three hours iuquiring for bait. Ans. 24. All hands went first time, except two or three. Thursday, Captain Kinney and, I think, Frank Arnson. Ans. 25. (Objected to as before.) No, sir. Ans. 26. (Objected to as before.) No, sir. Ans. 27. (Objected to as before.) Yes, sir ; bait and ice. Ice was got near Bear island Thursday ; don't know from whom ; we got bait Thurs- day at Bear island ; can't say from whom. Ans. 28. (Objected to as before.) On the banks, I suppose. Ans. 29. (Objected to jvs before.) No, sir. Ans. 30. No, sir. , Ans. 31. No, sir. tm 197 [l«,V tlUMO two ft iiMlion^ ami Y Kot ort'; wo |iiV. bo naved Tlmt'M what |ovor bowii'h; caught man. t. |v.V anil Halted ok my clothes irown's, thirty t two hoars, It nine or ten . Thursday, Ice was got •t bait Tbars- ose. AnH. 3L'. I (lid not ho Niiy. .., AuH. 3.'). Wo took bait und ico. AuH. .'{-t. I know of notliin};. Int. liH. Htato where tlic vohhcI wan at the thne Haid AhIi were Malted. AnH. On the bankH. CroHs examination by Wallack (iuAilAM, Km(i., counHcl for com- idainantH : Thursday morning I went aHliore about lU oVI(»ek with captain and Frank Arnnon ; met a young nmn about neventeen-; he Haid tliere were herring in the weir; got of him about 4 or /> baneln; couldn't nay whether (;uptain paid iiim ; di8ty to make regulations in respect to the taking and curing fish on certain ]>arts of the coasts of Newfoundland, Labrador, and His Majesty's other possessions in Amer- ica, according to a convention made between His Majesty and the United States of America," and also violated the said convention, which said statute and convention are now in full force ; and the said Warren A. Doughty thereby, on each of the said several occasions and for each of 'the said several oftences, forfeited the sum of 200 pounds, equal in Canada currency to $973.33. (8) The said Warren A. Doughty, between the said 10th day of May, ISiSO, and the said 17th day of May, 1880, in the said ship or vessel Ella if. Doughty, did purchase and procure bait, that is to say, herring^ wherewith to fish, and ice for the preservation on board said vessel of bait to be used in fishing, and of fresh fish to be fished for, taken, and caught by and upon the said vessel and by the master, officers, and crew thereof, and did take fish and was preparing to fish while he and the said ship or vessel Ella M. Doughty were within three marine miles of the coasts, bays, harbors, and creeks of Canada, and of that part thereof known as the bay and harbor of St. Anns. (9) The said Warren A. Doughty, between the said 10th day of May, 188G, and the said 17th day of May, 1880, while he was in the said bay and harbor of St. Anns in the said vessel, was requested to depart from the said bay and harbor of St. Anns by an oflicer acting under his excellency the most honorable the Marquis of Lansdowne, the Gov- ernor-General of Canada, in the execution of orders and instructions from Her Majesty in council, and the said Warren A. Doughty, not- withstanding the said request made as aforesaid, refused to depart from the said bay and harbor of St. Anns. (10) The said Warren A. Doughty, by virtue of the matter set out in the two next preceding paragraphs, did violate the said act and conven- tion, and did thereby forfeit the sum of 200 pounds, equal in Canada currency to $973.33. (11) The plaintiff claims the three several penalties aforesaid of 200^ poilnds sterling, equal in currency of the Dominion of Canada fo $973.3$ \ ■^fmvfr*fff^fm'!!<" bores of tlio purchasing pose of shel- iiiing water, lid, between }, (lid in and ,ud harbor of re of the bay ihasing bait se of shelter ng water. , ou or about oner Ulla M. 1, and within of St. Anns tish, and for uiages, or of aid act of the eland passed g George the egulatious in the coasts of ions in Amer- ad the United 1, which said id Warren A. id for each of nds, equal iu li day of May, ihip or vessel ( say, herring, said vessel of )r, taken, and cers, and crew ie he and the irine miles of it part thereof h day of May, 1 the said bay ted to depart acting under »wne, the Gov- d instructions Doughty, not- to depart from Atter set out iu tct and couven- iial in Canada* iforesaid of 2(K> aada (o $973.3» \ each, and amounting in all to the sum of 12,920, and the plainttlT claims payment from the defendant of the said last-mentioned sum. Place of trial, Halifax, in the county of Halifax. Delivered the twenty-second day of October, 1887. Wallace Graham, Solicitor of the Attomey-Oeneral of Canada. [IndoTMd.] Filed October, 1887. ,^ ^^ _^ ^ ^ . Supreme Court. Queen v. Warren A. Doughty. Statement of claim. Received October 22, 1887. N. H. M. •J 4 --». "x-,»rjo5J»--i«t„,ivSi»SiiaiiiS,33EMi»S-~<=l"