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C



No.  826.

McGRATH  v.  KAVANAGH.
¹

1861,  January.    BRADY,  C.  J. ;  LITTLE,  J. ;  ROBINSON,  J.

Insolvency—Receiver of voyage—Insolvancy Act 19th Vic., cap. 14—Servant of supplier of bait, how far a privileged creditor—Insolvancy of master
—Meaning of the word
“ fish.”

Under the provisions of the Insolvency Act 19 Victoria, cap. 14, the servant of the bait supplier is not entitled to a preferable security for his wages.  The bait master himself is only protected because he is expressly named in the statute.  Bait happening to be fish does not therefore come under the general term "fish" as used in the Act.

HON. SIR. F. BRADY :

It was not my intention to have done anything more in this case than express my concurrence in the judgment pronounced by Judge Robinson and in the grounds upon which he rested the conclusion at which he arrived, and also to express my regret that I should differ from the opinion of my brother, Judge Little, because I thought, in a meritorious point of view, the servants of the bait-master might be just as well entitled to such preferential claim against an insolvent estate as is given to all servants engaged “ in the catching, curing or making of fish or oil.”  I own I thought the language which we had to interpret was so plain, and I repeat, with the gravest sincerity, that I think so still, that no doubt could arise upon the true construction of it, but when we remember that my brother, Judge Little, was a party to the framing of this enactment, and how difficult it is to divest ourselves of pre-conceived impressions, and bring our minds to that even and unprejudiced temper which enables one to judge calmly and dispassionately as to the true import and effect of the language employed, we may well feel, and I say this with great respect, that such impressions may in this case have caused the difference of opinion which exists among the judges.  The language of an Act of Parliament is, in general, to be read by this Court as we read the language of every private deed, in its plain and ordinary meaning, and it is our duty to discover from it, and from it alone, because outside either document we cannot go, the intention of the legislature in the one instance, and of the parties in the other.  Nor can we, if we believe their intention was to do something which the language they have used does not extend to, by interpretation extend that language to what was omitted or overlooked, because we would be, in doing so, exceeding our legal position, as mere expounders of the law, and usurping the authority of our law makers, the Governor, Legislative Council and House of Assembly.  The language we have to interpret or construe in this case is contained in the first section of the 19th Victoria, cap. 14, and is as

¹ Newfoundland Reports, 1854–1864, pp. 565-575.


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follows :  “ When it shall be made to appear that the hirer or employer of any seaman, fisherman, or other servant, is insolvent, and unable to pay his creditors twenty shillings in the pound, such seaman, fisherman, or other servant, actually employed in the catching, curing or making of fish or oil, and such person as shall have supplied bait to the hirer or employer aforesaid, and who shall be creditors for wages, share or bait, for the current season, shall upon all such fish and oil taken, cured or made by the hirer or employer aforesaid or out of the produce or value thereof if the same be in the possession of the hirer or employer, or any other person aware of or privy to the hiring or employing of any such seaman, fisherman or other servant, or having notice of the claim of such seaman, fisherman or other servant, whether the same be accruing or due, at or before the time of such other person receiving such fish or oil, or the produce or value thereof, or before paying the hirer or employer for the same, be considered privileged creditors and shall first be paid twenty shillings in the pound, so far as such fish and oil or the produce or value thereof shall go.”  The bait-master in this case became insolvent, and his servants now claim to have a right, under this section, to be paid their wages in full out of the money he earned as bait-master before any other creditor of his could make any claim to this portion of his property.  It is now an universal rule, that in case of insolvency, all the creditors of the insolvent rank in equal degree on the property of the insolvent, unless those who are mortgagees or those who claim a legal priority by reason of some other like specified lien, upon all or some portion of the insolvent’s property as entitles them to a prior payment as against the general creditors.  When therefore a class claim an extraordinary privilege, as in this case, to be paid in full their claims out of the property of the insolvent in preference and priority to the shares which the general body of the insolvent’s creditors claim out of the deficient estate, it is not too much to say, that before a Court of Justice establishes the validity of such a claim or other privilege, their right to it should be shewn to be clear and unquestionable.  In my judgment the language of this section not only does not include the servants employed by the bait-master, but in truth it amounts to an express exclusion of them from the benefit of this enactment.  If I wanted evidence of that fact I would not go farther than the elaborate judgment of my brother judge.  Can it be said that the bait-master is a person “ actually employed in the catching, curing or making of fish or oil,” if even the Legislature thought so why did they add to these words “ or such person as shall have supplied bait to, &c.”  And if the bait-master would not be entitled to this preferential claim, were it not for the express language used in reference to him, how can his servants sustain a claim for such a preference where they are not named, but are in effect expressly excluded from this enactment.
The very language of the Act, when it speaks of the person who shall supply bait, distinguished him and those employed under him from the servants engaged in the “ catching, curing, or making fish or oil,” and when it expressly extends the privilege and preferential right to the bait-master, it thereby excludes his servants on the well known rule of construing documents expressio


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unius est exclusio alterius.  I really should not have labored this question, but from all I heard upon the subject of an equitable construction of statutes, as bearing upon this case from my brother judge, and I will merely observe that as a general principle, I hold that that doctrine ought to be cautiously resorted to by Courts of Justice, because when countenanced or adopted it tends to substitute for the law of the Legislature the worst of all law, &$8220; judge-made law.”  I will merely cite a paragraph or two from the treatise of Mr. Dwarris, upon whose authority my learned brother has so largely rested his opinion in this case.  Thus in Dwarris on statutes, 703, that able writer says : “ The fittest course in all cases where the intention of the Legislature is brought into question, is to adhere to the words of the statute, construing them according to their nature and import, in the order in which they stand in the Act of Parliament.  The most enlightened and experienced judges have for some time lamented the too frequent departure from the plain and obvious meaning of the words of the Act of Parliament by which the case is governed, and themselves hold it much the safer course to adhere to the words of the statute construed in their ordinary import than to any inquiry as to the supposed intention of the parties who framed the Act.  They are not (as the most learned members of a learned body best know) to presume the intention of the Legislature, but to collect them from the words of the Act of Parliament ;  and they have nothing to do with the policy of the law.  This is the true sense in which it is so often impressively repeated, that judges are not to be encouraged to direct their conduct by the crooked cord of discretion but by the golden metwand of the law, i.e., not to construe statutes by equity, but to collect the sense of the legislature by a sound interpretation of its language, according to reason and grammatical correctness.”
Upon these grounds, I am of opinion that judgment should be given for the defendant. Judgment accordingly.



HON. MR. JUSTICE LITTLE :

This is a summary action, brought by the plaintiff against the defendant for £8 17s., being the balance of wages due to the plaintiff as a supplied servant, at the fishery last summer, of one William Thorne, a planter of the defendants, and which sum is claimed from the defendant as the receiver of Thorne's voyage, the latter being insolvent and unable to pay the wages.  It appears that the plaintiff was shipped to Thorne in the defendant’s office, in the usual way ;  that he served as a hand in Thorne’s bait skiff for the time agreed upon ;  that Thorne’s fishery, in which the plaintiff was engaged, was the catching and supplying of bait, that is to say, herring and caplin, to various planters of the defendant and others ;  that a portion of the proceeds of this voyage, the money realized by the sale and supply of the herring and caplin, amounting to about £90, was paid to the defendant, and received by him with a full knowledge of the plaintiff’s claim for wages ;  and Thorne being insolvent, the plaintiff claims to be paid his balance by the defendant under the local Act for the amendment of the Insolvency Law, 19 Victoria, cap. 14.


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To settle the various questions raised on this important subject, fishing servants’ right to follow the voyage for their wages, the 19 Victoria, cap. 14, was passed by the Legislature.  It has relation not only to seamen and fishermen but also to clerks and servants of every description ;  and while it secures to the fishing class of servants and sharemen the right to follow the voyage, or any part of it, or the produce or value thereof, into the hands of the receiver for the payment of their wages or shares, in the event of the insolvency of their hirers, such receiver having notice of their claim, it like wise secures to the general servants a prior claim on the insolvent estates of their employers for their last year’s wages.  In fact, its provisions extend to all kinds of claims upon insolvent hirers and insolvent estates, defining their order of priority, and affording summary means of enforcing such demands as the present.
By the first section it is enacted that when it shall be made to appear that “ the hirer or employer of any seaman, fisherman or other servant actually employed in the catching, curing, or making of fish or oil, is insolvent, such seaman, fisherman or other servant, and such person as shall have supplied bait to the hirer employer, and who shall be creditors for wages, shares, or bait for the current season, shall, upon such fish and oil taken, cured or made by the hirer or employer, or out of the produce or value thereof, in the hands of any person aware of or privy to the hiring, or having notice of the claim, whether the same be accruing or due at or before the receipt of the fish or oil, or the produce or value thereof, or before paying for the same, be considered privileged creditors, and shall first be paid twenty shillings in the pound, so far as such fish and oil or the produce or value thereof shall go.”
The third section then prescribes the mode of proceeding by the servant or supplier of bait, before any court or justice of the peace, against the receiver, without any formal declaration of the insolvency of the hirer or employer. The fourth section enables the receiver to make any defence to the claim which would be available to the hirer if the action had been taken against him ;  and provides that he shall not be liable unless it be proven on the trial that the receiver was aware of or privy to the hiring, or had notice of the claim for wages, shares, or bait money at any time before or at the time of receiving “ the fish and oil or a part thereof, or the proceeds of the same,” or before payment therefor, and states that then he should only be liable to the extent of the voyage, or part, or produce, or value thereof received by him.”
Now, it appears to me that the simple question we have to determine in this case is this :  Was the plaintiff “ a seaman, fisherman or other servant employed in catching, curing or making fish or oil ? ”  In other words, was he a servant engaged in the fishery ?  I think there can be no doubt about that.  In my judgment he was as much a fishery servant, and as actually engaged in catching fish while employed in his hirers bait skiff catching herring or caplin, as if he had been catching cod-fish.  The Act make no distinction as to the kinds of fish which the servant may be employed in catching.  The general term “ fish ” comprises all kinds of fish.  As to any usage with local insurance companies, confining the term “ fish ” to dry cod-fish, when


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mentioned under certain circumstances in policy of insurance, we have no evidence of any usage in this case ;  and even if we had, that would not affect the clear terms of an Act of the Legislature, which must be interpreted according to the true intent and meaning of the language used ;  and the well known and established acceptation of the general term “ fish,” as understood in the English language, is that by which we should be governed in reading this Act.
In Dwarris on Statutes, page 573, it is said that the words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use ;  for jus et norma loquendi is governed by usage, and the meaning of words spoken or written ought to be allowed as it has constantly be taken—loquendum est valgus.  But if the usage have been to construe the words of a statute contrary to their obvious meaning, by the vulgar tongue and the common acceptation of terms, such usage is not to be regarded, it being, say the books, an oppression of those concerned (to force upon them a conventional meaning) than a construction of the statute ;  and though where the words of the statute are doubtful, general usage may be called in to explain them, for optimus legem interpres est consuetudo—usages that can control an Act of Parliament must be universal and not the usuage of any particular place. —1 S.R. 728.  And Chief Justice Best says that the intent of the Legislature is not to be collected from any particular expression, but from a general view of the whole Act of Parliament.—4 Bing, 196.
In construing this Act, it is right to refer to previous Acts in any way relating to the same subject, for it is an established rule that all acts in pari materia are to be taken together as if they were one law, and they are directed to be compared in the construction of statutes, because they are considered as framed upon one system and having one object in view.—Dwarris, 569 ;  4 S.R. 447.  We who have read the old returns made to the Imperial Government of the trade of this colony, which were published by order of Parliament, know that the fisheries of this colony were not confined exclusively to codfish, but that salmon also to a large extent, and herring also, formed considerable items in the exports of the colony.  The 15 Geo. III., cap. 31, was an act for the encouragement of the fisheries, and how can it be said that the term “ fish ” used in the sixteenth section, and in other old fishery Acts, as well as in the 25th section of the Judicature Act, is confined to codfish ?
In 1841 the local Legislature passed an Act “ to regulate the packing and inspection of pickled fish for exportation from this colony,” some sections of which detail the mode of sorting, weighing, salting and packing fish in barrels.  It surely could not be contended that this refers to codfish, for the Act in other sections specifies different kinds of fish, such particularly as herring and salmon, and in an amendment to this Act passed in 1845, a duty of three shillings per cwt. is imposed on the exportation of fresh and salted or pickled herring and caplin in bulk.
It must be evident that the supply of bait is of the first moment in the prosecution of the fisheries.  Without it, what security would the merchant

[1927lab]




 

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