p. 2004

have for his supplies ?  Without the employment of servants in the bait-skiff, there would be no use in employing servants in the hook-and-line cod-fishery.  The 8th section of the Act under consideration gives to the supplying merchant a preference for supplies furnished for the fishery in the distribution of insolvent estate of planters or persons engaged in the fishery, subject to the prior claims of the servants.  Can it be contended that the merchant who supplies a bait-skiff owner like Thorne, would not have a prior claim on his insolvent estate for such supplies in the terms of this section ?  Then, if the supplier be protected in this way, as I think he undoubtedly is, it would seem very unreasonable that the servant should be excluded from the benefit of the act, which is remedial in its operation, and should, therefore, as urged in argument, be construed liberally.  In Dwarris, 641, it is said, “ A remedial act should be so construed as most effectually to meet the end in view and to prevent a failure of the remedy. As a general rule a remedial statute ought to be construed liberally.  Thus a statute may be extended by construction to other cases within the same mischief and occasion of the act, though not expressly with their words.”  The statute 9 Richard 2nd, C. 3, gives writ of error to him in reversion.  It was resolved in Winchester's case, 3 Rep. 4, that although the statute speaks only of reversions, yet remainders are also taken to be within the purview thereof.  Again, in Dwarris, page 617, “ A remedial statute will be extended by equity to other persons besides those expressly named.”—Porter’s case, 1 Rep. 25 ; upon which doctrine the following observations were made in Platt’s case, Plow, 36 :  It is not unusual in Acts of Parliament, especially in the more ancient ones, to comprehend by construction a generality where express mention is made only of a particular, the particular instances being taken only as examples of all that want redress in the kind whereof the mention is made.  Thus the Act 1 Richard 2, c. 12, orders that the wardens of the Fleet shall not permit prisoners in execution to go out of the prison by bail or baston, “ yet it has been adjudged that this Act extends to all gaolers.”—in page 557. A thing which is within the object, spirit and meaning of a statute, is as much within the statute as if it were within the letter.—Plow, 336, Rep. 101.
While the Insolvency Act in question includes all  “seamen, fishermen and other servants engaged in catching and curing fish,” surely under these authorities it would not be going too far, if it were necessary, to resort to an equitable construction of its provisions, in such a case as the present, to admit that a fisherman or servant engaged in fishing for bait is within the object, spirit and meaning of the statute, and being within the mischief sought to be corrected is therefore within the remedy provided.  In Boutin’s insolvency we have held in this court that a servant, who was a store-keeper and occasionally employed about fish—herring and cod-fish,—was a privileged creditor upon the produce thereof for his wages.  In Rennie’s insolvency the produce thereof for his wages. In Rennie's insolvency Mr. Archibald states in his note to the provisions of the Judicature Act relating to menial or domestic servants, that  “ the Courts have given the section a liberal construction where it has appeared that the party performed menial or domestic service, although generally employed in another capacity, and that rent of a


p. 2005


fishing room was allowed to rank as supplies for the fishery as a prior claim.  I think, however, that a fair and common sense interpretation of the present act will comprise the plaintiff’s claim, without reference to that equitable and liberal construction contended for, and usually given to such acts, according to the authorities cited.
It seems that the provision securing to the person who shall have supplied bait an equal right with the fishing servant to follow the voyage of each person to whom he supplies bait, on the proceeds in the hands of the receiver for the payment of his bait money, has created in the minds of my brother judges an impression that while the bait-skiff owner is included, his servants are excluded from the benefit of the Act.  Now, I should regard his claim, without this special provision, in precisely the same light as that of a planter, who sells a quantity of fish to A.B., and is left to the common law remedy, the same as any other vendor, in fact, for the recovery of the price.  The planter, in such a case, has no prior claim over any person, in the event of the insolvency of the purchaser.  The bait supplier, however, is so important a person in carrying on the fishery, that it was deemed expedient by the Legislature to place his claim for bait supplied for the prosecution of the fishery upon the same footing as that of the fisherman’s wages.  He is enabled to follow the voyage caught by the persons to whom he supplied bait, for the price thereof ;  but his servants, who are not less important than himself, if not more so, in the prosecution of the voyage, are only able to follow their voyage or any part of it, or the proceeds, produce, or value thereof ;  that is, in this case, the money received by the defendant for the herring and caplin caught by them and their employer and supplied by him to the defendant’s planters. If that money be not the  “ proceeds, value or produce ” of the fish caught by the plaintiff and his brother servants, I should be at a loss to know what else it is, according to the first and fourth sections, which latter section is somewhat more comprehensive in its language than the other, for the receiver is thereby made liable for the servant’s wages, to the extent of the voyage, or part, or produce, or value thereof received by him.
I have thought it proper, differing as I do from the conclusion formed by my brother judges, to be thus particular in the expression of my opinion upon this matter ;  for although the amount at stake in this case is small, yet the principle, viewed in a practical light, involved in the decision, is of considerable importance to those engaged in the fisheries of the colony.
I can only say that I have given the Act in question much consideration, not only on this but on previous occasions.  Perhaps, unknown to myself, I take a view yet based somewhat on preconceived opinions, as to the operation of its provisions.  But I have endeavored to weigh the subject strictly and impartially, as I feel I have done, according to the best of my judgment apart from any such opinions ;  and in concluding that the plaintiff has a legal right to recover, I have been guided by the language of the Act as I interpret it, and not simply by the policy it indicates, with a single desire that I am sure influences each member of this court to administer justice according to law.



p. 2006


HON. MR. JUSTICE ROBINSON :

The plaintiff was a servant during the past summer to one Thorne, who was a supplier of bait, and the defendant received some money due to Thorne for such bait, which he placed to the credit of his own account with Thorne.  By virtue of such receipt the plaintiff claims the right of holding the defendant liable for plaintiff’s wages.  Between the plaintiff and the defendant there is no privity of contract, and the liability of the defendant to pay Thorne’s debt can only arise, if at all, under the provisions of the Insolvent Act, 19 Victoria, cap. 14.
The first section enacts 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, and such person as shall have supplied bait to such hirer or employer shall upon all such fish or oil taken, cured or made by such hirer or employer, or out of the produce or value thereof, be considered priviledged creditors and be paid twenty shillings in the pound, so far as such fish and oil or the produce or value thereof shall go.
The second section provides the course which parties may pursue in their actions against the  “ receiver of such fish or the produce or value thereof.”  The other parts of the Act are subordinate to the above enactments.
Giving as liberal construction to the Act as its language will fairly admit, I do not think the servant of the man who supplied the necessary article of bait is entitled to a preferable security for his wages, any more than the servant of the man who supplies boats, provisions or other necessaries for the voyage.  The baitmaster is protected only because he is expressly named, and if the Legislature intended to extend the protection to his servant, I suppose they would have said so.
The plaintiff cannot claim under the general word  “servant,” unless he was actually employed in the catching, curing or making of any fish or oil that went into the merchant’s hands, which is negatived.
I cannot think that because bait happened to be fish, it therefore comes within the general term  “ fish ” as used in this Act.  The Act itself draws the distinction between  “bait and fish,” and shews that the fish on which a lien is given is a different article from the bait supplied to catch it ;  the former is intended to be made and cured, and could be followed, the latter is taken for the purpose of being used at once.
If the servant in a bait-skiff is a casus omissus from this Act, the Legislature is at hand to remedy the defect, if desirable ;  but we have to administer the law as we find it, and under it I am of opinion the plaintiff can establish no preferable claim, and has no right of action against the defendant.

Plaintiff must therefore be non-suit.

Mr. John Little for plaintiff.

The Attorney General for defendant.


[Table (Exhibit 829) follows as page 2006A. [sic]

[Below is a partial image of the table. Click on image to view the full table in html format.]

p. 2006A

No. 827



A STATE OF THE NEWFOUNDLAND FISHERY
IN 1699 TO 1792 ;  TAKEN FROM THE RETURNS OF THE ADMIRALS WHO COMMANDED ON THAT STATION.*

(273 kb)

p. 2007


RECAPITULATION OF THE AFOREGOING ACCOUNT.


Average of Years. Number
of
Ships.
Burthen
of
Ships.
No of
Men
belonging
to the
Ships.
Munber
of
Passen-
gers.
Number
of
Boats.
Quintals
of
Fish
made.
Quins of
Fish
carried to
Market.
Tierces of
Salmon
carried to
Market.
Tons of
Train
Oil
made.
No of In-
habitants
remaining
in the
Country
in the
Winter.
1699, 1700, 1701 192 7,991 4,026   .  .   1,314 216,320 154,370   .  .   1,049 3,506
1714, 1715, 1716 161 9,198 2,119   .  .   982 97,730 102,363   .  .   891 3,501
1749, 1750, 1751 288 33,512 4,108 3,149 1,370 432,318 422,116 1,308 2,532 5,855
1764, 5, 6, 7, 8, 9
1770, 1, 2, 3, 4
516 40,691 5,435 6,441 2,163 626,276 524,296 5,146 2,882 12,340
1784, 5, 6 ,7, 8, 9
1790, 1, 2
480 48,950 4,422 4,617 2,258 637,955 622,108 2,974 2,364 15,253

Office of the Committee of Privy Council for
Trade, Whitehall, 19th March, 1793.
  




A true Copy, taken from the Admirals
Returns in this Office
Geo. Chalmers,
Chf. Ck. Com C1 Trade, &c.

[1927lab]




 

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