SUPREME COURT. Saturday, 13th September. Before a special jury. Macfarlane versus Crummer.

New Zealand Spectator and Cook's Strait Guardian, Volume II, Issue 51, 27 September 1845, Page 3

SUPREME COURT. Saturday, 13th September. Before a special jury. Macfarlane versus Crummer.

This was an action of Trover to recover the value of one ton and seven hundred weight of whalebone purchased by the defendant at the Wairoa whaling station, in Hawke's Bay, which whalebone the plaintiff contended was his property, and had been wrongfully purchased by the defendant, of the whaling master at the station, who had no authority to sell. The principal witness for the plaintiff was John Taylor, the mate of the Kate. He stated that in December, the Kale, then commanded by Captain Macfarlane, went to Hawke's Bay and formed the whaling station in question. The Kate had on board all that was necessary for that purpose, and that then, and at several subsequent visits in March, May, July, and August, 1844, " supplies for the fishery" were landed. _ He said that the fishery was always deemed by him to be Mr. Macfarlane's, and that it was generally known as " Macfarlane's fishery" on the coast. In July Captain Salmon took command of the Kate, but when the plaintiff was on board he gave orders, and at the end of the season he settled accounts. The fishery was conducted on the principal known as "a share party." In cross-examination he admitted that he should have known it if called " Morrison's fishery," but said that though the whalers called it " Morrison's," when any question as to ownership was raised, it was always spoken of as Macfarlane's. He explained that Morrison was " master of the fishery." Some boats and a trypot were there before Mr. Macfariane's time. Firmin V. Martin — Knew the station ; the men told him they were going to be fitted out by Macfarlane ; it was generally know as Macfarlane's station ; the witness knew five stations on the East coast, and did not know one called by the headsman's name; he heard it called Macfarlane's at Lewis's, 200 miles off. James Stuart, whaler— Knew the station, it belonged to Captain Macfarlane; he proved the purchase of the bone by the defendant, and stated that the general custom was, that the party who fitted out the station had the bone and oil; he also gave some evidence which went to show that the station was not fully supplied with casks, and in consequence two whales were lost, and compensation made to the men by Captain Salmon for Captain Macfarlane, and that generally the whalers looked to Macfarlane for their money, and stopped the oil until payment was made or secured ; There was other evidence to the same effect. John Janet, of Waikawaite, explained at length the footing on which the stations stood; some were on the "share system," some on the "lay system;" on the share system the people might supply themselves, and then share the value of the oil and bone in certain proportions to be agreed upon. The pulling hands got one "lay" or share, the steersmen one lay and a quarter, the headsmen one and a half, and the master of the station one lay for each boat, and if he headed his own boat he got a lay and a half for that duty ; the outfitters kept the station supplied and made advances to the hands; the "master"

was his agent to distribute the slops ; the custom there was for the oil and bone to go to the person who supplied the station j that he took it at £12 per ton for oil, and £80 for the bone : In the lay party the men were supplied with slops at the risk of the outfitter, and got a smaller lay or share. Mr. Jones said he sometimes had written agreements and sometimes not ; that he considered such agreements useless. William Fitzherbert, merchant, gave evidence strongly in favour of the custom, and so did George Young and William Popplewell, and the latter knew the station as either Captain Macfarlane's or Captain Salmon's, or both together. This closed the case for the plaintiff. For the defendant a good deal of evidence was given to shew that the station was known as Morrison's. John Campbell, Richard Templeton, and Joseph Carroll proved that they signed articles with Morrison ; and tKat before December, when Macfarlane first came there, that Morrison and others had agreed to form a "share party;" that a try-pot was there, and that they had built some boats, and induced the natives to build a house, and they appointed Morison to be "chief headsman;" they had some money, and intended to go to Port Nicholson for supplies, but the money appeared only to be about £30 ; they saw Captain Macfarlane there at the beginning and the end of the season ; the property received from the defendant for the bone went to the purposes of the station, and it seemed that the plaintiff had the benefit of the supplies left by Mr. Crummer. There was a good deal of cross testimony as to the supplies left by Capt. Salmon, and as to minute points in the accounts, but the general current of the evidence on both sides went to show that Mr. Macfarlane had interfered throughout whenever he was on board the Kate, and had settled accounts at the end. It was also shewn that at the time the schooner Odd Fellow, with Mr. Crummer, put in, the station was short of some things.

Mr. Hanson then addressed the jury for the plaintiff. — He contended that there was abundant proof that the plaintiff was the owner of the station, and it was the universal custom that all the oil and bone should come into his possesion, and was his property the moment it was caught; he had not confined his case to the testimony of merchants, but had called whalers and others from the coast with the best means of knowing. Even the defendant's witnesses had supported his case, and against such clear testimony of ownership, the defendant was bound to shew the clearest case of a right on the part of Morrison to dispose of the property. His learned friend had failed to shew any one point that he had opened. If the Jury, by their verdict, supported the rights of a stranger to visit the stations on the coast, and make such purchases, there would be no security for the substantial owner, and he left the case in their hands, confident as to the result. Mr. Ross made a very able address to the Jury on behalf of his client. He had shewn by the best possible witnesses, the people of the station, that Macfarlane was not the owner. It was a " share party" undertaken by the people themselves ; and although Mr. Macfarlane had furnished some supplies, so had Captain Salmon ; and if they gave the former a verdict, on the same principle, they must give the latter a verdict, should he bring an action. No custom could be set up against the clear ownership of Morrison. Macfarlane had had all the benefit of his client's supplies, and what he now sought was to make him pay twice over. Mr. Justice Chapman summed up. The case had taken a turn rather different to what he anticipated, and he must call the attention of the Juiy to the points to be kepi in view. Two cases had been tried in this Court, one before his learned brother Martin, and the other before : himself, in which the points raised in this case did not occur. In the former there was proof that the defendant well knew that the property was in the plaintiff, and that the person of whom he purchased had no right to sell, and in the latter the ownership was not disputed, and the only person who ever could have had an implied authority to sell was drowned the" day before. If therefore any of the Jury recollected these cases, they must dismiss (hem from theirthoughts as having no bearing on the present. (The learned Judge then stated and explained the nature of the pleadings, and the real point at issue.) The Jury would have to consider the question of ownership. If they considered Macfarlane as the real owner of the station, then the validity of the purchase would depend on the authority of Morrison as agent to sell. No express authority had been shewn, but it might be implied from the general custom and acts of the parties. They had evidence to shew that Morrison, if not owner, had only authority to catch fish and distribute the supplies, and if they thought that was the extent of his authority, a sale could not be deemed justifiable except under pressure of great necessity. He should be disposed to think (to put an extreme case) that if a station were in want of food, a sale to supply food might be deemed to be within the agent's implied authority. Some evidence of short supplies was given ; it was for the Jury to say whether the necessity had arisen. But the Jury might be of opinion that Morrison was the true owner, in which case he (the learned Judge) was bound to state to them that no custom could be set up to divest Morrison's property in the oil and bone caught, and consequently of his right to sell. As he would read the evidence, they would form their opinion as to the original ownership. But the enterprise of whaling was of a peculiar nature, and it seemed to be such as to let in evidence of custom as to who was to be deemed owner of the property. If they deemed Morrison the owner, no agreement to deliver oil and bone not in being could prevent. They must be of opinion that either by means of original ownership, or by the custom, the property in the oil, &c. vested in the plaintiff Macfarlane at the very moment it was caught. Jones's evidence was the clearest as to the footing on which the enterprise was carried on. They all seemed to have an interest, but it was the universal usage for the oil to belong to the outfitter. Some cautions were necessary in giving force to such a custom. Did the witnesses who spoke of custom really mean custom, or merely an agreement which it was customary to make ? All the witnesses spoke of agreements either verbal or written j this seemed to operate against the cus-

torn. Another test which they might apply was this — Did the outfitter retain any claim against the manager of the siation in case of loss? because if so, the outfitter could hardly be deemed the owners, taking all risks. Mr. Jones's evidence was in favor of such a claim. The learned Judge then read £he evidence, calling the Jury's attention to certain points where it seemed necessary. The Jury retired, and after about an hour and a half's deliberation returned a verdict for plaintiff— damages £45; (apparently giving Mr. Crummer credit for the value he had already paid in goods.)