AWARD OF THE FISHERY COMMISSION. 3387 



done so, but it did not come in their minds. Captain Tory testifies that 

 Captain Goodwin repeatedly admitted to him that he was aware that 

 their fishing in shore was a violation of the law, and pleaded that he 

 would not be severe on him. In his cross-examination, Captain Tory 

 says that at the time of such admissions he does not recollect Captain 

 Goodwin saying that the fishing was done without his knowledge or 

 against his orders. Captain Tory does not think that he said so, as wit- 

 ness believes the Captain was aware the Wampatuck went out from the 

 harbor to fish, and that he saw her within the limits. Gibson also tes- 

 tifies that on their way across the Bay he heard Captain Goodwin tell 

 Captain Tory that he could not blame him it was not his fault that 

 he blamed himself, and that he knew he had violated the law. 



" This mass of testimony having been open to the inspection of the 

 defendants and their counsel since the beginning of September, it is very 

 significant that they produced no witness in reply, and that it stood at 

 the hearing, wholly nncontradicted. As neither want of ability, nor of 

 zeal, can be imputed to the counsel, the necessary inference is, that the 

 facts testified to are substantially true. 



"Two or three arguments were urged at the hearing, which it is in- 

 cumbent on me to notice. 



"It was said that there could be no forfeiture, unless an intent to vio- 

 late the law were clearly shown on the part of the prosecution. The 

 answer is, that the intent was shown by the admissions in proof, and 

 that, independently of the admissions, where acts are illegal, the intent 

 is to be gathered from the acts themselves. 



"It was next said that the captain of the Ida E. ought to have noti- 

 fied the master of the Wampatuck, but it was admitted in the same 

 breath that notice was not required in the Statute, the Act of 1870 being 

 somewhat more stringent in that respect than the Act of 1868, while the 

 private instructions to the captain of the cutter were not in proof. 



"The main objection, however, was, that the fishing having been done in 

 the absence and without the authority of Capt. Goodwin, the vessel was 

 not liable to forfeiture. Now, it is to be noted that there is no evidence, 

 nothing under oath, of the master having prohibited, or been ignorant of, 

 the fishing. I have stated his disclaimer as accompanying, or qualifying, 

 his admissions; but if the prohibition or want of authority would consti- 

 tute a defence, it should have been proved. It is to be observed, too, that 

 under the shipping paper, showing a crew of nine persons in all, seven be- 

 sides the skipper and salter, the men were not shipped by wages, nor by 

 the thousand offish caught, but were sharesmen having an interest in the 

 voyage, and whose acts as fishermen, necessarily compromised the ves- 

 sel. They were inhabitants of the United States, fishing in violation of 

 the Treaty, and the Act of 1870 declares that if any foreign ship or ves- 

 sel have been found fishing, or preparing to fish, or to have been fishing 

 (in British waters) within the prescribed limits, such ship, vessel or 

 boat, and the tackle, rigging, apparel, furniture, stores and cargo there- 

 of, shall be forfeited. But supposing the doctrine as between master 

 and servant, or as between principal and agent, to apply, for which no 

 authority was cited, it would not avail the defendants. The last point, 

 as to agency, was examined thoroughly in the Supreme Court of this 

 Province, in the case of Pope vs. the Pictou Steamboat Company, in 

 1865, and was decided against the principal. And as to the analogy of 

 master and servant the responsibility of the master for the act of the 

 servant, where, as in this case, the servant was acting within the scope 

 of his employment, I would content myself with citing the decision of 

 the Exchequer Chamber in the case of Limpus vs. the General Omnibus 



