THE CASE OF ENDERBY v. DUNDAS AND PRESTON.

Lyttelton Times, Volume II, Issue 80, 17 July 1852, Page 8

THE CASE OF ENDERBY v. DUNDAS AND PRESTON.

The Special Commissioners of the South Sea Whaling Company, after being argued for three consecutive days before Mr. Justice Stephen, with an array of Counsel, befitting the luxury of a law-case in Westminster Hall, terminated by his Honor declaring that his decision was made up, and that-it was unnecessary to continue the arguments any further. The following are the particulars of the case as given in the Wellington Independent : —

This was a Rule to shew cause why the defendants should not be discharged out of custody (they having been held to bail) or why the bail should not be reduced ; and an action of Trespass brought by the plaintiff against the defendants under the following circumstances.

It appeared that in 1849, a company was established called the South Sea Whale Fishery Company ; and Mr. Enderby, being one of the principal shareholders, offered upon certain conditions to place the Auckland Isles, a grant of which had been given him and his brothers by the Crown, at the disposal of the Company, as from his knowledge and experience in whalefishing he considered it would form a most desirable spot as a Whaling Station. On a Charter of Incorporation being granted to the Company, the Court of Directors considered that as Mr. Enderby had already been appointed Lieutenant Governor of the Auckland Isles, he would be the most fit, proper and efficient person to have the superintendence and conduct of the Station about to be formed there, and accordingly appointed him as their Chief Commissioner. Mr. Enderby considering it advisable to take a house out with him, pointed out the necessity of doing so to the Court of Directors, who therefore gave instructions for one to he built; and upon Mr. En derby's arrival in Port Ross the house was erected" at the Company's expense and became Mr. Enderby's residence. In 1851 the Court of Directors determined to send out two Special Commissioners, to enquire into the management and affairs of the Station at Port Ross, and to do, in accordance with the result of that investigation, whatever might appear to them to be expedient and advisable. Whereupon the two defendants Messrs. Dundas and Preston tendered their services to proceed to the Auckland Isles in the character of Special Commissioners. Upon the arrival of these gentlemen, an investigation was instituted by them into all the affairs of the Station, and the result was that they considered it necessary to supersede Mr. Enderby, as Chief Commissioner. On their determination being communicated to Mr. Enderby, that gentleman at once decided upon tendering his resignation, which he accordingly did and which they accepted. The Commissioners then requested Mr. Enderby to give up his residence as they required it for their own use. This, however, Mr. Enderby refused to do as he considered that he was not residing

there as Chief Commissioner, but that it was Government House, and therefore his official residence as Lieutenant Governor of the Isles. The Commissioners hereupon intimated their intention of forcibly ejecting Mr. Enderby, and so far proceeded to do so by forcibly removing from the house a chair belonging to that gentleman, who then gave up possession.

Sometime subsequent to this, the Commissioners, being about to leave, determined, that as Mr. Enderby had resigned his office as Chief Commissioner, not to leave him behind them ; and accordingly offered him a passage in the "Black Dog" schooner, and to land him at any port or place he might think proper or wish to stop at. Mr. Enderby, however, refused their offer, on the ground that, although he was no longer Chief Commissioner, he still nevertheless held her Majesty's Commission as Lieutenant Governor of the Isles, and that he could not therefore consistently with his duty and allegiance to his Sovereign, vacate or leave his seat of Government. The Commissioners were resolute in their determination not to leave Mr. Enderby behind, and it was said threatened, unless he accepted their offer, to put him into irons and thus force him on board. Mr. Enderby, from the peculiar position in which he was placed, and seeing no alternative but that of compliance, at length consented to accept the offer made to him, and went on board.

It was upon the above grounds that Mr. Enderby immediately upon the arrival of the " Black Dog" at Wellington, brought an action of trespass against Messrs. Dundas and Preston—and they were held to bail in the sum of £500.

His Honor ruled that after the exhibition of the power of Attorney by the Defendants, and it appearing from the affidavits that they had not in any wny travelled out of the scope of that power, that they had not committed a trespass, and that consequently an action of trespass wonld not lie, and that inasmuch as the bail could not be reduced, (for the fact of reducing it would admit and confirm a right of action) his Honor thought that the only way in which the case could be disposed of was by getting rid of the hail altogether, and in order to do this, recourse must be had to the discretionary power vested in a judge by the 1 and 2 Vict., Sec. 6, and in the exercise of that discretion, his Honor ordered an exoneretur to be entered on the Bail Bond.

The Bail Bond was then given up to be cancelled, and the Defendants wesejmt under terms not to bring an action for the arrest.

After the above rule had been disposed of, the Counsel for the Plaintiff were called upon to shew cause, why an injunction, which bad been obtained' by them for the detention of the " Black Dog" schooner, should not be dissolved. The attention of the Court was occupied but a very short time on this point, for upon his Honor suggesting that perhaps some arrangement might be entered into, the parties availed themselves of the suggestion, and an order was made by his Honor in accordance with the terms of the arrangement, which were, that upon payment by the defendants to the plaintiff, of the sum of £400, on or before the 28th June, the vessel should be handed over to the defendants, the plaintiff entering into a personal bond for the repayment of the said £400, or for so much of it as should, upon an investigation of all pecuniary matters between plaintiff and the Company, be found not to be due or owing to him.

Upon an application as to costs, his Honor ordered that iv both cases each party should pay their own.