29.

Moritz Gutman testified: "I left Victoria some time R., 1365, line in 1888, and Alexander Frank continued the business, and of course kept the books;" and that he was absent four years from Victoria. Frank did not desire, therefore, to leave the ships registered in the name of the estate of Jacob Gutman, because Moritz Gutman, the administrator, was leaving the city for a period of four years. Frank accordingly made use of the name of Morris Moss for the purpose of having the ship registered.

The ships were registered in the name of Morris Moss on the 10th day of November, 1888. That Moritz Gutman had no title to the Lily and Black Diamond at that time is shown by the bill of sale dated November 8, 1888, which transferred these vessels to Alexander Frank. The only evidence of the ownership of Morris Moss is the entry on the register. This entry is not sufficient to outweigh the bill of sale, introduced in evidence, from Moritz Gutman to Alexander Frank; and at the time of its conveyance the probate court had never authorzed Moritz Gutman to make such conveyance.

On the 14th day of November, 1888, the transfer having been made on the 8th day of November, and the bill of sale recorded on the 9th day of November, Moritz Gutman filed in the Supreme Court of British R., 1859, line Columbia, in probate, his affidavit, dated November

9, 1888; a hearing was had and the following order entered:

44.

50.

Upon hearing an application on behalf of Moritz Gutman, R., 1859, line the administrator of the estate of Jacob Gutman, deceased, and upon reading the affidavit of the said Moritz Gutman, filed herein on the 14th day of November, 1888, I do order that the said Moritz Gutman, the said administrator, be at liberty to sell, convey, assign, and otherwise assure to Alexander Frank, of the city of Victoria, in the Province of British Columbia, all the real and personal estate and effects of the above-named Jabob Gutman, deceased, of the Province of British Columbia (excepting thereout the claim of the Alfred Adams against the Government of the United States).

32.

That in consideration of the conveyance, assignment, or other assurance to be made under this order, the said Alexander Frank do assume and pay all the debts and liabilities of the said firm of Gutman & Frank, which debts and liabilities are particularly set out in an exhibit marked A, annexed to the said affidavit of the said Moritz Gutman, and therein appear to amount to the sum of $18,222.86, and that the said Alexander Frank do enter into security to the amount of $18,222.86 to indemnify the estate and effects of the said Jacob Gutman, deceased, from the payment of any of the debts and liabilities of the said firm, such security to be to the satisfaction of and approved by the registrar of this

court.

Had Morris Moss purchased the Black Diamond and Lily, he would not have consented to Moritz Gutman transferring the title to Alexander Frank on the 8th day of November. Moreover, it would have been a simple procedure to have filed with the probate court a petition praying for leave to sell the vessels to Morris Moss; but no such petition ever was filed, and no such sale ever authorized.

The only conclusion is that Morris Moss's name was used simply for the purpose of effecting a transfer on R., 1948, line the register. Morris Moss was engaged in the busiR., 1229, line ness of representing purchasers of seal skins at the R., 1231, line port of Victoria, and was also engaged in the business of outfitting vessels as agent for other parties.

60.

26.

R., 1234, line 10.

The High Commissioners are advised that it is not an uncommon practice at Victoria for ships, entirely or partly owned by American citizens, to be registered in the name of subjects of Great Britain. Charles Spring swore in the affidavits filed at Paris that he was the sole owner of the Onward and the Favourite, and the testimony in this Record discloses that Alexander McLean, an American citizen, owned one-half of each of those vessels. William Munsie made no reference in the affidavit filed at Paris to the interest of Bechtel in his ship, although it is now admitted that Bechtel was equally interested in the venture of the Pathfinder in the years 1889 and 1890. Theodore Lubbe testified

that although he was an American citizen, he was at one time a part owner of the Favourite and the Onward; and Moritz Gutman swore that Alexander Frank was the half owner of the Alfred Adams, although the ship was registered in the name of Jacob Gutman. Patrick Hickey testified that he was half owner of the Carolena when she was registered in the name of Donald Urquhart.

24.

Bearing upon the ownership of Alexander Frank, R., 1780, line Captain Thomas, in charge of the Black Diamond on this voyage, testified that he took provisions off at Alexander Frank's trading station upon his return from Bering Sea; and this witness further testified that Alexander Frank was aboard the Black Diamond at the time she left Victoria for her voyage to Bering Sea in the year 1889, and made the trip to the west coast of Vancouver Island.

The Black Diamond made a trip to Frank's fishing R., 1781, line station on Queen Charlottes Islands after leaving 38. Bering Sea in the year 1889, and was there loaded with a cargo belonging to Frank.

207, line 32.

No. 80, G.

B., claim

Although the Alfred Adams was registered in the Exhibits, name of Jacob Gutman, Alexander Frank held a Exhibits, mortgage. This mortgage was not discharged of record at the time of the death of Jacob Gutman, but stood against the boat which was known as the Lily during the time of the proceedings had in the estate of Jacob Gutman.

No. 8; register Alfred

Adams, p.

197.

An inspection of a statement of the liabilities of said deceased Jacob Gutman discloses that the mortgage to Alexander Frank was not scheduled among the debts of the estate, showing that the mortgage merely Exhibits, p. represented Frank's half interest as an owner, and was not considered a debt of Jacob Gutman, deceased.

208.

Collector Milne, in reporting as to the owners of R., 1819, lines vessels sealing from the port of Victoria, stated that 40,64. "A. Frank was the owner of Black Diamond," and "A. Frank was owner of Lily."

This table, prepared by Collector Milne, shows on its face that it was a table prepared with reference to the R., 1819, line ownership of vessels, and not the registered owners,

60.

because in one instance it is stated that the owners of the Aurora were not known, Of course the vessel must have been registered in the name of some person; and again in the table it is stated that Indians owned certain vessels and certain commercial companies owned others, although the register would contain no reference to Indians or unincorporated companies.

The United States contend that the testimony adduced establishes beyond controversy that Alexander Frank was the owner of the Black Diamond and the Lily at the time of their seizure in 1889, and that no damages can be awarded the owner of these vessels.

THE MINNIE.

CLAIM No. 17.

13.

67.

The Minnie entered Bering Sea June 27, 1889, R., 1437, line carrying eight canoes, two boats, one of which would be a stern boat, and a crew of 16 Indians and 5 white R., 1436, line men, including captain and mate. She continued her hunting from the 27th of June until the 15th day of July, at 4.30 o'clock in the afternoon, when she was seized by the United States revenue cutter Richard R., 1450, line Rush, commanded by Captain Shepard. The boarding officer directed the removal of 418 skins, one breech-loading shotgun, one muzzle-loading shotgun, R., 1450, line and eleven spears to the Richard Rush.

40.

60.

Victor Ja

cobsen, the owner made at 24 day of Sept., 1889. line 50.

of the Minnie,

Victoria, 2d day

R., 1451,

The schooner was ordered to proceed to Sitka. Affidavit of The instructions were not obeyed, and "that night made some new spears and next morning commenced hunting as though nothing had happened; we captured 50 seals on that day and 90 on the next. Kept on hunting until the 17th of August, when, having 500 seals on board, I left for the south. After passing through Unimak Pass I told the prize crew I should steer for Victoria. He replied, 'I always thought so.' The Indians told me that if the United States sailor attempted to take the vessel to Sitka they would throw him overboard. We arrived in Victoria last evening, and to-day at noon the prize crew came ashore and reported at the American consulate."

The owner, Victor Jacobsen, was captain on the voyage, and testified:

Q. Did you make as many new spears as the old ones that R., 1445, line had been taken away from you?

32.

A. No; I didn't make as many, but I made as many as

were needed.