The Sun.
London, England, 1842-01-22 00:00:00

MILLWARD V. HIBBERT.

This was an action upon a policy of insurance to re-
cover the value of a quantity of pigs which had been
thrown overboard in a voyage from Waterford to Lon-
don. The defendant pleaded that the pigs having been
placed upon the deck, had thereby impeded the naviga-
tion of the vessel, awl 4hat the shipowner was not entitled
to recover their value. To that the, plaintiff had demurred.
The Court in pronouncing its judgment, observed, that
there might be valid reasons for stowing goods of a
certain description on deck, such for instance as timber
and lire cattle, and they might be so stowed as not to
interfere with the navigation of the vessel. The danger
of the crew, being tempted to throw them overboard
when the vessel was in distress was quite insufficient to
bar the plaintiff's right to recover. Mitch would depend
upon usage, which in the present case was in favour
of the plaintiff; and it' seemed to the Court that the
mere fact of stowing the goods on deck, without assigning
that they had been improperly so stowed, was not suffi-
cient to exempt the defendant from his-liability. Having
referred to several authorities on the subject, the Court
observed that, in their opinion, the plea had been pro-
perly demurred to, and their judgment must be for the
plaintiff

BAIL COURT, Jan. 21.
EX PARTE BARNARD CAVANAGH.

'. JAMES was heard this morning in support of the
rule for bringing up the body of Barnard Cavanagh by
writ of habeas corpus, in reply to the Solicitor-General
and Mr. Cowling, who were yesterday heard against
the rule. The Learned Counsel submitted that It
was the • form of commitment' only that the
Court could adjudicate on, as that was the only docu-
ment of which the Court had cognizance, and that, inas-
much as that commitment was bad upon the face of it,
the writ of habeas must issue to bring up the man.
Mr. Justice WILLIAMS-It ought to go to the gaoler.
It was yesterday stated that it was to the Magistrate
the rule was directed.

Mr. JAMES said that it was quite a _mistake on
the_ part of , his Learned Friend to imagine any such
thing. It was directed to the gaoler, and as a
matter of courtesy a copy had been served on the corn-
mitting Magistrate, and he had chosen to appear. He
would subinit, that the only document which would in-
form either the Court or the prisoner of the cause of
offence for what he was committed was the commitment.
It was in fact well known that in such cases the conviction
was seldom drawn up at all, unless appealed against, and
then it was drawn up after the grounds of appeal became
known, and he ought to meet those grounds. The corn-
mitment was the only document to which the prisoner
could look for information ; and, therefore, it was the
only document to which the Court could look on
the return to the habeas. When a prisoner was
in custody, he had a right, under the Habeas
Corpus Act, to demand from the gaoler a copy of
the commitment, and that was the only means he had
of knowing why he was detained in custody. A copy
of the conviction was not furnished to the gaoler, and in
all cases of a return to a writ of habea,s corpus the
gaoler had invariably returned the commitment as the
authority under which the prisoner was detained in cus-
tody. He knew nothing of the conviction which
when drawn up at'all was returned to the Quar-
ter Sessions, and not given to the gaoler. Now in all
the cases to which. he had alluded, when •he
moved for the rule, it bad been laid down that a com-
mitment in execution must specify, with the same accu-
racy tie an indictment, the character of the offence for
which the individual was Committed. The cakes of com-
mitments by the House of Commons for contempt, to
which allusion had been made yesterday, had been de-
cided upon a totally different principle; but even in those
instances the writ of habeas had been granted, and
on the return to the writ when the goaler
showed that the commitment was by the House
of Commons for contempt, the Court decided that that
was sufficient, as the House of Commons was competent
to determine what was or what was not a contempt of its
authority. But the writ of habeas was granted evenin
those cases. In fact it was the subject's right ex debits
justicire. The question was, was the offence as set
forth in the commitment a sufficient ground for
detaining the prisoner in custody or not? It was
set forth that he, the said Barnard Cavanagh was
committed as a rogue and vagabond within the
meaning of the statute of George IV., for that he, the
said Bernard Cavanagh, had gone about to levy chari-
table contributioni under false pretences. Now, he sub-
mitted that the prisoner had committed no offence within
the meaning of the Act of Parliament. Cavanagh had
gone to exhibit himself as an object of public curiosity.
He had not gone about from door to door, seek-
ing to levy charitable contributions. He had not
gone about at all ; he had taken a room in an
hotel at Reading, and issued placards stating that he
could abstain from food for five years, and of all those
who went to see him and paid their sixpence for so
doing not one could venture to swear that he had paid
his money from motives of charity. It might be per-
fectly true that he had been guilty of deception, but
that did not bring him within the meaning of the
Vagrant Act. They might if they had chosen have
indicted him as a cheat, and then he would have
been put upon his defence, and would have
been forced to negative the pretence. If this
commitment was good, because he had pretended
to do that which he did not do, and that those who bad
paid money to see him, were to be taken to give him
money from motives of charity, there was no knowing to
what the principle might lead. There was a gentleman
some time since exhibited himself at the Adelphi as a
man who could permit himself to be shot at with a real
gun, really loaded, without injury. This, of course,was phy-
sically impossible, and it might be as welleOn tended that the
prices of admission to see him were charitable contribu-
tions. No one would be safe. Mr. Macready advertised
that on a certain night he would appear as Macbeth. It
was well known, of course, that he was not really Mac-
beth ; and it might be as well contended that he had
levied charitable contributions, under false pre-
tences, by taking money at the doors of his
theatre, as that Cavanagh had done so. The money
paid by the persons who came to see Cavanagh were no
more charitable contributions than the money paid at
the pit door of the Opera. The persons who had paid
their money had had their quid pro quo—they had paid
to see the man who professed he could abstain from
food for five years, and they had seen him. Accord-
ing to the Act, solicitation is necessary to constitute
the gist of the offence. Now, in this case there had
been no sort of solicitation, nor anything done to excite
feelings of charity. It might as well be pretended that
a person pretending he had the power to repeal a parti-
cular Act of Parliament, it being well known that no
single individual could possess such power, and who, un-
der pretence of procuring such repeal, should levy eon-
tributions, was levying contributions within the
meaning of the Act. It was utterly absurd to put
any such construction , upon the words of the Act.
The opinion of Lord Tenterden, reported in 7 Berne-
well and Cresswell, p. 669, was decided on the point
that every committal in execution should distinctly show
the nature of the offence. In De Gronbel's case, in
Lord Raymond's Reports, it was distinctly laid down,
that " the cause of-commitment must be certain, to the
end that the party may know why he suffered, and how
he may regain his liberty." And it was but rea-
sonable it should be so. The Sessions might not
take place for three months, the man would have suffered
his punishment before his appeal could be heard, and it
was a great hardship upon persons in the prisoner's
situation that the conviction was never drawn up until
after the grounds of appeal were known, and then the
Magistrates generally had it drawn up by some profes-
sional person in town with a view specially to meet the
grounds of the appeal. If persons thus situated were not
entitled to their habeas corpus, it would amount
to a practical abrogation of the Habeas Corpus
Act. Suppose the commitment had set forth that
he bad been committed for wearing a brown coat,
or for eating without a silver fork. If the Court were
to refuse a habeas corpus, the man would have no remedy.
He therefore contended, that inasmuch as there could be
no pretence for saying that the prisoner had gone about
collecting alms or charitable contributions within the
meaning of the Act, and inasmuch as the commitment
did not show that any sufficient offence had been com