afterwards granted a writ of habeas corpus in that case.
[Crompton J. I granted the writ as ancillary to the writ
of error, which the Crown had afterwards allowed to
issue. Cockburn C. J. At the time of the argument of
the question whether the writ of error ought to be
granted, the Court seems to have doubted whether a
writ of habeas corpus could issue to St. Helena. In
delivering the judgment of the Court, Lord Campbell C. J.
says (a), "No precedent" "of any such proceeding"
as a writ of error or certiorari " with respect to a depen-
dency like St. Helena, for several centuries, was brought
before us; and it was not at all explained in what man-
ner our writs of error, certiorari or habeas corpus would
be enforced in such dependencies."] It has been decided
that the writ of habeas corpus ad subjiciendum runs to
Jersey; Carus Wilson's Case (b), Dodd's Case (c). [Hill
J. Suppose that we issue the writ in the present case,
and that the parties to whom it is directed refuse to
obey it, what remedy should we have ?] The writ
might then be enforced by attachment. [Hill J. Could
we send our own officer to Canada for that purpose?]
Yes, if necessary: and the attachment would be valid.
The same difficulty, if it be one, would arise in the case
of an issue of the writ to Jersey, In the case before the
Court the interests of a British subject are vitally affected.
The Court will not, therefore, refuse to exercise, in his
favour, a jurisdiction warranted by numerous precedents,
merely on the ground that there may be difficulty in
enforcing the writ, when granted.

1861.

Ex parte ANDERSON.

1861.

Ex parte ANDERSON.

The COURT (a) retired for consultation. On their return, Cockburn C. J. delivered judgment as follows.

We have considered this matter; and the result of our anxious deliberation is, that we think the writ ought to issue. At the same time, we are sensible of the inconvenience which may result from such a step; and that it may be felt to be inconsistent with that higher degree of colonial independence, both legislative and judicial, which happily exists in modern times. Nevertheless, it is to be observed that, in establishing a local judicature in Canada, our Legislature has not gone so far as expressly to abrogate the right of the superior Courts at Westminster to issue the writ of habeas corpus to that province; which writ, in the absence of any prohibitive enactment, goes to all parts of the Queen's dominions. Lord Coke (b), Lord Mansfield (c), Blackstone (d) and Bacon's Abridgment (e) all agree that writs of habeas corpus have been and may be issued into all parts of the dominions of the Crown of England, wherever a subject of the Crown is illegally imprisoned or kept in custody. In addition to these dicta of eminent authorities, we have actual precedents of the issue of the writ, in very modern times, into the Islands of Man, Jersey and St. Helena. Inasmuch, therefore, as the power of this Court thus to issue the writ has been not merely asserted as matter of doctrine, but carried into effect in practice; and as the writ has issued even into dominions of the Crown in which there is an independent local judicature; we think that nothing short of

(a) Cockburn C. J., Crompton, Hill and Blackburn Js.

(b) See Calvin's Case, 7 Rep. 20 a.
(c) In Rex v. Cowle, 2 Burr. 834, 855.
(d) Commentaries, vol. 3, p. 131.

(e) Tit. Habeas Corpus (B) 2.

legislative enactment would justify us in refusing to exercise the jurisdiction, when called upon to do so for the protection of the personal liberty of the subject. It may be that the Imperial Legislature has thought fit to leave the three superior Courts at Westminster the same concurrent jurisdiction in this matter with the colonial Courts that they have inter se. Both upon authority and upon precedent, we think that the writ ought to go.

Writ of habeas corpus granted (a).

(a) The writ was directed to the sheriff of the county of York, in Canada, in Her Majesty's province of British North America, and the keeper of the gaol in the city of Toronto, in the said county; to the sheriff of the county of Brant, in Canada aforesaid, and to the keeper of the gaol in the town of Brantford, in the said county; and to all other sheriffs, gaolers, and all constables and others in the said province, having the custody or control of the said John Anderson.

1861.

Ex parte ANDERSON.

MOURILYAN V. LABALMONDIERE.

(Reported, 1 E. & E. 533.)

Wednesday,
January 16th.

MILVAIN and another against PEREZ and others. Friday,

DECLARATION, upon a charterparty made between plaintiffs and defendants. The charterparty,

January 18th.

party made

By a charterbetween plaintiffs, shipowners, and defendants, agents in England for foreign charterers, it was agreed that plaintiffs' ship the B. should proceed to J., and there load in regular turn, in the customary manner, from defendants, a full and complete cargo of coke. It was further agreed that, as defendants were acting for foreign principals, "all liability of" defendants "in every respect, and as to all matters and things, as well before and during as after the shipping of the said cargo," should 'cease as soon as they" had "shipped the cargo."

66

Defendants having loaded and shipped the agreed cargo, plaintiffs afterwards sued them in this action for not having shipped it in regular turn. Held, that the action would not lie, for that the charterparty limited defendants' liability to the actual shipment of the cargo, and protected them from responsibility for any irregularity or delay in the shipment.

496

1861.

MILVAIN

v.

PEREZ.

which was set out in full, was, so far as is material, as follows.

"It is this day mutually agreed between Henry Milvain Esquire" (meaning plaintiffs), "owner of the good ship or vessel called The Bomarsund," "now in the Tyne, and Messieurs Perez, Williams & Bilton" (meaning defendants), "as agents for the charterers, that the said ship, being tight, staunch and strong, and every way fitted for the voyage, shall proceed to Ramsey's Coke Ovens at Jarrow, and there load in regular turn, in the customary manner, from the agents of the said charterers (except in case of riots, strikes, or any other accidents beyond their control, which may prevent or delay her loading), a full and complete cargo of coke;" "and being so loaded shall therewith proceed to Carthagena for orders to discharge there, at Escombreras or Porman, and there discharge the cargo upon being paid freight." "The vessel to be consigned to the charterers' agents at port of discharge, and to pay the usual commission of two per cent.' "This charter being concluded by Messieurs Perez, Williams & Bilton, on behalf of another party resident abroad, it is agreed that all liability of the former in every respect, and as to all matters and things, as well before and during as after the shipping of the said cargo, shall cease as soon as they have shipped the cargo; and, further, that the vessel shall be cleared at the custom house by them." The declaration then made the following averments. That the charterparty was signed by defendants in these words, "Perez, Williams & Bilton, agents;" that the ship did proceed to the said Ramsey's Coke Ovens at Jarrow, and there were no riots, strikes, or any other accidents beyond defendants' control, which prevented or delayed the loading

of the said cargo as agreed; and that plaintiffs were always ready and willing to do, and did, all things necessary to oblige defendants to load the said cargo, as agreed, and to entitle plaintiffs to have the said cargo loaded as agreed; and all things happened which were necessary to happen to oblige defendants to load the said cargo as agreed, and nothing ever happened to excuse defendants from loading the said cargo as agreed; of all which premises defendants always had notice, and the time for defendants' loading the said cargo as agreed elapsed before suit. Breaches: That defendants did not load the said cargo as agreed; that they made default in loading such cargo for a long and unreasonable time; and that they did not load the said ship with such cargo in regular turn, in the customary manner.

Plea. That the said charterparty was in fact made by defendants as agents on behalf of another party, resident abroad, to wit Gregorio de Bayo, of Carthagena, in Spain, and that the said agreed cargo was loaded and shipped and the said vessel was cleared by defendants at the custom house, before the commencement of this suit: and thereupon all liability of defendants in every respect under and to the performance of the said charterparty, and to damages sustained by plaintiffs by the nonperformance thereof, ceased.

Demurrer. Joinder in demurrer.

murrer.

T. Jones (Northern Circuit), in support of the deThe plea is bad. It admits all the breaches assigned in the declaration, the last of which, namely, that the defendants did not load the cargo in regular turn, is the most material. If the defendants loaded the cargo out of the regular turn, they are answerable to the

1861.

MILVAIN

V.

PEREZ.