Q. B.] REG. V. THE GUARDIANS OF THE MEDWAY UNION. ever," committed out of England. That section is as wide in its terms as it well can be. [His lordship read the section at length.] The present charge is one of a crime committed on land beyond the seas, for which an indictment may legally be preferred in a place in England, i.e. in the Court of Queen's Bench. Therefore it is one precisely within the application of the Act. Then sect. 25 provides "that when all the evidence offered upon the part of the prosecution against the accused party shall have been heard, if the justice or justices of the peace then present shall be of opinion that it is not sufficient to put such accused party upon his trial for any indictable offence, such justice or justices shall forthwith order such accused party, if in custody to be discharged as to the information then under inquiry; but if in the opinion of such justice or justices, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise a strong or probable presumption of the guilt of such accused party, then such justice or justices shall, by his or their warrants, commit him to the common gaol or house of correction for the county, riding division, liberty, city, borough, or place to which by law he may now be committed, or, in the case of an indictable offence committed on the high seas, or on land beyond the sea, to the common gaol of the county, riding, division, liberty, city, borough, or place within which such justice or justices shall have jurisdiction, to be there safely kept until he shall be thence delivered by due course of law, or admit him to bail as herein before mentioned." And the 20th sect. embraces what the Acts of George IV. and of Philip and Mary contained before on the subject of binding over the witnesses to prosecute. The provisions of the enactments therefore enable the magistrate to admit the accused party to bail, to dismiss the charge against him or to commit him for trial, and I do not see the least difficulty in carrying all this out. The court expressed their approval of the course taken by the magistrate in this case in wishing to obtain the opinion of the court, before proceeding in the matter under 11 & 12 Vict. c. 42, this being the first case of the kind under that Act. Saturday, May 9, 1868. (Before LUSH and HANNEN, JJ.) REG. V. THE GUARDIANS OF THE MEDWAY UNION. Appeal-Lunatic pauper-Order of maintenance-Right of appeal in parish affairs-15 & 16 Vict. c. 97, 8. 108-24 & 25 Vict. c. 55, s. 7. Notwithstanding the 24 & 25 Vict. c. 55, s. 76, which makes a pauper lunatic chargeable to the common fund of the union in which his parish of settlement is situate, and sect. 7, which gives a right of appeal against such an order to the guardians of the union, the parish officers of the parish of settlement have still under sect. 108 of the 15 & 16 Vict. c. 95, a right of appeal against such order. This was an appeal by the churchwardens and overseers of Aldershot, against an order adjudging the settlement of a lunatic pauper to be in their parish. The sessions quashed the order subject to the following case. [Q. B. of Barming-heath, in the said county of Kent, to be in the parish of Aldershot, in the said Farnham Poor Law Union, and whereby the said justices did order the guardians of the Farnham Poor Law Union to pay to said respondents certain sums which had been expended by the respondents as in the said order mentioned, and also weekly and every week from the date of the said order, to pay to the treasurer of the said asylum a certain further sum as in the said order set forth. A copy or duplicate of the said order together with the statements required by the statute 16 & 17 Vict. c. 97, s. 107, setting forth the grounds of adjudication, including the particulars of the settlement, relied on in support thereof, and addressed to the guardians of the poor of the Farnham Poor Law Union, and to the churchwardens and overseers of the parish of Aldershot was sent by the respondents to the said guardians and the said churchwardens and overseers respectively on the 5th Oct. 1865. Against this order the said churchwardens and overseers of the poor of the parish of Aldershot entered an appeal to the above mentioned sessions. Upon the said appeal coming on to be heard, it was objected on the part of the respondents that the appeal ought to have been brought by the guardians of the poor of the said Farnham Poor Law Union and not by the said churchwardens and overseers of the poor of the parish of Aldershot, and it was contended that the said churchwardens and overseers had no right to appeal against the said order, inasmuch as they were not parties to the said order or proceedings before the justices, and the expenses of maintaining the lunatic were under the statute, 24 & 25 Vict. c. 55, ss. 6, 7, thrown upon the common fund of the Farnham Poor Law Union. The court overruled the objection, heard the appeal upon the merits, and quashed the said order. The question for the decision of this honourable court is whether the churchwardens and overseers of the poor of the parish of Aldershot had a right to appeal against the said order? If the court should answer this question in the affirmative the said order of sessions is to be confirmed. But if in the negative the said order of sessions is to be quashed. By sect. 97 of the 16 & 17 Vict. c. 97, powers are given to justices to inquire into and adjudge the settlement of a lunatic pauper, and order the guardians of the union in which the parish is situate to make payments for his support, &c. By sect. 108 it is enacted that, If the guardians of any union or parish, or the overseers of adjudging the settlement of any lunatic, they or he may apany parish, feel aggrieved by any such order as aforesaid, peal against the same to the next general or quarter sessions of the peace for the county in behalf of which such order has been obtained, or in which the union or parish obtaining such order is situate; or, in case such parish or union extend into several jurisdictions, then to the next general quarter lunatic is or has been confined is situate; and such sessions, asylum, registered hospital, or licensed house in which such upon hearing the said appeal, shall have full power to deter sessions of the peace for the county or borough in which the mine the matter. By the 24 & 25 Vict. c. 55, s. 6, the cost of maintenance of a lunatic pauper is to be borne by the common fund of the union comprising the parish. By sect. 7 it is enacted that, The guardians of any union may obtain orders upon the guardians of any other union, or upon the guardians or overseers of any parish not comprised in a union, or upon the treasurer of the county, and may appeal against or defend any orders in respect of any lunatic paupers hereby made chargeable upon the common fund of the union, in like manner and subject to the same incidents and provisions as are contained in the said last-cited Act in respect of lunatic that every appeal now pending may be continued and determined as though this Act had not been passed. The order appealed against was made by two of Her Majesty's justices of the peace for the county of Kent, dated the 29th Sept. 1865, and directed to the guardians of the Medway Union, hereinafter paupers chargeable to any parish in such union: provided called the respondents, and the guardians of the Farnham Poor Law Union, whereby the said justices did adjudge the last legal settlement of the said Henry Wilson, then confined in the lunatic asylum Barrow and Jephson appeared for the appellants, and contended that the appeal was rightly brought Q. B.] GUARDIANS, &C., OF BRADFORD UNION (apps.) v. CLERK OF PEACE FOR WILTS (resp.) [Q. B. by the churchwardens and overseers of the parish of | riage service he had to pass through a turnpike-gate Aldershot, notwithstanding such parish formed part when toll was demanded, which he refused to pay of the Farnham Union, and that the case of Reg v. on the ground that he was exempt as being a curate The Justices of the West Riding of Yorkshire (Halifax | going on his parochial duties. The toll-gate keeper v. Leeds), 26 L. J., 41, M. C., is still an authority nevertheless demanded the toll, and upon the appelupon the point, and that the provisions as to the lant paying it he summoned the gatekeeper under right of appeal contained in sect. 108 of the 16 & 17 sect. 30 of the 4 Geo. 4, c. 95, for demanding and Vict. c. 97, are not repealed by sect. 6 of the 24 & 25 taking toll from a person exempt from the payment Vict. c. 55. They further argued that the proviso | thereof, and who claimed such exemption. At the at the end of this section was inserted only ex abun- hearing of the information the justices were of danti cautela, and not as recognising any altered opinion that the informant was not exempt, and so state of the law. the information was dismissed. Prentice, Q. C. and Biron, for the appellants, argued that since the 24 & 25 Vict. c. 55, which throws the support of the lunatic pauper upon the common fund, the parish officers have no longer any special interest in the appeal, which therefore should be brought by the guardians of the union only. LUSH, J.-I am of opinion that the sessions are right. It is clear that under the old Act either the guardians of the union or the parish officers might appeal. Then, is there anything in the subsequent Act which takes away that right? The effect of the order of justices is, no doubt, different now to what it was, but the order itself is still made under the former statute. It is contended that the necessary effect of the 7th section of the 24 & 25 Vict. c. 55, is to repeal the right of appeal which the parish officers formerly enjoyed. But I think that both provisions may stand. What is said by the 7th section of the later Act is that the guardians may obtain orders and may appeal against such orders; and it is said that the proviso, by enacting that any appeals then pending may be continued, implies that the right of the parish officers to appeal is put an end to. I do not agree in that, and I think that the 108th section of the old Act is not repealed by implication. HANNEN, J. concurred. Judgment for the appellants. Attorney for the appellants, Richard Eve, Aldershot. BRUNSKILL (app.) v. WATSON (resp.) Turnpike toll-Curate of a parish-Exemption— 3 Geo. 4, c. 126, s. 32. 66 By sect. 32 of the 3 Geo. 4, c. 126 (Turnpike Act), a curate going to or returning from visiting any sick parishioner, or on other his parochial duty within his parish" is exempt from the payment of toll. Held, that a clergyman performing parochial duties during the temporary absence of the incumbent of the parish is not a curate within the meaning of the foregoing section. This was a case stated under the 20 & 21 Vict. c. 43 upon a refusal of justices to convict a turnpike gate keeper for illegally taking a toll of the appellant. By sect. 32 of the 3 Geo. 4, c. 126 (General Turnpike Act) it is enacted That no toll shall be demanded or taken by virtue of this or any other Act or Acts of Parliament on any turnpike road for any horses or carriages attending his Majesty or any of the Royal Family, or returning therefrom or from any rector, vicar, or curate going to or returning from visiting any sick parishioner, or on other his parochial duty within his parish," &c. It appeared that the rector of the parish went to the seaside for the benefit of his health, and that he had requested the appellant, who was a curate in a neighbouring parish, to do his duties for him in his absence, and whilst on his way to perform the mar C. Hutton now appeared for the appellant, and argued that he was de facto curate, and so was exempt whilst going in the discharge of his parochial duties, and although he was not licensed for the purpose by the bishop, he was nevertheless the legal curate: (Temple v. Dickinson, 1 Ell. Bla. & Ell. 34; 28 L. J. 10, M. C., [LUSH, J.-Suppose the rector should, upon a particular Sunday, go away and invite a clerical friend to do duty for the day, would he be exempt?] I should say that he would be. [LUSH, J.-It is the status of the person which gives the exemption. The case of Temple v. Dickinson is very distinguishable from this. There the clergyman was the only person entitled to do the clerical duties of the parish.] The appellant here had the status of curate. No one else in the parish was capable at the time of performing the clerical duties: Rogers's Ecclesiastical Law, 274; H. James appeared for the respondent, but was not called upon. LUSH, J.-Our judgment must be for the respondent (his Lordship read the 32nd section of the 3 Geo. 4, c. 126, as far as related to the point.) The question is whether this gentleman can be said to be "a curate, engaged upon his parochial duty within his parish? He was a curate of a neighbouring parish, and he was lending temporary assistance to a clergyman absent from ill health. Can he then be said to be a curate of the parish? If a clergyman invites another clergyman to assist him for a single day, would he be exempt from turnpike toll? Surely that cannot be the meaning of the statute. The case of Temple v. Dickinson is essentially different from the present one. Going to render a clergyman temporary services does not constitute the party a curate. HANNEN, J. concurred. Judgment for the respondent. Attorneys for appellant, Gray, Johnston, and Mounsey. Attorneys for respondent, Westall and Roberts. Wednesday, May 27, 1868. THE GUARDIANS, &C., OF THE BRADFORD UNION (apps.) v. THE CLERK OF THE PEACE FOR WILTS (resp.) Poor law-Lunatic pauper-Power of certain justices to make an order under the 3 & 4 Vict. c. 54, s. 2— Retrospective expenses. H. L. was in March 1864 convicted of felony, and sentenced to twelve months' imprisonment in the county gaol of Wilts, situate in the borough of Devizes, which has a separate court of quarter sessions, with a non-intromittent clause. Whilst he was undergoing his sentence he became insane, and was removed, by an order of the Secretary of State to a lunatic asylum in Glamorganshire. In March 1867 two justices of Wilts, whilst sitting at Devizes, made an order under Q. B.] GUARDIAns, &c., of BradFORD UNION (apps.) v. CLERK OF Peace for WILTS (resp.) [Q. B. Sect. 2 of the 3 & 4 Vict. c. 54, adjudicating his settlement to be in the parish of Bradford, and they ordered the guardians of the Bradford Union to pay from the common fund to the keeper of the Devizes prison the sum of 51. 15s. 3d., the charge of inquiring into the insanity of the said H. L. and conveying him to the asylum, and also to pay unto Charles Pegge, the proprietor of the asylum, the sum of 1141. 15s. 4d., being the aggregate amount of the weekly sums or charges for the maintenance of the said H. L., from the 25th June 1864 to the 25th March inst., and also to pay to the said Charles Pegge, commencing from the last-mentioned day, the sum of 16s. weekly, and every week, &c., for the maintenance of the said H. L. in the said asylum: Held, first, that the justices had jurisdiction to make the order, notwithstanding the 3 & 4 Vict. c. 54, s. 2, which gives power to make such an order to two jusof the county, &c. where such person is imprisoned. Secondly, that so much of the order was bad as directed payment of past expenses. This was a case stated under the order of a judge, pursuant to the 12 & 13 Vict. c. 45, s. 11, as follows: Henry Lewis, referred to in the order hereinafter mentioned, was convicted of felony committed in the said county of Wilts, at the Wilts Lent Assizes, in March 1864, and was sentenced to be imprisoned in the house of correction for the said county, situate in the borough of Devizes, in the said county, for twelve calendar months; and whilst undergoing such sentence, namely, in June 1864, he became insane, and was, by order of Her Majesty's Principal Secretary of State for the Home Department, removed from the said prison to a house licensed for the reception of lunatics, situate at Britton Ferry, in the county of Glamorgan, in pursuance of the 3 & 4 Vict. c. 54, and in which house the said lunatic has ever since been confined and maintained. The order of the Secretary of State is as follows: The Right Honourable Sir George Grey, Baronet, one of Her Majesty's most Honourable Privy Council and Principal Secretary of State, &c., &c., &c. Whereas, by an Act passed in the 3rd and 4th years of the reign of Her present Majesty, intituled an Act for making further provisions for the confinement and maintenance of insane prisoners, it is enacted that if any person, while imprisoned in any prison or other place of confinement under any sentence of death, transportation, or imprisonment, or under charge of any offence for not finding bail for good behaviour or to keep the peace, or to answer a criminal charge, or in consequence of any summary conviction or order by any justice or justices of the peace, or under any other than civil process, shall appear to be insane, it shall be lawful for any two justices of the peace of the county, city, borough, or place where such person is imprisoned to inquire, with the aid of two physicians or surgeons, as to the insanity of such person, and if it shall be duly certified by such justices and such physicians or surgeons that such person is insane, it shall be lawful for one of Her Majesty's principal Secretaries of State, upon the receipt of such certificate, to direct, by warrant under his hand, that such person shall be removed to such county lunatic asylum or other proper receptable for insane persons as the said Secretary of State may judge proper and appoint. And whereas it has been certifled to me under the hands of the Rev. A. Smith and E. B. Edgell, Esq., two justices of the peace, and under the hands of R. Montgomery and T. B. Anstie, surgeons, being persons authorised as aforesaid, that Henry Lewis, who was, at a gaol delivery holden in and for the County of Wilts, on the 24th March 1864, convicted of larceny. and sentenced to be imprisoned for one year in the house of correction at Devizes for the same, has become insane; and whereas the lunatic asylum at Britton Ferry, in the county of Glamorgan, has been recommended to me as a fit and proper receptable for the said lunatic; and whereas it has been certified to me by two justices of the peace that they intend to make an order upon the parish of Bradford on Avon, in which the said lunatic has been adjudged to be settled, for the weekly maintenance of the said lunatic in a lunatic asylum: I do hereby, in pursuance of the Act of Parliament above recited, authorise and direct you to cause the said Henry Lewis to be received from the said house of correction into the said lunatic asylum, there to remain (maintenance for the said lunatic to be provided as aforesaid), until further order shall be made herein, and for so doing this shall be your warrant. The officers of the parish of Bradford, and the guardians of the poor of the Bradford Union were not informed of the lunacy of the said Henry Lewis, or of his removal to the said asylum until Aug. 1865, when the proprietor of such asylum applied to the said guardians for the expense of maintaining the lunatic up to that date. În Dec. 1866 the guardians were again applied to by the clerk of the peace for the county of Wilts to pay the expenses of maintaining the lunatic. On both occasions they refused to make any payment, on the ground that no order had been made on them, and that they were not liable to do so. On the 28th March 1867, the justices of the peace for the county of Wilts, made the following order : Whereas heretofore on the 25th day of June 1864, one H. Lewis, who was then imprisoned in the house of correction at Devizes, in the said county of Wilts, was by an order of Sir George Grey, Her Majesty's then principal Secretary of State for the Home Department, removed to the lunatic asylum at Britton Berry in the county of Glamorgan, where he hath ever since been and still is confined and detained. And whereas it is necessary in pursuance of the statute in such case made and provided to inquire into and ascertain by the best evidence or information that can be obtained under the circumstances of the personal legal disability of the said Henry Lewis. Therefore we, the Rev. E. B. Edgell, clerk, and the Rev. A Smith, clerk, being two of Her Wilts, within which said county the said house of correction Majesty's justices of the peace in and for the said county of is situate, having accordingly inquired by the best evidence and information that could be obtained under the circumstances of place of the last legal settlement of the said Henry Lewis, the personal legal disability of the said Henry Lewis, into the We do, therefore, hereby adjudge the place of the last legal settlement of the said Henry Lewis to be in the said parish of Bradford, in the said Bradford Union, and because it appears to us that the said Henry Lewis is not possessed of sufficient property which can be applied to his maintenance, we do thereby order you, the said guardians of the said Bradford Union, to pay unto Alfred Alexander, of Devizes, in the county of Wilts, keeper of the said house of correction, the sum of 51, 158. 3d., being the reasonable charges of inquiring into the insanity of the said Henry Lewis, and for conveying him to the said lunatic asylum at Britton-ferry aforesaid, and also to pay unto Charles Pegge, the proprietor of the said asylum, the sum of 1147. 15s. 4d., being the aggregate amount of the weekly sums or charges for the maintenance of the said Henry Lewis in the said asylum, from the said 25th day of June 1864 to the 25th day of March now instant, and also to pay to the said Charles Pegge, commencing from the 25th day of March inst., the sum of 16s. weekly and every week, or such other sum as we or any other two justices shall, by writing, under our or their hands from time to time direct, for the maintenance of the said Henry Lewis, in the said asylum. Given under our hands and seals the 28th day of March 1867, at Devizes, in the said county of Wilts. ALFRED SMITH. E. B. EDGELL. The settlement of the lunatic had not been previously adjudged. The borough of Devizes is a borough with a separate commission of the peace and has a separate court of quarter sessions, and a recorder, and the charters contain a non-intromittent clause. The order was served upon the guardians with the notice and grounds of adjudication signed by the keeper of the house of correction and by Charles Pegge, the proprietor of the said asylum. The notice and grounds of adjudication are as follows: In the matter of Henry Lewis, a criminal lunatic now confined in the lunatic asylum at Britton Ferry, in the county of Glamorgan. To the Guardians of the Poor of the Bradford Union, in the counties of Wilts and Somerset. Take notice that the above named criminal lunatic was on the 25th June 1864 duly removed from the house of correction at Devizes, in the county of Wilts, to the lunatic asylum at Britton Ferry, in the county of Glamorgan, under an order of Sir George Grey, then principal Secretary of State for the Home Department, dated the 1s8th June 1864, where he hath ever since been, and still is confined and detained, Q. B.] GUARDIANS, &C., OF BRADFORD UNION (apps.) v. CLERK OF PEACE FOR WILTS (resp.) [Q. B. and that an order of justices has been obtained, of which a CHARLES PEGGE, Proprietor of the said Asylum. The guardians of the said union duly gave notice of appeal against the said order dated 28th March 1867, to the clerk of the peace of the county, to the clerk of the peace of the borough, to the keeper of the said house of correction, and to the proprietor of the said asylum. The grounds of appeal against such order are as follows: That the said order, bearing date 28th March, now appealed against, is bad, illegal, and void in law upon the face thereof. That the justices being justices of the county only and not for the borough, had no jurisdiction to make the said order. That at the time of the making of the said order the said Henry Lewis was not imprisoned in any county, city, borough, or place within the jurisdiction of the said justices, or a criminal lunatic within the meaning of 3 & 4 Vict. c. 54. That the sentence of imprisonment of the said Henry Lewis had expired long before the making of the said order, is retrospective, and therefore bad. That the said justices had no power in and by the said order to order the said guardians to pay the expenses incurred in inquiring into the insanity of the said Henry Lewis, or for conveying him to the said asylum in June 1864. That the said justices in and by the said order had no power to order the said guardians to pay the aggregate amount of the weekly sums or charges for the maintenance of the said Henry Lewis in the said asylum, from the 28th June 1864 to the 25th March 1867, or any other part thereof. That the justices had no power in and by the said order to order the said guardians to pay any weekly sum for the future maintenance of the said lunatic in the said asylum. That the order adjudging the settlement of the said lunatic, and ordering the said guardians to pay the expenses of inquiring into his insanity, and the expenses of maintaining the said lunatic, ought to have been made (if at all) at the time when the said lunatic was conveyed from the said prison to the said asylum, or within a reasonable time thereof. That all the allegations contained in the notice sent to us, and on the grounds upon which the adjudication of the said justices took place, are and each of them is untrue, and we shall require you to prove the same at and upon the trial of the said appeal that the said notice and grounds of adjudication sent to us are not signed by the persons required by law to sign the same. That the said order ought to have been obtained by the clerk of the peace of the said county. To avoid any difficulty arising from the mode in which the appeal clause to the 3 & 4 Vict. c. 54 is worded, separate notices of appeal were given both for the borough and county sessions. The questions for the opinion of this honourable court are: Whether, under the circumstances above stated, the said order, dated 28th March 1867, is a good and valid order? Whether the said guardians are liable to pay the sum of 5l. 15s. 3d., being the charges of inquiring into the insanity of the said Henry Lewis and his conveyance to the asylum; and the sum of 1147. 15s. 4d., being the aggregate amount of the weekly sums for his maintenance in the said asylum from the 25th June 1864 to the 25th March 1867? And whether the said guardians are liable to pay the weekly sum of 16s. for his maintenance subsequently to the 25th March 1867 in the said asylum? If this court shall answer these questions or the first in the affirmative, the said order is to be confirmed; but if the court shall answer the first question in the negative then the said order is to be quashed; and if the court shall answer the second question in the negative and the third in the affirmative, or the third in the negative and the second in the affirmative, then such part of the order as is held to be bad is to be quashed if this court shall think it right to do so. And it is further agreed that a judgment in conformity with the decision of this honourable court, and for such costs as such court shall adjudge shall be entered on motion by either party at the general quarter sessions of the peace to be holden in and for the said borough and county next or next but one after such decision shall have been given. By the 3 & 4 Vict. c. 54 (an Act to make further provision for the confinement and maintenance of insane prisoners) it is enacted by sect. 1: place of confinement under any sentence of death, transporta- not finding bail for good behaviour Majesty's principal Secretaries of State shall otherwise direct, That in all such cases as aforesaid unless one of Her Q. B.] GUARDIANS, &C., OF BRADFORD UNION (apps.) v. CLERK OF PEACE FOR WILTS (resp.) [Q. B. justices of the peace of the county, city, borough, or place | insane person; and although the 26 & 27 Vict. c. 77, where such person is imprisoned to inquire into and ascertain by the best evidence or information that can be obtained under the circumstances of the personal legal disability of such insane person, the place of his last legal settlement, and the pecuniary circumstances of such person; and if it shall not appear that he or she is possessed of sufficient property which can be applied to his or her maintenance, it shall be lawful for such two justices, by order under their hands, to direct the overseers of the parish where they adjudge him or her to be lawfully settled, or in case such parish be comprised in a union declared by the Poor Law Commissioners, or shall be under the management of a board of guardians established by the Poor Law Commissioners, then the guardians of such union, or of such parish (as the case may be) to pay on behalf of such parish in the case of a person removed under this Act, all reasonable charges for inquiring into such person's insanity, and conveying him or her to such county lunatic asylum, or receptacle for insane persons, and to pay such weekly sum as they or any two justices shall by writing under their hands, from time to time, direct for his or her maintenance in such asylum or receptacle in which he or she shall be confined, &c. Coleridge, Q.C. (Wyndham Slade with him) now appeared for the respondents. The first objection is that the justices had no jurisdiction to make the order, inasmuch as the lunatic was not at the time a prisoner in the asylum, the words of the 2nd section of the 3 & 4 Vict. c. 54 being, it shall be lawful for two justices of the peace of the county, city, &c., "where such person is imprisoned," to inquire into and ascertain, &c. [COCKBURN, C. J.-The order was certainly made after his term of imprisonment had expired]. Whilst, however, he is in the asylum he cannot be taken out without the consent of the Lunacy Commissioners. The power of the Secretary of State extends beyond the period of imprisonment. As the custody cannot be put an end to whilst he remains insane, so the inquiry may take place at any time whilst he is in the asylum: (Reg. v. The Justices of the West Riding of Yorkshire, 20 L. J. 18, M. C.) [LUSH, J.—The argument on the other side is that the inquiry must take place whilst the lunatic is in prison. That cannot be literally so, as he is not really in prison whilst in the asylum.] It is objected secondly that as the prison at Devizes is within the borough of Devizes, which has its own commission of the peace, the county justices had no jurisdiction to make the order. But that is provided for by sect. 6 of the 11 & 12 Vict. c. 43. Poland (Lopes with him).-As regards the first objection-it is contended that when the sentence had expired the justices had no jurisdiction under the 3 & 4 Vict. c. 54, to make this order. [CockBURN, C. J.-Your contention would lead to this extraordinary state of things, that when the period of imprisonment expired, the lunatic should be set at liberty.] They should then apply to the parish authorities to take charge of him. This is provided for by the 23 & 24 Vict. c. 75, s. 8, which enacts that "where by reason of the expiration of his term of imprisonment or penal servitude, or otherwise, a person confined in the asylum would be entitled to his discharge if duly certified to have become of sound mind, it shall be lawful for the Secretary of State, by his warrant, to order the discharge of such person, although he may not have been certified as aforesaid, to the intent that he may be placed in a county lunatic asylum, or otherwise subjected to the same care and treatment as lunatics not being criminals." [LUSH, J.-That certainly seems to supply the remedy.] As regards the second objection, namely, the want of jurisdiction of the county justices, although the 6th section gives justices of a county a power to act as such in a borough, yet the 35th section enacts that the statute shall not apply, amongst other matters, to any warrant or order for the removal of the poor, nor to any complaints or orders made with respect to lunatics, or the expenses incurred in the lodging, maintenance, medicine, clothing, or care of any lunatic or enacts that the 6th section of the 11 & 12 Vict. c. 43, shall be construed as if the 35th section of the 11 & 12 Vict. c. 42 were not enacted, yet it is contended that the 6th section has no application to such a proceeding as this. [BLACKBURN, J.-The last Act certainly must be taken as entirely removing the restriction.] Thirdly, it is contended that the notice was improperly signed, and that it should have been signed by the clerk of the peace. It is also insisted, as a fourth objection, that the order is bad as far sa regards the amount for the past maintenance. The general rule against such a claim can only be excepted to by the express enactment of the Legislature, and there is no such enactment in the present case. In case the proceedings are taken under the 16 & 17 Vict. c. 97, s. 97, there is a power to direct the expenses of a lunatic incurred within the previous twelve months to be paid; but that Act, by sect. 133, is not to affect the 3 & 4 Vict. c. 54: Rex v. Maulden, 8 B. & C. 78; Rex v. St. Nicholas, Leicester, 3 A. & E. 79; Coleridge, Q. C. in reply.-As to the last objection, there must be some retrospective payment in every case, and the principle is the same, whether it be for a week, a fortnight, or a year. [MELLOR, J.-It is in your favour that the justices are to inquire and ascertain the expenses of his maintenance.] The keeper of the asylum is bound to take the lunatic and some expenses must be incurred before his settlement can be ascertained. COCKBURN, C. J.-Three objections have been made to the validity of the order which is the subject matter of the present discussion; two of them which go to the orders in the whole, and the third, which affects only part of it, and with regard to the two objections taken to the whole, I am of opinion that our decision must be in favour of the respondents. The first objection is that the order in question was made after the period to which the lunatic had been sentenced for a term of imprisonment had expired. Now the facts lie in a very short compass. It appears that the pauper who had been convicted of felony and sentenced to a year's imprisonment, pending the imprisonment became insane, and by an order of the Secretary of State on the 18th June, 1864, he was directed to be removed' to the County Lunatic Asylum at Britton Ferry, in the county of Glamorgan. He was accordingly so removed. No application was made for an order for his maintenance, under the 3 & 4 Vict. c. 54, from the date of the order of the Secretary of State on the 18th June 1864 until the month of March 1866. It appears that in the meanwhile, firstly in August 1865, and subsequently in December 1866, the keeper of the lunatic asylum of the county of Glamorgan applied to the parish in which the settlement of the pauper has been adjudicated to be, for the money due in respect of his maintenance; on both occasions the parish replied, and I think properly replied, that there had been no order made on them by the Act of Parliament for the maintenance of the pauper. Isay they properly made that answer, because the pauper not being within the parish, they were not bound to provide for a pauper confined in a lunatic asylum except under an order; and any payment made by them would have been made by the overseers in their own wrong. No order was applied for until the month of March 1867. Now, as it appeared upon this case that the order was made after the expiration of the period of imprisonment to which the lunatic had been sentenced, the objection was that the order was therefore bad; and I confess that at first I was struck with the argument, and I |