statute, the settlement of the pauper may be put in issue.

This was an application for two writs of certiorari to remove into this court two several orders of Justices made in the matter of John Handford a pauper lunatic.

In the month of June last the pauper being found to be a lunatic, and being at that time chargeable to the parish of Bideford, was removed to the Devon County Lunatic Asylum. On the 27th of August, the parish officers of the parish of Monkleigh were served with the following order adjudicating the settlement of the pauper to be in their parish:— "Borough of Bideford,

in the county of Devon,

to wit.

To the churchwardens and overseers of the

poor of the parish of Bideford, and to the churchwardens and overseers of the poor of the parish of Monkleigh, in the county of Devon.

"Whereas complaint hath been made by you, the churchwardens and overseers of the poor of the parish of Bideford aforesaid unto us, whose hands and seals are hereunto set, two of Her Majesty's Justices of the Peace, acting in and for the borough of Bideford aforesaid, within which borough the said parish of Bideford is situate (whereof one is of the quorum); that John Handford, aged about forty years, lately and within five years now last past intruded himself into your parish of Bideford, there to inhabit as a parishioner contrary to the laws relative to the settlement of the poor; and that he lately became lunatic, and on or about the eleventh day of June now last past was sent and conveyed from your said parish of Bideford, by an order or direction from a Justice of the Peace, acting in and for the said borough of Bideford, to the Devon County Lunatic Asylum at Exminster, in the said county of Devon; and that he has been from that time, and is now confined as and being a lunatic in the said asylum at the expense of your said parish of Bideford, and that he is now actually chargeable to your said parish of Bideford.

"We, therefore, upon due examination and inquiry made into the premises aforesaid, and satisfactory evidence being adduced to us on the oaths of G. H and W. Y, now taken before us, the said Justices; and

also upon due consideration had of the premises, do in pursuance of the statute in such case made and provided find and adjudge the same to be true; and we do also adjudge that the last legal settlement of the said John Handford was and is in the parish of Monkleigh, in the county of Devon aforesaid. Given under our hands and seals the 26th day of August 1847.

"Chas. Carter (L.S.)

"H. R. Glynn (L.s.)”

On the 6th of September the parish officers of Monkleigh were served with a second order directing them to pay the costs of the maintenance of the pauper in the lunatic asylum. That order was as follows:

"County of Devon, to wit.-To the overseers of the poor of the parish of Monkleigh, in the county of Devon, and to each and every of you.-Whereas complaint has been made to us, the undersigned, two of her Majesty's Justices of the Peace, acting in and for the said county of Devon, by the churchwardens and overseers of the poor of the parish of Bideford, in the said county, that John Handford, a pauper, being in the month of June now last past, and immediately previous thereto, chargeable to the said parish of Bideford, was, in the said month of June, found to be a lunatic, and was sent from the said parish of Bideford by virtue of an order of Charles Carter, Esq., one of Her Majesty's Justices of the Peace acting in and for the borough of Bideford, in the said county, within which borough the said parish of Bideford is situate, to the Devon County Lunatic Asylum, at or near Exminster, in the county of Devon aforesaid, at the costs and charges of the said parish of Bideford, or of the said churchwardens and overseers of the poor thereof; and that he, the said John Handford, has been maintained, clothed, and provided for in the said asylum from that time up to the day of the date hereof, and now is maintained, clothed, and provided for therein at. the expense, costs, and charges of the said parish of Bideford. And whereas it has been duly proved to our satisfaction, on oath and otherwise, that on the 26th day of August instant, it was adjudged in pursuance and under and by virtue of the statute in such case made and provided by Charles Carter, Esq. and Henry Richard

Glynn, Esq., two of Her Majesty's Justices of the Peace, acting in and for the said borough of Bideford aforesaid, that the said John Handford was and is legally settled in a parish different from the parish from which he was sent to the said asylum, that is to say, that he was legally settled in the said parish of Monkleigh. And whereas we, the undersigned Justices, have now also made due inquiry into the place of legal settlement of the said John Handford, and have ascertained that such place of legal settlement is in the parish of Monkleigh aforesaid. And whereas it has now been duly proved to us on oath, on behalf of the said complainants, that the expenses incurred by the said parish of Bideford, in or about the examination of the said lunatic pauper, and his conveyance to the said asylum, and for the lodging, maintenance, medicine, clothing, and care of the said lunatic in the said asylum up to the 30th day of June now last past, being within twelve calendar months previous to the day of the date hereof, amounts to the sum of 31. 8s. 6d., and the said sum of 31. 8s. 6d. has been paid by the guardians of the poor of the union in the said county, of which union the said parish of Bideford forms part, for and on behalf or on account of the said parish of Bideford. Now therefore we, the said undersigned Justices of the Peace, having taken the said several matters into our consideration, and after due examination of the evidence adduced on behalf of the said complainants as well on oath as otherwise, do hereby in pursuance and by virtue of the statute in such case made and provided, order and direct you, the said overseers of the poor of the said parish of Monkleigh on the service hereof to pay to the overseers of the poor of the parish of Bideford aforesaid, or to some or one of them the said sum of 3l. 8s. 6d., being the amount of such expenses as aforesaid, and so paid as aforesaid on account of or for the said parish of Bideford; and we do also hereby further order and direct you the said overseers of the poor of the said parish of Monkleigh, to pay to the treasurer for the time being of the said asylum, or other officer thereof appointed to receive the same, the reasonable charges of the lodging, maintenance, medicine, clothing and care of the said lunatic from the said 30th day of June

now last past unto the day of the date hereof, and also to pay from time to time to such treasurer or other officer of the said asylum as aforesaid, all the reasonable charges of the future lodging, maintenance, medicine, clothing and care of the said lunatic in the said asylum. Given under our hands and seals at Bideford, in the county of Devon, this 27th day of August 1847. "Charles Clarke (L.S.) "W. Tardrew (L.S.)"

By the affidavits of the parish officers of Monkleigh, it appeared that they had received no notice of any complaint having been made as mentioned in the first order; and that all the proceedings before the Justices with respect to each of the orders were taken ex parte.

Montagu Smith (Jan. 17), in support of the application.-Justices have no jurisdiction to make an order adjudicating the settlement of a pauper lunatic, or the subsequent order for the costs of his maintenance, unless the parish officers of the parish sought to be affected by such orders are duly summoned. The case of The Queen v. the Guardians of the Totnes Union (1) is a clear authority for the proposition, that wherever the making of an order affects the interest of any person, he should have an opportunity given to him of opposing it-Painter v. the Liverpool Gas Company (2).

[ERLE, J.-In ordinary cases of removal, the practice is universal to make the order, without summoning the officers of the parish to which the pauper is sought to be removed.]

The pauper himself must, in such case, be summoned-The King v. Wykes (3), and the parish officers have their remedy by appeal against the order. But the 58th section of the 8 & 9 Vict. c. 126, under which the first of these orders adjudicating the settlement has been made, contains no provision for any appeal against such order; and although the 62nd section gives an appeal, that is confined to an appeal against the order of maintenance made under that

(1) 7 Q.B. Rep. 690; s. c. 14 Law J. Rep. (s.s.)

M.C. 148.

(2) 3 Ad. & El. 433; s. c. 5 Law J. Rep. (N.S.) M.C. 108.

(3) Andr. 238; s. c. 2 Bott, 819.

section.

The 80th section, which gives a general power of appeal, expressly excepts from such appeal "orders adjudicating as to the settlement of any lunatic pauper, and providing for his maintenance." The result of the several sections appears to be to make the order of Justices adjudicating the settlement final between the parties. The question is now pending in the full Court The Queen v. the Justices of Middlesex (4).

[ERLE, J.-It appears to me, at present, that if upon appeal against the order of maintenance, the appellants would not be allowed to go into the question of the pauper's settlement, you would be entitled to your rule; if they would, the rule should not be granted.]

Cur. adv. vult.

ERLE, J. now (Jan. 28) delivered judgment. In this case, an application was made for two writs of certiorari, to remove into this court two orders of Justices, the one adjudicating the settlement of a pauper lunatic to be in the parish of Monkleigh, and a subsequent order upon that parish for the costs of the maintenance of the pauper. The ground upon which the motion was made, was that the proceedings before the Justices had been taken ex parte, and that no notice had been given to the parish officers of Monkleigh. But the well recognized principle of law which says, that where a proceeding is moved for by which a party is sought to be affected, he shall have an opportunity given him of shewing cause against it, has always been held to be inapplicable to the case of ordinary orders of removal. There, the officers of the parish sought to be affected are never summoned, but the order is made ex parte, the parish officers being left to their remedy by appeal. Now, the 62d section of the 8 & 9 Vict. c. 126. expressly provides that all the incidents which accompany appeals against ordinary orders of removal shall apply to appeals against orders of maintenance made under that section. And it is further to be observed that while by the 59th section, where a pauper lunatic is sought to be made chargeable to a county, a notice to appear

(4) 16 Law J. Rep. (N.s.) M.C. 109.

Conviction-Distribution of Penalty.

Justices are empowered by the 27th section of 9 Geo. 4. c. 31. to convict of an assault upon complaint, and the offender, upon conviction thereof before them, is to pay such sum, not exceeding 51., as shall appear to them to be meet, which sum is to be paid to some one of the overseers of the poor, or to some other officer of the poor of the parish, &c. in which the offence shall have been committed, to be by such overseer or officer paid over to the general use of the rate of the county in which such parish, &c. shall be situate. A conviction, under this section, ordered the party convicted to pay the fine to the treasurer of the county:-Held, that the conviction was bad, and the Magistrates liable to an action of trespass at the suit of the party imprisoned under it.

Trespass for false imprisonment.
Plea-Not guilty, by statute.

The action was tried, before Coltman, J., at the Spring Assizes, 1847, for the county of Chester, when it appeared that the defendants, who were Magistrates for that county, convicted the plaintiff of an assault, under the 9 Geo. 4. c. 31. s. 27, upon one Mary Goodwin, and ordered him to pay 31. for the assault, and 21. for costs, to the complainant, and in default of payment two months' imprisonment. The plaintiff then requested a month's time to pay, which was granted; at the end of the month he was arrested under the warrant (which followed the terms of the conviction) hereinafter set forth, and was being conveyed to prison when he requested to be taken to the office of the Magistrates' clerk, to whom he paid. the sum of 51.

"County of Chester, to wit.-To the constables of the township of Eaton, in the said county of Chester, and to the keeper of the house of correction at Nether Knutsford, in the said county of Chester.

"Whereas Thomas Chaddock, of Congleton, in the said county of Chester, labourer, was, on the 25th day of October, in the year of our Lord 1845, at Congleton aforesaid, duly convicted before us, the undersigned Randle Wilbraham the younger, Esq. and the Rev. James Brierley, two of her Majesty's Justices of the Peace in and for the said county of Chester, for that he, the said Thomas Chaddock, did, on the 18th day of October then instant, and now last past, at Eaton, in the said county of Chester, unlawfully assault and beat one Mary Goodwin, of Eaton, aforesaid, widow, without any just cause, and in breach of her Majesty's peace; and whereas we, the said Justices, did then and there adjudge the said Thomas Chaddock, for his said offence, to forfeit and pay the sum of 31., and also to pay the further sum of 21. for costs, amounting together to the whole sum of 51.; and whereas we, the said Justices, did then and there order that the said sums should be paid by the said Thomas Chaddock on or before the 25th day of November then next ensuing, and now instant, and in default of payment of the said sums by him on or before the said 25th day of November, we did order and adjudge that the said Thomas Chaddock should be imprisoned in the house of correction at Nether Knutsford, in the said county of Chester, for the space of two calendar months from then next ensuing, unless the said sums should be sooner paid. And whereas we, the said Justices, did then and there further order that the said sum of 37. should be paid to the treasurer of the said county of Chester, in which the said offence was committed, to be by him applied according to the directions of the statute in such case made and provided, and that the aforesaid sum of 21. for costs should be paid to the said Mary Goodwin. And whereas the said Thomas Chaddock hath not paid the said sums of 31. and 21., or either of them, pursuant to the above-mentioned adjudication, but herein hath made default, these are, therefore, to command you, the said constables, to

apprehend the said Thomas Chaddock, and him to convey to the said house of correction at Nether Knutsford aforesaid, and him to deliver to the keeper thereof, together with this warrant.

"And we do hereby command you, the said keeper of the said house of correction to receive the said Thomas Chaddock into your custody in the said house of correction, and him there safely keep for the space of two calendar months, unless the said sums shall be sooner paid, and for your so doing this shall be your sufficient warrant.

"Given under our hands and seals at Congleton aforesaid, the 26th day of November 1845.

(Signed) "Randle Wilbraham, jun. (L.S.) "James Brierley" (L.S.)

It was objected that the warrant was bad, because it directed the penalty to be paid to the treasurer of the county of Chester instead of to one of the overseers of the place where the assault was committed. The learned Judge was of that opinion, and a verdict having been found for the plaintiff, with 57. damages, he directed a verdict to be entered for that amount, with liberty to the defendants to move to have the verdict entered for them. A rule had been obtained accordingly, and now

Couch shewed cause.-The conviction, which is correctly set out in the warrant of commitment, is bad. It is suggested by the other side that there is merely a nominal mis-distribution of the penalty in terms, but the vice and error is much more important than that the 27th section of the 9 Geo. 4. c. 31, under which the plaintiff is convicted, directs the fine imposed by the Justices "to be paid to some one of the overseers of the poor, or to some other officer of the parish, township, or place, in which the offence shall have been committed, to be by such overseer or officer paid over to the use of the general rate of the county, riding, or division in which such parish, township, or place shall be situate;" the Justices are then empowered by the same clause to give time in their discretion, and in default of payment to commit to prison. Now the conviction orders the party convicted to pay the fine imposed to the treasurer of the county of Chester, and in default thereof he is to be imprisoned. The treasurer has

not by the act any authority to receive the penalty, and the Justices had no power to commit to prison. The plaintiff has in truth been imprisoned for not obeying an illegal order. If the form given by the statute be looked at in conjunction with the 27th section, it will manifestly appear that the Justices must name one of the overseers or other officer to whom the money is to be paid. One month's time is given for payment, and it is most important the party convicted should know to whom, during the month, he can pay; it was the intention of the legislature to point out some person on the spot easy of access, and the blanks in the form given by section 35. (1) clearly point out that an individual is to be designated by the Justices. It would be a grievous hardship, and was never contemplated, that a party convicted of an assault should be required, as here, to travel perhaps the whole length or breadth of the county to find out the treasurer to pay him the fine imposed. It is no answer to say, that the plaintiff might have paid the gaoler or the constable immediately on apprehension; and although such payment be good after imprisonment, still the plaintiff here complains of the imprisonment itself, the foundation of which was disobedience to an illegal command.

Welsby, Townsend and Egerton, in support of the rule.-The conviction is good. The effect of the 27th clause is to direct that the fine shall be paid to the overseer, and by him to the general rate of the county: (1) "Be it remembered, that on the day in the year of our Lord

of

at

in the county of [or riding, division, liberty, city, &c. as the case may be], A. O. is convicted before us [naming the Justices], two of His Majesty's Justices of the Peace for the said county [or riding, &c.], for that he, the said A. O, did [specify the offence, and the time and place when and where the same was committed, as the case may be]; and we, the said Justices, adjudge the said A.O, for his said offence to forfeit and pay the sum of [here state the amount of the fine imposed], and also to pay the sum of for costs; and we order that the said sums shall be paid by the said A. O, on or before the day of and we direct that the said sum of [i.e. the amount of the fine] shall be paid to of aforesaid, in which the said offence was committed, to be by him applied according to the directions of the statute in that case made and provided; and we order that the said sum of for costs shall be paid to C. D. [the party aggrieved]. Given under our hands the day and year first above mentioned." NEW SERIES, XVII.-MAG. CAS.

that must mean to the party who collects and manages the county rate, which by the County Rates Act is the treasurer. The 35th section enacts that the form of conviction there given "or in any other form of words to the same effect" shall be sufficient. The words here used are to the same effect. The act directs that the money shall ultimately find its way to the county treasurer, and the Justices here omit the intermediate channel, and direct it to be paid to that officer. That is carrying out the spirit and intention of the act to its fullest extent.

[MAULE, J.-Who is to pay the money to the treasurer ?-the words of the convic

tion are "shall be paid."]

That is, the party convicted shall pay.

[MAULE, J.-The treasurer may live a long way off: is the plaintiff obliged to go and find him out? The act does not say so.]

As the act here distributes the penalty, it was not necessary to name any person in the conviction: it would have been enough to say "to be distributed as the law directs," and the conviction may be read as if the words designating the party to receive were not inserted.

[MAULE, J.-The conviction perhaps may be silent, but can it speak amiss?]

The words " pay to the treasurer" mean, put in course of payment to the treasurer; and the mode of payment pointed out in the act is directory merely. Griffith v. Harris (2) was relied and acted upon at the trial; but there the person designated to receive had no right to one-half of the penalty here, the right party ultimately entitled is pointed out. In practice the money is never paid to the overseer, who is not obliged to go to the petty sessions to receive, nor can he be compelled to go to the gaol after the person is imprisoned to get the fine should he be ready to pay.

[COLTMAN, J.-Would a payment to the constable who had the party in custody, or to the gaoler, be sufficient?]

The 5 Geo. 4. c. 18. s. 3. enacts that such payment is sufficient-Paley on Convictions, 223. If, however, there be a misstatement of unnecessary matter or an omission in not naming the overseer, which is not a material part of the conviction, that will not vitiate the conviction. [Massey v.

(2) 2 Mee. & Wels. 335; s. c. 6 Law J. Rep. (N.S.) M.C. 29.

M