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1862.

FAVERSHAM

v.

Isle of THANET.

any notice being given to him by the relieving or other officer of the parish of St. John the Baptist, examined the lunatic at the house where she was residing, and after calling to his assistance a surgeon, made the order of the 12th July, 1859.

Under this order the pauper lunatic was conveyed from the parish of St. John the Baptist, Margate, to the said licensed house by the relieving officer of such parish. At the times the orders of David Price and G. C. Norton, Esquires, dated respectively the 12th July, 1859, and 13th April, 1860, were made, the pauper lunatic was a proper person to be confined in the said licensed house under the provisions of the 16 & 17 Vict. c. 97. s. 67-, and it was admitted that such lunatic was properly sent there, and that all the proceedings for sending her there were regular, with the exception hereinafter mentioned.

The settlement of the lunatic is in the parish of Faversham, and the only ground of appeal against the said order was, that at the time of the making of the order by David Price, Esq., for the removal of Sarah Martin, the borough of Margate was not a borough town or city corporate, having a quarter sessions, recorder and clerk of the peace, within the meaning of the provisions of the 132d section of the 16 & 17 Vict. c. 97., "An Act to consolidate and amend the laws for the provision and regulation of lunatic asylums for counties and boroughs, and for the maintenance and care of pauper lunatics, in England;" and consequently that David Price had no jurisdiction to make that order.

At the time of the making of the order by David Price, the borough of Margate was a borough created by charter of the Crown, dated the 29th July, 1857, under the Municipal Corporations Act, and David Price

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had been appointed, and was at the time of making the order, a justice of the peace of the borough; but at the FAVERSHAM time of making the order by David Price no court of quarter sessions had been or was created or established for the borough, nor had any recorder or clerk of the peace for the borough been appointed, nor was there then in fact any recorder or clerk of the peace for the borough.

The parish of St. John the Baptist, in which the borough of Margate is wholly situate, is not part of the county of Kent, but is a non-corporate limb and ancient member and liberty of the borough town and port of Dover, and still remains so, except so far as it is affected by the charter of incorporation before mentioned. Besides the justices appointed for the borough of Margate under the charter of incorporation, certain justices appointed under stat. 51 G. 3. c. 36., and the justices of Dover assigned to that place by virtue of the Municipal Corporations Act, 5 & 6 W. 4. c. 76. s. 135., continue and have jurisdiction in Margate under that Act, and under 18 & 19 Vict. c. 48. and 20 & 21 Vict. c. 1.

David Price is only a justice for the borough of Margate, appointed under the charter incorporating that place, and is not a justice for the borough, town and port of Dover, nor is he appointed under stat. 51 G. 3. c. 36.

Dover is one of the Cinque Ports, and has a separate court of quarter sessions of the peace, recorder and clerk of the peace, and it was contended by the respondents that Margate is still within the jurisdiction of such court, by virtue of stats. 5 & 6 W. 4. c. 76. s. 134. and 6 & 7 W. 4. c. 105. s. 10.

It was contended, on behalf of the churchwardens and

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overscers of the poor of the parish of Faversham, that FAVERSHAM David Price had no jurisdiction to make the order for the reception of the lunatic into the said licensed house, and that, her confinement and chargeability there being unlawful, the order of G. C. Norton, dated 13th April, 1861, was therefore void.

Isle of THANET.

It was contended, on behalf of the parish of St. John the Baptist, Margate, that David Price had jurisdiction to make the said order, and that, whether he had or not, the order of G. C. Norton was rightly made, because, at the time of the making the same, the pauper lunatic was confined in the said licensed house at the cost and charge of the parish of St. John the Baptist.

The question for the opinion of the Court is, Whether David Price had jurisdiction to make the order dated 12th July, 1859; and whether, if he had not, the order of G. C. Norton is thereby rendered invalid.

If the Court should be of opinion that the order of G. C. Norton is, under the circumstances above stated, properly made, then such order is to be confirmed; otherwise the same, or so much thereof as this Court should think illegal, is to be quashed.

Poland, for the respondents.--First, the order for the reception of the lunatic into the asylum was rightly made. Mr. Price had jurisdiction to make that order under stat. 16 & 17 Vict. c. 97. s. 67. The enacting part gives jurisdiction to a justice of the county or borough within which the parish from which the lunatic was sent is situate; but the proviso is, "That it shall be lawful for any justice, upon notice being given to him as aforesaid, or upon his own knowledge, without any such notice as aforesaid, to examine any pauper deemed to be lunatic

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at his own abode or elsewhere, and to proceed in all respects as if such pauper were brought before him FAVERSHAM in pursuance of an order for that purpose." [Crompton J. That is a proviso on the enacting part; it must mean that the. justice should be a "justice of the county or borough in which such parish is situate."] If that is so, the justice who has jurisdiction under the enacting part must be a justice of a borough having a quarter sessions, recorder and clerk of the peace, because, by sect. 132, "Borough' shall mean every borough town and city corporate having a quarter sessions, recorder, and clerk of the peace." But Margate, though an outlying district, is an ancient member and liberty of the borough of Dover, which is one of the Cinque Ports, and has a quarter sessions, recorder, and clerk of the peace. Sect. 67 means that the justice of the borough shall act when the place is liable to the jurisdiction of a borough quarter sessions; and Margate is a borough within the jurisdiction of the quarter sessions of the borough of Dover. It is as if Margate was part of Dover; the justices of Dover have jurisdiction in Margate; and all the prisoners committed by the justices of Margate are sent to be tried at the quarter sessions at Dover. [Crompton J. There is a separate set of justices and a separate commission of the peace for Margate. Wightman J. The commission in which Mr. Price's name is does not extend to Dover, and therefore he is not a justice of a borough within sect. 67, as explained by the interpretation clause. Crompton J. Margate is a sub-borough with a minor jurisdiction. The interpretation clause is very express as to the meaning of the word "borough" in the statute, unless there be something in the subject or context repugnant to such

1862.

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construction; and there is nothing in sect. 67 repugnant to the construction assigned to the word by the interpretation clause. The Dover justices have jurisdiction over Margate: the borough of which Mr. Price is a justice has no quarter sessions, and therefore he is not within sect. 67.] Then, the justices of the county having no jurisdiction in Margate, the justices of Dover must go to Margate in order to remove dangerous lunatics.

Secondly, supposing the order for receiving the lunatic into the asylum was invalid, there was sufficient to give jurisdiction to make the order of settlement and maintenance under stat. 16 & 17 Vict. c. 97. s. 97. By that section, "It shall be lawful for any two justices for the county or borough in which any asylum, registered hospital, or licensed house in which any pauper lunatic is or has been confined is situate," to inquire into and adjudge the settlement of the pauper lunatic and to make an order of maintenance. Only two ingredients are necessary to give jurisdiction, viz., that the person should be a pauper lunatic, and that he should actually be in confinement; and the Court will not inquire whether the proceedings under which he was confined are legal or not. In Reg. v. The Inhabitants of Crediton (a) orders of adjudication and maintenance, made under sect. 97, recited an order of justices by which the pauper lunatic was duly sent to the asylum, and had been confined there "as such pauper lunatic," and still remained there; and it was held that the jurisdiction of the justices to make the orders of adjudication and maintenance sufficiently appeared; and Erle J. said, p. 242, "I think that, when an order, in itself apparently regular, refers by recital to a former order, we should, in absence of proof to the (a) E. B. & E. 231,

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