1845. THE QUEEN V. CORNWALL. paid, and the future expenses necessary for the maintenance, medicine, clothing, and care of the said Elizabeth Worsdale, whilst she remains insane, may be pro- The Justices of vided for; therefore, we, John Samuel Enys and George Croker Fox, Esquires, being two of her Majesty's justices of the peace in and for the said county of Cornwall, having accordingly inquired into the place of the last legal settlement of the said Elizabeth Worsdale, and it being now satisfactorily proved before us, as well by the oaths of Benjamin Deakin &c., as otherwise, that the said borough of Penryn, in the said county, is the place of the last legal settlement of the said Elizabeth Worsdale, we do, therefore, hereby adjudge the place of the last legal settlement of the said Elizabeth Worsdale to be in the said last-mentioned borough; and we do hereby order the overseers of the said last-mentioned borough to pay unto the overseers of the town of Falmouth aforesaid the sum of 31. 88. 6d., being the reasonable charges of conveying the said Elizabeth Worsdale to the said county lunatic asylum; and also the further sum of 27. 10s. to the treasurer of the said county, being the amount of the several sums which by him have been hitherto paid for the reasonable charges of the maintenance, medicine, clothing, and care of the said Elizabeth Worsdale, in the said lunatic asylum, and also the sum of 58. 6d. weekly and every week to the treasurer of the said county lunatic asylum, or such other sum weekly as shall be from time to time hereafter fixed on in that behalf by the visitors of the said county lunatic asylum. Given under our hands and seals the 21st of October, 1843. "John S. Enys. (L. s.) 1845. THE QUEEN v. The Justices of CORNWALL. The above order was confirmed on appeal by the quarter sessions. The following were the main objections to the order on which the rule nisi was obtained : : 1. That the order adjudicating the settlement, under the 9 Geo. 4, c. 40, recites an order of two justices for the borough of Falmouth, acting under section 41 of the same act, directing the pauper to be confined in the lunatic asylum for the county of Cornwall; but that, under section 38, (which is incorporated for this purpose in section 41), justices can only direct such pauper to be conveyed to the lunatic asylum "for the county or district of united counties for which or any of which they shall act." That an order of two borough justices to convey to a county lunatic asylum is, therefore, clearly bad, and vitiates the adjudication which professes to be founded on it. 2. That the order directs that the expenses of conveying the pauper shall be paid to the overseers of Falmouth; but, by section 41, such expenses are to be paid by the treasurer of the county; that the order should, therefore, have been for repayment to him: Regina v. Darton (a). 3. That the order directs the payment to the treasurer of the sum of 6s. 6d. weekly, "or such other sum as shall be fixed by the visitors:" whereas, by section 38, the justices had no power to order the payment of any specific sums, but only of such sum as the visitors might order. Merivale now shewed cause. Admitting that the justices of Falmouth might have had no jurisdiction to make the first order, the question is, whether the justices for the county might not, nevertheless, adjudicate on the settlement of the pauper, she being actually confined in (a) 12 A. & E. 78. the asylum. The words of section 42 are very general, 1845. v. The Justices of and give power to make such order "where the legal THE QUEEN settlement of any insane confined under person any order of any two justices at any asylum," &c. has not been ascertained, and the object of using such extensive words is very apparent. If the first order was bad, parties aggrieved by it might appeal under section 46, or it might be removed by certiorari; but the pauper being actually in confinement, and the first order having been unobjected to, it might become material to ascertain the settlement, in order to relieve the county rates from further relieving such pauper; and, whether the original order were good or not, the ultimate result would merely be to fix the right party with the expenses. The other objections, if good, go only to small portions of the order (a). M. Smith, contrà, was not called on by the Court. WIGHTMAN, J.-The objection that the borough justices had no power to make the first order cannot be got over; nor is it cured, in my opinion, by the words of section 42: "any order" must mean any valid order. Rule absolute. (a) See Regina v. The Justices of Ripon, antè, p. 292. 1845. Court of Common Pleas. HILARY TERM, 1845. January 24th. BARNES v. WHITE and Another. A local act, (53 TRESPASS for breaking and entering the plaintiff's Geo. 3, c. xcii), intituled, "An' close, and seizing, taking, and converting his goods, &c, act for amend ing the roads and highways in W.," contained some provisions relating to highways not turnpike, and others relating to turnpike-roads. By s. 20 the commissioners were empowered to erect gates, bars, &c., in, upon, or across any roads, &c.; by s. 22, to take tolls; and by s. 39, to mortgage such tolls for the purposes of the act. By s. 93 the act was to expire in twentyone years, (1834). The General Turnpike Act, (3 Geo. 4, c. 126), (1822), by s. 4, extends its provisions to all turnpike acts then in force; s. 41 enacts, that, if any person shall fraudulently or forcibly pass through any such toll-gate with any horse, &c., whereby the payment of the toll shall be evaded, he shall forfeit any sum not exceeding 51.; s. 141 empowers justices, upon conviction of the offence, to issue their warrant for levying the penalties by distress and sale of the goods of the offender; and provides, that one moiety of the penalty shall be paid to the treasurer to the commissioners of the road on which such offence shall have been com, mitted; and s. 148 authorises the use of the forms given in the schedule, in which is a form of conviction, and provides, that no objection shall be made in any proceedings for want of form. By the 4 & 5 Will. 4, c. 10, s. 1, (1834), all acts of Parliament for making, amending, and repairing any turnpike-roads in Great Britain, which would expire in that and the next session, are continued. J. B. was convicted before two justices, for that he, at the parish of C., on the turnpike road, did unlawfully, &c. pass through a certain toll-gate there situate, and being under the authority of the 53 Geo. 3, whereby the payment of the toll was evaded. The conviction concluded thus:-" We do adjudge that the said J. B. hath forfeited for the said offence the sum of" &c. Payment of the penalty being refused, the justices issued their warrant, reciting, “that J. B. had been convicted, for that he, at the parish of C., did unlawfully, &c., pass through a certain toll-gate there situate ;" and thereby directed a distress for the penalty, and that one moiety thereof should be paid to the treasurer to the commissioners for amending the roads and highways in W. In an action of trespass against the justices- Held, 1. That the local act was one of those continued by the 4 & 5 Will. 4, c. 10. 2. That the conviction, following the form given by the statute, was sufficient. 3. That there was no material variance between the warrant and conviction as to the situation of the toll-gate. 4. That the 53 Geo. 3, c. xcii, being incorporated in the 3 Geo. 4, c. 126, the warrant in the description of the toll-gate sufficiently stated an offence within those statutes. 5. That the appropriation of a moiety of the fine to the treasurer to the commissioners of the roads in W. generally, was rightly made. 6. That no demand of the penalty was necessary before issuing the distress-warrant. Plea, not guilty, (by statute). The cause came on for trial before Patteson, J., at the Winchester Summer Assizes, 15th of July, 1844, when a verdict was found for the plaintiff with 27. 9s. 6d. damages, subject to the opinion of this Court on the following case: The defendants are, and at the respective times of the making by them of the conviction, and of the signing by them of the warrant of distress, and of the committing of the trespass hereinafter mentioned, were two of her Majesty's justices of the peace, for the county of Southampton, acting in and for the division of the Isle of Wight, in the said county. On the 3rd of June, 1843, the plaintiff, having been duly summoned to answer an information in respect of the subject-matter of the conviction hereinafter mentioned, appeared before the defendants with his attorney, and objected, that the local act hereinafter mentioned had expired, and, therefore, that the defendants had no jurisdiction to hear the complaint. The defendants overruled the objection, and proceeded to hear the case, as set out in the conviction hereinafter mentioned; and thereupon the plaintiff was convicted before the defendants acting as such justices. The conviction was as follows: "Isle of Wight, in the county of Southampton.-Be it remembered that on the 3rd day of June, 6th Victoria, and A.D. 1843. James Barnes, of the parish of Carisbrooke, in the Isle of Wight, in the county of Southampton, builder, is convicted on the oath of Charles Newnham, a credible witness, before us, two of her Majesty's justices of the peace acting in and for the county of Southampton, and for the division of the Isle of Wight, in the said county, for that he the said James Barnes on the 30th day of May last, in the parish of Carisbrooke aforesaid, in the isle and county aforesaid, on the turnpike-road before then made, and then being under the authority of an act of Parliament, made and passed in the 53rd year of George 1845. BARNES v. WHITE. |