that the overseers of Tamworth had never sent any money to the said Thomas Watson for himself and his said wife since the date of the said order, except as above mentioned.

The pauper, Thomas Watson, who was called as a witness on the trial of the said appeal, stated as follows:-"I and my said wife were sent with my son, because the Justices thought we were the properest persons. I (the said Thomas Watson) meant to come back as soon as I could get. I did not know how long I should have stayed there unless I had been relieved; I should have come back the best way I could."

It was also admitted at the trial of the said appeal, that during the pauper's absence from Barnsley, and during the residence at Tamworth, under the said order of removal, the said pauper, Thomas Watson, retained his house at Barnsley in the care of two of his children, who were at that time twenty-one years of age, and maintaining themselves, and living in the same house with the said Thomas Watson.

The appellants objected under the third. ground of appeal, that it appeared by the examinations that the said pauper, James Watson, was an idiot at the time when the said examinations were taken, and that it was not competent to remove an idiot under an ordinary order for the removal of the poor.

The Quarter Sessions held the objections valid, subject to the opinion of this Court.

Objections were taken at the sessions (under the first and second grounds of appeal) to the form of the order and to the caption of the examination, for omitting to negative a five years' residence in the respondent township. These objections were, however, abandoned on the argument in this Court.

The appellant lastly objected under the said fourth ground of appeal that the said paupers were irremovable at the time of granting the said order then appealed against by reason of their having resided at Barnsley five years next before the application for the said order. The respondents admitted that the paupers were irremovable by reason of such residence unless their removal to Tamworth under the said order of removal of the 18th of July 1842, and

their residence in the said workhouse in Tamworth, and their return to Barnsley under the circumstances above stated, did constitute a break in the said residence of five years next before the application for the said order then appealed against; but they contended that the above circumstances did create a break in the said five years' residence, and that the paupers were removable. The Quarter Sessions held the objection valid, subject to the opinion of

this Court.

If the Court of Queen's Bench should be of opinion that this last objection was valid, then the said order of Quarter Sessions was to be confirmed, otherwise to be discharged. If the Court of Queen's Bench should be of opinion that the third objection is valid, then the said order of Quarter Sessions, so far as regards the removal of the said James Watson, was to be confirmed, otherwise the said order of Quarter Sessions, so far as regards the removal of the said James Watson, to be discharged.

Pashley and Boothby, in support of the order of Sessions. First, the lunatic son was not removable at all under such an order as this; and as it is clear that the chargeability of the father and mother was only in respect of the son, the father and mother were not removable. The statute 8 & 9 Vict. c. 126. is a code of laws for the regulation of pauper lunatics, including idiots by section 84; and Justices of every county are bound by it to provide an asylum within three years from the passing of the act, to which all pauper lunatics are to be sent; and the 46th, 47th, and 48th sections are imperative on the medical officer, the overseers and magistrates. The removal of the son should therefore have been under that statute, if at all.

[PATTESON, J.-You would contend that in the case of a pauper lunatic child, the Magistrates are bound to take it from the parents. The medical certificate seems to be required with a view of ascertaining whether the lunatic is dangerous.]

By section 49. lunatics, though they may not be chargeable, may be sent by the Justices to an asylum, if they are not properly treated by their relatives.

[PATTESON, J.-The lunatic son does not appear to have been chargeable on his own

account; but the father was removed, and the son was removed as part of his family.]

[COLERIDGE, J.-If the son had been under sixteen years of age, relief given on his account would render the father chargeable.]

[PATTESON, J.-There is no statement in the case as to whether the father was chargeable irrespectively of the son. In The King v. the Inhabitants of Mile End Old Town (1) the pauper was born of Irish parents, and the question turned on the statute 3 & 4 Will. 4. c. 40. s. 2, and the Court gave no opinion as to the operation of the 56th section of 4 & 5 Will. 4. c. 76. as regarded children above the age of sixteen.]

But

The father might be considered the agent for the son for the purpose of receiving relief, and the child of an opulent person might be chargeable within the 8 & 9 Vict. c. 126, and removable to an asylum. a lunatic or idiot, not being supposed to have any capacity or animus morandi, is not within the statute 13 & 14 Car. 2. c. 12. -The King v. the Inhabitants of Woolpit (2). The custody of lunatics is in the Crown -Beverley's case (3), Fitz. Nat. Brev. p. 232, and the statute 17 Edw. 2. c. 9. It may be taken that in this case the Justices thought that the parents were the proper persons to look after the idiot son.

That

is the reason why they removed them; but it does not follow that they were chargeable. [COLERIDGE, J.-You might as well say that it would be a reason for including a nurse in an order of removal.]

Secondly, the removal in 1844 did not create a break in the residence-The Queen v. the Inhabitants of Tacolnstone (4), which qualifies The Queen v. the Inhabitants of Halifax (5), The Queen v. the Inhabitants of Seend (6).

[PATTESON, J.-In The Queen v. the Inhabitants of Tacolnstone there had been no order of removal.]

Overend, contrà. - The order made in

(1) 4 Ad. & E. 196; s. c. 5 Law J. Rep. (N.S.)

M.C. 42.

1842 is conclusive that the father, mother, and son were chargeable at the time it was made; and the removal under that order was a disruption of the residence within the cases of The Queen v. the Inhabitants of Halifax, and The Queen v. the Inhabitants of Seend.

[PATTESON, J.-We are with you on that point.]

Then as to the removability of the son, there is no ground for saying that a lunatic is not within the statute 13 & 14 Car. 2. c. 12. None of the lunacy acts repeal that statute. The former statute, 9 Geo. 4. c. 40. s. 38, empowered Justices to send a lunatic to an asylum if they should think fit. The statute 8 & 9 Vict. c. 126. is more stringent, yet that does not imperatively require that all lunatics are to be confined in an asylum because they are chargeable. The Justice, before he can send a lunatic pauper chargeable to a parish to an asylum, must call in a physician, &c., who must certify according to the form, Schedule E. No. 2, that such pauper is a lunatic, and “a proper person to be confined." What is to be done with a lunatic who is chargeable, and who is fit to be at large? The 55th section contemplates pauper lunatics who are not in any asylum, and directs that they shall be visited once a month by the medical officer, &c. Schedule F. gives the form of a list of pauper lunatics fit to be at large; and statute 4 & 5 Will. 4. c. 76. contemplates the detention in workhouses of pauper lunatics who are not dangerous.

[COLERIDGE, J.-The Sessions appear to have held that a lunatic cannot under any circumstances be removed under an order of removal; if therefore there are any circumstances under which he may be so removed, then they are wrong.]

PATTESON, J.-As to the first point, namely, the question of the break of residence, this case cannot be distinguished from The Queen v. the Inhabitants of Halifax and The Queen v. the Inhabitants of Seend. It appears that there was an order made for the removal of three paupers in 1842, which was suspended by reason of the sickness of the father; and we must now take it that the Magistrates who made it were satisfied that the father was charge

able, and we cannot act upon or notice in any way any loose expressions in the examinations as to what the Magistrates are supposed to have thought. The wife was also chargeable, and the son chargeable. Whether the father was chargeable by reason of relief given to the son, and not in respect of relief afforded to himself, is a question into which we do not enter, as there is no ground of appeal to raise it. That being so, there was clearly a break in the five years' residence, as the paupers were received into the appellant parish under the order of removal, however short their residence in the parish may have been. Then as to the Lunacy Act, 8 & 9 Vict. c. 126, whether the pauper is removable or not, depends on the construction to be given to several of the clauses and forms to the schedule of that act, and it is clear when we refer to them, that two classes of persons were contemplated by the legislature, namely, those who are proper to be at large and those who are not; and the Sessions appear to have acted on the opinion that under no circumstances can a lunatic be removed by an order of removal. It is contended that a lunatic cannot be removable by reason of his not having an animus morandi, and we are referred to The King v. the Inhabitants of Woolpit. That was a peculiar case, and turned on the question whether the pauper had come to inhabit in point of fact, and does not apply here. There may be a distinction, for aught I know, between a pauper lunatic chargeable, not being a member of his father's family, and one who is; but if there be a distinction the case is stronger as respects the right to remove where the pauper is a member of the father's family. The order of Sessions

must be quashed.

COLERIDGE, J.-I am of the same opinion. Two questions are raised here. As to one of these, namely, the removability of a lunatic, the Sessions have decided on the abstract proposition, and in so strong a way without considering any particular circumstance, that if we see they are clearly wrong as to the abstract question, we cannot support their decision. The statute deals with two classes of lunatics; those who are fit to be confined and those who are not. If the legislature had said that a

lunatic of a particular description was not fit to be removed under an ordinary order of removal, the question would have been different; but there is a clear distinction between those who come within the provisions of sect. 48. and those who come within sect. 55. In the case of the former, as appears by the form (Sched. E. No. 1.) the Justice cannot make an order for his reception into an asylum, unless he first has a medical certificate that such lunatic is proper to be confined. The 55th section provides for the proper treatment of those who are fit to be at large, and I am glad to find that the statute does make that distinction, as many cases of great hardship might otherwise arise. There is nothing in this case to shew that the pauper was not a proper subject for an order of removal, and he, as well as his father and mother, having become chargeable, were properly removed. Then another question is raised on the objection as to the five years' residence, and I think that, under the circumstances, there has been a complete break of residence. In 1842 an order of removal was made, treating the father as chargeable. In 1844, all the three paupers are removed under that order, and there was no appeal; that order therefore is conclusive, and it is a good order. It is admitted that this is a break under ordinary circumstances, and that it was only by reason of particular facts that it can be taken out of the ordinary rule; but it is also said that such facts existed here, there being a house belonging to the father in the respondent parish, an intention to return to it, and a return; and that the relief, which was only for a certain period, was only given to be applied for the benefit of the

son.

I

But there is no authority for saying that there was not a break. The intention to return cannot affect the question. Had the father a right to return? He clearly had no such right in the present case. consider that the chargeability continued, and that the relief given was in relief of the chargeability of the father by reason of the son.

WIGHTMAN, J. concurred.

Order of Sessions quashed.

Appeal-Order of Removal-Notice of respited Appeal-Mandamus to hear-Sessions-Rule of Practice.

Justices at Quarter Sessions refused to hear an appeal against an order of removal, which had been entered and respited at a former sessions, on the ground that the appellants had not complied with a rule of practice of the Sessions, requiring notice of the previous entry and respite to be given to the respondents, eight days before the sessions next after such entry and respite :-Held, that the Sessions had no power to make a rule of practice of that kind, and therefore, as all the notices required by the general law had been given, that a mandamus lay to compel the Justices to enter continuances and hear the appeal.

This was a rule for a mandamus to the Justices of Surrey, commanding them to enter continuances and hear an appeal against an order for the removal of a pauper from the borough of Lambeth to the parish of St. James, Clerkenwell.

The order of removal was dated the 17th of June 1848, and was served on the 11th of the following month, and on the 29th of August the pauper was actually removed. On the 17th of October the Michaelmas Quarter Sessions for the county of Surrey took place, and at those Sessions an appeal against the order of removal was entered and respited. The appellants then, on the 18th of December, served upon the respondents a notice of trial for the Epiphany Sessions, holden on the 2nd of January 1849. When the appeal was called on, the respondents objected to its being heard, on the ground that neither by means of a distinct notice, nor by service of the order of respite, nor in the notice of trial served, had the appellants given notice of the previous entry and respite of the appeal, eight days. before the then Epiphany Sessions, being the next after such entry and respite had been made, as the appellants were required to do by a rule of practice of the Surrey Sessions, which it appeared had been in existence for eighteen years. This objec

tion the Sessions decided to be a good one, and refused to hear the appeal.

Otter shewed cause (May 5).—The question here is, whether or not the Sessions could properly make a rule requiring the appellants to give notice of a respited appeal to the respondents; and it is submitted that they could, and that there was no such unreasonableness in the practice as to warrant the granting of a mandamus. The case of The King v. the Justices of Norfolk (1) is certainly an authority to the contrary, the only difference from the present case being that there notice was required a month after the respite, but the reasons upon which that case was decided have been, in effect, overruled. In The King v. the Justices of Monmouthshire (2), it was decided, that the 9 Geo. 4. c. 7. s. 8. applied only to the first session after executing an order of removal, and therefore that the Court would not interfere with the discretion of the Magistrates at the second, if in furtherance of a reasonable practice. Here, the rule of the Sessions appears to be not only reasonable, but proper. Again, the case of The Queen v. the Justices of Montgomeryshire (3) is hardly distinguishable from the present. There the Sessions dismissed an appeal because the appellants had only given fourteen days' notice of the trial of a respited appeal, and not twenty days', as required by the rules of the Sessions, and the Court refused to interfere on the ground of unreasonableness. To the same effect may be cited The Queen v. the Justices of Peterborough (4). There is another case bearing upon the point in which a mandamus was granted-The King v. the Justices of Staffordshire (5); but there the Sessions rule was unreasonable, and in that respect it is clearly distinguishable from the present.

Pashley and Charnock, contrà.-The true principle is laid down in the last case quoted. Lord Denman there says, "The Sessions

have no right to introduce a new condition of appeal which is not in the act of parliament." Every appellant has a right to enter and respite absolutely, and in the present case, therefore, the Sessions have exceeded their province by seeking to annex to that right an unreasonable and useless condition. The same principle is recognized and acted upon in the cases of The King v. the Justices of Salop (6), The King v. the Justices of the West Riding of Yorkshire (7), The King v. the Justices of Wiltshire (8), and is quite inconsistent with the decision in the case of The Queen v. the Justices of Montgomeryshire, relied on by the other side, for there the question was simply the length of time required for the reasonable notice directed by the statute. The case of The Queen v. the Justices of Peterborough has no bearing upon the present case. They further cited the cases of The King v. the Inhabitants of Lambeth (9), The King v. the Justices of Sussex (10), and The Queen v. the Justices of Somersetshire (11).

Cur. adv. vult.

ERLE, J. now said-In this case the appeal had been entered and respited, and all the notices required by the general law had been given. But a notice of the respite of the appeal, required by the practice of the Sessions in this county, had not been given, and on that ground the hearing of the appeal was refused. From the case of The King v. the Justices of Norfolk I collect that the power of making rules of practice in respect of hearing an appeal does not extend to the creation of a condition distinct from, and in addition to the steps required by law, and to authorize the refusal of a hearing if such condition be not performed. The notice of respite now in question appears to be such a condition. It follows that the appeal ought to have been heard, and therefore the rule must be absolute.

Gaol, Purchase of, by County-5 & 6 Vict. c. 110.-Contribution by Borough - Construction of 5 & 6 Will. 4. c. 76. s. 117.

Under the provisions of the 5 & 6 Will. 4. c. 76. s. 117, a borough having a separate Court of Quarter Sessions is not exempl from contributing a proportion of the money expended by the county in the purchase of a gaol, pursuant to the provisions of a particular statute:-Held, therefore, that the borough of Birmingham was bound to contribute towards the purchase of the gaol of Coventry, made out of the county rate of Warwickshire, under the provisions of the 5 & 6 Vict. c. 110.

This was a writ of error from the judgment of the Court of Queen's Bench, in favour of the Crown, upon the special facts stated on shewing cause against a rule for a mandamus(1).

Error was assigned on one only of the questions upon which the Court below gave judgment for the Crown, namely, whether the borough of Birmingham was liable to the payment of anything towards the purchase by the county of Warwick of the Coventry gaol, under the 5 & 6 Vict. c. 110. s. 4. intituled "An Act to annex the county of the city of Coventry to Warwickshire, and to define the boundary of the city of Coventry." The county treasurer's accounts against the borough, delivered to the town clerk, from Epiphany Sessions to the Midsummer Sessions 1843, contained a charge of 2,0871. 8s., as the borough proportion of the purchase-money which the county of Warwick had paid, or was liable to pay, for the Coventry gaol, house of correction, county hall, and other buildings.

The Attorney General (Gale with him), for the plaintiffs in error.-The question

Before Parke, B., Alderson, B., Coltman, J., Maule, J., Rolfe, B., Cresswell, J., Platt, B. and Williams, J.

(1) For the special facts at length and the several sections of the statutes see the report of the case below, 17 Law J. Rep. (N.s.) M.C. 56.