county lunatic asylum in the county of Middlesex, the Justices had no jurisdiction under 9 Geo. 4. c. 40. s. 38. to direct such insane pauper's removal to a house duly licensed for the reception of insane persons. The Court of Quarter Sessions, on the objection so taken, quashed the orders, subject to the opinion of the Court of Queen's Bench. If the Court of Queen's Bench should be of opinion that the said orders were, under the circumstances, legally made, then the said orders of Justices to stand affirmed, and the order of Sessions to be quashed; otherwise the said orders of Justices to be quashed, and the order of Sessions affirmed.

Prendergast, in support of the order of Sessions.-The Justices were not warranted

in making the orders. Their power is derived from the act of parliament, which enables them to make such orders in cases in which "no county lunatic asylum shall have been established" (1). Here they remove because the asylum is full. It may, perhaps, be said, that the lunatic asylum being full, leads to the same result, as far as the pauper is concerned, as if there were none; but if that be so, all that can be said is,

(1) By stat. 9 Geo. 4. c. 40. s. 38, it is provided, "That upon its being made known to any Justice of the Peace that a poor person chargeable to any parish or place is deemed to be insane, it shall be lawful for the said Justice, by an order under his hand and seal, to require the overseer of the poor of the said parish to bring the said insane person before any two Justices of the Peace of the said county;....and if upon view and examination, &c., the said parties shall be satisfied that such poor person is insane, it should be lawful for them, by an order under their hands and seals (according to the form given in the schedule to the act), to cause the said poor person to be conveyed to and placed in the county lunatic asylum, established under the directions of that or any former act....and if no such county lunatic asylum shall have been established, then to some public hospital or place duly licensed for the reception of insane persons" (then follow provisions empowering them to make order on the parish where the pauper is settled, for the payment of the charges of his conveyance and maintenance).

Section 41, after reciting that the place of legal settlement of such insane persons cannot always be ascertained, enacts, "That in every such case it shall be lawful for the said Justices, by their warrant, to direct such person to be confined in the county lunatic asylum for the county, &c., if any such county lunatic asylum shall have been established; and if no such county lunatic asylum shall have been established, in some public hospital or house duly licensed," &c.

that the legislature should have provided against it by the same sort of provision as is made in the other case. This is in effect a casus omissus, and the Court will not extend an act of parliament to a case for which it clearly has not provided-The King v. Chagford (2).

Bodkin and Pashley, contrà.-The Justices might, in their discretion, send the pauper to a private asylum. The 38th section as well as the 41st, shews that the object was to give ample powers to Justices. The title of the act states it to be for providing more effectually for the care and maintenance of pauper and criminal lunatics. The pauper cannot be lodged in the workhouse. It is impossible that a strict and literal construction can be insisted on at all times. Suppose the asylum were to be burnt down, it could not be said that none "had been established." Remedial acts should be liberally construed-Henderson v. Sherbourne (3), Edmonds v. Lawley (4), Lord Zouche's case (5), Bro. Abr. tit. Parliament,' pl. 13, Doe d. Richardson v. Thomas (6); especially where a manifest inconvenience will result from any other construction-The King v. Hall (7). If the 38th and 41st sections of the act are read together, it will be clear that the intention of the legislature was to provide for the pauper in one of the modes there mentioned, and if one is impracticable, the other must be adopted.

LORD DENMAN, C.J.-I think the Sessions were quite right in quashing the order, which it is clear the Justices have made under circumstances not contemplated by the legislature. If we supported it, we should be making an act of parliament, not construing one; for that this case does not come within the meaning of the act, as it now stands, is too plain for argument. Here there is a case in which a county lunatic asylum has been established. We are not to take into consideration any state of things

arising from that which has been so established ceasing to remain so, nor is any such state of things suggested or likely to occur; and the consequence is, that this order must be quashed.

WILLIAMS, J.-I am of the same opinion. The only question is, whether this case falls within the provisions of the act. The argument urged by the appellants would be very strong to shew that if the case had presented itself to the legislature at the time the act passed, they ought to have provided for it, and probably they would have done so; but it cannot now, therefore, be contended, that the case of an asylum being full comes within a provision made for the case of there being no asylum at all.

COLERIDGE, J.-I think there can be no doubt whatever on this question. It is true that the object of the act was to provide a proper place of confinement for pauper lunatics, and for that object new powers are given to Justices of the Peace, and are meant to get rid of the nuisance of the miserable parochial care to which such paupers were before left in many instances. No doubt there should be one uniform rule observed in administering the powers given by the act, and two cases seem to have presented themselves to the legislature-the first, where there is a county lunatic asylum, in which case the Magistrates are directed to make an order for the removal of the party there; and the other case provided for is that where no such asylum shall have been established. But if a case occurs of an asylum not being sufficient to accommodate the pauper, which is the present case, all that can be said is, that this is like other cases to which the rule applies, that powers given by the legislature must be strictly pursued. That has not been done in this case, and the order of the Sessions must be confirmed. WIGHTMAN, J. concurred.

entry, riot, and assault, before plea pleaded. Where, therefore, jurisdiction appears, this Court will not review their judgment in such case, upon its being brought before them by certiorari: the proper mode of proceeding being by writ of error.

A writ of certiorari had been directed to the keepers of the peace for the county of Gloucester, requiring them to return all and singular the indictments in this case, with all things touching the same, and all proceedings thereupon. In answer to the writ, a record of the indictment properly made up was returned; from which it appeared that the indictment had been preferred at the Quarter Sessions, and consisted of three counts; the first against eleven defendants, for forcible entry into the house of the prosecutor; the second against two of the same defendants and others unknown, for forcible entry and assault upon the prosecutor; and the third against the eleven defendants, for riot and assault. It seemed by the record, that the parties had not pleaded (1), as there was no plea upon the record; but the record concluded by stating that the indictment came on to be heard &c., and was quashed by the Court.

A rule had been obtained, calling upon the keepers and Justices of the Peace and the defendants to shew cause why the judgment given upon the indictment, at the the Quarter Sessions, held &c., should not be quashed.

Keating now shewed cause.-The object of the writ is to bring the proceedings of the Court of Quarter Sessions before this Court, that the proceedings may be quashed. That may be the proper course, with regard to certain orders and summary proceedings of courts of inferior jurisdiction; but the record returned in answer to this writ, is a judgment, and it cannot be got rid of by certiorari, and motion to quash, but only by writ of error. The rule, in this case, calls it a judgment-The King v. the Inhabitants of Seton (2), The King v. Jackson (3), The Queen v. Potter (4). In 1 Chitty's

(1) It was admitted in the argument, that the parties had not pleaded when the Court quashed the indictment.

(2) 7 Term Rep. 373.

(3) 6 Ibid. 145.

(4) 2 Ld. Raym. 937.

Crim. Law, p. 747, it is stated, "When once judgment is given, this (namely, the writ of error,) is the only remedy for any defect in the proceedings." But, secondly, if the judgment of the Court of Quarter Sessions can be reviewed in this way, it is submitted, that that Court has jurisdiction to quash indictments, and the proper exercise of that jurisdiction will not be reviewed here. The Judges sitting under the usual commission of oyer and terminer, have power to quash indictments. Such power is inherent in the court by common law, to enable it to do complete justice, and will be exercised in the discretion of the Court, even although an indictment might be good upon demurrer. If, for instance, a count of an indictment contains several charges, or several felonies are stated in different counts, although the indictment be good on demurrer, the Court, in its discretion, will quash it, if it tend to embarrass the prisoner in his defence. In Archbold's Crim. Plead. p. 66, 9th ed., it is stated, that "in cases of indictments at Sessions, or in other inferior courts, the application to quash is made to the Court of Queen's Bench, the record being previously removed, there by certiorari.' But it is submitted, that that position is incorrect, and no authority is cited for it. The Court of Quarter Sessions proceeds, according to the ordinary rules of the common law, and every common law incident attaches to that court Hartley v. Hooker (5), The King v. Wadley (6). This power then being so essential to the proper duties of the Court, some strong authorities would be requisite to shew that it does not possess it. The commission of the Quarter Sessions, which is the same as the commission of the peace, contains no restriction in this respect. By their commission, they are required to inspect all indictments which shall come before them; and to hear and determine all felonies, and various other offences, according to the laws and statutes of the kingdom of England (7). The words are as ample, and nearly similar to those used in the ordinary commission of oyer and terminer, under which the Judges sit. The Judges are required "to hear and

(5) Cowp. 523.

(6) 4 Mau. & Selw. 508.

(7) See the Commission of the Peace, Dalton's Justice, p. 16.

determine the said treasons and other the premises, according to the law and custom of the realm of England," Black. Com. vol. 4, App. ii. As therefore the Court has this discretionary power as incidental to it, and has exercised it, the grounds upon which it has been exercised will not be inquired into, in this form.

Newton, contrà.—The Court of Quarter Sessions having exceeded any jurisdiction they possess, the proper mode of questioning what has been done is by removal of the proceedings into this court by certiorari. It may be that a writ of error would also lie, but that is not the only mode of proceeding. It is admitted in this case, that the defendants had not pleaded. But this was not a case where the indictment was so defective that no judgment could be given upon it. It may be, that in such cases, the Court may have power to quash, or where, upon the application of the prosecutor, the indictment appears so defective that the defendants cannot be convicted upon it.

LORD DENMAN, C. J. This question turns upon the jurisdiction of the Courts to quash an indictment; and there is no doubt that this Court possesses that power before plea pleaded. It is a course which has been frequently followed here, and in courts of assize. Nor is there any doubt that the Court of Quarter Sessions possesses a similar power. That Court had the power

to do what they have done, and they are the Judges of the proper occasion for the exercise of the power. It is no answer to the exercise of that power to say, that the indictment was good, but was nevertheless quashed, as this Court would not in such case interfere, even if there had been a demurrer to the indictment, and the demurrer had been overruled. The matter has been brought before this Court by certiorari, and the circumstances attending the case cannot be considered, but the record only looked at, to see whether it discloses jurisdiction. The argument in favour of the prosecutor has been not so much to shew, that the Court of Quarter Sessions has not the jurisdiction to quash, as that their proceedings were wrong. If the Justices have acted improperly, the remedy is by criminal information; but as it clearly appears that

they have the jurisdiction which they have exercised, that cannot be questioned in this form.

WILLIAMS, J.-I am of the same opinion. It appears to me, that there is much reason in Mr. Keating's observation-that it rather lay upon the other side, looking at the large power and discretion which is intrusted to the Justices in Quarter Sessions, to produce authorities to shew that it was not competent to that Court to quash an indictment. In their commission, there is no limit at all, nor any discrimination made even as to felonies. If, then, they are trusted with powers to so large an extent, it would be a fair presumption that they possessed also the subordinate power of quashing an indictment, unless there is some authority to shew that that is excluded from their jurisdiction. There is no authority to be found to shew that; as, therefore, it appears upon the return to this writ, that the indictment was quashed by the Court of Quarter Sessions, the only question that could arise was, whether that Court possessed the power so to dispose of it; and there is no doubt they had the power.

COLERIDGE, J.-I also agree that this is solely a question of jurisdiction. It has been so put in terms by Mr. Keating, and Mr. Newton has not denied, that in some cases the Court of Quarter Sessions possesses the power to quash. That Court tries cases with all the incidental power of a court at common law. It is said, however, here, that the rule should be made absolute, on two grounds: first, because this indictment had been found at a previous sessions, and notice of trial had also been given. But there is nothing in that to interfere with the power of the Court.. It is no objection that the indictment was found at one sessions, and the trial was to have taken place at another. The same thing frequently occurs at the assizes. This indictment was before the Court, and the course taken was one mode, which they possessed, of disposing of it. The same objection might be made, under similar circumstances, to a demurrer, or even a trial by the jury. The other ground is, that the Court of Quarter Sessions have done wrong, as the circumstances did not exist under which they ought to have quashed. But that is in other words making their jurisdiction depend upon the

decision they come to. Again, it is not correct to say, that no indictment can be quashed, except where no judgment could be given upon it, as an indictment has been quashed by the Court, where there would have been a fatal defect upon demurrer, in order to enable the prosecutor to prefer another indictment, as in The King v. Roysted (8). If the judgment is erroneous, that is upon the record, and may be brought before us by writ of error.

WIGHTMAN, J.-I am of the same opinion. We are asked to quash a judgment of the Court of Quarter Sessions which has been brought before us by certiorari. As a general rule, the proper course of proceeding is by writ of error-The King v. the Inhabitants of Seton. But it is said, that in giving this judgment, the Court of Quarter Sessions went beyond their jurisdiction, as they have no power to quash this indictment. It cannot, however, be said, that the Quarter Sessions had not power over the subject-matter of the indictment; and there can be no doubt, therefore, that they also possessed it incidentally over the indictment itself. They have only done here without demurrer, what they undoubtedly might have done upon demurrer. But it is also said, that even admitting that under certain cirumstances the Quarter Sessions have power to quash, yet that they should not have done so in this case. That, however, was a matter for the Sessions, and is not a point of law for the consideration of this Court.

of her Majesty's Justices of the Peace in and for the said county :"-Held, that the jurisdiction of the Justices sufficiently appeared on the face of the order, since the county in the margin is to be considered as part of the order, and there was only one county mentioned; and that for the same reason it sufficiently appeared in what county parish B. was situate.

The following order of Sessions, together with the original order of removal set out in it, had been brought up by certiorari :

"Westmoreland, to wit.-Be it remembered, that at the General Quarter Sessions of the Peace, holden at Appleby, in and for the said county of Westmoreland, on Monday, the 1st day of January, in the seventh year &c., before &c., that same session of the peace is adjourned by the Justices aforesaid, until Friday, the 5th day of January in the year aforesaid, to be holden at Kendal; and on the same Friday, the 5th day of January aforesaid, the same General Quarter Sessions of the Peace is holden by the adjournment aforesaid, at Kendal aforesaid, in and for the said county, before &c., at which said General Quarter Sessions of the Peace, continued and holden by the adjournment aforesaid, at Kendal aforesaid, in and for the said county, on the said Friday, the 5th day of January, in the year aforesaid, before the said Justices, an appeal against a certain order, bearing date, &c., under the hands and seals of S. W. Esq. and T. F. Esq. is then and there depending for trial, which said order is annexed to this schedule, and is in the following form :—

666

'Westmoreland, to wit.-To the overseers of the poor of the township of Kirkby Lonsdale, and to the overseers of the poor of the township of Casterton, in the said county whereas you, the overseers of the poor of the township of Kirkby Lonsdale, have made complaint unto us, whose names are hereunto affixed, being two of Her Majesty's Justices of the Peace and quorum in and for the said county, that James Dixon has come to inhabit, &c. (in the usual form), and upon proof &c., we adjudge &c., and we do likewise adjudge, that the lawful settlement of the said J. D. is in the parish, township, or place of Casterton, in the county of Westmoreland; we do, therefore, require you, the overseers of the poor of the

"Clerk of the Peace for the county of Westmoreland."

The grounds of objection to the order of Sessions, stated in the margin of the paper book, were-First, that it failed to shew that the order appealed against was made by Justices in and for the county of Westmoreland. Secondly, that it did not confirm the order of removal, except by way of recital of something that the Court, upon hearing of counsel, ordered, and did not contain, in the present tense, any order or adjudication of the Court of Quarter Sessions. Thirdly, that it failed to shew who were the parties severally appellant and respondent in the appeal. Fourthly, that it failed to shew in what county the township of Kirkby Lonsdale was situate. Also that the order of removal was bad, for the same reason, and for not shewing in what county it was made.

Baines and Ramshay, in support of the order of Sessions.-As to the first objection, the original order is incorporated in the order of Sessions. As to the second, the case of The King v. Maulden (1) is in point to shew that the words "having adjudged" amount to a present adjudication. As to the third objection, the order of Sessions sets out the order appealed against, and states that the overseers of Casterton did prosecute the said appeal. As to the last objection, the Court will not make intendments to vitiate the order. The county of Westmoreland is the county mentioned in the margin. The case of The King v. Moor Critchell (2), and The King v. Chilverscoton (3), will be relied on by the other

(1) 8 B. & C. 78; s. c. 6 Law J. Rep. M.C. 76. (2) 2 East, 66.

(3) 8 Term Rep. 178.