chargeable to the borough, to the county lunatic asylum, under 9 Geo. 4. c. 40. s. 38.

An order adjudicating as to the settlement of an insane person confined in a county lunatic asylum, and ordering the payment of expenses under s. 42, can only be made when such insane person is confined there under an order of two Justices of the county.

An order of two Justices, adjudging the settlement of a pauper lunatic to be in P, and ordering the overseers of P. to pay 5s. 6d. weekly to the treasurer of the county lunatic asylum (where the pauper was confined), or such other sum as should be thereafter fixed on by the visitors of the said county lunatic asylum, is bad, for not shewing that 5s. 6d. was the sum which had been fixed on by the visitors of the lunatic asylum.

A rule had been obtained calling upon the Justices of the Peace of the county of Cornwall, to shew cause why a certiorari should not issue to bring up the following order of Justices, adjudicating as to the settlement of a pauper lunatic under 9 Geo. 4. c. 40; and an order of Sessions confirming the said order.

"Cornwall, to wit. To the overseers of the poor of the borough of Penryn, in the county of Cornwall.

"Whereas, heretofore, to wit, on the 3rd day of March 1843, at the borough of Falmouth, in the said county, by a certain order of Joseph Fox, mayor of the said borough, and John Hill, Esq., two of her Majesty's Justices of the Peace in and for the said last-mentioned borough, reciting, that it appeared to them, having called to their aid one Frederick Charles Bullmore, a surgeon, that one Elizabeth Deacon, otherwise called Elizabeth Worsdale, chargeable to the town of Falmouth aforesaid, was insane, and they, therefore, thereby ordered and directed the said overseers to cause the said E. D, otherwise called E. W, to be conveyed to the county lunatic asylum, established at Bodmin, in the said county. And whereas, in pursuance of the said order, the said E. D, otherwise called E. W, was thereupon afterwards, on the day and year last aforesaid, conveyed to the said lunatic asylum, and was then and there delivered to the proper officer thereof, who then and there accepted and received the said E. D,

otherwise called E. W, into the said asylum, and the said E. D, otherwise called E. W, was then and hath been from thence hitherto kept and detained, and is still kept and detained in the said asylum as insane, where she hath ever since been and still is maintained. And whereas, at the time of the making of the order aforesaid, the place of the last legal settlement of the said E. D, otherwise called E. W, had not been ascertained, and it is necessary now to inquire into and ascertain the same according to the exigency of the statute in such case made and provided, in order that the reasonable charges of the removing, maintenance, medicine, clothing, and care of the said E. D, otherwise called E. W, (incurred within twelve calendar months previous to the date of this order,) may be repaid, and the future expenses necessary for the maintenance, medicine, clothing, and care of the said E. D, otherwise called E. W, whilst she remains insane, may be provided for; therefore we, John Samuel Enys and George Croker Fox, 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 E. D, otherwise called E. W, and it being now satisfactorily proved before us, as well by the oaths of Benjamin Deakin, Richard Ockleshrow, James George Julyan, Thomas Small Skinner, Francis Mitchell, and Thomas Mitchell, as otherwise, that the said borough of Penryn, in the said county, is the place of the last legal settlement of the said E. D, otherwise called E. W we do therefore hereby adjudge the place of the last legal settlement of the said E. D, otherwise called E. W, 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. 18s. 6d., being the reasonable charges of conveying the said E. D, otherwise called E. W, to the said county lunatic asylum; and also the further sum of 21. 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 E. D, otherwise called E. W, in the said lunatic asylum;

and also the sum of 5s. 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 day of October, in the year of our Lord 1843.

"John S. Enys. "G. Croker Fox." The objections to the above order, were, first, that the payment of the charges of conveying the pauper to the lunatic asylum was ordered to be made to the overseers of the town of Falmouth, whereas it ought to have been to the treasurer of the county. Secondly, that the Justices had no jurisdiction to order the payment of a fixed sum, but only such sum as the visitors should fix upon. Thirdly, that the Justices of the borough of Falmouth had no jurisdiction to send the pauper lunatic to the county lunatic asylum.

Merivale now shewed cause.-This first objection only goes to part of the order, and even if it prevail, the order will be good as to the remainder, and cannot be quashed on that ground. As to the second objection, which also goes to part of the order only, the order is to pay 5s. 6d., or such other sum weekly, as shall be from time to time hereafter fixed on by the visitors of the said county lunatic asylum. The plain inference to be drawn from these words is, that 5s. 6d. was a sum which had been so fixed on, otherwise the words "such other sum" would have no meaning at all.

[WIGHTMAN, J.-I can hardly understand them so; it cannot, I think, be inferred from the order that the sum of 5s. 6d. had been fixed on by the visitors.]

Then, it is objected, that the Justices of the borough of Falmouth had no jurisdiction to make the first order for conveying the lunatic to the county lunatic asylum. This objection is too late. If the first order was bad, it might have been appealed against, under section 46. But it is not necessary, in order to make the order of adjudication valid, that the order for sending the lunatic to the asylum should have been made by two Justices of the

county. Sect. 42. says, "that where the legal settlement of any person confined under any order of two Justices at any county lunatic asylum has not been ascertained," and not under any order "made as aforesaid." The probable intention of this clause was, that, when a pauper lunatic was confined in the asylum, under an order of any two Justices, good or bad, and no objection was made to that order, then two Justices of the county might proceed to adjudicate as to the settlement.

[WIGHTMAN, J.—I think that is not the true construction of the 42nd section; it must refer to an order made by two Justices of the county. Sect. 41, under which the order in question ought to have been made, gives power to "the said Justices," which must be the Justices of the county mentioned in sect. 38.]

But if that is so, it does not appear from this order that the Justices of Falmouth had not power to send to the county lunatic asylum. Section 50. provides that the county lunatic asylum shall not be liable to the reception of insane persons chargeable to, or apprehended in any town or place situate within the limits of the county, but claiming exemption, and being exempt from contributing to the county rate. borough of Falmouth is stated to be in the county, and is not, necessarily, exempt from contributing to the county rate: many boroughs are not so; and on the face of the order no such exemption appears.

The

M. Smith, in support of the rule.—The Justices removing the lunatic are stated to be Justices of the borough of Falmouth; the act gives the power of removing to a county lunatic asylum only to two Justices acting for the county or district of counties for which such asylum is established-sect. 38. If the removal under the first order was bad, for want of jurisdiction in the Justices, all subsequent proceedings, which rest upon the original sending, are bad also. The borough Justices had no right to send to an asylum out of their own jurisdiction.

WIGHTMAN, J.-I think this objection is

fatal.

Rule absolute.

66

66

It is necessary, in a conviction under 9 Geo. 4. c. 69. s. 1, to aver that the party entered the land, by night, for the purpose of destroying game "there," or therein," (or some equivalent language); and it is not sufficient merely to pursue the words of the statute. Therefore, where in an action of trespass against two Magistrates they pleaded a conviction of the plaintiff, which conviction stated that the plaintiff " did, by night, unlawfully enter a certain inclosed land, in the occupation, &c., with a net, for the purpose of taking game, &c., contrary to the form of the statute,"-Held, on demurrer, that such conviction was no answer to the action, though it was expressly averred, in the plea, that the plaintiff unlawfully entered the inclosed land, by night, for the purpose of taking game, by night, in the said inclosed land.

Semble-that the conviction should also allege the purpose to be to take game "by night."

Quære-if the same strictness is necessary in indictments for misdemeanour, under the 9th section of the act.

Trespass, for assaulting the plaintiff, and apprehending him, and seizing, &c. and compelling him to go from Chippenham, in the county of Cambridge, to a certain gaol in the parish of Chesterton, and there imprisoning him, and compelling him to work on a certain treadwheel and treadmill, for twelve hours each day, and until the plaintiff, in order to procure his release, was obliged to issue a writ of habeas corpus, and cause himself to be carried and conveyed, under the said writ, from the said gaol to Horsemonger Lane Gaol, and from thence to Westminster, where the plaintiff was, by the consent of our Lady the Queen, discharged from his imprisonment.

Plea-That after the making and passing of a certain act of parliament, made and passed in the ninth year of the reign of his late Majesty King George the Fourth, being an act, "for the more effectual preNEW SERIES, XIV.-MAG. CAS.

vention of persons going armed, by night, for the destruction of game," (1) and before the said time when, &c., in the declaration mentioned, and before the commencement of this suit, to wit, on the 24th day of October, in the year of our Lord 1843, at the parish of S., in the county of Cambridge, the said plaintiff, with three other persons, to the defendants unknown, did by night, that is to say, after the expiration of the first hour after sunset, on Monday the 23rd day of October 1843, and before the beginning of the last hour before sunrise, on Tuesday the 24th day of October, in the same year, to wit, about the hour of one o'clock in the morning of the said 24th day of October, unlawfully enter certain inclosed land, in the occupation of W. C., and situate in the said parish of S., in the county aforesaid, with a net, for the purpose of taking game, to wit, partridges and pheasants, by night, that is to say, between the expiration of the first hour after sunset on the said 23rd day of October, and the beginning of the last hour before sunrise on the said 24th day of October, in the said inclosed land, contrary to the provisions of the said act of parliament in this plea mentioned, and thereby the said plaintiff then and there, and within the county aforesaid, became and was guilty of an offence against the provisions of the said act of parliament.

(1) The 9 Geo. 4. c. 69. s. 1, after reciting the passing of the 57 Geo. 3. c. 90, and that the practice of going out by night, for the purpose of destroying game, had, nevertheless, very much increased of late years, and had, in very many instances, led to the commission of murder and of other grievous offences; and it was expedient to repeal the said recited act, and to make more effectual provisions for repressing such practice, enacted, that, "if any person shall, after the passing of this act, by night, unlawfully take or destroy any game or rabbits, in any land, whether open or inclosed, or shall, by night, unlawfully enter or be in any land, whether open or inclosed, with any gun, net, engine, or other instrument, for the purpose of taking or destroying game, such offender shall, upon conviction thereof before two Justices of the Peace, be committed, for the first offence, to the common gaol or house of correction for any period not exceeding three calendar months, there to be kept to hard labour."

H

And the said defendants further say, that, before the commission of the said offence, by the plaintiff, and before the said time when, &c., in the declaration mentioned, and before the commencement of this suit, to wit, on the 24th day of October, in the year of our Lord 1843, they, the said defendants, respectively, were, and from thence hitherto have been, and still are, Justices of our Lady the Queen, assigned to keep the peace of our said Lady the Queen in and for the said county of Cambridge, and also to hear and determine divers felonies, trespasses, and other misdemeanours, done and committed within the said county. And the defendants further say, that, afterwards, and before the said time when &c., and before the commencement of this suit, and within six calendar months of the commission of the said offence, to wit, on the said 24th day of October, A. D. 1843, at the parish of Isleham, in the said county of Cambridge, the said plaintiff was charged before the said defendant John Calthorp, so there being such Justice as aforesaid, upon the oath of one James Cowel, a credible witness in that behalf, with the said offence in this plea mentioned, the same being an offence punishable upon summary conviction, by virtue of the said act of parliament. And the defendants further say, that, afterwards, and just before the said time when &c., and before the commencement of this suit, to wit, on the 26th day of October, A.D. 1843, at the parish of Chippenham, in the said county, the said plaintiff was brought before the said defendants, so there being such Justices as aforesaid, upon the said charge; and the said charge was then and there, in his the said plaintiff's presence, proved by the said James Cowel and one John Nicholls, being credible witnesses in that behalf, upon oath; and the said plaintiff was then and there convicted by and before the said defendants, then being such Justices as aforesaid, he, the said plaintiff, being then and there present before the said defendants, of his said offence, in this plea mentioned, which said conviction was afterwards, to wit, on the 26th day of October, A.D. 1843, written on parchment, and signed by the said defendants, and afterwards, to wit, on the 5th day of January, A.D. 1844, was returned by the said defen

dants, then being such Justices as aforesaid, to the Quarter Sessions, then holden in and for the said county, in pursuance of the said statute in that case made and provided, the same being the Quarter Sessions for the said county next after the said plaintiff was so convicted as aforesaid, and which said conviction was and is in the words following:"Be it remembered, that on the 26th day of October, in the year of our Lord 1843, in the parish of Chippenham, in the county of Cambridge, Robert Fletcher the younger, late of the parish of Soham, in the said county, labourer, is convicted before us, the Rev. John Calthorp, clerk, and Joseph Sidney Tharp, Esq., two of her Majesty's Justices of the Peace for the said county, for that he, the said Robert Fletcher the younger, on the 24th day of October, A.D. 1843, at the said parish of Soham, in the said county, with three other persons, to us, the said Justices, unknown, did, by night, after the expiration of the first hour after sunset on Monday the 23rd day of October, A.D. 1843, and before the beginning of the last hour before sunrise on Tuesday the 24th day of October, in the same year, that is to say, about the hour of one of the clock in the morning of the said 24th day of October, unlawfully enter certain inclosed land, in the occupation of William Cornwell, and situate in the said parish of Soham, in the county aforesaid, with a net for the purpose of taking game, to wit, partridges and pheasants, contrary to the form of the statute in such case made and provided. And we, the said Justices, adjudge the said Robert Fletcher the younger, for his said offence, to be imprisoned in the common county gaol at Cambridge, in and for the said county of Cambridge, and there kept to hard labour for the period of three calendar months, and at the expiration of such period to find sureties by recognizance, himself in the sum of 107. and two sureties in the sum of 5l. each, or one surety in the sum of 10l., conditioned that he, the said Robert Fletcher the younger, shall not so offend again for the space of one year next following; and we further adjudge the said Robert Fletcher the younger, in case he shall not find such sureties as aforesaid, to be further imprisoned, and kept to hard labour for the space of six calendar months,

Joseph Sidney Tharp." As by the record of the said conviction, remaining among the records of the Court of Quarter Sessions for the said county, will more fully and at large appear. And the defendants further say, that the conviction of the said plaintiff of his said offence, hath not, at any time since the said plaintiff was so convicted as aforesaid, in any way, been quashed, reversed, or annulled, but that the same, from thence hitherto, hath been and is in full force and effect. And the defendants further say, that afterwards, and after the said plaintiff was so convicted by and before the said defendants as aforesaid, to wit, on the said 26th day of October, in the year of our Lord 1843, the said defendants, as such Justices as aforesaid, in pursuance of the said conviction of the plaintiff of his said offence, made and issued under their hands and seals a certain warrant of commitment, which said warrant of commitment was and is in the words following:-"County of Cambridge, to wit. To the constable of Soham, in the county of Cambridge, and to the keeper of the common gaol at Cambridge, in the said county. Whereas Robert Fletcher the younger, of Soham, in the said county, labourer, is convicted, by and before us, the Rev. John Calthorp, clerk, and Joseph Sidney Tharp, two of her Majesty's Justices of the Peace in and for the said county, upon the oath of James Cowel, for that he, the said Robert Fletcher the younger, at the parish of Soham, in the said county, with three other persons unknown, in certain land there situate, in the occupation of William Cornwell, did, by night, to wit, after the expiration of the first hour after sunset on Monday the 23rd day of October, in the year of our Lord 1843, and before the beginning of the first hour before sunrise on the 24th day of October, in the same year, that is to say, about the hour of one of the night of the said 23rd day of October, unlawfully enter upon certain inclosed land, with a net for the purpose of taking game, contrary to the form of the statute in such case made and provided. And thereupon, we, the said Justices, adjudged the said Robert Fletcher the younger, for his said

offence, to be imprisoned in the common gaol at Cambridge, in and for the said county of Cambridge, and there to be kept to hard labour for the period of three calendar months, and that at the expiration of such period he, the said Robert Fletcher the younger, find sureties by recognizance, as hereafter mentioned. These are, therefore, to require you, the said constable, to apprehend and forthwith convey the said Robert Fletcher the younger to the said common gaol at Cambridge aforesaid, and deliver him to the said keeper thereof, together with this precept; and you, the said keeper, are hereby commanded to receive the said Robert Fletcher the younger into your custody in the said common gaol, there to be imprisoned and kept to hard labour for the period of three calendar months; and if, at the expiration of such period, the said Robert Fletcher the younger shall not find sureties, by recognizance, himself in the sum of 10%. and two sureties in the sum of 51. each, or one surety in the sum of 10l., conditioned that he, the said Robert Fletcher the younger, shall not so offend again for the space of one year next following, then that you, the said keeper, further imprison the said Robert Fletcher the younger, in your custody, at Cambridge aforesaid, and there to be kept to hard labour for the space of six calendar months, unless such sureties shall be sooner found. Given under our hands and seals, day of October, in the year of our Lord 1843.

the

"Joseph Sidney Tharp (L.s.)

"John Calthorp (L.S.).”

And the defendants further say, that the said Robert Fletcher the younger, in the said conviction and in the said warrant of commitment mentioned, is the plaintiff in this suit; and that the said Justices, in the said conviction and in the said warrant of commitment mentioned, are the defendants in this suit; and that the said conviction of the plaintiff, recited in the said warrant of commitment, is the same conviction as in this plea mentioned, and set forth according to the words thereof, and not another and different conviction; and that the said offence, of which the said plaintiff was so convicted as aforesaid, was and is the same offence as is mentioned in the said warrant of commitment, and not another and different offence; and that the said common gaol in this plea