Volume IX. 1846. The QUEEN V. GRIFFIN. which extends only to persons ejusdem generis with those named before; Sandiman v. Breach (a), Kitchen v. Shaw (b). But the statute does not apply. Its object was, not to alter the mode of procedure under existing statutes, but merely to direct in what manner proceedings should be had where there was no such mode provided. It had been made a question, whether, where two justices are required to convict, one could receive the information, there being no special enact-. ment empowering him (c). And it was to meet cases of this description that the statute was passed. Lord DENMAN C. J. I do not think that the statute 3 G. 4. c. 23. s. 2. was intended to repeal, or has the effect of repealing, the direct provision of stat. 52 G. 3. c. 93. The conviction, therefore, is bad, as founded on an insufficient information. PATTESON J. I think the interpretation put by Mr. Merivale on stat. 3 G. 4. c. 23. s. 2. is the correct one: namely, that it provides for ordinary cases, where two justices are required to hear, by enacting that in such cases one only shall be required to take the information; but does not extend to cases where by former statutes, a specified number of justices, or other persons within the meaning of the act, was required for that purpose. WILLIAMS J. concurred. Order of sessions quashed (d). (b) 64. & E. 729.734. (a) 7 B. & C. 96. 100. (c) Dalton's Just. p. 24. Ed. 1655., Paley on Convictions, p. 23. 3d ed. (d) Reported by H. Merivale, Esq. Queen's Bench. 1846. The QUEEN against The Justices of RAD NORSHIRE. Thursday, Two justices of the county of R., assuming to act under stat. 9 G. 4. the parish officers of H., in that county, to pay the keeper of a certain sums to house for the reception of insane persons in the county maintenance of of S., for the an insane person, whose settlement they, UNDER stat. 9 G. 4. c. 40., two justices of Radnorshire, by order of 30th November 1843, adjudged the settlement of J. P. Wood, an insane pauper, to be in the parish of Heyop, in that county, and ordered the overseers of Heyop to make certain weekly payments to the keeper of a licensed house for the reception of insane persons at Shrewsbury, in Shropshire. He had been placed in this house by virtue of a previous order, of 13th November 1843, directed to the parish officers of the parish of Knighton, in Radnorshire, to which he was then chargeable, his settlement having then been inquired into, but not ascertained. On appeal against the order of 30th November, at the Radnorshire Quarter Sessions, the sessions confirmed the order, subject to a H. made paycase: but this Court, in last Hilary vacation, quashed both orders, on the ground that the justices of Radnor shire had no jurisdiction to make the order on Heyop (a). In Easter term, Pashley obtained a rule nisi for mandamus, commanding the justices of Radnorshire to order to be paid to the churchwardens and overseers of Heyop, out of the county stock or rates of Radnorshire, 50%. 12s., the amount of moneys paid by the parish officers of Heyop for the maintenance &c. of Wood, in a by the same order, adjudged to be in H. ments under this order, but was confirmed at sessions; but, on a case reserved, the orders of jus tices and of sessions were Court, on the quashed by this ground that the two justices of jurisdiction. R. had no Held, that this Court their county could not award a mandamus, calling upon the justices of R. to direct treasurer to repay to H. payments which that parish had made under the first-mentioned order from the time of its being granted to the time of its being quashed. (a) See Regina v. Heyop, 8 Q. B. 547. Volume IX. 1846. The QUEEN V. Justices of RADNORSHIRE. pursuance of the order of 30th November, between 30th November and 31st January last. E. V. Williams now shewed cause. There is no precedent for such an application as this: and stat. 9 G. 4. c. 40. contains nothing to authorise it. It is not even true that the county was primarily liable to the expenses. Sect. 38 throws the expenses on the parish where the pauper is settled, if the justices ascertain that at the time of the removal: if it is not ascertained, the county treasurer must defray them, under sect. 41, if the justices so order: if it is ascertained afterwards, the parish must repay the charges incurred by the county; sect. 42. Here the justices have made no order under sect. 41, the only clause rendering the county liable. The parish of Heyop has been ordered to pay the expenses; it now turns out that the order is void, not on the merits, but for want of jurisdiction: the case on behalf of that parish is, therefore, that they have paid money under a void order. Pashley, contrà. There is no express clause in the statute authorising the sessions to make the order; but, on general principles, if the county be primarily liable, it ought to refund the money which the parish has been compelled to pay. The primary liability of the county appears from sect. 41, and from the language of the judges of this Court in Regina v. Darton (a) and Regina v. The Justices of Kent (b). Then, the money having been paid, to avoid an indictment, under an order, afterwards declared illegal, the parish is entitled to have 1846. The QUEEN Justices of RADNORSHIRE. it back from the party really liable; Feltham v. Terry (a), Queen's Bench. which was a case of payment under a conviction afterwards quashed. The order having been quashed, for whatever cause, the settlement must be taken as not ascertained; Regina v. Pixley (b). [Patteson J. The difficulty here is, that no order has been made on the county treasurer, under sect. 41. The original order of 13th November seems to be still subsisting.] The case in some degree resembles that of surgical relief given to a pauper without express retainer from the parish, as in Lamb v. Bunce (c) and Tomlinson v. Bentall (d), which cases are cited in note (e) to Barber v. Fox (e); and it there appears to be assumed that, if money be necessarily paid by one party which ought to have been paid by another, that other will be held liable though no step for enforcing the original liability was taken in the first instance. Wing v. Mill (g) and Paynter v. Williams (h) illustrate the general principle of obligation. Or the case may be compared to those in which a husband has been held liable to pay for sustenance provided by another for his wife because the husband was bound to sustain her. [Patteson J. The legislature clearly intended the payment to be made by the parish where the settlement was: and that they supposed would be ascertained, if at all, within twelve calendar months.] But the primary duty is thrown on the county. [Patteson J. How have the Sessions for Radnorshire any jurisdiction here? They obtain whatever jurisdiction they exercise by appeal.] (a) Cited in Lindon v. Hooper, 1 Cowp. 419; and in Birch v. Wright, Volume IX. 1846. V. Justices of RADNORSHIRE. The appeal was made here: after that, the sessions are in possession of the question: otherwise there is no The QUEEN remedy. The law, in analogous cases, always provides a remedy, as in the instance of a writ of restitution. [E. V. Williams referred to Rex v. Moor Critchell (a).] The authority of that case may be questioned: it has been overruled, as to one point, in Rex v. St. Mary's, Leicester (b). Lord DENMAN C. J. In the cases of Wing v. Mill (c) and Paynter v. Williams (d) there were express recognitions of the liability. If there were any case where a parish which had incurred expense through the mistake of another party had been relieved by mandamus from this Court, such a case might furnish some analogy here. But, if that practice could prevail, we might be called upon to grant a mandamus in the nature of a writ of restitution wherever casual poor had been relieved, and the settlement had afterwards been ascertained. There appear to me to be no means of setting right the mistake which has occured here. PATTESON J. Argue as you will, the case comes to this. The justices made a mistake in the original order of the 13th of November: can that be set right? By sect. 41, two justices, by order directed to the treasurer of the county, may direct that the charges of removal and maintenance shall be satisfied out of the county rates. Here, the justices have omitted to give such (a) 2 East, 66, 222. (b) 1 B. & Ald. 327. See Regina v. Casterton, 6 Q. B. 507. (c) 1 B. & Ald. 104. (d) 1 C. & M. 810; S. C. B Tyrwh, 894. |