furnish an easy remedy. In the present case the statute contemplates no compensation, except by an application to the Commissioners: and, as there no longer are Commissioners, if the act of raising the dam was lawful, no compensation can be obtained for the loss which the defendant has thereby suffered. The framers of the statute very possibly did not foresee the extinction of the Commissioners: but I think the intention of the Legislature must be considered to have been that, upon the extinction of the Commissioners, the extraordinary powers conferred upon the owners of the navigation over the property and rights of others ceased. No hardship will follow from the conclusion that thenceforth all parties interested were to continue in the enjoyment of the property and rights which then belonged to them, with the power of voluntarily entering into any new arrangement for valuable consideration. The act of raising the dam might improve the navigation and increase the profits of the shareholders; but it would be strange if such a power existed without any compensation being given to the defendant, whose mill thereby becomes a useless mass of stones, timber, and iron.

It seems to me that the Company acted unlawfully when they raised the dam and cut off the supply of water from the defendant's mill, so that he might have brought an action against them for doing so; and in this action he has a good defence for the alleged trespasses he committed in removing the obstruction which *they had unlawfully caused to the enjoyment of his rights.

[*553 But, as my Brothers are of a contrary opinion, there must be judg ment for the plaintiffs. Judgment for plaintiffs. (a)

(a) Reported in part by C. Blackburn, Esq.

BASTOW v. GANT. May 22.

Reported, 13 Q. B. 807 (note) (E. C. L. R. vol. 66).

The QUEEN v. T. J. ARNOLD, Esquire. May 24.

The QUEEN v. The Clerk of the Peace and The Treasurer of MIDDLESEX.

Under stat. 12 & 13 Vict. c. 103, s. 5, if a pauper lunatic, born in Ireland and having no English settlement, is removed to an asylum after five years' residence in a parish in England from which, if sane, he would have been irremovable by stat. 9 & 10 Vict. c. 66, the union, not the county, is liable to the expenses of his removal and maintenance.

PASHLEY moved (a) for a certiorari to bring into this Court, for the purpose of their being quashed, the two following orders made by Thomas James Arnold, Esq., a Police Magistrate of the Metropolis, sitting at the Westminster Police Court within the Metropolitan Police district.

*554] By the first order, dated 3d February, 1852, directed *to The Guardians of the Poor of the Whitechapel Union, Middlesex, within the said district, and to Heaton Ellis, Esq., the Clerk of the Peace for Middlesex, the magistrate recited a complaint made to him by the relieving officer of the Whitechapel Union, "that Luke Cone, a poor person chargeable to the common fund of the Whitechapel Union, is at present legally confined in the Kent County Lunatic asylum, situate at," &c., in the said county of Kent, as a lunatic, at the cost and expense of the common fund of the said Union; and that the said pauper lunatic is not legally settled in any parish in the said Whitechapel Union; and that the said pauper lunatic has not acquired a settlement in any parish or place in England; and that he the said Luke Cone, such lunatic, is an Irishman, and, while resident in the parish of Christchurch in the Whitechapel Union, became chargeable to the said parish for one day, but was afterwards made chargeable to the common fund of the Whitechapel Union by reason of his having resided for five years previously in the said parish, and was sent to the said County asylum from the said Whitechapel Union on the 28th day of May, 1851, and hath ever since been confined in the said asylum: and that, at the time when the said Luke Cone was so sent to the said asylum, he had resided in the said parish of Christchurch for five years and upwards, and would, if not lunatic, have been exempt from removal out of the said parish if he had been chargeable thereto, by reason of the provision of the statute passed," &c. (9 & 10 Vict. c. 66), "if such statute be applicable to the case of an Irishman residing in a parish in England, and who has not gained any English settlement." The order then, *555] after further reciting that Mr. John William *Allen, on behalf of the clerk of the peace, was present in pursuance of notice to the clerk, went on to state that the magistrate, at the request of the relieving officer, had proceeded to inquire upon oath into the circum(u) Before Lord Campbell, C. J., Coleridge, Erle, and Crompton, Js.

stances of the case, and it was duly made to appear to him that the premises were true: and he therefore adjudged the same to be true, and did adjudge the said Luke Cone to be chargeable to the said county of Middlesex, according to the form of the statute in such case," &c. The order was duly served.

66

The second order, directed to the Treasurer of the County of Middlesex, and dated also on 3d February, 1852, recited the former order, and recited also that proof had been given to the magistrate as to the expenses incurred by the Whitechapel Union in and about the examination of the lunatic, his conveyance to the asylum, his lodging, maintenance, &c. and it directed the county treasurer to pay the amounts respectively to the treasurer of the Union, and also a certain weekly sum, so long as the lunatic should be confined in the asylum, for his future lodging, maintenance, &c. This order was duly served.

Notice of the present motion was served upon the magistrate and clerk to the guardians by the attorney for the treasurer and clerk of the peace as parties aggrieved by the said orders respectively.

The above facts and documents were verified by affidavit.

Pashley now argued as follows.-By stat. 8 & 9 Vict. c. 117, s. 2 (which, by sect. 7, is to be construed as part of stat. 4 & 5 W. 4, c. 76), Irish paupers chargeable to any parish in England, and not having an English settlement, were removable to Ireland. By stat. 9 & 10 Vict. *c. 66, s. 1, no person other than a pauper lunatic may be re[*556 moved from a parish where he has resided five years. Stat. 10 & 11 Vict. c. 110, s. 1, reciting the last-mentioned act, provides that all the expenditure which shall be incurred by any parish forming part of a union for the maintenance of any person who shall, within one year before the passing of the recited act, have been in the receipt of relief from some other parish by right of settlement therein, and who, by the recited act, is exempt from liability to removal, shall, during such exemption, be charged to the general fund of such union. That act was to continue in force till October, 1848. Then, by stat. 11 & 12 Vict. c. 110, s. 3, it was again enacted that the costs of relief given to any poor person who, not being settled in the parish where he resided, was or should become irremovable by stat. 9 & 10 Vict. c. 66, should, where the parish formed part of a union, be charged to the common fund of such union during the exemption. This enactment was also limited in duration to September, 1849; in which year stat. 12 & 13 Vict. c. 103 was passed, enacting (sect. 5) that the expenses to be incurred in obtaining any order of justices for the removal and maintenance of a lunatic pauper who shall have been or shall be removed" by such order to an asylum, and who, if not a lunatic, would have been exempt from removal by reason of some provision in" stat. 9 & 10 Vict. c. 66, shall, during specified time, be borne by the common fund of the union comprising the parish where the pauper was resident when removed. This

་

last enactment was construed, in Overseers of Wigton v. Overseers of Snaith, 16 Q. B. 496 (E. C. L. R. vol. 71), to include the expenses of maintenance as well as those of obtaining the order, and was *557] held, in Regina v. Priest Hutton, 17 Q. B. 59 (E. C. L. R. vol. 79), to comprehend a union under Gilbert's Act, 22 G. 3, c. 83. The intention of the Legislature must have been that the enactment in stat. 12 & 13 Vict. c. 103, s. 5, should receive the most general construction. An Irish pauper, like an English one, would be irremovable, if sane, by stat. 9 & 10 Vict. c. 66; and the consequence is peremptorily fixed by stat. 12 and 13 Vict. c. 103, namely, that the expense of removing and maintaining him, if a lunatic, shall be borne by the union within. which he resides.

Bodkin showed cause in the first instance.-Stat. 8 & 9 Vict. c. 126, s. 59, provides that, if a pauper lunatic is not settled in the parish by which he is sent to an asylum, and it cannot be ascertained in what parish he is settled, he shall be adjudged (unless cause to the contrary be shown) chargeable to the county; and sect. 63 points out the course for charging the county treasurer on such an adjudication. The case of an Irish pauper is the same, for this purpose, as the case of a pauper whose settlement is unknown. Stat. 9 & 10 Vict. c. 66, merely makes such a pauper irremovable. Stat. 11 & 12 Vict. c. 110, s. 3, transfers the burden of maintenance from the parish to the union, in cases where the pauper is irremovable by 9 & 10 Vict. c. 66: but neither act takes any notice of cases where no settlement can be found. Nor does the act 12 & 13 Vict. c. 103, s. 5, make any reference to the case of lunatics having no ascertainable settlement, and who are *558] *therefore chargeable to counties under stat. 8 & 9 Vict. c. 126, sect. 59. The concluding words of stat. 12 & 13 Vict. c. 103, s. 5, are "notwithstanding the order for the payment thereof shall have been made upon the overseers of such parish, or the parish of the settlement, or upon the treasurer or guardians of the union in which either parish shall be comprised." Orders upon county treasurers are not alluded to. One object of the Act, provided for by sect. 3, is, that chargeability to the common fund of a union shall have the same consequences as chargeability to a parish, in respect of proceedings under certain statutes, among which are the statutes for the removal of lunatic paupers to asylums. There was evidently no intention to disturb the enactments of stat. 8 & 9 Vict. c. 126.

Pashley, in reply.-The argument on the other side requires sect. 5 of stat. 12 & 13 Vict. c. 103, to be read as if the words were "for the removal and maintenance of a lunatic pauper, having a settlement in England, who shall have been," &c. It is supposed, for the purpose of the argument, that, if a man has no English settlement, he cannot be "removed" within the meaning of stat. 9 & 10 Vict. c. 66, and therefore is not "exempt from removal by reason" of any provision in that

Act. An Irishman or a Scotchman, having gained no settlement here, is removable to his own country, as an Englishman having a settlement is to his own parish: and stat. 9 & 10 Vict. c. 66, prevents the removal in both cases. [Lord CAMPBELL, C. J.-Ireland or Scotland is quasi the settlement of an Irishman or Scotchman.] The object of the concluding words of stat. 12 & 13 Vict. c. 103, s. 5, is merely to assist the guardians there *mentioned in doing that which would else be done by overseers or guardians acting for the parish of settleCur. adv. vult. Lord CAMPBELL, C. J., in the ensuing vacation (June 18th), delivered the judgment of the Court.

ment.

[*559

In this case the question is raised, whether the expense of maintaining a pauper lunatic who was exempt from removal by five years' residence, and who is without a settlement in England, being Irish by birth, and found to have gained none, is to be borne by the union or the county. And we are of opinion that it is cast upon the former by stat. 12 & 13 Viet. c. 103, s. 5, enacting that the costs of the order for removal and maintenance in the case of a lunatic pauper so exempt shall be borne by the union.

This is admitted in the case where the lunatic pauper has a settlement; and, if full effect is given to the words, they include also lunatic paupers who have no settlement. In the first case they transfer the burden from the parish of settlement to the union within which the five years' inhabitancy took place, upon the principle that such inhabitancy many of the properties of a settlement: and we see no reason why the Legislature should not have intended to make a transfer from the county to the union in the latter case, as it has used words wide enough so to operate, and the reason for the transfer applies equally in both Rule absolute.

has

cases.

The orders being returned under the certiorari, Pashley in the ensuing Michaelmas term obtained a rule to show cause why they should not be quashed. *In the same term (November 17th) Atherton (with whom [*560 was Bodkin) stated that he had instructions to support the orders. [Lord CAMPBELL, C. J.-As there can be no writ of error, you may argue for the purpose of showing that we ought to review our judgment; but our opinion was formed upon argument, and after taking time to consider.] Atherton then said that he had no fresh grounds to urge, and could not hope to alter the decision of the Court. [COLERIDGE, J.--We felt all the difficulty that arose in the case, and considered it carefully.]

Per Curiam.(a)

(a) Lord Campbell, C. J., Coleridge, Wightman, and Erle, Js.

Rule absolute.(6)

(6) Stat. 12 & 13 Vict. c. 103, s. 5, is repealed by stat. 16 & 17 Vict. c. 97, s. 102; and a similar provision is thereby made in its stead for the case of a pauper lunatic who would have been exempt from removal "to the parish of his settlement or the country of his birth," under stat. 9 &10 Vict. c. 66.