humbly certify to our said Lady the Queen, that the interval between the said 13th day of March, A.D. 1845, and the said 7th of April, A.D. 1845, was more than sufficient to have enabled the said churchwardens and overseers of the poor of the said parish of Liverpool to have entered and prosecuted an appeal against the said order at the said general quarter sessions of the peace so holden at Pontefract, on, &c., and that according to the practice and rule observed at the quarter sessions of the peace in and for the West Riding aforesaid, ten clear days' notice from appellant to respondent for the trial of an appeal is all that is required. Wherefore, we most humbly certify to our said Lady the Queen, that the keepers of the peace and justices in quarter sessions assembled at Bradford, as in the said writ mentioned, did, as in the said writ mentioned, refuse to hear and determine the said appeal then brought forward, and then proposed to be lodged for the first time, and which appeal had not been entered and respited at any previous general quarter sessions holden in and for the said West Riding of the said county of York. And we further humbly certify to our said Lady the Queen, that it does not appear in or by the said writ when the order therein mentioned was made, nor does it appear in the said writ when the first general quarter sessions of the peace, holden in and for the said West Riding, next after the said 13th day of March, A.D. 1845, were so holden, nor whether it was practicable for the said church wardens and overseers of the poor of the said parish of Liverpool to have tried their said appeal at the quarter sessions so first holden in and for the said riding, next after the said 13th day of March, A.D. 1845, nor does it appear by the said writ when the pretended right of appeal of the said churchwardens and overseers of the poor of the parish of Liverpool against the said order first accrued, or that any such right ever accrued to the churchwardens and overseers of the poor of the said parish of Liverpool, and that the said writ wholly fails and omits to suggest or state any such facts as shew that it was the duty of the said keepers of the peace and justices, in quarter sessions assembled, to hear and determine the said appeal at the said general quarter sessions of the peace, which, as in the said writ alleged, were holden at Bradford, on the 1st day of July, A.D. 1845."-Demurrer and joinder.. The following were the points marked for argument on the part of the pro secutors: 1st. That the return is bad in substance, and contains no answer to the writ, because, while in the said writ there are two orders mentioned, both bearing the same date, and under the hands of the same justices, viz., one adjudging the settlement of the pauper and ordering the payment of certain money, &c. (against which the appeal was prosecuted), the other ordering the pauper to be placed in the lunatic asylum, the return only alludes to one of the said orders, without saying which; and every fact, as to the service of the order mentioned in the return, and the other matters therein alleged, may be quite true, and refer to the order directing the pauper to be placed in the asylum, against which there was no appeal prosecuted, and to which the writ does not relate. 2nd. That the provisions respecting appeals against orders of removal, contained in the 4 & 5 Wm. 4, c. 76, s. 79, apply to an order made under 9 Geo. 4, c. 46, s. 38. The following were the points relied on by the defendants: 1st. That the writ of mandamus is clearly bad, for each of the several defects therein pointed out in this return. 2nd. That it is alleged in the said return, and admitted by the demurrer, that the interval between the 13th day of March, 1845, and 7th day of April, 1845, was more than sufficient to enable the overseers of Liverpool to enter and prosecute their appeal at the quarter sessions on that 7th day of April, and that, therefore, the Midsummer Quarter Sessions, which refused to enter and hear the appeal, were right in so refusing, even if the provisions respecting appeals against orders of removal, contained in 4 & 5 Wm. 4, c. 76, do apply to orders made under 9 Geo. 4, c. 40. Srd. That the last-mentioned provisions do not apply to appeals against such an order under 9 Geo. 4, c. 40. Pickering (with whom was Overend), in support of the demurrer.-First. The objections taken to the writ in the latter part of the return cannot be supported. The writ states that an appeal theretofore entered, &c., came on to be heard; it shews a primâ facie case of duty on the part of the Sessions to hear, and that is enough. If any statutory requisites have not been complied with, that is matter of excuse to be returned by the justices, and not to be anticipated in the writ. This form of writ is given in the Appendix to Corner's Crown Practice, p. 138. [COLERIDGE, J.-But does not this affect the right of appeal? If the order was not served, and no removal took place, what grievance would there be ?] The mere statement that the appeal had been theretofore entered, is primâ facie sufficient. For the same reason it is equally unnecessary to state when the original sessions were held from which the adjournment took place. Secondly. The return is uncertain. [PATTESON, J.-The order against which the appeal is entered refers to another order of the same day by the same justices, and you say it is uncertain to which of the two reference is made in the return.] Precisely. [Pashley.-This would be ground of special demurrer only, under stat. 6 & 7 Vict. c. 67, s. 1.] The Crown is never bound to demur specially; and the writ of mandamus is a proceeding which, like an indictment, is instituted by the Crown. In Com. Dig. "Mandamus" (D. 5), it is said, "The return to a mandamus shall be disallowed, if it be not certain and positive; for no answer can be given to it (citing 11 Co. 99, b). And therefore, if it says, non fuit debito modo electus, it is bad; for that is a negative pregnant." Rex v. Lyme Regis (1 Doug. 79), where Lord Mansfield, C. J. said, "A return which seems to be guarded and not to deny the substance is bad." (Rex v. Clapham 1 Vent. 111.) In Ex parte Eden (2 M. & S. 226) the Court refused leave to amend a return to a writ of habeas corpus for the discharge of an apprentice above the age of twentyone, where the return set up a custom of London, that every citizen and freeman may take as apprentice any person above fourteen, and under twenty-one, to serve seven years, but did not distinctly and positively allege that the apprentice was within those ages when bound, although that fact appeared by affidavit. Deybel's case (4 B. & Ald. 243), and Souden's case (ib. 294), are also instances of the certainty required in returns to these writs. The statute of 9 Anne, c. 20, makes no difference in the strictness required in returns by the common law. (Rex v. Lyme Regis, 1 Doug. 149, 156.) [PATTESON, J.The writ says, that the appeal was entered by the overseers of Liverpool against an order whereby they were ordered to pay, &c., and that order recites another order. Then the return says that the said order was served upon the overseers of Liverpool; now, must not that necessarily mean the order against which the appeal is entered?] Both orders must be served on the overseers of Liverpool; they are only ordered to pay whilst the pauper remains in the asylum under the order secondly mentioned, and therefore as a matter of right they must be entitled to see that order. [PATTESON, J.-But the objection seems to assume that the order of removal to the asylum was alone served.] No; the objection is, that the return may mean either. Thirdly. The main question is, whether the interval of twenty-one days, allowed by the 79th section of 4 & 5 Wm. 4, c. 76, between the service of the order of removal and the notice of appeal, applies to appeals against orders for the maintenance of lunatic paupers in asylums under sec. 54 of 9 Geo. 4, c. 50? for it is now settled that sec. 54 is the appeal clause in such cases. (a) [Pashley.—I admit that the 54th and not the 60th clause is the one which gives the appeal against this order.] If the provision as to the twenty-one days applies, then the appellants in the present case were in time; because the order being served on the 13th of March, they would be entitled to twenty-one days to consider the propriety of appealing; and after that interval, they would not be in time either to give the ten days' notice of appeal, required by the practice of the sessions, or to serve their grounds of appeal (as required by 4 & 5 Wm. 4, c. 76, s. 81) fourteen days before the next sessions, which took place on the 7th of April, and which, therefore, they were at liberty to pass over, and enter their appeal at the summer sessions. Now, the proviso to the 54th section of 9 Geo. 4, c. 40, is as follows:"Provided always, that the churchwardens and overseers of the parish in which the justices, or the major part of them, shall adjudge any insane person to be settled, may appeal against such order" to the sessions for the county where the order shall be made, “in like manner and under like restrictions and regulations as against any order of removal, giving reasonable notice thereof to the clerk of the peace of such county, who shall be respondent in such appeal; which appeal the justices of the peace assembled at the said general quarter sessions are hereby authorized and empowered to hear and determine in the same manner as appeals against orders of removal are now heard and determined;" and it is contended that, by those words, all the restrictions and regulations imposed upon the right to appeal against an order of removal by 4 & 5 Wm. 4, c. 76, are incorporated into that Act. When this case was before Mr. Justice Williams in the Bail Court, he intimated his impression that those provisions were not applicable to this case; but he directed the mandamus to issue, that the question might be settled. (Reg. v. The Justices of the West Riding (Re Mary Vincent), 15 L. J., M. C. 52, and 1 New Mag. Cas. 493.) That learned judge, commenting upon sec. 79 of 4 & 5 Wm. 4, c. 76, observed: “When I come to attend to the language of that section, my impression is that it is utterly inapplicable to the present case. This is not a case by any possibility of removal from any parish or township at all; at the time when the order is made, the party is in the lunatic asylum; that is the very foundation of the order on the parish of Liverpool, and consequently she was irremovable at the time, and those provisions are wholly inapplicable." Those observations are not strictly accurate as to the irremovability of the pauper; but removability is not the test whether sec. 79 of the Poor-Law Amendment Act is or is not applicable. That statute gave no new right of appeal; it only imposed certain new restrictions and regulations upon the right which existed before. The 79th section certainly says, that "no poor person shall be removed or removable under any order of removal from any parish, &c., until twenty-one days after a notice in writing of his being so chargeable, &c., accompanied by a copy or counterpart of the order, &c., shall have been sent by post or otherwise;" but it has been held that that section, and also sec. 81, apply in the case of suspended orders, where no removal takes place, but the time of appealing is computed from the service of the order, "according to the rules which govern other like cases." (Stat. 49 Geo. 3, c. 124, s. 2.) In Ex parte the Overseers of Leeds (2 New Sess. Cas. 595; S. C. nom. Reg. v. The Recorder of Leeds, 2 New Mag. Cas. 104), this Court decided, that either the service (a) See Reg. v. The Justices of Kent (2 Q. B. 686); Reg. v. Skipton (1 New Sess. Cas. 350; 1 New Mag. Cas. 119); Reg. v. The Recorder of York (suprà, 52); and Reg. v. The West Riding Justices (15 L. J., M. C. 54); though in Reg. v. Pixley (4 Q. B. 711, 727), sec. 60 was treated as the appeal clause. of the order or the actual removal may be treated as the grievance, and that the party affected may appeal against either at his option. The object of the 9 Geo. 4, c. 40, s. 54, was to place the right of appeal against orders of this description upon the same footing, whether they related to sane or insane persons; and accordingly similar language is used in all the Lunatic Acts subsequent to the 4 & 5 Wm. 4, c. 76, which is therefore beyond all question incorporated into them. (1 Vict. c. 14, s. 2, and 3 & 4 Vict. c. 54, s. 5.) Stat. 8 & 9 Vict. c. 126, s. 62, contains words somewhat different, but pointing to the same object. That section empowers two justices to make an order upon the parish in which the settlement of any lunatic, who may have been previously sent to an asylum, shall be adjudged, to pay for his maintenance; "provided always, that the guardians of any union or parish, or the overseers of any parish, &c., affected by such order, may appeal against the same in like manner as if the same were a warrant of removal, &c., and the persons appealing, or intending to appeal, and the persons defending such appeal, shall have all the same powers, rights, and privileges, and be subject to the same obligations, in all respects, as in the case of an appeal against a warrant of removal." If it be said that the policy of the lunatic statutes is to secure an immediate removal to an asylum, the answer is, that that object will in no degree be counteracted by the incorporation of the restrictions and regulations as to the time for appealing which are contained in the Poor Law Amendment Act. But it is argued that the words of the 54th section of 9 Geo. 4, c. 40, " in the same manner as appeals against orders of removal are now heard and determined," have the effect of continuing in force for ever, with regard to orders there referred to, the particular restrictions and regulations which, when that statute passed, were applicable to appeals against orders of removal. That construction, however, cannot be supported. In Reg. v. The Leeds and Liverpool Canal Company (7 Ad. & E. 671, 692), the Court of Queen's Bench put a construction upon similar words which will govern this case. The words were, "that such navigations, &c., shall not be subject to the payment of any taxes, &c., save and except such taxes, &c., as have been and now are usually charged and assessed thereon;" upon which Lord Denman, C. J., delivering the judgment of the Court, said, "Now we are not prepared to say that these words fix and define the rate to which the land is for ever to be subject, in the manner contended for by the counsel for the appellants. The question recurs, to what rate the land had been, and then was, usually charged? Certainly not to a rate according to any fixed and never-varying standard, but to a rate variable according to circumstances." So with regard to the 9 Geo. 4, c. 40, the obvious intention was to assimilate the practice of appeals under that Act to the practice of appeals against orders of removal; and it is impossible to suppose that if, shortly after that Act passed, the Sessions had changed their practice, and required fourteen days' notice of appeal against orders of removal instead of ten days, the legislature could have intended that the ten days' notice should still apply to appeals under this section. This view is further confirmed, when it is remembered that these Acts of Parliament are to be read as one Act. The statute 13 & 14 Car. 2, c. 12, is clearly incorporated in 9 Geo. 4, c. 40; and the statute of Charles being in pari materiâ with the statute 4 & 5 Wm. 4, c. 76, they are to be taken together as if they were one law. (Stradling v. Morgan, Plowd. 206.) Pashley, contrà.-First, as to the writ, the duty and the neglect to do the act required must be distinctly shewn; and this writ fails to do so. It does not give the time when the right of appeal accrued, for there is no suggestion of any service or notice of the order. It does not shew when the Easter sessions were held, nor when the sessions were originally held, from which the adjournment stated in the writ took place; and it has been frequently decided that the date of the original sessions must appear in the caption of an order or indictment, for the same reason which renders it necessary here, viz., that the tribunal may appear to have jurisdiction: otherwise, an appeal might be entered at an adjourned sessions, although the original sessions took place before the order was made. Nothing necessarily inconsistent with that state of facts appears upon the writ, if the date of the original sessions be not stated. [COLERIDGE, J.-The time for holding the original sessions is limited by 11 Geo. 4 & 1 Wm. 4, c. 70, s. 25.] Those provisions are directory only. (Rex v. The Justices of Leicester, 7 B. & C. 6.) [PATTESON, J.-Can there be an adjournment from a sessions, held at the time pointed out by the Act of Parliament, to the next sessions?] Perhaps not; but there may be an adjournment to the very day before the next sessions. It is possible that there might be an adjournment from the Easter sessions, which, by 4 & 5 Wm. 4, c. 47, may be held at any time between the 7th of March and the 22nd of April, to an early day in July; and the order in the present case bears date on the 8th of March. How does the writ shew when the right of appeal accrued? First, it does not shew it to have accrued at all, because no service of the order is stated; and secondly, if any right accrued at all, it must be taken to have accrued when the order was made, for no other date is mentioned; and then, from the 8th or 9th of March to the 22nd of April, there are more than thirty-five days, which is the whole interval required by stat. 4 & 5 Wm. 4, c. 76. Consistently, therefore, with this writ, the summer sessions may have had no jurisdiction, and it is essential that jurisdiction should appear. (He referred to Reg. v. Ardsley, 5 Q. B. 163, and cases there cited.) The form cited from Mr. Corner's book is the ordinary form of mandamus to hear an appeal against an order of removal after entry and respite, but it is not applicable to this case; and even if it were, is not strictly followed. The law, however, is clear that the writ must distinctly shew the duty, and the neglect to do the act_commanded. (Reg. v. The Eastern Counties Railway Company, 10 Ad. & E. 531.) In Rex v. The Margate Pier Company (3 B. & Ald. 220), which was a mandamus to the company to pay poor-rates, it was objected to the writ that it did not shew that they had no property on which the rate could be levied; and this was held to be a fatal objection, and an answer to this writ. A writ of mandamus is not followed up by a declaration, but stands in the place of it, and must contain all the requisites of it. For another reason the writ is bad. By the 44th section of 9 Geo. 4, c. 40, insane persons wandering about are to be brought before two justices, who are authorized to make orders for their conveyance to a lunatic asylum, and to inquire into their settlement, in the same manner as in the case of persons chargeable to any parish. Here, it does not appear whether the pauper became chargeable or not; there is nothing in the writ to shew under what circumstances the pauper was sent to the asylum; for any thing that appears, this may have been a case under the 44th section, and the appeal clause applicable to that section is the 46th section only. (Reg. v. The Justices of Kent, 2 Q. B. 686; Reg. v. The Recorder of York, 2 New Sess. Cas. 502; 2 New Mag. Cas. 52.) [ERLE, J.-The point there went to the real merits of the case. A different principle would probably be applied to a question purely on the form of the writ.] In Reg. v. Pixley (4 Q. B. 711), it was assumed that the appeal was under the 60th section, but the attention of the Court was not drawn to the other appeal clauses, or to Reg. v. Kent, and the point was not raised. If this be a case under the 44th section, it is clear the 79th, 80th, and 81st sections of the |