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ledge of the party who made it. He said she had no religious opinions or belief, that he knew of, and this appeared all that it was possible for him to say. Then, with respect to the statement of the previous history of the party, there was a reasonable and sufficient excuse given for not going into the minute particulars of that history. It is impossible to expect, that, in all cases whatever, a third party should be enabled to give a minute account of the former history of the deranged person, and, in this instance, it would be particularly difficult ; for it is stated that she was in a state of constant alarm from a person who unceasingly watched her. This is a bona fide and sufficient reason. As to the certificate, the language of the 46th section differs from the preceding one, which referred to the order, and its provisions are more directory than essential, and are sufficiently complied with, 'if the parties state all they have been enabled to know of the state of the person with respect to whom they are about to put the statute in force. They are statements to be made by professional persons, skilled in these disorders, or presumed to be so by the legislature. The first certificate states that, in Mr. Willmott's opinion, this woman required to be put under the care of some one, for he says she laboured under various delusions, and was dirty and indecent in the extreme. It would be monstrous to expect that all the particulars of these delusions and of this indecency could be stated. Many things might be considered by some persons as delusions, to which others would not give the same character. That would depend on mere difference of opinion. Questions in a court of justice might arise upon the statements, which questions are now, by the Act of Parliament, referred to the decisions of persons skilful in such matters : it was enough if these skilful persons stated that what they deemed to be delusions existed, for, among them, the nature of these delusions is well understood. But, taking the latter clause of the certificate alone, “ that this unfortunate person was dirty and indecent in the extreme,” is, in itself, sufficient to indicate the existence of a delusion which put her into a state to require protection, and a statement of the particulars of this delusion might only be such as would disgust all that heard them, without giving any value to the paper that contained them. The second certificate does not quite follow the Act of Parliament. This is to be regretted; for it raises à question that might otherwise have been avoided. Still, as it has stated what, in substance, is equivalent to the forms given in the Act, it is sufficient; and the more so, because none of the certificates are final. The object of all of them is only to put the matter into a train of inquiry; and, with respect to the nature of the facts to be stated, the object is rather to point out the source from which they are derived, so as to make that inquiry more easy, and not to enter into particulars on which those that read them might not be able to form any satisfactory opinion. It seems to me that, in these respects, the certificates have substantially complied with all that is required, and are therefore good. But it might go further, and say that if the Court was of opinion that the unfortunate person was still in any way dangerous, it would not set aside the certificate upon a matter of mere form. Indeed the Court could not set aside the certificate. It has no power to do so; it could only set the party at liberty. But the Court would not be justified in setting at liberty a person who was still in such a state as to be dangerous to the public or herself. It might be said that the Court, immediately after setting the person at liberty on account of defectiveness of the certificate, might order her fresh arrest, as a matter necessary to the safety of herself or others. But, why does it possess this power? Because the public peace might be endangered by her discharge. Is it not better that this individual should

remain in custody to be examined or dealt with by the competent authorities delegated under the great seal ? It seems to me that the Court would be abusing the very name of liberty, if it said in this case, “ Let the woman be restored to liberty,” when this liberty could only be a curse to herself and others, and when those who ought to feel most anxious for her welfare could have no desire but that the restraint on her should be continued, unless it could be shewn that that restraint was in its own nature improper, or was injurious to the person it was meant to protect.

COLERIDGE, J.—This is an Act of very great importance, and the question is new, and I wish to say that I entirely concur in what has fallen from

WIGHTMAN, J. concurred.

Erle, J.-I am also of the same opinion. I wish merely to add, that the Act of Parliament requires that the person should not be confined in a licensed house without this order and these certificates. The prohibition is not a general one, and the only effect would be that the keeper of such licensed house would be liable to be indicted for the statutable misdemeanor. The other rights of all persons to restrain lunatics for the public safety, which exist at common law, are left wholly untouched by the statute.

Lunatic remanded.

my lord.

Sir J. Bayley prayed for the costs of Dr. Millingen upon his appearance to the writ, but the Court said they had no power to grant costs upon an application of this kind.

Costs refused. (a) (a) The 45th section provides That po person any such person as aforesaid in any house or hos. (not being a pauper) shall be received into or de- pital as aforesaid, without such order and medical clared as a lunatic in any hospital without an order certificates as aforesaid, and any physician, surunder the hand of some person according to the geon, or apothecary who shall knowingly sign any form, and stating the particulars expressed in sche- such medical certificate as aforesaid, which shall dule B annexed to this Act, nor without the medical untruly state any of the particulars required by certificates according to the form in schedule C an- this Act, sball be guilty of a misdemeanor.”—The Rexed to this Act, of two physicians, surgeons, or 46th section enacts "That every such physician, apothecaries, who shall not be in partnership, and surgeon, or apothecary, signing such certificate, each of whom shall separately from the other have sball specify therein any fact or facts (whether personally examined the person to whom it relates, arising from his own observation or from the innot more than seven clear days previously to the re- formation of any other person) upon which he has ception of such person into such house or hospital, formed his opinion, that the person to whom such and shall have signed and dated the same on the certificate relates is a lupatic or insane person, or day on which such person shall have been so exa. an idiot, or a person of unsound mind." mined, and every person who shall receive or detain


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Michaelmas Term.-- November 17, 1846.

(Before Mr. Justice Patteson.) Ex parte WALLWORTH and ANOTHER.(a) PracticeIntituling affidavits on a motion for a rule nisi for a certiorari. On moring for a rule nisi for a certiorari to bring up a conviction, the affidavits should not be

intituled in any cause; and if so intituled, they cannot be used. A

RCHBOLD, on a former day, obtained a rule nisi for a certiorari to Act to prohibit the Payment in certain Trades of Wages in Goods, or otherwise than in the Current Coin of the Realm.” The affidavits upon which the rule nisi was obtained were headed “In the matter of The Queen against Robert Wallworth and James Wallworth.”

Robinson shewed cause.— The affidavits are bad, in being entitled in any cause; there is no cause in court until the rule nisi has been obtained, and it is therefore irregular to entitle them as these are entitled. The rule is, that the affidavits upon such a motion as this should not be entitled, but that, after the rule nisi is granted, the affidavits, on shewing cause, may or may not be entitled. The case of Ex parte Nohro (1 B. & C. 267) is an express authority upon this point. In that case a rule nisi for a certiorari, to remove an order of Sessions, had been obtained upon an affidavit, which was entitled “ Rex v. Justices of Essex ;” and upon an objection taken, that the affidavit ought not to have been entitled at all, as no cause was then pending, the Court, after referring to the officers of the Crown Office, said that the affidavit was irregular, and discharged the rule.

Archbold, contrà. - The practice of thus heading affidavits is very common, and cannot lead to any inconvenience; and if this heading be incorrect, it must be equally so to entitle affidavits “ In the Queen's Bench,” since, according to the reasoning first made use of, no case can be said to be in court until the rule nisi is granted.

Patteson, J.-The affidavits are certainly irregular, in being entitled in any cause, at the state of the proceeding at which they were used, and they cannot, therefore, be made use of. The rule must be discharged.

Rule discharged. (6)

{) Reported by T. W. SAUNDERS, Esq., Barrister-at-law.

O See, as to affidavits in prohibition, Ex parte

Evans (2 D. N. S. 410), and Breedon v. Capp (9
Jur. 781).


Michaelmas Term.-November 19, 1846.

(Before Mr. Justice PATTESON.)

Ex parte JAMES LORD. (a)

Practice Admitting a defendant to bail pending a decision upon the legality of his commitment. When a defendant who has been summarily convicted by justices is brought up by habeas corpus, and

the question of the legality of his commitment remains for future argument, the Court will admit him to bail until the case is decided.

N a former day, Huddlestone obtained a habeas corpus, directed to the



up the body of James Lord, who, it appeared, had been committed

upon conviction, under the 4 Geo. 4, c. 34, s. 3, for unlawfully absenting himself from his employment. The gaoler having, accordingly, this day brought up. the said James Lord, and made a return of the conviction under which he detained him in custody,

Huddlestone now moved that the party might be admitted to bail until the final decision upon the validity of the conviction.

Cowling (who appeared on behalf of the convicting justices).— There is no objection to the prisoner being admitted to bail, provided the Court has power to order him to be bailed, which it is conceived it has not.

What authority would the Court have, supposing it ultimately upholds the conviction, to recommit the defendant ? Such a practice is perfectly new, and is only supported by the old and doubtful authority of Rex v. Reader (1 Stra. 531), which merely says that “the defendant was convicted for keeping an ale-house without license, and was therefore committed for a month, as the Act directed; and that after he had lain in gaol for a fortnight, he brought a certiorari, and upon

the return of it he was admitted to bail, the Court being of opinion, that if the conviction was confirmed, they could commit him for the residue of the time.” [PATTESON, J.-The case is certainly very shortly reported, but it appears be precisely in point.] If the Court has the power contended for, it is strange that it should not have been more frequently exercised, and that a later case cannot be found to warrant it than that in Strange. If this power exists, the “ Act to stay Execution of Judgment for Misdemeanors upon giving Bail in Error," 8 & 9 Vict. c. 68, would have been unnecessary.

Huddlestone. This Court has of late frequently acted upon the case of Rex v. Reader, particularly in Ex parte Hammond, which took place at chambers, in Michaelmas vacation, 1845, where a habeas corpus was obtained at the end of the Term, and the question upon the conviction stood over for the decision of the full Court. Patteson, J. admitted the defendant to bail in the mean time. So also in Reg. v. Turner and Others (15 L. J. M. C. 140), which was a conviction under this Act, upon a return being made to the habeas corpus; and the conviction being brought up, Mr. Justice Patteson admitted the defendants to bail. So that the practice appears to be well settled. [Pat

(a) Reported by T. W. SAUNDERS, Esq., Barrister-at-law.


TESON, J.-Why cannot you argue upon the validity of the conviction at once, and that will save the necessity of bailing ?] In an ordinary case of a habeas corpus, that might be done; but here the conviction itself is returned, and, according to the regular practice, it must go into the Crown paper. [PATTESON, J. (after confering with the Master of the Crown Office).— I am informed that the conviction must go into the Crown paper, and therefore I cannot now hear it.] Unless, therefore, the prisoner is admitted to bail, he may suffer his whole term of imprisonment before his case is argued, and then it may turn out that, the conviction being bad, he ought not to have been imprisoned at all.

PATTEON, J.-It appears that the practice upon a return such as this, is for the case to go into the Crown paper for argument; and the question that arises is this, what, in the mean time, is to be done with the prisoner—whether or not he is to lie in gaol until the case is determined ?—for unless the Court should take the case out of its turn (and perhaps not even then), the defendant may remain in custody for the entire length of the sentence, when in the result it may turn out that he ought not to have been there at all. Now there is the case of Rex v. Reader, in which the Court held that a party so situated as this one is might be admitted to bail ; and that, if ultimately the decision is against him, he could be recommitted for the residue of his sentence; and I really cannot see how any doubt can arise upon the subject, for it is the prisoner himself who asks to be bailed upon these terms, and he cannot afterwards object if the Court should hold that he was properly convicted. I think that the prisoner ought to be admitted to bail.

Huddlestone applied for the permission of the Court for the prisoner to be bailed in the country. Admitted to bail in the country, himself in 801., and two sureties in 401.


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