of

bound by the certificate, and estopped from disputing the settlement. The relief given would not be the proof of the settlement, but the certificate. The guardians have no power to ascertain the settlement, or to remove. Numerous cases illustrate their limited authority. Thus, in Reg. v. The Justices of Surrey (5 Q. B. 506), it was held the guardians had no authority to sign a notice of appeal, and the same as to the notice of chargeability. (Reg. v. St. Mary Southampton, 5 Q. B. 513.) These cases proceeded upon the ground that they are not officers of the parish. So in Reg. v. Bradford (15 L. J., M. C. 117; 1 New Mag. Cas. 522), the statement of the relieving officer that the relief was on account of a particular parish, was no evidence against the parish, notwithstanding the removing parish had sought to avail themselves of it, and so in some degree recognised it. So also in Reg. v. Little Marlow, relief for a series years amounted to nothing. Here, there is only a single act of relief, five years before, not proved to have come to the knowledge of the parish. The guardians, under Gilbert's Act, have by express enactment the powers of the overseers, the legislature seem, therefore, to have purposely made the distinction, and by sections 33 and 34 there is power to create unions for the purposes of settlement. But then all the guardians must agree. Here, the guardians authorizing the relief may have had a distinct interest against the particular parish, and availed themselves of the absence of its guardians to make the order, or have outvoted them, and yet they are to be bound against their will. It is doubtful whether there could be any resistance to the order for payment by the parish, though perhaps there might be by removing the auditor's allowance of the accounts by certiorari, under 7 & 8 Vict. c. 101. But the individual payments do not appear specifically, or come to their knowledge. A gross sum is paid every quarter. On every ground, therefore, this cannot be supported as an acknowledgment by the parish. The guardians have volunteered the repayment, not acting within the scope of their duty.

Judgment.-June 10.

Cur. adv. vult.

LORD DENMAN, C. J. delivered the judgment of the Court-In the case of Reg. v. Crondall the remaining question is, in effect, whether evidence was produced before the removing justices from which they could legitimately infer that out parish relief had been given to the pauper by the authority of the appellant parish. Where application for such relief has been made to the relieving officer of the union, whose duty it is to examine into the merits of the case, and to report thereon to the board of guardians, and when he has brought that application before that board, whose duty it is to inquire into the settlement, and to order such relief only in case of being satisfied the settlement is in one of the parishes of the union, and the relief has been ordered by that board on account of one of the parishes, and given by the relieving officer according to such order; all the steps now required by the law have been taken, and such relief is legally given. We also think the justices are at liberty to infer the authority of the parish for such relief from these steps. The parish is represented at the board of guardians, and may have its guardians in attendance; whether they attend or not, it is the legal duty of the board to act for the parish, and to take care of it. In Reg. v. Little Marlow we decided that the fact of the pauper receiving relief from the relieving officer, without proof of the order of the board of guardians, is no legal evidence of the authority of the parish for such relief, on the principle that the relieving officer is authorized to act as agent for the parish in this matter only so far as he is ordered by the

board; and, therefore, without that order from the board, his authority as agent was not shewn. We would add, that our province ends when we have decided that there is some legal evidence of the thing to be proved, leaving to the proper tribunal the duty of deciding on the effect of such evidence. If the thing to be proved is this species of acknowledgment by the parish of a settlement therein, the justices, either as removing magistrates or as a court of quarter sessions, on appeal, are to say whether their minds are brought to the required conclusion from all the evidence before them. Here the requisite evidence, as above explained, and more, was adduced; and our judgment is, therefore, for the respondent, and both orders are affirmed.

Order confirmed.

A. B. & E. W.

BAIL COURT.

Trinity Term.-June 5 and 12, 1847.

(Before Mr. Justice WIGHTMAN.)

THE QUEEN V. THE JUSTICES OF MIDDLEsex.

Appeal against an order of maintenance of lunatic pauper-Copy examinations-Parties to appeal. An appeal against an order for the maintenance of a lunatic pauper under sec. 62 of the 8 & 9 Vict. c. 126, is in effect an appeal against the order of settlement of such pauper, and is subject to all the incidents of appeals against orders of removal, one of which is the transmission of a copy of the examinations.

An order for the maintenance of a lunatic pauper was made on the 29th of November, 1845, and was served on the assistant clerk of the board of guardians of the union in which the pauper's parish was situate on the following 4th of December, but no copy of the examinations was sent, nor was any obtained until applied for and paid for by the relieving officer of the union on the 23rd of the same month. The parish officers of the pauper's parish swore they were ignorant of the existence of the order until after Christmas. The next sessions were held on the 6th of January, but no appeal was entered; but at the following Easter sessions the churchwardens and overseers of the pauper's alleged parish entered an appeal against the said order of maintenance, which was adjourned to the Midsummer sessions, when upon an objection taken by the respondents that the appellants ought to have appealed to the January sessions, the Sessions held the appellants to be too late, and dismissed the appeal :

Held, upon an application for a mandamus to enter continuances and hear the appeal, that the respondents ought to have sent a copy of the examinations, and that as they did not do so soon enough to enable the appellants to appeal to the January sessions, they were justified in passing them over.

Held also, that the churchwardens and overseers of the poor of the parish in which the order adjudged the pauper to be settled were proper parties to appeal, notwithstanding the order of maintenance was directed to "the treasurer of the guardians of the union."

Quare, whether or not service of the order upon the clerk of the board of guardians is sufficient service upon the churchwardens and overseers of a parish within such union?

A

RULE was obtained in Michaelmas Term last, calling upon the justices of Middlesex to shew cause why a writ of mandamus should not issue, directed to them, commanding them to enter continuances upon the appeal of the churchwardens and overseers of the poor of the parish of Holy Trinity, in the city of London, against an order of two justices, bearing date the 29th of November, 1845, whereby the treasurer of the guardians of the poor of the City of London Union were ordered to pay to the churchwardens and overseers of the poor of the parish of St. James, Clerkenwell, in the county of Middlesex, the sum of 15s. 6d., being the expenses incurred on behalf of the said parish of St. James, Clerkenwell, in and about the examination of Sarah Grimes, a pauper lunatic, and her conveyance to a house duly licensed for the reception. of insane persons; and also to pay weekly, and every week, to the proprietor of the said licensed house, from the 1st of December, 1845, for and during so

long a time as the said lunatic should be confined in the said house under such order, the sum of 11s., for the charges of the future lodging, maintenance, medicine, clothing, and care of such lunatic, and to hear and determine the merits of the said appeal.

The following is the copy of the order in question :

"Middlesex,

to wit.

}

To the treasurer of the guardians of the poor of the city of London.

"Whereas, by a certain order made under the hands and seals of us, Charles Salisbury Butler and Edward Stock, Esquires, two of her Majesty's justices of the peace in and for the county of Middlesex, in which the parish of St. James, Clerkenwell, hereinafter mentioned, is situate, bearing even date herewith, directed to the churchwardens and overseers of the poor of the parish of St. James, Clerkenwell, aforesaid, reciting, that by a certain order under the hand of Boyce Combe, Esquire, one of her Majesty's justices of the peace in and for the county of Middlesex, in which the said parish is situate, bearing date the 24th day of November, 1845, directed to Edward Byas, the proprietor of the house duly licensed for the reception of insane persons, and called and known as Grove Hall, situate at Bow, in the said county, reciting that the said justice having called to his assistance a surgeon, and having personally examined Sarah Grimes, a pauper of the parish of St. James, Clerkenwell, in the said county of Middlesex, and being satisfied that the said Sarah Grimes was a lunatic, and of unsound mind, and a proper person to be confined, the said justice (the pauper lunatic asylum established in and for the said county of Middlesex being full) thereby directed the said Edward Byas to receive the said Sarah Grimes as a patient into his said licensed house, to which a statement was subjoined according to the form of the statute in such case made and provided. And it is in and by the said herein first-mentioned order further recited, that the churchwardens and overseers of the poor of the said parish of St. James, Clerkenwell, had made application to us, the said Charles Salisbury Butler and Edward Stock, Esquires, the first-named justices, to inquire into the last legal settlement of the said Sarah Grimes so ordered to be confined in the said licensed house as aforesaid; and that thereupon we, the said Charles Salisbury Butler and Edward Stock, Esquires, having found that the said Sarah Grimes was then confined in the said licensed house in pursuance of the said herein lastmentioned order, bearing date the 24th day of November aforesaid, did proceed to inquire into her last legal settlement accordingly, and satisfactory evidence having been adduced before us, as well upon oath as otherwise, that the last legal settlement of the said Sarah Grimes was in the parish of Holy Trinity, in the city of London, we, the said Charles Butler and Edward Stock, Esquires, did, by the said herein first-mentioned order under our hands and seals, adjudge the last legal settlement of the said Sarah Grimes to be in the parish of Holy Trinity, within the said union, accordingly. And whereas it appears unto us, Charles Salisbury Butler and Edward Stock, Esquires, two of her Majesty's justices of the peace in and for the said county of Middlesex, as well upon oath as otherwise, that the said lunatic, Sarah Grimes, in and by the said order of us, the said Charles Salisbury Butler and Edward Stock, Esquires, was and is adjudged to be settled in a parish, to wit, the parish of Holy Trinity, in the City of London Union and city of London, different from the parish, to wit, the parish of St. James, Clerkenwell, in the county of Middlesex, from which she was sent to such licensed house as aforesaid. And whereas it is now duly proved unto us, the said Charles Salisbury Butler and Edward Stock, Esquires, as well upon the oath of James Bennett as

otherwise, that the expenses incurred by and on behalf of the said parish of St. James, Clerkenwell, in and about the examination of such lunatic, and her conveyance to the said licensed house, amount to 15s. 6d.,—we, therefore, the said Charles Salisbury Butler and Edward Stock, Esquires, do hereby order you, the said treasurer of the said guardians of the poor of the City of London Union aforesaid, to pay to the churchwardens and overseers of the poor of the said parish of St. James, Clerkenwell, the said sum of 15s. 6d., being the expenses incurred by and on behalf of the said parish of St. James, Clerkenwell, in and about the said examination and conveyance as aforesaid of the said lunatic. And we do also hereby further order you, the said treasurer of the said guardians of the City of London Union aforesaid, to pay weekly, and every week, to the said Edward Byas, the proprietor of the said licensed house, from the 1st day of December, 1845, for and during so long time as the said lunatic shall be confined in the said licensed house under the said order as aforesaid, the sum of 11s., the same being duly proved to us, upon oath, to be the reasonable charges of the future lodging, maintenance, medicine, clothing, and care of such lunatic as aforesaid.

"Given under our hands and seals, the 29th day of November, in the year of our Lord 1845, at the Strand Union board-room, No. 6, Bow-street, in the said county of Middlesex.

"CHARLES S. BUTLER. (L.S.) "EDWARD STOCK." (L.S.)

This

The foregoing order was served on the assistant clerk of the board of guardians of the poor of the City of London Union, on the 4th of December, 1845, but without any copy of the examinations upon which it was made. Shortly afterwards one of the relieving officers of the City of London Union applied to the clerk of the board of guardians of the poor of St. James's, Clerkenwell, for a copy of such examinations, and on the 12th of December a letter was received from him, stating "that as the examination is not required to be sent them under the statute, the usual fee of one guinea for the copy of the same must be paid to him before he could send such copy examination." sum was accordingly paid, and on the 23rd of December, the copy examination was obtained, but the parish officers of Holy Trinity were not made acquainted with the foregoing facts until shortly after Christmas. The next sessions commenced on the 6th of January following, but no appeal was entered; but on the 9th of February notice and grounds of appeal for the ensuing April sessions were served upon the parish officers for St. James's, Clerkenwell. At these sessions the appeal was adjourned by the Court until the following July sessions, at which it came on for trial, when it was objected on the part of the respondents that the appellants were out of time, inasmuch as they ought to have appealed at the January sessions. To which it was answered that as the copy examinations were not furnished in time to enable the appellants to appeal to those sessions, they were justified in passing them over, and in appealing at the April sessions. To this it was replied that no copy of the examinations need be sent. The Sessions, being of opinion that the appellants were too late, refused to hear the appeal, whereupon the present rule was obtained.

Bodkin (Boothby with him) shewed cause.-The first question for the Court is whether or not the respondents were bound to have sent a copy of the examinations upon which the order was founded. If they were, the appellants were, under the circumstances, not bound to have appealed to the January sessions, as they did not in fact obtain the examinations in time sufficient to have enabled them to do so; but if the respondents were not bound to have sent the exami

nations, then the appellants were wrong in passing over the January sessions. The second is, whether or not, as the order was directed to "the treasurer of the guardians of the poor of the City of London Union," the churchwardens and overseers of a parish were the proper parties to have appealed. As regards the first question, the decision will turn altogether upon the construction to be put upon sec. 62 of the 8 & 9 Vict. c 126. By sec. 58 power is given to two justices to inquire into the settlement of lunatic paupers whom they have sent to an asylum, and to adjudge the settlement accordingly. By sec. 62 the justices are authorized to make an order upon the treasurer of the guardians of the union, including the parish in which such lunatic shall be adjudged to be settled, for payment of the expenses of such lunatic, including his lodging, maintenance, medicine, clothing, &c.: "Provided always, that the guardians of any union or parish, or the overseers of any parish, township, or place affected by such order, may appeal against the same in like manner as if the same were a warrant of removal; and in case of such appeal, the guardians of the union or parish, or the overseers of the parish, township, or place, or the clerk of the peace of the county to which such lunatic was chargeable before such order was made, may defend such appeal; 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." The appellants contend that this proviso incorporates the 79th section of the 4 & 5 Wm. 4, c. 76, which enacts that no person shall be removed under any order of removal until twenty-one days after a notice in writing of his being chargeable, accompanied by a copy of the order of removal, and by a copy of the examination upon which such order was made, shall have been sent, by post or otherwise, by the overseers or guardians of the parish obtaining such order to the overseers of the parish to whom such order shall be directed. But this is clearly not so, for the provision in this section is intended to prevent an unnecessary removal; but under the 8 & 9 Vict. c. 126, no removal takes place, as the lunatic pauper is in an asylum, and this was the view taken by Williams, J. of a somewhat similar case which arose under the old Act of the 9 Geo. 4, c. 40. (Reg. v. The Justices of the West Riding of Yorkshire, 1 B. C. R. 55; 2 New Sess. Cas. 304; Reg. v. The Recorder of York, suprà, 52; 1 B. C. R. 225; 2 New Sess. Cas. 502, S. C.) (a) The 62nd section of the 8 & 9 Vict. c. 126, speaks only of the proceedings upon an appeal; but the sending of the copy of the examinations would be anterior to the appeal, and indeed no appeal may be had at all. Secondly, the churchwardens and overseers of the parish were not the proper parties to have appealed. The order is made upon the treasurer of the guardians of the union, and the appeal is given to the parties who are the subject of the order. [WIGHTMAN, J.-The parish is the party aggrieved by this order, and are therefore entitled to appeal. The words of the 62nd section are" affected by such order ;" and there is good reason in that, for the order may perchance be directed to parties who are in no way interested in it, whilst the overseers of the parish most certainly would be. If it could be shewn that the overseers would not be affected by this order, the case might be otherwise.]

Pashley, contrà.-This is in effect an appeal against the order of settlement, though nominally only against the order of maintenance, and the appeal therefore should be regulated and conducted in the same way as appeals against orders of removal, and it was clearly the intention of the legislature to assimilate appeals under this Act with those under the 4 & 5 Wm. 4, c. 76, and it is cer(a) See post, p. 210.