is not the order referred to in the correlative section 1865. V. Recorder of AMPTON. (sect. 97.) The Court will not construe the appeal The QUEEN clauses so as to exclude an appeal against an order which, as this was, may be made ex parte. If a pauper lunatic be not settled in the parish by which he was sent to the asylum, and it cannot be ascertained in what parish he is settled, an order may be made adjudging him to be chargeable to the county (sect. 98); and against that order there is no appeal; Wilson, appt., The Overseers of Liverpool, respts. (a), decided on sect. 59 of stat. 8 & 9 Vict. c. 126., which is to the same effect as sect. 98 of stat. 16 & 17 Vict. c. 97. In case there is no appeal the only remedy for the guardians would be by resisting an action brought under sect. 121, if they would have even that. Poland and Sills, in support of the rule.-No appeal is given against the present order of maintenance, which is a mere interim order. The parish officers may relieve. themselves from liability by inquiring into the settlement, and, if it cannot be ascertained, obtaining an order on the county; sects. 97, 98 of stat. 16 & 17 Vict. c. 97. ; and the county may obtain an order to reimburse itself if the settlement is subsequently ascertained; sect. 99. The object of the Legislature was to throw the expence of the maintenance of a lunatic sent to an asylum in the first instance on the union or parish by which he was sent; if a lunatic is not taken care of by his relations, though of pecuniary ability to do so, he is to be sent to an asylum and maintained there at the expense of the union or parish, without putting the owner of the asylum, who is bound to receive him, to the trouble of finding out his parish, and in the event of not finding (a) 17 Q. B. 303. 1865. V. NORTHAMPTON. it out getting an order on the county, or to the trouble The QUEEN and risk of suing his relations. A pauper lunatic is a Recorder of person sent from any place to a lunatic asylum. [Blackburn J. The interpretation of the word "pauper," in stat. 8 & 9 Vict. c. 126. s. 84., which included every person" sent to any asylum, licensed house, or registered hospital by any justice or officiating clergyman and overseer or relieving officer," was purposely altered in the interpretation clause, sect. 132, in the recent statute in order to avoid the absurdity contained in the former. By sect. 78 the keeper of a lunatic asylum, other than an asylum belonging wholly or in part to the county or borough, is not bound to receive a pauper lunatic under an order except there be a subsisting contract for the reception of lunatics of that county or borough therein, or that borough otherwise contributes to the asylum, unless the order be indorsed by a visitor of the asylum.] As soon as an order of maintenance is made under sect. 96 the person is a pauper lunatic. [Cockburn C. J. He must be in the condition of a pauper lunatic before he can be the subject of sect. 96. Mellor J. Can any inquiry be made as to the settlement of a person in a lunatic asylum unless he is a pauper lunatic? Sect. 94 provides for the case of a lunatic who is not a pauper.] As to the appeal clauses. No appeal is given against this order by sect. 108 of stat. 16 & 17 Vict. c. 97., as it does not adjudge the settlement, nor does sect. 128 apply to it. The words in the latter "order or determination of any justices under this Act, other than orders adjudicating as to the settlement of any lunatic pauper and providing for his maintenance," cannot mean one order. Either the word "and" must be read "or," or else the word 1865. V. Recorder of AMPTON. "orders" must be understood before the word "providing." In none of the previous sections is an order of The QUEEN adjudication described as being also an order of maintenance; and in sect. 108 an appeal is specially given against an order of adjudication simply. The words "and providing for his maintenance" in sect. 128 cannot be treated as mere surplusage because they are advisedly omitted in sect. 108. It was intended, therefore, to except an order of maintenance as well as an order of adjudication in sect. 128. If the argument of the other side is correct, guardians have an appeal against an order of adjudication by sect. 108, and against an order of maintenance by sect. 128. That, however, cannot be, for in sect. 108 guardians are specially mentioned ; but in sect. 128 "any person" aggrieved "by any order or determination" may appeal. The appeal against an order of adjudication must be within twenty-one days, sect. 110; whereas an appeal under sect. 128 may be within four calendar months: moreover, the mode of appeal against the two kinds of orders is different; and there are conditions precedent to a right of appeal under sect. 128 which do not exist in the case of an appeal against an order of adjudication; e. g. a recognizance conditioned to try the appeal must be entered into before a justice of the peace, and this is inconsistent with an appeal by a board of guardians, who are a corporation. [Mellor J. And on the appeal the Quarter Sessions "if they see cause, may, reduce any penalty or forfeiture," and "may order any money to be returned which shall have been levied in pursuance of such order or determination," but nothing is said about the costs of the removal of the pauper lunatic.] That shews that sect. 128 does not apply to orders made under sect. 96, but 1865. The QUEEN V. Recorder of AMPTON. to a different class of orders made under the 123rd and following sections which impose penalties. [Blackburn J. Is there no appeal against an order made under section 94?] There is an appeal against every order made under the Act except orders of adjudication and maintenance. [Blackburn J. By sect. 106 an appeal is given against any refusal of an order; why should not an appeal be given against any order?] If there were no appeal against the refusal of an order the persons aggrieved by the refusal would have no relief, whereas there is relief for the parties affected by this order under sect. 97, which enables them to obtain an order of adjudication and maintenance on the parish of settlement. And sect. 96 does not affect the liability of the relations to maintain the lunatic if they are able to do so. COCKBURN C. J. I am of opinion that this rule should be made absolute. The clauses of stat. 16 & 17 Vict. c. 97., upon which the question turns, are open to considerable doubt; but I have come to the conclusion that there is no appeal from this order of justices to the Quarter Sessions. It is an order of maintenance made under the 96th section on the guardians of the Union comprising the parish from which the lunatic was sent to the asylum. The Union might immediately get rid of its liability in one of two alternative ways; either under the 97th section by shewing that the lunatic had a legal settlement, which under that section two justices have power to inquire into and adjudge, and in adjudging which they would make an order for payment of all expenses incurred and for the maintenance of the lunatic upon the guardians of the Union or parish, or the overseers of the parish of his settlement, as the case might be; or if it cannot be ascertained in what parish he is settled, then, under the 98th section the Union would apply for and obtain an order of two justices upon the treasurer of the county in which the lunatic was found for those expenses and his maintenance; in either case, therefore, the order now in question is only provisional, and I can understand why the Legislature, in authorizing such an order to be made, seeing the transient inconvenience to which the Union is subjected by it, may not have thought it necessary to give a right of appeal from so small a grievance. Besides, when we look at the sections of the statute which give the right of appeal, the machinery prescribed for appeal against an order adjudicating as to settlement, and the machinery provided for appeal in other cases is so dissimilar that the machinery prescribed by the 128th section, to which it would be necessary if this appeal lay to resort, is wholly inapplicable to an appeal by the guardians of a union or parish, or the overseers of a parish. They are authorized, by sect. 108, to appeal against an order adjudging the settlement; but no special conditions are imposed upon them. Whereas, in the 128th section, we find machinery provided as to entering into recognizance, and as to the time within which the appeal is to be brought, and in other respects. Also, in the 108th section, the terms used are "the guardians of any union or parish, or the overseers of any parish ;" and the 128th section gives the appeal to "any person." Therefore, I think the intention of the Legislature must have been that, where the guardians of a union or parish, or the overseers of a parish, are aggrieved by an order of maintenance, founded on an adjudication of settlement which they believe to be unjust, they have a right to appeal, 1865. The QUEEN V. Recorder of AMPTON. |