attendant whom she fears :"-Held, that the order was sufficient. One of the medical certificates given under ss. 45. & 46. sched. C, stated that the medical man formed his opinion from the fact that the patient "laboured under delusions of various kinds, was dirty and indecent in the extreme :”—Held, sufficient. Held, also, that the provisions of s. 46. were directory only; that a strict compliance with them in point of form was not essential to the validity of the certificate upon habeas corpus. The other medical certificate stated that the medical man formed his opinion from “a conversation he had had" with the lunatic: the word "fact" being erased :—Held, that as the certificate contained that which was equivalent to the formal requisites of the statute, the omission was not fatal. Held, also, per Erle, J., that the object of the statute was to leave the controul of lunatics as at common law, making parties liable to indictment for misdemeanour who did not comply with the provisions of the statute. A writ of habeas corpus had been obtained, directed to Dr. Millingen, the keeper of a licensed lunatic asylum, called York House, Battersea, commanding him to bring up the body of Martha Elizabeth Shuttleworth, together with the cause, &c. The return of Dr. Millingen stated, that the cause of M. E. Shuttleworth being delivered into his custody and detained there was, that the said M. E. Shuttleworth then was and ever since had been, and still is, a person of unsound mind, memory, and understanding, and incapable of governing herself, or her property, or of managing her affairs, and unfit and unsafe to be at large; and that at the time the said M. E. Shuttleworth was received into his custody, he received with her an order for her reception, under the hand of J. C. Rowlatt, which order was as follows: "I, the undersigned, hereby request you to receive M. E. Rhodes, a person of unsound mind, as a patient, in your house. Subjoined is a statement respecting the said M. E. R. (Signed) J. C. Rowlatt, M.A. "Assistant Minister of St. Peter's, Pimlico." Place of abode.-36, Lower Belgrave Street. Degree of relationship (if any) or other circum stances of connexion with the patient.-As clergyman of the parish, finding her in a most deplorable and indecent condition. Name of patient, with christian name at full length. Martha Elizabeth Rhodes. Sex and age.-Female. Married, single, or widowed.-Single. Religious persuasion, so far as known. Age (if known) on first attack. Whether suicidal or dangerous to others. Previous places of confinement (if any). Whether found lunatic by inquisition, and date of commission. Special circumstances (if any) preventing the patient being examined, before admission, separately, by two medical practitioners. Special circumstances (if any) preventing the insertion of any of the above particulars.-Being constantly watched by an attendant whom she fears. J. C. Rowlatt. Dated, &c. To Messrs. Perkin & Millingen, proprietors of York House, Battersea. The return then stated, that, together with the lunatic, two medical certificates had been received by Dr. Millingen. The certificates were as follows: "I, Thomas Willmott, being a surgeon and apothecary, duly qualified, hereby certify that I have this day, separately from any other medical practitioner, visited, and personally examined M. E. R, the person named in the accompanying statement and order, and that the said M. E. R. is a person of unsound mind, and a proper person to be confined; and that I have formed this opinion from the following fact: namely, that she labours under delusions of various kinds, that she is dirty and indecent in the extreme. "Thomas Willmott." "17, Upper Eaton Street." The second certificate followed the same form as the other, concluding thus,"and that I have formed this opinion from the [following fact*] conversation I have had this day with the said M. E. R. "William Griffith." "31, Lower Belgrave Street." The return then stated the identity of The words within brackets and in italic were struck through with the pen. Maria Elizabeth Shuttleworth with the Maria Elizabeth Rhodes mentioned in the certificate. J. H. Parry now moved (1) that the lunatic might be discharged on the ground. of the insufficiency of the return. The statute 8 & 9 Vict. c. 100. (2) makes the order given in the schedule B. as well as the medical certificates in schedule C. conditions to be complied with before any person can be confined as a lunatic. In this case, first, the order for the patient's admission set out in the return, though it is itself in the form given by the act, only states a few of the particulars required; and the being constantly watched by an attendant whom she fears is not a sufficient, or even an in (1) The lunatic had, on the previous day, been brought up before Patteson, J., sitting in the Bail Court, who expressed some doubt as to the sufficiency of the return, but referred the question to the full Court. (2) The 8 & 9 Vict. c. 100. s. 45. enacts, "That no person (not a pauper), whether being or represented to be a lunatic, or only a boarder or lodger, in respect of whom any money shall be received, or agreed to be received for board, lodging, or any other accommodation, shall be received into or detained in any licensed house, and no person (not a pauper) shall be received into or detained as a lunatic in any hospital, without an order under the hand of some person, according to the form, and stating the particulars required in schedule (B.) annexed to this act, nor without the medical certificates, according to the form in schedule (C.) annexed to this act, of two physicians, surgeons, or apothecaries, who shall not be in partnership, and each of whom shall separately from the other have personally examined the person to whom it relates, not more than seven clear days previously to the reception of such person into such house or hospital, and shall have signed and dated the same on the day on which such person shall have been so examined; and every person who shall receive or detain any such person as aforesaid, in any such house or hospital as aforesaid, without such order and medical certificates as aforesaid; and any physician, surgeon, or apothecary, who shall knowingly sign any such medical certificate as aforesaid which shall untruly state any of the particulars required by this act, shall be guilty of a misdemeanour." Sec. 46. is as follows, "Provided aud enacted, that every physician, surgeon, or apothecary signing such certificate, shall specify therein any fact or facts, (whether arising from his own observation or from the information of any other person,) upon which he has formed his opinion, that the person to whom such certificate relates is a lunatic or an insane person, or an idiot, or a person of unsound mind." telligible, reason for not answering the remainder. [COLERIDGE, J.-The reason may be the true one, though I may not be able to understand it.] The giving an order of this sort is an act which the person who gives it takes upon himself. Before he goes out of his way to interfere with personal liberty, he should make himself acquainted with all the particulars required, or shew some reason in each case for his not doing so. Here the blanks are not filled, even with the words "not known." Many of the particulars are of a nature to be learnt by inquiring of third parties. Secondly, the certificate of Dr. Willmott is insufficient. The labouring under delusions of various kinds is not a fact, but a conclusion of the medical man; and the fact of the patient being dirty and indecent is one which any person of common sense can see is not conclusive of insanity. [COLERIDGE, J.-If the medical man states the fact on which he formed his opinion, he does all that is required of him: are we to say whether he is right or wrong in that opinion? As far as this objection is concerned, it seems to me that you are only setting up your judgment against that of the medical man.] Lastly, the second certificate is at all events insufficient. It does not adopt the form given in the schedule. Mr. Griffith does not even pretend to say that he can state any fact which, within the meaning of the 46th section, is any ground for his coming to the conclusion that this person is insane. He strikes out the word "fact," and inserts that he formed his opinion from a conversation:" it does not appear how that conversation led him to conclude the person insane. It amounts to no more than what was before stated, namely, that he had examined the said M. E. R. 66 [COLERIDGE, J.-Do you contend that, supposing the certificates are insufficient, the party is to be discharged? I do not see how that can be. The return, at all events, shews as a fact that she is a dangerous lunatic. That is not even attempted to be denied, and no suggestion is now made that it is not true. In criminal cases a party who is detained under an insufficient commitment, may be remanded.] [ERLE, J.-The 56 Geo. 3. c. 100. ss. 3. & 4. makes the facts stated in a return to a writ of habeas corpus traversable.] If the lunatic is discharged, she may be immediately detained by any person who obtains the proper information, and prepares a correct order, &c. In Ex parte Fell (3), Patteson, J. appears to have thought that a medical certificate, which was less objectionable than the present would not have authorized the detention of a person in a lunatic asylum; and that the defect would be a ground of discharge. The Court is not to look to the consequence of its decisions, when it discharges out of custody a person detained without authority. Sir John Bayley appeared, on behalf of the keeper of the asylum, but was not called upon. LORD DENMAN, C.J.-There is no difficulty in this case, except that which arises from my Brother Patteson having expressed a doubt on the subject. We have the highest respect for his opinion, but we are at the same time bound to express our own in a case so important and exceptional. It is quite clear that there would be no protection for the public at large, or for mad persons themselves, unless particular forms and regulations were prescribed for the care and management of mad-houses. In former times great abuses prevailed in this respect; but various acts of parliament have recently been passed with extreme care and tenderness, in regard to persons in this unhappy condition, but at the same time with a due consideration to the prevention of mischief either to others or themselves. By the last of these acts, the 8 & 9 Vict. c. 100, in order to found the proceedings in the case of a lunatic, an order is to be issued. No person in particular is to do that it is not done in any particular character; but the person who issues it must have an opportunity of forming an opinion. Here the person issuing it is the clergyman of the parish; he states that he finds this person in a deplorable and indecent condition. The 45th section of the act of parliament is particular in its wording, and requires specific particulars to be set out. Do these particulars (3) 15 Law J. Rep. (N.s.) M.C. 28. appear in the present case? I think they do. Some of those particulars are stated. The religious persuasion and age are only to be stated if known; and they must, therefore, be taken (nothing being said. about them) to be unknown; and I think as to the account of the particulars set out in the schedule, that the excuse for their not being inserted, namely, the constant presence of a person whom she feared, is reasonable and sufficient. Then we come to the certificates, as to which we may observe that the language of the 46th section differs from that of the 45th; and that its provisions are directory merely; and that no particular mode of statement is made essential to the validity of the certificate. Medical persons are considered as known to the law, and conversant with the particular disease. As to the certificate of Dr. Willmott, I think it would be monstrous to suppose that it is to state all the particulars which came to his knowledge, or on which he formed his judgment. No means are given for any tribunal to judge whether any particular delusions are conclusive of insanity or not, though they are well understood by those acquainted with the nature of disease; and taking the latter portion alone, I cannot say that it might not of itself be sufficient to enable the medical man to form an opinion. The second certificate is certainly not so formal. I must own that I wish it had followed the direction of the act; but if it contains statements perfectly equivalent to those required, are we to hold the omission to be fatal ? I consider the conversation which is stated to be the fact; and it is a fact sufficient to enable the medical man to form a judgment if he be the skilful person the act of parliament gives him the credit of being. None of these things are final; and, if they are improperly done, the act of parliament gives a remedy: and this is not a case in which it is suggested that the party is not a proper subject for confinement. My opinion then is, that the order and certificates are sufficient; but, after what has passed, I am bound to go further. Even supposing the return insufficient, should we be justified, either as Judges or individuals, in setting at liberty a dangerous lunatic? It is said that she might immediately be arrested; but why should she not remain where she is? Satisfied, therefore, as I am, that there would be danger in allowing her to go at large, I should be abusing the name of liberty if I were to restore her to it, when it could only be a curse to herself and others. COLERIDGE, J.-I am of the same opinion, and can add nothing to what my Lord has said. The act of parliament is one of great importance, and the case is novel. WIGHTMAN, J. concurred. ERLE, J.-I also fully concur with the judgment my Lord has delivered. I would only further remark that this being a licensed house, the keeper would be liable to be indicted for a misdemeanour, for receiving a patient in any case in which the provisions of the act were not complied with. I think the meaning of the act in this respect was the controul of lunatics, as it was at common law; but to subject the party to indictment if the precaution provided by it was not observed. Lunatic remanded. Costs were prayed on behalf of Dr. Millingen, but not allowed. Poor Law-Lunatic Pauper-9 Geo. 4. c. 40.-Appeal-8 & 9 Vict. c. 126.-Statute-Repeal-Exceptional Words. On the 9th of July 1845, an order was made adjudging the settlement of a lunatic pauper, and ordering payment of expenses under 9 Geo. 4. c. 40. s. 42. On the 9th of August following, the 8 & 9 Vict. c. 126. passed, which repealed the 9 Geo. 4. c. 40, except as to any matters committed or done before the passing of the repealing act, which should be as if that act had not passed. On the 13th of October an appeal against this order was entered and respited; and on the 17th of December notice of appeal was sent. No grounds of appeal were ever stated. At the January Sessions 1846, the Sessions dismissed the appeal, on the ground that the right of appeal, under 9 Geo. 4. c. 40, was taken away by the 8 & 9 Vict. c. 126; and, secondly, that if the right of appeal remained, grounds of appeal ought to have been stated: Held, that the right to appeal against an order made prior to the passing of the 8 & 9 Vict. c. 126. was unaffected by that act. Held, also, that sect. 60. of the 9 Geo. 4. c. 40. was not the proper appeal clause, and that no grounds of appeal were necessary. This was a rule calling upon the Recorder of York to shew cause why a mandamus should not issue, directed to him, commanding him to enter continuances and hear an appeal by the township of Skipton, against an order made under 9 Geo. 4. c. 40. s. 42. adjudicating the settlement of a lunatic pauper, and ordering the payment of the expenses of removing, &c. The order was dated on the 9th of July, and served on the 14th of July 1845; and an appeal, in which the clerk of the peace was respondent, was duly entered at the October Sessions in the same year, and respited to the Epiphany Sessions. On the 17th of December 1845 a notice of appeal (not stating any grounds of appeal,) was sent by the appellant parish. On the 5th of January the Epiphany Sessions were held, at which the appeal being called on was dismissed by the Recorder, on two grounds: first, that the 8 & 9 Vict. c. 126, which passed on the 8th of August 1845, having repealed the 9 Geo. 4. c. 40, the right of appeal, under the former statute, was gone; and, secondly, that if the appeal under the former statute still existed, it was necessary to state grounds of appeal. Bliss, in Trinity term last, shewed cause against the rule.-The second ground upon which this appeal was dismissed is founded on the case of The Queen v. Pixley (1). The Queen v. the Justices of Kent (2), which decided that the appeal in such a case as the present must be under section 54. was relied on by the appellants; and the question will turn upon which of the three appeal clauses, namely, sections 46, 54, and 60, is to govern the present case. The Queen v. Pixley is an authority in (1) 4 Q.B. Rep. 711; s.c. 12 Law J. Rep. (N.S.) M.C. 87. (2) 2 Ibid. 686; s. c. 11 Law J. Rep. (N.S.) M.C. 26. favour of its being necessary to state grounds of appeal: a decision upon this point was essential in that case. [WIGHTMAN, J.-In the argument in that case the 60th section does not seem to have been once referred to, or any point made as to the necessity for stating grounds of appeal.] That section appears to have been adverted to in the judgment, for the first time; but The Queen v. the Justices of Kent is not necessarily inconsistent with that case. It is contended that in the present case the appeal is under section 54. as well as section 60. The former applies so far as to designate who is to be the respondent, and section 60. applies in respect of grounds of appeal. It must be urged on the other side that section 54. alone is applicable. But, as to the other point, the appeal was taken away by the new statute 8 & 9 Vict. c. 126; by section 1. of which the 9 Geo. 4. c. 40. is repealed, except as to matters committed or done, or contracted to be committed or done, before the passing of the repealing act, which are to be as if it had not passed. The order being served on the 14th of July, there was sufficient time for the appellants to have given their notice of appeal before the 8th of August, when the act was repealed; whereas it was never given until the 17th of December. The question then arises whether, in the case where an order has been made before the repeal of the act, the operation of the repealing statute is to do away with the old right of appeal. This appeal cannot be considered as a matter or thing committed or done before the passing of the act, and if so, it cannot be within the exception; but the order itself is a thing done, and therefore stands good. In The Queen v. Mawgan (3), a road had been presented by a Magistrate, under 13 Geo. 3. c. 78. s. 24, and the presentment was removed by certiorari after trial, but before judgment that statute was repealed: the Court decided that they could not give judgment, as the proceedings, founded on the presentment, were no longer valid-Kay v. Goodwin (4). (3) 8 Ad. & El. 496; s. c. 7 Law J. Rep. (N.s.) M.C. 98. (4) 6 Bing. 576; s. c. 8 Law J. Rep. C.P. 212. Hall, in support of the rule.-It is impossible that both sections 54. and 60. can apply the requirements of them are totally distinct; in fact section 60. applies only to offences and penalties imposed under the act. In The Queen v. the Justices of the West Riding of Yorkshire, (In re Vincent) (5), The Queen v. Pixley was adverted to. The question there was, whether the Sessions were right in holding that the appeal was too late, but it was assumed that section 54. was the proper appeal clause. But the more important question is, whether the new act applies to affect this case. If that act had not passed, this order would undoubtedly have been subject to be appealed against; and there is nothing in the new statute that can prevent such a consequence from remaining. The order was only inchoate until an opportunity arose of appealing, which was at the October Sessions, and until that time it was not a matter completed. No doubt, when a statute is repealed absolutely, the effect is to render it as if it had never existed; but if the repealing words are qualified, as here, that effect is also qualified. The judgment of Lord Ellenborough, in The King v. Rogers (6) shews what is the meaning of the word "repeal": the word is not to be taken in an absolute, if it is used in a limited sense. The Queen v. Mawgan is really no authority at all on this point; that was a statutable proceeding for not repairing a highway, which is an offence at common law. Kay v. Goodwin only shews that a confirmation must apply to something previously done, and not to something which is to be done. Hodge v. Bird (7) was an analogous case under the Attornies Act: there when a bill had been taxed under the repealed statute, the right of applying to the Court upon that taxation was held still to remain. As to the necessity for giving notice of appeal before the passing of the new statute, that would not avoid the difficulty, for the appeal itself could not be heard till the October Sessions. It cannot be contended, that the appeal ought (5) 15 Law J. Rep. (N.s.) M.C. 52. (6) 10 East, 569. (7) 6 Man. & Gr. 1020; s. c. 13 Law J. Rep. (N.S.) C.P. 87. |