The first ground for a new trial set out in the petition of the defendant was waived at the hearing, and not insisted upon in the argument. In the argument, it was insisted, that the warrant of commitment was void, because neither the judgment of the justice before whom the lunatic was brought, nor his warrant of commitment, stated in what town he was arrested. By the original act authorizing the confinement in jail of a lunatic, so furiously mad as to be dangerous, it was provided, that the expenses of his support *Page 380 in jail and of his commitment should be paid out of his estate, if he had any; and if not, by the town which might be chargeable with his support. This act was amended in October, 1847, so as to provide, that instead of being committed to the county jail, he should be committed to the Butler Hospital, or other hospital for the insane. In 1848, the act was further amended. By this amendment, it was provided, that if the support of the lunatic should not be chargeable upon any town in this state, then the town in which he should be arrested should be liable for the expenses of his commitment and support at the hospital. For the convenience of the directors of the hospital, and that they might be informed of the town in which the arrest was made, and so to what town they were to look for payment, it provided further, that the justice who should order the commitment should also state in his warrant, in what town the lunatic was arrested. The last provision was not made, however, for the purpose of rendering that town chargeable with the expenses, but for the information of the directors of the hospital. The omission of such notice in the warrant would not, and was not intended to relieve the town where the arrest was in fact made from the expenses, upon other proof of the arrest there. This provision is merely directory to the justice; and no one can complain of the omission except the directors of the hospital, for whose benefit only it was made.
Another ground insisted upon was, that the justice who tried this cause permitted the plaintiff, after having rested his cause in the opening, and after the defendant had taken the point that no evidence had been offered that the lunatic had no estate wherewith to pay the expenses, to put in proof upon that point. From the statement allowed by the justice it appears, that the omission to offer such proof in the opening was purely by mistake, under the misapprehension that the defendant had admitted the want of such estate. It was a matter in the discretion of the judge, and it was no improper exercise of that discretion, to permit evidence to be offered which was necessary to the plaintiff's case, and which he had prepared, but which he failed to offer in the proper stage of cause, only because he understood *Page 381 that the fact proposed to be proved was admitted by the other party.
Another ground assigned is, that the whole proceeding by the justice, the complaint, judgment, and mittimus are void; and so the commitment to the hospital was illegal and void, and insufficient to charge any town with the support of the lunatic. The complaint certainly sets forth all the facts necessary to give the justice jurisdiction to hear and determine the question, whether the person charged with being dangerous was a lunatic at large, and dangerous to the community. It charges that Andrew J. Briggs was a lunatic, and so furiously mad as to render it dangerous to the people that he should be at large, and that he was at large. This complaint made it the duty of the justice to issue his warrant to apprehend the accused, and upon examination into the truth of the matter charged in the complaint, to adjudge thereon, whether the complaint was true. He was also required, if the complaint proved to be true, to commit the person accused to the Butler Hospital for the Insane, unless a recognizance satisfactory to him should be offered, that the person charged should not be permitted to go at large until restored to soundness of mind. The warrant of commitment does not state that no such recognizance was offered to the justice before commitment. It states the judgment of the justice that the complaint was true, — that the person charged was a lunatic and dangerous to be at large, and that he had further adjudged that the lunatic be removed to the Butler Hospital; and he issues his mandate accordingly to the officer to commit, and to the hospital to receive and keep the lunatic. It is now insisted that the omission to state that no such recognizance was offered, renders this warrant void, — that such statement was necessary to show the jurisdiction of the justice, — that he had no power to commit, if such recognizance were offered. It is not pretended that any such recognizance was in fact offered; no such proof was offered. The justice had, therefore, in fact the power to commit, as he had committed the party to the hospital. The recognizance, or the offer of it, is not made necessary to the power of the justice to act. It is not necessary to give jurisdiction, or to confer upon him any power; *Page 382 all the power necessary to the commitment is conferred and vested in the justice already, and will continue unless the recognizance be offered. If offered, the power to commit is to cease, and not otherwise. Undoubtedly, every fact necessary to confer the jurisdiction or power upon the justice, acting within a special and limited jurisdiction, should appear upon the face of his proceedings. But does the same necessity exist to negative every fact which may take it away? We think not. It is to be presumed, at least, until the contrary appears, that the facts are as stated in the mittimus; and that they are all stated. If so, no recognizance was offered, and the power of the justice appears upon the process.
We do not see, however, when all these points are ruled against the defendant, how the plaintiff, under the law, can maintain this action. At the time the complaint was made against the lunatic in this case, and at the time of the trial, judgment, and commitment to the Butler Hospital, there was no law making any town liable for the expenses of the commitment and support of the lunatic, except that in which he had his last legal settlement, if he had any such legal settlement in any town in this state. It was only in case the lunatic had no legal settlement within the state, that the town in which he might be arrested was charged with these expenses. It was not until the Revised Statutes went into effect in July, 1857, that these provisions were changed. By the Revised Statutes it was provided, that where the lunatic was settled in this state, and should be arrested in a town other than that in which he had his settlement, the town in which he might be arrested should be liable in the first instance; and upon payment of the expenses might have its remedy over against the town where the lunatic was settled. Prior to the Revised Statutes, the lunatic had been committed, and thereby the town of West Greenwich, where this lunatic was settled, alone became chargeable with the expenses. The town of Hopkinton, though the arrest was made there, was under no legal obligation to pay, and could not be compelled to do so. The payments made by that town have been voluntary on its part. It does not appear that any request was made to that *Page 383 town by the defendants to pay on their account, and certainly not, that the plaintiffs have paid by compulsion. The payments made, therefore, were in their own wrong, and for the recovery thereof they are without remedy.