These exceptions must be sustained. By R. S., c. 143, § 12, the municipal officers of towns, upon complaint in writ*567ing made by any relative of an insane person or by a justice of the peace, may examine into the condition of such insane person, and, upon certain conditions, send him to the insane hospital. By § 15, this may be done by two justices of the peace in case the municipal officers neglect or refuse to do it. But there can be no neglect or refusal, in the sense of the statute, under a state of circumstances where such officers have no power to act. In this case the insane person, at the time of the complaint, was legally confined upon criminal process in the county jail. They could not properly obtain possession of his person, to remove him from the jail to the hospital; and, therefore, were in no fault for not attempting to do so. In this view the justices were not legally called upon to act. Although the commitment of the insane person and his detention at the hospital may be proper enough, for the purpose of charging the town for his support while there, by virtue of sections nine and nineteen of the chapter cited ; still, the action of the justices was so far irregular and unauthorized by law, that the town is not bound to pay this claim consequent upon such illegal action. Exceptions sustained.
Appleton, C. J., Cutting, Walton, Barrows and Danporth, JJ., concurred.