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a certificate proved, or shall find the assault or battery to have to that

been justified, or so trifling as not to merit any effect.

punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred.

Note. This clause is limited to the case where a complaint is made by or on behalf of the party aggrieved. The 9 Geo. 4, c. 31, s. 27, only applied to a case where the complaint was made by the party aggrieved, and unless this clause had been limited as it is, any person who had committed an aggravated assault, might have got some friend to make a complaint and get the case heard by the justices, on insufficient evidence, and might, by virtue of ss. 44 and 45, have deprived the party aggrieved of any remedy by action or indictment.

Under the 9 Geo. 4, c. 31, s. 27, where a party aggrieved made a complaint, and obtained à summons and served it on the defendant, but before the day for hearing, gave notice, both to the defendant not to attend, and to the magistrates' clerk that he should not attend, and the defendant attended, and claimed to have the information dismissed, and a certificate of dismissal granted, notwithstanding the prosecutor's absence, it was held that the justices were warranted in granting such certificate, and that it was a bar to an action for the assault, Tunnicliffe v. Tedd, 5 C. B. 553; Vaughton v. Bradshaw, 9 C. B. (N. S.) 103. Under the present clause these cases are no authority ; for in order to obtain a certificate under it the case must be heard “upon the merits;" that is, the decision of the justices must be after having heard the evidence. The 14 & 15 Vict. c. 93, s. 21 (I.), required the justices to state in the certificate that the dismissal was on the merits, or that the assault was of a trifling or justifiable nature.

tion shall

45. If any person, against whom any

such com


or convicplaint as in either of the last three preceding sections mentioned shall have been preferred by or on the behalf be a bar to of the party aggrieved, shall have obtained such cer- any other tificate, or, having been convicted, shall have paid


ings. the whole amount adjudged to be paid, or shall have suffered the imprisonment or imprisonment with hard labour awarded, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same cause.

Note.-This clause is taken from the 9 Geo. 4, c. 31, s. 28; and see the 14 & 15 Vict. c. 93,

8. 21.

See the note to the last section.

As several decisions occurred under the former clause and doubts may exist as to the construction of the present clause, it may be well to notice them. In Reg. v. Walker, 2 M. & Rob. 446, the prisoner was charged in different counts with wounding with intent to main, disable, &c., and pleaded auterfois convict under the 9 Geo. 4, c. 31, s. 27, setting out a complaint by the prosecutor for an assault and battery, and alleging that the assault and battery of which he had been so convicted, and the wounding in the indictment mentioned were the same assault and battery; the Crown demurred to this plea; and Coltman, J., held that, "On a complaint for a common assault the justices were to determine whether such assault was accompanied with any felonious intention; on that question they had adjudicated, and their decision was final.” This decision was in accordance with Anonymous, 1 B. & Ad. 382, where the defendant had been convicted of a common assault, though it was alleged that the evidence showed a felonious assault, and a certiorari was moved for on the ground that the justices bad no jurisdiction, but the Court of Queen's Bench held that the justices had found that the assault was not "accompanied by any attempt to commit felony," which they had jurisdiction to deter

s. 29.

mine; Lord Tenterden, C. J. (as I well remember), relying especially on the words “in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony,” in the 9 Geo. 4, c. 31,

In Reg. v. Stanton, 5 Cox, C. C. 324, the prisoner was indicted for wounding with intent to murder, maim, &c., and the jury acquitted him of felony, but convicted him of an assault. It having appeared in the course of the trial that the prisoner had been summarily convicted, fined, and imprisoned for the same assault, Erle, J., said, “In my opinion the conviction would have been an estoppel to the indictment for the felonious assault and wounding, if pleaded, and although it has not been pleaded I am bound to consider the charge as having been already adjudicated upon, and the prisoner as having undergone the punishment allotted for it.” This was the voluntary opinion of the very learned judge; for the counsel for the prisoner did not even take the point.

In Reg. v. Bassett, Gloucester Spr. Ass. 1851, two prisoners were tried before me for manslaughter, and it appeared that they had without any provocation thrown the deceased down with great violence on the ground and broken his leg, and that he had died in consequence. Whilst, however, the deceased was alive the prisoners had been convicted of an assault upon him, under the 9 Geo. 4, c. 31, and suffered the punishment for it. The prisoners were undefended, and having been convicted, I consulted Patteson and Talfourd, JJ., on the question whether they might not well have pleaded that they had been convicted of the assault; and I pointed out that the great difficulty I felt was that the indictment necessarily alleged the very same identical assault of which the prisoners had been convicted, and that if the conviction were an answer to that assault, there remained no cause of death, and I drew attention to the particular terms of the 9 Geo. 4, c. 31, s. 28. But the very learned

judges, after very considerable discussion, which I caused, as I entertained very serious doubts on the question, were both clearly of opinion that that conviction was no bar to the indictment; for the statute had only provided that the conviction for an assault should be a bar to all other proceedings for the same cause," and that it was perfectly clear that an indictment for manslaughter was not a proceeding “for the same cause," and they thought that these words were introduced to prevent a proceeding for a common assault under the 9 Geo. 4, c. 31, being a bar to any proceeding which was not actually “for the same cause;" and their opinion was so decided that I did not reserve the point, though my mind was not perfectly satisfied upon it. However, upon great consideration since, it appears to me that their opinion was clearly right. Before the 9 Geo. 4, c. 31, a party assaulted might either bring an action or prefer an indictment for such assault, or might do both the one and the other. Now the 9 Geo. 4, c. 31, s. 27, gave the party assaulted another mode of proceeding, and as far as I am aware it had never been held before that time that a conviction or acquittal on a summary proceeding could be pleaded as a bar to an indictment even for a misdemeanor; it was but reasonable, therefore, that sec. 28 should be introduced to prevent the prosecutor from either bringing an action or preferring an indictment for the same assault, with respect to which he had elected to proceed before the justices. But it is to be remembered that by the common law auterfois acquit or convict of a misdemeanor could never be pleaded to an indictment for any felony (see my note 1 Russ. C. & M. 838, and the authorities there collected); and, consequently, if sec. 28 had been so framed as to make a proceeding under sec. 27 a bar to an indictment for felony, this inconsistency would have been created, that such a proceeding would have been a bar to an indictment for felony, whilst an acquittal or conviction for an assault upon an

indictment would not have been so; and this affords a strong inference that the words “for the same cause," were used to prevent the provision from extending to an indictment for felony, especially when it is borne in mind that an indictment for felony and one for misdemeanor were always considered as proceedings for a different and not for the same cause, as the authorities above referred to plainly show. And this inference is much fortified by the difference in the terms used in similar cases. The 7 Geo. 4, c. 64, ss. 9, 10, relating to accessories, has the words "for the same offence,” where all the offences are felony: but the 7 & 8 Geo. 4, c. 29, s. 53, relating to obtaining property by false pretences, provides that no person tried for that offence shall be afterwards prosecuted “for larceny upon the same facts." Now these clauses, framed by the same excellent criminal lawyer as framed the clause in question, clearly show what was done and intended to be done in sec. 28. Every such expression as “proceedings civil or criminal upon the same facts” was avoided, because that would have included a prosecution for felony. But the words " for the same cause were adopted instead of " for the same offence," and for this plain reason; sec. 28 includes "civil and criminal ” proceedings, and “offence” would not have been appropriate to civil proceedings, and therefore "cause". was substituted for it as equally applicable to both. It follows, therefore, that two objects were effected by sec. 28; the one providing a protection from further proceedings for the same assault, the other limiting that protection to civil actions and prosecutions for misdemeanor. The result is that Reg. v. Bassett is correct, and Reg. v. Walker, and Reg. v. Stanton, proceeded on a misapprehension. Whether, however, this conclusion be correct or not, they seem to be no authorities in the present state of the law; for they occurred whilst the 1 Vict. c. 85, s. 11, authorised a conviction of assault upon an indictment for felony, and that clause was re

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