was summoned to give, and gave, evidence on the charge laid, but the justices, instead of committing the accused for trial on that charge, or on one of a lower grade, or discharging him, one of which courses alone they had jurisdiction to take, assumed to convert the charge, or, in the language of the statement of defence, to reduce it to a charge of common assault and then to dispose of it summarily by convicting the defendant.

Now, the charge or information which justices have jurisdiction to hear and determine summarily, unless at the time of entering upon the investigation the person aggrieved or the person accused objects thereto, is a charge or information for what is generally spoken of as a common assault. This is apparent from section 265 and sections 864, 865 and 866 of the Criminal Code. The first of these sections enacts that every one who commits a common assault is guilty of an indictable offence, and liable, if convicted upon an indictment, to one year's imprisonment or to a fine not exceeding $100, and on summary conviction to a fine not exceeding $20 and costs, or to two months' imprisonment with or without hard labour.

In part 58 of the Code, which deals with the subject of summary convictions before justices of the peace as distinguished from "speedy trials" and "summary trials" of indictable offences, under parts 54 and 55, we find section 864, which provides for the case in which a summary conviction may be made for an assault, which is plainly the summary conviction referred to in section 265. "Whenever any person unlawfully assaults or beats any other person that is to say, an assault and battery, unaccompanied with any of those aggravating circumstances which give to it the character of any of the distinct offences recognized by other sections of the Code as something more than a mere assault

"any justice may summarily hear and determine the charge "—that is, the charge simply of an assault and battery -"unless at the time of entering upon the investigation the person aggrieved or the person accused objects thereto."

Sub-section (2). If such justice is of opinion that the

assault or battery complained of is, from any other circumstance"-and this very word "other" indicates that the charge as laid must be one which the justice has power to deal with summarily "a fit subject for prosecution by indictment," as for example, if the evidence discloses a more serious offence than a common assault, or if, even though no more than a common assault, the only penalty which he could impose summarily would under the circumstances be inadequate, "he shall abstain from any adjudication thereupon and shall deal with the case in all respects in the same manner as if he had no authority finally to hear and determine the same."

Sections 865 and 866 also show that the charge which the justice is investigating must be one which, as disclosed by the information or complaint, he has, in the absence of objection, jurisdiction to try upon the merits and dispose of summarily. That indeed is the whole scope of this part of the Code.

It is most important in cases of this kind to insist upon the principle that the right of the justices to adjudicate is con-fined within the limits of the information, because a police or stipendiary magistrate has power to convict summarily under this part of the Code as well as to try summarily certain other classes of assault of a more serious nature under sections 783 and 785, part 55, of the Code, where the effect of a conviction or of the dismissal of the charge differs from that under part 58 and merely frees the offender from all other criminal proceeding for the same cause.

It is to be observed that in cases of assaults upon women and children when the charge, i.e., a charge of common assault, is laid before a police magistrate or other magistrate as defined in section 782, the magistrate, instead of acting under section 864 (2), by abstaining from adjudication and committing for trial when he thinks the offence as proved would not be sufficiently punished by a summary conviction under part 58, may try the case summarily, not under that part but under the provisions of part 53, which enable him to impose a more severe punishment.

It is true that where the charge is for an unlawful assault

and battery, i.e., assault and battery simpliciter or common assault, the justices may convict and their conviction may be good and a bar to further civil and criminal proceedings even although the evidence discloses a more serious offence such as malicious wounding, or wounding and causing grevious or actual bodily harm, and although it may be that they should have obeyed the directions of section 864 (2) and abstained from convicting: Regina v. Stanton (1851), 5 Cox C. C. 324; Regina v. Elrington (1861), 1 B. & S. 688; Regina v. Inhabitants of Denton (1864), 5 B. & S. 821; Ex p. Thompson (1860), 6 Jur. N.S. 1247; The Queen v. Miles (1890), 24 Q.B.D. 423, 432, 433, 434. But this is because the information is for an offence for which they have power to convict summarily and they have not thought fit, it must be assumed for sufficient reasons, to take the course prescribed by section 864 (2). That, however, is a very different thing from convicting summarily under part 58 where the only information before them is for an offence which they have no jurisdiction so to dispose of.

As Hawkins, J., observes in The Queen v. Miles, referring to such miscarriages of justice as I have adverted to, they are not likely to happen by reason of any default of the justices if they pursue the simple course of steadily bearing in mind the charge before them. "If that charge be one of felony, or misdemeanor punishable by indictment only, they have no jurisdiction to adjudicate; they can but commit for trial or refuse so to do." See also The Queen v. Hughes (1879), 4 Q.B. D. 614; Stone's Justices' Manual, 29th ed., 1897, pp, 132, 690.

That, I may also say, is the limit of their jurisdiction where the charge though of assault simpliciter has not been laid by or on behalf of the party aggrieved.

In the case at bar the charge which the justices were proceeding to investigate was a charge of felonious assault. The party aggrieved was not called upon to do anything but to give his evidence. He could not object to the justices proceeding to hear it in the ordinary course of their duty. It may be assumed for the purpose of the case that the infor

mation had been laid by him or on his behalf.

But whether

that was so or not, it was one the disposition of which could not affect his civil rights in respect of the assault because the justices had no power to make a summary conviction upon it, or of their own motion so to mould it as to confer upon themselves jurisdiction to do so.

Probably as all parties were before the magistrates they might have agreed, if the latter were of opinion that the charge in the information was not borne out by the evidence, that such charge should be abandoned and the case tried summarily as for a mere assault without laying a fresh information. The complaint would then be made by the party aggrieved.

been done.

But this is very far from what appears to have I refer to Turner v. Postmaster General (1864),5 B. & S. 756; Peek v. De Rutsen (1882), 46 J. P. 313; Egginton v. Pearl (1875), 33 L.T.N.S. 428; Johnson v. Colam (1875), 23 W. R. 697.

It is only necessary to add that the case of Reed v. Nutt (1890), 24 Q.B.D. 669, shows that the circumstances under which the certificate of conviction was given may now be enquired into and its futility proved although the conviction has not been quashed.

LISTER, J.A.

The case turns upon whether the defendant is released from liability in this action under section 866 of "The Criminal Code, 1892."

A peace officer laid an information before a justice of the peace charging the defendant with having "unlawfully shot and wounded the plaintiff with intent to do him grievous bodily harm."

The charge as laid was investigated by two justices of the peace. The plaintiff was subpoenaed as a witness by the prosecutor on the charge as laid, attended the investigation, and gave his evidence. The officer before preferring the charge went to the plaintiff and obtained from him the particulars of the alleged shooting. The justices upon the charge

as laid convicted the defendant of a common assault, and imposed a fine and costs, which the defendant paid and now claims that the conviction operates as a release of all liability in this action under section 866 of the Code which enacts as follows:

"If the person against whom any such complaint" (complaint for assault or battery mentioned in section 865) "has been preferred, by or on behalf of the person aggrieved, obtains such certificate" (the certificate of dismissal provided for in section 865), "or, having been convicted, pays the whole amount adjudged to be paid or suffers the imprisonment, or imprisonment with hard labour, awarded, he shall be released from further or other proceedings, civil or criminal, for the same cause."

The defendant alleges in his statement of defence that an information was laid on behalf of the plaintiff charging the defendant with unlawfully shooting and wounding the plaintiff with intent to do him grievous bodily harm and which charge was reduced by the justices to one of common assault, and he claims the benefit of sections 265, 864 and 866 of the Code. Section 865 provides for giving a certificate of dismissal. Section 866 is the section material to this action and it provides that in case of conviction the person accused (subject to the conditions precedent therein expressed) shall be released from further or other proceedings civil or criminal for the same cause. From the language of section 866 it appears clear that the release thereby provided for can become operative only upon the antecedent conditions prescribed by the statute being strictly complied with.

These conditions are: (a) a complaint being preferred for assault or battery by or on behalf of the person aggrieved; (b) a conviction on this complaint; (c) payment of the fine, etc., imposed, or; (d) suffering the imprisonment awarded.

The obvious reason for imposing the first, condition is that the person aggrieved shall not without his own consent be deprived of his civil remedy: Nicholson v. Booth (1888), 16 Cox C. C. 373.

For the purposes of this action I do not think it necessary