for the said county of Salop as should be present at the petty sessions to be held at the public office in Shiffnal, in the said county, on Friday the 6th of July, 1860, at eleven o'clock in the forenoon, to answer to the said complaint: and the said summons so issued by the said justice was duly served on the said Thomas Vaughton on the 20th day of June last, requiring him to appear on the day last above mentioned to answer such complaint: And whereas, after the issuing and service of the said. summons, to wit, on the 3d day of July, 1860, Thomas Bradshaw, the father of the above named Charles Bradshaw, did cause a notice to be served upon the said Thomas Vaughton, of which the following is a copy [setting it out]: And now at this day, to wit, on the 6th day of July, 1860, the said Thomas Vaughton appeared before us the undersigned justices present at the said petty sessions; but the said Charles Bradshaw, although duly called, did not appear; whereupon the said Thomas Vaughton claimed to have the said complaint dismissed, and we do therefore dismiss the same. Given under our hands and seals this sixth day of July, 1860.

"U. CORBETT.

"GEORGE WHITMORE."

No notice was given by the defendant to the plaintiff of his intention. to attend the petty sessions and apply for a certificate; nor was any application made by the plaintiff to the justice to withdraw the summons: but notice was given by the plaintiff to the magistrates' clerk of the said petty sessions that he had withdrawn the summons and given notice to the defendant to that effect.

*107] *In directing the jury, the county court judge told them, that, in his opinion, as a matter of law, the certificate above set out and relied on by the defendant, was no bar to the action; and that, if they thought that the plaintiff had upon the facts proved as to the assault made out a case to their satisfaction for damages, they ought to give him such fair and reasonable damages as they thought fit.

The jury found a verdict for the plaintiff, damages 251.

The question for the opinion of the court upon appeal against this direction was, whether or not the certificate operated as a bar to the plaintiff's right of action, by virtue of the statute. If the court should be of opinion that the said certificate, under the circumstances, above stated, was a bar to the said action, the verdict so given for the plaintiff was to be set aside and judgment entered for the defendant, or a new trial granted.

Scotland, for the appellant.-The 27th section of the 9 G. 4, c. 31, gives the justices summary power to punish persons for common assaults and batteries, and provides, that, "if the the justices, upon the hearing of any such case of assault or battery, shall deem the offence not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any 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." And s. 28 enacts, "that, if any person against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, or, having been convicted, shall have

paid the whole amount adjudged to be paid under such conviction, or shall have suffered the imprisonment awarded for non[*108 payment thereof, in every such case he shall be released from all further or other proceedings, civil or criminal, for the same offence." The question is, whether the facts disclosed in this case show such a "hearing" before the justices as to justify them in granting a certificate under the above statute. Those facts are substantially as follows:Bradshaw took out a summons charging Vaughton with having assaulted him. The summons was returnable on the 6th of July. Vaughton attended before the magistrates to answer the complaint. Bradshaw failed to attend: and the magistrates dismissed the complaint, and gave Vaughton a certificate to that effect. Did that amount to such a "hearing" of the complaint as to justify the magistrates in certifying under the statute? It is submitted that it did. When a complaint is made before justices, the party complained against has a right to have the matter heard and determined. The case is virtually disposed of by Tunnicliffe v. Tedd, 5 C. B. 553 (E. C. L. R. vol. 57). There, a party having been summoned before two justices, under the 9 G. 4, c. 31, s. 27, for an assault, and having appeared and pleaded not guilty, the complainant declined to proceed, stating that he meant to bring an action. The justices thereupon dismissed the complaint, and gave the defenpant a certificate as follows,-"We deemed the offence not proved, inasmuch as the complainant did not offer any evidence in support of the information, and have accordingly dismissed the said complaint:" and it was held, that what passed before the justices constituted a "hearing" within the meaning of the 27th section, and that the certificate was a complete bar to an action for the same assault under s. 28. It is true that there the prosecutor appeared on the return of the *sum[*109 mons: but in all other respects, the case is identical with the present, except for the notice of withdrawal, which in reality amounts to nothing. In Tunnicliffe v. Tedd, Coltman, J., said, "It appears to me that the proceeding in this case is analogous to the ordinary case of an indictment. Where a true bill is found by the grand jury, and the defendant appears to take his trial, although no evidence is offered by the prosecutor, that is still a hearing. So here, the complaint having been lodged, and the defendant having appeared and pleaded, I do not see what right the complainant had to withdraw the charge. The defendant had an interest in having the matter disposed of. If the assault were not proved, he was entitled to be acquitted; and, if proved, he would, by the imposition of a fine, or of imprisonment, be relieved from all further responsibility." Maule, J., said, "The 27th section of the 9 G. 4, c. 31, seems to me to constitute the magistrates a court of oyer and terminer, to hear and determine all matters brought before them. The object of the act was, to put an end to actions and prosecutions for assaults of an ordinary character, by substituting a cheaper and more speedy prosecution, which was to be a bar to all other proceedings, civil as well as criminal, for the same offence. In an ordinary court of oyer and terminer, if the defendant appears and pleads, he has an undoubted right to have the matter determined. When the complaint is ripe for hearing, and the defendant is ready to take his trial, if the prosecutor alleges nothing against him, or merely something that is unsubstantial, then the magistrates are bound to find the charge not

1

proved, and to give a certificate accordingly. There is no necessity to seek for an analogy in civil proceedings to support the claim of the prosecutor to withdraw at his option. In criminal proceedings, the pro*110] secutor, having once put the law in motion, cannot be allowed to withdraw." And Cresswell, J., said,-It appears to me that there was a hearing in this case. As soon as the defendant appeared to the information and pleaded, there was an issue joined, which the magistrates were bound to hear and determine. The complainant being asked what he had to say, told the magistrates that he declined to go any further with the prosecution, as he meant to bring an action. The magistrates having heard all the man had to say, dismissed the complaint. The defendant was clearly entitled to have the benefit of that state of things." Then did the notice of the prosecutor's intention to withdraw from the prosecution make any difference? The complainant having sworn an information, a summons was duly issued and served on the defendant requiring him to appear at the petty sessions on the 6th of July. Between the time of service and the return day of the summons, viz. on the 3d of July, a notice was given to the defendant, -not by the complainant, but by the complainant's father,—that the summons was withdrawn, and that he need not attend. The defendant was perfectly justified in disregarding that notice: the complainant had no power to withdraw from the prosecution, and the defendant had the right to have the matter properly disposed of. To constitute a "hearing," it is not necessary that any evidence should be given. [BYLES, J.-You would say that the unheard summons is like an unfound bill of indictment. The state of things existing here is precisely the same as if the complainant had simply abstained from attending at the return of the summons.] Precisely so. The granting of the certificate is not a judicial act; and a mandamus would lie to compel the magistrates to grant it: The Queen v. Robinson, 12 Ad. & E. 672 (E. C. L. R. vol. 40); 4 Per. & D. 321. In Hancock v. Somers, 5 Jurist, *N. S. *111] 983, where a question arose as to the time at which the certi983,-where ficate should be given, Lord Campbell says: "The question depends upon whether it is discretionary with the magistrate to grant or to withhold the certificate. If it is discretionary, the magistrate ought forthwith' to exercise his discretion, because it is in the nature of a judicial act, which should be done immediately, and in the presence of the opposite party. But I am of opinion that it is not discretionary. The policy of the legislature in constituting this new tribunal appears to have been, that if a person were once exposed to peril in respect of an act done by him, he should be exempted from further proceedings, civil or criminal, for the same cause. In this case the magistrate took cognisance of the evidence, and must be taken to have adjudged that the complaint was frivolous, and therefore he was bound to grant his certificate for the protection of the party. He did grant his certificate, and I think he granted it 'forthwith.' I think that the section means that the party has forthwith' a right to demand the certificate. This is not like the granting of a certificate for a special jury, which is a judicial act, and must be done immediately at the close of the trial. This is a ministerial act, and, after judgment dismissing the complaint, the certificate is in the nature of a record of the judgment which the magistrate has pronounced. The defendant de jure was entitled to demand and to

have the certificate; and it is immaterial whether the prosecutor was present or not when it was made out." And Crompton, J., said: "The granting of the certificate is not discretionary, because I do not see upon what the magistrate has to exercise his discretion after he has come to the decision that the complaint is within one of the three cases mentioned in s. 27. The granting of the certificate is *imperative upon him."

him." A similar opinion is expressed in Costar v. Hether- [*112 ington, 5 Jurist, N. S. 985, where Erle, J., said: "When the complaint is dismissed on either of the three grounds mentioned in s. 27, the magistrate is bound to give his certificate as a protection to the accused party. The certificate is demandable from the magistrate ex debito justitiæ." Since Jervis's act, 11 & 12 Vict. c. 43, these proceedings assume a more formal character: parties may be heard by counsel; and by s. 18 express power is given to the magistrates to award costs. [ERLE, C. J.-In the case of an order of removal, it required an act of parliament to enable the justices to award costs to the respondent on the abandonment of the appeal.] There, the court of quarter sessions had no seisin of the appeal: the notice of appeal would not appear until the first day of the session. Here, a complaint was formally made and entered, and a summons issued. [KEATING, J.-The question is whether the right to the certificate is not confined to a case where the accused has been in peril of being convicted at the hearing?] The language of the statute, it is submitted, is not so limited.

that

Phipson, contrà.-It is impossible to read the statute without seeing that the power to certify exists only where there has been a hearing. By the 27th section, the magistrates are to hear and determine; and their determination is to be final. It cannot be said that there has been a hearing, when there is no issue joined, and no complainant present to support any charge. To hold that the certificate here is valid would be opposed to all the reasoning upon which the decision in Tunnicliffe v. Tedd is founded. The defendant there appeared and pleaded not guilty; and the complainant also appeared, but declined to proceed with his complaint. It did not, therefore, lie in his mouth to say *that there had been no hearing. The judgment of Cresswell, J., puts the decision upon its true ground. "As soon," says [*113 learned judge, "as the defendant appeared to the information, and pleaded, there was an issue joined, which the magistrates were bound to hear and determine. The complainant being asked what he had to say, told the magistrates that he declined to go any further with the prosecution, as he meant to bring an action. The magistrates, having heard all the man had to say, dismissed the complaint. The defendant was clearly entitled to have the benefit of that state of things." That goes quite as far as a case ought to go. The 18th section of Jervis's act has nothing to do with the question. That applies to a case where the complaint is dismissed on a hearing under section 13 or 14. It is contrary to the plain and obvious meaning of the act to hold that there has been a hearing unless the parties appear and are ready to be heard. [BYLES, J.-May not the word "hearing" in the 27th section of the 9 G. 4, c. 31, mean "time and place of hearing?"] It is submitted not.

Scotland, in reply.-There is substantially no distinction between this case and Tunnicliffe v. Tedd. [BYLES, J.-In The Queen v. Stamper,

1 Q. B. 119 (E. C. L. R. vol. 41), 4 P. & D. 539, by a rule of quarter sessions it was ordered that all applications intended to be made for orders of maintenance in bastardy, should be entered with the clerk of the peace on or before a certain day, and that such applications should. be called on at the sessions in the order of entry. The overseers of a parish entered an application with the clerk of the peace, according to the above rule and the practice of the sessions, paying the usual fee on entry, and giving notice to the party against whom they applied. At the sessions the party attended, and the case was called on; but the *prosecutors did not appear. The sessions made no order upon *114] the application, and ordered (under the statute 4 & 5 W. 4, c. 76,

s. 73) that the overseers should pay costs to the party appearing: and it was held, that the entry was an application, and the calling on of the case, and attendance of the opposite party, a hearing of such application, within s. 73; and therefore that the order for costs was rightly made.] So, here, the information and the attendance of the appellant in answer to the summons amounted to an application and a hearing within this statute. The notice of withdrawal of the complaint makes no difference. [BYLES, J.-Suppose the complainant had gone on to say, "I withdraw the charge because I am conscious that I have no ground of complaint?"] That is in substance what he does. [BYLES, J.-We now know his motive.] If, instead of being a mere assault, the charge had been one of a grievous character,-could the complainant by acting as he did here keep it hanging over the defendant's head for an indefinite time? Once made, whatever the charge, the accused has a right to have it disposed of.

ERLE, C. J.-The argument of Mr. Scotland has shaken the opinion I was disposed to form, but has not convinced me. The court will take

a little time for deliberation.

Cur. adv. vult.

ERLE, C. J., now delivered the judgment of the court:(a) The material facts on this appeal are, that the plaintiff laid an information for an assault under the 9 G. 4, c. 31, s. 27, and took out a summons, which was served on the defendant, and that he after*115] wards, and before the day for hearing, by his agent, gave notice both to the defendant not to attend, and to the magistrates' clerk that he should not attend; that, on the day, the defendant attended and claimed to have the information dismissed, and a certificate of dismissal granted, although the plaintiff was absent; and that the magistrates granted a certificate showing these facts: and the question is whether such certificate bars this action.

The statute authorizes the magistrates to give the certificate, if on the hearing they deem the charge not proved: and at first it seemed difficult to say that they had heard the matter at all. But we were pressed with the case of Tunnicliffe v. Tedd, 5 C. B. 553 (E. C. L. R. vol. 57), where the court lay down as principles, that the information is the commencement of a criminal proceeding, analogous to an indictment; that the summons is the act of the magistrates, on behalf of the public; that the party who begins a criminal proceeding cannot withdraw from it leaving it pending, but, on the contrary, that the party charged has a right to force it on to a conclusion; and that, if, at the time for concluding the

(a) The case was argued before Erle, C. J., Byles, J., and Keating, J.