"two years, with or without hard "labour." (Former provision, 14 & 15 Vict. c. 100, s. 29, repealed by 24 & 25 Vict. c. 95.) Upon a count for assaulting, beating, wounding and occasioning actual bodily harm, against the statute, a prisoner may be convicted of a common assault. Reg. v. Oliver, Bell, C. C. 287; 8 Cox, C. C. 384; 30 L. J., M. C. 12; 6 Jur., N. S. 1214; 9 W. R. 60; 3 L. T., N. S. 311. one of the serjeants at mace to the said town and county to arrest W., by virtue of which T. B. was proceeding to arrest W., within the jurisdiction of the court, but that the defendant assaulted T. B. in the due execution of his office, and prevented the arrest :-Held that such indictment was bad, it not appearing that T. B. was an officer of the court; and that there could not be judg ment after a general verdict on such a count as for a common assault and A. was indicted for an assault, false imprisonment, because the juand for having thereby unlawfully ry must be taken to have found that and maliciously inflicted grievous the assault and imprisonment were bodily harm. There was a count for the cause therein stated, which for a common assault. The injuries cause appears to have been that the inflicted were sufficient to amount officer was attempting to make an to grievous bodily harm, and the illegal arrest of another, which bejury was so told; but they returned ing a breach of the peace, the deas their verdict: "We find the pris- fendant might, for aught that aponer guilty of an aggravated as-peared, have lawfully interfered to sault, but without premeditation; prevent it. Rex v. Osmer, 5 East, it was done under the influence of 304; 1 Smith, 555. passion: "-Held, that the verdict was rightly entered upon the count charging the infliction of grievous bodily harm. Reg. v. Sparrow, 8 Cox, C. C. 393; Bell, C. C. 298; 6 Jur., N. S. 1122; 30 L. J., M. C. 43; 9 W. R. 58; 3 L. T., N. S. 445. Upon an indictment containing a count for an assault occasioning actual bodily harm, under 14 & 15 Vict. c. 100, s. 29, the jury might return a verdict of guilty of a common assault merely. Where the judge declined to receive such a verdict as illegal, and the jury thereupon found a general verdict of guilty, the court awarded a venire de novo. Reg. v. Yeadon, L. &. C. 81; 9 Cox, C. C. 91; 31 L. J., M. C. 70; 7 Jur., N. S. 1128; 10 W. R. 64; 5 L. T., N. S. 329. 9. Indictment and Evidence. An indictment for an assault, false imprisonment and rescue, stated that the judges of the court of record of the town and county of P. issued their writ, directed to T. B., An indictment against two for an assault on two, is bad. Anon., Lofft, 271. And see Rex v. Benfield, 2 Burr. 983. A count for night-poaching may be joined with a count on 9 Geo. 4, c. 69, s. 2, for assaulting a gamekeeper authorized to apprehend, and with counts for assaulting a gamekeeper in the execution of his duty, and for a common assault. Rex v. Finacane, 5 C. & P. 551-Parke. An indictment charging that the defendant made an assault upon Henry B. B., and him the said William B. B., did beat, wound and illtreat, is good, in arrest of judgment. Reg. v. Crespin, 11 Q. B. 913; 12 Jur. 433; 17 L. J., M. C. 128. Where a defendant has pleaded guilty to an indictment for an assault, the record is evidence against him in an action for the same assault. Reg. v. Fontaine Moreau, 12 Jur. 626; 17 L. J., Q. B. 187; 11 Q. B. 1033-Denman. On an indictment for an assault on A. B., it is sufficient to prove that an assault was committed on a A conviction of a defendant for unlawfully wounding, and his being sentenced therefore to a term of imprisonment, and to pay a sum of money to the prosecutor of the indictment, for his necessary costs of the prosecution, and a mod By 24 & 25 Vict. c. 100, s. 47, erate allowance for his loss of time, "whosoever shall be convicted upon an indictment for a common aspursuant to 24 & 25 Vict. c. 100, s. 74, form no bar to his subsequently "sault, shall be liable, at the dis"cretion of the court, to be impris-sault, and recovering damages for suing the defendant for the same as"oned for any term not exceeding his bodily suffering and medical expenses occasioned thereby. Lowe v. Horwarth, 13 L. T., N. S. 297Exch. one year, "bour. with or without hard la 12. Summary Convictions. 11. Costs of Prosecution. By 24 & 25 Vict. c. 100, s. 74, 66 where any person shall be convict"ed on any indictment of any as"sault, whether with or without bat- By 24 & 25 Vict. c. 100, s. 42, "tery and wounding, or either of "where any person shall unlawfully "them, such person may, if the court" assault or beat any other person, "think fit, in addition to any sen- two justices of the peace, upon "tence which the' court may deem" complaint by or on behalf of the "proper for the offence, be adjudged "party aggrieved, may hear and to pay to the prosecutor his actual" determine such offence, and the "and necessary costs and expenses "offender shall, upon conviction "of the prosecution, and such mod-" thereof before them, at the discre"erate allowance for the loss of "time as the court shall by affida"vit, or other inquiry and examination, ascertain to be reasonable; "and, unless the sum so awarded "shall be sooner paid, the offender" ing two months, or else shall for"shall be imprisoned for any term "the court shall award not exceed-" "ing three months, in addition to "the term of imprisonment, if any, "to which the offender may be sen"tenced for the offence." "tion of the justices, either be com"mitted to the common gaol or "house of correction, there to be "imprisoned, with or without hard "labour, for any term not exceed "feit and pay such fine as shall appear to them to be meet, not "exceeding together with costs (if ordered), the sum of 51.; and if "such fine as shall be so awarded, to"gether with the costs (if ordered), "shall not be paid, either immedi"ately after the conviction or with By s. 75, "the court may, by "warrant under hand and seal, or"der such sum as shall be so award-" in such period as the said justices "ed to be levied by distress and "shall at the time of the conviction "sale of the goods and chattels of "appoint, they may commit the of "the offender, and paid to the pros"fender to the common gaol or ecutor, and that the surplus, if "house of correction, there to be any, arising from such sale, shall "imprisoned, with or without hard "be paid to the owner; and in case "labour, for any term not exceeding "such sum shall be so levied, the "two months, unless such fine and "imprisonment awarded until pay-"costs be sooner paid." (Former provision, 9 Geo. 4, c. 31, s. 27, repealed by 24 & 25 Vict. c. 95.) "forthwith make out a certificate "under their hands stating the fact By s. 43, "when any person shall" of such dismissal, and shall deliver "be charged before two justices of "such certificate to the party against "the peace with an assault or bat-"whom the complaint was pretery upon any male child whose "ferred." (Former provision, 9 Geo. "age shall not in the opinion of 4, c. 31, s. 27.) 66 "such justices exceed fourteen years, By s. 45, "if any person against or upon any female, either upon "whom any such complaint as in "the complaint of the party ag-"either of the last three preceding 'grieved or otherwise, the said jus- "sections mentioned shall have been tices, if the assault or battery is of "preferred by or on behalf of the "such an aggravated nature that it" party aggrieved, shall have obcannot in their opinion be suffi-"tained such certificate, or hav"ciently punished under the provis-"ing been convicted, shall have "ions herein before contained as to" paid the whole amount adjudged common assaults and batteries, to be paid, or shall have suffered may proceed to hear and determ-"the imprisonment, or imprison"ine the same in a summary "ment with hard labour awarded, 16 66 66 66 66 66 'in every such case he shall be re"leased from all further or other "proceedings, civil or criminal, for "the same cause.' (Former provision, 9 Geo. 4, c. 31, s. 28.) 66 way, and, if the same be proved, may convict the person accused; "and every such offender shall be "liable to be imprisoned in the common gaol or house of correction, with or without hard labour, By s. 46, "provided, that in case 66 for any period not exceeding six "the justices shall find the assault "months, or to pay a fine not ex- or battery complained of to have "ceeding (together with costs) the "been accompanied by any attempt "sum of 201., and in default of pay- "to commit felony, or shall be of ment to be imprisoned in the com- opinion that the same is, from any mon gaol or house of correction" other circumstance, a fit subject for "for any period not exceeding six "a prosecution by indictment, they "months, unless such fine and costs" shall abstain from any adjudica"be sooner paid, and, if the justices" tion thereupon, and shall deal with "shall so think fit, in any of the "the same in all respects in the same "said cases, shall be bound to keep manner as if they had no author"the peace and be of good behav-"ity finally to hear and determine "iour for any period not exceeding "the same: provided also, that noth"six months from the expiration of " 'ing herein contained shall author"such sentence." (Former provis- "ize any justices to hear and determion, 16 & 17 Vict. c. 30, s. 1.) "ine any case of assault or battery By s. 44, "if the justices, upon" in which any question shall arise "the hearing of any such case of as to the title to any lands, tene"assault or battery upon the merits, "ments or hereditaments, or any "where the complaint was prefer- "interest therein or accruing there"red by or on behalf of the party" from, or as to any bankruptcy or aggrieved, under either of the last "insolvency, or any execution un"two preceding sections, shall deem "der the process of any court of "the offence not to be proved, or "justice." (Former provision, 9 "shall find the assault or battery Geo. 4, c. 31, s. 22.) "to have been justified, or so trifling as not to merit any punishment, and shall accordingly dis"miss the complaint, they shall 66 party assaulted, founded upon the same facts. Reg. v. Morris, 10 Cox, C. C. 480; 1 L. R., C. C. 90; 36 L. J., M. C. 84; 16 L. T., N. S. 636; 15 W. R. 990. (b) Complainant or Informant. An information made before a magistrate stated that the informant, having been assaulted and beaten by another person, prayed that he might be bound over to keep the peace towards him. On the magistrates before whom the case was heard proceeding to deal with the merits of the question of the assault, the informant protested against their adjudicating upon it: -Held, that the justices had no jurisdiction to convict summarily the offending party of the assault against the will of the informant, as under 9 Geo. 4, c. 31, s. 27, the justices had no jurisdiction to convict of an assault unless the party aggrieved complained of that assault before them with a view to their adjudicating upon it. Reg. v. Deny or Totness (Justices), 2 L. M. & P. 230; 15 Jur. 227; 20 L. J., M. C. 189B. C.-Erle. (c) Hearing and Certificate. A party having been summoned before two justices under 9 Geo. 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 defendant 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 having accordingly dismissed the complaint" :--Held, that what passed before the justices constituted a hearing, and that the certificate was a complete bar to an action for the assault. Tunnicliffe v. Tedd, 5 C. B. 553; 17 L. J., M. C. 67. A., having laid an information against B. for an assault, under 9 Geo. 4, c. 31, took out a summons, which was served on B., but before the day fixed for the hearing, gave notice to B. that the summons was withdrawn, and also to the magis trate's clerk that he, A., should attend not on the day. B., however, attended on the day, and claimed, in the absence of the complainant, to have the charge dismissed, and to have granted a certificate of dismissal, pursuant to the statute. The justices dismissed the charge, and granted a certificate, which stated the above facts :-Held, that what was done amounted to a hearing within 9 Geo. 4, c. 31, s. 27, and that the certificate accordingly was a bar to an action for the same assault. Vaughton v. Bradshaw, 9 C. B., N. S. 103; 7 Jur., N. S. 468; 30 L. J., C. P. 93: 9 W. R. 120; 3 L. T., N. S. 373. Where under 9 Geo. 4, c. 31, ss. 27-29, a complaint of assault or battery has been made to two jus tices of the peace, who dismissed the complaint and gave the party a cer tificate accordingly, the certificate may be pleaded in bar to an indictment founded on the same facts, charging assault and battery, accompanied by malicious cutting and wounding, so as to cause grievous or actual bodily harm. Reg. v. Elring ton, 1 B. & S. 688; 9 Cox, C. C. 86; 8 Jur., N. S. 97; 31 L. J., M. C. 14; 10 W. R. 13; 5 L. T., N. S. 284. The granting a certificate of dismissal of the complaint is, when a case is brought within sect. 27 of the 9 Geo. 4, c. 31, a ministerial, not a judical act, and a magistrate is therefore bound to grant it. Hancock v. Somes, 1 El. & El. 795; 5 Jur., N. S. 983; 28 L. J., M. C. 196. The certificate, if drawn up forthwith and delivered to the party against whom the complaint is preferred, is a good bar to a subsequent action for the assault, though not drawn up in the presence of the against whom the complaint was preferred. Ib. parties, or applied for by the party | indictment and that referred to in a certificate of dismissal by a magistrate appear to have been on the same day, it is primâ facie evidence that they are one and the same assault, and it is incumbent on the prosecutor to shew that there was a second assault on the same day, if he alleges that such is the case. Reg. v. Westley, 11 Cox, C. C. 139— Russell Gurney. A certificate applied for by the party entitled, five days after a complaint had been dismissed, and granted two days after the application, but dated as of the day upon which the complaint was made, is made out forthwith, and is a good defence to a subsequent action for the same assault. Costar v. Hetherington, 1 El. & El. 802; 5 Jur., N. S. 985; 28 L. J., M. C. 198. The appearance of the defendant before the magistrate, the recital in the certificate of the fact of a complaint having been made, and of a summons having been issued, are sufficient evidence of those facts. Ib. Children. To an action for an assault, the defendant pleaded that he had been summoned by the plaintiff before a magistrate, who convicted him in the costs of the complainant and hearing, which he had paid. At the (d) Aggravated upon Women and trial the magistrate's clerk produced his note-book, by which it appeared that the magistrate had merely ordered the defendant to enter into his recognizances, and pay the expense thereof; the clerk also said in such cases no conviction was ever drawn up :-Held, that the plea was bad, and did not disclose a defence under 24 & 25 Vict. c. 100, s. 45; that it was not proved; and that, even if there was a conviction, the proper proof was not adduced. Hartley v. Hindmarsh, 1 L. R., C. P. 553; 12 Jur., N. S. 502; 1 H. & R. 607; 35 L. J., M. C. 255; 14 W. R. 862. The 16 & 17 Vict. c. 30, s. 1, gave jurisdiction to two justices of the peace sitting at a place where petty sessions are usually held to convict persons of certain assaults, and a warrant of commitment in the general form provided by the 11 & 12 Vict. c. 43, Schedule (P.), was sufficient, without any allegation that the convicting justices were sitting at a place where petty sessions are usually held. Allison, Ex parte, 10 Exch. 561; 24 L. J., M. C. 73. An information was laid against a man for assaulting and abusing a woman. On the hearing before the If a party is charged before two magistrates, she gave evidence tendmagistrates with an assault, and ing to shew that the man had comthey dismiss the complaint, giving mitted a rape on her. The magishim a certificate, he cannot avail trates convicted him of an aggrahimself of this certificate as a de- vated assault, under 16 & 17 Vict. fence to an action for the same as- c. 30. The conviction recited the sault, unless it is specially pleaded. information, and found the assault Harding v. King, 6 C. & P. 427-proved, and sentenced him, for his Gurney. To an action of assault and battery, a certificate, under 24 & 25 Vict. c. 94, s. 44, may be pleaded, together with a plea that the assault was committed in order to prevent a breach of the peace. Lawler v. Kelly, 15 Ir. C. L. R., App. 1. When an assault charged in an offence, to be imprisoned in the house of correction for six calendar months :-Held, that the conviction for the minor offence was good. Thompson, Ex parte, 6 Jur., Ñ. S. 1247-Q. B.: S. P., Wilkinson v. Dutton, 3 B. & S. 821; 32 L. J., M. C. 152. An information before justices |
