REED v. NUTT. 1890. Dismissal of --- was preferred a certificate stating the fact of such dismissal ; and sect. 45 provides that the person who has obtained such certificate of dismissal "shall be released from all further or other proceedings, civil or criminal, for the same cause." Held, that a magistrate has no jurisdiction under sect. 44 to grant Assaulta certificate on the dismissal of a summons for assault, when the Non-appearcomplainant does not appear and when no evidence on oath is ance of comtaken, as such a hearing is not a "hearing upon the merits," plainant and if the magistrate does grant a certificate, such certificate is charge not a binding certificate, both parties not having been present, and the case not having been argued and decided on the facts. Held also (Lord Coleridge, C.J. doubting, but not dissenting), that, if in such a case the magistrate grants a certificate of dismissal, the judge in a subsequent action for damages in respect of the same assault is not bound by such certificate, but has power to go behind the certificate and to inquire into the facts, and to determine whether facts existed which gave the magistrate jurisdiction to grant the certificate. APPEAL from Lambeth County Court, in an action for damages for assault, which was tried before the judge and a jury, and in which the judgment was entered for the plaintiff for 151.; the only question being whether a certificate given by a police magistrate in respect of the same assault, under 24 & 25 Vict. c. 100, sect. 44, was a bar to the action, the judge having given leave to appeal on that point. The plaintiff had gone before the police magistrate at Lambeth Police-court, and had made a complaint that he had been assaulted by the defendant, a police constable; a summons for such assault was granted against the constable, but, as the plaintiff in the meantime, with a view to civil proceedings, had resolved not to proceed further with the criminal proceedings for the assault, he sent a notice to the magistrate and also to the defendant that he did not intend to appear at the police-court, and that he had abandoned the criminal proceedings. The plaintiff did not appear at the police-court. When the summons was called on the constable appeared, but, as the plaintiff did not appear, no person was sworn and no evidence of any kind was given upon oath, but the magistrate looked at the constable's report, heard what he had to say-the constable not having been sworn-and he then dismissed the charge, and granted to the constable a certificate of dismissal, under the 44th section of 24 & 25 Vict. c. 100. The plaintiff subsequently took civil proceedings in the Lambeth County Court in respect of the same assault, and the defendant put in as a defence and bar to the plaintiff's claim the certificate of dismissal granted by the magistrate, and offered no other evidence. The defendant admitted that there was no evidence on oath taken before the magistrate. The learned judge held that there was not a "hearing upon Jurisdiction to grant certi missal ficate of dis. Certificate pleaded as bar to civil pro ceedings. the merits" within the meaning of the section, that therefore the certificate ought not to have been granted, and that he had power to go behind it. The charge of assault was then heard upon the merits, the jury found that the assault was proved, and judgment was given for the plaintiff. The defendant appealed. Sect. 44 of 24 & 25 Vict. c. 100, provides: If the justices, upon the hearing of any such case of assault or battery upon the merits, where the complaint was preferred by or on the behalf of the party aggrieved, under either of the last two preceding sections, 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. Sect. 45 provides : If any person, against whom any such complaint as in either of the last three preceding sections mentioned shall have been preferred by or on the behalf of the party aggrieved, shall have obtained such certificates, or, having been convicted, shall have paid 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. Avory for the appellant.-The certificate was on the face of it perfectly good and regular, and was binding upon the County Court judge, and he had no power to inquire into it. It was contended before the judge that the case was not heard upon the merits; but there was a hearing upon the merits, as the magistrates heard what the defendant had to say, and looked at his report, and he dismissed the charge. There was thus a hearing upon the merits; but even if there was no hearing upon the merits, there was before the County Court judge a certificate of dismissal, good on the face of it, and made by a judge who had jurisdiction to give such certificate, and the County Court judge had no power to go behind such certificate and inquire whether there was or was not a hearing before the magistrates. Rawlinson (Fillan with him) for the respondent.-The certificate is bad under the 44th section, not having been granted after a hearing upon the merits. There was no evidence upon oath, no person was sworn, there was no hearing of the facts, and therefore there was no hearing of the case upon the merits" within the meaning of the section; and a certificate under that section can only be given after a hearing upon the merits, which means some hearing of the facts. The present section differs from the corresponding one of the Act of Geo. 4 (9 Geo. 4, c. 31, s. 27), as that section did not contain the words "upon the merits." If the complainant does not appear, then the magistrates can dismiss the summons, but he cannot grant a certifi I do not complain of the dismissal of the summons, but before a certificate can be granted there must be a hearing upon the merits, and no such certificate can be granted unless the complainant consent to the proceedings. This is shown by the case REED NUTT. 1890. Assault charge of Nicholson v. Booth and Naylor (58 L. T. Rep. N. S. 187; 57 L. J. 43, M. C.), where the court held that a court of summary jurisdiction have no power to convict of a common assault unless the party aggrieved, or someone on his behalf, complains of the assault with a view to the adjudication of the court upon it. At common law there is nothing to prevent a person bringing an Non-appearaction in a criminal proceeding: (Ex parte Ball; Re Shepherd, ance of com40 L. T. Rep. N. S. 141; 10 Ch. Div. 667; Wells v. Abrahams, plainant Dismissal of 26 L. T. Rep. N. S. 433; L. Rep. 7 Q. B. 554.) [Lord COLERIDGE, C.J.-Can a man indict another for libel, and at the same Jurisdiction time bring a civil action against him? If so, it would be a case to grant certiof bis vexari pro eadem causâ.] If the law were not as I am ficate of dismissal contending for, there would have been no need to insert in sect. 44, the provision as to the certificate. The only way this certifican be used is under sect. 44, and that can only be after a hearing upon the merits. [Lord ESHER, M.R.-If after the dismissal of the summons no certificate had been granted, could an action have been maintained?] I submit so. [Lord ESHER, M.R.—I have not the least doubt that a man cannot be convicted twice criminally; but is there any case in the books which shows that, if a person has been convicted, the complainant cannot afterwards bring an action for the damages?] Avory in reply.—Before the County Court judge the objection was taken that he had no power to go behind the certificate. If that is not a good objection, it would be open to any County Court judge, when a magistrate had convicted a person, to consider whether the conviction was right or wrong, The only way to question the certificate is by certiorari to bring up the certificate to have it quashed, and on that certiorari the question can be argued that this was not a hearing on the merits. Suppose the magistrate here had convicted the defendant without any evidence at all, the County Court judge could not have treated that conviction as bad, as he would have no power to go behind it; this court only can deal with it by certiorari, or it may be dealt with by appeal if there is an appeal. As soon as the summons is issued, the magistrate has jurisdiction, the parties cannot then withdraw; and if the parties do withdraw, that does not deprive the magistrate of jurisdiction, and he has still power to hear and convict or to dismiss the complaint; so that the magistrate here clearly had jurisdiction: (Reg. v. The Justices of Wiltshire, 8 L. T. Rep. N. S. 242.) [Lord ESHER, M.R.-It is not doubted or denied here that the magistrate had jurisdiction to dismiss the summons, but it is the very point whether he had jurisdiction to give the certificate.] It was laid down in Handcock v. Somes (28 L. J. 196, M. C.; 1 E. & E. 795), that the granting a certificate of dismissal under sect. 27 of 9 Geo. 4, c. 31, was a ministerial and not a judicial act. The moment the summons is dismissed, the granting of a certificate is a ministerial The magistrate having jurisdiction to hear the summons, the County Court judge cannot go into any question as to how act. Certificate pleaded as bar to civil proceedings. REED υ. NUTT. 1890. Assault Non-appearance of com plainant he has exercised that jurisdiction, nor can he go behind the certificate which is good on the face of it. Cur. adv. vult. March 28.-Lord ESHER, M.R.-This is a case in which the plaintiff brought an action in a County Court for assault, and the defendant in that action disputed the assault, as to that, the County Court judge and a jury have found that the assault was committed, and gave damages against the defendant; but the Dismissal of defendant in the proceedings before the magistrate had got a chargeJurisdiction certificate under 24 & 25 Vict. c. 100, sect. 44, and on the trial to grant certi- of the action the County Court judge received evidence of what ficate of dis- took place in the police-court, and of the circumstances under Certificate which the magistrate had granted the certificate. Before the pleaded as bar assault case came on in the police-court the plaintiff gave notice to civil pro- to the defendant that he did not intend to proceed with the case ceedings. missal before the magistrate. When the summons came on the plaintiff did not appear, but the defendant appeared, stated his case, and asked the magistrate to dismiss the information and grant him a certificate. The magistrate did dismiss the information, the defendant being there, and the prosecutor, the complainant, not being there. That the magistrate had jurisdiction and power to dismiss the information, and that he was quite right in so dismissing it, cannot be denied and is not denied here; but it was under those circumstances that he gave the certificate Now the questions raised are, first, whether the magistrate had any jurisdiction, not to dismiss the information, but to give the certificate which has been produced as a binding certificate; secondly, if he had not, was the County County judge entitled to hear the circumstances under which the magistrate had given the certificate, and to determine that these circumstances were not such as brought the case within the Act of Parliament enabling the magistrate to give a certificate, and if they were not, to say that the certificate was given without jurisdiction on the part of the magistrate? Now the first point depends on what is the true construction of the statute. It is a statute which has replaced a former statute as to the granting of certificates in such cases. The new statute has altered the circumstances of such an assault in many respects, and amongst others in this: Under the former Act (9 Geo. 4, c. 31, s. 27) the words of the statute were to this effect, that, if the justices upon the hearing of any case of assault or battery shall grant a certificate, that certificate shall prevent a civil action being maintained. That was upon the hearing. Now upon that statute, and upon those words, two cases were decided by the Superior Court: one of these was the case of Tunnicliffe v. Tedd (17 L. J. 67, M. C. ; 5 C. B. 553); in that case, where precisely the same circumstances arose as in the present case, namely, an information laid and withdrawn, the prosecutor not going before the magistrate, the court held that the magistrate had heard the case, although no evidence was given. As I have already pointed out, the words of that section were, "If the REED v. NUTT. 1890, Assault Dismissal of charge - to civil proceedings. justices upon the hearing," and the court in the case I have referred to, held that what took place before the magistrate was a hearing. Some of the judges have stated in one of the cases that that was a strict interpretation, and was rather technical, but still they considered that was the meaning of the Act of Parliament. That was confirmed and followed in the case of Bradshaw Non-appearv. Vaughton (3 L. T. Rep. N. S. 373; 30 L. J. 93, C. P.). Those ance of comwere cases upon the old Act of Parliament. Now that Act of plainant Parliament having stood with these words in, and such an interpretation having been put on those words, we have the new Act of Jurisdiction Parliament using the very same words. "If the justices upon to grant certi ficate of dis. the hearing of any such case of assault or battery shall grant a missalcertificate," were the words of the old Act of Parliament, and Certificate then in the new Act, there are added the words "upon the pleaded as bar merits." Now the question is, whether we can after that say that these words "upon the merits" are intended to signify precisely the same thing; that is, that the phrase with those words in them is to have precisely the same meaning as the old Act had when those words were left out. I cannot but think that, the attention of Parliament having been called to the strict meaning which had been given to the words of the Act "upon the hearing," a construction which was said to be somewhat technical, they put in those words, "upon the merits," with a definite intention, namely. that a party should not have really the same case tried twice and decided twice. They put in the words "upon the merits," in in order to say that, if the case was heard before the magistrate, that is, that if the dispute was fought out by the parties before the magistrate, that should be a hearing "upon the merits," and the magistrate was to give a certificate; but if the case was withdrawn from the magistrate really, so that there was no real trial of it at all, and so that nobody could assert that the facts had been ascertained by a judicial tribunal, or that the law as applicable to the particular facts had been ascertained, then it was to be left open to the person who had gone so far as to lay the information, but had done nothing more, to be remitted to his old common law rights, which were that, notwithstanding criminal charges, he was entitled to maintain an action for injury done personally to himself. That was the meaning of it. If so, the magistrate has no jurisdiction to give the certificate as a binding certificate, unless the case has been before him and has been argued; that is to say, unless the parties have been present before him, so that he has to decide on the facts and the law as applicable to those facts. Now, if that be true, this magistrate had no jurisdiction to grant the certificate as a binding certificate. Then comes the second question, Was the learned County Court judge entitled to consider the circumstances which show conclusively that the magistrate had no jurisdiction; or was he bound by the mere presentation of the certificate, and ought the certificate to have been removed by certiorari into the Queen's Bench Division, and set aside? That |