Odger's English Common Law

324 ASSAULTS
be instituted "by or on behalf of the party aggrieved ;
though if the party aggrieved is unable from idiocy, infancy
or any other cause to make complaint, it may be made by a
friend acting on his behalf. Again, the magistrates have
power to award compensation to the party aggrieved so as to
obviate the necessity for any subsequent civil proceeding. 2
Nevertheless, the proceedings are in their essence criminal,
for the magistrates can on conviction sentence the defendant
to imprisonment with or without hard labour for two months,
or impose a fine not exceeding £5, or order him to enter into
recognizances to keep the peace and in either case to pay the
costs of the proceeding. There are, however, two kinds of
assaults which canriot be dealt with summarily by magistrates
but which must be tried on indictment, viz., an assault in
which any question arises as to the title to land or as to any
bankruptcy or insolvency, and an assault which is accom-
panied by an attempt to commit a felony. 3
An assault is both a tort and a crime. Hence the person
assaulted may either prosecute or bring a civil action, or do
both* But a criminal Court will not pass judgment while a
civil action is pending.* If, however, summary proceedings
are taken before a magistrate, and the defendant either
pays the penalty or suffers the imprisonment imposed on him,
he is released from all further proceedings either civil
or criminal for the same cause. 5 But it is only the person
who is actually convicted that is released; and so where a
servant was convicted of an assault committed in the course
of his master's employment, it was held that such conviction
did not release the master from liability to an action for
damages for such assault. 6
Moreover, after hearing a case of
common assault on the merits, the justices must, on demand,
grant the accused a certificate that he was either convicted
or acquitted ; and that certificate is a bar to any subsequent
civil or criminal proceeding (except a prosecution for murder
1 24 & 25 Vict, c. 100, s. 42.
» Probation of Offenders Act, 1907 (7 Edw. VII. c. 17), =. 1.
3 24 & 25 Vict. c. 100, s. 46.
4 R. v. O' Gorman Mahon, (1836), 4 A. & E. 575.
8 24 & 25 Vict. c. 100, s. 45.
« Dyer v. Munday, [1895] 1 Q. B. 742.
"
1