COURT OF QUEEN'S BENCH. Reported by T. W. SAUNDERS, and J. SHORTT, Esqrs., Barristers-at-law.

Saturday, Jan. 21, 1871.

REG. v. AVES; REG. v. THE SAME. Summary conviction-Plea of guilty by an attorney in the absence of the defendant-Want of authority.

The defendant, residing in London, was summoned before justices at Hastings to answer to two informations for maliciously injuring a window and maliciously injuring a bell-pull. Being unable from illness to attend, he admitted to his father that he had broken the window, but had not done it intentionally, and that there ought to be compensation. The father thereupon went to Hastings and communicated with an attorney there, who, under all the circumstances, recommended that he should appear and plead guilty. Accordingly on the day of hearing the attorney pleaded guilty, and the justices thereupon convicted the defendant and sentenced him to a term of imprisonment. From the affidavits it appeared that the defendant had given neither to his father nor to the attorney any authority whatever to plead guilty, nor did it appear that he was aware that his father intended to employ an attorney : Held, that as the defendant had not authorised any attorney to appear and plead guilty, the conviction aras bad.

Quare, whether it is competent to justices to convict

upon a plea of guilty by an attorney in the absence of the defendant?

THESE were two rules to quash two convictions which had been returned upon writs of certiorari.

It appeared that on the 31st Dec. 1869 an information was laid against the defendant before a justice of the borough of Hastings, for malicious injury to a window. the property of Dr. Blundell, to the amount of 158.; and that on the 4th Jan. following, another information was laid against him for malicious injury to a bell-pull, the property of Ellen Wynne, to the amount of 48. The summons issued upon the first information was served personally upon the defendant on the 1st Jan. 1870, at 114, Leadenhall-street, London, which summons was returnable on the 6th of the same month at MAG. CAS.-VOL. VII.

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the Town-hall, Hastings, and upon being so served he said, "I admit all that is in this summons except the word 'wilfully;' can't you take 51. and settle it?" He was then informed by the officer who served him that there would probably be another summons issued against him for another offence, and inquired if in that event he would consent to such summons being sent to him in London by post, so as to save the expense of a constable going to London on purpose to serve him with it? To which he consented, telling the officer to send it to him at that place. Accordingly, on the 4th Jan., such second summons was sent by post, addressed to the defendant at 114, Leadenhall-street, London, returnable upon the 6th of the same month. Upon the return day of the summonses (according to the affidavit of the clerk to the justices), and upon the cases being called on, Mr. Wm. Savery, of St. Leonards, an attorney, appeared on behalf of the defendant, and on the information being read over, he stated that the defendant was unable to attend by reason of a serious illness; that he had a medical certificate which the defendant's father, who was present, could prove, and that his son, the defendant, was unable to travel, but that he, the said William Savery, was instructed to and would, on behalf of the said Charles Aves, plead guilty to both charges, and he expressed a hope that the justices would not require his personal attendance; that after some discussion the justices determined to proceed; that the said William Savery, in the name and on behalf of the said Charles Aves and as his attorney, and also in the presence of the person whom he represented as the father of the said defendant, then formally pleaded "guilty" to both charges without any objection on the part of the said father; that a short statement of the facts having been made to the bench by the superintendent of police, Mr. Savery addressed the bench in mitigation of punishment, and ultimately the bench convicted the defendant upon both informations, and directed him to be imprisoned in the house of correction at Lewes for fourteen days in respect of the conviction for damaging the bellpull, and passed a like sentence of seven days for damaging the window, to commence at the expira

tion of the former sentence.

B

The rules in the present case were obtained upon the affidavits of Mr. Savery, Mr. Edward Leopold Aves, and the defendant. Mr. Savery stated that he was instructed on the 5th Jan. 1870 by Mr. Edward Leopold Aves, the father of the defendant, without any communication, direct or indirect, otherwise than by the said father, in consequence of the ill health of the accused, whom he had never seen, and considering it a matter in which a fine would have been imposed, and also the age of the accused, and being the first offence, he advised that a plea of guilty should be pleaded, to which the said father assented; that he accordingly pleaded guilty to the said charges; that when the case was called on no evidence was given in support of the complaints, and that if he had thought that imprisonment would have been inflicted, he would have applied for an adjournment of the hearing, so that the accused might have instructed him personally as to the real facts of the case. Mr. Edward Leopold Aves, the father of the defendant, stated that previous to instructing Mr. Savery he conferred with his son, a youth of nineteen years only, as to the charge made for breaking the window, and to the best of his belief he did not confer with him as to the other charge, and he was not aware that he was ever served with a summons for that complaint; that his son was then lying dangerously ill at his house in Greenwich, in Kent; that the result of such conversation was that compensation should be made, his son having admitted that he did the injury to the window, although he denied having done it maliciously or intentionally; that he accordingly proceeded to Hastings on the 5th Jan. 1870, his son continuing too ill safely to undergo so long a journey, and that in the evening he saw Mr. Savery, and that after some discussion Mr. Savery thought that, looking at the age of the lad, the period of the year, and the first offence, that a fine only would be imposed, advised a plea of guilty; that he acceded to is advice, and Mr. Savery pleaded guilty accordingly, but excepting as to be inferred from general conversation between a father and his child, he never had any authority to plead guilty, nor had he in consequence of the illness of his son that full opportunity of discussing his guilt or innocence that he otherwise should have had.

The defendant himself in his affidavit stated that only one summons was served upon him, or came to his knowledge, namely, that for the injury to the window; that he did not authorise Mr. Savery, or any other person, to appear or to plead on his behalf to that or any other summons, and that he never in any way communicated with the said Mr. Savery, and that he did not give anyone any authority to appear or plead for him to the said summons or information before the said magistrates; and further, that at the time of the hearing of the said complaint, and for some days previous, he was confined to his bed with fever, and too ill to give any authority or instructions on the subject, and did not in fact do so.

This application was made upon the three following grounds-First, that upon a proper construction of the 11 & 12 Vict. c. 43, s. 13, justices may proceed ex parte in the absence of the defendant, or if he appears by counsel or attorney they may proceed to hear the case, but that they can have no authority to adjudicate upon a plea of guilty, unless pleaded by the defendant in person; secondly, that an infant cannot appoint or appear

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by an attorney; thirdly, that upon the facts as disclosed by the affidavits the defendant had given no authority to any attorney to appear and plead for him.

As the judgment of the court proceeded upon the third ground only it will be unnecessary to give the arguments upon the other two.

Thesiger appeared in support of the convictions. --The father would seem to have the authority from his son to act for him. He knew that his father was going to Hastings to do the best he could, and he does not say in express terms that he never authorised his father to act for him. The father and the attorney did the best they could, and, thinking that a plea of guilty would be advisable, it was pleaded accordingly.

Sir J. Karslake, Q.C., Woollett with him, appeared in support of the rule. The affidavits of Mr. Savery, the father and the son, go clearly to show that there was no authority from the son to appear and plead guilty. Mr. Savery had had no communication whatever with the defendant, and all that the father says is, "I conferred with my son, a youth of the age of nineteen years only, as to the charge made for breaking the window. The result of such conversation was that compensation should be made to Dr. Blundell, my son having admitted that he did injury to the window of that gentleman by breaking the window, although he denied having done it maliciously or intentionally." And further on he says, "But I say, excepting as is to be inferred from general conversation between a father and his child, I never had any authority to plead guilty, nor had, in consequence of the illness of my son, that full opportunity of discussing his guilt or innocence that I otherwise should have had." The affidavit of the son is most explicit and conclusive upon the subject. [MELLOR, J.-It seems that the first idea of pleading guilty came from the attorney. BLACKBURN, J.-If there was any authority at all, it was given to the father to go down to Hastings and do the best he could.] The son was quite ignorant as to what had been resolved upon by his father and the attorney.

COCKBURN, C. J.-When we look at the facts of the case it becomes quite unnecessary for us to express any opinion upon the very important legal points that have been discussed. I am very far from saying that a defendant and not appear may plead by an attorney; but without giving any opinion upon the law upon the subject, we are of opinion that the father had no authority to appear and plead. All that appears is, that he had some conversation with his son as to the charge of breaking the window whilst the son was lying ill, the son telling his father, "True it is I broke the window, but not intentionally, and there must be compensation." The father thereupon goes down to Hastings with the intention of coming to a settlement. He sees an attorney, who, under the circumstances, advises that a plea of guilty should be pleaded; and so it is arranged. Then, considering that the son says that he did not break the window intentionally, it can hardly be inferred that he authorised his father to employ an attorney, still less to plead guilty to an offence which might subject him to imprisonment. I think, therefore, that the facts fail to show that the father had any authority to employ an attorney.

BLACKBURN, J.-I am entirely of the same opinion. There is no doubt that upon the defendant failing to appear the justices may have pro