Clarke v McGuire

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 02 December 1908
• Court: King's Bench Division (Ireland)
• Date: 02 December 1908

Clarke, Appellant; M'Guire, Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1909.

Medical Act, 1858 (21 & 22 Vict. c. 90), s. 40 — Right of member of public to prosecute for offence — Case stated under 20 & 21 Vict. c. 43 — Service on opposite party — Practice.

Held, that the service was sufficient to give the Court jurisdiction to hear the case.

Case Stated under 20 & 21 Vict. c. 43.

At a Petty Sessions, held at Dungannon, county Tyrone, on the 23rd March, 1908, the respondent was charged on summons, on the complaint of the appellant, a law clerk, that he, on the 16th January, 1908, and on divers other occasions, at Dungannon, in the county of Tyrone, not then being a registered medical practitioner within the meaning of the Medical Act, 1858, and the Medical Act, 1886, and the Acts amending the same, and not being a person recognized by law as a physician, surgeon, licentiate in medicine and surgery, practitioner in medicine, or an apothecary, did unlawfully, wilfully, and falsely pretend to be, and take and use the name, title, addition, and description of, Licentiate of the Royal College of Surgeons in Ireland, Licentiate of the Royal College of Physicians in Edinburgh, Licentiate of the Royal College of Surgeons of England, Licentiate of the Apothecaries' Hall, Dublin; Licentiate in Midwifery, and Licentiate of the Royal College of Physicians, thereby implying that he was registered under the said Medical Acts of 1858 and 1886, and the Acts amending the same, and that he was recognized by law as a

physician and surgeon, licentiate in medicine and surgery, practitioner in medicine, and an apothecary, contrary to the statute 21 & 22 Vict. c. 90.

Upon the summons coming on for hearing, the parties being present, represented by their respective solicitors, the solicitor for the defendant objected to the summons being heard, upon the ground that the complainant was not entitled to prosecute under the Medical Act of 1858, the right to prosecute thereunder being vested solely in the General Council of Medical Education and Registration of the United Kingdom, inasmuch as the penalty to be recovered was payable to the treasurer of such Council. The majority of the magistrates adopted this view, and dismissed the complaint without prejudice, without going into the evidence.

On the 13th April, 1908, the solicitor for the complainant and appellant applied to the magistrates to state and sign a case. This application was made in the presence and hearing of the defendant, and was refused. The complainant's solicitor thereupon informed the magistrates, in the presence and hearing of the defendant, that an order of mandamus would be applied for, requiring them to state and sign such case, and that the complainant would, on obtaining such order, prosecute his appeal against the order dismissing the summons.

On the 5th May, 1908, a conditional order was obtained in the King's Bench Division, and subsequently, on the 11th June, 1908, was made absolute, ordering the magistrates to state a case; and the present case was accordingly stated, to determine whether the Justices were right in point of law in dismissing the summons.

Before the...