private libel; and, of course, such a proceeding would be wholly improper in a case of nuisance, or other charge involving questions of right. In these cases, the usual and discreet practice is to prefer an indictment, on which, when found, process, as of right, must be awarded (h). A magistrate should not seal or issue any warrant in which a blank remains to be filled up (i); for if the process be defective in the frame of it, e. g. if there is a mistake in the name or addition of the person on whom it is ordered to be executed, or if the name of such person, or of the officer intended to execute it, is inserted (or interlined or altered) without authority, and after the (sealing or) issuing the process, or if the officer exceeds the limits of his authority, the killing him by the person whose liberty is thus invaded, will amount to no more than manslaughter (j). If the name of the offender is unknown, the warrant must describe him in the best manner the case will allow : e. g. as it seems, by any description of person, height, age, marks, &c. &c. (k). But, if after the magistrate has at any time signed a warrant, he, before issuing it, fills it up with the name of the party to be arrested, it is a regular proceeding (7), and killing the officer, who endeavours to execute it, is murder (m). Since the 5 G. IV. (h) Vide post, as to bench warrants. (i) See 2 Hale, 114; Dalt. c. 169; Burslem v. Fern, 2 Wils. 47. (j) Foster's Crown Law, 312; 1 Hale, 457. See per Lawrence, J., in Cole v. Hindson, 6 T. R. 236; In Housin v. Barrow, 6 T. R. 122 (1794), Lord Kenyon said he remembered a case of a serious nature arising from altering a warrant. A gentleman having obtained a warrant directed to a sheriff's officer to arrest his debtor, struck out the officer's name and inserted his own in its stead. He was afterwards shot by the defendant in arresting him, and the offence was held to be at most only manslaughter, the arrest being illegal. And see Annual Register for 1759, the case of one Stevenson, indicted at Chester assizes for the murder of Elcock, an attorney. The officer or other person to whom the warrant is directed, should himself be present at its execution, Barratt v. Price, 9 Bing. 566. (k) E. g." the body of a man, whose name is unknown, but whose person is well known, and who is employed as the driver of cattle, and wears a badge, No. 573," 1 Hale, 577. But where the warrant omitted even the Christian name of the individual to be taken, with out assigning any reason for the omis sion, or giving any more distinguishing particulars respecting him, than that he was son of a party named, the resisting the arrest thereon, and killing the person attempting to make it, was held not to be murder, R. v. Hood, 1 Mood. Cr. C. 281. N. B. The warrant directed the officer to take " Hood of B. in the parish of F. by whatsoever name he may be called or known, the son of Samuel Hood, to answer, &c." See R. v. Stockley, 1 East's P. C. 310. The party to be arrested is entitled to know by the warrant that the parties bearing it are authorized to execute it. See R. v. Weir, 1 B. & C. 288, per Bayley, J.; and 4 B. & A. 536; 6 B. & C. 164; 2 Taunt. 399. (1) Semble by the principle of recog. nition, Goodtitle v. Woodward, 3 B. & Ald. 689; Doe d. Mann v. Walters, 10 B. & Cr. 626; Doe d. Rhodes v. Robinson, 3 Bingh. (N. C.) 677; Doe v. Summersett, 1 B. & Adol. 138; Doe d. Jolliffe v. Syborn, 2 Esp. 677; R. v. Warwickshire (Justices), 1 N. & P. 153; 4 B. & Cr. 923, S. C. (m) Per Lord Kenyon in R. v. Winwick (Inhabitants), 8 T. R. 455; 2 Leach, C. C. 929; 1 Leach, 114; but c. 18, s. 6, a constable to whom a warrant is directed, not by name, but by description of his office (e. g. constable of W.), may execute it out of his own precinct, if the place where he so executes it, is within the jurisdiction of the magistrate who granted or backed it. Before that act he was not justified in executing a justice's warrant out of his own precinct, unless it was directed to him by name (n); and as at common law he was not compellable to execute it, though directed to him by name, out of his own precinct (o); so since the act he has a similar option as to warrants, whether directed to him by name or in his official capacity (p), for the act merely places warrants addressed to peace officers in their official character on the same footing as those addressed to them by name previously stood. The act is confined to warrants issued by justices of peace having the limited jurisdiction described in the act, and therefore does not apply to the warrant of a judge of the queen's bench (q). Quære, whether justices in quarter sessions who issue a bench warrant are judges of a court, or within the act as justices (r)? Witnesses.]-Having considered, then, how prosecutors and offenders are brought before the court, it only remains to notice the processes by which witnesses are compelled to attend. When any offender is brought before a justice by warrant, or otherwise, for felony, or breach of the peace, beside the informant, and any witness who may happen to be voluntarily present (and whom it has already been seen it is the duty of the examining justice to bind by recognizance to appear at the session), there may be others known to him, whose testimony may be necessary, or at least useful, on the occasion. The justice may issue his warrant to bring such persons before him to be examined touching the matter in question, in the following or the like form : but it is more common, in the first instance, to issue only a summons, which may be done either by a notice addressed to the person whose presence is desired, or by substituting the word summon for that of cause, as in the following precedent (s). quære, see 10 St. Tri. 462; East's P. C. c. 5, s. 87. The warrant must be sealed as well as signed by the justice, 2 Haw. C. B. s. 21; 2 Saund. 305, n. 13; unless the seal be dispensed with by any statute (e. g. 12 C. II. c. 24, s. 25), Padfield v. Cabell, Willes, 411. (n) R. v. Weir, 1 B. & Cr. 288; 2 D. & R. 444, S. C. (0) 2 Haw. c. 13, s. 27; Dalton, c. 192; 2 Hale, 110; 5 B. J. tit. Warrant. (p) Gimbert v. Coyney, 1 M'Clell. & Y. 469. (g) Gladwell v. Blake, 5 Tyr. 186; 1 C. M. & R. 636. (r) See per Lord Lyndhurst, C. B., 5 Tyr. 191. (8) See Dalton, c. 164. If the offence be neither a felony, nor a breach of the peace, there may be considerable doubt respecting the power of a justice to grant a warrant for the production of testi Whereas oath has been made before me, W. D., esquire, one of her majesty's justices of the peace in and for the said county, by P. Q. of· that the said P. Q. was lately robbed [or other offence committed, as the case may be] at — and that he hath good cause to believe, that X. X. of - is a material witness to prove by whom the said robbery was committed; these are therefore to require you to cause the said X. X. forthwith to come before me, to give such information and evidence as he knoweth concerning the said offence, that such further proceedings may be had therein as to the law doth appertain. of Given under my hand and seal at in the said county, the day Contumacy.]-If the magistrate, on examination, finds the evidence of the witness material, he should require him to enter into a recognizance to attend at the session of the peace, and testify to the court and jury. If the party refuses to enter into such recognizance, the justice may commit him to gaol (o); where, if he should obstinately continue till the session, he may be brought up to the court by writ of habeas corpus ad testificandum (p). If, being in court, he should obstinately refuse to be sworn, he may be committed for contempt, or a fine imposed upon him. Lord Preston being committed by a court of quarter sessions for contempt in refusing to be sworn to give evidence to the grand jury there on an indictment of high treason, was brought by habeas corpus into the court of king's bench; and Chief Justice Holt said it was a great contempt, and that had he been there, he would have fined him, and committed him till he paid the fine; but being otherwise, he was bailed (q). Subpoena.]-The process to bring before the grand jury or court such witnesses as have not been bound by recognizance to appear, whether on the part of the prosecution, or of the defendant, is by subpoena ad testificandum; which, whatever may have been the law in former times, is now to be obtained in all cases for either party, from the clerk of the peace, under the seal of the custos rotulorum, or from the crown office (r). This writ, when issued by the clerk mony, 2 Burn's J. by Chitty, 28th ed. 100. No authority seems to be given by any statute; and necessity cannot be pleaded for extending the power beyond the preservation of the public peace. For all other offences the subpoena of the clerk of the peace, previous to trial, appears amply sufficient to provide against failure of justice. (0) Ante, p. 123, 124; Bennet v. Watson, 3 M. & S. 1. (p) 31 C. II. c. 2; 44 G. III. c. 102. (q) Salk. 278; R. v. Lord Preston; as to this case, see ante, p. 84, note. (r) Hawk. B. 2, c. 46, s. 170, 171, of the peace, is at utmost only compulsory within the county where it is granted, and, therefore, if the witness lives beyond its limits, application must be made to the crown office, from whence it may issue to any part of England (s). This appears to be still law, notwithstanding that by 45 G. III. c. 92, s. 3, the service of every writ of subpoena upon any person in any one of the parts of the united kingdom requiring the appearance of such person to give evidence in any criminal prosecution in any other of the parts of the same (t), is made as effectual in law as if the same had been served in that part of the united kingdom where the person so served is required to appear; and the party disobeying it is liable to punishment by attachment in the court of queen's bench, as the highest court of criminal jurisdiction, and having power over all others. For that enactment only extends to give to a subpoena having validity throughout either England, Scotland, or Ireland, taken generally, the same validity in either of those parts of the united kingdom; and contemplates such a subpœna as would be enforced by one of the courts having competent jurisdiction to compel the attendance of a witness in any county or place within either of those parts (u); so that it is by far the more effectual and advisable course to sue out a subpoena from the crown office, in order to bring the witness within reach of attachment from the court of queen's bench, in case of his making default in his attendance at the sessions (v). For disobedience to a subpoena from quarter sessions is not that manifest contempt for the authority of the court of queen's bench, which similar neglect of a crown office subpoena is, and accordingly that court has not power to punish the witness for disobedience to a subpœna issued by the clerk of the peace, (though served within the jurisdiction of the same quarter sessions), either by its general authority, or by virtue of the above statute (w): whereas disobedience to its own subpœna issued from the crown office, will be punished by attachment (x). In a case which is of a criminal nature, even in form (e. g., indictment for stopping a way), a person present 172; 1 Chit. Crim. L. 320, 1st edit.; 7 W. III. c. 3, s. 7; 1 Ann. c. 9. ($) Cro. Circ. Comp. 9, 21. () Viz., England, Scotland, and Ireland, R. v. Brownell, 1 Adol. & E. 598. (u) Ibid. (v) 2 Nolan, 541, note (1) 4th ed. (w) Ibid. (x) See R. v. Ring, 8 T. R. 585; R. v. Booth, Hil. 45 G. III. 2 Nol. P. K in court, if called as a witness, is bound to be sworn and give evidence, though not subpoenaed (y). The form of a subpœna to give evidence before the Grand Jury at the Quarter Sessions. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to A. B. C. D. E. F. and G. H. [not putting more than four in one subpœna], greeting: we command you, that all and singular business and excuses being laid aside, you, and every one of you, be, and personally appear in your own proper persons, before our justices assigned to keep the peace, in and for our county of and also to hear and determine divers felonies, trespasses, and other misdemeanours, in the said county committed, at the general quarter [or general] sessions of the peace, to be holden at in and for the said in the forenoon of the day, the day of at the hour of county, on same day, to testify the truth, and give evidence before the grand inquest touching a bill of indictment to be preferred against in a case of trespass and assault. Or, if it is to give evidence for the prosecution on the trial of an indictment, thus On our behalf against If for the defendant, thus, Between us and in a case of trespass and assault. in a case of trespass and assault. Or if the subpoena is to give evidence in an appeal against an order of removal, thus In a certain appeal now depending between the churchwardens and overseers of the poor of the parish of A. appellants, and the churchwardens and overseers of the poor of the parish of B. respondents, touching and concerning the removal of C. D. from the said parish of B. to the said parish of A. The close of the subpoena, in either case, is this And this you, or any of you, are by no means to omit, under the penalty upon each of you of 100%. Witness - aforesaid, the year of our reign. at day of - in the Y. Z. Clerk of the Peace. Subpoena duces tecum.]-If the party subpoenaed is supposed to be in possession of any documents necessary to the case of the party on whose behalf he will be called, a special clause, called a duces tecum, is to be inserted, requiring him to bring such documents with him. This subpoena is made out by the clerk of the peace, or by the master (y) R. v. Sadler and others, 4 C. & P. 218, tried by certiorari at nisi prius, Littledale, J. |