person summoned do not attend to give evidence, and no just excuse be offered for his neglect or refusal to attend, the justice then present, after proof on oath or affirmation of the summons having been served on such person, either personally, or by leaving it for him with some person at his last or most usual place of abode, may grant his warrant (L. 2), to bring him up to give evidence. Or if, before any summons is issued, evidence on oath or affirmation be given, to the satisfaction of the justice, that it is probable that such person will not attend to give evidence, without being compelled to do so, then, instead of issuing a summons, the justice may issue his warrant (L. 3) in the first instance. This is new; no warrant was hitherto allowed to be issued to compel the attendance of a witness, unless where a previous summons was disobeyed, and even in that case the legality of the practice was much doubted. There is another clause in this section also new, namely, that which enables the justice, before whom any such person shall appear, either in obedience to such summons, or upon being brought before him by virtue of the warrant, to commit (L. 4) him to the gaol or house of correction for any time not exceeding seven days, if he "refuse to be examined on oath or affirmation concerning the premises, or shall refuse to take the oath or affirmation, or, having taken such oath or affirmation, shall refuse to answer such questions concerning the premises, as shall then be put to him, without offering any just excuse for such refusal." It is objected (S.) that the power of summoning witnesses should not be confined to cases where the witness resides in the same county or district within which the justice has jurisdiction. But it was thought that it would be inconvenient to extend it, to give a justice of Northumberland a power to summon a witness from Cornwall. And as to giving justices a power of summary punishment for non-attendance, it would be an absurdity, and useless or worse. The crown office subpœna, which is not now, as formerly, expensive, can readily be adopted in all cases where this section does not apply. It is also objected (S.) that this power of summoning witnesses does not extend to the summoning of those on the part of the defendant. Now, it must be remarked that this proceeding before magistrates, in indictable cases, is ex parte; they have no right to balance the testimony on both sides, which would be in effect a trying of the case; all they have to do is to ascertain whether the evidence for the prosecution is sufficient to put the party on his trial. Therefore it is, that this Act gives no power to justices to summon the witnesses for the defendant; if they wish for witnesses at the trial, they may have the usual subpoena from the court. But where the defendant is upon his trial before justices out of sessions, as in the cases of convictions and orders,-there a power is given to the justices to summon his witnesses, as well as those of the prosecutor or complainant, by stat. 11 & 12 Vict. c. 43, s. 7, post. Whereas information hath been laid before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of · that A. B. [&c., as in the summons or warrant against the accused], and it hath been made to appear to me upon [oath] that you are likely to give material evidence for the [prosecution]: these are therefore to require you to be and to appear before me on next at o'clock in the forenoon at· or before such other justice or justices of the peace for the same county as may then be there, to testify what you shall know concerning the said charge so made against the said A. B. as aforesaid. Herein fail not. Given under my hand and seal, this the year of our Lord at. (L. 2.) day of in in the [county] aforesaid. J. S. (L. S.) Warrant where a Witness has not obeyed a Summons. To the constable of the said [county] of and to all other peace officers in Whereas information having been laid before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of - that A. B. [&c., as in the summons]; and it having been made to appear to [me] upon oath that E. F. of - [labourer] was likely to give material evidence for the prosecution, I did duly issue my summons to the said E. F., requiring him to be and appear before me on at —, or before such other justice or justices of the peace for the same county as might then be there, to testify what he should know respecting the said charge so made against the said A. B. as aforesaid: and whereas proof hath this day been made before me upon oath of such summons having been duly served upon the said E. F.: and whereas the said E. F. hath neglected to appear at the time and place appointed by the said summons, and no just excuse has been offered for such neglect: these are therefore to command you to bring and have the said E. F. before me on o'clock in the forenoon at, or before such_other justice or justices of the peace for the same [county] as may then at be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. Given under my hand and seal, this the year of our Lord day of, in at in the [county] aforesaid. J. S. (L. S.) (L. 3.) Warrant for a Witness in the first instance. To the constable of · the said [county] of and to all other peace officers in Whereas information hath been laid before the undersigned [one] of her Majesty's justices of the peace in and for the said [county] of that [&c. as in summons]; and it having been made to appear to [me] upon oath that E. F. of [labourer], is likely to give material evidence for the prosecution, and that it is probable that the said E. F. will not attend to give evidence without being compelled so to do; These are therefore to command you to bring and have the said E. F. before me on, at o'clock in the forenoon, or before such other justice or justices of the peace for the same [county] as may then be there, to testify what he shall know concerning the said charge so made against the said A. B. as aforesaid. at Given under my hand and seal, this day of —, in [county] aforesaid. J. S. (L. S.) Warrant of Commitment of a Witness for refusing to be sworn or to give Evidence. To the constable of - and to the keeper of the [house of correction] at in the said [county] of at " Whereas A. B. was lately charged before the undersigned, [one] of her Majesty's justices of the peace in and for the said [county] of for that [&c. as in the summons]; and it having been made to appear to [me] upon oath that E. F. of was likely to give material evidence for the prosecution, I duly issued my summons to the said E. F. requiring him to be and appear before me on· or before such other justice or justices of the peace as should then be there, to testify what he should know concerning the said charge so made against the said A. B. as aforesaid; and the said E. F. now appearing before me [or being brought before me by virtue of a warrant in that behalf, to testify as aforesaid], and being required to make oath or affirmation as a witness in that behalf, hath now refused so to do [or being duly sworn as a witness doth now refuse to answer certain questions concerning the premises which are here put to him], without Examination of witnesses. Post, p. 50. Upon oath or affirmation. offering any just excuse for such his refusal: These are there- at in XVII. And be it enacted, that in all cases where any 1 J. P. 287. person shall appear or be brought before any justice or justices of the peace charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended, with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall, in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (M.) on oath or affirmation of those who shall know the facts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same; and the justice or justices before whom any such witness shall appear to be examined as aforesaid shall, before such witness is examined, administer to such witness the usual oath or affirmation, which such justice or justices shall have full power and authority to do; and if upon the trial of the person so accused as first aforesaid it shall be proved, by the oath or affirmation of any credible witness, that any person whose deposition shall have been taken as aforesaid is J. P. 342. Depositions in what cases read, if the wit ness be dead 1 J. P. 289. dead, or so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the justice by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the justice purporting to sign the same. NOTE. It The statute in force upon this subject (7 Geo. 4, c. 64, ss. 2, 3) previously to the passing of this act, regulated the taking of examinations in all cases of felony, and of indictable misdemeanors, in separate sections; but there was no substantial difference between the one case and the other, and in practice the mode of proceeding was the same in all cases. was thought right, therefore, in the present act, to have but one rule of practice in all cases of indictable offences,-treason, felony, and misdemeanors,—whether committed in England, or on the high seas, or in places beyond the seas;—in all these cases the witnesses against the accused shall be examined on oath or affirmation in his presence, their depositions put into writing, and signed by them. It has been holden by the Criminal Appeal court, that under this section, the prisoner has a right to be present when any questions are asked of the witnesses on whose depositions he is to be committed to trial, and to compare their written deposition with their verbal statement; and therefore where after the evidence was taken before the magistrate, the witnesses went into a back office with the magistrate's clerk for the purpose of having their depositions more correctly made out, and then the clerk put some questions to them: the court held this to be illegal, although the depositions when completed were read over to the witnesses in the prisoner's presence, and he had a fuil opportunity to cross examine them. R. v. Cristopher et al., 14 Shaw's J. P. 83. This section provides that if afterwards, at the trial of the offender, the witness thus examined should be dead, or so ill as to be unable to travel, his deposition, if taken in the presence of the prisoner, so that he or his counsel or attorney had an opportunity of cross-examining him, may be read as evidence; and if purporting to be signed by the justice before whom it purports to have been taken, it shall be deemed primâ facie to d |