evidence. made, or security given, to a prosecutor without leave of the court, by way of compromise, is invalid. (g) Recognizance to When a charge is made before a magistrate he may prosecute or give bind over the party making the charge to prosecute and give evidence, and also all who can give material evidence; and, on their obstinate refusal, may commit them. (h) A married woman is incapable of entering into a recognizance; but if she altogether refuse to appear at the sessions, and to find sureties for such appearance when such appearance is essential to the conviction of an offender, she may be committed. (i) The proper course, where a married woman is a material witness, is to bind over her husband, or other competent person, as surety for her appearance. The following is the form of the recognizance to be adapted to the case of a prosecutor or witness: Recognizance to County ofBe it remembered, that on the day of prosecute, &c. to wit. in the year of our Lord A. B. of- in the county of -labourer, (or as the proper addition is) came personally before me, W. D. Esquire, one of his Majesty's justices of the peace, in and for the county of aforesaid, and acknowledged himself to be indebted to our said Sovereign Lord the King in the sum of l—— of good and lawful money of Great Britain, to be levied of his goods and chattels, lands and tenements, by way of recognizance to his said Majesty's use, upon condition that if the above bounden A. B. shall personally appear at the next General (or General Quarter) Session of the peace, to be holden in and for the said county at and then and there prefer a bill of indictment against C. D. late of hatter, (or as the proper addition is) and shall then and there give evidence concerning, (or in the case of a witness only, shall give evidence concerning) the same to the Jurors, who shall enquire thereof on the part of our said Lord the King, and not depart without leave of the court, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged before me the day and year aforesaid. W.D. day of in The following is the form of the recognizance taken from the party accused and his sureties when he is admitted to bail: Recognizance of County of· 1 Be it remembered that on the bail to appear to wit. in the year of our Lord - A. B. late of and answer to the county of· labourer, C. D. the elder, and C. D. the younger, indictment. both of - - in the county of - shoemakers, personally came before us, W. D. Esq. and the Rev. D. P. Clerk, two of his Majesty's justices of the peace in and for the county of - aforesaid, and severally and respectively acknowledged themselves to be indebted to our Sovereign Lord in the manner and form following, that is to say, the said A. B. in the sum of twenty pounds of good and lawful money of Great Britain, and the said C. D. the elder, and C. D. the younger, in the respective sums of ten pounds each, of like good and lawful monies, to be respectively levied of their goods and chattels, lands, and tenements, to the use of our said Sovereign Lord the King, his heirs and successors, if the said A. B. shall make default in the performance of the condition under-written. - Now the condition of this recognizance is such, that if the above bound A. B. do and shall personally appear before the justices of our said Sovereign Lord the King, assigned to keep the peace in and for the said county of and also to hear and determine divers felonies, trespasses, and other misdemeanors within the said county committed, at the next General (or General Quarter) Session of the peace to be holden in and for the said county of at in the same, then and there to answer our said Sovereign Lord the King, for and concerning the felonious taking and stealing a certain (mentioning the article) the property of X. Y., wherewith the said A. B. stands charged on suspicion before (the justice who committed the offender), and do and receive what by the court then and there shall be enjoined him, and shall not depart without the court without leave or license; then the above written recognizance shall be void, and of none effect, otherwise to remain in full force. Taken and acknowledged as above written before us, W. D. attested. To such recognizances the justices are to subscribe Recognizance, their names respectively; but the persons bound need not how to be set their names to it, for it is witnessed only by the record, and not by the party's seal. (k) They are matter of Is matter of record, so soon as they are taken and acknowledged, although not made up, but only entered in the books of the magistrate. (7) record. session. And every justice that shall take any recognizance To be certified for the keeping of the peace, shall certify the same to the to the next next session, that the party bound may be called; and if he make default, the same default shall be recorded, and the recognizance, with the record of the default, be sent and certified into the Chancery, King's Bench, or Exchequer." (m) It is now clearly settled, contrary to the opinion of Lord Coke, that, in every case of treason, felony, and actual breach of the peace, a magistrate may issue his warrant to bring the party before him, and may, after examination, commit or bind him over to appear, although no indictment has been found against him; (n) and notwithstanding some doubt entertained in more modern times, it may now be taken as law, that in every case of misdemeanor indictable at the sessions, and which sub (k) Dalt. J., c. 176. (1) Dalt. c. 168. (m) 3 Hen. 7. c. 1. (n) z Hale, 72, 108; Hawk. b. 2. c. 13. s. 18. Witnesses. jects the offender when convicted to corporal punishment, he may be arrested and held to bail in the first instance; and this has been holden proper in cases of seditious and blasphemous libel. (0) There are some misdemeanors for which this course is expressly authorized, as keeping a disorderly house, (p) and obtaining money under false pretences; (q) but it is not usual nor proper to arrest the party accused before an indictment is found against him, except in these instances, and in cases of felony, breach of the peace, or misdemeanors directly tending to produce great and immediate evil, or involving an attempt to commit a felony, unless there is strong reason to believe that the party accused intends to fly from justice. It is not usual for a justice to issue a warrant on a charge of perjury, conspiracy, or 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.(r) 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. These the justice may issue his warrant to bring 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, in the precedent here presented.(s) Butt v. Conant, 1 Brod. and Bingh. 548. 25 Geo. 2. c. 36. s. 6. 30 Geo. 2. c. 24. Vide post, as to Bench Warrants. 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 testimony. The 2 and 3 P. and M. extends only to examination for manslaughter and felony ; and no direct Whereas oath has been made before me, W. D. Esquire, one of his 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 offences committed, as the cuse 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. Given under my hand and seal at in the said county, the day of Warrant for. If the evidence be found by the justice on examination Contomacy. to be material, the witness must then be bound by recognizance, like the rest, to attend at the session of the peace, and give it to the court and juries there, in like form, varied only according to the circumstances of the offence; and if he refuse to enter into such recognizance, the justice may commit him to gaol; (t) wherein, if he obstinately continue till the session, he may be brought up to the court by writ of habeas corpus ad testificandum. (u) Lord Preston being committed by the Court of Quarter Session for contempt in refusing to be sworn to give evidence to the grand jury on an indictment of high treason, he was brought by habeas corpus into the Court of King's Bench; and Holt, Chief Justice, 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. (v) The process to bring before the grand jury or court such Subpoena, witnesses as have not been bound by recognizance to appear, whether on the part of the prosecution, or for the defendant, is by subpoena; which, whatever might have been the law in former times, is now to be obtained in all cases whatsoever, either for the prosecutor or the defendant; for the sessions, from the clerk of the peace, or from the crown office. (w) And the service of a subpœna issued out of any court of competent jurisdiction is declared to be equally good with service in the particular county authority seems to be given by any subsequent 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. Bennet v. Watson, 3 M. and S. 1. (u) 31 Car. 2. c. 2; 44 Geo. 3. c. 102. (v) Salk. 278. (w) 2 Wm. 3. c. 3; 1 Ann. c. 9; Hawk. b. 2. c. 46. Witness in prison. where the party is required to attend ; (x) and disobedience to it is punishable by the Court of King's Bench. In order to obtain the writ of habeas corpus ad testificandum, for a witness in prison, an affidavit must be made by the party applying, stating the confinement of the person whose evidence is wanted, that he is a material witness, that the trial cannot safely be proceeded in without his presence, and that it is about to take place at a certain time and place, with such other circumstances (if required) as may show the necessity for the application. It may be granted by any one of the judges of the superior courts in England and Ireland, and by those of the courts of Great Sessions in Wales and Chester respectively, to the extent of their respective jurisdictions. (y) It is to be served on the person in whose custody the party is detained. The form of a subpæna to give evidence before the Grand Jury at the Quarter Session. George the Third, by the grace of God, of the United Kingdom of Great Britain and Ireland, King, 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 misdemeanors, in the said county committed, at the General Quarter Sessions of the Peace, to be holden at in and for the said county, on Wednesday, the day of at the hour of in the forenoon of the 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 be to give evidence for the prosecution on the trial of an indictment, thus Or if the subpoena is to give evidence in an appeal, 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. |