dant; and this he shall in no wise omit, under the penalty, by law, in that case made and provided. Given under my hand, at the county of the in the year

day of

J. P.

This may be directed to the constable, or other officer, of any county, where the witness resides. (See 2 Rev. Code, ch 88, sect. 9, p. 116.) The act of 1808, ch. 11, p. 20, 21, directs that warrants and executions shall alone be directed to a constable; but it is silent as to subpænas for witnesses.

In exercising the jurisdiction granted by the above act, much must depend upon the discretion of the magistrate. He should, however, always have it impressed upon his mind, that too much circumspection cannot be observed in producing a fair and impartial trial. Sufficient notice of the time and place appointed for the hearing of the parties should always be given, and process awarded to summon any witnesses which might be required.

(M) Execution for the plaintiff in debt.

The commonwealth of Virginia to the constable of trict, in the county of

greeting.

dis

You are hereby commanded that of the goods and chattels of A D, in your district, you cause to be made the sum of

C, lately before

which B

one of the commonwealth's justices of the peace for the county of hath recovered against him for debt; also cents, which to the said B C, before the same justice, were adjudged for his costs, in that suit expended, whereof the said AD is convict; and that you have the said debt and costs before the said justice, the next, to render unto the said BC, of the debt and costs aforesaid; and have then there this writ. Witness the said at the county of

day of

and in the year

the

day of of the commonwealth.

The return day of an execution shall not exceed sixty days, from its date. See 2 Rev. Code, ch. 88, sect 10, p. 116.

For the manner of advertising property taken under execution, see title "CONSTABLE."

The execution may be directed to the constable of any county where the party resides. See 2 Rev. Code, ch. 88, sect. 9, p. 116.

(N) Execution for the plaintiff in detinue or trover.

The commonwealth of Virginia to the constable of

district,

You are hereby commanded that of the goods and chattels of AT, in your district, you cause to be made the sum of

lately before

which B P;

one of the commonwealth's justices of the peace for the county of hath recovered against him, for damages, for the detention of &c. (describe the property, or, "damages," in a certain suit for trover and conversion); also

cents, which

to the said BP, before the same justice, were adjudged for his costs, in that suit expended, whereof the said A T is convict; and that you have the said damages and costs before the said justice, the

day of

next, to render to the said B P of the damages and Witness &c..

costs aforesaid; and have then there this writ.

When the execution is founded on a judgment upon a penal statute, it must pursue the act of assembly inflicting the penalty, and state whether it be payable to the informer, or to the informer and the overseers of the poor, or the county, &c.

For more concerning executions, see title EXECUTION.

(0) For the defendant, for costs.

(As before to this mark, then say)

cents, which to A D, lately before one of the commonwealth's justices of the peace for the said county, were adjudged for his costs about his defence, in a certain complaint at the suit of B C expended, whereof he is convicted; and that you have &c. (as before) to render unto the said A D, of his costs aforesaid.

II. OF WARRANTS IN CRIMINAL CASES.

As to arrests without warrant, and the manner of executing them, see ARREST.

For a warrant to search for stolen goods, see SEARCH WARRANT. I. For what causes it may be granted. II. What is to be done previous to the granting of it. III. How far it is grantable on suspicion. IV. The form of it.

I. FOR WHAT CAUSES IT MAY BE GRANTED.

There seems to be no doubt, but that a warrant may be lawfully granted by any justice, for treason, felony, or any other offence against the peace. Also it seems clear, that wherever a statute gives to any one justice a jurisdiction over any offence, or a power to require any person to do a certain thing ordained by such statute, it impliedly gives a power to every such justice to make out a warrant to bring before him any person accused of such offence, or compellable to do the thing ordained by such statute, for it cannot but be intended, that a statute giving a person jurisdiction over an offence, doth mean also to give him the power incident to all courts, of compelling the party to come before him. Haw. B. 2, c. 13, sect. 15..

But in cases where the commonwealth is no party, or where no corporal punishment is appointed, it seemeth that a summons is the more proper process; and for default of appearance the justice may proceed. 4 Burn's Just. 367. (15th edit.)

II. WHAT IS TO BE DONE PREVIOUS TO THE GRANTING OF IT.

It is convenient, though not always necessary, that the party who demands the warrant be first examined on oath, touching the whole matter whereupon the warrant is demanded, and that examination put in writing. 1 Hale 582. 2 Hale 111.

Or at least it is safe to bind him over to give evidence, lest afterwards, when the offender shall be apprehended, or shall surrender himself, the party that procured the warrant be gone. Dalt. c. 169.

III. HOW FAR IT IS GRANTABLE ON SUSPICION.

It is the opinion of Hale and Hawkins, contrary to lord Coke (4 Inst. 177.) that warrants for felony may be granted by a justice of the peace, on probable grounds of suspicion. Yet that they should be well satisfied of the reasonableness of the accusation. See 2 Hale 107, 410. 1 Hale 597. Haw. B. 2, ch. 13, sect. 18.

But a general warrant, upon a complaint of robbery, to apprehend all persons suspected, and to bring them before a justice, hath been ruled void; and false imprisoment lies against him that issues such a warrant. 1 Hale 580. 2 Hale 112.

So, a warrant to seize papers, in case of a seditious libel, has been held to be illegal. 11 State Tr. 321. 3 Haw. (7th edit.) 180.

IV. THE FORM OF IT.

It seems agreed, that the place at which the warrant is made need not be expressed in it, though it must be alledged in pleading, and the county must be set forth in the margin. See Dalt. c. 169. 2 Hale 111. Haw B. 2, c. 13, sect. 23.

It may be directed to the sheriff, constable, or to any indifferent person by name, who is no officer; for the justice may authorise any one to be his officer, whom he pleases to make such; yet it is most adviseable to direct it to the constable of the precinct wherein it is to be executed, for that no other constable, and a fortiori no private person, is compellable to serve it. Dalt. c 169. 2 Hale 110. Haw. B 2, c. 13, sect. 27.

But in the case of an act of assembly, it is said, that if the act directeth that a justice shall grant a warrant, and doth not say to whom it shall be directed, by consequence of law it must be directed to the constable, and it cannot be directed to the sheriff, unless such power is given in the act. L. Raym. 1192. 2 Salk. 381.

Warrants may be variously styled, as, 1. In the name of the commonwealth, under the teste of the justice; 2. In the name of the justice himself; or, 3. Without any style, but only under the hand and seal of the justice.

1. In the name of the commonwealth.

county, to wit.

The commonwealth of Virginia, to the sheriff of the said county, to the constable of in the said county, and to all and singular the commonwealth's officers of justice in the said county, greeting: Whereas A J, of hath this day come before me, J P, a justice of the peace for the county aforesaid, and hath made oath, that A O, of &c. (here set forth the substance of the accusation.) These are therefore to require you to apprehend the said A O, and bring him before me, or some other justice of the peace for the said

599

to answer the premises, and further to be dealt with Given under my hand and seal, &c.

Warrants are seldom issued, in this state, either in the name of the commonwealth or of the justice, but only under the hand and seal of the justice, as in that part of the above form printed in italics.

Regularly the warrant, especially if it be for the peace or good behaviour, or the like, where sureties are to be found or required, ought to contain the special cause and matter whereupon it is granted, to the intent that the party upon whom it is to be served may provide his sureties ready, and take them with him to the justice to be bound for him; but if the warrant be for treason, murder, or felony, or other capital offence, or for great conspiracies, rebellious assemblies, or the like, it hath been said, that it needeth not to contain any special cause, but the warrant of the justice may be to bring the party before him, to make answer to such things or matters generally, as shall be objected against him on the commonwealth's behalf. Dalt. c. 169. 2 Hale 111. Haw. B. 2, c. 13, sect. 25.

But Mr. Lambard says, every warrant made by a justice of the peace ought to comprehend the special matter upon which it proceedeth, even as all the commonwealth's writs do bear their proper cause in their mouth with them; and as for the form that is commonly used, to answer to such things as shall be objected, and such like, they are not fetched out of the old learned precedents, but lately brought in by such as either knew not, or cared not, what they writ. Lamb. 87.

The warrant ought regularly to mention the name of the party to be attached, and must not be left in general, or with blanks, to be filled up by the party afterwards. 2 Hale 114. Dalt. c. 169.

The warrant may issue to bring the party before the justice who granted the warrant specially, and then the officer is bound to bring him before the same justice; but if the warrant be to bring him before any justice, then it is in the election of the officer to bring him before what justice of the county he thinks fit, and not in the election of the prisoner. 1 Hule 582. 2 Hale 112.

It ought to set forth the year and day in which it is made, that in an action brought upon an arrest by virtue of it, it may appear to have been prior to such arrest; and also, in case where a statute directeth the prosecution to be within such a time, that it may appear that the prosecution is commenced within such time limited. Likewise, where a penalty is given to the poor of the parish where the offence shall be committed, or the like, it ought to specify the place where the offence was committed. Haw. B. 2, c. 13, sect. 22.

Finally, it ought to be under the hand and seal of the justice, who makes it out. Ibid. sect. 21.

But it seems that this must be understood of warrants issued for offences at common law. For where a statute directs, that a magistrate shall bring the party before him by warrant under his hand, it does not appear necessary that it should be under seal.

WEIGHTS AND MEASURES.

THE regulation of the standard of weights and measures being among the powers granted to congress, the legislature of this commonwealth, in the year 1792, passed a temporary act, continuing the act of 1734, for the regulation of weights and measures, till congress shall have made provision on the subject. See 1 Rev. Code, ch. 140, p. 277.

Congress not having as yet legislated on the subjcot, it may be necessary to observe, that the act of 1734 directs, that there shall be one weight, one measure, one yard, and one ell, according the standard of the Exchequer in England; and that the county courts shall provide brass weights of half hundreds, quarterns, half quarterns, seven pounds, four pounds, two pounds, and one pound; and measures of bushel, half bushel, peck, and half peck, dry measure; and gallon, pottle, quart, and pint, of wine measure, with proper scales for the weights; under penalty, by each justice, of five shillings for every month such weights and measures shall be wanting, recoverable by action of debt or information in any court of record. The said standard weights and measures to be kept by some person to be appointed by the court, to whom all persons may resort to try their weights and measures; who is to seal them, when tried, by a seal to be provided by the county; and who shall be entitled to a fee of one shilling for each steelyard and certificate, and four pence for each weight and measure, and sealing the same. The penalty for selling or buying by other than standard weights and measures, is twenty shillings for every offence. Provided, that the parties may, by agreement, use steelyards which have been tried and agree with the standard. See Laws Virg. edit. 1752, p. 135; and edit. 1769, p. 96.

WIFE.

1. HUSBAND and wife being considered as one person in law, there are many points of useful information arising from that principle, which deserve to be noticed.

2. Generally, husband and wife cannot be witnesses either for or against one another. See title EVIDENCE, p. 240.