in an action brought upon an arrest made by virtue of it, it may appear to have been prior to such arrest.(e)

3d. It may be either in the name of the justice himself, or in the name of the people; though it is said the former is the most common, in practice.(f)

4th. It must be under the hand of the justice or magistrate who issues it. This is expressly required by statute, (g) and by the common law.(h) 5th. It may be under seal or not. At common law it has been said a seal was necessary. (i) But such does not seem to be the case. (k) In this state, by the express provision of the statute the warrant may be either with or without seal.(7)

6th. It should not be general, to apprehend all persons suspected, but should direct the officer to apprehend some particular individual; otherwise it will be void.(m)

7th. The name of the person to be apprehended should be accurately stated, if known; and must not be left in blank, to be filled up afterwards. (n) If the name inserted be not the right one, or be fictitious, merely, the arrest cannot be justified, even though the person arrested be the one intended; unless indeed he is known as well by the name in the warrant as by his true name. (o) But if the name of the party be unknown, the warrant may be issued against him by the best description the nature of the case will allow; as-" the body of a man whose name is unknown, but whose person is well known, and who is employed as the driver of cattle, wears a white hat and has lost his right eye."(p)

8th. The warrant must recite the accusation made by the complaint. This is required by statute. (q) At common law it was deemed rather discretionary than necessary to set out the accusation in the warrant, but the practice of doing so has been universally recommended. (r) It is stated in the marginal note to Atchinson v. Spencer, (s) by way of semble," that in no case is it indispensable that a warrant issued by a magis

(h) 2 Hawk. P. C. ch. 13, § 21. Hale's P. C. 577. 1 Chit. Cr. L. 38. 4 Black. Com. 290.

(i) 4 Black. Com. 290. 2 Hawk. P. C. ch. 13, § 21. 1 Hale's P. C. 577. (k) Willes' R. 411. Bull. N. P. C. 83. 1 Chit. Cr. L. 38.

(1) 2 R. S. 706, § 3.

(m) 4 Black. Com. 291. 1 Hale's P. C. 580. 1 Chit. Cr. L. 41, 42.

(n) 1 Chit. Cr. L. 39. 2 Hale's P. C. 114. Foster, 312.

(0) 8 East, 328. 6 Cowen, 456. 7 id. 332. 3 Wend. 350. 4 id. 555. 9 id. 320. 2 Taunt. R. 400.

(p) 1 Chit. Cr. L. 39, 40. 1 Hale's P. Č. 577.

(q) 2 R. S. 706, § 3.

(r) See 1 Chit. Cr. L. 41. 2 Hale's P. C. 111. 1 id. 580. Cro. Jac. 81. 2 Willes, 158. (s) 9 Wend. 62.

trate upon a criminal complaint, should state, upon its face, the offence charged." The decision there, however, was made under the act of 1813, for suppressing immorality, and the section in virtue of which the warrant spoken of was issued, is entirely silent respecting its form.(t) The court were consequently only called upon to declare and apply the common law, which is undoubtedly as stated. But the language of the revised statutes is "the justice shall issue his warrant, &c., reciting the accusation." In all warrants, therefore, issued for the apprehension of persons under that provision, it is undoubtedly the only safe course; and in the absence of authority we venture the opinion that it is indispensable to the validity of the warrant, that it should contain a recital of the accusation, or something equivalent to it. Not that the evidence given on the examination need be stated at length; but enough should appear on the face of it to inform the accused of the specific offence with which he stands charged, and the place where it was committed, so that he may know what preparations to make in order to meet it.(u)

That this is the true construction of the statute appears, moreover, we think, by a subsequent provision which requires, in respect to trials before courts of special sessions, that after the court are organized "the charge made against the defendant, as stated in the warrant of arrest or commitment shall be distinctly read to such defendant who shall be required to plead thereto." (v) If no charge is stated in the warrant, it would seem that the court, in that case, could not require the defendant to plead, and consequently would not be able to proceed.

In case the warrant is executed out of the county in which the magistrate resides, and where the offender may be bailed by a magistrate other than the one who issued it, if the offence be not punishable with death or imprisonment in the state prison, most clearly the warrant must show the nature of the offence, and the county or place where it was committed. For, in determining whether the offence is bailable such magistrate is, by the express terms of the statute, to be guided by the offence as "charged in the warrant."(w) And how, except by what shall appear on the face of the warrant, is he to ascertain, under the next section, (x) "the county where the offence shall be alleged to have been committed," so as to recognize the accused accordingly?

9th. The warrant must be properly directed. It may be directed to the sheriff exclusively, or to the constables of the county or of a particu

(t) See 2 R. L. 1813, 196, § 9.

(u) See 1 Chit. Cr. L. 42. 2 Wils.

158.

(v) 2 R. S. 712, § 7.

(w) Id. 706, § 7.
(x) Id. ib. § 8.

lar town. So it may be directed to the sheriff, and at the same time to any constable.(y) A warrant not directed to any particular person in office, is bad. (2) It has been decided, however, in Pennsylvania that a warrant directed by a justice of the peace "to constable," is well directed if it is executed by the proper constable of the district. (a)

It is usual, and perhaps in strictness, the most regular, for a justice of the peace to direct his warrant to a constable instead of the sheriff; for constables are, by the common law, regarded as the proper and known officers of a justice. (b) And Mr. Chitty has laid it down that in England, if an act of parliament direct that a justice shall issue a warrant, and do not state to whom it shall be directed, it must be directed to the constable, and not to the sheriff, unless such power be given by the act.(c)

The warrant may moreover be directed to some indifferent person, by name, who is no officer; for a justice may authorize any one to be his officer whom he pleases to make such; but no private person can be compelled to execute it, and hence it is better, in general, to direct it to an officer. (d)

In England, much nicety was formerly required in the direction of warrants. Until the time of Geo. 4th constables there could not act for the whole county, but were regarded as mere parish officers, and were confined, in the execution of process, to the particular precincts for which they were respectively appointed. Hence, though a warrant might be directed to the constables of a county, yet no constable could execute it out of his own parish. And if a warrant was directed to a constable of a given parish, by his name of office, he could not execute it out of his parish. But if it were directed to him by his personal name, then he took an authority co-extensive in point of territory with that of him who conferred it. (e) But in this state it is otherwise; and if a warrant be directed to any constable of the county, it may be executed by a constable of any town in any part of the county. So if it be directed to the constables of a particular town, they are compellable to serve it any other part of the county. For constables, under our law, can hardly be said to be town officers except as regards their tenure of office. They have the same right to execute process in every part of the county as in the

(y) 1 East P. C. 320. 1 Chit. Cr. L. 49. Chit. Cr. L. 38. 1 Hale's P. C. 581. 2 (z) Addis. 376. id. 110, 111. 1 Salk. 347. 3 Wend. 350.

(a) 6 Binn. 123. (b) 1 Salk. 381.

(c) 1 Chit. Cr. L. 38. 2 Ld. Raym. 1192. 1 Salk. 381, S. C.

(d) 2 Hawk. P. C. ch. 13, § 27.

1

(e) 1 Barn. & Cress. 288. 2 Dow. & Ryl. 444. 1 Salk. 176. 1 Chit. Cr. L. 38. 1 Burn's, J. 105. 2 Ld. Raym. 1296.

town in which they were chosen and where they reside. In this respect their territorial jurisdiction is co-extensive with that of the sheriff. (ƒ)

10th. Return of the warrant.] The warrant of a magistrate is not returnable at any particular time; and it continues in force until it is fully executed and obeyed.(g) It does not state any precise time when the party is to be brought before the magistrate for examination. This is never done in any warrant whatever. Nor is it possible to do it without manifest injury to the party; for if a distant or any period should be limited, he must remain in custody during all the time between the issuing of the warrant and the day limited for its return; whereas, he is entitled to be discharged the first day, if he is innocent. (h) The law has fixed a time; for, by statute, the warrant must be made returnable forthwith. (i) The officer is therefore bound to carry the party accused before the magistrate immediately; and if he delay so to do, it is contrary to the duties of his office.(k)

11th. The warrant must command the officer, to whom it is directed, to bring the accused before the magistrate who issued it, to be dealt with according to law.(1) If the warrant be to obtain sureties of the peace, the command must be to bring the party before the magistrate who issued it, omitting the words, to be dealt with according to law. (m) At common law, the warrant might be general, to bring the party before any justice of the peace of the county, or special, to bring him before the justice who granted it. If it were general, the election of thể magistrate before whom the accused should be taken, lay with the arresting officer exclusively.(n)

12th. Endorsing or backing warrants.] Warrants issued by either of the officers who are authorized by statute, (o) to issue warrants of arrest, may be executed in any part of the state; except such as are issued by any assistant justice in New-York, or by any alderman or justice of the peace. Warrants issued by any such assistant justice, alderman, or justice cannot be executed out of the county within which they are officers, unless endorsed in the following manner:

If the person against whom any warrant granted by any such alderman or justice shall be issued, shall escape, or be in any other county out of the jurisdiction of such alderman or justice, it shall be the duty of

(f) 6 Cowen, 647, 8. 9 Wend. 319, 323.

(g) Peake's Rep. 234. (h) Davis' Just. 27.

(i) 2 R. S. 706, § 3.

(k) 1 Chit. Cr. L. 40. 8 T. R. 110. Fost. 143. 4 Black. Com. 291, n.

(1) 2 R. S. 706, 3.

(m) Id. 704, § 3.

(n) 1 Chit. Cr. L. 39. 2 Hawk. P. C. ch. 13, § 26. 1 Hale's P. C. 582. 2 id. 112. 4 Black. Com. 291.

(0) 2 R. S. 706, § 1. Id. 704, § 1.

any justice of the peace or other officer above named, within the county where such offender shall be, or shall be suspected to be, upon proof of the hand-writing of the magistrate issuing the warrant, to endorse his name on the same; and thereupon the person bringing the warrant, or any other officer to whom it may have been directed, may arrest the offender in the county where the warrant was endorsed.(p)

The practice of backing warrants has prevailed in England for a long time; at first without law, but it was at last authorized by statute. (q) It is said, that formerly there ought to have been a fresh warrant in every fresh county ;(r) but this cannot now be necessary.

The statute requires that the magistrate, in backing a warrant, shall merely endorse his name on the same. Within the strict letter of the statute, therefore, it does not seem necessary that the justice should write any thing upon the warrant except his name-not even his addition, of justice of the peace. Upon principle, however, and in analogy to the formalities required in issuing original process, an endorsement of this nature, which is to give the process new vitality, ought to show upon its face that it was made by a person having authority to make it; in order to justify the officer in executing it. And for the same reason, as well as for the sake of convenience, and to avoid mistakes, it would doubtless be advisable for the justice to write a short endorsement upon the warrant, reciting that proof had been made to him on oath, that the name of the justice subscribed to the warrant is the hand-writing of the person issuing the same; and authorizing the proper officers to execute such warrant within his county.(s)

No magistrate is liable to any indictment, or action for having endorsed any warrant pursuant to the above provisions of the statute, although it should afterwards appear that such warrant was illegally or improperly issued.(t)

III. ARRESTS; AND THE EXECUTION AND RETURN OF PROCESS.

An arrest, in criminal cases, is the apprehending or detaining a person in order that he may be forthcoming to answer to a crime alleged against him, or of which he is suspected to be guilty.(u)

Who is liable to arrest.] To this arrest all persons, without distinction, are liable when accused of a capital or other offences.(v) The exemp