But I am informed that an erroneous impression of what I said has gone abroad, and that it has been supposed that I asserted that there was no right in any one to search a prisoner. I have not said so. It is often the duty of an officer to search a prisoner. If, for instance, a man is taken in the commission of a felony, he may be searched to see whether the stolen articles are in his possession, or whether he has any instrument of violence about him. I have never said that searching a prisoner was a forbidden act What I said applied to circumstances such as existed in the present case. If a tradesman be charged with an offence such as that with which the plaintiff in the present case was charged, and he appear by counsel and not in person and a warrant be issued against him, not charging him with any crime, but merely to make him appear in person, the act of searching him is contrary to law."

If, therefore, the accused has been deprived of his property upon his apprehension, an application should be made to the magistrate to order its restoration; and if it appears to the justice, after due consideration of the circumstances, that there is no connection between the subject matter of the charge and the property applied for, and that such property is not the produce of crimes which may form the subject of enquiry, he will act wisely in ordering it to be restored, provided, of course, that the property itself is not of a dangerous nature.

578.—Irregularity in Procuring Appearance. -No irregularity or defect in the substance or form of the summons or warrant, and no variance between the charge contained in the summons or warrant and the charge contained in the information, or between either and the evidence adduced on the part of the prosecution at the inquiry, shall affect the validity of any proceeding at or subsequent to the hearing.

This Article does away with all possibility of taking any technical objection to the information or complaint, or to the case as made out at the preliminary enquiry. If the evidence adduced tends to show the commission, by the accused, of an indictable offence— whether it be the same as, or different from, the one charged by the information or complaint-the magistrate is bound to proceed upon and examine the evidence adduced, and to either discharge

the accused-if he considers the evidence insufficient-or commit him for trial for the crime disclosed by such evidence-if he considers it sufficient.

579.—Adjournment, in Case of Variance.—If it appears to the justice that the person charged has been deceived or misled by any such variance in any summons or warrant, he may adjourn the hearing of the case to some future day, and in the meantime may remand such person, or admit him to bail as hereinafter mentioned.

580.--Procuring the Attendance of Witnesses.If it appears to the justice that any person, being or residing within the province is likely to give material evidence either for the prosecution or for the accused on such inquiry, he may issue a summons under his hand, requiring such person to appear before him at a time and place mentioned therein to give evidence respecting the charge, and to bring with him any documents in his possession or under his control relating thereto.

2. Such summons may be in the FORM K in SCHEDULE ONE, or to the like effect. (1)

581.-Service of Summons for Witness.--Every such summons shall be served by a constable or other peace officer upon the person to whom it is directed, either personally, or, if such person cannot conveniently be met with, by leaving it for him at his last or most usual place of abode with some inmate thereof apparently not under sixteen years of age.

See Art. 562, and notes and authorities thereon, at pp. 107, 108, ante, as to service of summons,

:

A witness, upon being served with the summons or with a subpena, cannot refuse to attend until his expenses are paid and it is not necessary, therefore, to tender him his expenses. (2)

582.-Warrant for Witness after Summons. If any one to whom such last-mentioned summons is directed does

(1) For Form K, see p. 229, post.

(2) R. v. James, 1 C. & P., 322; R. v. Cook, 1 C. & P., 321.

not appear at the time and place appointed thereby, and no just excuse is offered for such non-appearance, then (after proof upon oath that such summons has been served as aforesaid, or that the person to whom the summons is directed is keeping out of the way to avoid service), the justice, before whom such person ought to have appeared, being satisfied by proof on oath that he is likely to give material evidence, may issue a warrant under his hand to bring such person, at a time and place to be therein mentioned, before him or any other justice, in order to testify as aforesaid.

2. The warrant may be in the FORM L in SCHEDULE ONE, (1) or to the like effect. Such warrant may be executed anywhere within the territorial jurisdiction of the justice by whom it is issued, or, if necessary, endorsed as provided in section 565, and executed anywhere in the province but out of such jurisdiction.

3. If a person summoned as a witness under the provisions of this part is brought before a justice on a warrant issued in consequence of refusal to obey the summons, such person may be detained on such warrant before the justice who issued the summons, or before any other justice in and for the same territorial division who shall then be there, or in the common gaol, or any other place of confinement, or in the custody of the person having him in charge, with a view to secure his presence as a witness on the day fixed for the trial; or, in the discretion of the justice, such person may be released on recognizance, with or without sureties. conditioned for his appearance to give evidence as therein mentioned, and to answer for his default in not attending upon the said summons as for contempt; and the justice may, in a summary manner, examine into and dispose of the charge of contempt against such person, who, if found guilty thereof, may be fined or imprisoned, or both, such fine not to exceed twenty dollars, and such imprisonment to be in the common gaol, without hard labour, and not to exceed one month, and may also be ordered to pay the costs incident to the service and execution of the said summons and warrant and of his detention in custody. (The conviction under this section may be in the FORM PP in SCHEDULE ONE. (2)

(1) For Form L, see p. 230, post. For Form of Deposition that a person is a material witness, see "Additional Forms" at end of this chapter. (2) For Form PP, see Forms at end of Chapter X, post.

583.-Warrant for Witnesses in First Instance. -If the justice is satisfied by evidence, upon oath, that any person within the province, likely to give material evidence either for the prosecution or for the accused, will not attend to give evidence without being compelled so to do, then instead of issuing a summons, he may issue a warrant in the first instance. (1) Such warrant may be in the FORM MIN SCHEDULE ONE of the Code, (2) or to the like effect, and may be executed anywhere within the jurisdiction of such justice, or, if necessary, endorsed as provided in section. 565, and executed anywhere in the province but out of such jurisdiction.

584,—Procuring Attendance of Witnesses beyond the Province.—If there is reason to believe that any person residing anywhere in Canada, out of the province, and not being within the province, is likely to give material evidence either for the prosecution or for the accused, any judge of a superior court or a county court, on application therefor by the informant. or complainant, or the Attorney-General, or by the accused person or his solicitor or some person authorized by the accused, may cause a writ of subpoena to be issued under the seal of the court of which he is judge, requiring such person to appear before the justice before whom the inquiry is being held or is intended to be held, at a time and place mentioned therein, to give evidence respecting the charge and to bring with him any documents in his possession or under his control relating thereto,

2, Such subpoena shall be served personally upon the person to whom it is directed and an affidavit of such service by a person effecting the same. purporting to be made before a justice of the peace, shall be sufficient proof thereof.

3. If the person served with a subpoena, as provided by this section, does not appear at the time and place specified therein, and no just excuse is offered for his non-appearance, the justice holding the inquiry, after proof upon oath that the subpoena has been served, may issue a warrant under his hand directed to any constable or peace officer of the district, county or place where such person is, or

to all constables or peace officers in such district, county or place, directing them or any of them to arrest such person and bring him before the said justice or any other justice, at a time and place mentioned in such warrant, in order to testify as aforesaid.

4. The warrant may be in the FORM N IN SCHEDULE ONE. (1) or to the like effect. If necessary, it may be endorsed in the manner provided by section 565, and executed in a district, county or place other than the one therein mentioned.

Procuring Attendance of a Prisoner as a Witness. When the attendance of any person confined in any prison in Canada is required in any court of criminal jurisdiction in any case cognizable therein by indictment, the court before whom such prisoner is required to attend may, or any judge of such court, or of any superior court or county court may, before or during any such term or sittings at which the attendance of such person is required, make an order upon the warden or gaoler of the prison, or upon the sheriff or other person having the custody of such prisoner, to deliver such prisoner to the person named in such order to receive him and such person shall, at the time prescribed in such order, convey such prisoner to the place at which such person is required to attend, there to receive and obey such further order as to the said court seems meet. (Code, Art. 680.)

Taking Evidence, under Commission, of person Dangerously III.—Whenever it is made to appear at the instance of the crown, or of the prisoner or defendant, to the satisfaction of a judge of a superior court, or a judge of a county court having criminal jurisdiction, that any person who is dangerously ill, and who, in the opinion of some licensed medical practitioner, is not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, such judge may, by order under his hand, appoint a commissioner to take in writing the statement on oath or affirmation of such person.

Such commissioner shall take such statement and shall subscribe the same and add thereto the names of the persons, if any, present

(1) For Form N, see p. 232, post.