the town of Tilton, which was created out of Sanbornton, our answer is, that, if so, both the original complaint and this indictment must show such action of the town of Sanbornton, with an averment that they did so become the law of Tilton; and, as a fact, we claim that the proceedings of the town of Sanbornton were too defective and irregular to justify any action under them, and that a law of this character, if. properly adopted by Sanbornton, did not, because Tilton was created out of it, become the law of Tilton. There is nothing in the act which warrants any such interpretation. But we suppose that, as in the court below, the State will claim that although Tilton never attempted to take any action in the matter, and assuming that the proceedings in Sanbornton were too defective and irregular to make it the law of that town, section 5 was in force in both towns by virtue of the last clause of section 17. Such a construction is enough to muddle all human understanding, and results, among others, in the following swarm of legal absurdities :

1. That non-action is action — adoption.

2. That rejection is adoption.

3. That Tilton adopted it because it did not adopt it.

4. That Sanbornton adopted it because it attempted to do so, and failed in consequence of a defect in its proceedings.

5. That the chapter was in force in Tilton by virtue of a failure to adopt it in Sanbornton.

6. That the grant of a power to adopt carries with it no right or power to reject.

7. That a grant of a power to adopt is of itself an adoption.

Our first answer is, that whatever may be the law in these respects, the State should have spread on the face of the original complaint and indictment the facts which made it an offence in Tilton, so that the respondent might be enabled to make his defence.

Our next answer is, that section 17 was merely a condensation of section 11, title 61, act of June 28, 1828, pages 275-6 ; Laws of 1830, sec. 10, chapter 114, page 224 R. S.; and section 12, chapter 120, page 267, C. S.

The court will see that there is a wrong citation in the margin of section 17, G. S. It is apparent that the reference is to section 12, chapter 320, O. S., and not to section 12, chapter 119, O. S. It is equally apparent that section 10, chapter 114, R. S., and section 12, chapter 120, O. S., are both incorrect in citation. They both provide that they shall be in force in towns that see fit to adopt them, and those which have adopted any of the provisions of another act of June 23, 1823: whereas, an examination of the original laws put in pamphlet will show that a swarm of acts were approved June 26, 1823, and that only one act was approved June 23, 1823, which had no relation whatever to the matters in hand; while the act referred to by description of its title, with two others, was approved June 28, 1823. Neither the commissioners nor the legislature, in the General Statutes, intended to give to towns the naked right to adopt, with no right to reject. See section 3, chapter 235, G. S.

They did not contemplate any such mockery or child’s play as to provide that, whether a town called a meeting or not, or voted to adopt or reject, action and non-action had alike but one legal result, viz., that the provisions would be the law of the town in any event.

The truth and the fact is, that section 17 was intended to provide that the provisions of that chapter should be the law of a town in only two cases: First, where any town, at a meeting properly called and holden, might vote to adopt them thereafter, if it saw fit. Second, where any town had, at any time before the General Statutes, adopted any of the provisions of the Portsmouth act, or the other acts which had followed in its train. Any other construction would blot out section 17. No other construction can reasonably be put upon it.

The case stands, in our view, in this respect, precisely as if the legislature had provided that it should be a like offence against the police of towns, if a man in the compact part thereof should make up faces at the moon, provided that such town, at a meeting duly called and holden, should vote to adopt this as the law, but not otherwise, and where the town had taken- no action whatever. The question, then, would stand exactly as if no such statute existed. The complaint and warrant thereon would be for an alleged offence, when neither in fact nor in law any offence could have existed, and would be no more protection to an officer than blank paper.

VII. A criminal warrant is a judicial writ, and must be under the hand and seal of a magistrate ; otherwise it is not lawful process, and cannot protect the officer. It would be a strange state of the law indeed, that, while the officer is without protection in serving a civil writ issued by a justice of the peace, for a penny, because it was not under seal, he would be protected in serving a warrant, not under seal, for a crime the punishment of which was, until lately, death.- But this indictment does not aver that the original process was under the hand and seal of the justice; nor is there any averment which in legal effect is equivalent thereto. The word “ issued ” alone can have no such effect, for that word cannot be construed as an averment that it was granted by a court of competent jurisdiction ; much less can it be held to aver that it was “ lawfully ” granted by such court. The standard phraseology of the books is, “ duly and legally issued,” “ the same being,” “ a lawful process,” “ legal and judicial process,” or “ duly issued out of,” &c., “ was duly issued out of and under the seal of’ (giving a full description of the court from which it was issued). State v. Bichar d-■son, 38 N. H. 208, middle of page; State v. Beasom, 40 N. EL 374; ' United Slates v. Tinklepaugh, 3 Blatchf. O. C. R. 425-431.

YIII. The indictment must show on its face that the original process was “ lawful.” This must be done in one of two ways. First, by spreading upon the record in the indictment at least so much of the original process, that the court, before whom the trial is had, can see the legal substance thereof as clearly as if it had such original process before it, which we have shown has not been done in this case, with averments that the warrant was lawfully granted by a court of competent jurisdiction, and that all the requirements of the law, pre-requisite to the lawful service thereof, had been complied with. In several cases in this State and elsewhere, after the other averments, that the officer was obstructed in the due and lawful execution of his office, in the execution of a certain process (identifying it), follow^ an averment that said process is or was “ as follows,” or “ in the words and figures following, to wit: ” the entire process is then set out verbatim; but in all these cases the indictments have been held insufficient. The reason is; plain: a literal copy of the original process is only one fact; it does not show that the process was lawful; it simply shows that the officer-had a paper in certain “ words and figures ” in his hands; the process; might be a forgery, and he might know it; he might have made it himself, or it might have been issued by a tribunal which had no authority to issue it; or it might not have been properly issued; or in- form for an offence which in law and in fact had no existence. The vital essentials, descriptive of the offence are wanting in the indictment.

In U. S. v. Stowell, 2 Curtis C. O. R. 155, which was under the statute of 1790, of which ours of 1791, in its “ charging words,” is a transcript, and in which the indictment set- forth that the obstruction complained of was in the service of a warrant “ duly issued,”' &c., “ by E. G. Loring,” describing his office, &c., Judge Curtis says: “ To constitute an offence under this law, therefore, the obstruction must have been of legal process.” “ It is clear, also, that the indictment must show by proper averments that' the process was legal, not only in form and purpose, but as emanating from some court or office, empowered by law to issue such process.” “ If, as in this case, the officer who granted the process, had by láw only a limited and special authority,, dependent for its existence upon particular facts, every fact necessary for the existence of that authority must either be averred in the indictment, or appear on the face of the process itself.” “ The distinction between such a court and a magistrate having only a special authority,, is settled. In favor of the jurisdiction of the latter the law makes no intendment.” Ib. p. 161.

Under this mode, therefore, it is too clear for further argument or illustration, both upon principle and authority, that this indictment is fatally defective.

The second mode .is by identifying the process, and then stating it according to its legal effect, to wit, by averring that it was “ lawful process.”

If it is possible to settle anything, it has been repeatedly settled in this State that this indictment is vitally defective in this respect also. State v. Scammon, 22 N. H. 46; State v. Beasom, 40 N. H. 873-375; State v. Barrett, 42 N. H. 470, 471; State v. Fitts, 44 N. H. 623, 624.

This indictment cannot be sustained without overturning these decisions and the reasoning on which they rest. This indictment does not aver that the original process was lawful, nor does it so describe it that the court can know or say that it was lawful.

IX. It is also essential, first, that the indictment show on its face that the “ process,” “ or,” &c., was in a “ criminal case:” second, it is absolutely essential that the indictment should show clearly, by appropriate averments, that such “ criminal case ” was one “ the punishment of which is imprisonment in the common jail and fine, or either.” The statute has provided an ascending scale for the offences of obstructing an officer, in the service of three different kinds of criminal process. These provisions aré in sections 5, 6, and 7, of chapter 259, G. S.

The character of the offence in each case depends upon the quantum of the punishment for the crime alleged in the original process to have been committed. The punishment in each case enters into the definition of the offence, becomes one of its ingredients, and is essentially descriptive of it. The indictment must set this forth clearly; otherwise the court could not pronounce sentence, because it could not determine from the indictment which of the particular offences had been committed, nor what sentence it was its duty to impose. This indictment contains no such averment; its defects are fatal; it is a tub without a bottom; it holds nothing.

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