The opinion
Morton, J.
The only question raised by this bill of exceptions is, whether the fact that one of the complainants was not *291 summoned as a witness, at the trial in the superior court, is fatal to the validity of the proceedings. It does not appear that both complainants were not summoned to appear before the municipal court of Taunton, which issued the warrant. A failure to summon one of the complainants, who may have no knowledge upon the issues to be tried, as a witness in the superior court, it is clear, does not vitiate the proceedings.
But if the bill of exceptions is to be construed as finding that one of the complainants was not summoned as a witness before the municipal court of Taunton, we are of opinion that this fact would not invalidate the proceeding. The provision in the last clause of the forty-sixth section of the act of 1869, that “ the complainants shall be summoned to appear as witnesses,” is a direction to the magistrate and officers as to a duty to be performed after the warrant is issued. The summoning of the complainants is not one of “ the formalities prescribed by the laws,” without which “ no warrant ought to be issued.” And it is not a formality to be pursued after the warrant is issued, in which the claimant has any interest, such as the notice to him required by the statute. The provision we are considering is merely a direction to the officers of the law for the benefit of the Commonwealth, and if it is not complied with the claimant has no cause of complaint. It has already been decided that it need not appear upon the record that the complainants have been summoned as witnesses. Downing v. Porter, 8 Gray, 539 . Commonwealth v. Intoxicating Liquors, 97 Mass. 62 . And we are of opinion that, if in fact they have not been summoned, the failure to do so would not affect the jurisdiction of the court or invalidate the proceedings.
Exceptions overruled.