Chelsea, or the commissioners thereof, the property may be laid to be in the "Lords and others, Commissioners of the royal hospital for soldiers at Chelsea, in the county of Middlesex;" and in all prosecutions upon the stat. 7 G. 4, c. 16, it will be sufficient to charge the act as done with intent to defraud "the Lords and others, Commissioners of the royal hospital for soldiers at Chelsea, in the county of Middlesex." 7 G. 4, c. 16, s. 31.

Property vested in a body of persons must not be laid as the property of that body, unless it be incorporated, but must be described as the property of the individuals who constitute that body, or some of them, as in the case of partners, trustees, or joint-stock companies. R. v. Sherrington, 1 Leach, 513. R. v. Beacall, R. & M. 15. But when goods of a corporation are stolen, they must be laid to be the property of the corporation, in their corporate name, and not in the names of the individuals who compose it; R. v. Patrick, 2 East, P. C. 1059. 1 Leach, 253; and there is a difference in this respect between an ancient corporation and a corporation newly erected: an ancient corporation may by use have a special name, differing in substance from that by which they were originally incorporated, and they may plead and be impleaded by that name; but a corporation created within memory must plead and be impleaded by the name by which they were incorporated. Hob. 211. Noy, 54. 2 Brownl. 292. Latch, 229. 11 Co. 94. Dy. 279. 3 Mod. 6. Cro. El. 351. Bac. Abr. Corp. (C 3). and see 10 Co. 87.

If, however, the name of the party injured be unknown to the prosecutor, as in the case of the murder of a stranger, or larceny from the person of a stranger who does not come forward to prosecute, or the like, he may be described in the indictment as a person unknown; 2 Hale, 181; thus, for instance, a man may be indicted for the murder of, or for stealing the goods of," a certain person to the jurors aforesaid unknown."

If at the trial it appear in evidence that the party injured is misnamed, or that the owner of the goods or house, &c. is another and different person from him named as such in the indictment, the variance is fatal, and the defendant must be acquitted. But if the name proved be idem sonans with that stated in the indictment, and different in spelling only, the variance will be immaterial. Thus, Segrave for Seagrave; Williams v. Ogle, 2 Str. 889; Benedetto for Beneditto; Abethol v. Beneditto, 2 Taunt. 401; Whyneard for Winyard, pronounced Winnyard; R. v. Foster, R. & R. 412; is no variance. But it has been deoided that M'Cann and M'Carn, R. v. Tannet, R. & R. 351, Shakespeare and Shakepear, R. v. Shakespeare, 2 East, 83, Tabart and Tarbart, Bingham v. Dichie, 5 Taunt. 14, are not the same in sound. If he be described as a certain person to the jurors unknown, and it appear in evidence that his name is known, the defendant will be acquitted. See R. v. Walker, 3 Camp. 264.

R. v. Robinson, 1 Holt, 595. In an indictment for receiving stolen goods, if the principal felon be unknown, he may be described as a certain person to the jurors aforesaid unknown; R. v. Thomas, East, P. C. 781; if, however, it appear in evidence that the principal felon is known, the receiver will be acquitted; R. v. Walker, 3 Camp. 264; but he will not be entitled to his acquittal merely because the same grand jury have found a bill imputing the principal offence to J. S. R. v. Bush, R. & R. 372.

If the party injured be designated by a name of office or other descriptive appellation instead of his real name, it cannot be objected to by writ of error or motion in arrest of judgment; for no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed, for that any person or persons mentioned in the indictment or information is or are designated by a name of office, or other descriptive appellation, instead of his or her proper name or names. 7 G. 4, c. 64, s. 20.

It must be certain as to time and place]-Time and place must be added to every material fact in an indictment; R. v. Holland, 5 T. R. 607. R. v. Aylett, 1 T. R. 69. Stand. 95 a; that is, every material fact stated in an indictment must be alleged to have been done on a particular day, and at a particular place. As to what are material facts, it is necessary to observe that every offence consists of the commission or omission of certain acts under certain circumstances; and each of these, being a necessary ingredient in the offence, is material, and must be stated in the indictment. An offence of omission or a mere nonfeasance, cannot, indeed, strictly be said to have been committed at any time or place; and, therefore, in an indictment for such an offence, the allegation of time and place is, in general, unnecessary; Com. Dig. Indictment, (G 2). 2 Hawk. c. 25, s. 79; yet if it be an indictable offence to omit doing an act at a particular time or at a particular place, an indictment for it should undoubtedly shew that it was not done at that time or at that place. But in indictments for offences of commission, every act which is a necessary ingredient in the offence must be laid with time and place, as above mentioned. Thus, if in an indictment for murder it be stated that J. S., at such a time and place, having a sword in his right hand, did strike J. N. &c., it is insufficient; for the time and place laid relate to the having the sword, and consequently it is not said when or where the stroke was given. 2 Hale, 178. R. v. Cotton, Cro. El. 738. So, that J. S., at such a time and place, made an assault upon J. N., et eum cum gladio felonice percussit, was holden bad, because it was not said, ad tunc et ibidem percussit. Dy. 68, 69. Yet an indictment for a battery, where time and place were laid to the assault, but not to the battery, has been holden good; 2 Hale, 178; and this distinction seems

to have been established, that in felonies, in favorem vitæ, the greater strictness above mentioned, (namely, that time and place be laid to every material fact), is required; but in indictments for misdemeanors, if time and place be added to the first act, it shall be construed equally to refer to all the ensuing acts. See R. v. Bank, Cro. Jac. 41. However, in practice, time and place are added to every material fact, as well in indictments for misdemeanors as in indictments for felony. What we have now said relates to acts which are necessary ingredients in the offence; for mere circumstances accompanying these acts need not be laid with time or place, March, pl. 127. R. v. Johnson, 2 Ro. Rep. 226, unless rendered essential by the particular nature of the offence. Thus, in an indictment for bigamy, in averring that the first wife was alive at the time of the second marriage, it is not necessary to allege a place where; Stark. Pl. 62; although, from the nature of the offence, the time must necessarily be stated.

The time laid should be the day of the month and year upon which the act is supposed to have been committed. A day certain must be stated; 2 Hawk. c. 25, s. 77; and this at present is always the day of the month, although naming it as a feast day, or "the Octave of the Holy Trinity," or the like, seems to be sufficient. Com. Dig. Indictment, (G2). The year must also be stated, otherwise the indictment will be insufficient; 2 Hale, 177; and the year of the King's reign is usually inserted; but the year of our Lord is equally unobjectionable. It is said, that alleging the act to have been committed on such a day last past would be sufficient, because it would be rendered certain by the caption of the indictment; Com. Dig. Indictment, (G 2). Lamb, 491; but this perhaps is doubtful, if the objection were made at the time of the trial. In no case is it necessary to state the hour at which the act was done, unless rendered essential by the statute upon which the indictment is framed. 2 Hawk. c. 25, s. 76; and see Coombe v. Pitt, 3 Bur. 1434. R. v. Clarke, 1 Bulst. 204. March, pl. 127. 2 Inst. 318. In burglary, indeed, it is usual to state it; but alleging the offence to have been committed" in the night," without mentioning the hour, seems to be sufficient; but see 1 Hale, 549. R. v. Waddington, 2 East, P. C. 513. So, in an indictment upon stat. 9 G. 4, c. 69, for unlawfully entering, or being in a close by. night for the purpose of taking game, armed, it is not necessary to state the hour of the night. R. v. Davis, 10 B. & C. 89.

The place (or special venue, as it is technically termed), must be such as in strictness the jury who are to try the cause should come from. At common law, the jury, in strictness, should have come from the town, hamlet, or parish, or from the manor, castle, forest, or other known place out of a town, where the offence was committed; and for this reason, (besides the county, or the

city, borough, or other part of the county to which the jurisdietion of the court is limited) it was formerly necessary to allege that every material act mentioned in the indictment was committed in such a place; and where a city or town contained two or more parishes, or a parish two or more towns, the parish or town in which the offence was committed must have been stated. See 2 Hawk. c. 23, s. 92. R. v. Mackally, 9 Co. 66. b. For the same reason, it was usual, in London, to name both the ward as well as the parish, thus: "in the parish of St. Mary-le-bow, in the ward of Cheap;" but this was not requisite, nor was it necessary in other cases to mention the hundred in which the parish was situate. This rule was not altered by the repealed statutes 4 & 5 Ann. c. 16, and 24 G. 2, c. 18, which extended to civil cases only; but now the jury in criminal cases are returned from the body of the county, and not as formerly from any particular visne; 6 G. 4, c. 50, s. 20; and, therefore, it would seem to be sufficient to state only the county, or the city, borough, or other part of the county to which the jurisdiction of the court is limited, in all cases which are not of a local nature. See R. v. Lawrence, 3 Cowp. 78; R. v. Leadbeater, 3 Burn, J., by Chitty, 332. R. v. Dowling, R. & M. N. P. 433. The county, &c., so stated, must be the same as that stated as venue in the margin of the indictment. See 2 Hale, 180. Indictments for offences within the admiral's jurisdiction, (see ante, p. 19, pl. 12), must allege each act to have been done "on the high sea;" and it is usual to add "within the jurisdiction of the Admiralty of England;" sometimes the place or land near which the offence was committed is also stated; but this is not necessary.

66

Time and place are usually alleged thus: That J. S., of &c., "on the third day of May, in the first year of the reign of our sovereign lord William the Fourth, in the parish of B., in the county of C.," or in the county aforesaid," (see R. v. Burridge, 3 P. Wms. 439), referring to the county in the margin; but it would seem to be sufficient to allege the offence to have been committed "in the county of C.," or "in the county aforesaid," without naming the parish in all cases which are not of a local nature. And if all the acts constituting the offence be supposed to have been done at the same time, it is sufficient (to all but the first) to allege time and place by the words "then and there," referring to the time and place mentioned to the first act, without saying on the day and year aforesaid, at the parish aforesaid, in the county aforesaid," or repeating the day and year, parish and county, to every act. The time and place, however, must be laid with certainty; and therefore, where the indictment described the defendant as late of W., and laid the offence to have been committed in the parish aforesaid," (there being no parish before mentioned, W. not having been described as such), the court arrested the judgment, because no place was named with certain

66

ty from which a visne might come. R. v. Matthews, 5 T. R. 162. 2 Leach, 624. So, where the indictment described the place as being "in the county aforesaid," where there were two different counties before mentioned, it was holden bad, although one of the counties was mentioned in the defendant's addition merely. R. v. Rolls, 1 Ro. Rep. 223. But where an indictment for stealing in the dwelling-house stated that the defendant at C., in the county of D., one coat, &c., in the dwelling-house of A. B. then and there being, did steal, without saying, "there situate," it was holden sufficient. R. v. Napper, R. & M. 44. So, if it laid the offence to have been done on the day and year aforesaid, and there were no day and year, or two different days, &c., before stated, the indictment would be bad. So, if it lay it to have been done on a day certain, "and on divers other days and times," it will be bad for uncertainty; 2 Hawk. c. 25, s. 28. and see English v. Purser, 6 East, 395; unless it be for an offence which may have continuance, such as false imprisonment, see Burgess v. Freelove, 2 B. & P. 425, nuisance, or the like; at least, such is the rule in declarations, and, a fortiori, it should seem, in indictments. See R. v. Dixon, 10 Mod. 335. R. v. Roberts, 4 Id. 101.

If no time or place be stated, or if the time or place stated be uncertain or repugnant, the defendant may demur; or if no time be stated, where time is of the essence of the offence; or no place, where the court does not appear, by the indictment or information, to have jurisdiction over the offence; the defendant may demur, move in arrest of judgment, or bring a writ of error; for the defect is not cured by verdict: but no judgment upon any indictment or information for any felony or misdemeanor, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment; or on an impossible day; or on a day which never happened; nor for want of a proper and perfect venue, where the court shall appear, by the indictment or information, to have had jurisdiction over the offence. 7 G. 4, c. 64, s. 20. It may be necessary to mention, that the stat. 9 H. 5, st. 1, c. 1, which declared an indictment to be void if there were no such place in the county as that laid in the indictment, is repealed; and that it is now no objection that there is no such place in the county as that laid in the indictment. R. v. Dowling, R. & M. N. P. 433.

But although time and place must thus be laid with certainty, it never was necessary it should be laid according to the truth; for if the time stated were previous to the finding of the indictment, and the place within the county or other extent of the court's jurisdiction, a variance between the indictment and evi