the case of partners, trustees, or joint-stock companies. R. v. Sherrington, 1 Leach, 513: R. v. Beacall, 1 Mood. C. C. 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 comprise it; R. v. Patrick, 3 East, P. C. 1059; 1 Leach, 253; and there is a difference in this respect between an ancient corporation and a corporation newly created; 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 im, pleaded 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; 1 Leach,

513.

If 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. 2 East, P. C. 651, 781. But if the name proved be idem sonans with that stated in the indictment, and different in spelling only, the variance will be inmaterial. Thus, Segrave for Seagrave, Williams ". Ogle, 2 Str. 889; Benedetto for Beniditto, Abitbol v. Beniditto, 2 Taunt. 401; Whyneard for Winyard, pronounced Winnyard, R. v. Foster, R. & R. 412, is no variance. But it has been decided that M'Cann and M'Carn, R. v. Tannett, R. & R. 351; Shakespear and Shakepear, R. v. Shakespear, 2 East, 83;. Tabart and Tarbart, Bingham v. Dickie, 5 Taunt. 114; Shutliff and Shirtliff, I Chit. C. L. 216; 3 Chit. Burn, 341, 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. . Thomas, 2 East, P. C. 781; if, however, it appear in evidence that the principal *felon is known, the receiver will be [ 37 ] 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 their proper names. 7 G. 4, c. 64, s. 20. Where it is essential to constitute the offence that the party injured should have been of a certain age (as in an indictment upon the 9 G. 4, c. 31, s. 17, for carnally knowing a girl above ten and under twelve years of age), the party must be stated in every count of the indictment. to be of that age; and it will not be sufficient to state the age in the first count only, and in a subsequent count merely to describe the party as the "said A. B." Reg. v. Martin, 9 C. & P. 215.

It must be certain as to time and place.]—Time and place must be added to every material fact in an indictment; Staund. 95 a., R. v. Holland, 5 T. R. 607: R. v. Aylett, 1 T. R. 69: R. v. Haynes, 4 M. & Selw. 24; 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 shall undoubtedly shew that it was not done at that time or at that place. But in an indictment 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 vitia, the greatest 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 torefer to all the ensuing acts. R. v. Bank, Cro. Jac. 41.

However, in practice, time and place are added to every *mate- [ 38 ] rial 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 and place, March, pl. 127; R v. Johnson, 2 Rol. 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. Cr. pl. 62; although, from the nature of the offence, the time must necessarily be stated.

The

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, (G. 2). year must also be stated, otherwise the indictment will be insufficient; 2 Hale, 177; 1 Chit. C. L. 217; and the year of the Queen's reign is usually inserted; but the year of our Lord is 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 I Hale, 549; R. v. Waddington. 2 East, P. C. 513; 2 Hawk. c. 25, ss. 76, 77. 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 At as in strictness the jury who are to try the cause should come from. common law, the jury, in strictness, should have come from the town, hamlet, or parish, or from the manor, castle, or forest, or other known place out of a town, where the offence was committed; and for this rea

son, besides the county, or the city, borough, or other part of the county to which the jurisdiction 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.; Sid. 335. 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 Anne, c. 16, and 24 Geo. 3. 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. 30, s. 13; and therefore it is now sufficient to state [39] 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, Ry. & M. N. P. 433; 2 Camp. 77. 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, (ante, p. 22, pl. 17), must allege each act to have been done" on the high seas;" and it is usual to add "within the jurisdiction of the Admirally of England;" 2 Stark. Cr. pl. 455; sometimes the place or land near which the offence was committed is also stated; but this is not necessary.

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 Lady Victoria, 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 is 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 in cases which are of a local nature, it is sufficient to allege the offence to have been committed at a place (naming it) in the county aforesaid, without stating the place to be a parish, village, chapelry, or the like. Reg. v. Brookes, C. & Mar. 544. 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, tò 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 certainty from which a visne might come. R. v. Matthews, 5 T. R. 162; 2 Leach, But where the indictment, after describing the defendant as "late of the parish of A., in the county of B.," charged the offence to have been committed "at the parish aforesaid," without any statement of the county, the court were disposed to think this good, but held that at all events it was aided, after verdict, by the 7 G. 4, c. 64, s. 20, (post, p. 40). Reg. v. Albert, 5 Q. B. 37; 1 Dav. & M. 89. 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 Rol. Rep. 223. In a recent case, where it was alleged in an indictment that a dwelling-house was "situate at the parish aforesaid," two parishes having been stated, it was holden that the parish last mentioned must be intended. R. v. Richards, 1 M. & Rob. 177. Where an indictment for stealing in a dwelling-house stated that the defendant at C., in the county of D., one coat, &c., in the dwellinghouse of A. B., then and there being, did steal, without saying, "there situate," it was holden sufficient. R. v. Napper, 1 Mood C. C. 44. Where an indictment charged that the defendant, at the township of W., on the highway there, leading from the village of W. towards C., to another highway leading from the village of W. towards L., by a wall there extending into the said highway by him erected, had encroached, &c., it was held, that the indictment was not uncertain, [ 40 ] and that "there" and "said" could be referred only to the high

way first mentioned. R. v. Wright, 1 Ad. & Ell. 434. And where, a parish being situate partly in two counties, an indictment for larceny alleged the offence to have been committed in the parish of A. in the county of B., not saying in that part of the parish of A. which lies in the county of B., it was holden sufficient: R. v. Perkins, 4 C. & P. 363: but this would not be sufficient for burglary, or any other offence of a local nature. Reg. v. Brookes, C. & Mar. 543. If an indictment lay the offence to have been done on the day and year aforesaid, and there be no day and year, or two different days, &c., before stated, it will be bad; So, if it lay 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