declarations, and, a fortiori, it should seem, in indictments. See R. v. Dixon, 10 Mod. 335: R. v. Roberts, 4 Mod. 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 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. This statute applies only where, by the indictment, the court appears to have jurisdiction over the offence; and, therefore, where an indictment commencing," London, to wit," described the prisoner as late of London, and charged the defendant to have committed the offence in the parish of St. Mary-le-Bow, without stating that parish to be in London, it was held that this was not aided by the stat. 7 G. 4, c. 64, s. 20. R. v. Minter Hart, 7 C. & P. 123. Where there is no such place within the county as that in which the offence is laid, it has been said that the indictment is void; 3 Campb. 77: 1 Phil. Ev. 206; but in a late case, where the offence was laid in the parish of St. Thomas, Pensford, in the county of Somerset, and there was no proof that there was any such parish, it was held that this was not a valid objection, for it was not necessary to prove affirmatively the parish as laid. R. v. Dowling, R. & M. N. P. 433. And in a still more recent case, where an offence, not of a local nature, was described as having been committed in a parish which did not exist, the judges held that the defect could only be taken advantage of by plea in abatement, R. v. Woodward, 1 Mood. C. C. 323: R. v. Bullock, Id. 324.

But although time and place must thus be laid with certainty, it never was necessary that it should be laid according to the truth; for if the time stated were previous to the finding of the indictment, [ 41 ] and *the place within the county or other extent of the court's jurisdiction, a variance between the indictment and evidence in the time when the offence was committed, Kelynge, 16; 2 Inst. SIS; 3 Inst. 230; R. v. Aylett, 1 T. R. 70, 71, or in the place where committed, provided the place proved were within the jurisdiction of the court, 2 Hawk. c. 25, s. 84, was not material; and for this reason, in practice, all

the facts in an indictment usually were, and still may be, stated to have occurred at the same time and place, time and special venue being laid as to the first fact and afterwards referred to by the words "then and there," as to the others. There are some exceptions, however, to this rule. 1. The dates of bills of exchange, and other written instruments, must be truly stated when necessarily set out. 2. Deeds must be pleaded either according to the date they bear, or to the day on which they were delivered. 3. If any time stated in the indictment is to be proved by matter of record, it must be truly stated. 4. If the precise date of a fact be a necessary ingredient in the offence, it must be truly stated. See R. v. Trehearne, 1 Mood. C. C. 298. 5. If the statute upon which the indictment is framed give the penalty to the poor of the parish in which the offence was com mitted, the parish must be truly stated. 6. Where a place named is part of the description of a written instrument, or is to be proved by matter of record, it must be truly stated. 7. If the place where the fact occurred be a necessary ingredient in the offence, it must be truly stated: and the slightest variance in these several respects, between the indictment and evidence, will, in felonies, be fatal, and the defendant must be acquitted; but in some of the above cases the variance may, in misdemeanors, be amended, 9 G. 4, c. 15. (See post, Evidence). And lastly, where a time is limited for preferring an indictment, the time laid should appear to be within the time so limited. See R. v. Brown, M. & M. 163. Also, in an indictment for murder, the death should be laid on a day within a year and a day from the time at which the stroke is alleged to have been given.

What is above mentioned as to place relates merely to special venue, and must be carefully distinguished from the place when stated as matter of local description; for where a place is stated as matter of local description, the slightest variance between the description of it in the indictment and the evidence will be fatal. Thus, for instance, in indictments for stealing in the dwelling-house, &c., for burglary, for arson, for entering or being in a close by night for the purpose of taking game, armed, R. v. Ridley, R. & R. 515, or for forcible entry, or the like, if there be the slightest variance between the indictment and evidence in the name of the parish or place where the house is situate, or in any other description given of it, it will be fatal.

It must be certain as to the fact, circumstances and intent, constituting the offence.]-Every offence consists of certain acts done or omitted under certain circumstances; and in an indictment for the offence, it is not sufficient to charge the defendant generally with having committed it, as, that he murdered J. S., or stole the goods of J., or committed burglary in the house of J. S., or the like; but all the facts and circumstances constituting the offence must be specifically set forth. So, the offence must appear upon the face of the indictment to be a distinct substantive offence:

you cannot charge a man with being a common thief, a common [ 42 ] champer tor, conspirator, common malefactor, or common robber; but if he have committed a larceny, robbery, &c., the indictment must set forth every fact and circumstance which is a necessary ingredient in the offence. Thus, an indictment for extortion, charging that the defendant took extorsively for every horse so much, and for every twenty sheep so much, was holden bad, because it charged the defendant, with extortion generally, and not upon any particular occasion. R. v. Roberts, 4 Mod. 103. So, that the defendant was a calumniator, and a common and turbulent breaker of the peace, &c. was holden bad, for the R. v. Taylor, 2 Str. S49, 1246; 2 Hale, 182.

same reason.

And the same where a constable was indicted for behaving badly and negligently in the execution of his office, without specifying any particular instance of negligence, &c. R. v. Witherington, 1 Str. 2. The only exceptions to this rule are,-1. That a man may be indicted for being a "common barretor," without detailing the particulars of the barretry. 2. That a woman may be indicted for being "a common scold," without detailing the particulars of her conduct. 3. That a person may be indicted for keeping a common gambling house, or bawdy-house, without stating those circumstances, which it may be necessary to give in evidence to shew that it is a house of that description. See 2 Hawk. c. 25. ss. 57, 59. 4. That in an indictment for soliciting or inciting to the commission of a crime, R. v. Higgins, 2 East, 5, or for aiding and assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance. But see Reg. v. Rowel, 3 Q. B. 180; 2.G. & D. 518. In all other cases, every fact or circumstance which is a necessary ingredient in the offence must be set forth in the indictment.

And if any fact or circumstance which is a necessary ingredient in the offence be omitted in the indictment, such omission vitiates the indictment, and the defendant may avail himself of it by demurrer, motion in arrest of judgment, or writ of error. Thus, an indictment for assaulting an officer in the execution of process, without shewing that he was an officer of the court out of which the process issued; R. v. Osmer, 5 East, 304; see R. v. Everett, 8 B. & C. 114; for contemptuous or disrespectful words to a magistrate, without shewing that the magistrate was in the execution of his duty at the time; R. v. Lease, Andr. 226; against a public offiner for non-performance of a duty, without shewing that he was such an officer as was bound by law to perform that particular duty; 5 T. R. 623; for obtaining money under false pretences, without shewing whose money it was; R. v. Norton, 8 C. & P. 196: R. v. Martin, 8 Ad. & Ell. 481; quod exoneravit tormentum dans plagam, without saying percussit; R. v. Long, 5 Co. 122 b; that he feloniously did lead away a horse, &c., without saying "take:" 2 Hale, 194: in all these and the like cases, the indictment is bad, and the defect may be taken advantage of in the manner

above mentioned. See R. v. Cheere, 7 D. & R. 461; 4 B. & C. 902; 1 B. & Adol. 861; 8 Ad. & Ell. 481.

Every fact and circumstance laid in an indictment, which is not a necessary ingredient in the offence, may be rejected as surplusage, and need not be proved at the trial; see 7 G. 4, c. 64, s. 20; R. v. Jones, 2 B. & Ad. 611; also, if there be any defect in the manner of stating such matter, the defect will not vitiate the indictment. R. v. Walker, 4 Co. 41 a: R. v. Long, 5 Co. 121 b: R. r. Holt, 2 Leach, 593; and see R. There is a custom of stating, in in

. Howarth, 3 Stark. 29.

dictments for trifling offences, circumstances of gross *aggrava- [ *43 ] tion, contrary to the truth, which are at least useless, and should

be avoided.

And not only must all the facts and circumstances which constitute the offence be stated, but they must be stated with such certainty and precision, that the defendant may be enabled to judge whether they constitute an indictable offence or not, in order that he may demur or plead to the indictment accordingly-that he may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly—that he may be enabled to plead a conviction or acquittal upon this indictment, in bar of another prosecution for the same offence-and that there may be no doubt as to the judgment which should be given, if the defendant be convicted. See R. v. Horne, Cowp. 675: Reg. v. Rowed, 3 Q. B. 180; 2 G. & D. 518. Therefore, in indictments for offences of a local nature, as burglary, arson, and stealing in the dwelling-. house, &c., a local description of the house, &c., must be given, namely, the parish or place, and county in which it is stated in indictments for obtaining money by false pretences, the false pretences must be specified : R. v. Mason, 2 T. R. 581: R. v. Manoz, 2 Str. 1127 in an indictment against a person for not serving the office of constable, the mode of election must be set out, to shew that he was legally elected; for if he were not legally elected, he cannot be guilty of a crime in not serving: R. v. Ḥarper, 5 Mod. 96: an indictment for extortion must shew what fee was due, or that nothing was payable, R. v. Lake, 3 Leon. 268, as well as the, fee exacted an indictment for stopping up the King's highway must specify what part. R. v. Roberts, Show, 289. Also, for the same reasons, if the indictment charge the defendant with one or other of two offences, in the disjunctive, as that he murdered or caused to be murdered, forged or caused to be forged, 2 Hawk. c. 25. s. 58; R. v. Stocker, 1 Salk. 342, 371, levait vel levari causavit, R. v. Stoughton, 2 Str. 900, conveyed or caused to be conveyed, &c., R. v. Flint, Hardw. 370, see R. v. Morley, 1 Y. & J. 22, it is bad for uncertainty; and the same, if it charge him in two different characters, in the disjunctive, as, quoad A. existens servus sive deputatus, took, &c. Smith v. Mall, 2 Rol. Rep. 263. So, an indictment which charges that the defendant, with a certain stick or staff

which he had and held, upon A. did make an assault, &c., it seems to be bad for uncertainty. Reg. v. Jones, 1 C. & K. 243. So, an indictment which may apply to either of two different definite offences, and does not specify which, is bad. R. v. Marshall, 1 Mood. C. C. 158.

Certainty to a certain intent in general, however, is all that is required. Co. Lit. 303. a.; R. v. Long, 5 Co. 121 a. Certainty is of three kinds : certainty to a certain intent in every particular, which is required only in pleas, &c., of estopel and pleas in abatement; ceatainty to a common intent, which is required in ordinary pleas; and certainty to a certain intent in general, which is required in declarations and indictments. The latter is a medium between the other two; not so great a degree of certainty as the first, and a greater degree of certainty than the second. I shall endeavour further to define them. Where certainty to a certain intent in every particular is required, the court will presume the negative of every thing the pleader has not expressly affirmed, and the affirmative of every thing the pleader has not expressly negatived; or, in the words of Lord

ment.

Coke, the pleader must exclude every conclusion against him. [ *44] Where certainty to a common intent only is required, the *court will presume, in favour of the pleader, every proposition which by reasonable intendment is impliedly included in the pleading, though not expressed; and where words are made use of, which adınit of natural sense, and also of an artificial one, or one to be made out by argument or in reference, the natural sense shall prevail. Thus, if a plea state that the master and fellows of a college were seised in fee, it shall be intended in right of the college; Fulmerston v. Stewart, Plowd. 102; if a man plead feoffment, livery shall be intended, because it would not otherwise be a feoffment; Co. Lit. 303. b.; or, if he plead an assignment of dower, it shall be intended by metes and bounds, for otherwise, it would not be a legal assignBro. Pleader, 145; Cadwalader v. Brian, Cro. Car. 162. Common intent, however, is a rule of construction only, and not of additi on; it cannot add to a sentence words which are not impliedly included in it; and therefore, in trespass, if the defendant plead a release, without shewing at what time it was made, the court cannot presume that it was made after the trespass. Plowd. 46 a, unless the particular trespass be specially mentioned in it. Certainty to a certain intent in general, being a medium between the two degrees of certainty above mentioned, may be inferr ed from what has just now been said respecting them; and it should see m therefore, that in cases where it is required, every thing which the pleader should have stated, and which is not either expressly alleged or by neces sary implication included in what is alleged, must be presumed against him. The court, however, will construe the words of the pleading according to their ordinary and usual acceptation, and technical terms according to their technical meaning. And if the sense of a word be ambiguous n the ordinary acceptation of it, it shall be construed according as the context and