lar 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 Coke, the pleader must exclude every conclusion against him. Where certainty to a common intent only is required, the court will presume, in favor 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 admit of a natural sense, and also of an artificial one, or one to be made out by argument or reference, the natural sense shall prevail." Arch. Crim. Pl. 9th Ed. 43.)

The

In illustration of this rule, scores of cases, if it were necessary, might be presented, to show to what an absurd length quibbling upon it has been carried, and how often justice has been entirely defeated by its application. A few only will be referred to. Mr. Livingston, in his notes on the criminal code reported by him, gives the following example: "In an indictment for forgery, a stroke of the pen, which occurred in the instrument, had not been copied in the indictment. The prisoner being convicted, his counsel moved in arrest of judgment, and assigned the omission of this stroke for cause. paper and the indictment were handed up to the bench, and the judge not being able with the naked eye to discover any difference, had recourse to a glass, and by the aid of a strong magnifier discovered something which he said was either a tick, (a word of which I do not profess to know the meaning,) or a letter-which, he would not or could not determine,—but submitted it to the jury, with directions, if they found it to be the one, (I forget which,) to convict, if the other to acquit; and to aid in the determination of this important question, he handed them his glass-the microscopic powers of which determined them in favor of the acquitting alternative-and the prisoner was discharged; if the judge's glass had not been brought into court, or had

been of a lower power, he would have been hanged." (Liv. Crim. Code 225, 226. Note.)

In a spirit of greater gravity, however, Mr. Archbold, in illustrating the rule respecting certainty, cites a great variety of cases, from the earliest down to the latest period. For example:-"An indictment on that part of the Black Act, (now repealed,) which made it felony wilfully and maliciously to shoot at a person in a dwelling house or other place, was holden bad, because it charged the offence to have been done unlawfully and maliciously, omitting the word wilfully. R. v. Davis, 1 Leach, 556. Some of the judges indeed thought that "maliciously" included "wilfully;" but the greater number held, that as "wilfully" and "maliciously" were both mentioned in the statute as descriptive of the offence, both must be stated in the indictment. So, an indictment upon stat. 7 & 8 G. 4, c. 30, s. 2, for feloniously, voluntarily, and maliciously setting fire to a barn, was holden bad, because the words of the statute are "unlawfully and maliciously." R. v. Turner, 1 Mood. C. C. 239. So, an indictment upon stat. 9 G. 4, c. 31, s. 12, charging the prisoner with "feloniously, wilfully, and maliciously cutting," &c., is not sufficient; the words of the statute being "unlawfully and maliciously." Reg. v. Ryan, 2 Mood. C. C. 15. So where an indictment on the repealed stats. 15 G. 2, c. 34, and 14 G. 2, c. 6, which made it felony without benefit of clergy, to steal any cow, ox, heifer, &c., charged the defendant with stealing a cow, and in evidence it was proved to be a heifer, this was holden to be a fatal variance; for the statute having mentioned both cow and heifer, proved that the words were not considered by the legislature as synonymous. R. v. Coke, 2 East, P. C. 617; 1 Leach, 123. See also R. v. Douglas, 1 Camp. 212. So, where an indictment charged in one count that the defendant did break to get out, and in another, that he did break and get out, it was holden insufficient, because the words of the statute are "break out." R. v. FOURTH REP.]

D.

Compton, 7 C. & P. 139. In like manner it was decided, that, as the repealed stat. 15 G. 2, c. 34, specified lambs as well as sheep, a defendant could not be convicted for stealing sheep, upon an indictment for stealing lambs; R. v. Loom, 1 Mood. C. C. 160; and a similar construction has been put upon the stat. 7 & 8 G. 4, c. 29 s. 25, R. v. Puddifoot, 1 Mood. C. C. 247. But in Reg. v. MCully, 2 Mood. C. C. 37, an indictment under that statute for killing a sheep, with intent to steal the carcase, was held to be supported by pooof of killing a ram or ewe; the words of the statute being "ram, ewe, sheep, or lamb ;" a majority of the judges considering "sheep" a generic term, including the former words." So also, "an indictment upon the repealed stat. 2 G. 2, c. 25, (which made the stealing of "bank notes" felony), charging the defendant with stealing "a certain note commonly called a bank note," was holden bad, because it did not follow the description of property in the statute. R. v. Craven, R. & R. 14; 2 East, P. C. 601, 602. So, under the repealed stat. 2 & 3 Ed. 6 c. 33, which contained only the words "horse, gelding, or mare," upon an indictment for stealing two colts, the judges were unanimously of opinion, that, as colts were not mentioned eo nomine in the statute, they could not take notice that they were of the horse species. R. v. Beaney, R. & R. 416; Archb. Crim. Pl. 9th Ed., 51.

These illustrations are given, with no view of appealing to the mere prejudices of the unprofessional man, against the technicalities and subtleties which have been invented as the means of administering justice; but are presented to the candid and sober judgment of the legislature, as an argument too strong to be resisted, against the further continuance of what, it cannot but be admitted, is a perversion of the first principles of justice and a violence to common sense. No matter by what names or by how great antiquity its defence may be attempted, the intelligence of the age demands that the darkness and mysticism of past centuries should, in the science of the law, as it

has in any every other, yield to the more advanced enlightenment of the present day.

Happily for the cause of legal reform, the attempt which the Commissioners have made, to substitute for these senseless technichalities, a system of pleading founded upon the unerring principles of justice, and having for their end the attainment of right without regard to form, is no new or visionary experiment. More than twentyfive years ago, Mr. Livingston, under the authority of the legislature of Louisiana, engaged himself in the effort to reform the modes of criminal procedure; and among the subjects to which he directed his attention, the most prominent was the simplification of the rules of pleading. Instead of the unintelligible subtleties which he found to grow out of the common law rules on the subject, he reduced the art of pleading to a plain, comprehensive and practical system. In place of the mystical terms "certainty to a common extent, certainty to a certain intent in general, and certainty to certain intent in particular," he saw no difficulty in subtituting the clear and intelligible rule, that all that was necessary in an indictment should be that "the act or omission charged be so clearly and distinctly set forth, as to enable a man of common understanding to know what is intended." (Liv. Crim. Code, 520, Art. 254, Subd. 6.) In more recent times, and in the country from which our legal institutions have been borrowed, the sagacity of our great jurist has been justly appreciated; and as a proof that what has been deemed in the Commissioners, an act of reckless and visionary presumption, has been regarded in that country as practicable and just, the fact need only be mentioned, that the British Commissioners, after the fullest consultation with the bench and bar of that country, have recommended the adoption, almost in terms, of the provision just referred to. In their eighth report, (p. 76,) is embraced the following provision:-" All acts, omissions and circumstances essential to the offence must be so plainly, directly and distinctly stated, as to enable a man of ordinary understanding to know what is intended."

Resting upon this weight of authority, to say nothing of the principle involved in the proposition, the Commissioners had expected, though it seems without just reason, that the introduction of thisrule into the code of civil procedure, would have met with more fa-vor than it has been its fate to receive. They will, however, permit themselves to indulge the hope, that their attempt to translate into intelligible English the phrase "certainly to a common intent" may be more favorably appreciated.

In accordance with the views already expressed, the Commissioners have resolved to recommend that all the forms of pleading in criminal actions, heretofore existing, be abolished, and that hereafter the forms of pleading and the rules by which their sufficiency are to be determined, shall be those which are prescribed by the proposed Code. The rules to be substituted in their place, (sec. 304—325,) are few and simple, and in the main come recommended by the high authorities to: which allusion has just been made. Referring the legislature to the C'ode itself, for a more full explanation of them, the Commissioners. will content themselves with a brief recapitulation of the principles. which they embody.

First;-The indictment must contain the title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties, and a statement of the acts constituting the offence, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

Second;-It must be direct and certain, as it regards the party, and the offence, and the particular circumstances of the offence charged,. when they are necessary to constitute a complète offence.

Third;-It must charge but one offence, and in one form only; ex:cept that where the offence may be committed by the use of different means, the indictment may allege the means in the alternative..