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juror be a quaker or moravian (i), or having been a quaker or moravian, has ceased to belong to either of those religious denominations, but still entertains conscientious objections to taking an oath (k), or is a separatist (1), here add," and affirmation" (m) present (n) “ that”—

The venue, that is, the county, borough and county of a corporat city or town, or other borough or place where the indictment is found, and for which the sessions are holden, and over which the court has jurisdiction, as considered in the last chapter, is expressed in the margin. Stat. 7 & 8 Vict. c. 61, s. 4, provides against any judicial proceeding being invalidated by any error in stating the name of a county to which a detached part of it annexed by that act to another county originally belonged. The omission of the words, to wit, though unusual, seems immaterial (o). It is also proper to allege, in the body of the indictment, that every fact material to the charge took place, not only in the county or borough in which the indictment is preferred, i. e. that laid in the margin, (which may suffice, if the offence is not one in which local description is of the essence of the charge (p),) but also at some specific parish, hamlet, town, vill, or place within that county or borough, from which parish, &c. before 6 G. IV. c. 50, s. 12, a jury of the visne or neighbourhood might have come (9). For if all allegation of place is omitted there, and no special reference to the county or borough, &c. in the margin is made, the indictment is bad on demurrer, and also in arrest of judgment notwithstanding 7 G. IV. c. 64, s. 20; for that act by the words "want of a proper or perfect venue" does not intend to cure defects of venue, unless the jurisdiction in respect of locality, of the court in which the indictment is found, is made to appear in the body of it. For the allegation that facts material to the charge occurred in a particular county, is not only that which authorizes the grand jury to

(i) 3 & 4 W. IV. c. 49, s. 1; and case of Josiah Key, Cor. Alderson, B., 9 C. & P. 78. See however 6 & 7 Vict. c. 85, Lord Denman's act for improving the law of evidence, which enacts by sect. 2, that wherever in any legal proceedings whatever, legal proceedings may be set out, it shall not be necessary to specify that any particular persons who acted as jurors had made affirmation instead of oath; but it may be stated that they served as jurymen in the same manner as if no act had passed for enabling jurors to serve as jurymen without oath.

(k) 1 & 2 Vict. c. 77.

(1) 3 & 4 W. IV. c. 82, s. 1.

(m) Gaselee, J., after consideration thought that an indictment stated to have been found "on the oath or affirmation of A. B., &c. then and there sworn or charged as juiors," &c. without saying who were sworn, and who affirmed, and that the latter were entitled to serve on their affirmation, is bad, and no judgment could be given, R. v. Dann, 1 Mood. C. C. 424 (1835). (n) The past tense "did present would be bad, R. v. Bunce, Andrews' R. 162.

(0) 2 Hale, 166.

(p) Post, p. 210.

(9) See post, p. 210, note (m).

entertain the bill, but is also the warrant for the sheriff to summon the petty jury who must pass between the crown and the prisoner (r).

Nor will the fact of the trial being had in the county laid in the margin, cure the total omission of place in the body of the indictment, as it is held to do in civil actions under 16 & 17 Car. II. c. 8, in case of a "wrong venue;" for no provision exists to cure want of allegation of venue in a criminal case, when the trial is by a jury of the county in which the bill is preferred (s).

Even where instead of repeating in the body of the indictment the county laid in the margin, the words "in the county aforesaid " are there annexed to the statement of a fact material to the offence charged, it is doubtful whether such fact is so sufficiently connected with the county in the margin, as to import it thence into the body of the indictment, even where no other county appears in it for the county in the margin is only that in which the indictment is found, and not as in civil actions that where the cause of action is laid, and which therefore aids the want of venue in a declaration (t). But a count in misdemeanour with the venue "Lancashire" in the margin, stating, "that certain unlawful assemblies were held by evil disposed persons at divers places,' and that defendants at the parish aforesaid, in the county aforesaid,' unlawfully aided and abetted the said evil disposed persons," was held cured by 7 G. IV. c. 64, s. 20, (ante, p. 197,) after verdict; for the conduct imputed as criminal was stated with a proper venue, so as to show the court to have jurisdiction, though the omission to state the places at which the unlawful assemblies were charged as having taken place, made the venue as to that part "imperfect," which is the case contemplated by that section (u); and some older authorities show that where only one county is named (and that the correct one), the words "county afore

(r) Reg. v. O'Connor, 13 L. J. (M. C.) 33, 36; 1 Hale, 652; 2 Hale, 166; Cro. El. 101, 606, 751; 2 Hawk. c. 25, s. 34, p. 128. In R. v. Hart, 6 C. & P. 106, Littledale and Bosanquet, Js., had held that an indictment beginning "London to wit" in the margin, then describing the prisoner as "late of London," and then charging the offence as committed in the "parish of St. Maryle-Bow," without averring that parish to be in London, was bad in itself, and not aided by 7 G. IV. c. 64, s. 20, for want of shewing the court to have jurisdiction over the offence. Quære tamen,

for London is a county of itself, and the offence was not one requiring a local description, so that repeating the county only, would have sufficed, post, p. 210.

(8) Reg. v. O'Connor; also Lenthall's case; Cro. Eliz. 137; R. v. Burridge; R. v. Fosset, 3 P. Wms. 497. Suppose an act committed in France, and a bill preferred in Kent, 13 L. J. (M. C.)

37.

(t) Reg. v. O'Connor, and per cur. Lord Raym. 888, 1304; 1 Saund. 308, n.; Cro. El. 137.

(u) Reg. v. O'Connor.

said" in the body, will have sufficient reference to the county in the margin (x).

The names of the jurors who find the bill, do not appear in the indictment itself; but when it is removed by certiorari, they appear in the caption (y).

2. The Description of the Party accused.]-Thus, "A. B. late of the parish of in the county of —— labourer."

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The christian and surname of the defendant, if known, should be stated with correctness; except in an indictment against the inhabitants of a county or parish, who may be so described without naming any of them (z). But if the name of a prisoner is unknown, and he refuses to disclose it, an indictment may be sustained against him as " a person whose name is to the jurors unknown, but who is personally brought before the said jurors by, the keeper of the prison of " (a). A man cannot be indicted with an alias dictus of the christian name, as "John, otherwise Robert," though to an alias of the surname there is no objection (6). An indictment was quashed before plea, because an addition was placed, not after the first name, but after the alias dictus (c). If he has more than one christian name given him in baptism, as John Thomas, they are considered in law as forming one christian name, and must be set out correctly in their order (d). The proper

(x) 2 Hale, 180; 3 P. W. 496; Com. D. Indictment (G 2); 2 Hawk. c. 25, s. 34.

Where two counties were mentioned in an indictment, one in the margin, as Gloucestershire, and then another, as Middlesex, in the body, (though only in the addition of a party or recital of a statute), and afterwards the offence was stated to have been committed at a place "in the county aforesaid," without showing which county was intended, the rule of reference to the last antecedent, Middlesex, prevailed, and the indictment being for an offence in which local description in Gloucestershire was material, e. g. forcible entry, was held insufficient for want of certainty which county was intended to be referred to; for the county in the margin would not aid, as in civil actions, Elnor's ca. Cro. El. 184; 2 Hale, 180; 2 East's R. 66, and cases in last preceding notes. Other instances of necessity for this local description, post, p. 210. In civil actions a mere ambiguity, as "parish aforesaid," instead of "parish last afore

said"-two parishes having been previously mentioned, seems only a subject of demurrer, Walford v. Anthony and others, 8 Bing. 75.

(y) So stated to the court by the officers of Q. B.; 6 Ad. & E. 240, R. v. Marsh. See post, Ch. I. sub. fin. and Ch. XIII.

(2) Hawk. B. 2, c. 25, s. 68; see post, 190.

(a) R. v. - R. & Ry. 489. (b) 1 Ld. Raym. 562, surnames being originally acquired by assumption. See cases collected, 5 B. & Ald. 552; Williams v. Bryant, 5 M. & W. 447. See also per Lord Stowell, Wakefield v. Wakefield, 1 Hagg. Cons. R. 400; Barlow v. Bateman, 3 Peere Williams, 65.

(c) R. v. Semple, 1 Leach, 420; but this defect is cured by plea, R. v. Hannam, ib. n. See Cro. Jac. 482, 610.

(d) Jones v. Macquillin, 5 T. R. 195; 3 East, 111; Willes, 554; Evans v. King; Pouget v. Tomkins, 1 Phill. R. 503; Stanhope v. Baldwin, 1 Addams, R. 93; see 1 M. & Gr. 783, n.

name of a bastard is that he has gained by reputation, and not his mother's name, unless so gained (e).

Proper Addition of the accused Party.]-To prevent the inconvenience of troubling one person for another, it is enacted by the statute of additions (ƒ), that in all indictments on which process of outlawry lies, additions shall be made to the defendants' names, of their state or degree, or mystery, and of the towns or hamlets, or places, and the counties of the which they were or are conversant.

Under this statute, if an accused has several titles, he must be described by the most honourable; and if he have none by birth, office, creation, or reputation, and is described by any such, or if a gentlewoman be named merely spinster, or a yeoman is named gentleman, the indictment will be defective (g). But a trader may be sued either by his degree or rank in society, independent of his trade, or by the name of his vocation (h).

By stat. 8 H. VI. c. 10, s. 1, 2, the indictment ought to contain the addition of the place and county where the party indicted is “ conversant and dwelling." The county in the margin refers to the place where the offence was committed, and not to the habitation of the party. Accordingly an outlawry for perjury was reversed on error, for the party was indicted by the name of "N. L. late of the parish of A.," without shewing in what county A. is, though " Middlesex" was in the margin (i).

In indictments against the greater nobility-that is, says Lord Coke, dukes, marquisses, earls, viscounts, and barons, being dukes, &c. of particular counties or places, the estate and degree is named first, and afterwards the town or county-thus, Edward Duke of Buckingham, late of N. in the county of G. omitting the family surname of the accused: but if stated it does not vitiate (k), and so it is when one is named of a city which is a county of itself, I. S. pannarius de London in com. civitatis London. But in case of the lesser nobility, as bannerets (1), baronets, and knights, and all under them, the town and county are named before the addition, thus; "A. B. of in the county of baronet" (or knight). Garter principal king at arms, and clarencieux, being titles conferred by the crown, are not additions, but parts of the

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name which should follow it (). Foreign dignities give no man here higher title than that of esquire, unless the possessor be lord or knight here, in which case he should be described accordingly (m). A variance in stating marquis for earl, or knight for baronet, is fatal, for the dignity is not merely an addition, but being the very appellation by which the party is commonly known, becomes on that account actually part of his name (n).

Gentleman, and esquire, are good additions for the estate and degree of a man, gentlewoman for that of a woman, clerk for a clergyman, or graduate at Oxford or Cambridge; yeoman is a good addition for the estate and degree of a person having freehold land of 40s. a year; and labourer for that of a man; but neither yeoman or labourer are good additions for that of a woman; and widow, singlewoman, wife of, and spinster, are good additions of the estate and degree of a woman; but burgess, and citizen, and servant, are all of them too general, and therefore not good additions of the estate or degree either of a man or woman (o). Wife was amended to widow, in a case where the prisoner, charged with murdering her husband, was described as A., the wife of J. O., late of, &c., labourer (p).

Several Defendants with same Additions.]—If several defendants have the same addition, it is safest to repeat the addition after each name, applying it particularly to every one of them; and where a father has the same name, and the same addition, with a defendant, being his son, an indictment is defective unless it add the addition of the

(1) Holt v. Ward, 2 Stra. 850; Dethick's ca. Cro. El. 542; Roll. Abr. tit. Graunts (D. pl. 16). Bond to a herald by his name of office in his patent (e. g. Chester), is good, though no other name is mentioned.

(m) 2 Inst, 655, 667, 669.

(n) 2 Hawk. c. 25, s. 71, 72. Sir Henry Ferrar's case, Sir W. Jones. S. C. Cro. Car. 371, cited 1 Mood. C. C. 288. But "Lord" will suffice to designate a baron, at least when he is prosecutor, R. v. Pitts, post, p. 213.

(0) Hawk. B. 2, c. 23, s. 111; 2 Inst. 668; 1 Bla. C. 405; Ld. Raym. 1179; 6 M. & S. 38; R. v. Checketts. As to yeomen see 1 Bla. C. 406; 2 Inst. 595, 668. Indictment for assault, addition was stated (gentleman). Plea that he was an esquire and no gentleman overruled. Per Fortescue, J., this is in addition only, not in the name, and they are the same, and every esquire is a gentleman,

and gentlemen are called esquires. Reg. v. Chapman, cited by Fortescue, J., in Williams v. Francis, Fort. R. 354.

(p) Reg. v. Orchard, 8 C. & P. 565, Lord Abinger. See Reg. v. T. and M. Woodward,8C.& P.561. Prisonersjointly indicted for stealing clothes, M.W. being described in indictment as "Margaret Woodward, single woman "'-and she pleaded to that indictment. The only evidence was that the prisoners addressed each other as husband and wife, and passed and appeared as such, and were so spoken of by witnesses for crown. Patteson, J. This is evidence on which the jury must say whether they are satisfied that the prisoners are in fact husband and wife, even though the woman has pleaded to indictment charging her as "single woman." She ought to have been described as wife, not as single woman. The woman was acquitted: the man convicted.

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