of his successor, the indictment should properly conclude, against the peace of both. 2 Hale, 189.

The words "his crown and dignity," though always used, are not essential. 2 Hale, 188.

Omitting to conclude "against the peace," &c., when it is essential, or concluding against the peace of the present King, when it appears upon the face of the indictment, that the offence was committed in a fomrer reign, may be objected to by demurrer, motion in arrest of judgment, or writ of error.

For an offence by statute.] An indictment for an offence created by statute, concludes thus :-" Against the form of the statute in such case made and provided, and against the peace of our Lord the King his crown and dignity."

Where a statute either creates the offence altogether, or makes an offence at common law an offence of a higher nature, (as, for instance, where it makes a misdemeanor a felony,) an indictment for the offence must conclude, "contra formam statuti." 2 Hale, 192. 2 Hawk. c. 25. s. 116. 1 Salk. 370. 2 Ro. Rep. 38. If the statute do not make it an offence of a higher nature, but merely increase or otherwise alter the punishment, &c., (as for instance perjury under stat. 5 El. c. 9,) the indictment, in order to bring the offence within the statute, must conclude, "contra formam statuti ;' but if it do not so conclude, it may still be a good indictment for the offence at common law. 2 Hale, 191, 192. Or if the statute be merely declaratory of an offence at common law, (as high treason, for instance,) without adding to or altering the punishment, &c. an indictment for the offence may conclude, "contra formam statuti," or, as at common law. 2 Hale, 189.

But where a statute merely takes away a certain privilege or benefit from a person committing a common law offence under particular circumstances, to which benefit or privilege the defendant would have been entitled at common law, as for instance, where it takes away the benefit of clergy from a common law felony, an indictment for the offence, although it must charge it to have been committed under the circumstances mentioned in the statute, should not conclude, contra formam statuti." 2 Hale, 190. Thus, indictments for petit treason, murder, robbery, burglary, house-breaking, stealing in a dwelling house, and the like, need not conclude, "contra formam statuti." Id.

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Where one statute is relative to another, as where one creates the offence, and the other the penalty, an indictment for the offence must conclude, contra formam statutorum. 2 Hale, 173. Cro. Jac. 142. But where the offence is prohibited by several independant statutes, the indictment may conclude, contra formam statutorum, or statuti. 2 Hawk, c. 25.

s. 117. If the statute creating the offence be temporary, and be continued or made perpetual by another statute, an indictment for the offence may conclude. contra formam statuti; 2 Hale, 173. Cro. El. 750. 2 Str. 1066; but where a former statute is discontinued, and revived by a subsequent one, Lord Hale says, that it is safer in such a case, to conclude, contra formam statutorum, although, according to good authorities, contra formam statuti, would be sufficient. 2 Hale, 173.

Omitting to conclude contra formam statuti, when it is essential, is error, and may be made the subject of demurrer, motion in arrest of judgment, or writ of error. So, concluding contra formam statuti, for statutorum, or the contrary, may be made the subject of a demurrer, or perhaps of a motion in arrest of judgment, or writ of error, although in civil actions it is cured by verdict. Dyer, 346, 347. But if an indictment conclude, contra formam statuti, when it should conclude as at common law, the mistake is not material, and the words contra formam statuti, may be rejected as surplusage. R. v. Mathews, 5 T. R. 162. Say. 225. i l'ent. 103. 2 Hale, 190.

In an indictment on a statute, besides the conclusion contra formam statuti, the words "against the peace of our Lord the King," are absolutely essential; 2 Hale, 188; and if these latter words be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error.

SECT. 3.

Joinder of two or more defendants in one indictment.

Where several persons join in the commission of an offence, all or any number of them may be jointly indicted for it, or each of them may be indicted separately. Thus, if several commit a robbery, burglary, or murder, they may be indicted for it jointly, 2 Hale, 173, or separately; and the same, where two or more commit a battery, or are guilty of extortion, or the like. 1 Salk. 382. Where money has been obtained under false pretences, and the false pretences were conveyed by words spoken by one defendant in the presence of the others, all of whom acted in concert together, it was holden that they might all be indicted jointly. 3 T. R. 98. So, where two persons joined in singing a libellous song, it was holden that they might be indicted jointly; 3 Bur. 985; and the same, where two or more persons join in any other kind of publication of a libel. But if the publication of each party be distinct, as if two booksellers, not being partners, sell the libel at their res

pective shops, they must be indicted separately. So, two or more cannot be jointly indicted for perjury, 2 Str. 921, or for seditious or blasphemous words, or the like, because such offences are in their nature several. Even where several commit a joint act, which act however is not of itself illegal, but becomes so merely by reason of some circumstances applicable to each individual severally and not jointly, they must be indicted separately; 2 Hawk. c. 25. s. 89; thus, several partners eannot be indicted jointly for exercising their trade without having served an apprenticeship. 1 Salk. 382. Str. 623. But principals in the first and second degree, and accessaries before and after the fact, may all be joined in the same indictment; 2 Hale, 173; or the principals may be indicted first, and the accessaries after the conviction of the principals. It is said that several may be jointly indicted for severally erecting common inns, ad commune nocumentum, if it be said, that they separaliter erexerunt, &c.; and the same as to keeping disorderly houses, &c. Id.; but it is much better, and more usual in practice, to indict the proprietors of each house separately.

Misjoinder of defendants may be made the subject of a demurrer, motion in arrest of judgment, or writ of error; or the court will in general quash the indictment. But where there are different counts against different persons in the same indictment, this, though a ground for moving to quash the indictment, is, it seems, no cause of demurrer, R. v. Kingston, 8 East. 41, provided the counts be otherwise such in substance as may be joined.

SECT. 4.

Joinder of several offences in one Indictment.

We have already seen (ante p. 25), that if a defendant be charged with two or more offences in the same count of an indictment, the count will be bad for duplicity, except in one or two excepted cases. As to charging a defendant with different offences in different counts, it admits of a different consideration.

In an indictment for high treason, there may be different counts, each charging the defendant with different species of treason against the King and his government, such as compassing the King's death, levying war, adhering to the King's enemies, within stat. 25 Ed. 3. st. 5. c. 2, and the conspiracies to

levy war within stat. 36. G. 3. c. 7. s. 1; but you cannot join counts for treasons against the King and his government, and treasons relating to the coin or the like, because the judgments are different; at least I have never known or read of an instance of the kind.

A defendant ought not to be charged with different felonies in different counts of an indictment; as for instance, a murder in one count and a burglary in another, or a burglary in the house of A. in one count, and a distinct burglary in the house of B. in another, or a larceny of the goods of A. in one count, and a distinct larceny of the goods of B. at a different time in another. If the objection in such a case be made before the defendant has pleaded or the jury are charged, the judge in his discretion may quash the indictment; or if it be not discovered until after the jury are charged, the judge may put the prosecutor to his election on which charge he will proceed; 3 T. R. 106; but it is tio objection in arrest of judgment. 3 T. R. 98. However, although a prosecutor cannot thus charge a defendant with different felonies in different counts, yet he may charge the same felony in different ways in several counts, in order to meet the facts of the case; as for instance, if there be a doubt whether the goods stolen, or the house in which a burglary or larceny was committed, be the goods or house of A. or of B., they may be stated in one count as the goods or house of A., and in another as the goods or house of B. See 2 B. & P. 508.

Indictments for misdemeanors, may contain several counts for different offences, provided the judgment upon each be the same. 3 T. R. 98, 106. 8 East, 46; and see 2 Bur. 984. Even where several different persons were charged in different counts with offences of the same nature, the court held that it was no ground for a demurrer, however it might be for an application to the discretion of the court to quash the indictment. 8 East, 41.

It may be necessary to mention that the court will not order counts to be struck out of an indictment, as they will out of a declaration in civil cases; for the latter is the suggestion of the party merely, the former the finding of a grand jury. R. v. Pewtress, 2 Str. 1026. Hardw. 203.

The commencement of a second or subsequent count is in form thus: "And the jurors aforesaid upon their oath aforesaid do further present that," &c., so proceeding to state the offence,

SECT. 5.

Within what time the bill must be preferred.

At common law there was no time limited for commencing a suit by the King; and therefore, in all cases of treason, felony, and misdemeanor, where a time is not now limited by statute, the indictment may be preferred at any length of time after the offence.

Indictments for such high treasons, not relating to the coin or seals, as cause corruption of blood, (with the exception of treason by "designing, endeavouring or attempting any assassination of the King by poison or otherwise," 7 & 8 W.3. c. 3. s. 6.) must be found by the grand jury within three years next after the offence committed, if the offence have been committed within England, Wales, Berwick upon Tweed, 7 & 8 W.3. c. 3. s. 5, or Scotland; See Fost. 249; but if committed on the high seas or in a foreign country, there is no time limited for the prosecution.

Prosecutions on 8 & 9 W. 3. c. 26. s. 1. for making, mending, or having certain instruments of coinage, or on sect. 3, for marking the edges of current coin or coin counterfeit to it with letters or grainings &c., must be commenced within six months after the offence committed; 7 Ann. c. 25. s. 2. 1 Ann. st. L. c. 9. s. 2; and prosecutions on the 2d section of the same statute, for conveying certain instruments for coining out of his Majesty's mint, or on sect. 4, for colouring, gilding &c. coin to make it look like the cnrrent coin of the realm, must be commenced within three months. In R. v. Willace, 1 East. P.C.186, it was holden that the information and proceeding before the magistrate, upon the defendant's being taken, was to be deemed the commencement of the prosecution within the meaning of these acts.

Prosecutions on stat. 15 G. 2. c. 28, for colouring &c. silver coin to make it look like gold, or brass coin to make it look like silver, must be commenced within six months after the offence committed. 15 G. 2. c. 28. s. 5.

Prosecutions for offences against the Black Act (9 G. 1.c.22), must be commenced within three years after the offence committed. 9 G. 1. c. 22. s. 13.

Prosecutions on stat. 33 G. 3. c. 67, for maliciously setting fire to a ship, or maliciously destroying or damaging her by other means, must be commenced within twelve calendar months after the offence committed. § 8.

I am not aware of any other cases in which a time is limited for commencing a prosecution.