454. The addition of baronet or knight, must be added to christian and surname. 2 Inst. 665. See Cro. Car. 371.

A degree in one of the universities is a good addition; 2 Inst. 668; so is the addition of "clerk" for a clergyman. Id. "Esquire" is a good addition for the eldest sons of knights and their eldest sons in succession; for the eldest sons of peers; for the youngest sons of peers and their eldest sons in succession; for foreign noblemen; for the esquires of knights of the bath; and for esquires by virtue of their offices, such as justices of peace. 2 Inst. 667. Gentleman is a good addition; so is yeoman.

Mystery means the defendant's trade, art, or occupation : such as, merchant, mercer, tailor, parish clerk, schoolmaster, husbandman, labourer, or the like. 2 Hawk. c. 23. s. 111. If a man have two trades, he may be named of either; 2 Inst. 668; but if a man who is a gentleman by birth be a tradesman, he should be named by his worthier addition of gentleman; Id. 669; in all other cases he may be indicted by his addition of degree or mystery, at the option of the prosecutor. See 8 Mod. 51, 52. 1 Str. 556. 2 Str. 816, 2 L. Raym. 1541.

The additions of degree or mystery usually given are, to peers, peeresses, knights, esquires, clergymen and gentlemen, the addition to which they are of right entitled; to other men, the addition of yeoman or labourer; or to tradesmen, &c. the addition of their mystery; to widows, the addition of widow; to single women, the addition of spinster or single woman; to married woman, usually thus, "Jane, the wife of John Wilson, late of the parish of C. in the county of B. labourer." Labourer, 2 L. Raym. 1179, or yeoman, 2 Inst. 668, is not a good addition for a woman. It is necessary to mention that the degree or mystery must be stated as that to which the defendant was entitled at the time of the indictment; late esquire, late grocer, or the like, would be bad. 2 Inst. 670.

As to the addition of place, the defendant must be described as of the town, or hamlet, or place, and county of which he was or is, or in which he is or was conversant.

A town may contain two or more parishes, and yet the town in that case would be a sufficient addition; see 2 Inst. 699; but if there be two or more towns in one parish, the defendant should be named of the town and not of the parish. Id. If there be two towns of the same name in the county, but distinguished from each other by additions, as Great Dale, Little Dale, Upper Dale, Lower Dale, or the like, the defendant cannot be named of Dale only without addition; but if the towns have no addition to distinguish them, he may. 2 Hawk. c. 23. s. 121.

If the defendant reside in a borough or city which is a county of itself, the addition of that alone (as, "London" for instance) will be sufficient, without naming a parish. 2 Inst. 669.

If he reside in a hamlet out of a town, he may be described as of that; if in a hamlet of a town, he may be described as of either the town or hamlet. 2 Hawk. c. 23. s. 122.

Parish is a good addition; 2 Inst. 669; but if there be two or more towns in the parish, and the defendant reside in one of them, he should be named of the town. Id.

If the defendant reside in a place known by a special name, and not within a town or hamlet, he may be named of such place; but if it be within a town or hamlet, it is safest to name him of the town or hamlet. 2 Hawk. c. 23. s. 123.

Besides being described of a town or hamlet, or parish, or place, the defendant must also be described of the county in which such town, &c. is; and if he be described of a borough or city which is a county of itself, that alone will be sufficient. 2 Inst. 669.

The defendant may be described as late of the parish of B. in the county of C.; 2 Inst. 669, 670; although we have seen it is otherwise as to additions of degree or mystery.

If his place of residence be known, he may be described of it according to the truth; but when not known, it is usual to describe him of any parish in the county where the offence was committed.

In the case of a peer or peeress, the addition of degree is placed before the addition of place, as, " John, duke of B. late of N. in the county of G." But in all other cases the addition of place goes first: as "J. S. late of the parish of B. in the county of S. gentleman." If you were to describe the defendant as "merchant of London," 4 Ed. 4, 10 a. or "parsor. of D. in the county of C," 2 Inst. 699, it would be bad, for it does not follow, from this description of him, that he resides there.

Besides the additions we have now mentioned, it may be necessary also, where a father and son are of the same name, and one of them is indicted, to add the terms "the younger" or "the elder" to his name, for the purpose of more clearly identifying him. 2 Hawk. c. 23. s. 106.

If there be no addition, 1 Sid. 247. or a wrong one, 2 Inst. 670, the defendant can take advantage of it by plea in abatement only; if he plead over, he thereby waives all objections to the indictment on that account. 2 Hawk. c. 23. s. 125. So, if there be no christian name or a wrong one, or no surname or a wrong one, the defendant can take advantage of it by plea in abatement only; if he plead over, he waives the objection. It was formerly understood that a defendant could not plead a misnomer of his surname; 2 Hawk. c. 25. s. 68. 2 Hale, 176; but it seems now to be holden otherwise. See 10 East, 83.

It must be certain as to the person against whom the offence was committed.] In indictments for offences against the persons or property of individuals, the christian name and surname of

the party injured, either his real name or the name by which he is usually known, must be stated, if the party injured be known; 2 Hawk. c. 25. 3.71, 72: as, for the murder of " John Styles," larceny of the goods of "John Styles," larceny in the dwelling house of "John Styles," burglary in the dwelling house of "John Styles" and therein stealing the goods of "John Nokes," and the like. No addition is requisite; 2 Hale, 182; even where it appeared that the party injured had a mother of the same name, the court held that it was not necessary to distinguish her in the indictment by the addition "the younger," although it was objected that in such a case, where such an addition is not given, the presumption is that it is the parent and not the child that is intended, and some cases were cited to that effect. 3 B. & 4.579. But where the person injured has a name of dignity, as a peer, baronet, or knight, he should be described by it; and it should seem, that if he be described as a knight when in fact he is a baronet, or the contrary, the variance would be fatal.

An indictment for stealing the shroud of a dead person, must state it to be the goods and chattels of the executor or administrator; 2 Hale, 181; or if there be no will or no administration, it should seem that it may be laid to be the goods of the person who defrayed the expences of the burial, or of the ordinary if the shroud were purchased with the money of the deceased. If property be stolen out of the possession of a bailee, it may be described in the indictment as the property either of the bailor or bailee; 2 Hale, 181; as, for instance, goods intrusted to a person for safe keeping, or to a carrier to carry, cloth to a tailor to make into clothes, linen to a laundress to wash, goods pawned, and the like, may be laid to be the goods and chattels of the person to whom they are so intrusted, &c. or of the owner, at the option of the prosecutor.

Formerly where goods stolen were the property of partners, all the partners must have been named in the indictment, and correctly, otherwise the defendant would be acquitted. But now, in indictments for stealing minerals, timber, iron, or other materials from mines, the property of any mining company, they may be described as the property of any one or more of the partners, without naming the others. 56 G. 3. c. 73. And the same provision is now extended generally to indictments for "burglary, felony, grand or petit larceny, or criminal breach of trust, committed on the goods, chattels, or personal property, of what nature soever, of any partners whatsoever." 1 Geo. 4. c. 102.

If, however, 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 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. So, 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 3 Camp. 264. 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 unknown; R. v. Thomas, East, P. C. 781; but if it appear in evidence that the principal felon is known, the receiver will be acquitted. R. v. Walker, 3 Camp. 264.

It must be certain as to time and place.] Time and place must be added to every material fact in an indictment; 5 T. R. 607. 1 T. R. 69. Standf. 95 a; that is, every material fact stated in an indictment, must be alledged 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; 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 should undoubtedly shew that it was not done at that time or at that place. But in indictments 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, 172. 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 vita, the greater 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 to refer to all the ensuing acts. See Cro. Jac. 41.

However, in practice, time and place are added to every material 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 or place, March. Pl. 127. 2 Ro. 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 alledge a place where, Stark. Pl. 62, although, from the nature of the offence, the time must necessarily be stated. 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. The year must also be stated, otherwise the indictment will be insufficient; 2 Hale, 177; and the year of the King's reign is usually inserted; but the year of our Lord is equally 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, particularly 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 3 Bur. 1434. 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. So, in an indictment upon stat. 39 El. c. 15. for breaking into a house in the day time, it is usual to insert the hour; but this is not necessary; and if it otherwise clearly appear upon the face of the indictment, that the offence was committed in the day time, it will be sufficient.

The place (or special venue, as it is technically termed) must be such as in strictness the jury, who are to try the cause, should come from; and it may here be necessary to mention that the stat. 4 & 5 Ann. c. 16. & 24 G.2. c. 18. which direct the venire facias to be awarded of the body of the county, extend only to civil actions. At common law (by which indictments are still regulated in this respect) the jury, in strictness, should have come from the town, hamlet, or parish, or from the manor, castle, forest, or other known place out of a town, where the offence was committed; and therefore every ma