8. Particular Where a transitory act or matter of inducement does not happen requisites and within the county in which the venue is laid, it may nevertheless be parts. laid there; (Kel. 15); and though it may be laid out of that county, and in the place where it really happened, yet, in that case, the venue in the indictment should be added under a videlicet, or the proceeding will be insufficient. (Lady Russell's case, Cro. Jac. 17. But see Stark. 23, n. (h)): Consequences of defective statement or omission of venue. Certiorari. If the offence be laid to have been committed in a city, which is a county of itself, but the jurisdiction of the latter is not co-extensive with the former, it should be laid within both of them. (Andr. 162). (e) Consequences of defective Statement or Omission of Venue. An improper statement or omission of a venue or place may be taken advantage of on demurrer. Formerly, it might be taken advattage of in arrest of judgment or writ of error; but now, by the 7 Geo. IV. c. 64, s. 20, post, 900, the want of a proper or perfect venue, where the court shall appear, by the indictment or information, to have had jurdiction over the offence, is not a ground for arresting or reversing the judgment. Though, as we have seen, great strictness is in general necessary in the averment of a parish, vill, or place, it is somewhat singular that it is in no case, not even in the instances of treason and murder, necessary to prove that the offence was committed at the precise vill, parish, or place laid in the indictment; and when a variance between the allegation and the proof of local description is immaterial, it is sufficient to shew in evidence that it happened any where within the proper county. (See 1 Chit. C. L. 200). Where there is no such place within the county as that in which the offence is laid, it has been said, before the passing of the 6 Geo. IV. c. 5, s. 20, ante, 876, that the indictment is void; (3 Camp. 77 ; 1 Phil. Erid. 206); but in a case after that act, 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. 443). 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, R. & M. C. C. 323; R. v. Bullock, Id. 324 ; Jervis, Arch. C. L., 9th edit., 40). Where, however, the place is the essence of the crime, as in striking in a churchyard; (2 Hale, 179, 244-5; 2 Hawk. c. 25, s. 84; Id. c. i, s. 181, 182; 1 East, P. C. 125); or, in an indictment on the 9 Geo. IV. c. 69, for being found armed in a close at night; (R. v. Ridley, R. & P.. C. C. 515, ante, 420); or, where the place is stated as matter of local description in indictments for burglary, or not repairing or any other auisance to a public thoroughfare, a variance in the statement will be fatal. (Ib.; 1 Burr. 333). Where a person was indicted for a burglary in a house, which was stated in the indictment to be in the "parish of W.," and it appeared that the correct name of the parish was St. Mary W., although in the statute 4 & 5 Will. IV. c. 36, s. 2, this parish is called "the parish of W.;" it was held sufficient. (Reg. v. St. John, 9 Car. & P. 40). Where an indictment for robbery stated that it was in a field near the King's highway, and the robbery was not proved to be near any highway, it was considered sufficient. (R. v. Wardle, R. & R. C. C. 9). So, where the indictment is on a statute giving a penalty for the offence to the poor of the parish in which the offence was committed, the parish must be truly stated. As to the removal of indictments where an impartial trial cannot be had, see tit. "Certiorari," Vol. I. The defendant must be described, in the indictment, by his Christian How to be stated. name and surname, and by his addition. (2 Hale, 175). The inhabitants of a parish may be indicted for not repairing a highway, or the inhabitants of a county for not repairing a bridge, without naming any of them. (Roll. Abr. 79; 2 Hawk. c. 25, s. 68; Wood's Inst. b. 4, c. 5). It is no misnomer, if the name stated be misspelt, provided it be of the same sound as the real name, post, 885. The name may be such as the defendant has usually gone by or acknowledged; and if there be a doubt which one of two names is his real name, the second may be added in the indictment after an alias dictus, thus, "Richard Wilson, otherwise called Richard Layer." (Post, 884). 66 If the name of the defendant be unknown, and he refuse to disclose it, an indictment against him as a person whose name is to the jurors unknown, but who was personally brought before the said jurors, by the keeper of -prison," will be sufficient. (R. v. ——, R. & R. C. C. R. 489). But an indictment against him as a person to the jurors unknown is insufficient, if there be not something to ascertain the person meant by the grand jury. (Ib.) The name of the defendant committing the offence should be repeated to every distinct allegation; but it will suffice to mention it once, as the nominative case in one continuing sentence. (4 Harg. St. Tr. 747). The additions required to be given to defendants in an indictment, by stat. 1 Hen. V. c. 5, are, the addition of their “estate, or degree, or mystery," and also the addition of the "towns, or hamlets, or places, and counties of which they were or be, or in which they be or were conversant." These additions should be added after the first name, and not after the alias dictus; (2 Inst. 699; Anon., 3 Salk. 20; R. v. Temple, 1 Leach, 420; R. v. Hannam, Ib.; post, 882, n.); although, if an addition be given to the name after the alias dictus, it may be rejected as surplusage. (2 Hawk. c. 25, s. 70). The following observations and collection of cases on this subject, in the note, were in prior editions of this work (a). (a) Statute of Additions.]—To prevent the inconvenience of troubling one person for another, it is, by stat. 1 Hen. V. c. 5, "ordained and established, that, in every original writ of actions personal, and appeals, and indictments, in which the exigent shall be awarded, to the names of the defendants in such writs original, appeals, and indictments, additions shall be made of their estate or degree, or trade, and of the towns or hamlets, or places, and the counties, of the which they were, or are, or in which they are, or were, or may be, conversant; and if by process upon the said original writs, appeals, or indictments, in the which the said additions be omitted, any outlawries be pronounced, that they be void, frustrate, and holden for none; and that, before the outlaw- In which the Exigent shall be award- But it extends to any indictment 8. Particular requisites and parts. Consequence of misnomer. (b) Consequence of Misnomer of Defendant. The mode of taking advantage of a defective statement or omission of a defendant's name or addition is by plea in abatement. (And. 14, upon which process of outlawry lies, as well as to an appeal. (2 Hawk. c. 25, s. 70). Addition to the Names of the Defendants.]--Regularly, by the common law, every natural man, having no name of dignity, ought to be named in all originals and other suits by his Christian name and surname; and that, before this act, sufficed; but if he had a name of inferior dignity, (as knight or banneret), he ought to be named by his Christian name and surname, and by the addition of his name of dignity. (2 Inst. 655). It is not necessary that there should be any addition to the name of a prosecutor or prosecutrix in an indictment. (Sull's case, 2 Leach, 861). If there be a corporation of one sole person that hath a fee-simple, and may have a writ of right, he may be named by the common law by his Christian name, without any surname, as John Bishop of P. (2 Inst. 666). If it be a corporation aggregate of many able persons, as mayor and commonalty, dean and chapter, the mayor or dean need not to be named by his Christian name, because that such a corporation standeth in lieu both of the Christian name and surname. (2 Inst. 666). A duke, marquis, earl, viscount, or baron might by the common law be named by his Christian name, and by the name of his dignity; as John Duke of M. (2 Inst. 666). According to some authorities, the defendant was bound to answer to an indictment for felony, though his name of baptism was mistaken. (2 Hale, 238; 1 Stark. C. P. 42). According to others, no advantage could be taken of a mistake in the surname, (Staunf. 1. 3, c. 18, f. 182), though there might be of a mistake in the Christian name. (2 Hawk. c. 25, ss. 68, 69; 1 Stark. C. P. 43. See supra). One indicted for a misdemeanour may plead that his name is Shakespeare, and not Shakepeare, for the latter is not idem sonans. (R. v. Shakespeare, 10 East, 83, post, 885). A man may be known by two surnames, as J. S. and J. D., but not by two Christian names, as J. S. and W. S. (Bro. Abr. Misnom, pl. 47). But the mistake in the Christian name is pleadable, and the party sh be dismissed from that indictment. ? Hale, 176). But the safest way is to allow his plea of misnomer, both as to his surname and as to his Christian name; for he that pleads misnomer of either must in the same plea (viz. in abatement) set forth what his true name is, and the he concludes himself; and if the grand jury be not discharged, the indictme may presently be amended by the grand jury, and returned according to the name he gives himself. (2 Hale, 176. It is said that no person indicted er take any advantage of a mistaken surname in the indictment, notwithstanding such surname hath no matter of any with his true one, and he was never known by it. (2 Hawk. c. 25, s. 68 et seq.; 2 Hale, 176). In trespass against several, one not plead the misnomer of his onpanion. (Bro. Abr. Misnom, på 10, 59). Additions shall be made.]—The addition, as well of the estate, degree, of mystery, as the town, hamlet, or place, ought by force of this act to be alleged in the first name, for an addition after the alias dictus is ill; as, for instance, where the indictment was against "W.R., otherwise calledW.R. of H.," for with out the alias dictus there is no addition of the vill; and if the party be not s ciently named in the first part, the c cannot aid or help it. (2Inst. 669; 48% 3 Salk. 20.) Where there are several defendant of different names and the same ad tion, it is safest to repeat the addicion after each of their names, applying it particularly to every one of them. Hawk. c. 23, s. 106). Where a father hath the same name and the same addition with a defendant. being his son, the action is abateable, unless it add the addition of the younger to the other additions; but where the father is the defendant, it is said that there is no need of the addition of the elder. (2 Hawk. c. 23, s. 106). But see as to this in describing the prose cutor, R. v. Peace, (3 B. & Ald. 579; post, 884). So, if the son be in custodia marechalli, and so declared against, the count may be good without the addi 150; Johnson's case, Cro. Jac. 610; Rol. Ab. 780; ante, tit. "Abate- 8. Particular ment," Vol. I.) "For preventing abuses from dilatory pleas," it is enacted by statute tion of younger, unless the father of the same name and additions be also in the custody of the marshal; for, in these cases, a distinction must be made by some further description. (2 Hawk. c. 23, s. 106; Lepiot v. Browne, 1 Salk. 7). Addition of Estate or Degree.]-In legal understanding, these two words are of one signification, and do extend to persons of nobility, of dignity, and under the degree of nobility and dignity, as yeomen, &c., and do extend as well to the clergy as to the temporalty, and to graduates in universities in any kind of profession. (2 Inst. 666). In the name of dignities, my Lord Coke includes Baronets; and in Sir H. Ferrer's case (Cro. Car. 371) is a case where Sir H. F., baronet, was indicted by the name of Sir H. F., knight: being arraigned, he said he was never knighted; and the indictment was held not sufficient: he was then indicted de novo, by the name of Sir H. F., baronet, and pleaded not guilty: and no objection made to the addition of baronet. Hence it seems to be a good name of addition. Esquire is a good addition. And the eldest sons of peers, in the lifetime of their fathers, though frequently titular lords, yet are only esquires. So also the younger sons of peers, and their eldest sons in perpetual succession. Also the eldest sons of knights, and their eldest sons. There are also esquires by virtue of their office, as justices of the peace, and others who bear any office of trust under the Crown. (1 Blac. Com. 405). Mr. Christian, in his notes to Blackstone, says, "I cannot but think that this is too extensive a description of an esquire, for it would bestow that honour upon every exciseman and custom-house officer; it probably ought to be limited to those only who bear an office of trust under the Crown, and who are styled esquires by the king in their commissions and appointments; and all, I conceive, who are once honoured by the king with the title of esquire, have a right to that distinction for life." (1 Blac. Com. 406, . (19)). As to barristers being esquires, see tit. "Game," Vol. II. Foreign Dignities.-And it seems clear, that no one can be well described by the addition of a temporary dignity of any other nation besides our own; VOL. III. because no such dignity can give a man a higher title here than that of an esquire. (2 Hawk. c. 23, s. 109). But if a foreign nobleman be a knight here, he should be so described. (2 Inst. 667). All dukes, marquises, earls, viscounts, and barons of other nations, or which are not lords of the Parliament of England, are named armigeri, if they be not knights; and if knights, then they are named milites. (2 Inst. 67). Clerk is a good addition to a clergyman; and he that hath taken any degree in either of the universities may be named by that degree. (2 Inst. 668; 1 Blac. Com. 405). Gentleman and gentlewoman are good additions. And as for gentlemen, says Sir Thomas Smith, "they be made good cheap in this kingdom: for whosoever studieth the laws of the realm, who studieth in the universities, who professes liberal sciences, and (to be short) who can live idly, and without manual labour, and will bear the port, charge, and countenance of a gentleman, he shall be called Mr. Such-a-one, and shall be taken for a gentleman.' (1 Blac. Com. 406). Yeoman is a good addition; under which denomination are comprehended those who have freehold lands of 40s. a year, and thereby heretofore could serve upon juries, and can yet vote for knights of the shire, and do any other act where the law requires one that is a good and lawful man. (1 Blac. Com. 406). This degree is applied only to the man, and not to the woman. (2 Inst. 6 8). Labourer is a good addition, and in common use; for a trader may be sued by either his degree or mystery. (Mason v. Bushel, 8 Mod. 51, 52; Horspoole v. Harrison, 1 Stra. 556; Smithv. Mason, 2 Stra. 816; 2 Lord Raym. 1541, S. C.) But labourer is not a good addition for a woman; and an indictment will be quashed upon exception to such addition. (Reg. v. Franklyn, 2 Lord Raym. 1179). Widow or single woman, or (as some say) wife of such-a-one, are all of them good additions of the estate or degree of a woman; but no such like addition is good for the estate and degree of a man. Also spinster is a good addition of a woman. (2 Hawk. c. 23, s. 111). Citizens and burgesses are too general for additions within this act. (2 Inst. 268). LLL requisites and parts. 7 Geo. 4, c. 64, s. 19. 8. Particular 7 Geo. IV. c. 64, s. 19, "that no indictment or information shall be requisites and abated by reason of any dilatory plea of misnomer, or of want of addiparts. Addition of Mystery.]-This includeth all lawful arts, trades, and occupations, as tailor, merchant, mercer, parish clerk, school-master, husbandman, labourer, and the like. (2 Inst. 668). But servant, groom, or farmer are not additions within this act, because they are not of any mystery. And chamberer, butler, pantler, or the like, are additions of offices, and not of any mystery or occupation; (2 Inst. 668; R. v. Checkets, 6 M. & Sel. 88); but servant to a particular person is, it seems, good. (Com. Dig. Abatement, (F 26). Nor are the following additions sufficient: extortioner, maintainer, thief, vagabond, heretic, and such like. (2 Hawk. c. 23, s. 115; R. v. Checkets, 6 M. & Sel. 88). If a man hath divers arts, trades, or occupations, he may be named by any of them: but if a gentleman by birth be a tradesman, he shall not be named by his trade, but by the degree of gentleman, because it is worthier than the addition of any mystery. And in general, a man shall be named by his worthiest title of addition. (2 Inst. 668, 669). Alias dictus.]-In case of an alias dictus, such addition must be applied to the first name; for, if it be applied to that which comes under the alias dictus only, and not to the first name, the fault will be fatal; and it is so great a fault to put no addition to the first name, that where several are indicted, such an omission, in respect of one of them, makes the indictment vicious as to all. (2 Hawk. c. 25, s. 70; Semple's case, 1 Leach, 420; ante, 879. Addition of Places, Towns, or Hamlets.]-If there be two towns in a county of the same principal name, with different additions to distinguish them from one another, as Great Dale and Little Dale, or Upper Dale and Lower Dale, and the defendant named only of the principal town without any addition, as of Dale only, the defendant may plead that there are two Dales in the same county, and none without an addition. But if there be two towns of the same name in a county, without any addition to distinguish them, it may be sufficient in such case to name the defendant generally of either of such towns, without adding anything to dis tinguish it from the other. (2 Hark, c. 23, s. 121; 1 Chit. Crim. L. 609). If the defendant live in a hamlet of a town, it is said to be in the election of the party to name him either of the hamlet or of the town. (2 Hawk. c. 23. s. 122). But the addition of a parish, if there be two or more towns in it, is not good; but if there be but one town, the addtion of parish is good; and a parish shall be intended to contain no more than one town, unless the contrary be shewn. (2 Inst. 669; 2 Hawk. e 2, s. 120). The addition of the place of habitation of a wife is sufficiently shewa, by shewing that of the husband; because it shall be intended that the wife lives where the husband does. (2 Hack. c. 23, s. 124). Or Places.-If the defendant live in a place known by a special name, and lying out of any town or hamlet, he may be well named of such place: but if he live in any place known within a town or hamlet, it is said to be safest to name him of the town or hamlet. (2 Herk. c. 23, s. 123). Of which they were or be.-The addition of the estate, degree, or mystery ought to be as the defendant was of at the day of the indictment brought, and not late of such a degree or mystery; but it is a good addition to name the defendant late of such a town or place, because men do often remove their habitation. (2 Inst. 670). So, in the case of Lord Balmerino, after the rebellion in the year 1745, the indictment charged that Arthur, Lerd Balmerino, late of the city of Carisse, in the county of Cumberland, did so and so; Lord Balmerino objected, that this was no title belonging to ham: upon which the Lord High Steward informed him, that these words were not made part of his title, but only the addition of place, which the law", for good reasons, requires to be inserted, by way of description of defendants, in all indictments, and is most commonly taken from that place where the erine is, by such indictment, charged to have been committed. (Lord Balerino's Trial, 18 Howell's St. Tr. 461). Shall be void.]-This being a judement in law, is interpreted to be made void by a writ of error, or by the pira of the party coming in upon a copias ullagatum; for though the statute saith |