parts. tion, or of wrong addition, of the party offering such plea, if the Court 8. Particular shall be satisfied, by affidavit or otherwise, of the truth of such plea; requisites and but, in such case, the Court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded." Under this statute, where a woman charged with the murder of her husband was described as " A., the wife of J. O., late of the parish of S., they shall be void, yet they are but voidable by a writ of error or plea. (2 Inst. 670). By the Exception of the Party.] But if a trader be sued by his degree, the writ shall not abate, unless he shew that he has a higher degree. (Horsepoole v. Harrison, 1 Stra. 556; Smith v. Mason, 2 Stra. 816; 2 Ld. Raym. 1541, S. C.) So, if the defendant appear upon process, and plead, taking no advantage > thereof by exception, he hath lost the benefit thereof: but it seemeth that the bare appearance of the party, without plea, doth not salve the want of a good addition. (2 Hawk. c. 123, s. 25). See now the 7 Geo. IV. c. 64, supra. remedied by 1 Edw. VI. c. 7, s. 3; by which it is enacted, that if any plaintiff, in any manner of action, shall be made a duke, archbishop, marquis, earl, vis. count, baron, bishop, knight, justice of either bench, or serjeant-at-law, depending the same action, such action for such cause shall not be abateable or abated. In indictments of treason, felony, &c., against the greater nobility, (dukes, marquises, earls, viscounts, and barons), the estate and degree is named first, and after the town and county: as, Edwardus Dux de Buckingham nuper de N. in com' Glouc'. And so it is when one is named of a city, which is a county of itself, the like order is observed. J. S. pannarius de London, in com' civitatis London. But in case of the lesser no county are named before the addition. (2 Inst. 669). Replication to Plea of Misnomer.]—bility, and all under them, the town and To a plea of misnomer (which may be pleaded ore tenus) to an indictment, the clerk of arraigns may, in behalf of the Crown, reply, that the prisoner is known as well by the one name as the other; and if the jury find for the Crown, the prisoner may plead over to the indictment. (Dean's case, 2 Leach, 476). Second Indictment.]-But if an indictment of a capital crime be abated for a misnomer of the defendant's Christian name, the Court will not dismiss him, but cause him to be indicted de novo by his true name, and arraign him again on such new indictment: for regularly a defendant shall not be dismissed for an insufficiency in an indictment, or an appeal for a capital crime; but that as he that pleads a misnomer of either his surname or Christian name must in the plea set forth what his true name is, he thereby utterly concludes himself; and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. (2 Hale, 176). Plaintiff obtaining a Dignity.]—Anciently, if a plaintiff gained a new name of dignity, hanging a writ, he made it abateable; but this inconvenience was Also, an indictment naming the defendant by two Christian names is not good, as where one was indicted by the name of Elizabeth N., alias Judith H. (R. v. Newman, 1 Ld. Raym. 562. Sed quære, see supra). In the County aforesaid.]—If there be two counties named, one in the margin, and another in the addition of any party, or in the recital of an act of Parliament, the fact laid at such a place in the county aforesaid vitiates the indictment, because two counties are named before, and therefore it is uncertain to which it refers. (Cro. Cir. C. 36. See R. v. Holbeck in Leeds, 4 T. R. 778). If several persons be indicted for one offence, misnomer, or want of addition of one, quashes the indictment only against him, and the rest shall be put to answer; for they are in law as several indictments. (2 Hale, 177). See now 7 Geo. IV. c. 64, supra. And it is the common practice, where an indictment is insufficient, while the grand jury is before the Court, to amend it by their consent in a matter of form, as the name or addition of the party, or the like. (2 Hawk. c. 25, s. 98). Indictment. § VIII. 8. Particular in the county of W., labourer," the judge, at the trial, ordered this requisites and to be amended, by striking out the word "wife," and inserting the word parts. "widow." (Reg. v. Orchard, 8 Car. & P. 565). 4. Name and description of prosecutor and third persons. How to be stated. When name known. When unknown. Addition. This enactment makes pleas in abatement for misnomer or want of addition of very little use. We therefore forbear entering into a full detail of the law as to what is a sufficient description of a defendant's name and addition. See such law fully collected in 1 Chit. Cr. Law, 202 to 210; Jervis's Archb. Cr. Law, 9th edit., 27, &c.; and see tit. “Abatement,” Vol. I., as to pleas in abatement, and the note, ante, 879 et seq. 4. NAME AND DESCRIPTION OF PROSECUTOR AND THIRD PERSONS. And herein (a) How they are to be stated. (b) The Consequences of a Misstatement. (a) How stated. When known.]-Wherever the name of the person injured is known to the jurors, his Christian and surname ought to be put in the indictment. (2 Hawk. c. 25, s. 71). But he may be described by the name he has assumed, though not his right name.(R. v. Norton, R. & R. C. C. 510; R. v. Sull, 1 Leach, 100 to 105; R. v. Berriman, 5 C. & P. 601; Anon., 6 C. & P. 408; R. v. J. Williams, 7 C. & P. 298). And, upon an indictment for the murder of a bastard child, it cannot be described by the name of its mother, unless that name be gained by repatation. (R. v. Clark, R. & R. 358; R. v. Evans, 8 C. & P. 765′′; R. v. Smith, 1 Mood. C. C. 402; R. v. Waters, 7 C. & P. 250). When unknown.]-But if they know not his name, an indictment for If the person injured be described as a certain person to the jurors Addition of Party.]-Also, there is no need of an addition of the person upon whom the offence is committed, unless there be a plurality of persons of the same name; neither then is it essential to the indictment, though sometimes it may be convenient, for distinction sake, to add in (2 Hale, 182). 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. (R. v. Peace, 3 B. & Ald. 579). But in R. v. Deeley, where the prisoner was convicted at the Old Bailey April Sessions, 1831, of bigamy, on an indictment for marrying “Elizabeth Chant, widow," his former wife being alive, and it appeared in evidence that Elizabeth Chant was a spinster; on a case reserved, the twelve judges held the variance fatal, and that the prisoner was entitled to his discharge. (R. & M. C. C. 303; 4 C. & P. 579, S. C.) In R. v. Ogilvie, (2 C. & P. 230), it was held, the addition of Esquire 8. Particular to the name was not material, and, though not proved, it was not ground requisites and for an acquittal. parts. Dignity of Party.]-If the third party has a name and dignity, as a Dignity. peer, baronet, or knight, he should be properly described by it, because a name of dignity is not merely an addition, but, being the very appellation by which the individual is commonly known, becomes, therefore, actually part of his name. A variance, therefore, in this respect is fatal; as, to describe a man a marquis, when he is an earl; or a knight, when he is, in fact, a baronet. (2 Hawk. c. 25, ss. 70, 71). The usual way of describing a peer is by his Christian name and his title, as, Lawrence Earl of Ferrers, omitting his family surname; but there seems to be no objection to describe him also by his surname, as William Byron, Baron Byron. (19 St. Tr. 1177; R. v. Brinklett, 3 C. & P. 416). Á baron has been held well described as Lord A. (Reg. v. Pitts, 8 C. & P. 771; Reg. v. Elliott, Id. 772, n.) Bastards.]-A bastard should be described by the name he has gained Bastards. by reputation: describing him of his mother's name, he not having gained that name by reputation, would be bad. (R. v. Clarke, R. & R. 358. See tit. "Bastards," Vol. I.) Idem Sonans.]-If the sound of the name be not affected by the mis- Idem sonans. spelling, such mis-spelling will be immaterial; and where a party was indicted for an offence upon one Whyneard, whose real name was Winyard, but pronounced Winnyard, the indictment was held good. (R. V. Foster, R. & R. C. C. 412). So, "Benedetto," for "Beneditto," is no variance. (Ahitbol v. Beneditto, 2 Taunt. 401). Nor is "Segrave" for Seagrave. (Williams v. Ogle, 2 Stra. 889). But an indictment charging the prisoner with having personated" M'Cann," instead of 'M'Carn," is bad; (3 Stark. Evid. 1578); and “ Tarbart," for "Tabart" (5 Taunt. 514); "Shakepeare," for "Shakespeare;" (R. v. Shakespeare, 10 East, 83); and "Shutliff," for " Shirtliff," are variances. (1 Chit. C. L., 2nd edit., 216). 46 As to the mode of describing the names of the party injured, and others, in the particular offences of larceny, burglary, forgery, &c., see those titles. In larceny, burglary, forgery, &c. Corporation.]-Where the property stolen or injured belongs to a Corporation. corporation, it must be laid to be the property of the corporation in their corporate name, and not in the names of the individuals who compose it. (2 East's P. C. 1059; 1 Leach, 253). There is some difference, however, in this respect, between an ancient corporation and one newly created: an ancient corporation may by use have a special name, differing in substance from that by which they were originally incorporated, and they may plead and be impleaded by that name; but a corporation created within memory must plead and be impleaded by the name by which they were incorporated. (Hob. 211; Ñoy, 54; 2 Brownl. 292; Latch, 229; Bagg's case, 11 Co. 94; Dy. 279: R. v. Sir Robert Atkins, 3 Mod. 6; Vaughan v. Bedford, Cro. El. 351; Bac. Abr. Corp. (C 3). And see 10 Co. 87; 1 Leach, 513). Where, by a local act, 24 Geo. III. c. 15, certain inhabitants in seven parishes were incorporated by the name of "the guardians of the poor of those parishes," and the property belonging to the corporation was vested in certain directors for the time being, the judges held, upon an indictment for embezzling the monies of the corporation, that they should have been laid as the monies of the guardians of the poor by their corporate name, or of the directors for the time being in their individual names. (R. v. Beacall, R. & M. C. C. 15. Vide Sherington and Bulkley's case, 1 Leach, C. C. 513). 8. Particular requisites and parts. Partners, joint owners, and com. panies, &c. Partners, Joint Owners, Companies, &c.]-Various statutes have been passed to remedy the difficulty experienced in describing the names of owners of property. Thus, by 7 Geo. IV. c. 64, s. 14, "to remove the difficulty of stat the names of all the owners of property in the case of partners and joint owners," it is enacted, "that, in any indictment or informatie i any felony or misdemeanour, wherein it shall be requisite to sta the ownership of any property whatsoever, whether real or personal, shall belong to, or be in the possession of, more than one person, wher such persons be partners in trade, joint-tenants, parceners, or tenant z common; it shall be sufficient to name one of such persons, and to sh such property to belong to the person so named and another or others, the case may be; and whenever, in any indictment or information i any felony or misdemeanour, it shall be necessary to mention, for y purpose whatsoever, any partners, joint-tenants, parceners, or tenans common, it shall be sufficient to describe them in the manner aforesai and this provision shall be construed to extend to all joint-stock co nies and trustees." Now, therefore, whenever, in an indictment or information, either i felony or misdemeanour, it is necessary to state the ownership of perty, real or personal, if it belong to partners, joint-tenants, parece? or tenants in common, it is sufficient to lay it as the property of "A♪ and another," or as the property of " A. B. and others;" and this pr sion also extends to all cases where it is necessary to mention such e sons for any purpose in any indictment or information. And, whit highly important, this enactment extends to joint-stock co many of which are not bodies corporate, and also to trustees. [ far as regarded companies, was not before included in any gene ment; although, in private acts of Parliament which relate surance companies, &c., it was not unusual to insert a clause, that th should sue and be sued by their secretary, and that their prest should be laid, in indictments, &c., as belonging to him. (Se C. L. 26). The words of the statute are "another or others;" and, therefore, h a prisoner was indicted for stealing paper, the property of George Fre and others, and it appeared in evidence that the paper was the pr? of George Eyre and another only, viz. Andrew Strahan, his pare prisoner was acquitted. (Per Denman, Com. Serj., R. v. Greenw. Col. Stat. 143). But it is not necessary that a strict le nership should exist. Where C. and D. carried on business in parta ship, and the widow of C., upon his death, without taking out a stration, acted as partner, and the stock was afterwards divided b her and the surviving partner, but, before the division, part of the was stolen; it was holden, that the goods were properly described joint property of the surviving partner and the widow, upon a tion that the children of C. ought to have been joined, or the scribed as the property of the surviving partner and the ordinare, ministration having been taken out. (R. v. Gabey, R. & R. 178 where a father and son took a farm on their joint account, and stock of sheep, their joint property, and upon the death of the father carried on the business for the joint benefit of himself and his children, who were infants, it was holden, upon an indictment fr ing sheep bred from the joint stock, some before and some after death of the son, that the property was well laid in the father son's children. (R. v. Scott, R. & R. 13; 2 East, P. C. 655) indictment for stealing a Bible, a hymn-book, &c., from a Meth chapel, the goods were laid as the property of John Bennett and and it appeared that J. Bennett was one of the society, and a tru the chapel: Parke, J., held that the property was laid corre Bennett. (R. v. Boulton, 5 C. & P. 537 ; Jerv. Arch. C. L., 9th edi. In indictments or informations by or on behalf of joint-stock co-partnerships, for stealing or embezzling money, goods, effects, bills, notes, securities, or other property belonging to them, or for any fraud, forgery, crime, or offence committed against or with intent to injure or defraud such co-partnerships, the money, &c. may be stated to be the property of, and the intent may be laid to defraud, any one of the public officers of such co-partnerships; and the name of any one of their public officers may be used in all indictments or informations where it otherwise would be necessary to name the persons forming the company. (7 Geo. IV. c. 46, s. 9). It has been doubted, whether, upon an indictment by a joint-stock bank for forgery, the intent must not be laid to defraud a public officer of such co-partnership; (R. v. Burgess, 7 C. & P. 490); but the better opinion seems to be that this statute is cumulative merely, (R. v. James, 7 C. & P. 553), and that the prosecutor may at his option describe the property, or lay the intent, according to this statute, or the stat. 7 Geo. IV. c. 64, s. 14, or the stat. 11 Geo. IV. & 1 Will. IV. c. 66, s. 28, by which it is sufficient in any indictment for forgery to name one person only, where the intent is to defraud a company, society, or number of persons, and to allege the offence to have been committed with intent to defraud the person so named, and another or others, as the case may be. (Jerv. Arch. C. L., 9th edit., 33). Counties, Inhabitants, &c.]—With respect to the description of the owner of property belonging to a county or division, it is enacted, by 7 Geo. IV. c. 64, s. 15, "that, in any indictment or information for any felony or misdemeanour committed in, upon, or with respect to any bridge, court, gaol, house of correction, infirmary, asylum, or other building erected or maintained, in whole or in part, at the expense of any county, riding, or division, or on or with respect to any goods or chattels whatsoever, provided for or at the expense of any county, riding, or division, to be used for making, altering, or repairing any bridge, or any highway at the ends thereof, or any court or other such building as aforesaid, or to be used in or with any such court or other building, it shall be sufficient to state any such property, real or personal, to belong to the inhabitants of such county, riding, or division, and it shall not be necessary to specify the names of any of such inhabitants." In all these cases it is now sufficient, under this act, to lay the property in "the inhabitants" of the county, riding, or division, without naming any of them. 8. Particular requisites and parts. Counties, inhabitants, &c. &c. Parishes, Townships, &c.]-With respect to the description of the Parish, township, owner of property belonging to a parish, township, or place, the stat. 7 Geo. IV. c. 64, s. 16, enacts, "that, in any indictment or information for any felony or misdemeanour committed in, upon, or with respect to any workhouse or poor-house, or on or with respect to any goods or chattels whatsoever, provided for the use of the poor of any parish or parishes, township or townships, hamlet or hamlets, place or places, or to be used in any workhouse or poor-house in or belonging to the same, or by the master or mistress of such workhouse or poor-house, or by any workmen or servants employed therein, it shall be sufficient to state any such property to belong to the overseers of the poor, for the time being, of such parish or parishes, township or townships, hamlet or hamlets, place or places, and it shall not be necessary to specify the names of all or any of such overseers; and in any indictment or information for any felony or misdemeanour committed on or with respect to any materials, tools, or implements provided for making, altering, or repairing any highway within any parish, township, hamlet, or place, otherwise than by the trustees or commissioners of any turnpike road, it shall be sufficient to aver that any such things are the property of the surveyor or surveyors of the highways, for the time being, of such parish, township, hamlet, or place, and it shall not be necessary to specify the name or names of any such surveyor or surveyors." |