shall ascertain at once the latitude which ought to be permitted in the description of offences for the purposes of justice, and that wholesome caution and strictness, which ought to be observed for the avoiding of confu sion, and the exhibiting of the defendant's guilt with certainty upon the face of the record; in order that substantial justice may not be frittered into empty form on the one hand, and that the life and liberty of the subject may not be placed in jeopardy by ignorance or carelessness on the other. But, at all events, where an indictment is founded upon a statute, reason and convenience seem to require, that the terms and expressions used by the legislature, as descriptive of the offence, should be adopted in framing that indictment; the insertion of others does not seem justifiable on any principle; for a substituted word or phrase can never so directly and pointedly support the charge as the one used by the legis lature. III. Of the averment that the offence was committed against the form of the statute. 'The necessity for this averment may be considered, 1st. In cases affected by one statute only. 2ndly. In those affected by more than one statute. If an offence did not exist at common law, but is entirely 'ed by a statute, it seems, from all the authorities, to cessary to aver the offence to have been committed formam sto ), and that, in default of such an an be given against the defenthe same where an offence at (e) 2 Haw. c. 25. s. 116. 2 Hale, 192. 251. 1 Saund. 135. n. 3. Doug. 428. common law is made an offence of an higher nature, by a statute, as where a misdemeanor is made a felony, or a felony treason (f). Where the offence existed at common law, but the of fender is, under particular circumstances, deprived by a statute of some benefit to which he was entitled at common law, the averment is unnecessary, for the statute does not inflict a new punishment, neither does it alter the nature of the offence (g). But the averment in such case would not be improper; for though the statute does not inflict a new penalty, it takes away an old privilege (h). So under the statute 21 J. 1. c. 27. it was holden to be unnecessary to conclude against the form of the statute, for the act created no new crime, but only introduced a new rule of evidence (i). Where the offence existed at common law, and an additional punishment is inflicted by the statute, the offender, if this averment be omitted, is liable to the common law punishment, but not to the new penalty under the statute (k). Where the offence existed at common law as declared by a statute, such as the stat. 25 E. 3. de proditionibus, the averment may be either used or omitted (). Where an offence, as described in the indictment, is pu (f) 2 Haw. c. 25. s. 116. R. v. Clerk, Salk. 370. (g) 2 Hale, 190. 1 Saund. 135. a. n. (h) 2 Hale. 190. Page v. Harwood, Aleyn, 43. Sty. 86. Ld. Ray. 150. 1 Salk. 212. (i) 2 Hale, 190. 288. 2 Haw. c. 46. s. 43. Kel. 36. (k) 2 Hale, 190. 1 Saund. 135. 2 Roll. Ab. 82. (7) 2 Hale, 189. But under the st. 39 G. 3. c. 85. although it is declaratory, it is necessary to indict specially. See R. v. Jones, E. P. C. 576. nishable at common law only, and yet the indictment avers it to have been done against the form of the statute, it seems to have been doubted whether the indictment was good at common law. Lord Hale was of opinion, that if the offender were not brought within the words of the statute, if the indictment concluded contra formam, it should be quashed, though an offence be described which is indictable at common law (m) As if a man be indicted for drawing his dagger in the church, upon J. S. against the form of the statute, but the indictment omit the words, "with intent to strike (n)," the indictment will be quashed. But in numerous instances the conclusion has been holden to be mere surplusage (o). Where several statutes related to the same offence, it was formerly holden that it ought to be laid to have been committed contra formam statutorum, and it is seriously recommended, by great authorities, to lay the offence contra formam statut. which might be taken either in the singular or the plural as the case required; this piece of precaution was rendered unavailable by the statute which prohibits the use of abbreviations in indictments. In the case of Hothbury v. Levingham (p), it was holden, that a conclusion contra formam statuti for taking averia caruca was good, although the offence was prohibited by each of two statutes. A distinction has been made between the case of an offence prohibited by each of two statutes, and those where an offence is punishable by virtue of two statutes taken together, and not by virtue of either singly. As where by a subsequent statute it is enacted, that the former shall be executed in a new case, or that an additional penalty shall be inflicted. But, according to later opinions, a conclusion in the singular would in the latter instances be sufficient (9). If a temporary act be made perpetual by a second, a conclusion in the singular will be sufficient (r). So if a statute which has expired be revived by another, it seems that a conclusion in the singular is sufficient; though, according to Lord Hale, it is safer to conclude in the plural (s). If one statute adopt and continue the provisions of a former, the indictment must conclude in the singular (t), and the former statute is continued, though the continuing statute make some alteration (u). So where the statute is continued in part (x). Where one statute creates the offence, and another adds the penalty, the indictment ought to conclude against both (y). But it would be sufficient, in such case, to allege the offence to have been committed against the form of the statute, and to conclude whereby and by force of the statute, &c. (z). Where the indictment is founded upon one statute (q) 2 Haw. c. 25. s. 117. (s) Mill's case, 2 Hale, 173. 2 Saund. 377. n. 12. (z) Cro. Eliz. 750. (y) 2 East, 339. Ow. 135. Cro. Eliz. 750. 2 Hale, 173. Cro. J. 142. (z) 7 East. 517. which is explained by several others, it should conclude in the singular (a). So where a second statute merely regulates the operation of the first (b). It has been holden, that where the plural word statutes is used instead of statute in the singular, the indictment will be insufficient (c): as if a second statute merely continue a former one, without making any addition to it or altering the substance of its purview. (a) 2 Saund. 377. (b) Cro. J. 187. (c) 2 Haw. c. 25. s. 117. Cro. Car. 187. Yel. 116. but see 2 Hale, 173. In Clarke's case, E. P. C. 600. the indictment, charging the prisoner with stealing money, goods, and bank notes, concluded generally against the form of the statute. An indictment under the stat. 33 H. 8. c. 23. for a murder committed abroad, need not conclude against the form of the statute, Sawyer's case, Easter, T. 55 G. 3. An indictment lies at common law for obstructing the execution of a power given by a stat., and ought not to conclude against the form of the statute, Doug, 441, |