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CHAP. III.

Of the Description of the Defendant.

I. At common Law.

II. Under the Statute of Additions, p. 47.

1. AT common law it seems to have been sufficient to describe the defendant by his christian and surname, unless he was of the degree of a knight or some higher dignity, in which case the name of dignity (a) was required to be added to the name of baptism and surname (b), or in case of nobility, to supply the place of the surname. And if he were indicted in respect of his office (c), an addition of his office was necessary. With respect to the name of the party, there is much doubt in the books, whether certainty of both christian and surname was required in an indictment.

According to some authorities, the defendant was bound to answer to an indictment for felony, though his name of baptism was mistaken (d).

(a) 11 H. 4. 40. Com. Dig. Ind. G. 1. 2 Ins. 665, 666. 10 E, 4. 16. 11 H. 6. 11. (b) 2 Ins. 665, 666. (c) Com. Dig. Ind. G. 1. (d) Lord Hale (2 Hale, 238.) considers this as the better opinion, and cites 1 H. 5. 5. and 3 H. 6. 26.

But the case 1 H. 5. 5. is not a direct authority for this purpose, for there the misnomer was of the surname, and not of

the name of baptism. Hankford, justice, held, generally, that misnomer could in no case be pleaded to an indictment for felony. In 3 H. 6. 26. there is nothing more than an obiter dictum by Rolfe the counsel, and this is directly contrary to the Abbot of Colchester's case, 11 H. 4. 41. See Gerard's case, 2 Hale, 237. 2 Haw. c. 25. s. 68, 69.

According to others, no advantage could be taken of a mistake in the surname (e), though there might of a mistake in the christian name (f).

But Lord Hale was of opinion that it was safest to allow a plea of misnomer of either christian name or surname (g). And it is difficult to conceive why the one should not be allowed as well as the other; the reason of requiring certainty, in either case, is in order to identify the party arraigned or outlawed with the person against whom the indictment is found, for which purpose certainty in both christian and surname is material, of the latter indeed more than the former, since there is a greater variety of surnames than of names of baptism; and therefore the former serve to identify with greater precision than the latter.

In a recent case it was holden, that one indicted for a midemeanor might plead that his name was Shakespeare, and not Shakepeare, for the latter is not idem sonans (h).

And it has been holden that a person cannot have two christian names, and therefore an indictment was quashed which described the defendant by the name of Elizabeth

(f) 2 Haw. c. 25. 68, 69. 11 H. 4. 40. 2 Hal. 238. Layer's case, 6 St. Tr. 237.

(e) 1 H. 5. 56. Staunf. P. C. ander; and all the judges held, 1. 3. c. 18. f. 182. that if Alexander Gordon, upon such an attainder, had been brought to the King's Bench bar, and had made this matter appear, the court could not have awarded execution against him. 1 P. Wills. 617. See Lord Pitsligo's case, Fost. 79. (g) 2 Hale, 176.

By an act of attainder, 1 G. 1. it was enacted, that if MajorGeneral Thomas Gordon, Laird of Auchintoule, should not render himself before such a day, he should be attainted of high treason. Major-General Gordon's christian name was Alex

(h) R. v. Shakespeare, 10 East, 83.

Newman, alias Judith Hancock (i). But the defendant may be described by a second surname if it be laid under an alias, for a man may be known by two surnames (k).

If the defendant, in an appeal or indictment, plead misnomer of his surname, the plaintiff or the king may aver que conus per l'un nosme et l'autre (1). But little advantage is gained by a plea of this nature; since, as will afterwards be seen, the defendant must in his plea set forth his real name, upon which a new indictment may be found, which will conclude him (m).

But in some instances an indictment at common law is good, without naming any person certain, as if it state an highway to be out of repair through the default of the inhabitants, without naming them (n).

II. Under the statute of additions.

To prevent the inconvenience of mistaking one person for another, which might frequently arise were the party to be described by his name only (0), the stat. 1 H. 5. c. 5. enacts, that in all appeals and indictments (p), in which the exigent shall be awarded, to the names of the defendants, additions shall be made for their estate, or degree, or mystery, or of the towns, hamlets, or places, and counties, of which they were or be, or in which they be or were conversant; and then directs, that if these additions be omitted, any outlawry pronounced on the pro

(i) 1 Ld. Ray. 562. tamen qu. and vid. 6 Mod. 116. 1 Camp. 479. 1. Chitty's Crim. L. p. 202.

(k) Semple's case, Leach, 469. 1 H. 7. 28. Bro. Misno. 47.

(n) 2 Roll. Ab. 79.

(2) 21 E. 4. 72. 2 Ins. 670. 2 Hale, 176. 2 Haw. c. 23. s. 105.

(p) Presentments are within the statute, although they are not mentioned in it. Burr.

(2) 1 H. 7. 29. 2 Hale, 238. 2556. Leon. 200. (m) 2 Hale, 238.

cess shall be bad, and that before the outlawries pronounced, the said writs or indictments, shall be abated by the exception of the party wherein the said additions be omitted.

Under this statute it has been holden, with respect to estate or degree, that these two words are of the same signification, comprehending the nobility, clergy, graduates in any professsion, and those under the degree of nobility, as yeoman, &c. (q); that the party must be described by his present estate or degree (r); and therefore, to describe him as nuper armiger, &c. is insufficient. That he cannot be described by any dignity, which he holds in any nation except England (s); yet it has been said, that an Irish bishop may be described by the addition of his diocese (t).

The degree of serjeant at law, is a good addition (u); so for a man, esquire, gentleman (a), yeoman (y), and labourer, are good additions; but burgess (z), citizen (a), and servant (b) are too general.

The defendant may be described by his dignity by creation (c), as earl; by his name of dignity, as garter (d); by his reputed degree, as if a yeoman be styled gentleman, it will be sufficient, if he be so reputed (e); but if he be not

so reputed, the indictment may be quashed (ƒ); so if the defendant be described Sir I. S. knight, he may plead that he is a baronet (g).

The addition of office is insufficient, unless the party be indicted in respect of his office (h). So to describe one as an extortioner, maintainer, or by any other unlawful practice, is bad (i).

When a person has two names of dignity, the highest is most proper (k).

In an indictment against a peer, no addition is necessary, unless it be for treason, felony, or breach of the peace; for in other cases no process of outlawry lies against him (7).

A female may be described as single woman, spinster, widow (m), the wife of I. S. yeoman (7); but to describe her as A. the wife of B. spinster is bad, for spinster may be referred to either A. or B. (o).

But an indictment against J. B. husband of E. B. late of C. yeoman, is good, because yeoman cannot be applied to the wife (p).

If a gentlewoman be named spinster, she may plead in abatement; for, according to Lord Coke, she has as good a right to that addition as a baroness, viscountess, &c. has to hers (q).

Where the defendant is of the greater order of nobility, the description of his dignity precedes that of the place, (m) B. Add. 66. 10 H. 6.

(f) 2 Ins. 667, 668.

(g) 2 Haw. c. 25. s. 69. Cro.

Car. 371. Jones, 346.

(h) Com. Dig. Ind. G. 1.

21.

(n) Gower's case, Dy. 47. a. Cro. Eliz. 750. 4 H. 6. 4. b.