all events, be understood with very considerable restrictions; for, it is perfectly clear, that the king is not in general bound by either the day or place laid in the indictment, though averred without a scilicet. In prosecutions for murder, a variance from the instrument will not be material, provided the kind of death agree with that which is stated. So, in indictments for extortion, or taking a greater sum for brokerage than is allowed by an act of parliament (r); and in many other instances, it is not necessary that the evidence should strictly correspond with the allegation of the sums stated, though they be specified without the aid of a videlicet.

Where indeed a fact is averred, which is to be proved by the production of a record or other written instrument, since it is necessary to aver that fact with time and place, care must be taken not to aver the time and place as descriptive of the record or other instrument; for if such an intention appear, a variance from such time and place will be fatal (s). And, therefore, to avoid all doubt in such cases, it is proper to aver the time and place under a scilicet; which shews unequivocally, that the averments are not used descriptively and substantially, but only formally. Thus, in an action for a malicious prosecution, the declaration averred, that " afterwards, to wit, on the morrow of the Holy Trinity, &c. the plaintiff was in due

Knox, 3 T. R. 68. the party pleaded, that such a sum was due and no more. And in the case of Durston v. Tatham, which was cited in the former, the sum stated without a videlicet, and by which the party was

holden to be bound, was part of the consideration of the pro

(r) R. v. Gillham, 6 T. R. 265.

(s) As by the words "prout patet per recordum," 9 East. 160.

Purcell v. Macnamara, and see R. v. Payne there cited, also Green v. Rennett, 4 T. R. 590. Brisley v. Watson. 2 Bl. R. 1050.

manner and by due course of law acquitted.". By the record of nisi prius it appeared, that the acquittal took place on Tuesday next after the end of Easter term, yet the allegation was holden to be sufficient (t). And in general, whenever an allegation of time, place, magnitude, quantity, or any other circumstance, is necessary, but need not be exactly proved, care should be taken to avoid the use of such terms, as shall bind the prosecutor to a strict proof; and this is usually and technically done, by averring the time, place, or other circumstance, under a videlicet (u). It seems, however, that this intention may be manifested by other means; and the case of the King v. Gillham (x) is strong to shew, that the want of a videlicet will not render strict proof necessary of an allegation of any circumstance material in itself, but not otherwise requiring strict proof, where there are no words which show that the allegation was used as descriptive of any contract, record, or other instrument, with which it may be compared, and from which it varies. The defendant was indicted under the stat. 17 G. 3. c. 26. which prohibits any broker, &c. from accepting more than 10s. in every hundred pounds for brokerage, &c. The first count stated, that the defendant received 3321. 10s. as a gratuity or reward for soliciting and procuring the loan, and for the brokerage of the sum of 24501. then and there advanced, &c. It appeared upon the trial, that the sum of 3321. 10s. was not received for

(t) Purcell v. Macnamara, K. B. Mich. 48 G. 3. Peake's Evid. 207. In the case of Pope

v. Foster, 4 T. R. 590. the day of the trial was holden to be substantial, though laid under a videlicet.

(u) Symmons v. Knox, 3 T. R. 65.

(x) 6 T. R. 265. and see R. v. Burdett, 1 Ld. Ray. 149. 3 T. R. 632.

brokerage only, but that part of it was due to the defendant as an attorney, for having prepared the writings. But the court was of opinion, upon motion in arrest of judgment, that since the offence consisted in taking more than 10s. in the 1007. and that the judgment did not depend on the quantity of the excess, the variance was immaterial (y).

Effects of variance.

It has already been seen, that it is essential to every indictment that it should affect a formal accuracy in the description of persons, time, place, sums, magnitude, quantity, value, &c. (z).

But a variance in evidence from the statement, in respect of time, place, magnitude, &c. is never material, unless the time, &c. be of the essence of the offence, provided the description be in substance correct (a). And it seems to be a general rule, that wherever an allegation may be wholly struck out of the indictment, without injury to the charge alleged, it need not be proved (b).

It has already been seen what variance will be fatal in the description of a statute, public or private (c). With respect to the pleading of other documents, much depends upon the particular terms in which the indictment professes to describe the instrument, and upon the importance of the instrument itself.

For if it be introduced by way of inducement, and merely as collateral to other matter, a substantial descrip

(y) 6 T. R. 371. So in an indictment for larceny from lodgings, the contract for the lodgings must be proved as laid. R. v. Goddard and Fraser, Leach, 617. 3d edit. and evidence of a separate contract

will not support an allegation
of a joint contract.

(z) See chap. 10.
(a) See p. 170. 239.
(b) See p. 234. tit. Surplu-

sage.

(c) See chap. 12.

tion will suffice, and a minute and formal variance will not be fatal. In May's case (d) the defendant was 'indicted for perjury, alleged to have been committed on the trial of an indictment for an assault. The indictment for the assault charged, that the prosecutor had received an injury "whereby his life was greatly despaired of." The indictment for perjury introduced the indictment for the assault in these words: "which indictment was presented in manner and form following, that is to say," and then set forth the indictment at length, with the exception of the word despaired. But it was holden, (e) that though the word " tenor" had so strict and technical a meaning as to render a literal recital necessary, yet that under the words "in manner and form following, that is to say," nothing more than a substantial recital was necessary.

In the case of the King v. Lookup (f), the indictment (for perjury) stated the bill in Chancery to be directed to Robert Lord Henley, &c. in fact it was directed to Sir Robert Henley, knight, &c.; but the objection was overruled.

In the case of Hendray v. Spencer (g), for permitting a defendant who had been arrested under a latitat, to escape, the declaration stated a latitat against Donner and J. Doe; the writ produced in evidence was against Donner and two others, and not against Donner and J. Doe, but Lord Mansfield overruled the objection (h).

(d) Leach, 227.
(e) By Mr. J. Buller.

(ƒ) Cited in R. v. Pippett, 1 T. R. 240.

(g) Cited in the same cașe.
(h) See alo R. v. Pippett, 1

T. R. 235. Cuming v. Sibley, cited 1 T. R. 239. and Shuttelworth v. Pilkington, 1 T. R. 240. See Frith v. Gray cited 4 T. R. 561.

But if a material descriptive allegation be contradicted by the record produced to prove that allegation, the variance will be fatal.

Thus where judgment is alleged to have been given in such a term, as appears by the record thereof, &c. if in fact it appear from the record, that judgment was given in a different term, the variance would be fatal (i).

In an action for a malicious prosecution, the declaration alleged the plaintiff's acquittal "on Wednesday next after 15 days, &c. in the court of our said lord the king, before the king himself, at Westminster, before the Lord C. J. assigned to hold pleas before the king himself." From a copy of the roll it appeared, that the plaintiff had been acquitted at nisi prius, and the variance was holden to be fatal, since the words of the declaration are descriptive of a trial at bar (),

An indictment for perjury stated, that the defendant went before a justice of the peace, and swore in substance and to the effect following, that is to say, "that the said S. N. on, &c. at, &c. made an assault upon her the said M. A. T. with an umbrella, and at the same time threatened to shoot her with a pistol; " the information was produced, and ran thus, "and at the same threatened to shoot her," &c. omitting the word time, and the variance was holden to be fatal. (/).

So in prosecutions for forgery (m), perjury (»), blasphemous or seditious words (o), libels (p), &c. where the indictment is founded upon the very terms and expres