sion, city, borough, town corporate, parish, township, or place mentioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate therein stated or alleged to be the owner or owners of any property real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons body politic or corporate therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence, or in the christian name or surname, or both christian name and surname, or other description whatsoever of any person or persons whomsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the Court before which the trial shall be had, if it shall consider such variance not material to the merits of the case and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended according to the proof by some officer of the court or other person, both in that part of the indictment wherein such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury as such Court shall think reasonable," &c.

As regards variances between written instruments referred to or set out in the indictment and the proof upon the trial, the 11 & 12 Vict. c. 46, s. 4, enacts "that it shall and may be lawful for any court of oyer and terminer and general gaol delivery, if such court shall see fit so to do, to cause the indictment or information for any

offence whatever, when any variance or variances shall appear between the matter in writing or in print produced in evidence, and the recital or setting forth thereof in the indictment or information, whereon the trial is pending, to be forthwith amended in such particular or particulars by some officer of the court, and after such amendment the trial shall proceed in the same manner in all respects, both with regard to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance or variances had appeared.'

The provisions of this section have, by the 12 & 13 Vict. c. 45, s. 10, been extended to indictments at quarter sessions.

Upon these statutes several decisions have been pronounced. In Reg. v. Frost (1 Dears. 472; 6 Cox C. C. 526), Reg. v. Larkin (1 Dears. 365; 6 Cox C. C. 377), it was held that an amendment must be made before verdict. When an amendment has been once made there is no power of amending such amendment, or of reverting to the indictment as it originally stood: (Reg. v. Barnes, L. Rep. 1 C. C. Res. 45; 35 L. J. M. C. 204; Reg. v. Pritchard, Leigh & C. 34; 30 L. J. M. C. 169; Reg. v. Webster, Leigh & C. 77.) An indictment for the obstruction of a footway may be amended where one of the termini of the footway has been misdescribed: (Reg. v. Sturge, 3 El. & Bl. 374; 23 L. J. M. C. 172.) So an amendment was made upon a trial for perjury, where it was alleged that the perjury was committed on a trial for burning a barn, whereas the. proof was, that the trial was for firing a stack: (Reg. v. Neville, 6 Cox C. C. 69). So upon an indictment charging the defendant with the intent to kill and murder A. W., an infant, and there was a failure of proof that the child had ever borne that name,

the indictment was amended by striking out the name, and describing the child as "a female child whose name is to the jurors unknown": (Reg v. Welton, 9 Cox C. C. 297). An amendment which alters the nature or quality of the offence charged will not be made; thus, where the defendant was indicted for a forgery, which was charged as a statutable felony, but upon the trial it proved to be only a forgery at common law, and, therefore, misdemeanor, the judge refused to order the word "feloniously" to be struck out: (Reg. v. Wright, 3 F. & F. 320). So, also, where a false pretence had been misdescribed, the judge held that he had no power to amend: (Reg. v. Bailey, 6 Cox C. C. 29).

a

In conclusion, it may be observed that whilst there is no legal objection to the insertion of any number of counts so as to meet the possible proof, it is very desirable that each should be kept distinct by the use of the terminations to which reference has already been made, and that each count after the first should commence "And the jurors aforesaid, upon their oath (and affirmation) aforesaid, do further present;" and, although it is also commonly the practice in long counts to introduce each new and important allegation by similar words, they are in themselves legally useless in the body of the count, though they sometimes assist in rendering the count more clear and intelligible.

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PRECEDENTS OF FORMS.

ABDUCTION.

Indictment for the Abduction of a Woman on account of her Fortune (24 & 25 Vict. c. 100, s. 53).

The jurors for our Lady the Queen upon their oath present, that A. B., on the

to wit. day of in the year of our Lord feloniously and from motives of lucre did take away and detain ("take away or detain ") one C. D. against her will, she, the said C. D., then having a certain present and absolute interest (" any interest, whether legal or equitable, present or future, absolute, conditional, or contingent" in certain real estate ("real or personal estate") with intent her the said C. D. to marry (“to marry or carnally know her, or to cause her to be married or carnally known by any other person"); against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Add a count stating generally the nature of some part of the property, and if the intent be doubtful, add counts varying the intent.

Indictment for Abduction of a Girl under sixteen

(24 & 25 Vict. c. 100, s. 55).

Commence as in the last precedent]—unlawfully did take and cause to be taken one C. D. out of the possession and against the will of her father ("out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her ") she the said C. D. then being an unmarried girl under the age of sixteen years, to wit, of the age of fifteen years; against the form, &c.

Indictment for Child Stealing (24 & 25 Vict. c. 100, s. 56). Commence as ante]-feloniously and unlawfully did by force ("force or fraud") lead and take away ("lead or take away, or decoy or entice away, or detain ") one C. D., a child then under the age of fourteen years, to wit, of the age of seven years, with intent thereby then to deprive one E. F., the father ("any parent, guardian, or other person having the lawful care or charge of such child") of such child, of the possession of the said child; against the form, &c.

Second Count.-And the jurors aforesaid upon their oath aforesaid, do further present, that the said A. B. afterwards, to wit, on the day and year aforesaid, feloniously and unlawfully did, by force, lead and take away the said C. D., a child

then under the age of fourteen years, to wit, of the age of seven years, with intent thereby then feloniously to steal, take, and carry away divers articles ("any article upon or about the person of such child, to whomsoever such article may belong "); that is to say, one necklace [&c., stating the articles], then being upon and about the person of the said child; against the form, &c. Add counts stating that the defendant did "by fraud entice away," or "did by fraud detain," or "did by force detain," &c., if necessary.

Indictment for fraudulently taking away, on account of her Property, a Girl under twenty-one years from the possession of her Parents, with intent to marry her (24 & 25 Vict. c. 100, s. 53).

The jurors for our Lady the Queen upon their oath

day of

at

to wit. present, that F. B., on the in the said county, did feloniously and fraudulently allure, take away, and detain one J. B. out of the possession, and against the will, of her mother, M. H. and W. H., the said W. H. having then the lawful care and charge of her, the said J. B., and she, the said J. B., being then under the age of twenty-one years, and having then a present legal interest in certain real estates situate at in the said county, with intent to marry and carnally know the said J. B.; and that H. R. B., on the day aforesaid, at aforesaid before the said felony was committed in manner and form aforesaid, did feloniously and maliciously incite, counsel, and procure the said F. B. the said felony in manner and form aforesaid to do and commit; against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

at

Second Count.-And the jurors aforesaid upon their oath aforesaid do further present that H. R. B., on the day and year aforesaid, at aforesaid, feloniously did fraudulently allure, take away, and detain one J. B. out of the possession and against the will of her mother M. H. and W. H., the said W. H. having then the lawful care and charge of her the said J. B.; and she the said J. B. being then under the age of twenty-one years, and having then a present legal interest in certain real estates situate aforesaid, with intent to cause her the said J. B. to be married and carnally known to one F. B.; and that the said F. B. on the day aforesaid at aforesaid before the said felony was committed in manner and form aforesaid did feloniously and maliciously incite, counsel, aid, and procure the said H. R. B. the said felony in manner and form aforesaid to do and commit; against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

See Reg. v. Burrell and another (Leigh & C. 354).

See "Assault," "Rape."