delivered the opinion of the court;

In the developement of the general rule, that certainly is necessary in an indictment, it is laid down that it must be certain to every intent, and without any intendment to the contrary; (1 Chitty, C. L. Ml, 172,) and that the offence must be positively charged, and not by way of recital. (2 Strange, 900. 2 Lord Raymond, 1363.y

The reasons upen which these rules are founded, are manifest. They are necessary to enable the accused to prepare to repel or rebut the charge, to protect him from a future prosecution for the same offence, and to enable the court to pronounce its judgment.

Look into this indictment, and let it be asked, with what criminal act does it charge the prisoner?

It. is answered in the argument, that by looking into the whole context, and taking into view the concludingaverment, “that at the time of the uttering, &c. the prisoner well knew, &c.” what was intended, sufficiently appears to answer all the purposes for which certainty is required. The averment refers to the preceding, and you must look to that to determine its meaning, and you are left to conjecture what is intended. If you state to a special pleader that the prisoner is indicted for passing a counterfeit bank note,, his learning will readily supply all the averments as to time-, place and manner, necessary to a perfect indictment; and according to this course of reasoning, no formal indictment is necessary. But the ignorant as well as the learned are sometimes, and indeed more frequently the subjects of criminal prosecutions ; and it is as important that they should be apprised of the charge against them. Nothing ought therefore to be left to conjecture. It might be conjectured from what appears in this indictment, that the charge intended was, that the px-isoner was present when another did the act. — ■ That he heard that he did. That the prisoner did not do the act; and fancy might conjecture a thousand other things equally appropriate and innocent in themselves.

The omission of the positive averment that the prison*379<sr did the act, is not supplied by the concluding averment ?.n the indictment, and is fatal.

The motion is granted.