(L) Indictment against an accessory for receiving or buying a stolen horse; also for harbouring, or concealing the horse stealer. (State the charge against the principal, and then say): And the jurors aforesaid, upon their oaths aforesaid, do further present, that E. O. late of the parish of in the county of labourer, afterwards, to wit: on the day of in the year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, one gelding, of a black colour, of the price of dollars, of the goods and chattels of the said abovementioned, so as aforesaid feloniously taken, stolen and lead away, did receive, buy and have (he the said E. O. then and there well knowing the said gelding, the goods and chattels last mentioned, to have been feloniously taken, stolen and lead away) against the form of the act of the general assembly in that case made and provided, and against the peace and dignity of the commonwealth. (If against the person who harbours or conceals a horse stealer, pursue the above form to the word "labourer," then proceed): well knowing the said A. O. to have done and committed the felony aforesaid, in form aforesaid, afterwards, to wit: on the day of in the year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, him the said A. O. did then and there feloniously harbour and conceal, against the form of the act of the general assembly, &c. (Conclude as above.) 1 ADDITION. ADDITION signifies, a title given to a man, besides his christian and sirname, setting forth his estate or degree, his trade, and the place where he inhabits. Burn's L. D. 14. IN indictments, in which the exigent shall be awarded, in the names of the defendants, in such indictments, additions shall be made of their estate or degree or mystery, and of the counties of which they were or be, or in which they be or were conversant; and if on the process upon the said indictments, in which the said additions be omitted, any outlawries be pronounced, they shall be void, frustrate and holden for none, and before the outlawries be pronounced, the said indictments shall be abated by the exception of the party, wherein the said additions be omitted. 1 Rev. Code 105. (From 1 H. 5. c. 5.) 1. In which the exigent shall be awarded. The exigent is a writ whereby the sheriff is commanded to proclaim the party in the county court, in order to his being outlawed. And by these words the act extendeth only to cases where process of outlawry may be awarded. Cro. Eliz. 148. 2. In the names of the defendants. Regularly by the common law, every man, ought to be named in all original, and other suits, by his christian name, and sirname, and that before this act sufficed. 2 Inst. 665. If it be a corporation aggregate of many persons, as mayor and commonalty; the mayor need not be named by his christian name, because that such a corporation standeth in lieu both of the christian name and sirname. 2 Inst. 666. 3. Additions shall be made. Additions of estate or degree, are, yeoman, gentleman, esquire, and the like. B. L. D. 15. Additions of trade or occupation, are those of husbandman, merchant, broker, taylor, smith, miller, carpenter, cook, brewer, baker, butcher, labourer, dyer, school-master, and the like. Haw. B. 2. c.23. s. 114. Additions of place, are, of such a town, or of such a county, &c. B. L. D. 15. It is observable that this act requires, with respect to the addition of place, only the addition of the county, and not the parish, town, hamlet, &c. as in the act of í H. 5. and is conformable to the act of the general assembly on this subject. See 1 Rev. Code 105. The addition as well of the estate, degree or mystery, as the place, ought by force of this act to be alleged in the first name; for an addition after the alias dictus (otherwise called) is ill: as for instance, where the indictment was against W. R. otherwise called W. R. of H. 2 Inst. 669. 3 Salk. 20. Where there are several defendants, of different names and the same addition, it is safest to repeat the addition after each of their names, applying it particularly to every one of them. Ilaw. B. 2. c. 23. s. 106. Where the father hath the same name, and the same addition, with a defendant being his son, the action is abateable unless it add the addition of the younger, to the other additions; but where the father is the defendant, there is no need of the addition of the elder. Ibid. Clerk is a good addition of a clergyman. 2 Inst. 668. Gentleman and gentlewoman are good additions. Yeoman is a good addition; and, in its legal acceptation, comprehends free-holders, and those who may do any act where the law requires one that is a good and lawful man. Ibid. and I Bl. Com. 406., Ibid. Widow or singlewoman, or, wife of such an one; also spinster are good additions. Haw. B. 2. c. 23, s. 111. Esquire, in England, is of doubtful application, though generally annexed to justices of the peace (1 Bl. Com. 406. Chris. note 19.) In America, it is a mere complimentary title, indiscriminately bestowed on all ranks and professions, and seems to have no determinate signification. Servant and groom, are not additions within this act, because they are not of any mystery. And chamberer, butler, pantler, or the like, are additions of special offices, and not of any mystery or occupation. 2 Inst. 668. Haw. B. 2. c. 23. s. 117. Neither doth this act extend to unlawful practices, as extortioner, maintainer, thief, vagabond, heretic, and such like. Ibid. If a man hath divers arts, trades or occupations, he may be named by any of them; and in general a man shall be named by his worthiest title of addition. 2 Inst. 668-9. 4. Of which they were or be. The addition of the estate, degree, or mystery, ought to be as the defendant was of at the day of the indictment brought, and not late of such a degree or mystery; but it is a good addition to name the defendant late of such a town or place, because men do often remove their habitation. 2 Inst. 670. 5. Shall be void. This being a judgment in law, is interpreted to be made void by a writ of error, or by the plea of the party coming in upon a capias utlagatum; for though the statute saith they shall be void, yet they are but voidable by a writ of error or plea. 2 Inst. 670. 6. By the exception of the party. But if the defendant appeareth upon process, and plead, taking no advantage thereof by exception, he hath lost the benefit hereof: but it seemeth that the bare appearance of the party, without plea, doth not salve the want of a good addition. Haw. B. 2. c. 23. s. 125. ADULTERY. See FORNICATION. AFFRAY. I. What is an affray. II. How far it may be suppressed by a private person. III. How far by a constable, or peace officer. IV. How far by a justice of the peace. V. Punishment of an affray. VI. Warrants, indictments, &c. against affrayers. I. WHAT IS AN AFFRAY. 1. AFFRAYS (from affraier, to terrify) are the fighting of two or more persons in some public place, to the terror of the people: for if the fighting be in private, it is no affray, but an assault. 4 Bl. Com, 144. 2. No quarrelsome or threatening words can amount to an affray; nor can any one justify laying his hands on such as quarrel, unless they proceed to blows; but the constable may, at the request of either party threatened, carry the other before a justice, to find sureties. Haw. B. 1. c. 63. s. 2. 3. But in some cases there may be an affray, where there is no actual violence; as, where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause a terror to the people; which is said always to have been an offence at the common law, and is strictly prohibited by statute: for it is enacted, "That no man, great nor small, of what condition soever he be, except the ministers of justice, in executing the precepts of the courts of justice, or in executing of their office, and such as be in their company assisting them, be so hardy to come before the justices of any court, or either of their ministers of justice, doing their office, with force and arms, on pain to forfeit their armour to the commonwealth, and their bodies to prison, at the pleasure of a court; nor go nor ride armed, by night nor by day, in fairs or markets, or in other places, in terror of the country, upon pain of being arrested and committed to prison by any justice, on his own view, or proof by others, there to abide for so long a time as a jury, to be sworn for that purpose by the said justice, shall direct, and in like manner to forfeit his armour to the commonwealth; but no person shall be imprisoned for such offence by a longer space of time than one month." 1 Rev. Code 30. (From 2 Ed. 3. c. 3.) 4. No person is within the intention of the law, who arms himself to suppress dangerous rioters, enemies, &c. and disturbers of the peace of the commonwealth. Haw. B. 1 c. 63. s. 10. 5. Nor unless such wearing be acccompanied with such circumstances as are apt to terrify the people; consequently the wearing of common weapons, or having the usual number of attendants, merely for ornament or defence, where it is customary to make use of them, will not subject a person to the penalties of this act. Ibid. s. 9. 6. A man cannot excuse the wearing such armour in public, by alledging that such a one threatened him, and that he wears it for the safety of his person from his assault; but no one shall incur the penalty of the statute for assembling his neighbours and friends in his own house, against those who threaten to do him any violence therein, because a man's house is his castle. Ibid. s. 8. 7. Any justice of the peace, or other person empowered to execute this act, may proceed thereon ex officio; and if he find any person in arms contrary to the form of the statute, he may seize the arms, and commit the offender to prison; and he ought also to make a record of the whole proceeding, and certify the same to the next county court. Ibid. s. 5. But, in exercising this office, the act of assembly of Virginia materially differs from the act of parliament of 2 Edw. 3. and is certainly a very great improvement on it; being more favourable to liberty. There the duration of the imprisonment is unlimited, but here it cannot exist, by law, for a longer space of time than one month, nor even that length of time, unless sanctioned by the verdict of a jury. It seems then, that as soon as a justice of the peace has apprehended an offender against the latter part of this act, either from his own view, or proof by others, he should issue his warrant directing a jury to be summoned, to determine what length of time (less than one month) the party should be imprisoned. II. HOW FAR IT MAY BE SUPPRESSED BY A PRIVATE PERSON. 1. Any one who sees others fighting may lawfully part them, and also stay them till the heat be over, and then deliver them to the con. stable, to be carried before a justice, to find sureties for the peace. Haw. B. 1. c. 63. s. 11. 2. And the law doth encourage him hereunto; for if he receives any harm by the affrayers, he shall have his remedy by law against them; and if the affrayers receive hurt, by endeavouring only to part them, the standers by may justify the same, and the affrayers have no remedy by law. 3 Inst. 158. 3. But if either of the parties be slain, or wounded, or so stricken that he falleth down for dead; in that case the standers by ought to apprehend the party so slaying, wounding, or striking, or so endeavouring the same, by hue and cry; or else for his escape they shall be fined and imprisoned. Ibid. III. HOW FAR BY A CONSTABLE, OR PEACE Officer. 1. The power of a constable, as a peace officer, is derived from the common law of England; and although, as a part of the common law, |