for, it cannot appear whether any felony is committed or no, till the principal is attainted; and it might so happen, that the accessory should be convicted one day, and the principal acquitted the next, which would be absurd Nor shall the accessory be constrained to answer his indictment till the principal be tried; but if he will waive that benefit, and put himself upon the trial before the principal be tried he may, and his acquittal or conviction upon such trial is good. But in such case the judgment must be respited till the principal be convicted and attaint, for if the principal be after acquitted, that conviction of the accessory is annulled, and no judgment ought to be given against him; but if he be acquitted of the accessory, that acquittal is good, and he shall be discharged.

The accessory may be indicted in the same indictment with the principal, and that is the best and most usual way; but he may be indicted in another indictment, but then such indictment must contain the certainty and kind of the principal felony.

If the principal be attainted and hath his clergy, or be pardoned after attainder, the accessory shall be put to answer; but if the principal be only convict and hath his clergy, or be par doned, &c. the accessory shall not be put to answer, for the principal was never attainted-and in the latter case, if both principal and accessory after the fact be arraigned together, such accessory shall be discharged. If A be indicted as principal and B as accessory before or after, and both acquitted, yet В may be indicted as principal, and the former acquittal as accessory is no bar; but if A be indicted as principal and acquitted, he shall not be indicted as accessory before, for it is in substance the same offence; but in such case he may be indicted as accessory after, for they are offences of several kinds and for the same reason, if he be indicted as accessory before and acquitted, he may be indicted as accessory after. The accessory shall be bailed till the principal

appear.

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The accessory may upon his trial, as well after as before the conviction of the principal, controvert the guilt of his supposed principal, and prove him innocent of the charge, either in point of fact or of law.

Now, by act of 1797, c. 19, it is lawful to prosecute and punish any accessory to felony, as for a misdemeanor; to be punished by a fine not exceeding fifty pounds, and corporal punishment not exceeding thirty-nine lashes, or standing in the pillory not exceeding two hours, although the principal be hot before convicted of said felony, which shall exempt the

offender from being punished as accessory, if the principal

shall be afterwards convicted.

ACCOMPLICES-See Evidence.

ADJOURNMENT.

If by any accident a sufficient number of justices do not meet for holding the court of pleas and quarter sessions on the day by law appointed, on justice may adjourn the court whereof he shall be a member, from day to day, not exceeding three days, until a sufficient number do attend.

ADMINISTRATOR-See Executors and Administrators.
ADULTERY--See Vice and Immorality.
AFFIRMATION-See Oaths.

AFFRAY.

Affray is the fighting of two or more persons in some publie place to the terror of the citizens; for if the figting be in priyate, out of the hearing or seeing of any, except the parties concerned, it is no affray but an assault.

Though no bare words, in the judgment of the law, carry in them so much terror as to amount to an affray; yet 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 to have been always an offence at common law, and is strictly prohibited by many statutes.

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 constable, who may carry them before a justice of the peace, in order to their finding sureties for the peace. Also, any private person may stop those whom he shall see coming to join either party; and, therefore, if a man receive a hurt from either party, in thus endeavoring to preserve the peace, he shall have his remedy by action against him; and if he unavoidably hurt either party, in thus doing what the law both allows and commands, he may well justify it.

If either party be dangerously wounded in such an affray, and a stander by, endeavoring to arrest the other, be not able to take him without hurting, or even wounding him, yet he is

no way liable to be punished for the same, because he is bound, under pain of fine and imprisonment, to arrest such an offender, and either detain him till it appear whether the party will live or die, or carry him before a justice of the peace, by whom he is either to be bailed or committed.

A constable is not only empowered, as all private persons are, to part an affray which happens in his presence, but is also bound at his peril to use his best endeavors to this purpose, and to demand the assistance of others, which if they refuse to give him, they are punishable with fine and imprisonment,

If a constable see persons, either actually engaged in an affray, as by striking or offering to strike, or drawing their weapons or the like, or upon the very point of entering upon an affray, as where one shall threaten to kill, wound, or beat another, he may either carry the offender before a justice of the peace, to the end that such justice may compel him to find sureties for the peace, or he may imprison him of his own authority for a reasonable time, till the heat shall be over; and may then perhaps also make him find sureties for the peace. But he has no power to imprison such offender in any other manner, or for any other purpose; for he cannot justify the committing the affrayer to jail till he shall be punished for his offence and ought not to lay his hands on those, who barely contend with hot words, without any threats of personal hurt, and all that he can do in such case, is to command them under pain of imprisonment to avoid fighting.

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If the affray be in a house, and the doors shut, the constable may break into the house to see the peace kept, though none of the parties have taken any hurt. And if the affrayers fly into another man's house, the constable (in fresh suit) may break into the house and apprehend the affrayers.

A constable hath no power to arrest a man for an affray done out of his own view, without a warrant from a justice of the peace, unless a felony were done or likely to be done; for it is the proper business of a constable to preserve the peace, not to punish the breach of it; nor does it follow from his having power to compel those to find sureties who break the peace in his presence, that he has the same power over those who break it in his absence; because, in the latter case, it is most proper to be done, by those who may examine the whole circumstances upon oath, which a constable cannot do; yet it is said he may carry those before a justice of the peace, who were arrested by such as were present at an affray, and delivered by them into his hands..

A justice of the peace may, and must, do all such things for the above purpose, which a private man or constable are either enabled, or required by the law to do. But he cannot without a warrant authorise the arrest of any person for an affray out of his view; but in such case he may make his warrant to bring the offender before him, in order to compel him to find sureties for the peace.

If one be dangerously wounded by another in an affray, a justice of the peace has a discretionary power, either to commit the offender, or to bail him, till the year and day be past; yet, he ought to be very cautious how he takes bail, if the wound be dangerous.

When a party to a common affray shall be arrested upon warrant, and brought before a justice of the peace, he may either be required to find sureties for the peace in such sum as the justice thinks proper, or to appear at the next county court; and if he refuses to be bound, or to give security, the justice may commit him. See Warrants, Arrests.

In general, all affrays are punished by fine and imprisonment, the measure of which is to be regulated according to the circumstances of the case, which very much vary the nature of this crime; so as in some cases to make it an offence of a very heinous nature. One aggravation of the offence is, where persons coolly and deliberately engage in a duel, though no mischief has actually ensued. Another aggravation is, where the officers of justice are violently disturbed in the due execu. tion of their office; or where the affray is made in the presence of a court of justice. Another aggravation is, where the affray is made in a church or church-yard or other places dedicated to the worship of the Divine Majesty.

For Forms incident to this offence-see Appendix, title Affrays.

APPEALS.

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An appeal is the removing of a cause from an inferior to a superior tribunal.

Either party may appeal from the judgment of a justice to the next court of pleas and quarter sessions of the county in which such judgment may be given, first giving sufficient security, to prosecute the same with effect. The acknowledgment of the security, subscribed with his or her proper hand-writing, and attested by the justice, shall be sufficient to bind.

such security; and where judgment shall be against the ap pellant, the same shall be entered on motion against the se curity; and execution shall issue against the principal or against both principal and security, at the option of the plaintiff. All cases of appeal by the plaintiff shall be at the plaintiff's costs, unless the court, on the trial, shall be of opinion that there was sufficient cause for such appeal, and in such case the plaintiff shall recover his costs, on motion.

It is the duty of the justice to return such appeal on or before the second day of the court to which it may be returnable; and he is authorised and required, on application of ei.her party, to issue subpoenas directed to the sheriff or other lawful officer, in any county in the state, for witnesses to appear and give testimony at the court to which such appeal is returnable; and the officers to whom such subpoenas shall be directed, and the witnesses summoned in consequence thereof, shall be under the same rules and regulations, and subject to the same penalties, and entitled to the same pay, privileges, and emoluments, as if such subpoena had issued from the clerk of the court to which such appeal shall be returnable.

If either party wishes to appeal, but is unprovided with securities on the day of trial, it is lawful for the justice to grant such person ten days to give approved securities for an appeal, and to make an entry thereof upon the warrant. The plaintiff is nevertheless at liberty, if judgment be for him, to take, out execution at any time before an appeal be granted; but upon security being so given, such execution shall be returned to the justice who issued it and shall not be acted on by any officer; and the officer or other person who has any such execution shall, on due notice given to him in writing from the justice who granted the execution, deliver up the same, or be liable to the action of the party grieved.

If the justice does not return the appeal papers within the time limited, the proper course according to the practice of the courts, is to move the court, upon affidavit, for an order or rule on such justice to return the proceedings; which if he disobey, the court may proceed to enforce in like manner as other rules, by attachment for contempt.

The justice should not retain the paper which is evidence of the plaintiff's demand, or of the defendant's set off, unless they request it; but he should retain the warrant, the judgment, and the entry of the appeal and security, and return

them to court.

See title Recordari facias Loquelam.