If two additions Sed per Cur. Although the insertion of the addition after the alias dictus is a clear and manifest error, yet it is aided by the prisoner pleading on his arraignment. 10. SIR WILLIAM HICKS'S CASE. M. T. 1670. K. B. 1 Vent. 154; In an action against the defendant by the name of Sir William be inserted, and Hicks, knight and baronet, he pleaded in abatement that he was never knighted. The plaintiff moved, and obtained leave, to amend. one be false, it will vitiate the other; Or if he be not A dignity which a party holds in any country, ex cept England, should not be stated; hence a 11. DRAYCOTE V. CURZON. H. T. 1698. C. P. 1 Lutw. 40. n. In the addition of the estate, degree, or mystery, by the stat. 1 H. 5. c. 5. it ought to be alleged as the tenant or defendant in the action was at the time of the writ purchased, and not with a nuper as nup. ar. &c. because men are frequently altering the place of their habi tations. See 17 H. 4. c. 28; 19 Ed. 6. c. 66; 21 Hen. 6. c. 3; 38 Hen. 6. c. 34; 2 Inst. 670; 1 Com. Dig. Abatement, F. 26; Arch. Crim. Pl. 8; 1 Chit. Crim. Law, 205. 12. THE KING V. MARY GRAHAM. 1791. 2 Leach, 547; The indictment stated the property to belong to James Hamilton, Esq. commonly called Earl of Clanbrassil, in the kingdom of Ireland; it was determined that the more correct and technical mode of description would have been James Hamilton, Esq. Earl of Clanbrassil, in should not be de- the kingdom of Ireland; but the judges being of opinion, that in this scribed by his case the words commonly called might be rejected as surplusage, held name of dignity, that the indictment was good. peer of Ireland but by his proper name. * See 9 Co. 118; Sty. 173. A superior includes an inferior degree; and it cannot be objected that both are not stated. II. OF STATING THE ADDITION OF ESTATE OR DEGREE. 1. JEFFERYS V. SNOW, BART. M. T. 16864. K. B. Comb. 65. The plaintiff sued the defendant, describing him as baronet; the defendant pleaded in abatement, that he ought to be named miles and baronet. Per Cur. The superior degree necessarily includes the inferior; and the plaintiff must have judgment. See 14 H. 6. 15; 2 Inst. 669; Hawk. b. 2. c. 23. s. 103; 1 Chit. Crim. Law, 206. Though it has been said, that an Irish bishop might be indicted by the addition of his diocese; see 21 H. 6. c. 36; Hawk. b. 2. c. 23. s. 109; 1 Com. Dig. Abatement, f. 26; Bac. Ab. Misnomer, b. 2. Qu. if this distinction is founded on the difference between temporal and spiritual dignities; or if it exists at all since the act of union ? This was an indictment for a rescous committed by the "wife of Qu. If describJ. S." and others. It was objected that the husband's addition had ing the party as not been inserted; and that describing the defendant as wife of J. S. the wife of of such a parish, without more, was insufficient. No judgment was J. S." is a suffigiven. See 6 Mod. 58; 9 Edw. 4. pl. 8; 3 Hen. 6. pl. 31; Dyer, 47; 2 Hawk. P. C. c. 23. § 111; 2 Leon. 183. 3. REX V. BISHOP of CHESTER. H. T. 1695. K. B. 5 Mod. 302; S. C. 2 Salk. 560; Carth. 440. S. C. cient addition.* In error, on a writ of quare impedit, the cause assigned for error Calling a was a variance between the pleading and the letters patent; the knight an esdefendant having set forth a grant made to W. F. tunc armigero quire is a fatal postea militi, when upon oyer of the letters patent, they appeared to be granted to W. F. militi. Per Cur. The defendant could not be a knight and an esquire at the same time; knight being a word of dignity, and part of his name, but esquire is not; the variance is material, and the plaintiff must have judgment. See 8 Mod. 84; Cro. Car. 205; Comb. 65; 1 Show. 304; Latch. 161; 4 Bac. Ab. 211. 4. THE QUEEN V. HOSKINS. T. T. 1702. K. B. 2 Lord Raym. 968; variance. A motion was made to quash an indictment for want of a proper "Servant" is a addition. The defendant was indicted by the name of J. S. servant; good addition.t which, it was contended, was too general, and not conformable with the stat. 1 H. 5. c. 5. But per Cur. This is a good addition, and sufficiently certain. 5. HORSPOOLE v. HARRISON. T. T. 1722. K. B. 1 Stra. 556. S. P. 2 Stra. 816. trade, at the In an action by original against the defendant, describing him as A trader may yeoman, he pleaded in abatement that he was a lime-merchant and be sued either not a yeoman; and on demurrer, the Court held the plea ill, and by his degree or awarded a respondeas ouster, upon the ground that every man, be he election of the a trader or not, has a degree by which he may be denoted; and plaintiff. having a degree, it is in the election of the plaintiff to sue him by one or the other; and if he sue him by his degree, it is not enough for the defendant to say he is of such a trade, because he does not give the plaintiff a better writ. In this case the defendant should have shown himself to be of a degree higher than a yeoman; and that would have abated the plaintiff's writ. This was ruled upon the au The usual and technical mode is to describe a married woman thus: wife of Richard Roe, late of the parish of C. labourer." 2 Lev. 183. + See 7 Ed. 4. 106; 9 Ed. 4. 50; where it is said, that describing a person as servant is bad, unless it be stated that he was servant of some particular and named individual. 1 Com. Dig. Abatement, F. 26; 2 Inst. 668; Hawk. b. 2. c. 23. § 111; Bro. Add. 5. 42; Bac. Ab. Indictment, G. 2. A dowager countess must be described as a dowager. Semb. An es quire should not be described as a gentleman. Clarencieux is of the person. thority of a former case, (vide post, p.221.) where a man sued as yeoman, pleaded he was a horner, and the Court awarded a respondeas ouster. 6. BROUNKER V. ATKINS. M. T. 1680. K. B. Skin. 15. A countess dowager ought to be named comitissa dolissa, otherwise the writ will abate. Per Pemberton, C. J. 7. MESSOR V. MOLYNEUX. H. T. 1740. C. P. Cited 1 Wils. 245. In a motion for a procedendo, an affidavit was produced wherein a person therein named gentleman, appeared to be a barrister; the Court would not permit the affidavit to be read, because a barrister is an esquire by his profession or office. See Spelman's Gloss. Armiger; 1 Bl. Com. 406; Cristian's Game Laws, 132. 8. HOLT V. WARD. M. T. 1729. K. B. 2 Stra. 850; S. C. Barnard, To a declaration against the defendant by the name of K. W. Esq. part of the name he pleaded in abatement that the late king by letters patent created him king at arms, and principal herald of the south-east and west parts of E. et nomen ei imposuit Clarencieux, to hold tam diu quam se bene gereret; unde he was not styled Clarencieux in the bill, he prayed it might abate. The plaintiff craved oyer of the letters patent, by which it appeared that he was styled K. W. Esq. before the words of the creation, and demurred; on argument it was held that this must be taken not as an addition, but as part of his name, and therefore gave judgment to abate the bill. "Servant to addition. See Sir William Dethick's case, Cro. Eliz. 542; 1 Leon. 248.* III. OF STATING THE ADDITION OF MYSTERY.+ 1. THE QUEEN V. HOSKINS. M. T. 1702. K. B. 6 Mod. 58; S. C. Holt, 41. S. P.; 7 Edw. 4. 106; 9 Edw. 4. 50; 3 H. 6. 316; 5 Edw. 4. 32. A servant being indicted for a trespass, was described as A. B. servant to J. S.; exception was taken that the word servant was not a good addition. Per Holt, C. J. Servant to J. S. is a good addition, and as certain as "gentleman." See 8 Mod. 51; 9 Edw. 4. pl. 48; Ld. Raym. 264. 849. 1170;_Y. B. 2 Hen. 6. pl. 31 ; 2 Hen. 4. pl. 7; 2 Hawk. P. C. c. 23. s. 112. See Bro. Add. 44; Fost. 358; Bac. Ab. Misnomer, B. 3; from which it appears that gentleman and esquire are convertible terms, and may be used for each other without variance. + Mystery means the defendant's trade, art, or occupation, such as merchant, mercer, tailor, parish clerk, schoolmaster, husbandman, labourer, or the like. 2 Hawk. c. 23. § 111. If a man have two trades, he may be sued of either; 2 Inst. 668; but if a man who is a gentleman by birth, be a tradesman, he should be named by his worthier addition of gentleman; ibid. 669; in all other cases he may be indicted by his addition of degree or mystery, at the option of the prosecutor. See 8 Mod. 51.52; 1 Stra. 556; 2 Stra. 816; 2 Ld. Raym. 1561. 2. THE QUEEN V. FRANKLYN. T. T. 1704. K. B. 2 Ld. Raym. 1179. The defendant being indicted for exercising the trade of a But a woman sempstress, without having served an apprenticeship, must not be de bourer." 66 Powell, J. took an objection to the indictment, that the defendant scribed as lawas called labourer, which he said was not a good addition for a woman. See 2 Inst. 668; Bro. Add. 559; Hawk. b. 2. c. 23. § 111; Arch. Crim. Pl. 8. 3. MASON V. BUSHEL. T. T. 1721. K. B. 8 Mod. 51. The defendant being sued as a yeoman, pleaded that he was a Yeoman* for horner, and traversed that he was a yeoman. horner is not a Eyre, J. was of opinion that the defendant ought to have given misaddition, as the plaintiff a better writ, in the same species of addition; but Pratt, C. J. doubted whether it was necessary to be in the same species. See 2 Ld. Raym. 1541; 1 Stra. 556; 2 id. 816; Com. 371. 4. ROBINSON V. MEAD. T. T. 1722. C. P. 1 Com. 371. S. P. SMITH V. MASON. 2 Stra. 810; 2 Ld. Raym. 1541. the defendant may be sued by his degree or mystery. In trespass for an assault and battery, the defendant pleaded in A plea in abateabatement that he was not a gentleman, as named in the process, but ment that a dea mercer. To which plea the plaintiff demurred; because he had fendant is not a only shown his condition without his degree. gentleman, but a mercer, is good. Per Cur. The plea is good; for stating he is a mercer is equivalent to stating that he is a merchant. Judgment for defendant. See 1 Stra. 556; 1 Com. Dig. 35. IV. OF STATING THE TOWN, HAMLET, &c.t 1. CORTISOS V. MUNOZ. H. T. 1731. K. B. 2 Stra. 924; S. C. 2 Barnard, K. B. 95. Addition of "late of Lon don, merchant," The defendant was sued by a special original, with the addition of good, though late of London, merchant; to which he pleaded that for four years defendant be before he was resident at Whitechapel, in Middlesex; and traversed commorant in that he was a resident in London at the time of the writ. An Middlesex.‡ affidavit in verification of the plea was annexed. * Although "yeoman," and "labourer," are both valid additions; yet whether the appellation of " farmer" is good, is extremely questionable; the better opinion appears to be that it not, because it is of equivocal signification; and if any art be implied by it, the term "husbandman" is the proper description. See 2 Inst. 668; Bro. Add. 10; Hawk. b. 2. c. 23. § 116; Bac. Ab. Misnomer, B. 3. It may be proper to add, that epithets which charge the defendant with improper or unlawful practices cannot be adopted, as maintainer, extortioner, &c. 2 Inst. 668; Bac. Ab. Misnomer, B. 3; Indictment, G.; 2 Bro. Add. 8; Hawk, b. 2. c. 23. § 115; C. C. C. 35. + The defendant should always be described as of the town or hamlet, or place, and county of which he was or is, or in which he is or was conversant. See 2 Inst. 669; Hawk, b. 2. c. 23. § 20; Coni. Dig. Abatement, F. 25; Bac. Ab. tit. Misnomer, and Addition, B. 3; 1 Chit. Crim. Law, 208; Arch. Crim. Pl. 8. It is laid down that if a man be described as of A. late of B. proof of either allegation may be admitted. Hawk. b. 2. c. 23. § 119. The place where the defendant is conversant is sufficient addi tion, though he be neither commorant nor inhabitant. The county as well as the parish should be stated. The omission of the defendant's addition in an indictment does On motion the plea was set aside, for by stat. 1 Hen. 5. c. 5. the plaintiff has his election to describe him of the place in which he lately resided; the words being de villes et counties où ils fueront ou sont. See 2 Inst. 670; Hawk. b. 2. c. 23. § 119; Com. Dig. Indictment, G. 1; Bac. Ab. Misnomer, B. 4; and see the observations of Lord Kenyon, in the King v. Yardell, 4 T. R. 541. 2. SHIELDS V. CUTHBERTSON. M. T. 1741. C. P. Barnes, 162. Defendant pleaded in abatement, and traversed the inhabitancy; the plaintiff demurred, and objected that the statute of additions expresses the word conversant; that Rastall, and all the old entries, are so. Indeed, some modern entries are commorant, but none inhabitant; and the objection was held good; a man may lodge in one parish and work in another; he is conversant where he works. See Bac. Ab. Misnomer, B. 4. 3. SHELLY V. WRIGHT. H. T. 1736. C. P. Barnes. 338. In the margin of the declaration the word Middlesex was inserted, and defendant's addition was described as late of Westminster, without saying in the county aforesaid. Defendant pleaded in abatement that it did not appear by the declaration at what place he was commorant. Plaintiff moved to set aside the plea, and obtained a rule to show cause, which was afterwards discharged. Et per Cur. It is not usual to set aside such pleas upon motion. Plaintiff may demur if he thinks fit. See 2 Inst. 169; Hawk. b. 2. c. 25. s. 120; Com. Dig. Indictment, G. 2; Bac. Ab. Misnomer, B. 4; Arch. Crim. Pl. 9. V. CONSEQUENCES OF A DEFECTIVE STATEMENT OF 1. THE KING V. SIR HENRY BOND, BART. T.T. 1697. K.B. 12 Mod. 198; S. C. I Lord Raym. 845; S. C. Andr. 146. A writ of error was brought to reverse an outlawry for high treason, assigning for cause that the statute 1 H. 5. c. 5. requires that every indictment, &c. shall state the true addition of the party's profession, not make it void, mystery, or degree, and place of abode, and that in the indictment unless the defen- he was not described by the title of baronet or any other sufficient addition, nor was the place of his abode stated. dant takes ad vantage of the error. Per Cur. The defendant has an election, either to take advantage of the exception to the indictment for want of an addition, or to wave it, and plead the king's pardon; for the indictment ought not to be quashed, unless the prisoner elects to take advantage of the defect. See 4 Leon. 121; 2 Rol. Rep. 225; Kilw. 26; 1 Vent. 338 ; Latch. 109; 2 Stra. 1218. In criminal proceedings, if the indictment does not describe the defendant by any addition of place or degree, it is defective on the face of it, and the defendant may plead in abatement. Or if the defendant be misnamed, or his addition of degree be misstated, which is an extrinsic objection not apparent on the face of the indictment, the defendant may plead this also in abatement; but for objections apparent on the |