A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

ENDICTMENT.

Endictment, signifieth in Law an accusation* 1.1 sound by an enquest, of twelve or more upon their oath, and the accusation is called endictamentum, and as the appeal is ever at the suit of the party, so the endictment is alwaies at the suit of the King, and his Declaration.

To make a good endictment it is necessary to put* 1.2 in the day, year, and place, when and where the fe∣lony is done.

It ought to be certain also in the matter, as ap∣pears. P. 8. E. 4 f. 3. where a Bailiff was endicted, because he took one for suspicion of felony, and after eum feloni••è, & voluntariè ad largum ire per∣misit, and did not shew in certain for what suspicion of felony, so when one is endicted that he made an hundred shillings of Alchymy ad instar pecuniae Domini Regis, and alledged not what mo∣ney it was, groats or pennies: but in case a man be slain, and he is so mangled in the visage that one cannot know him, but the party which killed him is well known, there is no reason he should* 1.3 escape punishment, therefore although no ap∣peal lie against him in this case, yet and Endict∣ment lies, and he shall be endicted, quòd inter∣fecit quondam igno tum, the same Law is if one be endicted that he stole the goods eujusdam ignoti, or bona cujusdam personae, the reason is, because the Endictment is not his which was the owner of the goods, but is the suit of the King, which is to have the goods, is none claim them.

An Endictment ought to express in certain, as well in what part the mortall wound is, as the profundity and latitude of it, and therefore it was moved that such an Endictment, quòd unam

plagam mortalem dedit circiter pectus, was insuffici∣ent,* 1.4 because altogether uncertain, for it might be in the neck or belly, but it was good Law, saith Sir Edward Cook, in Youngs Case, l. 4. circiter pectus is uncertain and insufficient amongst the Cases of ap∣peals and Indictments.

Endictments of treason and of all other things* 1.5 are most curiously and certainly penned.

That Endictment is not good which ought to have an argument or implication to make it good, therefore that i•• no•• a good Endictment, if it be qu••d furatus est unum e••uum, and saith not felonice, and yet it is implyed in this word, furatus est, so if for Rape the Endictment be quòd eam carnali∣ter cognovit, without saying rapuit, this is not good; if one be endicted super visum corporis, before the Major of London, without adding this word Coroner, this is not good, and yet he which is Major of London is alwaies Coroner; and there∣fore* 1.6 it is implyed. If one be endicted quòd feloni••è abduxit unum equum: this is not good without saying coepit & abduxit, for it may be, that it was delivered to him, and so he leadeth him, in which Case it is not felony.

In the Endictment it shall be supposed, that a man such a day and place with force and arms,* 1.7 that is, with st••ves, swords and knives feloni∣ously stole the Horse, against the Kings peace, and that form must be kept in every Endict∣ment, though the felon had neither sword nor other weapon ••i••h him yet this is no untruth in the jury, ••or the form of an Endictment is, in ••••iratur •••••• D••mino Rege, si à tali die & an∣no apud talem l••cum vi & armis, viz. gladiis, &c. tal••m e••uum ••alis hominis ••aepit. The twelve men are only charged with the effect of the Bill, that is, whether he be guilty of the selony or

nor, and not with the form, and when they say billa vera, they say true, as they take the effect of the Bill to be, for though there be false Latin in the Bill, and the Jury saith billa vera, yet their verdict is true.

An Endictment of murder found in this sort that Eliz. fuit in pace quousque A. vir. 5. Praesat. Eliz. de Pin. com. S. yeoman did kill her, is good; for the addition yeoman must of necessity re••er to th•• Husband, because a woman cannot be a yeoman, but an Endictment quousque Alicia S. de Pin. in com. S. uxor J. S. Spinster is not good against A∣lice S. for there Spinster, being an indifferent ad∣dition,* 1.8 both for man and woman, must refer to I. S. which is the next antecedent, and so the wo∣man hath no addition. So is an endictment against I. S. serviens I. P. de D. in com. Mid. Butcher. This is not good, for servant is no addition, and Butcher re••erreth to the Master, which is the next antecedent.

If a man take a Coat-armour which hangs over a dead mans Tomb in a Church, the Endictment must be bona executorum of the dead man, but if a* 1.9 Gravestone be taken away, the Endictment must be bona Ecclesiae.

Notes

• * 1.1

  Some de∣rive it from the word 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 to accuse.
• * 1.2

  If it be un∣certain, it is not good. Stamford pl. of Cr. l. 2. c. 30.
• * 1.3

  Stam. ubi supra.
• * 1.4

  Brooks abr. 4 Rep. cases of Appeals and Indict.
• * 1.5

  Cook 7 Rep. Calv. Case.
• * 1.6

  Stamford pl. of Cr.
• * 1.7

  Vi & armis must ••e in all Endict∣men•••• •••• treason, murder, se∣lony▪ 〈…〉〈…〉 else it is not good. D. and Student. c. 5. 4.
• * 1.8

  Ad proxi∣mum ante∣cedens fiat relatio.
• * 1.9

  Lambert. Eirenarch. 494, 495.