"said corporation, to give evidence against him the said "Samuel Myers, and immediately by his warrant com"mitted him, the said Samuel Myers, to the jail of the "said corporation, and moreover issued his warrant to "the serjeant of Norfolk Borough requiring him to sum

mon the aldermen of the said borough, to meet at the "court-house, on Friday, the thirty-first day of May, "one thousand eight hundred and eleven, and then and "there, to hold a court for the examination of the fact, "with which the said Samuel Myers stood charged as "aforesaid. And the said Samuel Myers further saith, "that at the court so summoned, and held on the said "thirty-first of May, one thousand eight hundred and "eleven, and in the thirty-fifth year of the commonwealth, "for the examination of him, the said Samuel Myers, so "charged with the murder aforesaid, of him the said "Richard Bowden, which said court consisted of more "than five members, to wit, of William B. Lamb, mayor, "John Nevison, recorder, and William Vaughn, Luke "Wheeler, Miles King, John E. Holt, Richard E. Lee, "and Miles King, Jun. aldermen, he the said Samuel "Myers was set to the bar of the said court in custody "of the jailor of the said corporation, and charged with "the murder aforesaid, whereupon sundry witnesses

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were sworn, and examined in the premises, and the "said Samuel Myers heard in his own defence by his "counsel, on consideration whereof it was the opinion

"of the said court that he the said Samuel Myers was "not guilty of the murder aforesaid, with which he stood “ charged as aforesaid, and ought not to be remanded to "the superior court for trial therefor, which he the said "Samuel Myers is ready to verify, and prove by the "record thereof.

"And the said Samuel Myers further saith that the "said Richard Bowden named in the indictment and "the Richard Bowden named in the record are one, "and the same, and not different persons; that he the "said Samuel Myers named in the indictment, and the "said Samuel Myers named in the said record, and ac"quitted as aforesaid by the said corporation court of "the murder aforesaid, are one and the same person and "not different persons, and that the murder charged upon "him the said Samuel Meyers before the said corpora"tion court, and the murder charged upon him the said "Samuel Myers in the indictment aforesaid, are one and "the same, and not different acts, and this he is ready to "verify; wherefore since he the said Samuel Myers "hath already been heretofore acquitted of the murder "of the said Richard Bowden aforesaid, he prays the "judgment of the court here, if he the said Samuel "Myers should be again charged with the same murder "of which he hath once already at another time been ac"quitted."

1

2d Plea. [This plea is precisely like the first in all its averments, until it comes to the opinion of the examining court, when it proceeds thus:] "In consideration "whereof, it was the opinion of the said court, that he "the said Samuel Meyers was not guilty of the murder "aforesaid, with which he stood charged as aforesaid, "and ought not to be removed to the superior court "therefor, but ought to be tried for the offence of man"slaughter before the superior court of law directed to "be holden in the town of Portsmouth, in the county of "Norfolk, on the 22d day of October, then next follow“ing, which he the said Samuel Myers is ready to verify, "and prove by the records thereof."

[This plea then concludes with the same averments as to the identity of Bowden, Myers, and the act of murder as are contained in the first plea.]

3d Plea. "And the said Samuel Myers for further "plea (by leave of the court) saith that he ought not << now to be charged with the murder and felony afore"said, charged upon him in the indictment aforesaid, "because he saith that he the said Samuel Myers, by the

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name and description of Samuel Myers heretofore to "wit, at a court of alderman of the borough of Norfolk, "summoned according to law for the examination of the "said Samuel Myers for the murder and felony aforesaid, "and held on the 31st day of May, in the year of our

"Lord 1811, at the court-house of the borough afore"said, before William B. Lamb, mayor, John Nevison, "recorder, William Vaughan, Luke Wheeler, Miles "King, John E. Holt, Richard E. Lee, and Miles King, "Jun. aldermen of the said borough, was duly charged, "examined and tried for having, on the 25th day of "May, 1811, between the hours of six and eight o'clock "of the morning of that day, in the store house of Richard "Bowden in the said borough of Norfolk, feloniously, 66 wilfully, and of his malice aforethought, killed and "murdered the said Richard Bowden, who was then " and there in the peace of God, and of the common"wealth, and that he the said Samuel Myers, upon this "trial and examination was duly and legally acquitted "by the said court, of the said murder and felony with "which he was then and there so charged, and was ad"judged by the said court not to be guilty thereof, and "this he the said Samuel Myers is ready to verify and "prove by the record of the said Borough Court of Nor"folk. And the said Samuel Myers further saith, that "the said Richard Bowden named in the said indict(6 ment, and the said Richard Bowden named in the said "record of acquittal, are one and the same, and not dif"ferent persons; that he the said Samuel Myers named "in the said indictment, and the said Samuel Myers "named in the said record and acquittal as aforesaid "by the said corporation court of the felony and murder

"aforesaid, are one and the same, and not different per

sons, and that the felony and murder charged upon "him the said Samuel Myers before the said corpora❝tion court, and the felony and murder charged upon "him the said Samuel Myers in the indictment afore"said, are one and the same, and not different felonies; "and this he is ready to verify. Wherefore since he the "said Samuel Myers hath already been heretofore ac

quitted of the felony and murder of the said Richard "Bowden aforesaid, he prays the judgment of the court "here, if he the said Samuel Myers should be again "charged with the same felony and murder of which he "hath once already, at another time, been acquitted.”

To these pleas the attorney for the commonwealth demurred generally, and the prisoner joined in demurrer.

The court adjourned to the general court these questions for their consideration. “First, whether a court of “examination hath power to acquit a prisoner charged "before them with murder, of the murder with which "he stands so charged, and to remand the said prisoner "to be tried in the superior court for manslaughter on "account of the same homicide. Secondly, whether a

prisoner acquitted by the examining court of murder, "and remanded to be tried before the superior court for "manslaughter on account of the same homicide, but in