las from 3 Wilson, 2 W. Black. Rep. and Bacon, were civil cases in which the defendants asked a favour, and the court would not allow the pleas because repugnant; this was on motion, not on demurrer, and they do not apply for the reasons above stated. He contended that it was the fair exposition of Hawkins's doctrine (ut supra) that repugnancy would only vitiate pleas in abatement, and not pleas in bar: this was strengthened by Stanford p. 82. Pleas in abatement are dilatory, and do not go to the merits of the question, and therefore ought not to be contradictory. But are these pleas repugnant? The first avers that he was acquitted of murder, but remanded for manslaughter. There is no repugnancy here. The one affirms more than the other, but they are not contradictory. The third plea avers an acquittal of the murder and felony; if there is a repugnance between the second and third pleas the court must elect the one which is most favourable for the prisoner, that is, the third plea which is admitted to be true.

He then examined each plea separately, and contended that each was good. As to the first: it is urged by the attorney general" that the record should be made a part "of the plea." It is not the duty of the prisoner to produce the record which authorizes the district court to try him; that is the duty of the commonwealth. The court itself and its officers ought to see that they have autho

rity to try him, and ought to produce the record remanding him for trial, and if by the record he is acquitted, all that can be required of him is to produce the record of acquittal in evidence to support his plea, but not to make it a part of his plea. According to the attorney general's argument, the verification by the record at the end of the plea, makes the record a part of the plea: if this rule is good, then a verification by any thing else makes the proof a part of the plea: in debt on bond, the defendant pleads that he has paid the debt, which he is ready to verify by the receipt of the plaintiff. Does this make the receipt a part of the record? So in the trial by battle, the defendent verifies by the champion. Is the champion a part of the record?

A profert in curia, and oyer are the only means by which the instrument relied on to prove the plea can be made a part of the record. A profert is never made of a copy, but always of an original paper. Here the original was in the borough court of Norfolk, and could not be produced by the prisoner. And as to oyer, the prisoner cannot crave oyer of a paper on which he himself relies. It is not necessary that the record should be a part of the plea; for if it was, the commonwealth could not reply nul tiel record, which is the proper replication by which a variance between the plea and the record can be taken advantage of. If a record be pleaded in bar, in the same

court, the other party shall not plead nul tiel record, but shall have oyer, but if it be in another court he shall plead nul tiel record, and a day given to procure the certificate of the record. 2 Hale 241. All that Hale means by saying that the record is part of the prisoner's plea is that the contents of the record, and not the record itself, should be made a part of the plea. The record is evidence to prove the plea, but not a part of it. In Rastal, p. 361. the conclusion is merely a verification, and not a verification by the record. It is admitted that the record should be set forth in certainty, but it is not necessary that it should be set forth totidem verbis: its effect is sufficient. (3 Saund.) Neither is it necessary that a discharge in technical language, or the " quod eat sine die," should be stated. If it was stated in the plea, and the record should not support it, then upon the replication of nul tiel record, the plea would be destroyed. A man's life `might then be a second time jeopardized in consequence of the ignorance of the clerks of examining courts, who do not know how to record a discharge in technical language. In this plea, the opinion of the court is set forth, and then his acquittal of the murder, and surely this is enough. But however necessary the "quod eat sine die" may be in England, it is not necessary here as applicable to the examining courts; the court itself is sine die; it is functus officio, and expires as soon as the business for which it was convened is done. At any rate, both of these defects (if they are defects) of not making the re

cord a part of the plea, and of the want of a technical discharge are merely formal, and cannot be noticed on general demurrer.

As to the second plea: this involves the power of the examining courts to discriminate between different grades of offences. He contended that it must be presumed that what the examining court has done is correct, if they have done an act within the scope of their jurisdictions there is a difference between a court with jurisdiction giving an erroneous judgment, and a court giving a judgment, even though a right one but without any jurisdiction. In the latter case the judgment is void, and need not be regarded by any other court; but in the former case, the judgment must be deemed right unless it is regularly and directly reversed by a competent tribunal. The examining court of Norfolk borough had authority to discharge, or to remand to the district court or to the county court; they have done both in part, their judgment is therefore within the limits of their jurisdiction. These courts must discriminate in certain cases in which they must decide whether the prisoner shall be sent on to the district or the inferior court. They must decide whether an act is burglary, or petty larceny only: so whether an act be robbery or petty larceny. Murder and manslaughter are species of the same offence-parts of the same act, as much as burglary and larceny, or robbery and lar ceny. There is no more difficulty in discriminating be

tween murder and manslaughter, than between the other two species of offences. The examining courts give the superior courts a license to try the offence, how then can they try a man for a greater offence than the examining courts authorize him to be tried for. A prisoner must be taken by surprise, if he is to be tried for malicious homicide, when he is only sent on for manslaughter.

The analogies of the law are in favour of the discriminating power. The grand jury discriminate: on a bill for murder, they may find ignoramus as to murder, and billa vera as to manslaughter. In such case you cannot try the party for murder. The grand jury have less power than the examining court; they cannot acquit and yet they are supposed to possess nicer discriminating faculties. The petty jury discriminate; they may acquit of murder, and find guilty of manslaughter. In England the two tribunals must concur, here the three must concur before a man can be condemned.

The greater power includes the less: the power of general acquittal includes the subordinate power of partial acquittal. If there are exceptions to this general power of acquittal, let them be pointed out in the act. Mr. Tazewell said, it was a curious matter of judicial history to trace the progress of these examining courts. They had always been a favourite with the people, and