Page:Harvard Law Review Volume 5.djvu/72

56 56 HARVARD LAW REVIEW. sucking colt, and gave the colt to one John to keep. They were questioned about marks, and entirely agreed in saying that the colt had the left ear slit and the tail partly cut off, and that she was black. A view was taken of the colt, and she was not more than four years old at most, or three years and a half at least. Then an official of the manor, Thomas de Perham, said that Wakelin, before he saw the mare in question, told her color and all the marks by which she could be identified, and that William, when he was questioned, did n't know her age, and said nothing distinct, except that she was foaled to him. The case, however, went down again for judgment, because the Bishop of Salisbury claimed his juris- diction ; et quia secta quant Wilhelmus producit non est sufficiens nee aliquid probat et quia loquela incepta fuit infra libertatent epis- copi. . . concessa est ei et teneat unicuique justiciam. 1 (c.~) Death. — But the typical sort of case, and the longest-lived, is what Selden instances in the note just cited when he says: "But some trials by our law have also witnesses without a jury; as of the life and death of the husband in dower and in cut in vita. This continued in England until the end of the year 1834. A case or two will illustrate this proceeding. In 1308 2 Alice brought a cui in vita, and Thibaud, the tenant, answered that the husband was living. The woman offered proof that he was dead (hanged at Stamford) ; the tenant the same that he was alive, issint que celui que mend provereit mend avereit. " Alice came and proved her husband's death by four jure tz, who agreed in everything ; and because Thibaud's proof was mellour et greyneure than the woman's proof, it was adjudged that she take nothing by her writ." In Fitzherbert (Trial 46), what seems to be the same case is briefly referred to, and there we read that they were at issue issint cesti que mieulx prove mieulx av. ; and the tenant proves by sixteen men, etc., and the demandant by twelve; and because the tenant's proof " fuit greindr than the demandant's, it was awarded," etc. If we take Fitzherbert's account to be ac- curate, it might appear that the twelve men on each side cancelled each other, and left a total of four to the credit of the tenant, a 1 For the theory of such cases see Brunner, Schw. 431. Selden (note 8 to Fortescue de Laud., c. 21) says : " It was either this or some like case that Shard intended in 17 Ed. 3, 48 b, in John Warrein's case, speaking of a justice that examined the suit." This may well be doubted. 2 Y. B. Ed. II. 24.