case of M'Caul was determined, to which he answered no, and avoided any further conversation on the subject. That he had no conversation with any officer engaged in conducting the prosecution, or with any witness sworn thereon, or with any other person whatever except that before stated; nor did he eat or drink at the expense of any person or persons but himself. That on Tuesday night the jury were charged by the court not to separate, but on Wednesday the deponent believes that no such charge was given. And the deponent returned to the jury as soon as he had taken some refreshment, understanding the design of the court to be that the jury should have an opportunity of getting some refreshment. That he thinks it probable that previous to his separation from the jury some one member of the jury observed that he ought not to separate himself from the other members. That the sheriff opposed his separation from the jury, but the witness stated to him that he had been unexpectedly sworn on the jury, and having left some important business in such a state of derangement as required his presence, he told the sheriff that if any officer could go with him, he the deponent would prefer it, otherwise he must go alone. Question: Did Mr. Bailey the sheriff observe to you that there was no officer at that time attending that could go with you? Answer: I do not positively remember, but believe not. Question: Did Mr. Bailey take hold of your arm at the top of the step to prevent your going? Answer:

He did. Question: Did you go down for refreshment alone? or partly to attend to business of your own? Answer: Not for refreshment alone, but partly to attend to my own business. Question: While you were at dinner was the trial of M'Caul mentioned? Answer: It was as I have before stated, and no other way. Question: Were you separated from the jury at any other time? Answer: Not without an officer. On Thursday night Mr. Taylor, Mr. Bryan, and the deponent, went with an officer to Doctor Wardlaw's shop (for some medicine which was necessary for one of us) leaving the other jurors with another

officer.

John Lee being sworn, said that when Mr. Clarke was about to separate himself from the jury, the deponent took him by the arm, and said to him that it was very improper for him to do so, the court having directed that they should remain together. Mr. Clarke replied that his goods at that time for ought he knew were exposed in the street to the negroes, and he must go.

Peter Moseley made oath in open court, that on Wednesday or Thursday last about two o'clock, two or three minutes before two, Frederick Clarke the juror came to his house, the Columbian Hotel in Cary street, where the said Clarke boards, not attended by any officer, or any other member of the jury, and asked if dinner was ready.

The affiant answered he believed it was, and he had the bell rung, and dinner brought on the table. The boarders assembled at the ringing of the bell, and Mr. Clarke, who the affiant believes had gone to his own room, came down, and dined in their company. About twenty-three minutes afterwards, the said Clarke left the room, the affiant stating to him at the time that he believed he had overstaid his twenty minutes. The affiant does not know that the said Clarke conversed with any person on the subject of M'Caul's case, and believes that said Clarke, except when he was dining, remained in his own room; but affiant was not in the dining room during dinner, and therefore does not know what the subjects of conversation were.

The affidavits ended here.

At the same time the following order was directed to be entered on the order book of the superior court of law, but by mistake it was not entered: the clerk however transmitted a copy of the order to the general court, and the question was there argued and decided, though the decision on this point was not entered on the records of the general court.

66

"Be it remembered that on the seventh day of the superior court of law held for Henrico county, the counsel

"for John M'Caul, a prisoner against whom two bills of "indictment for larceny had been found at the same term "by the grand jury, before the said prisoner was arraign"ed, moved the said court to quash the said indictments "on the ground that it did not appear by the record of "the Hustings court held for the examination of the said "John M'Caul that he was remanded to this court for "the crime of larceny, but only for felony generally. The "record of the said Hustings court is as follows:

"At a court of Hustings called and held for the city "of Richmond at the court-house, on Saturday the 2d

day of November, 1811, for the examination of John "M'Caul who stands accused of felony. The prisoner "was led to the bar in custody of the serjeant of this city, "and thereupon sundry witnesses being sworn, and ex"amined, the attorney for the commonwealth, and the "prisoner by his attorney fully heard, the court is of opi"nion that the said John M'Caul is guilty of the offence "aforesaid. Therefore it is considered that he undergo 66 a trial therefor before the next superior court of law for "Henrico county directed to be holden at the Capitol in "this city, and he is thereupon remanded to jail."

James Gray a witness for the commonwealth being duly sworn, deposeth and saith, that on the morning of Sunday, the day after the prisoner's commitment to jail, this de

ponent received a message from the prisoner to see him at the prison, in consequence of which the deponent went to the prison, and saw the prisoner, who when in the act of shaking hands with the deponent put into his hand a small note and a pair of sleeve-buttons-the purport of which note was as follows: "Call on Maria Overton"shew her my sleeve-buttons, get the contents of a small "trunk, go to the woods but not up the canal, burn the "trunk and destroy the lock." The deponent went to the house of Maria Overton and was informed by her that the prisoner had left with her a package which she had put out of her possession, but that she would procure it and bring it to the deponent, which she accordingly did-and on Friday evening, at the request of Francis Taylor, the deponent returned the package to the said Maria Overton.

Preston Smith, Carlton Radford, Hezekiah Henley, John A. Richardson, Bartlett Still, George Hawkes, James Vaughn, Peyton Drew, James Gray, Francis Taylor, and Robert Elam, recognized to appear at the superior court as witnesses for the commonwealth against the prisoner.

Teste, TH. C. HOWARD, Clerk.

The warrant of commitment under the hands and seals of Thomas Wilson, recorder, and of David Bulloch, is in the following words: