City of Richmond, to wit,

"To the keeper of the jail of the said city. We here"with send you the body of John M'Caul taken and "brought before us, charged with having feloniously bro"ken into an apartment of the treasury office of this com"monwealth and stealing and carrying away from thence "in bank notes and specie a sum of money to the amount "of about seventeen thousand dollars, the property of the (6 commonwealth, or of their treasurer. These are there"fore in the name of the commonwealth to require you 66 to receive into your jail and custody the body of the "said John M'Caul, and him safely keep until he be "thence discharged by due course of law. Given under CL our hands and seals this 26th October, 1811.

"THOMAS WILSON, Recorder. (Seal.)

“DAVID BULLOCH.

(Seal.)"

It appeared to the said court that on the examination of the said prisoner a variety of witnesses were examined and sworn and recognized to appear at this court, but the attorney general who attended the said examination, dispensed with the taking the depositions of the said witnesses.

The court overruled the said motion to quash the indictment, whereupon the counsel for the prisoner prayed that his motion, and the judgment of the court over

ruling the same, be spread on the record. And on this twelfth day of the court, after the said prisoner had been convicted by the jury, on the motion of the said prisoner, the court doth adjourn this question of law to the general court, for novelty and difficulty.

1st. Ought the order of an examining court, remanding a prisoner for trial to the superior court of law, expressly shew for what species of felony the prisoner is so remanded?

2d. If the said order of the examining court remands a prisoner for trial, for felony generally, and the grand jury find a bill of indictment for larceny, ought the court on motion to quash the said indictment, if it appear by the warrant of commitment, the warrant of summons, or other evidence dehors the said order, that the prisoner was in fact examined and remanded for the offence of larceny.

This cause was argued at June term, 1812, by Wirt, Hiort and Bacchus for the prisoner, and by Nicholas, attorney general, on behalf of the commonwealth.

Mr. Wirt said that he should contend, that the examining courts of this commonwealth were courts of record; and that the superior courts ought not to proceed with an indictment against an individual charged with any

felonious offence, unless it appears certainly from the record that he has been previously examined and remanded for the same offence. It is the established maxim in England, that whenever a jurisdiction is erected with power to fine and imprison, that is a court of record. 1 Salkeld, 200. The court of the county constitutes the examining court, and there can be no doubt that the county court is as a court of record, it having the power to fine and imprison. The examining court, it is true, is convened for a special purpose, but it is attended by the regular officers of the county court, the sheriff and the clerk, and the latter is directed to make a record of their proceedings. It is still the county court, though convened for a particular occasion. A still stronger argument may be derived from the act of assembly, passed January 24th, 1804, (2d Vol. Rev. Code, p. 38.) By that act, the examining court has the final power of acquittal, and it is clear that the plea of autrefoits acquit must be supported by record. 2d Hale, P. C. 241, 2, 3. Hawkins, Book 2d. Ch. 35. Sect. 2. Leach's edit. If such plea can only be supported by record, and the examining court has the power to acquit, it necessarily follows that it must make a record of the acquittal, and is consequently a court of record.

The fifth section of the last mentioned act declares that no person shall be tried in the district court for trea

son or felony, until he shall have been previously examined by the court of the county or corporation. This court is now required to give a construction to this clause, and in doing so they will give it such an one as will best answer the intention which the legislature had in view, and will collect that intention from the cause or necessity which produced the clause in question. 6 Bacon, 384. It is certain that this fifth section was enacted in consequence of a previous decision of the general court, that no examining court was necessary previous to an indictment for felony. The legislature considered this as an evil, and they have here provided the remedy; their intention is to prevent any trial for treason or felony without a previous examination. How shall this intention of the legislature be carried into effect? If the record now produced from the examining court be sufficient to justify the circuit court in proceeding against this prisoner for larceny, the intention of the legislature will be frustrated. It will proceed to a trial for larceny, although it is not proved that the prisoner has been previously examined for larceny. The intention of the legislature cannot be carried into effect, unless it appears for what offence the party has been examined, or with what criminal facts he was charged in the court below, and remanded to the superior court. On this record there is not a single fact spread, nor does it appear whether he was examined for murder, burglary, larceny, or any particu

lar species of felony. If M'Caul had been indicted for murder in the circuit court, that court would have had the same reason to believe that he had been examined for that offence as for larceny, for any thing that appears on this record. But it may be said that other evidence may be produced to prove that he was examined for the same larceny with which he is charged in the indictment. The ready answer is, that the proceedings of a court of record can only be proved by the record, and there can be no averment against the truth of a record.

The examining courts are vested with the powers of acquitting, and remanding. If the court acquits, it is certainly essential that the offence of which the party is acquitted be stated on the record, or that the facts which constitute the offence should be specially alleged; if this is not done, in vain will the unfortunate prisoner plead that he has been heretofore acquitted, and produce the record to prove it. The attorney would say to him, the record does not support your plea, and you cannot resort to other evidence to prove it. This principle is carried so far in England, that where a man is acquitted on an indictment which is bad in substance, such an acquittal is no bar to a subsequent indictment. Hawk. B. 2. Ch. 35. Sect. 8. Suppose an indictment found for felony, and the prisoner acquitted thereof, it is clear