depositions of witnesses, and recognize them to appear at the general court, and remand the prisoner for trial there. These powers do not make them courts of record; they do not inflict punishment; they have no power to fine, and none to imprison; they only commit. If it shall be said, that they have power to imprison for contempt, the ready answer is, that a single magistrate in the coun ty has the same power. It is true, that in the progress of time, they have been vested with the power of final acquittal, but does this make them courts of record? He thought not. If the single magistrate in England should be vested with the power of acquittal, his proceedings being matters in pais, evidence may be given of them. So with the examining courts, the substitute for the committing magistrate. If this opinion be correct, it follows that if the order of the examining court remanding the prisoner, states that he was examined, any evidence, even parol evidence, may be adduced to prove for what particular offence he was examined.

Mr. N. quoted Hawkins B. 2. Ch. 35, to shew that on the plea of autrefoits acquit, you may resort to parol evidence, to help the record in certain cases; and inferred that as it could be done in such cases, it might, be helped by averment in this case.

Mr. Nicholas said, that if the court should be of opi

nion that he was wrong in the view he had taken of the structure and powers of these courts, yet he should contend, that there was sufficient certainty in this record, to have enabled the circuit court to proceed on the indictment against M'Caul for larceny. In Myers's case it was decided that the species of the offence need not be defined; all that can be necessary is that the facts which constituted the offence should appear in the record. In this case the criminal fact does appear in the warrant of commitment, and that warrant is a part of the record. It is conceded by Mr. Wirt, that the warrant summoning magistrates, is a part of the record; but he contends that the warrant of commitment is the exclusive property of the jailor; that it is held by him as a justification of the detention of the prisoner. This is not a correct position. By the express direction of the law, the clerk of the examining court is bound to transmit to the attorney prosecuting for the commonwealth, a copy of the warrant of commitment. (See 1st Vol. Rev. Code, p. 105. sect. 20th.) How can the clerk transmit the copy of that warrant if it is held by, and in possession of the jailor? This clause proves that it is an official document of the court, and as such is as much a part of the record of that court as a declaration, and the pleadings in a civil suit, or as an indictment in a criminal case. Is the clerk to borrow that warrant from the jailor, and after he has copied it, return it to him again? Certainly not. It is rendered

the official duty of the clerk to copy it, and it certainly cannot be his duty to copy any paper which is the property of any individual. If it is the property of the jailor, he may withhold it and thus prevent the clerk from carrying the provisions of the law into effect. The clerk is to certify it to be a true copy, and that certificate gives it authenticity. The certificate of the clerk would not give authenticity to any private paper. It is moreover safer for the jailor, that he should return it to the clerk when the court is opened, than to retain it in his own possession. When it is so returned, it is filed away amongst the other records of the court, and he can always defend himself against an action by summoning the clerk to attend with the original paper, or perhaps by producing an office copy of it.

He contended that the circuit court ought not to quash the indictment. This was an exception to the jurisdiction of the court, and was therefore proper matter for a plea. 4 Black. Com. 333. The court is not bound ex debito justitiæ, to quash an indictment, and generally require the party to plead or demur, wherever the offence charged is of an enormous, or public nature. Hawk. B. 2. Ch. 25. sect. 126. 3 Bacon 573. also 2 Strange 1268, and 4 Burrow 2116.

With respect to the new trial, on account of the sepa

ration of the jury, Mr. Nicholas said that the old rule was so strict, that it had been of necessity very much relaxed. 7 Bacon 11. Mr. Wirt cannot shew a single adjudged case in the English books, in which the separation of one juryman from his fellows was considered as sufficient to set aside a verdict. There are many instances in which the jurors may be subject to punishment for misbehaviour, and yet the verdict will stand. See 2 Hale 306, 8. 21st Viner 448. Buller N. P. 308, and 7 Bacon 11, 12. The court ought to see that the spirit of the rule is observed: if there has been no improper influence exercised, the purity of the verdict is not affected. There is a case stated by Lord Hale in his Pleas of the Crown, which decides the question now before the court. A juror retired from his companions to drink; on his return he denied on oath that he had spoken with the defendant, and the verdict was received, though the juror was fined. 2 Hale 296. It is true that this was a case of trespass; but Lord Hale writing on criminal law, and shewing how jurors ought to conduct themselves in criminal cases, cites this case with approbation. The authority of Lord Hale, whose humanity and wisdom are well known, will not be disregarded.

Hiort, for the prisoner, to prove that the examining court is one of record, referred to the county court law. 1st Rev. Code, Ch. 67: the examining court emanates from

the county court, and is of the same nature with the stock from which it springs. The plea of autrefoits acquit can only be proved by record; it would be a cruel dispensation to a prisoner to allow any parol evidence, or any thing less than a record to prove his acquittal; for the magistrates who acquit him, and the witnesses who are present will die, but the record never can die: it operates as a perpetual proof of his innocence. He contended that according to the act of congress, any court of law which has a seal is a court of record. To shew that the indictment might be quashed on motion he referred to 2 Strange 1268, Rex v. Trevillian. He referred to Trials per Pais, p. 203 to 213, to prove that the verdict ought to be set aside, and in p. 207 he said there was a case in which chief justice Rolle decided that the affidavit of a juror ought not to be received to make good his own verdict.

Bacchus, for the prisoner. He did not expect to hear a doubt that the examining court was one of record. In Myers's case, Mr. attorney general contended that the examining courts were courts of record, and that the plea of autrefoits acquit was not good unless the prisoner had the record in hand to support it. 3 Black. Com. 24, shews that a court of record is one in which the acts and judicial proceedings are enrolled for a perpetual testimony, and memorial; which rolls or records cannot be questioned. The proceedings of the examining courts are enrolled,