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and their truth cannot be questioned. They are therefore courts of record.

No one doubts that the regular county court is a court of record. But by the act of 1800 (Rev. Code, p. 402) if the examining court fails to meet on the day appointed, all the recognizances entered into before the single magistrate shall stand obligatory to the next court, and the examination shall be had at such next court. The next court here meant is the regular county court. Is it not monstrous then to say, that one of these courts is à court of record, and the other is not, and thus to give two several rules on the same subject. One man is examined before the called court, and it is not necessary to shew by the record for what offence he is remanded, but another is examined before the ordinary county court, and it is necessary to shew on the record for what he was remanded! The general rule is that county courts are of record, and whoever alleges that examining courts are not, must shew by what law the exception to the general rule is made.

There is no analogy between the statute of Philip and Mary, and our acts. Under that statute the magistrates must send on the original depositions, but the examining courts send on copies, retaining the originals.

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3 Black. 25, shews that courts not of record are courts of private persons; the examining courts are composed of regularly commissioned justices, and their duties are altogether of a public nature.

These courts are sometimes convened for the purpose of trying slaves; they are then courts of oyer and terminer, and may not only finally acquit, but finally condemn. As such they are certainly courts of record, and this proves that the circumstance of convening them for a particular purpose does not take away that quality.

The record of the examining court ought to shew enough to enable the prisoner to plead it in bar of any future prosecution for the same offence. The depositions (he thought) were no part of the record: the depositions may vary from each other; one may prove a felony of one kind, and another of a different kind, and so it will be impossible for the superior court to ascertain for which felony he is remanded for trial, unless the examining court express on the record for what offence he is remanded. The judgment of the examining court ought to be so clear as to disdain the support of depositions. But here the deposition proves nothing.

Mr. Bacchus contended that there being a plain defect

of jurisdiction, the indictment ought to have been quashed. 2 Strange 1088. 1 Burrow 389. 3 Bacon 573.

As to the new trial, the case was clear. It ought not to be put on the prisoner to prove that the conduct of the juror during his separation was improper. If he separates at all, he will converse, and if so, hints may be dropped which may have an improper influence.

Wirt, in reply to the attorney general, said that it is certainly proper that the warrant of commitment should be retained by the jailor for two purposes; first, that it may appear to the judges, on a habeas corpus, that the prisoner is detained for a legal cause, and for this purpose it is necessary that the warrant be special, 2 Hale 122; and, secondly, that the jailor may be able to defend himself on a prosecution for false imprisonment, and for this it is not necessary that the warrant should be special. 1 Hale 584; Burn's Justice, Commitment, sect. 3. The warrant of commitment, is not the basis of the authority of the examining court; but the warrant summoning the magistrates is, and therefore the latter is part of the record, though not the former. The warrant of commitment spoken of in the 20th section of the act, referred to by Mr. Nicholas, is the remanding order of the examining court itself.

If a vague remanding order can be helped, by the war

rant of commitment, so may a vague entry of acquittal. The consequence is, that the muniment of his defence, against an action of false imprisonment, may be drawn from the jailor, by his adversary. Again, if this warrant is part of the record, great injury may be done to the prisoner, for he may be committed for one offence, and remanded for another; thus, the prisoner may be committed for burglary; the examining court are of opinion, in point of fact, that he is not guilty of burglary, but of larceny, and remand him for felony; here if you resort to the warrant, for certainty, he will be indicted for a different crime from that for which he was remanded. So of a commitment for highway robbery and murder, the court being of opinion that he is guilty of the robbery only, yet send him on for felony, and because he was committed for murder, he may be indicted, tried, and hung for murder. Thus the warrant will not produce that certainty which ought to be found in all records, and the object of creating examining courts will be entirely frustrated.

Mr. Wirt said he was at first inclined to think that the depositions might be considered as a part of the record, but on reflection he thought they could not. Nothing can be considered as a part of the record but the warrant convening the court, and the entry of the proceedings, and judgment of the court itself.

With respect to the case in 2 Hale 296, quoted by Mr. Nicholas, to prove that there ought not to be a new trial, Mr. Wirt said it was a solitary case, not found in the year books, and moreover was a civil case. The case quoted in 7 Bacon 12, was a civil case from the common pleas. In opposition to these cases, he referred to the opinion of the judges, in a case of life and death, in which it was clearly laid down that it was illegal to discharge a jury in a capital case, lest there may be corruption, and tampering with the jury. (See 4 State Trials 231. Lord Delamere's case.)

This case was decided by the general court, at the same term at which it was argued; present, Judges Nelson, White, Stuart, Holmes, Brockenbrough, Semple, Johnston, Smith and Randolph. On the question respecting the propriety of quashing the indictment, the following was delivered by the presiding judge, as the judgment of the court, although it was not entered on the order book of the court, for the reason before mentioned.

"1st. That it ought to appear in the record of the pro"ceedings of the examining court, for what fact the pri"soner has been remanded, and that a superior court of "law hath a right to look into the warrant, summoning the "magistrates, which is a part of the record, but not into

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