
    *The Commonwealth v. Benjamin Cawood.
    Indictments — Record of Finding. — When a Bill of Indictment is found by the Grand Jury and endorsed “a true Bill,” by the foreman, it should be brought into Court, presented by the Grand Jury, and then the finding should be recorded.
    Same — Finding—Failure to Record — Effect.—An omission to record the finding, cannot be supplied by a paper purporting to be an Indictment, with an endorsement, “a true Bill,” signed by the person who was foreman of the Grand Jury at that Term.
    
      Same — Same—Same.—Nor can it be supplied by tbe recital in the record that he stands indicted, nor by his arraignment, nor by his plea of not guilty. It cannot be intended that he was indicted; it must be shewn by the record of the.finding. The recording of the finding of the Grand Jury is as essential, as the recording of .the verdict of the jury.
    Records — Amendment—When Can Be Made. — During the Term, the records are in the breast of the Court and they may be amended, but after the Term no amendment can be made, except of a mere clerical misprision.
    Order-Book — Failure to flake Entry in — Judicial Error. —An error in the Orders of the Court, or an omission to make an entry in the Order-Book, is not a clerical, but a judicial error.
    Statute — Third Term of Court — Failure to Find Indictments — Effect.—If, after the prisoner has been examined by the County Court for an offence, two • actual Sessions of a Superior Court thereafter occur, and it does not appear from the records of the Superior Court that an Indictment has been found against him, he is entitled, under our Statute, to be discharged from his imprisonment, although he has been in fact arraigned on, and has pleaded to, an Indictment not appearing by the record to have been found by the Grand Jury. And if a third actual Term has passed without such record of the finding, he is entitled under the Statute to be discharged from the crime.
    This Case was adjourned to the General Court, by the Superior Court of Ijaw for Wythe county, on the 15th of October, 1824. There was no Session of the General Court in November of that year, and at the Session held in June, 1825, the Counsel for the prisoner suggested that there was diminution in the record, and on their motion, a Certiorari was awarded to the Clerk: of the Superior Court of Washington, from which Court, the venue had been changed to the Superior Court of W3the. The General Court also failed to hold a Session in November, 1825, and at this Term this Case came on for adjudication. It will be.necessary to make a full statement of the whole Case, as it appeared before the Court, in order that it may be rightly understood.
    The Certiorari record from the Superior Court of Washington, shews that at a Court held by the Judge thereof, on the 26th April, 1824, David Campbell, foreman, and twenty others (naming them) were sworn a Grand Jury of Inquest for the body of the county, and having withdrawn from the bar to consult on their Presentments, after some time returned into Court, and presented an Indictment against John Walker, for larceny, “a true Bill;” an Indictment against Nancy Davenport for larceny, “a true*Bill;” an Indictment against Mary Davenport for larceny, “a true Bill,” and an Indictment against George Winniford for not having a road in repair, “a true Bill,” and then the said Grand Jurors were adjourned till the next morning at ten o’clock.
    On the next day the Grand Jury appeared in Court according to their adjournment, and withdrew from the bar to consult further on their Presentments, and after some time returned into Court, and presented an Indictment against Benjamin Bowman for perjury, “a true Bill;” another Indictment against the said Benjamin Bowman for perjury, ‘‘a true Bill;” an Indictment against Abraham Snodgrass, and Joseph-Snodgrass, for obstructing the process of the Law, “a true Bill;” an Indictment against Moses Whitaker for an assault, “a true Bill,” and an Indictment against Benjamin Grier for an assault, “a true Bill.” They also made a Presentment against Samuel 'Caldwell, and Thomas Caldwell, for larceny, which is fully set out, and the record of the transactions of the Grand Jury, concludes thus: ‘ ‘And having nothing further to present they are discharged.”
    [It will be perceived that in this record of the proceedings of the Grand Jury, there is no notice taken of any Bill of Indictment against the Defendant, Benjamin Cawood.]
    The next Order set forth is on the 1st May, 1824, during the same Term, and is as follows: “The Court deeming it necessary to secure the attendance of jurors for the trial of Benjamin Cawood, David Prator, and Polly Prator, accused of murder, from the lower end of the county of Washington, &c. therefore it is ordered, that the Sheriff proceed forthwith to summon as many of the freeholders as he can, to attend this Court on Monday next, for the purpose of forming a jury for the trial of the said prisoners.”
    The next order set forth in the record, is on Monday, the third day of May, and is as follows: “Benjamin Cawood, late of the county of Washington, husbandman, who, together with David Prator, labourer, and Mary Prator, spinster, stands indicted for murder, was led to the bar in custody of the keeper of the jail of said county, and thereof arraigned, and pleaded not guilty to the Indictment, and thereupon came a jury to ■wit, &c. ” The trial running to such length that it could not be concluded on *that day, the jury were ordered to be kept together, with the usual charge.
    The order of the next day, was as follows: “Benjamin Cawood, late of the county, &c. who, together with David Prator, labourer, and Mary Prator, spinster, stands indicted for murder, was again led to the bar, in custody of the keeper of the jail of said county, and the jury sworn in this cause yesterday, were brought into the Court by the Sheriff, &c. &c.” The trial continued the fourth, fifth, sixth, seventh and eighth days of the month, and on each day a similar order was made on the record, as the one which is copied last. On the evening of the eighth, which was the last day of the Court, the jury retired to consult of their verdict, and after some time, returned, declaring they could not agree on a verdict. A venire facias de novo, returnable to the first day of the next Court, was then awarded, and the prisoner remanded to jail.
    At the next Superior Court held for the said county of Washington, on the 29th September, 1824, the record proceeds: “Benjamin Cawood of the county of Washington, husbandman, who stands indicted for murder, was again led to the bar, &c. and thereupon, he presented his petition to the Court, praying that the venue for his trial on the said Indictment, may be changed to some other county.” The Court thereupon, and for good cause shewn, ordered the venue to be changed to the Superior Court of Wythe, which was to commence on the 11th day of the next month.
    There is then copied into the Certiorari record, from Washington, as well as into the copy of the record sent from Washington to Wythe, and from that Court to this, an Indictment against Benjamin Cawood, and David Prator, and Mary Prator, for the murder of Mary Caw'ood, the wife of the said Benjamin Cawood.
    In the record sent from Wythe, the Clerk of that Court introduces the Indictment which he copies, by the following remark or certificate: “The Bill of Indictment against Benjamin Cawood, David Prator and Polly Prator, as certified to this Court, is in the words and figures following, to wit:” Then follows the Indictment.
    In the Certiorari record, sent from Washington, the Clerk of that Court introduces the Indictment by the following certificate. “The Indictment on which Benjamin Ca-wood was arraigned at the Spring Term of the Circuit *Court of Washington county, in the year one thousand eight hundred and twenty-four, to which he pleaded not guilty, and upon which, he was tried at the said Term, is in the words and figures following:” Then follows the Indictment.
    At the foot of the Indictment as copied into the record sent from Wythe is this certificate, made by the Clerk of the Superior Court of Washington: “Presented at the April Term, 1824, of the Superior Court of Daw holden in and for the said county of Washington, in the Commonwealth of Virginia. ”
    A certificate in the same words, is copied into the Certiorari record from Washington.
    In the former there is also added, a certificate in these words: “Endorsed on the back of the Indictment, of which the above is a copy; ‘A True Bill,’ D. Campbell, foreman.”
    In the latter, the additional certificate is in these words: “With an endorsement on the said Indictment, in these words: ‘A True Bill,’ D. Campbell, foreman.”
    [It is apparent, that these certificates of the Clerk of Washington, are not copies from the records of that Court. The introductory certificate on the Certiorari record, was obviously made at the period when the record was certified by the Clerk in obedience to the process of the General Court; and the certificate put at the bottom of the copy of the Indictment, appears to have been written at a time posterior to the April Term, 1824.]
    In obedience to the order of the Court changing the venue, the prisoner was put to the bar of the Superior Court of Wythe, on the 12th October, 1824, when the following entrj' was made:
    “Benjamin Cawood, late of the county of Washington, husbandman, who, together with David Prator, labourer, and Polly Prator, spinster, stands indicted for murder, was led to the bar, &c. and moved the Court that he be not put on his trial; that the Indictment be dismissed for want of jurisdiction in this Court, and that he be discharged from imprisonment; because as he alleged, it does not appear by the record, that the fact charged in the Indictment, has been examined by the County Court of Washington; that it does not appear that the jury formerly impanelled in this Case, were discharged; and, that it does not appear by the record, that the Indictment was found by the Grand Jury.”
    Superior Court of Wythe then adjourned, with the consent of the prisoner, the following questions for novelty and difficulty, to the General Court.
    1. What is the legal effect of an omission, on the part of the Clerk of the Circuit Court of Washington, to enter on the order book, that the Grand Jury at the last April Term of that Court, had found an Indictment against Benjamin Cawood, David Prator and Mary Prator, “A True Bill?”
    2. Can such an omission be supplied by resorting to the paper purporting to be an Indictment, copied into the record by the Clerk, and the endorsement thereon purporting to have been made by the Grand Jury, finding it to be a true bill?
    3. Does the subsequent plea of not guilty, pleaded by the prisoner Benjamin Cawood, found in the record, cure such - omission as to him? ■
    4. If the omission aforesaid, cannot be supplied by resorting- to the paper copied into the record as an Indictment, and the endorsement thereon, “A True Bill,” and if the subsequent plea of not guilty, pleaded by the said Benjamin Cawood, does not preclude him from making this objection, is he to be discharged from imprisonment? ■ ! -
    5. If he is to be discharged from imprisonment, can the Court legally direct his immediate arrest, and removal to the county of Washington, for proceedings to be had against him there, de novo?
    6. If he may be so arrested and removed, must he again be sent to an Examining Court, or will it be sufficient to exhibit a new Indictment against him, David Prator and Mary Prator? And any other question which may arise out of the record?
    The Case was argued by Beigh and Johnson, for the prisoner, and by Robertson, Attorney General, for the Commonwealth.
    Beigh referred to the record to shew, that the Grand Jury presented sundry Indictments and Presentments, and did not present any against Cawood. The record, moreover, negatives the idea that the paper called an Indictment against him, was found by them; for, after they had made their Presentments, it states that they, having nothing further to present, were discharged. The certificate that this *Indictment was presented at the April Term, 1824, is no part of the record: it is a mere statement by the Clerk of the fact. As the Indictment does not appear, by the record, to have been presented by the Grand Jury, the maxim, de non apparentibus et non existentibus eadem est ratio, will apply to the Case.
    He maintained that every Judicial act whatsoever, which the Baw requires to be done in a Court of Record, and in open Court, must be entered of record;-and that whenever a question arises whether any act has been done, or "any proceeding had, which in its nature is matter of record, can only be tried by the record.
    These propositions result from the very nature of Judicial proceedings in a Court of Record, and at the Common Baw hold good universally: they are true even in Civil cases; especially true in Criminal cases, and more especially in Capital cases.
    An Indictment is a presentment of a crime by a Grand Jury in a particular form: it is a written accusation, presented on oath, by a Grand Jury. 4 Bl. Com. 302. And a Presentment ex vi termini imports an accusation made to the Court in open Court. 1 Chitty’s Cr. Baw, 324.
    Now let us suppose that a Grand Jury find an Indictment, and endorse on it “a true bill, ” and never return it, or present it to Court; but the foreman only returns ' it privately and unofficially to the Clerk of ' the Court. Surely this is no Presentment; ' no Indictment. It wants an essential ingredient to make it an Indictment; it is i not presented to the Court by the Grand Jury. This may havé been the case in the present instance, as appears by the record, for the Clerk arraigned the prisoner on a paper purporting to be an Indictment, with an endorsement on it, which paper does not appear by the record to have been presented to the Court.
    The forms of proceedings are evidence of the Baw, and they prove that every Indictment must be presented to Court, in open Court. 4 Chitty’s Cr. Baw, 186-7. And they prove, too, that the fact of the Indictment being found by the Grand Jury, is always stated on the record. Ibid. 189, 196.
    He referred to 2 Hawk. ch. 2S, fj 118, and especially to <j 127, to prove, that the finding of the Indictment must be recorded.
    *He contended, that the verdict of a Grand Jury, finding a bill to be true, and the verdict of a petit jury, stood on precisely the same footing in this respect; that both must be delivered to the Court, in open Court. 4 Bl. Com. 306, 361.
    In all Capital cases the verdict of a Grand Jury is just as essential to the legality of a conviction, as the verdict of a petit jurj. He chose to call the Presentment a verdict; for, by the Baw of the land, no man can be convicted of a Capital offence, unless by the unanimous voice of twenty-four of his peers; that is, by twelve at least of the Grand Jury who accuse him, and by twelve more who find him guilty upon his trial. Ib. 306.
    Now, suppose a verdict of a petit jury to be endorsed on an Indictment, signed by the foreman, and returned to the Clerk, but not recorded. Could any judgment be given on it? Certainly not; or if it is rendered, it could not stand : it must be reversed. And yet, a verdict so situated, would stand on the same reason, as the finding of an Indictment by a Grand Jury, a true bill, endorsed on the Indictment signed by the foreman, returned to the Clerk, and not recorded. If the one cannot stand, so cannot the other.
    ' ' ' The next question presented here, is this: Can this defect in the record of the proceedings, this omission to state that the Indictment was presented to the court, be supplied or cured - upon any principle of amendment whatever? In civil cases many informalities, irregularities, imperfections in the record, omissions, even defects in substance, are cured by verdict. So, in Virginia, in Criminal cases, formal defects, or imperfections in the Indictment, are cured by verdict; 1 Rev. Code, ch. 169, ‘i 44; and by the 42d and 43d sections of the same Act, the omission of the words “force and arms,” or others of same import, or of the name of any parish, town, ville or' hamlet, are immaterial, both before and after verdict. But, with these exceptions, nothing is amendable in Indictments, except what was amendable at Common Baw. 1 Chitty’s Cr. Raw, 297 ; 2 Hawk. ch. 25, l 97.
    As to the amendments which were allowed at Common Raw, (see 1 Bacon’s Abr. 145,) mistakes are amendable Muring the Term, in Civil cases. Fssoins may be amended by the writ. Continuances are amendable, thus where there, was a Venire Facias awarded, the issue being between A. and C. but the jurat was between A. and B. the jurat may be amended by the Venire Facias; and the like. And see 3 Bl. Com. 407, by which it appears that only mere clerical mistakes were amendable, and for a long time even these were not amendable after the Term; for, during the Term, it was said the record is in the breast of the Court, but afterwards they admit of no alteration: he admitted, however, that recently, mere clerical mistakes are amendable after the Term.
    But certainly, neither at Common Raw, nor by Statute, is any substantial defect in Criminal proceedings, at any stage, amendable ; and at Common Raw, no defect in mere form, not clerical, was amendable.
    The argument on the part of the Commonwealth must be, that here is only a clerical mistake; an omission by the Clerk in the caption, and that the caption is amendable. And 1 Chitty’s Cr. Raw, 327, 335, will be quoted in support of the position.
    In answer, Mr. Reigh said, that the expression used by Chitty, that the Court would allow an amendment of the caption, was a loose expression. The caption is no part of the Indictment; it is only a copy, and contains a statement of the proceedings, describing the Court before whom the Indictment is found, the time and place where found, and the jurors bj whom found. The expression ought to have been, that the caption may be amended so as “to conform to the original record.” To prove this, he referred to 2 Hawk. ch. 25, | 97, where it is said that “the caption of an Indictment from any place, may be amended, so as to make it agree with the original record.” See, also, 1 Saund. 249, note 1; and 4 Fast, 174, King v. Darley.
    The doctrine, he said, relates to records of the Inferior Courts, certified by the Clerks to the Superior Courts; and only shews, that where the Clerk, in making up a record, makes a mistake, or omission in the caption, such error may be corrected by the original record.
    But, in our Case, the mistake is in the original itself. By our Raw, the orders of the Court are made up and signed by the Judge. Any omission, then, to enter that which is done in Court; any erroneous, or mistaken entry of what is rightfully done, is a Judicial error, and not a mere clerical ^'mistake. He would not deny that such errors might be amended during the Term but surely not after.
    In Civil Cases, the doctrine is well settled by the Court of Appeals. He referred to, and argued on the Cases of Cogbill v. Cog-bill; and Vaughn v. Freeland, 2 Hen. & Munf. 476; Cahill v. PintonjT, 4 Munf. 371; Burch v. White, 3 Rand. 104; Sydnor v. Burk, MS. decided very lately. In this last Case, which was an action of detinue the jury was sworn to try the issue joined; by the record, it appeared there was no plea, and no issue: at the subsequent Term, ;he Superior Court authorised an entry to be made nunc pro tunc of the plea of non detinet and issue, upon the evidence of the Clerk of the Counsel, and on the Judge’s own memory. But the Court of Appeals disregarded this amendment, and considering it as no part of the record, reversed the judgment for the want of an issue.
    If such be the Raw, in a mere matter of property, will the General Court, by a contrary decision, establish a greater looseness of proceeding-, when it affects the libertj- or life of the citizen?
    As to the idea that the prisoner has -waived his objection to the omission to record the finding of the Grand Jury, by pleading not guilty to the paper on which he was arraigned, there is nothing in it. The plea may waive all defences which would, abate the prosecution, but not such as would bar it. 1 Chitty’s C. R. 436-7-8.
    The objection of the prisoner is, that he is not indicted. If he is, let it be proved by the record, and not inferred by any supposed admission of his own.
    Robertson, Attorney General, said that it appeared there had been an omission of the Clerk to enter on the Order Book of the Court the finding by the Grand Jury of this bill. He should enquire, 1. What is the legal effect of this omission? 2. Whether it can be supplied? And 3. Whether the defect could be cured?
    1. What is the object of the entry? It is to shew that an Indictment was found by the Grand Jury, that it was received by the Court, and that the Indictment upon which the proceedings are afterwards had, is the identical Indictment which was found by the Grand Jury. Now, all of these sufficiently appear by the Indictment itself, by the other entries shewing that a ven-ire was summoned, and by *the arraignment on this Indictment and the plea of the prisoner to.this very Indictment.
    The entry of the finding, is not a record of the Indictment, for that is never spread out at large on the Order Book; it is only a record of the facts before mentioned. The Indictment, when filed, is itself the record. An inquest is a record. 4 Co. 54. An affidavit, read and filed,' is a record. 1 Wils. 371. See, also, Com. Dig. title “Record,” A. where it is said, that a record found in the proper office, must be intended to have been always in the same plight.
    2. The omission of the Hntry of the finding is fully supplied by other parts of the record. There is an order made, by the Court itself, on the 1st May, to summon a jury from the lower end of the county of Washington, for the trial of Benjamin Cawood, “accused of murder.” Then follows the entry of the 3d, that Benjamin Caw'ood, “who stands indicted,” &c. was “thereof arraigned.” Here is an averment by the Court, that he is indicted: How indicted? Surely by this very bill now in the record. He is arraigned. How? He is called upon in open Court, by name, and required to hold up his hand, or otherwise identified :■ the Indictment is read to him, and/he,'is.required to plead to it, guilty or not. 1 Chitty, 415, 419. By these acts, the Court surely recognizes the fact of his being actually indicted, as effectually as if the entry had been made, stating that the Grand Jury presented the Indictment against him, “a true Bill.”
    An Indictment is an accusation of a proper jury. Co. Litt. 126, b. The endorsement “a true Bill,” is part of the Indictment. Com. Dig. “Indictment,” A. Also, 4 Bl. Com. 306, who says when the Bill is so endorsed, the party “stands indicted.” In this case the Indictment, so endorsed, was read to the prisoner. The Indictment reads thus: “The Grand Jurors, &c. present that Benjamin Cawood, &c.” To this Indictment so endorsed, and so read to him, the prisoner pleaded, and now we are gravely asked, was there any Indictment found? To what did he plead, except to the Indictment so presented and found?
    It may be objected, that the record shews not the time when it was presented. He presumed this was not necessary, but if it was, the 'certificate of the Clerk “presented at the April Term, 1824,” will fix the period. It is the *Clerk’s duty to note the time of filing the papers, and as this appears by the record to have been noted, that certificate ought to be regarded : and the Judge in certifying the record, states that full faith and credit is to be given to it.
    3. He contended that the misprision, if not supplied by other parts of the record, was at least cured. He thought it was cured by the plea of not guilty, making up an issue to be tried. By that plea, the Defendant admits the power of the Court to try him, and refers his Cause to their decision. 1 Chitty’s Cr. Law, 438. By his plea, he admits that the pre-requisite of a valid Indictment has been complied with.
    A discontinuance is salved by appearance; 2 Hawk. ch. 27, $ 107; for the object of process being to compel an appearance, and the defendant having appeared, he shall not object to the process, however erroneous. So, pleading to an Indictment, admits it was duly found. The want of addition in an Indictment is cured by plea. 2 Bac. Abr. “Error,” 492.
    The want of arraignment is said to be sufficient ground for reversing a judgment, yet it is not necessary to enter it of record; for, if the record shews that he had Oyer of the Indictment, the arraignment will be intended. 1 Chitty’s Cr. Law, 418-19.
    Presumptions are countenanced by the Law. Lex semper intendit quod convenit rationi. Vin. 449, “Intendment;” Co. Litt. 78, b. De fide et officio judicis, non recipi-tur quasstio. Incident and necessary circumstances, without which the jury could not have found so, shall be intended to support a verdict. Com. Dig. “Pleader,” 31; and he contended, pari ratione, that incident and necessary circumstances, without which the Court could not have proceeded, ought to be intended to support the regularity of the proceedings of a Court of Justice. By his plea he waives his right to object. If there had been no Indictment presented, would he not have objected to it before plea? The plea admitted a regular examination before the Justices, and on the same principle, it admits the Indictment to be regularly found. If a Judicial Writ, as Capias Utlagatum, issue, though no day be mentioned, it shall be intended during Term time. Com. Dig. “Pleader,” C. 25.
    He contended that this misprision was amendable: whatever was amendable at Common Law in Civil, was also amendable in Criminal Cases. Salk. 51. Amendments *ought to be made at Common Law, where there is any thing to amend by. Hampson v. Chamberlayne, Barnes, 3. Whilst all is in paper you may amend. 2 Burr. 1099.
    When the error appears to be in the Clerk who wrote the record, it may be amended: thus when judgment was entered de bonis propriis instead of bonis testatoris, it may be amended in the Court below even after judgment, and record removed by error. 1 Saund. 366, n. 10; 5 Burr. 2730. The Nisi Prius Roll was amended by the record of the Indictment. 2 Str. 843. The Court holding in a Criminal Case, the error amendable where something to amend by. After verdict a similiter was added by direction of the Court, in a Criminal Case. Cro. Jac. 502; 2 Roll’s Rep. 59. He cited Philips v. Smith, 1 Str. 139, by which it was decided, that continuances might be entered at any time, and a distinction taken between Ministerial and Judicial acts, the first amendable at any time, but the latter not after the same Term. He argued that this was a mere clerical misprision, and therefore amendable.
    He also relied on Rex v. Darley, 4 East’s Rep. 174, and 1 Saund. 249, note 1.
    Johnson, for the prisoner, enforced the arguments advanced by Leigh, but it is deemed unnecessary to report more than a few of his remarks.
    The true import of the record in this Case, is, that the Indictment copied into the record, was not found by the Grand Jury; and not that there was an omission to record it. We deny that such bill was found at all, and we prove by the record, not only that the bill was not found, but that the Grand Jury, having made many presentments, had nothing further to present.
    We hold, that there can be no valid accusation, unless the bill be presented in open Court, and entered of record. An Indictment presented by the foreman, endorsed “A true Bill,” although twelve do not concur therein, would be rejected by the Court. Shall then a paper, although it be endorsed, be deemed a valid accusation, when it appears never to have been presented by the Grand Jury, and there is no legal evidence that it was agreed to by twelve of them?
    He referred to 2 Hawk. ch. 25, § 118, to shew, that the caption is erroneous, unless it sets forth the court in *which the jurors by whom, and the time and place at which, the Indictment was found; and to $ 127, which proves, that the caption “must record it as then found in the present tense, arid notin the preter perfect.” When the Indictment is presented, it must be then recorded: A certificate afterwards, that it was presented at that Court, is not sufficient. Such a certificate is of no more force than the certificate of any other fact drawn from memory.
    He said the Case quoted by the Attorney General, from 1 Wils. 371, which was so much relied on, was easily explained by referring to the Case itself. An affidavit read in Court, was made a part of the record ; but the affidavit was noticed in the regular course of Judicial proceedings, but if the affidavit had been thrown in without being noticed on the record, surely it would not have been a part of it.
    The questions to be considered here, are 1. Is the fact stated on the record, that 1 ‘he stands indicted,” sufficient record proof that the Indictment was found? 2. Are the Arraignment and plea, a sufficient recognition of it, to make it a valid Indictment?
    As to the first, it is a mere recital of what is done, and is not a recording of the fact. In a civil case, the record states, that the jury tried the issue, but there is no issue on the record. Here is a recital, that there was an issue, but because the issue itself is not spread on the record, the judgment is reversed. But suppose that the caption were to run thus: “Beit remembered, that the prisoner stands indicted, which Indictment is in the following words, &c.” This caption, though it avers that the prisoner stands indicted, would not be good, because it does not shew that the accusing power presented it; nor does it shew the time when presented.
    As to the second question, when he was arraigned, a paper purporting to be an Indictment, was read to him: He was informed that this was a bill presented by the Grand Jury: With this belief, he pleaded not guilty to it. Can he be presumed thereby, to have recognized a fact which did not exist? He pleaded under a mistake ; a mistake into which he was led by the officer of the Court. Is he to be estopped from objecting to the want of a regular and legal accusation, when he detects the mistake?
    The Attorney General, has relied much on certain general maxims. Bet us put them to the test. A record shews, *that a jury is sworn to try the issue, and yet the issue itself is not there; or the record shews that a jury is sworn to try the issue, and a judgment is rendered for the sum found by the jury, but the verdict is not in the record. In these cases, a presumption arises, that there was an issue, or that there was a verdict; for it may be said, that the jury would not have been sworn to try an issue, unless there was one, and surely the court could not render a judgment on a verdict, unless there had been one. But what would the court of Appeals do in such case? They would reverse the judgments, and they would say, as they have often said, that a record cannot be supplied by intendment. So we say here.
    It is true, that an appearance salves a discontinuance, and the reason is given in Hawkins, but surely it will not cure the total non-existence of an Indictment.
    As to the certificate of the clerk at the foot of the Indictment, “presented at the April Term, 1824, &c. ” it is obviously no part of the record; and it is almost certain, that it was written at a time posterior to the April Term, 1824, and probably when the venue was changed, and a transcript of the record sent from Washington to Wythe.
    On the subject of amendments, he- contended, that the authorities produced, only shew that mere clerical misprisions may be amended, where there is any thing to amend by. In Ejngland, every thing is in paper, infieri until final judgment, vichen a record is made up, and you may until then amend by the minutes of the Judge or the jury. But in this country, by express Statute, the orders of the Court are signed every day by the Judge, and at the end of the Term. The errors on the order book are not clerical, but Judicial errors; the Court gives its sanction to them by their being read and signed. During the Term, the record is in the breast of the Court, and errors may be amended before the end of it. But after the Term is closed, the power to amend the record ceases, except where the Law expressly authorises it.
    But even if this was a clerical misprision, there is nothing to amend by. Neither the paper called an Indictment, nor 1he endorsement, shew that it was presented by the Grand Jury in open Court; much less do they shew the time when it was found. There is nothing then to amend by, except the memory of the Judge, the Clerk, or the Grand Jurors, which is not to be tolerated.
    
      
      Indictments — Record of Finding. — No one can be tried for felony except upon an indictment of a grand jury; and no one can be considered as indicted unless it appear upon the record that an indictment against him was delivered in opon court, and the fact recorded. Simmons v. Com., 89 Va. 156, 15 S. E. Rep. 386.
      In reference to the principal case in Price v. Com., 21 Gratt. 859, it is said by Mohcdiíh, P : “It is a case of the highest authority. It was argued with great ability by very able counsel both for the commonwealth and the accused, and was decided by very able judges; and it settled the question as to the-necessity of a record of the finding of the indictment hy the grand jury.” See also, citing the principal case for this proposition, Com. v. Snider, 2 Leigh 744; Jackson v. Com., 13 Gratt. 801;'Shlfflet v. Com., 14 Gratt. 667; Whitehead v. Com., 19 Gratt. 647; Hodges v. Com., 89 Va. 266, IB S. E. Rep. 513; Watts v. Com., 99 Va. 874, 39 S. E. Rep. 706; State v. Gilmore, 9 W. Va. 644; State v. Heaton, 23 W. Va. 778, 780. See dissenting opinion of Phkesar, J., in Gilligan v. Com., 99 Va. 828, 37 S. E. Rep. 962.
    
    
      
      Record — Amendment of. — On this question, see the principal case cited In foot-note to Price v. Com., 33 Gratt. 819; Lingle v. Cook, 32 Gratt. 268; Com. v. McKinney, 8 Gratt. 591; Bunting v. Willis, 27 Gratt. 159; Barnes v. Com., 92 Va. 796, 23 S. E. Rep. 784; Kelty V. High, 29 W. Va. 383, 1 S. E. Rep. 563; Morgan v. Ohio R. Co., 39 W. Va. 19,19 S. E. Rep. 589; Howell V. Com., 86 Va. 821,11 S. E. Rep. 238.
    
    
      
      Statute — Discharge of Prisoner — Three Terms of Court. — See the principal case cited in Com. v. Adcock, 8 Gratt. 678,694. See also, foot-note to same case.
      Indictment — Finding of the Grand Jury — “True Bills,” —The Virginia authorities hold that the indorsement “A true bill,” signed by the foreman of the grand jury, is not essential to the validity of such finding. Miller v. Com., 2 Va. Dec. 52, citing Cawood’s Case, 2 Va. Cas. 527; Price v. Com., 21 Gratt. 846; White v. Com., 29 Gratt. 824.
    
    
      
       See Levi Gibson’s Case, ante, p. 70, by which i this position of Mr. Leig-h is fully supported.
    
   *BROCKENBROUGH, J.,

delivered the opinion of the Court:

It is undoubtedly true, that before any person can have judgment rendered against him for a felony, he must be regularly accused by the Grand Jury of his country, and his guilt must be established by the verdict of a jury. The accusation in due and solemn form, is as indispensable as the conviction. What, then, is the solemnity required by Law in making the accusation? The Bill of Indictment is sent or delivered to the Grand Jury, who, after hearing all the evidence adduced by the Commonwealth, decide whether it be a true Bill, or not. If they find it so, the foreman of the Grand Jury endorses on it, “a true Bill,” and signs his name as foreman, and then the Bill is brought into Court by the Whole Grand ' Jury, and in open Court it is publicly delivered to the Clerk, who records the fact. It is necessary that it should be presented publicly by the Grand Jury; that is the evidence required by Law to prove that it is sahctioned by the accusing body, and until it is so presented by the Grand Jury, with the endorsement aforesaid, the party charged by it is not indicted, ,nor is he required, or bound, to answer to any charge against him, which is not so presented.

The prisoner in the present Case, when brought to the bar of the Superior Court of Wythe, moved to be discharged, because he was not indicted; in other words, because the paper which was read to him as an Indictment, was not publicly presented in open Court against him, by the whole Grand Jury. And he called for proof that he was indicted. What kind of proof does the Law require to shew that he was indicted? Undoubtedly record proof. The proceedings of Courts of Justice are regularly recorded by a sworn officer, and in this State the proceedings of each day are signed by the Judge. The Law will not allow that parol evidence can be produced of the important fact that the prisoner was regularly accused. The record in this Case is produced, and what does it shew? That the Grand Jury, (whose names are recorded,) was regularly impanelled, sworn, and charged, and that they found many Bills of Indictment, and made several presentments, during a Session of several days, and that then having nothing further to present, they were discharged. In this record of their proceedings, there is nothing to shew that the Grand Jury have accused the prisoner, that they presented *in open Court a Bill against him, endorsed by their foreman, “a true Bill:” or, in' other words, that they found any Indictment against him: on the contrary, the Court intending to record all the findings of the Grand Jury, did not record a finding of the Grand Jury of this Bill. But, it is said, that the Indictment itself found in this record, with the endorsement, ‘‘a true Bill,” and signed by “David Campbell, foreman,” who was the foreman of the Grand Jury who sat at that Term, is record proof that this very Bill was found by that very Grand Jury. We admit, that after a Grand. Jury lias found a Bill, and reported it, and their finding is placed on the record, that the Indictment so found, a'nd endorsed, becomes as much a part of the record, as if it was spread in extenso on the Order Book; but, in order to give it that character, we deem it essential that a record should be made of the finding on the Order Book. We consider this to be essential, because the Statute requires that the proceedings of the Superior- Courts should be regularly placed on the Order Book, and the proceedings of juries in open Court are a part of the proceedings of the Court itself. We consider it to be essential, because from the year 1776 to this period, it has been the uniform practice of the General Court, afterwards, of the District Courts, and more recently, of the Circuit Courts, to record the findings of the Grand Jury, as part of the proceedings of the Courts. The circumstance that this Bill is endorsed a true Bill, and signed by “David Campbell, foreman,” affords no record proof that the Bill was found by any Grand Jury, nor particularly by this .Grand Jury. That gentleman may have been frequently the foreman of other Grand Juries in the same Court. And though we all know, as men, that he would Uot sign any paper as foreman, without being really so, yet as Judges, we must require record proof that he was authorised by the Grand Jury of which he was foreman, to make the endorsement now before us, and that he presented it in their presence, in open Court, as the accusation against this individual.

It has been urged upon us with great earnestness, that this record does shew that the prisoner was indicted by the K'Grand Jury, and that the accusation was made with all due solemnity. Thus it is said that the record states, “that Benjamin Cawood, who stands indicted for murder, was led to the bar, and thereof arraigned, and pleaded not guilty to the Indictment.” This is said to be a declaration of record by the Judge, and a recognition by the prisoner that he has been indicted; that is to say, that this very Indictment has been presented by the Grand Jury in open Court as an Indictment against him. The answer given to this argument by the prisoner’s Counsel, we deem to be satisfactory and conclusive. In the first place, this is no direct averment of the fact, that the Indictment has been regularly found, it is mere recital. To ascertain with certainty the correctness of the position, let us suppose that when this entry was made, the prisoner had risen and denied the fact. “Sir, I am not indicted.” What could the Judge have said? Could he have verified the fact of his being indicted from the record? Certainly not. He could not have so verified it without an amendment. If he could not have so verified it without an amendment of the record, we certainly ought not to consider the Judge as meaning to assert that in which he is not supported by the record. The probability, nay the certainty is, that at that time the Judge had not adverted to the omission, and we cannot suppos'e that at that time he meant to spread on the record an averment which was unnecessary, and out of place. We are of opinion, that this entry only proves that the prisoner was led to the bar; that the paper spread as the record, and purporting to be an Indictment, was read to him, and that he pleaded not guilty to it. A similar remarle may be made as to the recognition bj the prisoner that he was indicted. He was not in the Court till brought in from the jail to which he had been committed. How could he know that the proceedings on the part of the Commonwealth were irregular? On the contrary, he undoubtedly supposed that every thing was regularly conducted by the officers of the Commonwealth, and supposing so, he pleaded, not thereby meaning to affirm that he was regularly indicted.

By analogy to civil proceedings, it is clear that this defect cannot be supplied. If an issue be in fact made up between A. and B. but the issue is not stated on the record, although the record proceeds to state that the jury were sworn to try the issue joined, and a verdict and judgment ^rendered, the judgment shall be reversed, because no issue was joined. 3 Munf. 314; 4 Munf. 431, &c. And yet if presumptions of Law were allowable in such case, woul^ it not be strongly inferable from the entry, that the jury were sworn to try the issue; that in point of fact the issue was joined? So, if after issue joined, a jury be sw’orn to try the issue and render a verdict, but the verdict is not entered on the record, and a judgment is rendered for the damages assessed by the jury, does not a strong presumption arise that a verdict was rendered, and is not the presumption very strong that the judgment would not have been rendered without a verdict? But yet the judgment would stand for nought, because it does not appear on the record that the verdict was rendered.

In these civil cases, the regularity of the posterior proceedings affords no presumption that the prior, are right, although they contain a recital to that effect. Why, then, should a different rule prevail in criminal cases? It is indispensable that a Grand Jury should present an Indictment in open Court, and that it should be proved by the record. The declaration afterwards, that the prisoner stands indicted, and that he pleads to the Indictment, may afford a presumption that he was regularly indicted, but is not stronger than that the issue was joined, or verdict rendered in the above mentioned civil cases.

It has been urged, that it is too late, after plea pleaded, to make this objection, and the decisions of this Court in the Cases of Cohen, (ante, p. 158,) and of Angel, (ante, p. 231,) have been referred to in proof of this position. What were those decisions? The Defendant, in each case, was regularly indicted; he pleaded, and there was a verdict rendered against him establishing his guilt. He moved the Court in arrest of judgment, assigning as a reason, that he had not been previously examined for the offence, and the Court refused to arrest the judgment. It is true, that a previous examination is an indispensable pre-requisite to a prosecution for fel-onj', and so far the cases are alike. But what was the ground on which the Court refused to arrest the judgment in those cases? Because the record of the Examining Court is no part of the record of the Superior Court, and it is an established principle that you cannot arrest a judgment, except for some reason apparent on the face of the record. Burgess’s Case, at June Term, 1825, does not contradict this. The general expression there *used, that the motion came too late, being after plea, must be understood to refer to the state of that case, which was after plea and verdict. But the Presentment of the Grand Jury is a part of the record of the conviction in the Superior Court, and so the omission may be taken advantage of by errors in arrest.

Another strong difference between the Cases is this : Here, there has been no verdict. The prisoner had pleaded, it is true, and there was a jury, but they not agreeing, there was no verdict. The motion, then, is to be considered, (in this respect,) as it had been at the same Term that he pleaded. How we hold, that if a prisoner, after pleading to issue, finds that he has not been examined, and moves for leave to withdraw his plea, and moves to quash the Indictment, because he has not been examined, his motion ought, ex debito justi-tise, to be allowed him; and if the Court finds that the fact is so, the Indictment ought to be quashed.

The next question is, whether this omission of the Grand Jury can now be supplied, and whether the record can be amended in this particular. A view of the decisions in this country, and in England, referred to by the Counsel, leads us to the conclusion, that during the Term, the records are in the breast of the Court, and that amendments may be made in the' proceedings of the Court; but that after the Term has passed, no amendments can be made, except of mere clerical misprisions : that this is not a misprision of that kind; that the Term having passed, there is nothing to amend by, except the memory of the Judge, of the Clerk, of the Grand Jurors, and others; and that it cannot be amended.

An answer to the fourth, fifth and sixth questions propounded by the Superior Court of Law for Wythe, requires that we should take a short review of the 28th section of the Act concerning Criminal proceedings. (1 Rev. Code, 607.) That section declares, that every person charged with treason or felony, who shall not be indicted before or at the second Term after he shall have been committed, unless the attendance of witnesses against him appears to have been prevented by himself, shall be discharged from his imprisonment; and if he be not tried at or before the third Term after his examination before the Justices, he shall be forever discharged of the crime, unless the failure proceed from a continuance granted on the prisoner’s motion, *or from the inability of the jury to agree on a verdict.

This Court, in Santee’s Case, (ante, p. 363,) decided, that the word Term, means the actual Session of the Court. If, then, an Examining Court of Washington county, before whom the prisoner was charged with the murder of his wife, did sit, and remand the prisoner for trial to the Superior Court, and if two Sessions of the Superior Court of Washington were thereafter actually held, the prisoner was entitled to a discharge from his imprisonment at the period that this question was adjourned to this Court, that is, on the ISth October, 1824, unless the attendance of the witnesses against him was prevented by himself, because it does not appear by the records of the Superior Court of Washington, that he was indicted at or before the second Term of the said Superior Court.

In answering to the fifth and sixth questions, we must place ourselves in the same situation as we would have been in immediately after the adjournment of these questions. One of the grounds taken by the prisoner, before the Superior Court of Wythe, why he should be discharged from his imprisonment was, that “it does not appear by the record that the fact charged in the indictment has been examined by the County Court of Washington.” If there is no record of his examination for the offence of murdering his wife, it seems clear, that notwithstanding his discharge from imprisonment, he might, on the said ISth October, 1824, and may yet be arrested, and examined, and indicted for the offence. But, if he had been examined for the said offence (of which we know nothing, as we have not the record of the Examining Court before us,) then he could not have been immediately arrested and removed to Washington. He might, however, have been thereafter, that is at the third Term, or actual Session of the Superior Court of Washington, regularly indicted, and then arrested and tried.

If, however, he was actually examined, and there is record proof of it, and three or more Terms, or actual Sessions of the Superior Court have passed without an Indictment presented in open Court and recorded, and without a trial on such Indictment, we are bound to say that he is “forever discharged of the crime,” for the perpetration of which he was examined and committed.

The following must be entered as the judgment of the Court:

*The Court is of opinion, and doth decide:

1. That as it does not appear from the records of the Superior Court of Washington county, at the April Term, 1824, that the Grand Jury had presented any Bill of Indictment against Benjamin Cawood for murder, in open Court, as a true Bill, but on the contrary, as it appears that such Bill was not presented, that the said Benjamin C awood cannot be considered as having been fhen and there indicted of the said crime.

2. That the defect of the record in this particular, cannot be supplied by resorting to the paper purporting to be an Indictment copied into the record by the Clerk, nor by the endorsement thereon.

3. That the subsequent plea of not guilty, pleaded by the prisoner, does not cure the defect of the record.

4. That the prisoner, Benjamin Cawood, was, at the period at which this question was adjourned, to wit, on the ISth October, 1824, entitled to a discharge from • his imprisonment, if he had been duly examined for the said offence by the County Court of Washington, and if after such examination, and commitment thereupon, and before the said 15th October, 1824, two Terms of the Superior Court of Washington had been actually held, unless the attendance of the witnesses against him appear to have been prevented by himself.

5. and 6. That if he had been entitled to be discharged from his imprisonment as aforesaid, he could not have been arrested for the same crime, unless a Bill of Indictment had been found at the Superior Court of Washington, at the third Term of that Court actually held: but, that if he has not actually been examined by the Examining Court of Washington county, for the offence set forth in the paper purporting to be an Indictment, he may yet be arrested and examined for the said offence, but not otherwise.

All of which is ordered to be certified, &c.

From the above opinion and judgment, JUDGES DANIEE and BARBOUR, dissented, and the latter delivered the following opinion:

This Case involving principles of great importance in the administration of the criminal justice of the country, and there being a majority of the Court of a different opinion from that which I entertain, I feel it to be a duty *which I owe to myself, to state the grounds of my opinion. The record states, that Benjamin Cawood, who stands indicted for murder, was led to the bar, in custody of the Jailor, and thereof arraigned and pleaded not guilty to the Indictment; and that, thereupon, a jury was empanelled and sworn in the Case: this is stated to have occurred on the 3d of May, 1824; the jur3 not agreeing in their verdict, were adjourned from day to day, ’till the 8th of May, when by reason of the adjournment of the Court, they were discharged.

It appears from the record, that the Court on the 1st of May, made a special order, directing the Sheriff to summon jurors in a distant part of the county from the prisoner’s residence, with a view to his impartial trial, he being accused of murder, as appears from said order; that at the September Term, 1824, on the motion of the prisoner, the venue was changed to Wythe; that on the 26th and 27th of April, being previous days of the same Term at which the prisoner was arraigned, and pleaded not guilty, the Grand Jury made several presentments, and returned several Indictments, specifying them particularly, amongst which, the one against the prisoner is not included; and that thereupon, having nothing further to present, they were discharged. There is copied into the record, a paper, having" the regular form of an Indictment for murder against the prisoner, having upon it the endorsement, “A true Bill’ and it appears from the certificate of the Clerk, that tnis was the precise Indictment upon which, on the 3d of May, 1824, the prisoner was arraigned, to which he pleaded not guilty, and for the trial of the issue on which the jury was empan-elled; but it does not appear from any part of the record, that there was any entry made, that this Indictment had been presented by the Grand Jury, as “A true Bill. ’’ One of the material questions arising upon the adjourned Case, and upon which there is a difference of opinion amongst' the Judges, is this. Is there, or is there not enough appearing upon the record, to cure the omission, to enter upon the record, that this Indictment was presented by the Grand Jury, as “A true Bill?” I am of opinion that there is. When an Indictment is preferred to a Grand Jury, and they endorse upon it “A true Bill;” according to 4 Blackstone, 305, “the Indictment is then said to be found, and the party stands indicted;” and in the language of 1 Chitty, 219, the endorsement, “A true Bill, made upon the' Bill, becomes a part of the Indictment, and renders it a complete accusation against the prisoner.”

*A Bill of Indictment, then, with such endorsement, rendering the accusation complete against a party, and there being in this Case an Indictment, with such endorsement, it follows that the accusation is complete against the prisoner, unless its efficacy be destroyed by the omission to make the entry aforesaid, that is, that it was returned “A true Bill.” I know of no authority which requires this entry necessarily to be made upon the record. It is conceded, that it is the common practice of the country, and that it is a safe and convenient practice; but the question is here, as to its necessity? I consider such an entry, as a mere medium of proof that the Indictment was in fact found by the Grand Jury; and that its sole purpose is to prevent an Indictment from being foisted in upon a Court, and that no man shall be put to answer an accusation, which is not shewn to have been so found. That this is its only purpose, is manifest from the consideration before stated, that the finding of the Grand Jury renders the accusation complete. Considering it in this view, let us enquire, if there be no other medium of proof, equally calculated to attain the end proposed. It is not supposed by any one, that it is necessary to spread the Indictment in extenso, upon the record. Supposing then, the entry to have been made, in the most formal manner in which it is ever done, it would be, that the Grand Jury had presented to the Court an Indictment against the prisoner “A true Bill.” This would only prove, that an Indictment for murder I had been presented, but it would not prove that the paper copied into the record, was that Indictment; this we must take upon the ipse dixit of the Clerk; nor would it prove, when, where, or upon whom the murder was committed. These things we must derive from the Indictment itself.

If then, the only proof afforded by the entry required, would be, that an Indictment for murder was found against the prisoner, it seems to me that there is enough appearing upon this record to prove the same thing. I will not dwell upon minor circumstances, such as that the Judge, on the 1st of May, made a special order for a jury, for the trial of the prisoner accused of murder; though in legal propriety he could not, after passing an Examining Court, be said to be accused, until he was indicted; the adjournment also of the Case to this Court, with the assent of the prisoner, though until he was indicted, there was no accusation depending in the Supe- ■ rior Court, which could be adjourned.

"^Passing those by without further remark, I come to that which I consider in effect, as altogether equivalent to the entry required. The record states that the prisoner who stands indicted for murder, was thereof arraigned, and pleaded not guilty to the Indictment; this is an entry upon the Order-book of the Court, and therefore has its sanction. But the prisoner could not be indicted unless the Grand Jury has found the Bill true; and he could not be arraigned, nor plead to an Indictment, unless there was one to be arraigned upon and to plead to. When, then, the Court has, in its own order, said that the prisoner stood indicted, which could not be, without the necessary finding by the jury, this order is equivalent to a declaration that it was so found; and there is, therefore, no danger of an Indictment having been surreptitiously imposed upon it; and when the prisoner has been arraigned, which could not be, without the Indictment having been read to him, and when he has pleaded not guilty to that Indictment, he has admitted that there was an Indictment properly found, inasmuch as finding is ot its essence ; and there is, therefore, no danger, that he may have been put upon his trial, without a legal accusation against him. And thus all the proof which could have been derived from the entry required, that is, that the Bill was found a true one, is afforded by other entries upon the record, in effect proving the same: As to the identity of the Indictment, with reference to the one found by the Grand Jury, it has already been shewn, that had the usual formal entry been made, we should yet have had no other reliance but the fidelity of the Clerk; and it appears from his certificate, that the Indictment copied into this record, was the one on which the prisoner was arraigned, and to which he pleaded. It has been said, that it no where appears when the prisoner was indicted. I think that it does, in effect, appear upon the record. We know that whensoever a prisoner is indicted, he is of course by Law to be put upon his trial, at the same Term, unless there be some cause for the continuance of the Case. And when such a continuance takes place, the record shews it: Now, the record in this Case, which professes to be a full one, and which we are to take as such, shews no continuance; and as where there is none, the trial is to be at the same Term with the Indictment found; and as the arraignment, plea, and swearing of the jury, were in Majv 1824, the result is, that at that Term the Indictment was *found. It has been contended, however, that the record, by stating certain Indictments to have been found, and that the jury having nothing further to present, were discharged, negatives the idea of finding this Indictment at that Term. I think not. It shews certain things to have been done; and it shews, that at the time of their discharge, they had nothing else to do; but this is not at all incompatible with the idea of their having found another Bill, which the Clerk omitted to enter. As to the effect of the arraignment, and plea, there is an authority in 1 Chittj, 285, which seems to me to have a strong bearing. It is said, that the total want of arraignment is ground for reversing judgment, after attainder; and yet, that if it be stated in the record that the Defendant had oyer of the Indictment, it shall be intended that he was arraigned formally upon it; now, it is surely as strong, nay a stronger, intendment, to infer arraignment from oyer of the Indictment, than it is from actual arraignment, which implies that the Indictment was read, and from a plea to that Indictment, to infer that there was one; and one, too, which had been regularly found; as otherwise he could not be arraigned, or put upon his trial.

CJpon the whole view of this question, I am therefore of opinion, that there is proof enough in this record to shew, that the Indictment was legally found against the prisoner. 
      
       On examining' the records of the General Court, It is found that this practice prevailed before the Revolution.
     