
    No. 73.
    John Buchanan, plaintiff in error, vs. Solomon G. Beckham, defendant in error.
    [1.] The State should be a party to all motions to establish lost papers belonging to a State case.
    Motion to establish lost papers, in Early Superior Court. Decision by Judge Perkins, April Term, 1855.
    This was a motion in the Court below, to establish as lost office papers, an affidavit and warrant, to apprehend a slave for an alleged offence, together with the proceedings thereon, including a petition for and a writ of habeas corpus, sued out and decided at Chambers. The Court below refused the motion, and this decision is assigned as error.
    Cullens ; Allen, for plaintiff in error.
    Cook ; McDougald ; Hall, for defendant.
   By the Court.

Benning, J.

delivering the opinion.

It does not appear what was the ground on which the Court below acted, in refusing the motion.

There is a ground in the case, which was sufficient to justify the refusal; and that, we are to presume, is the ground on which the Court acted. The party defendant to the motion, is not the proper party. The State should have been the defendant to the motion. The papers to be established, were all papers representing proceedings between the State and a slave; and if we admit that the owner of the slave may be the proper party for one side of the motion to establish such papers, we must admit it to be more clear, that the State is the proper party for the other side. But instead of the State’s being made the defendant to the motion in this case, the prosecutor was made the defendant. As well might a witness, or the Sheriff, or jailor, or, indeed,. any stranger, have been made the defendant.

- In such cases as this, the State, through its Solicitor General, ought to be heard.

It is a question of doubt, too, whether these are papers which can be established in the way in which the attempt was made to establish them. Are they office papers; such office papers as the rule of Court has in contemplation ?

We think the judgment of the Court below ought to be affirmed.  