Newbern,

September Term, 1794.

#### STATE versus GROVE.

INDICTMENT for arson. Mr. Solicitor General Jones, praying that a witness might be sworn.

Davie, who, was of counsel for the prisoner, asked what use was expected to be made of his testimony? whereupon the Solicitor-*44General informed the court that the gentleman at the table, was the magistrate who had committed the prisoner: and he was introduced to give evidence of the prisoner’s confession or admission, previous to his committment.

The magistrate was asked whether he had committed the examination of the prisoner to writing, and answered in the negative.

Davie, for the prisoner.

Parol evidence of the prisoner’s examination is inadmissible. It is required by-1715, 16, 11, that the examination of the party be recorded.

Of which opinion was the court.—

Whereupon Mr. Solicitor-General wished the magistrate to set down at the table and make a record of the examination, that it might be read.—but

Davie held it was now too late. The examination ought to be committed to writing within two days, after the taking of it. It is so required by 2 & 3 P. & M. 10, 284.

Mr. Solicitor-General. The statute is not now in force; the act of assembly, already quoted, has repealed it.

The Court,

M’Coy, J.

alone. There being no words of repeal in the act, and the statute being in pari materia, they ought to be taken as one law.

The magistrate not being admitted to be sworn,

Mr. Solicitor-General entered a nol. pros. and the prisoner was discharged.