#### State v. Isham, a Slave.

~i V From New-IIanover. J

The question to be tried on the plea of nul tiel record, is a question of fact, to be tried by the Court, and not a question, of lato. And where the Court below rejected a paper, offered as a copy of the record, because the seal attached to it was so indistinct that it could not be recognized as the seal of any Court; this Court, on appeal, has no power to examine whether the fact, as to the indistinctness of the seal, be as stated or not; it must take it to be true as stated, and, of course, if true, the paper was properly rejected.

The Prisoner was indicted for grand larceny, found guilty and prayed the benefit of clergy; to the prayer of clergy, the State, by its Solicitor, objected, on the ground that the Prisoner had, before, been allowed his clergy, on a conviction of grand larceny in Duplin county, and *186produced a paper purporting to be a transcript of the proceedings on the trial in Duplin, the certificate bn which stated it to be a true copy from the records, “ given under my hand and sea!,” and signed with the Clerk’s name; the seal attached to this record was so indistinct and faint in its impression, that it could not, with certainty, be ascertained what seal it was. The Court below7, Norwood, Judge, presiding, refused to consider the paper produced, as a copy of the record from Duplin,' and allowed the Prisoner his clergy, whereupon the State appealed.

Taylor, Chief-Justice.

The Superior Court could only judge by inspection, whether the record produced, was an exemplification under the seal of the Duplin Superior Court i and as the impression of the seal is not more visible to us, than it was to the Judge who decided the case, it cannot be said that he lias erred in point of lavv. The certificate of the Clerk might have been referred to tiie seal of the Court, if it sufficiently appeared that, such .seal bad been affixed to the record; but that does not appear, and we must consider this either as a record without seal, or as under the private seal of the Clerk. Where a record of the same Court is put in issue, it must be examined by the Court on nul tiel record; but if it be a record of another Court, an exemplification of it, under seal, must be produced. As it cannot be seen that this was done in the present caso, the judgment must be affirmed.

Henderson, Judge.

The question to be tried on the issue joined on the plea of nul tiel record, is as much a question of fact, as that arising on any other issue. It is true, the Court tries it and not the Jury, but that docs not change it to a question of law. Questions of law may arise on the admissibility of the evidence, and these questions this Court can re-examine, but not the evi-*187dcnco itfclf. The case states, that the record was certified under the hand and seal of the Clerk, without any reference to the seal of the Court, and there was on paper, something like the seal of the Court, and probably was intended for it, but that the Judge,, from the indistinctness of the impression, was unable to recognize it as the seal of the Court, and therefore rejected the evidence. If these are the facts, (and we are bound to take them to be so, for we cannot re-examine them,) the record was properly rejected as evidence. See the case of the Stale v. Grayton & Williams. * Judgment affirmed.

*

State v. Grayton & Williams.

Tliis case was decided some terms ago, and lias accidentally been overlooked. The statement of the case is not necessary for a correct understanding of the point decided. Enough appears in the opinion of the Court as delivered by Haii, Judge.

Where the plea of mil tiel record is pleaded, it is referred to the Court for decision, as issues of fact are referred to the Jury. When these issues are all found, the judgment of the Court is pronounced upon them ; and when there is an appeal from that judgment, this Court can.no more examine any question relative to the plea of mil tiel record, than it can any question of fact relative to the pleas submitted to the Jury. To be sure, in the present case, there is no judgment regularly entered up, but we must take it that there is one entered suitable to the case.

This is not the case, that a new trial is prayed for under the late act of Assembly, on matter of fact submitted to the Court. In such case, the evidence offered in the Superior Court, will be spread upon the record, of which this Court, as well as it can, will form a judgment. In this case, we are not called upon to grant a new trial, because the evidence offered to the Court below, on the plea of nul tiel record, was insufficient. That evidence is not before us. I, therefore, tliinlt that judgment should be entered for the State.