#### State v. Lewis.

~l t From Warren. J

When a record states that a Coiirt was held before the Hon. J. V. (who is one of the judges of the Superior Courts,) without adding that he is one of the judges, it is sufficient.

If upon the second removal óf a cause under the acts of 1821 and 1822, the clerk should transmit the same papers which had been sent to bis office upon the first removal, and a prisoner should be tried and convicted thereon, it furnishes no ground to arrest the judgment.

This was an indictment for murder, originally found in Wake Superior Court, removed on affidavit .of the de-> fendant from Wake to Franklin, and again removed by defendant to Warren, under the acts of 1821 and 1822. The record which was sent from Wake to Franklin commenced as follows:

Be it remembered, that at a Superior Court of Law begun and held for the county of Wake, at the court.house in Raleigh, on''the first Monday after the fourth Monday in March, A. D. 1824,

Present the Hon. John Paxton,

A bill of indictment was found, &c.

A regular certificate of the clerk, under the seal of the Court, accompanied this record to Franklin. When the cause was removed from Franklin to Warren, the clerk of Franklin transmitted to Warren papers certified under the seal of his Court, as follows, “that the foregoing copy contains a full and correct transcript of records filed and had in the case therein stated.” The prisoner was tried and convicted in Warren, and moved in arrest of judgment on two grounds; 1st, that the record and proceedings did not show that the indictment was taken before. *411any Court having cognizance thereof; and 2d, that the Superior 'Court of Warren had no jurisdiction, there be-, ing no transcript sent of the records of Franklin Superior Court. The motion in arrest was overruled, and sentence of death pronounced, from which there was an appeal to this Court; and now, it being understood that the prisoner was unable to employ counsel, Seawell and Muffin volunteered to argue the points for him.

1. It does not appear that the indictment in Wake was taken before a Court having cognizance: it purports -to have been taken before the Hon. John Paxlon, hot stating him to have been judge of the Court, or one of the judges of the state. It is indispensable that the record should show that the Court or tribunal had competent authority: thus, if it be stated, at a Court held before J. S..steward, without showing to whom or of What Court; or before Jl. B. coroner, without saying that he was such for the district in which inquisition was taken, it is insuf-. iicient. (Hawk. P. C. ch. 25. Indictment, sec. 119. 1 Chitty C. L. 328.)

As to tlie statement of the Court’s authority, as much must appear on the record as in special Courts appeapfe in the caption of the indictment; before justices, not naming them is ill. (Hawk. P. C. ch. 25. sec. 123.)

The record should show that the- indictment was pre-sented on the oath of the grand jury, (1 Chitty C.L. 331.) this record does not.

2. The prisoner was tried in Warren, not on the re-fiord of Franklin, but on the record of Wake. The removal of causes being regulated by statute, must be lito rally conformable to the statute. State v. Poll and Laroi-nia, (1 Hawks 442.) The statute requires a copy from Franklin, not the original.

When a statute appoints a thing to be done before a particular man, it cannot be done before, any other. (1 Plow. 206.)

All statutes which appoint a thing to be done ill a par---. *412ticular form or order, which thing was not done at common law, though in affirmative words, imply a negative that it shall be done in no other form. (1 Blow. 113, 3. p, Wms. 460, 1. Hardress 18. 27. Bac. Abr. verbo Statute G.) ' •

The Attorney General.

As to the first ground taken, it may'be remarked, that the cases referred to on the other side are cases of private officers; but the judges of’ the Superior Courts are public, and this Court ex offido will notice them and their acts, as it does the governor and his acts. But in truth, the special authority of the judges to hold the Courts need not be set forth in the record, if the Court is acting in the exercise of its .ordinary' jurisdiction. (1 Chitty C. L. 327.)

As to the point of removal, if a trial on a copy would be good as is contended for the prisoner, a fortiori, a trial on the original is: but it will be remembered, that the first act authorizing the removal of causes passed in 1806, differs from the acts of 1821 and 1822. The first'act spé-. dally directs a transcript or copy to be sent; so the first removal from Wake, which was under the act of 1806,. was accompanied by a transcript, and the original, in accordance with reason and the policy of the act, was left among the records of the Court in which the indictment was found: but no such reason exists in case of the • second removal, which takes place under the acts of 1821 and 1822, and accordingly those acts are silent as to a copy oi’' transcript, and. simply say “ the cause shall be removed.” This is an answer to the cases cited to show that the requisitions of a statute must be strictly complied with; the statute contains no such requisition as is Contended for.

The suggestion's of sound reason ai;e the same, under similar circumstances, whether it be directed in its exercise to the contemplation of one subject or another. Now it is a rule of common law, founded in reason, that a *413copy of a copy is not evidence. The object of all testimony is to elicit truth, and I presume that a record is offered to the inspection of a court for the sole purpose of enabling it to learn the truth of a case: and though this record he not, technically speaking, offered as evidence; yet as the object of its transmission is substantially the same with that of the introduction of all testimony, it appears that reason would sanction, after the first removal, the transmission of the original papers; and more especially would it do so where the right of removal, as among us, is almost without limit, and each successive transmission subjects us to the ignorance or mistakes of clerical transcribers.

Taylor, Chief Justice.

The result of a careful examination of this record is, a belief that neither of the objections taken by the counsel of the prisoner can be sustained in point of law. In the first place, the record avers that a Superior Court of Law was begun and held for the county of Wake, at the Court House in Halcigh, on the day which we know to he that appointed by law; and it farther stated, that a hill of indictment was returned into open Court by the grand jury, with the endorsement “ a true bill.” Now we know that by the public general law of the land, a Superior Court cannot be held without the presence of one of the judges of those Courts, and still less can a jury be constituted and a bill of indictment found by them. The record farther states, that at the same term, the prisoners were brought to the bar, arraigned, and pleaded not guilty; that affidavits of two of them were made, for the purpose of moving the case as to them to another county, and that such removal was ordered by the Court, and that the sheriff of Wake was ordered to deliver the bodies of these .two to the sheriff of Franklin; alb of which are acts and proceedings the existence of which cannot even be supposed without the presence of a judge of competent authority and juris» *414diction. In addition to this, there is inserted in that part of the record, where the presence of the judge is usually noted, the name of a gentleman whom we know to be a judge of the Superior Courts; and when it is thus certified by the clerk, that he was present at a Superior Court where all these attributes and functions of a judge were manifest and exercised, we cannot suppose that any private individual, of the same name, was accidently present, whose presence the clerk should deem it necessary to record, and distinguish from that of the numerous persons usually attending. As to the power of the sheriff to open and adjourn the Court from day to day, until a judge shall attend, or until the third day, that is not a Court in the usual meaning of the word, for its only effect is to prevent a discontinuance of the process, and give day to it as if the Court had been duly held. 1806. eft. 694. sec. 2. It possesses no authority or jurisdiction whatever; it has no judge, and without the aid of the act cited, the clerk could not even enter the formal continuances on the docket. On this objection, therefore, we feel convinced beyond a personal or judicial doubt, that Wake Superior Court was held at that term, by a gentleman who was then and is now one of the judges of the Superior Courts, and consequently that the indictment was taken before a Court having cognizance. The other objection is, the defect of jurisdiction in Warren Superior Court, for want of a transcript of the records of Franklin Superior Court, the clerk of the latter certifying only, that the transcript transmitted to Warren is the same transcript which was transmitted from Wake to Franklin. This objection is founded on the act of 1806, eft. 693. sec. 12. which provides, that when a cause is removed, the judge is authorized to order a copy of the record of the said cause to he removed to some adjacent court for trial; and on the sup-plementiiry act passed the same year, which directs the clerk to transmit a transcript of the record to the county to which the cause is removed. From both these clauses, *415there can be no doubt the legislature designed that the original record should remain in the Court where the cause originated; and on this head no alteration has been made by any of the subsequent acts on the subject. It must be determined by the certificate of the clerk of Franklin Superior Court, whether he complied with this requisite of the act or not. The proceedings of Wake Superior Court are drawn out at full length, and certified by the clerk of that Court to be a correct transcript of the records of the case. This transcript was sent to Franklin Superior Court, received there, and entered upon the docket. When the case was removed to Warren Superior Court, the clerk of Franklin certified “that the foregoing copy contains a full and correct icacooript of records filed and had in the case therein stated.” “The foregoing.copy” imports that there was an original from which it was made. As to part of the copy, the original must have consisted of the records sent from Wake, which, though a copy in itself, forms, in relation to the clerk of Franklin Superior Court, when he makes a copy from it to he sent to Warren, an original. “ The foregoing copy” contains what? A full and correct transcript. Now “copy” and “transcript,” when applied to a writing, signify precisely the same thing; and, therefore, any presumption or implication that the clerk of Franklin by the terms “ foregoing copy” meant the copy as sent to them by the clerk of Wake, is entirely repelled; for the amount of this certificate is, that the foregoing copy contains a copy. This will appear still clearer upon a farther analysis of this certificate. Of what is the copy a transcript or a copy? “ Of records filed and had in the case therein stated.” The “ records filed” in the case, where those sent from Wake; the “ records had,” were those transacted in the Court of which he was an officer. How was it possible for him to codify, that any record was filed in the clerk’s office at Wake? So that reddendo singula singulis, he sends a copy of what he has filed, viz. *416the papers received from Wake, and a copy of what took-place in his own Court. When the Jaw has affixed a definite and well understood meaning to certain terms and parages, it is an unsafe mode of reasoning to wander into other sciences in pursuit of other definitions, which are sometimes equivocal and sometimes metaphorical. In a legal sense, copy signifies a transcript of an original writing, as a copy of a patent, of a chart, deed, &c. and to file a record is to reposit it among the archives of the Court for the more saffi keeping, or ready turning to the same, derived from Jilum, a thread, or string, on which writs or other exhibits in office were formerly filed. It seems, therefore, that the last objection is founded upon the misapprehension of the clerk of Franklin’s certificate, who does not appear to me to certify that the transcript transmitted to Warren is the same which was transmitted from Wake to. Franklin. It is, therefore, the opinion of the Court that the judgment be affirmed.

Henderson, Judge.

I cannot hope to add any thing to the very excellent opinion delivered by the chief justice, and should be entirely silent on the subject, were it not that from the manner in which one of the objections, very much pressed by the defendant’s counsel, was disposed of, it might be thought that the objection, if founded on fact, would have prevailed. I mean the objection that upon the removal of the cause from Franldin to Warren, the original transcript which was sent from Wake to Franklin, and not a copy of it, was sent upon the removal from Franklin to Warren. This inverts the order of proof and certainty, that which purports to be a copy may not. There may be many blunders or omissions in it after the most diligent search and corrections; passing by its authenticity, we know that it is inferior to the original, and is only substituted as evidence when the original cannot from any cause be had. And its effi-•éacy depends on its being a correct representation of the *417original. Its only weight is derived from that circumstance. It cannot he better or carried farther; but as the original cannot be had, necessity compels its acceptance. But in no case can it be considered as superior to the original for any purpose. Public records, for their safety and preservation, are to he kept for those purposes at one place, and are not, by law, suffered to be carried about to suit the convenience of individuals. Copies of them are thereftme received as representing them. The state may therefore complain of the clerk of Franklin for violating his duty; and so may this individual, if he has suffered any injury by it, and not without. For all the purposes for which this case was sent to Warren, the original was equal at least to the copy. But it is said that the law is so written, and for the purpose for which it is so written it shall he observed. Büt I cannot shut my ear to the sound of my own voice, and be regardless of the dictates of my own understanding. I was not placed where I am as a mere insensible organ. The laws, or rather the letter of the law, must go with a comment, and that comment shall be the will of the legislature or law-making power, as I understand it from their words, not taken word by word and sentence by sentence, but all the words and sentences taken together. I cannot have a doubt, it appears to me impossible that one can he entertained, that that provision in the act requiring that a copy should be sent, was for very different purposes than to sustain objections like the present. Could I see that the situation of the defendant could possibly be affected by using the original, I would pause before I would declare that even the original should not supply the place of a copy. But I am certain the direction was given for other purposes than can be applied to support this objection. I must say the objection cannot be sustained.

Hall, Judge, concurred.