It is very clear that we cannot admit the witness, and that the case cited by the attorney-general must be taken as a general rule; to which those produced by the prisoner's counsel form an exception. The superior court of North Carolina, in the case of the state vs. Grove, Martin's Notes, 43, refused to receive the testimony of the committing magistrate, who had neglected to reduce to writing the declaration of the prisonçr before him; neither would they consent that he should write it down in court.

In this state, the case offers very much from a similar one in England. Our statute, 1805, ch. 8, requires the magistrate to take the declarations of the prisoner in writing, and cause them to be sub*256scribed by the declarant, in his presence. It does not put so much confidence in the magistrate, as to allow him to state the prisoner's declarations, in such a manner as to render the statement legal and authentic, without the prisoner's concurrence, His signature is essentially requisite: without it. the examination must be rejected. It may well be doubted whether, while the law so carefully provides for the safety of the accused, against the great facility with which words may be misrepresented, and his declaration coloured, whether the decision in the case of the State vs. Grove is not much more consonant to the strict principles of justice, than any of those which have been read. If it were to be adopted, the magistrates would be less remiss in their duty. However, this point is not now to be decided. There is no proof that the magistrate did not comply with the act of assembly, and the presumption is that he did. The testimony offered must therefore be rejected.