The Statute (Hart. Dig. Art. 464) plainly indicates the course to be pursued in the case of a lost indictment. The fact of the loss is to be entered upon the minutes *426of the Court, which avoids the Statute of Limitations; and a new indictment is to be preferred. The second indictment is, of course, to be found in the same manner as the first, upon the testimony of witnesses, sworn to give evidence before the Grand Jury, touching the truth of the accusation; and the prosecution is to be conducted, upon the second indictment, in the same manner as it would have been upon the first. This is the evident meaning and intention of the Statute. All that the Statute requires was done in this instance, and more. And it would seem difficult for any ingenuity to suggest a reason why the proceeding was not legal and sufficient.
But it is objected, in effect, that too much was attempted, and that the indictment is bad by reason of the recitals. If these contained anything contradictory, or repugnant to the body of the indictment, or were of a character to render unintelligible any of the material,\traversible matters constituting the charge, there might be force in the objection. But such manifestly is not the case. The Grand Jury have undertaken, very needlessly, it is true, to recite the history of the lost indictment. And it is also true, as suggested in argument, that this was quite foreign to their appropriate province. It was matter wholly foreign and irrelevant. And that it was so, brings it, in the strictest sense, within the definition of surplus-age, which does no injury. For, in general, “ Surplusagium non nocet, according to the maxim, utile per inutile non vitia■iur.” Matter which is merely useless never vitiates.
But it is insisted that this indictment is not found upon the evidence of witnesses sworn to testify before the Grand Jury, but solely upon the supposed action- of a former Grand Jury. This, however, is a mere gratuitous assumption, not supported "by the record. There is the recital, it is true, of what the jury supposed would be the effect of their finding. And they recite that they have the evidence before them to supply the lost indictment. This could have been none other than evidence of the truth of the accusation ; for none other was competent to enable them to find an indictment, which should supply the *427place of the lost: and this doubtless was what was meant by the recital. There is really no more reason to suppose this indictment was found upon any other evidence than the testimony of the witness whose name is endorsed upon it, than there is for supposing that any other indictment in the Court was found upon improper or incompetent evidence.
But great stress is laid by counsel for the appellee, upon the circumstance of the superfluous recitals of the indictment; and by way of affording a striking illustration of their view of what is to be regarded as the character of the finding, it is said, that if this is to be regarded as a new indictment, its recitals are as foreign to its object, as would have been the recitation of the Decalogue, or the Declaration of Independence. Admit that they are, and what possible harm can they do. If the jury had really been as piously employed, as the case put would suppose ; and had actually recited, by way of preamble and inducement, the Decalogue, and the Declaration of Independence, it will not be contended that the' indictment would have been thereby vitiated and annulled. It might have been thought a profane use of sacred things, but if it had not the effect to inculcate useful lessons where they were very much needed, it surely would not have had that of subjecting the indictment to the charge of containing error of law, or of fact, or heresy of doctrine. If the effect had not been to make the offender better, the indictment, surely, would not have been made any the worse, by reason of the recitals. The recitals prove nothing more than simply that it was thought necessary thus to connect this with the former indictment. They were unnecessary, and merely useless; and cannot therefore affect the legal validity of the indictment. The repugnant may vitiate ; but the merely useless, never.
We see no reason to question the legal sufficiency of the indictment, and are of opinion that the Court erred in sustaining the motion to quash. The judgment is, therefore, reversed, and the case remanded for further proceedings.
Reversed and remanded.