
    Columbia, November Term, 1812.
    The State vs. William Mayson.
    "] S. Farrow, for the Motion,
    
    J Taylor, Solicit. Contra.
    
    Met-anent for perjury tecTbefore A. Verdict of perjury Tef° The’ variance is j&tal.
    Motion in arrest of judgment; and for a new trial,
    Tried before his Honor Judge Brevard.
    The defendant was indicted for perjury, commit-on a trial? had before Leonard Jldcock, esquire.
    In this case, Leonard Jldcoch was called and sworn as a witness, who deposed that he granted the summons, but refused to have it returned before him, for to sit on the trial of the case, as he had non-suited the plaintiff in a former trial. He further deposed, that the summons was returnd before Henry Turner, esquire; that he was' present at the trial before Mr. Justice Turner, who requested him to swear the said William Mayson, which he did, but did not consider himself acting as the presiding Jus-lice, and that Mr. Justice Turner pronounced the judgment. The jury returned the following ver-diet; viz. Guilty of perjury before Henry Turner and Leonard Adcock, esquires, in conjunction.
    The defendant gave notice, that he would move the Constitutional Court, at the next sitting thereof, at Columbia, in arrest of judgment, on the following grounds 5 viz. That the indictment charged the defendant with having committed perjury, on a trial had before Leonard Adcock, esquire, and that the jury found the aforesaid verdict. And for a new trial on the following ground, viz. That the indictment charged the defendant, with having committed ■ perjury on a trial had before J^eonard Adcock, esquire, whereas the said Adcock swore as herein stated, and therefore, the verdict of the jury was contrary to evidence.
   Nott, J.

The laws of this state do not recognize a court, composed of two magistrates, except in particular cases. If this perjury was committed before a court, required by law to be composed of two magistrates, the indictment is erroneous. If the case was of such a nature as to require but one, then the verdict is erroneous, as both could not be sitting in a judicial capacity. So that the variance between the indictment and the verdict is fatal. If the jury meant that the offence was partly committed before one, and partly before the other, that is erroneous; for one, although a magistrate, acted in this case only in a ministerial capacity, and the verdict docs not shew which acted in the judicial, and which m a . . . , . . “ „ 7 , - , ministerial capacity: and, therefore, would not be a bar to another indictment for the same offence. I am farther of opinion, that the verdict is contrary to evidence. Mr. Adcock swears that the warrant was returnable before Mr. Turner, and that he did not sit on the trial at all but was merely the organ of Mr. Turner to administer the oath for him. I think therefore, that a new trial ought to be granted.

Justices Colcock and Bay concurred..  