
    [NOVEMBER TERM, 1800.]
    The State against Harris.
    Where an indictment purports to be on the affirmations of some of the grand jurors, it must appear that they were persons entitled by law to take affirmations in lieu of oaths, or the indictment will be fatally defective.
    An indictment was found at Cumberland, June, 1798, against the defendant, for the forgery and publishing of a lease. The indictment was removed by certiorari, and, on a rule to shew cause why the indictment should not be quashed,
    
      Leake, for the motion, contended
    that, as in the caption of the indictment some of the grand jurors were stated to have been affirmed generally, without setting forth that they were legally entitled to serve on their mere affirmation, the indictment was clearly defective. Under the act of February 10, 1727-8, (Allinson *75) section .1, a special provision is introduced in favor of Quakers, and a form of affirmation is prescribed for them, which it is declared, shall have the same force and effect as the oath to be taken by ordinary persons. Independent of this statutory exception, every indictment must state, that it is presented on the oath of jurors, and if this is omitted it will be quashed. 2 Burns Just. 665, title Indictment, sec. 9. Lord Mansfield, in Rex v. Wilkes, (4 Burr. 2563) manifestly contrary to his wishes, felt himself compelled to adhere to the strict rule of law in criminal proceedings. The case of Lookup v. The King (6 Bro. Parl. Ca. 138) affords another instance of the exactness required in all indictments. That it is stated, the grand jurors were duly sworn and affirmed, will not avail. No intendment can be made; the court must see that the proceedings were regular. In Rex v. Theed, (2 Str. 919) a conviction was quashed because the evidence was not sot out, it being only alleged, that the offence was duly and fully proved.
    The objection now raised by the defendant has been heretofore recognized as valid in the courts of this state. In the case of Sharp
      
       who was found guilty of murder at the Burlington Oyer and Terminer, in November, 1784, it was moved, in arrest of judgment, that it appeared on the face of the indictment that it was found on tho oaths of some of the grand jurors, and the affirmations of others, without stating that the latter were Quakers. The defect was held fatal, and the judgment arrested. In The State v. Putnam, (1 Cox Rep. 260) in November term 1794, this court quashed an inquisition of forcible entry and detainer for the same cause.
    
      
       See this case, cited by Kinsey C. J. ant, in the case of The State v. Rockafellow 1 Halst. Rep. 341.
    
   Per Curiam.

We are not disposed to favor exceptions of this bind, which have nothing to do with the justice of the case, and were the question now to arise for the first time, we should hesitate before we gave it our sanction, but the cases cited, particularly Sharp's ease, have settled the question, and we feel ourselves bound to adhere to the rule established by the court on previous occasions.

Indictment quashed.  