
    *The State vs. Jacob Fox. [*244
    When an indictment purports to be on the affirmation of some of die grand jurors, it must appear that they alleged themselves conscientiously scrupulous of taking ail oath.
    
      Dayton
    
    moved to quash the indictment in this case, (which had been brought into this court by certiorari) because it did not appear by the caption of the indictment, nor by the indictment itself, that the individual grand jurors who affirmed, alleged themselves to be conscientiously scrupulous of taking an oath; and cited Rev. Laws 429, sea. 3; The State v. Sharp, 1 Hals. Rep. 341; and The State v. Harris, 2 Ibid 361.
    
      Jeffers,
    
    contra, contended that the cases cited, being founded upon the statute of 1728, ALlinson’s edition of New Jersey Laws 74, the phraseology of which was different from the act of 1799, cited by the defendant’s counsel, ought not to govern the present case.
   Ewing, C. J.

We are all satisfied that the indictment must be quashed. As the law stood, at the time of Sharp’s case, all the jurors were required to be sworn, except such as were of the people called quakers, who by statute were entitled to take an affirmation; and the point decided in that case is that the grand juror who takes the affirmation must be shewn on the indictment or caption to be within the exception. The same principle was decided in The State v. Harris, and in the recent case of The State v. Vanarsdalen. The difference of phraseology between the statutes of 1728 and 1799 is that the former allows the affirmation to quakers only, the latter extends it to all persons who allege themselves to be conscientiously scrupulous of taking an oath. This difference does not affect the principle ruled in these cases, all of which are direct authority.

Indictment quashed.  