
    The State against William Zule.
    If the caption of an indictment do not shew distinctly the names and style of office of the judges composing the court to which it is presented, the indictment will be quashed.
    An indictment was presented by the grand jury'of the county of Hunterdon, to the Court of Oyer and Terminer' and General Gaol Delivery of said county, against William Zule, for polygamy, and was removed by certiorari into this court. The caption was in the following words: “ Hunterdon, to wit: Be it remembered, that, at a Court of Oyer and Terminer and General Gaol Delivery, holden at Elemington, in and for the county of Hunterdon, on the first Tuesday of May, in the year of our Lord one thousand eight hundred and twenty-seven, the Honorable George K. Drake, second justice of the Supreme Court of Judicature, George Eea, Dennis Wykoff, Luther Opdycke, and others, their fellows, Judges of the Court of Common Pleas for the said county, according to the form of the statute in such case made and provided, by the oath and affirmation of A. B., &c.,” [naming them] “ good and lawful men of the said county, sworn and affirmed, (those who were affirmed, severally alleging themselves conscientiously scrupulous of taking an oath,) and charged to inquire for the State of New Jersey, in and for the body of the said county; it is presented in manner and form following, to wit.”
    
      Scott and Wall, for the defendant, moved to quash the indictment, because the caption was defective, inasmuch as it did not shew that the grand jury were brought before any court. It ought to set forth the time and place of the sitting of the court; by whom holden; by what authority; and of what they are authorized to inquire; 2 South. 46.
    
      W. Hoisted, for the state, contended, 1st. That the caption contained every substantial requisite. That the only defect was the omission of the word before, which should have been inserted after the words “ twenty-seven.” That this was not essential to the validity of the indictment., for this court were bound to take judicial notice, that there could be but one Court of Oyer and Terminer in a county at a time; and they were bound to notice the times at which these courts were holden, and the manner in which they were constituted; consequently, they could not shut their eyes and refuse to notice that there was no other Court of Oyer and Terminer to which a grand jury could make a presentment, except the court composed of the justice of the Supreme Court and the judges of the Common Pleas named in the caption.
    2. He contended that if the caption was defective on account of the omission of the word “ before,” that the defect might be amended, and that the court ought to allow the amendment to be made.
   Ewing, C. J.

The caption of this indictment is essentially defective. The books lay down the rule, and they are followed-by the most approved precedents, that the names and style of office, of the persons constituting the court to which the indictment is presented, should be set out. The purpose is to shew that they were competent to hold the court, and had power to take the indictment. 2 Hale C. C. 166; 1 Chit. Cr. Law 331. In this caption, names, it is true, are found, but no allegation that the court was held by them, or the indictment presented before them. As was observed by the counsel of the state, the deficiency might perhaps have been supplied by one word, but that important word is wanting.

With respect to amendment, no application for the purpose has been made. If desired by the counsel for the state, an application should have been made before the opening of the argument upon the exception, of the nature of which he had been previously apprized.

Indictment quashed.  