The defendant insisted that the side judge could not properly grant the certificate under the statute, when the first judge was in the county, or, if the first judge could not act in this case, then Asa Hascall, the supreme court commissioner, should have given the certificate.
Beardsley, Justice.The certificate was lawfully granted, unless the supreme court commissioner, by the act of 1840, had exclusive authority; within the equity of the case the first judge should not be regarded as first judge of the county. The act of 1840 provides that the supreme court commissioner of Franklin county may do all such acts &c., as the first judge, being of the degree of counsellor of the supreme court might do out of court. A first judge not of the degree of counsellor of the supreme court, might, under the act of 1836, grant the certificate, if present at the trial. Whatever power the supreme court commissioner might have exercised in this case under the act of 1840,1 think the side judge had authority, he being present at the trial, and the certificate was properly granted.