The opinion of the, court was delivered by
Royce, J.The first question is, whether the name of the judge, where it occurs in the commencement of the count, refers to the holding of the county court for the June term, A. D. 1841, or to the trial of the action there mentioned. The *726more obvious application is to the holding of the court. This construction is according to the usual rules of composition and punctuation, whilst it corresponds with the English forms in cases having the nearest resemblance to the present. Indictments for perjury, committed in trials at nisi prius, as given in those forms, uniformly introduced the name of the judge by whom the court was holden. The expressions here used may, doubtless, be taken to refer to the trial of the action. But this becomes a less plausible and consistent reading when it is considered, that in our practice such a reference to the particular judge, or judges, by whom a cause was tried in the county or supreme court, is not only quite unusual, and perhaps unprecedented, but altogether useless. A trial in either of these courts proceeds under the collective authority of the court. And if it so happens that one judge may legally try a particular cause, he possesses, pro hac vice, the judicial power of the entire court, and, indeed, becomes the court. There is, therefore, no more occasion for naming the single judge in that instance, than for naming all the judges in common cases. The trial isas much by the court in one case as the other.
But the English forms of indictments for perjury will be found to differ in this respect, as they relate to a trial at nisi prius, or to a trial at bar. In the former case the name of the judge is mentioned, whilst in the latter none of the judges, composing the court or acting in the trial, are named. There is a reason for this difference, arising from the difference of authority under which the judges act in the two cases. In the former, the authority is by special assignment for the particular term or circuit; in the latter, it is a permanent authority derived immediately from the law. Hence, in order to show that there was a legal session for holding pleas in the one case, the name of the judge and his appointment to that service should be alleged; but in the other, no special appointment being necessary, neither the names of the judges, nor their authority to act as such, need be averred. The authority in one case emanates from the special appointment ; in the other it is inherent in the court asa permanent tribunal. And such is the case here. It appears, therefore, that if the present indictment is understood, in this particular, as being descriptive of the authority by which the term *727was holden, it receives no support from precedent. Neither can it derive any from our statute, which expressly requires at least two of the judges, to constitute a legal county court for the transaction of business.
Upon the other construction the indictment would appear to be no less defective. One judge of the county court has no general authority to try a cause. He can only do so when the other judges present (and there must be one such at least) “are legally disqualified to act on the trial of such cause. ” R. S. ch. 25, § 28. Consequently, in order to show such a trial to have been competent and legal, it should be alleged that the other judges were disqualified to act in it.
But it is urged that the name of the judge may be striken from the indictment as surplusage. The distinction is between averments which are material and pertinent, and those which are wholly immaterial or not pertinent. Now it would doubtless have been sufficient in this instance to say that the term was duly holden, without naming any of the judges. But since it could not be holden to any effective purpose without judges, the name of the judge alleged to have held it, becomes descriptive of the court, and the holding of the term. The name is thus rendered material and cannot be rejected.
The result is, that upon no ground can the indictments be sustained without the aid of those intendments which are never extended to the support of a criminal accusation.
Judgment that the indictment is insufficient.