Green, C. J.
The writ of error in this-cause removes into this court, from the Court of Oyer and Terminer and General Jail Delivery of the county of Middlesex, the record of conviction of the plaintiff in error upon an indictment for perjury. The importance of the cause, and the learning and research which characterized the argument, demands at the hands of the court a careful examination of the numerous objections assigned for error, and discussed upon the argument. In performing this duty, I-shall consider the several objections, iu the order in which they were presented upon the argument by the counsel for the defendant.
The first error assigned is, that it does not appear by the record that the indictment was presented by any grand jury, thereto lawfully summoned, empannelled, sworn, and charged, &c.
And it is first insisted, that the court before whom the jury is empannelled is not a tribunal known to the law. The jury were empannelled at a session of “ the Court of Oyer and Terminer and General Jail Delivery,” holden at New Brunswick, in and for the said county of Middlesex.
It is contended that the Oyer and Terminer is a state, not a [29]*29county court, and that it should have been styled “ The Court of Oyer and Terminer and General Jail Delivery of the state of Now Jersey.”
It is a sufficient answer to this objection to say, that the designation given to the court in the record, is the precise designation given to it by law. Rev. Stat. 220.
It is moreover, in very terms, the designation given to the court in all the approved precedents to be found in our reports. 2 South. 539, 746 ; 4 IlaM. 357; 6 Halst. 204.
It is further objected, that it does not appear that the grand jury were summoned, nor by what authority they were summoned. The record sets forth that the presentment was made by A. B., &c., good and lawful men of the county of M., “ being then and there empannelled, sworn, and charged diligently to inquire.” This language is in strict conformity with the most approved precedents. 4 III. Com., Appendix, § 1.
It will be found to be more formal in its language than captions usually are. It is not usual to set forth that the jurors were summoned, nor by tvhom, nor even that they were empannelled. The formality of the present record is sanctioned in this state, not only by precedent, but by express adjudication. State v. Jones, 4 Halst. 371 ; Nicholls v. State, 2 South. 539 ; State v. Gustin, 2 South. 746.
It is worthy of notice that in the case of Nioholls v. State the objection was raised, that the indictment was not presented by a grand jury summoned by the sheriff by lawful authority. The objection was not founded upon a defect of the caption, nor upon any inference against the validity of the summons derived from the record, but upon a special return made by the court below, in obedience to a rule of this court, that “ no writ, precept, or other process was issued or given to the said sheriif, commanding or authorizing him to summon or empannel any grand jury at said term ; and that no such writ or process was returned by the sheriff, nor is any now on file there.”
2. It is objected that the issue is not properly joined. The objection is to the form of the similiter, which is in these words : “ and the state of New Jersey, by J. C. E., esq., who prosecutes for the state, doth the like.’
[30]*30In substance, the issue is between the state and the party arraigued; in form the similiter, in our practice, is usually in the name of the prosecuting attorney. In England, it is in the name of the clerk of the peace, the clerk of arraigns, the attorney general, or other officer who prosecutes for the crown, and is either in the proper name of the officer or in his name of office. 2 Hawk. 399, B. 2, c. 38 ; 2 Hale’s P. C. 258 ; 3 Cro. 315; Areh. Cr. PI. 48, 49; 4 Blao. Com., Appendix, § 1.
In point of fact the similiter is not added; it only appears when the record is made up. At common law, when the prisoner hath jdeaded not guilty, the clerk of the assize or clerk of the arraigns, on behalf of the crown, replies that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables, “ cul prit.” By this replication the king and the prisoner are at issue. 4 Blac. Com. 339.
In capital cases, the issue is altogether immaterial. A mistake, therefore, in the joinder of issue will not be material, and even the total omission of the similiter will not be sufficient to vitiate the proceedings. 4 Bu,rr. 2085 ; 1 Leach’s Cr. Law 276 ; 1 Chit. Grim. Law 481.
And in cases of misdemeanor, where the issue should be made up, if the similiter is omitted, the court will order it to be interlined. In Harris’ case (2 Cro. 502), upon an indictment for nuisance the record was removed, after conviction, into the King’s Bench by certiorari: on examination of the record, it appeared that no issue was joined, and so the verdict was without issue. The court, upou motion, ordered it to be amended, by the inseition of the similiter ; for it was but matter of course, and by intendment was omitted in the entry by default of the clerk.
3. It is objected that the award of the venire is, that the jury should come before the judges of the said court. It is insisted that it should have been before the justice and the judges of the said court. The Court of Oyer and Terminer is composed of justices of the Supreme Court and the judges of the Court of Common Pleas, or any three or more of them, of whom one of the justices of the Supreme Court shall always be one. I am not aware of any technical or legal designation [31]*31of their office, as members of' the Court of Oyer and Terminer. They are neither styled by the statute justices nor judges of the Court of Oyer and Terminer; though it appears, from the phraseology of the fifteenth section of the act, that the term judges, as there used, was understood to include as well the justices of the Supreme Court as the judges of the Common Pleas. The justices of the Supreme Court are frequently, in the statute book, styled judges. By the phrase, “.the judges of the Oyer and Terminer,” therefore, as well in common parlance as in legal acceptation, are included all the judges composing the court, and essential to its organization. It includes as well the justice or justices of the Supreme Court as the judges of the Common Pleas.
4. It is objected that the cause was continued from the fourth Tuesday of February to the second Tuesday of June, then next; and by the record it appears that the trial took place on the fifteenth of June (which of necessity must have been later than the second Tuesday), without any intervening continuance. It appears, however, affirmatively by the record, that the cause was continued from the February Term of the court, until the next session thereof, to be holdeu on the second Tuesday of Juue: and further, that the cause was tried at the said next session of the said court, though not upon the first day of the term. There is no necessity of a continuance from day to day in the same term, the whole term being in contemplation of law but one day.
5. It is objected that a part of the indictment is in figures, and not in words at length. By an inspection of, the record, it appears that the day of the month and the year, in which the affidavit upon which the perjury is assigned, is therein recited to have been taken, and the day of the month and year upon which, in that affidavit, the larceny is charged to have been committed are in figures.
It is laid down by Sir Matthew Hale, that figures to express numbers are not allowable in indictments, though sometimes literal numbers be allowable in returns ; but in indictments, the numbers, whether cardinal or ordinal, must be expressed in Latin. 1 Hale’s P. G. 170.
[32]*32The modern elementary writers state the rule to be, that no part of the indictment must be in figures, and therefore numbers and dates must be expressed in words at length. The only exception to this rule is where a facsimile of a written instrument is to be set out, as in the ease of forgery, in which case it must be set out in the indictment in words and figures, as in the original itself. Arch. Or.,PL 25 ; 1 Chitty’s Or. Law 176 ; 2 Burns’ Just. 500, “Indictment ” VII.
By the statute 13 Edw. 3, c. 15 (1390), it is enacted, “ That all pleas which shall be pleaded in any courts whatever shall bo entered and enrolled in Latin. This statute was in force when Hale wrote his treatise, and continued in operation down to the fourth year of Geo. 2, (1731). 3 Bl. Com. 322.
The earliest case touching the use of figures in legal proceedings, which I find reported while this statute remained in force, was a civil suit in the 13 Car. 2. The action was assumpsit. Upon writ of error, after verdict, it was assigned for error, that the year (1642), in which the promise was alleged in the declaration, was in figures. Jones, J., was of opinion that, being in an inferior court, it was helped by the statute of jeofails. But the court said, the time is necessary, and ought to be in Latin, according to the statute, and being in figures is insensible. And-judgment was reversed. Bushel v. Bland, 1 Keb. 19, pl. 55. The same case is reported as Ducket v. Bland, 1 Sid. 40, pl. 6; 13 Vin. Abr. 210, “Figures.”
In the 22 Car. 2, it was moved, in the King’s Bench, to quash an indictment, because the year in the caption was in figures ; but the objection was avoided by the year of the reign being also stated : Hale, C. J., said that was enough. 1 Hod. 78, pi. 40. In Hobson v. Heywood, 23 Car. 2, Style 88, the plaintiff in error, in an action of debt for rent, assigned for error, that the sum demanded for rent was in figures, and not in words. The court held that the error was material, and reversed the judgment.
In Hawkins v. Mills, 26 Car. 2, in an action of debt, the error assigned was, that, in the award of the venire facias, the sheriff was commanded to summon “X1T men,” the number twelve being in Homan letters. The objection was not al[33]*33lowed, being in text as used in King’s Bench, and not in figures, bnt if it had been 12 in figures it would have been error. 2 Levinz 102; 3 Keb. 301, & C.; Anonymous, 1 Vent. 256; 13 Viner 210, “Figures” 4.
It is worthy of notice that this error was assigned upon the defect of the record touching the number of jurors, iu regard to which there could have been no mistake, the number being fixed by law, and in the modern practice being entirely omitted in the award of the, venire. 3 Blew. Com., Appendix, § 4; 2 Lilly’s Fnf. 350, 397.
In Hebbert v. Corsthrop, 5 W. & M., (Skinner 409), in assumpsit for work and labor, the exception was, that the sum in the writ of inquiry was iu figures. Bed non alloc,aiur, for they were (XII) Latin figures, which is well enough : otherwise if they had been (12), English figures.
In Rex v. Phillips, 1 Stran. 261 (6 Geo. 1), a coroner’s inquisition was quashed because the year in the caption was in common figures, whereas it ought to have been iu words at length, or at least in Roman numerals.
If the caption of an indictment set forth the style of the day or year in any figures but Roman, it is insufficient. Hawk. P. C., B. 2, c. 125, § 129; 2 Keb. 128, pi. 83 ; Bac. Abr., Title “Indictment,” I.
In the Law of Errors (Ed. 1703) there is an assignment of error in a civil suit, because in the record the sums are written in figures, when they ought, to have been written at large.
In 1 Instructor Clericales (Ed. 1714), 14, it is said, “T’is reckoned more clerklike to write all sums and figures till past five at length, but after five in numeral figures;” but this is meant as to precedents, tests of writs, and such things as are not of record, for there all sums ought to be at length in words.
The authorities which have been cited are all drawn from the period when the statute of Edward remained iu force. That statute, it will be recollected, simply required the proceedings of courts to be entered and recorded in Latin ; and it has been suggested, as a ground for the distinction between the Roman numerals and the Arabic figures, that the former are Latin, which the latter are not. It will be recollected, [34]*34however, that during this period legal proceedings were all entered in court-hand, with numerous abbreviations, quite as unintelligible to the uninitiated as the Roman numerals themselves.
The statute 4 Geo. 2, c. 26, enacts, that from and after the 25th of March, 1733, all writs, pleadings, records, and proceedings in courts of justice shall be in the English tongue, and shall be written in a common legible hand and character, and not in court-hand and in words at length, and not abbreviated.
The statute 6 Geo. 2, c. 14, enacts that all writs, pleadings, records, and proceedings in courts of justice may be written or printed in a common legible hand and character, and with the like way of writing or printing, and with the like manner of expressing numbers by figures, as have been heretofore, or are now commonly used in the said courts respectively, and with, such abbreviations as are now commonly used in the English language. 6 Statutes at Large 65, 120.
In the King v. Haddock (11 Geo. 2), the indictment was for a nuisance, by putting and placing on the soil of the river Thames, on the first day of August, 1732, 200 loads of brick. To this indictment there was a demurrer on several grounds, one of which was, that the year when the offence was committed, and also the quantities of brick, were expressed in figures. Lee, C. J., said, there was great weight in the objection, and relied especially upon the authority of Lord Hale, that figures ought not to be used in indictments.
Page, J., said, that in civil actions figures are now good, because literal ones were therein used before the late acts; but that in indictments they ought not to be inserted, because it was not usual before these acts, therein to express numbers in figures.
Chappie, J., said, the objection is a very strong one, and the cases are express for the purpose. It is very difficult to maintain, upon the late acts, that figures may be used in indictments, it not being usual to use them in such cases before.
Probyn, J., said, no other figures but such as are capital were ever use'd in the bodies of indictments, and these were never allowed but only in immaterial parts; but in this case a [35]*35very material part is expressed in figures : now these are not aided by the English acts, because they leave the matter as it was before.
The court took time to advise, and no final opinion was ever given, there being a new indictment brought by the prosecutor. Andrews 137 ; 2 Sessions Cas. 315, S. C.
Upon a careful examination of the English cases, except the language of Probyn, in King v. Haddock, I find no adjudication, nor even a dictum, either before or after the statute of Geo. 2, which countenances the idea that figures, either Roman or Arabic, may be used in an indictment. The more recent elementary writers (as we have seen) adopt the doctrine of Lord Hale, and lay down the rule explicitly, that figures cannot be used in an indictment, except when the/ae-si»»7e of a written instrument is to be set out.
The courts at Westminster, indeed, have carried the principle of requiring the proceedings in courts of law to be in words at length, so far as to hold it a fatal objection to civil process that the year in the notice to appear was in figures, and not in words at length. Pinero v. Hudson, 1 M. & S. 119; Sutherland v. Tubbs, 1 Chitty 319, note a; Grogan v. Lee, 5 Taunt. 651; Williams v. Jay, 5 Taunt. 652, note.
It was, however, subsequently resolved that such notice was good, though the year were in figures. Eyre v. Walsh, 6 Taunt. 333.
Process had previously been held good even when the year was erroneously stated, or altogether omitted in the notice. 1 Taunt. 424; 2 Siran. 1232 ; Barnes 425.
I have been led to this review of the authorities, from the fact that, in two or throe recent American cases, it has been held that Arabic characters- will not vitiate an indictment. State v. Raiford, 7 Porter 101; State v. Hodgeden, 3 Verm. 481 ; Peck 165, cited in 2 Hale’s P. G. [Ed. 18 17) 170, note 2 ; 2 Boiwier’s Law Diet, “ Figures.” In the State v. Baiford, the court said, that it was more proper to write the day, year, &c., than to insert Arabic characters ; but that the contrary practice has prevailed so long that it would be unwise to disturb it. The decision of the court is based upon established [36]*36practice. Such, doubtless, is the practice of the state where that decision was made, but I have been unable to ascertain the existence of any such practice in the courts at Westminster ; and in this state both practice and authority are the other way.
Our statute respecting amendments and jeofails adopts the material provisions of the statute of Geo. 2, in respect to civil suits, but provides that no part of the act except that which directs proceedings to be in English, shall extendió indictments or criminal proceedings. Rev. Stat. 991, § 17, 19.
In Cole v. Petty, 1 Penn. 61, Kirkpatrick, C. J., said, it is certain that in courts of record we do not enter judgments in figures. No such custom has ever obtained from the earliest times to the present: it would have been error. And, indeed, as the sum for which judgment is entered, is the very essence of the whole, it would seem to be absurd that all the rest of the proceedings should, of necessity, be entered in words written at length, and that this only should be entered in figures.
Judgments, even in the courts For the trial of small causes, cannot be entered in figures. Penn. Pep. 61, 86, 110, 413.
In Ross v. Ward, 1 Harr. 23, Hornblower, C. J., manifested a strong disposition to extend the principle even to the process of the justices’ courts. He said, “ The process of a court requiring the personal appearance of a party, ought to be in words at length, especially as to the time he is requested to appear, and the sum demanded of him.”
These opinions exhibit clearly the view’ which our courts have taken against the principle and practice of using figures in civil proceedings.
In criminal proceedings, and especially in indictments, the objection to the use of figures is more obvious and cogent, and we believe they are universally (except where a facsimile is necessary) written in words at length. To this cause, and to the general judgment of the profession, that the use of figures is fatal in an indictment, may be attributed the entire absence of all judicial authority directly upon the point.
Indeed, upon the argument, it seemed to be conceded that ordinarily the use of figures in an indictment is fatal, but it was insisted that the present case is, not within the principle. [37]*37It remains to be seen whether the use of figures in the indictment now under consideration can be justified.
It is said, in vindication of the present indictment, that perjury is assigned upon a written affidavit, and that that part of the indictment where the figures occur, is but a transcript of the affidavit upon which the perjury is assigned. When perjury is assigned upon a written instrument, the pleader may doubtless set out the tenor of the affidavit by words and figures in the indictment. But how does it appear that that was done in the present instance ?
It does not purport, upon the face of the indictment, to bo a copy. It is averred to be set out not in words and figures, or according to its tenor, but according to its substance and effect. This averment cannot be rejected as surplusage. And the matter sworn to, as stated in the indictment, is most manifestly not a literal copy of the affidavit, but a mere statement of its substance and effect. It cannot, therefore, be justified upon the ground that it is a fae-simile of a written instrument. The indictment charges that the defendant did say, (lepóse, swear, and make affidavit in writing, among other things, in substance and to the effect following, that is to say :
“State of New Jersey, Middlesex county, ss. — Be it remembered, that on the 3d day of August, 1846, John B. Berrian (the said John B. Berrian meaning), of the township of South Brunswick, in the county of Middlesex, in his proper person, comes before me, Peter P. Mesuroll (the said Peter P. Mesuroll, esq., meaning), one of the justices of the peace in and for said county (the said county of Middlesex meaning), and upon his oath makelh complaint, that,” &c.
Now it is very manifest that all this is no part of the matter sworn to by the defendant. It is but the mere title of the affidavit, a statement of the name and residence of the deponent, the name and office of the magistrate, aud of the time of taking the oath. Though composing technically a part of the written affidavit, it is no part of the matter upon which the perjury is assigned. It might all have been very properly and very advantageously omitted by the pleader. But having been incorporated in the indictment, as a part of the descrip[38]*38tion of the offence, it becomes material, and must be supported by proof.
Nor is the objection obviated by the fact, that, in a previous part of the indictment, the day upon which the affidavit was taken is stated in words at length. The precise day upon which the crime is charged to have been committed, is not material; and had the title of the affidavit been entirely omitted, the indictment would have been supported by the production of the affidavit, though it had borne date upon another day. But as the indictment is now drawn, if the affidavit had borne date upon any other day than the third of September, it would have been inadmissible in evidence, and solely on the ground of the misdescription of the affidavit. It cannot, therefore, be rejected as surplusage. Upon .this point, I am of opinion that the judgment below must be reversed.
This conclusion renders it unnecessary that any opinion should be expressed upon the other errors assigned.