Ferrey, county judge ofSaid county of Ostego, did attend at the time and place aforesaid, to wit, on the 8th day of February aforesaid, at ten o'clock in the forenoon of that day, and Perry p Rogers and Charles p William- son, justices of the peace ofSaid county of Otsego, duly elected and designated as members of theSaid Court ofSes- sions, at a general election duly held in and for the county of Otsego, in the month of November, in the year 1863, did not, nor did either of them, attend theSaid Court ofSessions at the time and place aforesaid ; and theSaid county judge did then and there, in the absence of theSaid two justices of the Sessions, proceed to and did designate two other justices of the peace, not members of theSaid Court ofSessions, to wit, Hiram Kinne, Esq, and Ezra W Bushnell, Esq, to act with him, theSaid county judge, to constitute and form a Court ofSessions, and did then and there, together with theSaid two justices designated by him, open theSaid Court ofSessions, and then and there, to wit, on theSaid 8th day of February aforesaid, at ten o'clock in the forenoon of that day, did adjourn theSaid Court ofSessions until the 10th day of Feb- ruary aforesaid, at ten o'clock in the forenoon, at the court house aforesaid And theSaid defendant furtherSays : That at the time and place last aforesaid, to wit, thjs 10th day of February, at ten o'clock in the forenoon, theSaid Court ofSessions convened at the place aforesaid, and theSaid grand jury, by which the said bill of indictment purports to be found, was then and there impanneled, charged andSworn for the first time, at or during theSaid February term of theSaid Court ofSessionS And this theSaid defendant is ready to verifY Wherefore, because theSaid alleged bill of indictment was never found at any Court ofSessions legally h:ul or consti- tilted, or by any grand jury duly and legally impanneled, charged andSworn to inquire for the People of theState of New York, and for the body of the county of Otaego, theSaid defendant prays judgment of theSaid bill of indictment, and that theSame may be quashed, and theSaid defendant dis- missed and discharged therefroM And for a further plea in this behalf, by leave of the court first had and obtained, theSaid defendantSays : That theSaid alleged bill of indictment was never presented to any court of competent criminal jurisdiction, or to any Court ofSessions legally organized and held, nor by any grand jury duly impan- neled, charged andSworn to inquire for the People of theState of New York, and for the body of the county of Otsego, because heSays that a Court ofSessions was appointed to be held in and for the county of Otsego, at the court house in Coopers- town inSaid county, on the 8th day of February, in the year 1864, by an order theretofore made, filed and published, in accordance with theStatute inSuch case made and provided, by the county judge ofSaid county, and at the time and place aforesaid, the county judge of theSaid county and two justices of the peace, then and there designated by him, to wit, Hiram Kinne and E.

W Bushnell, EsqrS, pretended to and did then and there assume to organize a Court ofSessions in and forSaid county, by the usual proclamation, and did then and there adjourn, or assume to adjourn, theSaid Court ofSessions, until the 10th day of February aforesaid, at ten o'clock in the forenoon, at the court house inSaid county, at which last mentioned time and place the Court ofSessions described in the caption to the qaid alleged bill of indictment, convened and organized, and theSaid grand jury, by whom theSaid alleged bill of indictment was presented to theSaid court, was then and there impanneled, charged andSworn, and at no other time or place and before no other court.

And theSaid defendant furtherSays : That Perry p Rogers and Charles H Williamson, EsqrS, two justices of the peace of the county of Otsego, had, prior to theSaid 8th day of Feb- ruary aforesaid, been duly and legally elected and designated as members of the Court ofSessions in and for the county for and during the year 1864 And this theSaid defendant is ready to verifY Wherefore, because theSaid alleged bill of indictment was not presented by any grand jury duly and legally impanneled, charged andSworn to inquire for the People of theState of New York, or for the body of the county of Otsego, nor to any Court ofSessions duly and legally organized and held, theSaid defendant prays judgment of theSaid bill of indict- ment, and that theSame may be quashed James W Cyphers, the above named defendant, beingSworn, says that the foregoing pleas are true inSubstance and matter And afterwards, to wit, on theSame day, and before the justices aforesaid, the defendant, James W Cyphers, admitted and conceded the following facts : That the 9th day of February, 1864, was the day on which the annual town meetings in and for the county of Otsego were to be held by law, and that they wereSo held That a grand jury had been drawn in the usual form, and summoned by theSheriff at the usual time, and thatSaid grand jury appeared on Wednesday, the 10th day of February, 1864, and were charged andSworn, and did act as a grand jury, and presented the indictment in question And thereupon theSaid James a Lynes, district attorney as aforesaid, interposed a demurrer to the pleas of the defendant, theSaid James W Cyphers, of which the following is a copy : OTSEGO OYER AND TERMINERThe People of theState of New York ) And James a Lynes, district attorney of Otsego county, who prosecutes for the People of theState of New York in this behalf, as to theSaid plea of theSaid James W Cyphers, by him above pleaded,Says : That theSame, and the matters therein contained, in manner and form as theSame are above pleaded andSet forth, are notSufficient in law to bar or pre- clude theSaid People from prosecuting theSaid indictment against him, theSaid James W Cyphers, and that theSaid People are not bound, by the law of the land, to answer the same ; and this he, theSaid James a Lynes, who prosecutes as aforesaid, is ready to verifY Wherefore, for want of aSufficient plea in this behalf, he, theSaid James a Lynes, for theSaid People, prays judgment, and that theSaid James W Cyphers may be convicted of the premises in theSaid indictmentSpecified Ana tnereupon tne defendant, theSaid James W Cyphers, joined inSaid demurrer, and theSame was then and there argued before the justices aforesaid, by theSaid Louis L Bundy and HezekiahSturges for theSaid James W Cyphers, and by the district attorney aforesaid, for theSaid People.

Whereupon all andSingular the premises beingSeen, and by theSame* justices being fully understood, it is considered by theSaid justices that the demurrer to the first andSecond pleas of the defendant, theSaid James W Cyphers, be over- ruled, and the pleasSustained, and the indictment be quashed, and the prisoner discharged That the demurrer to the third and fourth pleas beSustained and the pleas overruled I The county clerk; is by law required to draw the names of twenty-four persons to attend every term of ths Court of Sessions, which is not by the county judge designated as term, at which no grand jury is required to attend (3 R, 5th ed t page 1013, 10 ; Id, 490, 32)TheSheriff is also required toSummon the jurorsSo drawn (3R, page 490, 12-25 ;See also 3R, page 306, 31 ; Id, 490, 31 ; Id, 301, 1, 2)By a careful reading of the aboveStatutes it will beSeen that the county judge did not comply with the requirements thereof, in not designating any of the terms for which a jury should be required to attend Neither did he designate any of the terms as being terms for which no juryShould be required to attend Therefore, it being the duty of the clerk to draw, and of theSheriff toSummon, a grand jury to attend the appointed terms ofSaid Court ofSessions not thus designated, it would seem that the jury was properly and legally impanneled IL No challenge or objection to the array of the grand jury can now be taken (The People v Robinson, 2 Park ORj?,309; 3R, page 1016, 27, 28 II I The county judge is authorized and empowered, in the absence of the justices of theSessions, or either of them, to fill the vacancy on the bench by the appointment or designation of justices of the peace.

(Laws of 1847, chap 280, 470, 35, 40) The county judge alone can open and hold a Court of Sessions for certain purposeS (3 RS, page 1042, 49)At the adjourned day when the grand jury was impanneled, charged andSworn, the justices of theSessions were upon the bench, and also when the indictment was presented Neither of the objections taken can beSustained The prisoner h'as not in any manner been prejudiced The pleasShould be overruled, and the demurrer and indict- mentSustained, L There was no authority for theSummoning or drawing a grand jury at the FebruarySessions, for the reason that the county judge did not, in the order appointing the courts, order or require a grand jury to beSummoned The Constitution provides that the "county judge, with two justices of the peace, to be designated according to law, may hold Courts ofSessionS" (Art 6, 14, voL 1,Statutes at Large, p 53) 1 By the judiciary act of 1847 it is provided: "And where, in any county, a grand juryShall not by law be required to attend every term of the Court ofSessions, the county judgeShall direct which terms ofSuch courts a grand jury shall attend, by an order to be made and published," &c (4 Statutes at Large, 585, 26) If theStatuteStood as above no grand jury could legally be summoned for a Court ofSessions, only on the order of the county judge, for the reason that neither the Constitution nor anyStatute then in force required the attendance of a grand jury at a Court ofSessionS 2 But this question wouldSeem to be put at rest by aSubse- quentStatute, which provides that " Courts ofSessionsShould be held in the respective counties atSuch times as the county judgeShall, by order, designate, and the county judgeShall, inSuch order, designate at which terms of theSessions a grand or petit jury, or both, or neither,Shall be required to attend, and no juryShall be required to be drawn, &c, to attend any term, &c, whichShall be designated, &c, to be held without such jurY" (5Statutes at Large, 245, 1)In the People v Wilcox (23 How PRR, 297), it was held that an order of the county judge appointing terms of the "County Court" did not embrace a "Court ofSessions," although it is provided " that Courts ofSessionsShall be held at the time and place at which County Courts for the trial of issues of fact by a juryShall be held" (4Statutes at Large, 567, 42)And in People v Moneghan (1 Park OR R, 577), Judge STRONGSays: "NorSince that act (Stat of 1851) can a Court ofSessions be held at any other times, except in pursuance of a previous order of the county judge, made in conformity " with the act, &c, and ifSuch a court cannot be held only in conformity withSuch an order, it follows that no jury can, legally attend only in pursuance of theSame authoritY Whether the act of 1847 is repealed by that of 1851 is left- undecided in both the preceding caseS Nor is it material, for the purposes of the present question, whether it is repealed or not.