— The objection to the direction of the certiorari is fatal. The power and cognisance of the judges of the court of common pleas do not extend to criminal cases. Those judges are, indeed, ex officio, members of another court, which possesses a criminal jurisdiction ; but when sitting there, they are judges of the court of quarter sessions, not of the common pleas.

I am also inclined to think, that a certiorari, calling for the removal of an indictment against four, generally, will not remove an indictment, which charges only three persons, in one of its counts. It is true, that the circuit court may obtain the removal and cognisance of an indictment, as well upon the delivery of th.e record, by one of the judges of the court of quarter sessions, per propria mamu, as upon the return to a certiorari. The present case, however, rests upon the authority of the writ; and though it is not without doubt, I am disposed to hold, that not only the direction and the return are irregular ; but that the body of the writ is defective, in the description of the indictment to be removed.

— The authorities cited for the commonwealth are in point, to show that the certiorari for the removal of an indictment against four, is sufficiently descriptive, to remove an indictment against three only, under such circumstances, as appear upon the present occasion. My only difficulty, therefore, arises from the direction and the return of the writ; which, on a question of jurisdiction, in a criminal case, must, I think, be deemed fatally irregular’.

— I have hitherto declined taking any partin judicial proceedings against the defendants; because, I am personally in*277terested in the lands, on which, it is charged, they have unlawfully intruded. But as my opinion is favorable to them, on the present point, I will not abstain from delivering it.

The last objection is fatal, I think, to the proceedings. The direction of the certiorari was to the judges of a wrong court; and the return of the writ is, also, made by the judges of a wrong court. The judges of the court of common pleas never had cognisance of the indictment; nor could they have any power over the record of the court of quarter sessions, to transmit it to the circuit court. The trial was, therefore, coram non judice. Judge Braekenridge and myself determined the same point, the same way, in Centre county, upon the removal of an indictment by the commonwealth.

— Having already decided the leading question, in the case referred to by Judge Smith, it is only necessary to add, that I have heard nothing, upon the present occasion, to induce me to change my opinion.

Judgment arrested.