¶1In this case a venire had been drawn, returnable to the term of the circuit court at which the indictment was formed, by the clerk and sheriff, in the presence of the probate judge. A sufficient number of this venire were proved to be in attendance on the court to constitute a grand jury. For some reason, not distinctly set out in the record, the court set aside the whole panel, and ordered a special venire, returnable forthwith. From the jurors summoned under the special venire, the grand jury which preferred the indictment was selected.
¶2A plea in abatement, setting up an illegal organization of this grand jury, raises the only question in the case.
¶3If the court was correct in rejecting the venire facias, which issued on the 14th March, 1850, the special venire, from whieh the grand jury were drawn who found the indictment, was legally ordered. Consequently, no valid objection could be raised to the organization of the grand jury.
¶4By the statute of February 27, 1836 (Hutch. Code, Dig. 888, art. 10, § 2), it is made the duty of the circuit judges, “ If, at any regular or special term of the circuit courts there shall not *526be in attendance any of tbe regular jurors summoned to sucb term, forthwith to award a special venire facias” and from the jurors summoned, by virtue of such writ of venire facias, “ to organize a grand jury and petit jury.”
¶5The authority to award a special venire, except in a peculiar class of cases, in which parties are capitally charged, is confined to cases in which there are none of the regular venire in attendance upon the court. It seems clearly not to have been the intention of the legislature to vest in the circuit court, under this provision of the statute, the authority to decide upon the legality or the illegality of any act connected with the drawing of the names of the persons who are to constitute the venire ; the issuance of the writ, by virtue of which they are to be summoned, or the mode in which they may be summoned. By the first section of the statute above quoted, the authority of the circuit court, as it then existed, to entertain challenges to the array, and motions to quash the venire facias, is expressly repealed.
¶6In the case under examination, the venire facias, as it is alleged, illegally issued, in consequence of the irregular mode by which, and the improper time at which, the drawing took place. Let that be granted. What then ? The circuit court could not entertain a challenge to the array, or quash the venire facias, for any cause whatever. And we apprehend that the venire facias could not have been properly treated as a nullity by the court.
¶7The record shows, that persons summoned by virtue of the first venire facias, were in attendance on the court. The single condition, therefore, on which the court could rightfully have awarded a special venire, did not exist. It was a void act. Hence, the grand jury who preferred the indictment were illegally constituted. The plea, therefore, presented a valid defense to the indictment, and should have been sustained.
¶8Judgment reversed, and indictment quashed.