sworn. So he may challenge any one of the grand inquest for cause or to the favor. And it is now settled in this State that any want of legal qualification in a grand juror, or illegality in the empanneling of the inquest, which would be sufficient to vitiate an indictment, is available by plea in abatement. (The State v. Brown, 5 Eng. 78.) On the other hand, it was decided, in Fenalty v. The State, (7 Eng. 630,) that, after pleading to the indictment and standing a trial on the merits, such objections are not available to the defendant in any form. See also Brown v. The State, 7 Eng. 100. The distinction would seem to be that the objection to a grand juror or to the array, which must be pleaded in abatement and are waived by pleading to the indictment, are such as do not appear upon the record of the court, and have to be brought to its notice by plea.
The omission of the record entry of the empanneling of the grand jury has always been supplied in this court by certiorari ex officio, even after error joined, for the purpose of affirming, where no other error appeared in the record. The necessity for such a practice has been productive of no little inconvenience without any beneficial result, unless we go to the full length of holding that objections for the want of a legally constituted grand jury, are available on error after conviction. Certainly they are not to be encouraged, if allowable at all, (King vs. Marsh, 6 Ad. & Ellis 236;) and after the fullest latitude has been allowed to the defendant to make all objections for any defect or illegality in the organization of the grand jury, it might be fair to presume that no such irregularity existed, or consisted only of some omission that might have been supplied, if he had undertaken to avail himself of it by plea in apt time, or that, by pleading to the indictment, he elected to treat it as one not tending to his prejudice. But the practice has been adhered to because of the constitutional provision that no man shall be put to answer any criminal charge but by indictment, so that unless it appear that he was indicted by a legally constituted grand jury, the proceedings against him are unauthorized, and we could not depart from
