[Roby was indicted for arson. He filed a plea in abatement, based on two grounds:
*813(1.) Because two of the persons who acted as commissioners in drawing the grand jury who found the bill of indictment were not legal commissioners, their terms having expired.'
(2.) Because the ordinary did not participate in selecting the grand jury.
The judge certified that on the hearing óf this plea, the following admissions were made:
“ It was admitted on the trial that the jury commissioners, who revised the jury lists and drew the jury for this term of the court, had been regularly appointed under the statute; that the terms of two of them had expired at the time provided by law for the regular term of the April superior court; that the April superior court was not held; that successors to the two commissioners whose terms had expired had not been appointed; that the commissioners who participated in the revision of the jury lists and in drawing the jury for this term of the court were those who had been regularly appointed underthe statute, as above stated; and that there could not have been a majority unless the two whose terms had expired had participated.”
The court thereupon dismissed the plea. After conviction, a motion for a new trial was made and overruled, and defendant excepted.]