delivered the opinion of the court.
This is a presentment against defendant, at the June term, 1842, of the Maury Circuit Court, for permitting his slave Sampson to retail and trade in spirituous liquors contrary to the form of the statute in such cases made and provided. This presentment is in due form signed by all the members of the grand jury-
To this, defendant pleaded in abatement, that the presentment was not found upon the knowledge of the grand jury, or any one of their body, but upon the information of a certain Newman C. Gillespie, who was not sworn before the court and *256sent to said grand jury, previous to his being examined by said grand jury. The plea is in due form.
To this plea there is replication and issue, by the Attorney General.
Upon the trial, defendant introduced one Wyly E. Embry, a member of the grand jury, who deposed that the bill of presentment was made upon the testimony of Nehemiah C. Gillespie, and that the grand jury knew; nothing of the supposed of-fence, of which defendant was charged, of their own knowledge. Also, Nehemiah C. Gillespie, who deposed, that, for two weeks the grand jury, or some of the members thereof, insisted on'his going before them and giving evidence against the said defendant; and he was at last prevailed upon to do so, and informed against said defendant, but was not sworn previous to said examination. The jury found a verdict for defendant. This is all correct. It is not like the case of The State vs. McManus: there the plea does not deny that the presentment was made upon the information of some member of the grand jury, but attacks the source of their information. Here it does deny that the presentment was made upon the knowledge of any one of the grand jury, and asserts that it was upon information detailed before them by a witness who was not sworn, and the truth of the plea is proved. This case, then, falls within the perview of The State vs. Smith, M. 99; and the judgment of the court upon the plea in abatement is right.
Judgment affirmed.