1. It is sufficient to say upon the first point that the court did not abuse its discretion in refusing the continuance.

2. The minutes of the court showed that the grand jury who found the bill at a previous’term “retired to their room, selected William H. Hughes as their foreman, returned into court and were duly impanneled, to-witand then the names of the jurors were set forth in full on the minutes. The issue made by the plea on this point could be determined by the minutes, and there was no error in the judgment that it ap*605peared from the record the jury were duly sworn. The entry on the minutes could mean nothing else.

3. There was an issue upo.n the special plea setting up the incompetency of one of the grand jurors. That issue was tried before a jury selected'for that purpose. No motion was made to set aside that verdict. A plea of not guilty was filed, and after a verdict of guilty was rendered against the defendant, a motion was made to set the latter verdict aside and grant a new trial, on the ground that the one rendéred on the special plea was contrary to the evidence. There should have been a motion to set aside the first verdict; If the defendant submitted to it without excepting, he could not take the chances of acquittal and failing in that, claim that the conviction was bad, because another jury had found wrong on another issue. If he had a good ground to set the first verdict aside, the courCwould have sustained it and the trouble and delay of the traverse trial would have been avoided. Suppose the defendant, after the return of the first verdict, had ascertained that one of the jury trying that issue was an incompetent juror, or discovered any other fact that would have vitiated the verdict. Could he, without moving for such cause, have gone, into the trial last had, and then .set up that it should go for naught, for reasons which he knew at the time would enable him to avoid a verdict of guilty? If the facts were discovered too late for him to have availed himself of them in time, the question would be different. But here, the reasons given in the final motion, if good, existed, and were as well known before the trial of the final issue as afterwards.

4. It is always too late after verdict on the trial of any issue to raise, as a ground to set it aside, that incompetent testimony was admitted, unless objection was made to it .at the proper time, either when it was offered, or at least before a verdict was rendei’ed. This rule might also be modified if the party was not aware of the facts on which the objection to the evidence rests, and was not guilty of laches in the matter. This is not pretended in this case.

5. At the same term of the court at which this bill was *606found, the solicitor general, by authority of the court, entered a nolle prosequi upon another indictment against the defendant for the same offense. This was done at the May term, 1874— six months before the trial. The defendant objected to the nolle prosequi, and at the time it was entered 'demanded his .release. He pleaded at the trial those facts, and that the bill which was nolle prosequiecl had no fatal defects, and prayed that he might be discharged and go without a day. The court, on motion, struck the plea. Section 4649 of the Code is: “No nolle prosequi shall be allowed, except it be in open court, for some fatal defect in the bill of indictment, to.be judged of by the court, in which case the presiding judge shall order another bill of indictment to be forthwith submitted to the grand jury,” etc., etc. This nolle prosequi was ordered at May term, 1874. The defendant objected because there were no fatal defects. The judgment of the court was rendered at that term on all the questions! No exceptions were filed, and the presumption of law is, that the judgment of the court was right. If the defendant desired to avail himself of his rights under-this statement of facts, he should have put himself in /a position to do so. He could not wait until the next term when put upon his trial, and then ask for a review of the former judgment of the court upon the same point he raised by his plea, to-wit: whether there were any fatal defects in the former indictment which would have authorized the nolle prosequi. We do not mean -to concede by this that an erroneous judgment of the court in allowing a nolle prosequi, as this was done, would entitle a defendant to a discharge,- as he might be if it was allowed after the case was submitted to a jury. "Was not the intent and meaning of the enactments on these two matters different? We do not think the rule would be as strict in such a case as this as under the other provision of the law which forbids any entry of a nolle prosequi on a bill of indictment after the case has been submitted to the jury, except by the consent of the defendant. There was no error in the judgment overruling the plea.

Judgment affirmed.