delivered the following opinion:

In this case a part of the file has been lost, and I think it would be sufficient for the grand jury to make the indorsement on the mittimus. Technically, the indorsement of a true bill or not a true bill is supposed to be upon the indictment itself, and that would be absolutely essential, I am sure, on the formal indictment if found, but if you do not think that it is a true bill, I am satisfied that it would amount to the same thing, if the government does not furnish an indictment, for you to indorse upon what file does come to you, “Not a true bill.” In such case whatever else it is or is not, it is certainly not a true bill. And then if the court ratifies this by releasing the defendant, I am sure that there could be no error at all. So I will ask your foreman to receive from the clerk the particular file, if it is only a mittimus, or what ever is in the file, and indorse on that, “Not a true bill.” It has to be done before you are discharged, otherwise you are fundi officio.