
    Gibbons ads. Ogden.
    If a trial goes off on account of a defect or mistake of the judge or sheriff in making out the panel of a struck jury, the plaintiff not obliged to pay ■costs.
    
      Vanarsdale, applied for a rule upon the plaintiff, to compel him to pay the defendant costs, for not going to trial pursuant to his notice. The circumstances were these: there-had been a struck jury summoned for the trial of this cause,, when the venire was returned, and the name of Erancis Babcock (which appeared *upon the panel) was called,. . do person -by the name of Francis Babcock answered; but a man by the name of Frederick Babcock appeared, wholiad been summoned by the sheriff, there being no snch person known as Francis Babcock. It was admitted that Frederick was the person the parties had in view in •striking the jury. The judge at the circuit (notwithstanding the objection of the defendant’s counsel) said, he would permit the name of Frederick to be inserted instead of Francis, and the plaintiff might proceed with the trial, if he thought proper. This, however, the plaintiff’s counsel declined doing, and the cause went off. It was for the' ■costs which the defendant had been put to, in attending the ■circuit, that the application was made.
    
      Frelinghuysen and Ilornblower, contra.
   Per Curiam.

It was not the fault of the party that 'the cause was uot tried; it was the mistake of the judge ■or the sheriff; therefore

Let the party take nothing by his motion.  