
    Smith against Sutts.
    A certiorari will lie to reverse a judgment of non-suit when costs are awarded.
    . FROM the return to the certiorari in the cause, it appeared, that when the jurors were called, to try the cause, several of them did not appear: for want of a „ . • 1 1 ’ sufficient number, the justice directed the constable to summon some of the. bystanders, but none were found competent to serve on the jury. The plaintiff then requested that a new venire should issue ; but the justice nonsuited him, alleging as a reason, that the plaintiff had not asked for an adjournment of the cause-, nor for a tales de circumstantibus. Judgment was given, that the. defendant should recover his costs of. the plaintiff, and ari execution was awarded. ' ■
    
      Cady, for the plaintiff in error.'
    
      Hildreth, for the- defendant in error.
    To show that a writ of error could not be brought on a judgment of nonsuit, when it could be for no' purpose but delay, he cited 1 H. Bile. 432. Box v. Bennett, and 4 Term, 438. Kempland v. JVf’ Cauley.
    
   PerCuriam.

Thére being a default of jurors, the plaintiÉT below, required a.venire de novo; the justice declined granting it, and nonsuited the plaintiff, on the ground of his default in not paying a tales de circumstantibus, and also adjudged costs against'him. The non-suit was compulsory, and the plaintiff below is aggrieved by the costs. If a party be nonsuited, and a judgment be given against him for costs, error lies. The' judgment must be reversed.

Judgment reversed,.  