¶1 The defendant’s counsel and the solicitor of the 5th Judicial District having failed to agree upon a case on appeal, the case was made up by his Honor, Judge Mclver. No testimony was received *1076 against the objection of the defendant and none rejected which he offered in his own behalf. There was no exception to the charge to the jury. A new trial was moved for and the motion overruled. Judgment was pronounced and the defendant appealed therefrom. There is now no error appearing on the record and the judgment is therefore affirmed.
¶2 Because of the failure of the Clerk of the Superior Court to send up, in the first instance, as a part of the transcript of the record, the drawing and the swearing in of the grand jury who found the bill of indictment, the Clerk is not to be allowed his costs for the making and sending up the transcript of the record. The omission to send up that part of the record is too grave a matter to be passed over by this court without notice.
¶3 Affirmed.