#### John Doe ex dem. of Davis Dunett et al. v. Hudson C. Barksdale,

From Surry.

Where the judgment below was rendered upon a point reserved, which did not appear upon the record, the remedy is to grant a new trial'.

In this case the Jury returned a verdict for the Plaintiff, subject to the opinion of the Court upon a point reserved — and judgment. was rendered for the Defendant by his honor Judge Mártir, from which the Plaintiff’ appealed, hut upon the transcript sent to this Court, the question reserved did not appear. Upon a suggestion of diminution, a certiorari was awarded, to which the Clerk of the Court below returned, that the point reserved did not form a part of the record of the cause in that Court.

Gaston, for the Plaintiff.

Badger, contra.

*252Dec. 1829.

Hall, Judge,

after stating the case as above set forth, proceeded — From this statement of facts itappears that the rights of the parties litigant depended upon a question reserved ; and that question was submitted to this Court for its decision. To decide for either of the parties, when that question cannot be understood, would be to decide hi the dark without regard to their rights. To get clear of this difficulty, we can take but one course, and that is to grant a new trial; by which means the question may be again made, if those concerned think proper— This has been heretofore done. (Hatton v. Dew, 1 Law Repos. 524.)

Per Curiam. — Let a new trial be awarded.