#### ARNOLD v. HARDY.

(Filed October 7, 1902.)

APPEAL — Case on Appeal — Statement of Facts — New Trial.

Where a case on appeal does not contain a sufficient statement of facts to enable the supreme court to make a decision, it will be remanded for a new trial.

AotioN by William Arnold and others against 0. Hardy and wife, heard by Judge W. 8. O’B. Robinson and a jury, at November Term, 1901, of the Superior Court of Habnett County. From a judgment for the defendants, the plaintiffs appealed.

Murchison & Johnson, for the plaintiffs.

0. J. Spears, and T. M. Arpo, for the defendants.

Pee OuetaM.

For the reasons given in the case of Arnold v. Dennis, at this, term of the Court, and also for the additional reason that it does not appear that F. H. Thomas, the devisee, in Item 8 of the will (a construction of which seems to' be the purpose of the appeal), died without issue, the most material part of the case, this case must go back for a new *114trial. It is said in the statement of the case that “plaintiffs claim that he died without issue/’ but surely that must be found as a fact before it can be expected that we should malee a decision in the matter. The case was made up by counsel.

New Trial.