#### SPRINKLE v. WELLBORN.

(Filed April 28, 1903.)

APPEAL — Case on Appeal — New Trial.

Where the supreme court is unable to ascertain from the examination of the record and the statement made by the trial judge sufficient facts to enable the court to determine the case, a new trial will be ordered.

ActioN by Nancy E. Sprinkle against J. M. Wellborn and a jury, at May (Special) Term, 1902, of the Superior Court *469of WilKes County. From a judgment for the defendant, the plaintiff appealed.

T. B. Finley, Womack & Hayes and Shepherd & Shepherd, for the plaintiff.

Glenn, Manly & Hendren and W. W. Barber, for the defendant.

Per Curiam.

The court is unable to ascertain from the examination of the record in this case and the statement made by bis Honor, whether the defendant’s counsel agreed that the finding of the first issue “put an end to the case.” In this condition of the record, we can do nothing but order a new trial to the end that if the cause should come to this court again the record may be in a condition which will enable us to bear and determine it upon exceptions properly presented.

Neither party will recover any costs. The costs of this court will be divided between the parties.

New Trial.