#### THEODORE COLLINS, Administrator of CLARA V. COLLINS v. L. W. GILBERT.

"Where the right of a party to a reeordari, as a substitute for an appeal from a justice’s judgment, depends upon the facts proved or admitted before the Judge of the Superior Court, it is his duty to find and state the facts upon which he proceeds to act, and if, upon an appeal to the Supreme Court, such facts do not appear to have been found and stated, that Court must overrule the decision of the Court below, because the Supreme Court cannot try any “issue of fact.”

Where, but for errors alleged, the record would sustain the judgment given in the Court below, it must be sustained by the Supreme Court, unless the errors are shown. But the case is otherwise when there is nothing in the record to sustain the judgment of the Court below.

'The cases of Cardwell v. Cardwell, 61 N. C. Rep. 621, and Heileg v. Stokes, 63 N. C. Rep. 612, cited and approved.

This was an application made to the Judge of the Superior Court of Caldwell County, for a reeordari, as a substitute for an appeal from a Justice’s judgment. The petitioner was the defendant in the judgment, and stated fully the grounds upon which her application was based. The writ of reeordari was ordered to be issued, and upon the return of the record and proceedings, the plaintiff in the judg.ment appeared and filed an answer to the petition in which many of its allegations were denied; and at the Fall Term, 1870, his Honor, Judge Mitchell, presiding, the following is the only entry of the proceedings in the cause : ‘‘Motion to dismiss. Motion overruled. Ordered that a new trial be granted, and the cause placed on the trial docket, from which motion and order, the plaintiff appealed to the Supreme Court.”

Malone, for the petitioner.

Folk, contra.

Reade, J.

This was an application for a writ of recordar ri as a substitute for an appeal from a Justice’s judgment.

*136The record shows no evidence, except the complaint and' answer, which we suppose were treated as affidavits.

The only question is, whether a writ of recordwri ought to have issued. This depends upon the facts. No facts are found by his Honor, and, therefore, we cannot tell whether he decided right or wrong. Nor can we look into the evidence and find the facts; because, the Constitution forbids us to try any “ issue of fact.” As the case is presented to us, it appears, that his Honor granted the writ without finding any fact at all. And, therefore, we are obliged to overrule him.

It was suggested that we ought to presume that his Hon- or found such a state of facts as would sustain his judgment. If we adopt that rule we would always have to sustain his Honor when he fails to state the facts. And this would make his decision the last resort. It is true that where, but for errors alleged, the record would sustain the Judge, he must be sustained, unless the errors are shown. But here there is nothing to sustain him. His action was arbitrary so far as it appears to us.

As to the necessity for the Judge to state the facts, see Cardwell v. Cardwell, 64 N. C. R. 621. As to distinction between “questions of fact” and “issues of fact,” see Heileg v. Stokes, 63 N. C. R. 612.

There is error. This will be certified.

Pee Curiam. Judgment reversed.