
    Nabors v. Latimer.
    November Term, 1888.
    This was a motion to reinstate an appeal which had been dismissed by the clerk because of appellant’s failure to file his return within 40 days. The affidavits showed a difference of recollection by counsel as to some understanding between them, but there was no allegation of any agreement as to the return; but appellant claimed that his failure to get a copy of the stenographer’s notes of testimony had been the cause of his delay in preparing his exceptions and having them incorporated into the return.
    November 30, 1888.
    
      W. H. Irvine and J. L. Orr, for the motion.
    
      A. Blythe, contra.
   The Chief Justice.

We are unanimously of opinion that you have not made any showing that will enable us to give relief. A “Case” must not only be agreed to, but it must also be agreed that such case shall constitute the return. Otherwise the return required by rule 2 must be filed within the 40 days. Motion refused,  