
    The Agricultural Bank of Mississippi v. Alexander, Tutrix.
    Where a document offered in evidence on llie trial below was withdrawn by the counsel of the party who offered it, and in whoso favor judgment was rendered, and never returned, in consequence of which it could not be transcribed into the record, nor procured under a certiorari, tho judgment must be reversed, and the ease remanded for a new trial.
    APPEAL from the Court of Probates of Concordia, Dunlap, J.
    
      T. P. Farrar, for the plaintiffs. Stacy and Sparrow, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

In this case the attorney for the plaintiffs withdrew from the files of the lower court, the act of incorporation of the bank, and gave his receipt for it. This document formed part of the evidence adduced on the trial of the cause, and the defendant is entitled to the benefit of it. On this right he insists, and we find that ho is deprived of it by the act of the plaintiffs’ attorney, without any fault or laches on his part. This document may or may not be material, but, as the caso stands, wc are bound to believe that, if it were not material, it would have formed no part of the evidenco in the case. From the lapse of time during which this defect could have been supplied, we are bound to consider the appellees in default, and must give the appellant an opportunity of terminating his case, which can only bo done by remanding the cause for a new tridl. The judgment is therefore reversed, and a new trial ordered ; the ap-pellees paying the costs of this appeal.  