
    4694.
    Chitty v. Oliver.
    Decided October 7, 1913.
    Complaint; from Toombs superior court — Judge Kawlings. November 29, 1912. _
    
      H. TI. Elders, for plaintiff in error. .
    
      Williams & Giles, contra.
   Russell, J.

1. It affirmatively appears, from the certificate of the clerk of the lower court, that the delay in the transmission of the bill of exceptions was not due to any act of omission or commission on the part of counsel for the plaintiff in error; and the failure to transmit á transcript of the pleadings, as appears from the recitals of the bill of exceptions, was due to the fact that the case was tried upon an agreement in open court as to the contents of the lost or destroyed originals, which were not shown to have been in the possession of counsel for the plaintiff in error; for this reason the writ of error should not be dismissed.

2. This case is controlled by the ruling of this court in Hodges v. Gillespie, ante, 63 (78 S. E. 832). The judge erred in refusing a new trial.

Judgment reversed.  