
    Sawyers Mynatt, Thomas Howell and Hugh Luttrell, plaintiffs in error, v. James Hubbs.
    Bill op Exceptions. Exhibit lost Remand to supply. Where a paper, the loss of which can be supplied in the inferior Court, under the < 'ode, —, is shown by the bill of exceptions to be lost, the cause may be remanded to supply the loss.
    Motion to dismiss appeal, because it is certified in the transcript that the deposition of a witness read and made part of the hill of exceptions, can not be found.
    W. P. Washburn, for the motion,
    insisted that this course had been taken at the last term, in the case of Boshears v. Lay, MS.
    T. E. Champion, for plaintiff in error,
    said he had examined the record in Boshears v. Lay; that no written opinion could be found, and no judgment of dismissal had been entered. A motion was made, Rec., p. 494, to dismiss the appeal. A motion for ah. pin. certio-rari, on p. 513, and time extended to return certiorari, on p. 627. He insisted that under the Code, 3170, 3907, 3908; and Seay v. Hughes, 5 Sneed, 155, that the cause might be remanded to supply a defect in the record. Also cited Code, 2864 and 3171.
    He insisted that where a record is so imperfect that the Court can not say that the facts warranted the judgment, the cause will be remanded and a venire de novo awarded; citing Bennet v. Schermer, Breese, (Ill.,) 352.
   By the Court,

Nicholson, C. J.

The cause will be remanded, that the lost depositions may be supplied under the statute.  