In this ease it is claimed by counsel that this court treated a similar agreement as the one in question in the case of McKenney v. The Wilmington Star Mining Co. 7 Bradwell, 390, as being part of the record. We did so treat' the agreement in that case because it was made so by a bill of exceptions duly signed by the judge, but in this case there is no bill of exceptions and the agreement is no part of the record. The fact that the supposed agreement states that it is to be made a part of the record, can make no difference. It is no part of the record unless made so by proper bill of exceptions, without which we can not judicially know that it exists.

The motion for a rehearing is denied.