Since the appeal was.taken in this case, a material portion of the evidence has been lost, as appears by the certificate of the Clerk and his return to the writ of eertiorari.

Under the authority of the cases of Ennis v. Murphy, 11 Rob. 477; Agricultural Bank v. Alexander, 1 An., 246, and Lyons v. Andrews, 5 An., 602, the cause must be remanded for a new trial.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed and that this cause be remanded for a new trial, and that the costs of the appeal abide the event of the final decree.