The mere fact that the Judge who tried the cause has gone out of office will not prevent his settling the case on appeal. The defect in that regard, formerly existing in the statute, was remedied by section 550 of The Code, in the latter part of the section. But it further appears that the papers were sent to the Judge and are lost, and that there lias been no laches on the part of the appellant, who has been diligent in endeavoring to have the case on appeal settled by the Judge. This the Judge is unable to do by reason of the loss of the notes of the trial and the papers, and the parties are unable to agree upon a case. Under these circumstances a new tidal must be ordered. Owens v. Barton, 106 N. C., 480; Clemmons v. Archbell, 107 N. C., 653; State v. Parks, Ibid., 821. Now Trial.