Where there is an appeal by either party from an interlocutory order in relation to a rule founded on an affidavit, the Court below should send up the facts, as they find them, and not merely the iaffidavit, which is only evidence.
Appeal from the Superior Court of Law of Wilkes County, at the Spring Term 1849, his Honor Judge Ellis presiding.
*62At the Fall Term, 1848, of Wilkes Superior Court of Law, a rule was taken upon the defendant in this case, to show cause why he should not produce at the trial a certain bill of sale. At the Spring Term 1849, the rule coming on to be heard upon argument of counsel, “it was ordered by the Court that the rule be discharged,” from which interlocutory order the plaintiff appealed. The affidavit, upon which the rule was obtained, is made a part of the case, but there is no statement of facts- by the Judge below.
Craige, for the plaintiff.
Boyden, for the defendant.
Pearson, J.
No facts are stated, upon which to enable this Court to decide, whether it was erroneous to discharge the rule or not. As we can see no error, the judgment of the Court below must be affirmed, as a matter of course.
The affidavit, which is sent as a part of the case, is only evidence. The Court should have ascertained and stated the facts, so as to present the question of law.
Ter Curiam.
Ordered to be certified accordingly.