Sec. 408, page 373. Practice on return of special verdict.-It is not necessary to enter a formal verdict in accordance with the opinion of the Court on a special verdict rendered by the jury. State v. Spray, 113 N. C., 686.

A special verdict in which, after setting out the facts, the jury say: "If upon these facts the Court be of the opinion that the defendant is guilty, the jury so find, otherwise not guilty," is sufficient as following approved precedents, State v. Gillikiň, 114 N. C., 832.

Sec. 409. page 374. Papers handed to jury.-There was no error in refusing to allow the jury to inspect the original writing. "Evidence should be offered to their ears, not to their eyes." Shelton v. Reynolds, III N. C., 525.

NOTE.-But the written instructions of the Judge may be handed to jury. Acts 1885, chapter 137, Clark's Code (2d Edition), page 396.

-Page 375. Separation of jury.—Where the jury found an issue and then separated, and the Judge found as a fact that they had not been influenced by what had been said to them after their separation, it was not error to permit them to re-assemble and put their findings in writing. Luttrell v. Martin, 112 N. C., 594; Petty v. Rousseau, 94 N. C., 355; State v. Shelly, 98 N. C., 673.

Page 375. Permission to view the premises.-The granting or refusal of an application for the jury to view the premises which are the subject of injury or accident, lies within the sound discretion of the Judge. Jenkins v. Railroad, 110 N. C., 438.

-Page 375. Conduct of jury.-It is not competent to impeach the verdict of a jury for misconduct by evidence proceeding from the members of the body. State v. Best, 111 N. C., 638.

Where a jury purchased whiskey, and "some of them were under its influence" while deliberating on their verdict, a new trial will be granted. State v. Jenkins, 116 N. C.

-Page 375. Informality in verdict.-Although the verdict of a jury should be set aside where it is so inconsistent in its responses to the issues, or with the pleadings, that the Court cannot determine what judgment should be rendered in favor of a given party, or which of the parties is entitled to judgment, yet, mere informality will not vitiate a verdict, and it should not be set aside when the two findings will support precisely the same judgment in favor of the same party, and where no injustice will result from an adjudication upon the substance or general purport of the verdict. McCaskill v. Currie, 113 N. C., 313; Hawkins v. House, 65 N. C., 614; McMahon v. Miller, 82 N. C., 317; Walker v. Mebane, 90 N. C., 259; McMillan v. Baxley, 112 N. C., 579.

It was error in the Court to disregard the adverse finding upon the issue in respect to the ownership, and render judgment for the plaintiff. It being uncertain, from the other issues, whether the amount awarded defendant was in excess or diminution of the amount found due on the purchase-money, the verdict should be set aside and a new trial granted. Kornegay v. Kornegay, 109 N. C., 188.

In answer to an issue, "Is F, the owner of the property described in the pleadings, or any part thereof? If so, what part?" the jury responded "Yes": Held, that the response was sufficiently intelligible, and was properly construed to mean that F. was the owner of all the property. Kelly v. Fleming, 113 N. C,, 134.

Sec. 412 (1), page 379. Judgments to be signed.-See 288 and cases cited in Code (2d Edition), and Supplement.

Sec. 412 (2), page 380. Exception to issues. It is too late after verdict to except to failure to submit issues tendered, and to issues actually submitted. Cotton Mills v. Abernathy, 115 N. C., 402; Carr v. Alexander, 112 N. C., 783.

-Page 381. Exception that there is no evidence sufficient to go to the jury. It is too late, after verdict, to raise the point that there was not evidence sufficient to go to the jury, for treated as an omission to charge, it is not ground for exception, in the absence of a prayer for instruction, and treated otherwise than as an omission, it is waived when not taken at the time. State v. Kiger, 115 N. C., 746; State v. Keath, 83 N. C., 626; Watson v. Sugg, 101 N. C., 188; State v. Brady, 104 N. C., 737; Battle v. Mayo, 102 Ñ. C., 413. 438; McMillan v. Gambill, 106 N. C., 359; Lawrence v. Hester, 93 N. C., 79; State v. Glisson, 93 N. C., 506; State v. Jones, 69 N. C., 16; Cotton Mills v. Cotton Mills, 115 N. C., 475, 485; State v. Varner, 115 N. C., 744; State v. Hart, 116 N. C.; Fagg v. Loan Association, 113 N. C., 364.

-Page 381. Exception to inadvertence by the Judge.-That the Judge, during the progress of the trial, made a memorandum in small letters and figures on the paper containing the issues, which corresponded with the answer given by the jury to that issue, which he inadvertently omitted to erase before handing the paper to the jury, cannot be first excepted to in the appellant's case on appeal, where, upon discovering the memorandum, the jury informed the Court that they had given the matter no consideration, and the Court was not requested to set aside the verdict for that reason. Posey v. Patton, 109 N. C., 455.

Sec. 412 (3), page 382. Exception to the charge cannot be made for first time in the Supreme Court. -Exceptions to the refusal of the Court to grant a prayer for instructions, or in granting a prayer, or to instructions generally, cannot be taken for the first time in the Supreme Court. Preferably, they should be made on a motion for a new trial, but it is sufficient if they are assigned in the statement of the case on appeal. Lee v. Williams, III N. C., 200; Hooks v. Houston, 109 N. C., 623; State v. Frizell, III N. C., 722.

-Page 382. Omission to charge. The omission to give an instruction to a jury is not ground for an exception in the absence of a request to so instruct. State v. Varner, 115 N. C., 744.

- Page 382. Exceptions must be specific.-An unpointed "broadside challenge to the charge, not specifying the particular errors complained of, will not be regarded. Hinson v. Powell, 109 N. C., 534; Hopkins v. Bowers, 111 N. C., 175; Shober v. Wheeler, 113 N. C., 370; State v. Varner, 115 N. C., 744; State v. Page, 116 N. C.

-Page 383. Exceptions to charge may be made for first time in appellant's case on appeal.-It is not required that an exception to the charge shall be specifically noted at the time, but it is the duty of the appellant to make specific assignment of error in the charge in the case on appeal. Hinson v. Powell, 109 N. C., 534; Lee v. Williams, 112 N. C., 510; State v. Varner, 115 N. C., 744; Blackburn v. Ins. Co., 116 N. C.

-Page 383. Exceptions to charge after "case settled."-Exceptions to the Judge's charge, filed in the Clerk's office after the settlement of the case on appeal, are not properly a part of the transcript on appeal and should not be sent up. Hemphill v. Morrison, 112 N. Ĉ., 757.

Sec. 412 (4), page 383. Refusal of new trial.—The appellant should except to the refusal of the Judge to grant a new trial in order to have his decision reviewed. Grant v. Grant. 109 N. C., 710.

-Page 383. Partial new trial.—When a venire de novo is awarded by the Supreme Court, the cause goes back for trial upon the whole case (unless restricted to specific issues), as if no former trial had taken place. Beville, v. Cox, 109 N. C., 265.

Where there has been error by the Court below in respect to some issues, but which does not affect the others, the Supreme Court will direct a new trial only on the issues as to which there was error. Jones v. Coffey, 109 N. Č., 515; Tillett v. R. R., 115 N. C., 663,

-Page 384. By consent, judgment set aside after term.-Notwithstanding this sub-section requires a motion to set aside a verdict, on the ground of excessive damages assessed thereby, to be heard at the same term of Court at which the trial is had, yet, by agreement of counsel, a motion made at the trial term may be heard and determined by the same Judge at a subsequent time. Myers v. Stafford, 114 N. C., 231.

Page 384. Affidavits not considered.-Where the facts are not found by the trial Judge and spread upon the record, affidavits of grounds for a new trial cannot be considered on appeal in reviewing the refusal of the motion. State v. DeGraff, 113 N. C., 690.

-Page 385. Newly discovored testimony.—It is the settled practice that pending an appeal to the Supreme Court, a motion for a new trial upon newly discovered testimony must be made in that Court; and before the Act of 1887, chapter 192, concerning appeals, such motion must have been made in the Supreme Court, even after final decree therein. Black v. Black III N. C., 300.

The granting of a new trial upon newly discovered testimony is, in the absence of gross abuse, within the discretion of the trial Judge, and a refusal to exercise such discretion is not reviewable upon appeal. Such discretion will not be exercised where the new testimony is merely cumulative or only tends to contradict or discredit the opposing witState v. DeGraff, 113 N. C., 690.

ness.

-Page 385. Re-instatement of Judgment.—Where, in the trial of an action, the verdict of a jury was set aside by consent, it was error to re-instate the verdict despite the objection of one of the parties, it not appearing affirmatively that the first order was procured by fraud. Deaver v. Jones, 114 N. C., 650.

Sec. 413, page 386. What is expression of opinion. It was prejudicial to defendant for the Court to tell the jury that he knew of no direct testimony tending to show plaintiff's knowledge of the character of machinery used by which he was injured, and of his consent to its use, when it was in evidence that plaintiff was present and saw the pole used, and the manner of its use; and the error was not cured by leaving it to the jury to say what were the facts after having called their attention to the contention of the defendant's counsel in regard to these facts. Young v. Construction Company, 109 N. C., 618.

In a charge reciting that certain facts raised a suspicion as to plaintiff's ownership of the coupons sued on, a statement that "plaintiff claims" he has rebutted such suspicion "by showing when and from whom he got some of them, and that he owed none of the taxes for the years he received the coupons," is erroneous, as invading the province of the jury. Threadgill v. Commissioners of Anson County. 116 N. C.

Plaintiff having made out a prima facie case of negligence, whether it is rebutted by the defendant's evidence is for the jury, and an instruction that "upon all the evidence, if believed, plaintiff is not entitled to recover," violates this section. Sherrill v. Western Union Tel. Co., 116 N. C.

-Page 386. Conflicting evidence.-When the evidence upon an issue is conflicting, it is error in the Court to direct the jury to return a verdict for one of the parties-the jury alone being the judge of the weight of the evidence. Buffkin v. Eason, 110 N. C., 264; Harris v. Carrington, 115 N. C., 187.

Where there is a direct conflict between the witnesses of each side as to a material fact, it is not error to instruct the jury that if they believed the witnesses for the plaintiff they should find for him, but if, on the other hand, they believed the defendant's witnesses, they should find for him. Gregg v. Mallett, III N. C., 74.

-Page 389. Directing a verdict.-Where the stockholder of an insolvent corporation, in an action against him by the corporate creditors, admitted the amount of his subscription, and that it was unpaid, and introduced no further evidence, it was proper to direct a verdict for plaintiffs. Harmon v. Hunt, 116 N. C.

Where the cause of action set forth in the complaint was not sustained, and the plaintiff did not ask to be allowed to amend, the intimation of the trial Judge that the plaintiff could not recover is correct. Hunt v. Vanderbilt, 115 N. C., 559.

Where there is no sufficient evidence to permit a case to go to the jury, the trial Judge may so rule, and withdraw the case from the jury; but if the evidence is merely weak, and such as might not induce the Judge, if a juror, to convict, he has no authority so to withdraw the case. State v. Kiger, 115 N. C., 746.

Questions of intent and knowledge are for the jury, and it was error for the Court to charge them to find for the plaintiff where there was evidence upon which they might have found otherwise. Haynes v. Rogers, 111 N. C., 228. Or when different inferences may be drawn from uncontradicted evidence, as affidavits and exhibits. Machine Company v. Lumber Company, 109 N. C., 576.

Where, in the trial of an action, the testimony of the plaintiff, who was the only witness to the material issue, is of doubtful import and susceptible of two constructions, it is error to instruct the jury that if they believe the witness, he is entitled to recover. Curtis v. Lumber Company, 113 N. C., 417.

The Court cannot direct a verdict in a criminal case, even when the evidence for the State is uncontradicted, for the plea of "not guilty" disputes its credibility, and there is the presumption of innocence which can only be overcome by the verdict of the jury. State v. Riley, 113 N. C., 648; State v. Winchester, 113 N. C., 641.

Page 389. Expression of opinion, when warranted.-An instruction to the jury that the circumstances recited were a strong badge of fraud was not warranted. It is only where the law gives to testimony an artificial weight that the Judge is at liberty to express an opinion upon its weight. Bonner v. Hodges, 11 N. C., 66.

-Page 389. Remark of by-stander.-During the argument of a motion for continuance of a case, in the presence, but prior to the impaneling, of the jury, a by-stander remarked in open court that the prisoner's wife said she would not come to the trial because she would only

help get her husband in jail: Held, that this was not ground for exception, as it did not occur on the trial, and, if it had, the remark was not admitted as evidence, and, being an unsworn statement, it could not have been deemed to bias the jury against the sworn testimony placed before them. State v. Jackson, 112 N. C., 852.

-Page 389. Correcting error during the trial. That the Judge spoke of bastardy proceeding as an indictment, did not prejudice the defendant when it was corrected in the charge. State v. Williams, 109 N. C., 846.

[NOTE. It has since been held a criminal proceeding. State v. Burton, 113 N. C., 655.]

-Page 390. Insanity.-Insanity, as affecting the running of the statute of limitations, is a question for the jury; and where the testimony as to the fact, while not directly disputed, was capable of more than one construction, it was not proper to withdraw it from the jury. Asbury v. Fair, 111 N. C., 251.

-Page 390. Negligence and contributory negligence.-Since the statute (Chapter 33, Acts of 1887) requires that contributory negligence, if relied upon as a defence, shall be set up in the answer and proved on the trial, there can be no presumption of contributory negligence, and it is error in the Judge to charge that the burden of proof is upon the plaintiff to show that she was not herself guilty of negligence, though the defendant offered no testimony. Jordan v. Asheville, 112 N. C., 743.

Where, upon an issue as to whether an injury complained of was caused by the negligence of the defendant, the plaintiff made a prima facie case, the Judge ought to have instructed the jury to find the issue in her favor if they believed her testimony, and it was error to blend his instructions on that issue with those on an issue relating to contributory negligence. Jordan v. Asheville, 112 N. C., 743; Whitford v. Newbern, III N. C., 273.

-Page 390. Wittkowsky v. Wasson should have been cited as 71 N. C., 451.

-Page 390. When negligence question of law. -What is negligence is a question of law for the Court when the facts are ascertained; and when the evidence is conflicting, the Court should instruct the jury that it is or is not negligence, accordingly as they might find the facts to exist. Knight v. Railroad, 110 N. C., 58.

-Page 393. Singling out one aspect of the proof.-When the pleadings and proofs develop several aspects of the case upon which the right to recover depends, it is error to single out one and to charge the jury particularly in respect thereto, and give only general instructions as to the others, especially where special pertinent instructions have been requested. Knight v. Railroad, 110 N. C., 58.

—Page 393. Conflicting instructions.-When the Court below in instructing the jury, states a correct proposition upon a certain point of law, and then upon the same point in another part of the charge, states a proposition which is incorrect or defective, a new trial will be granted, as the jury are not supposed to know when the Judge states the law correctly. Tillett v. Railroad Company, 115 N. Č., 663; Taylor v. Taylor, 112 N. C., 27.

-Page 393. Recapitulation of contention of counsel. It is not error in the Court to recapitulate fairly such contentions of counsel as illustrated the bearing of the evidence upon the issues. Clark v. Railroad. 109 N. C., 431.