Hinton v. . Greenleaf , 115 N.C. 5 ( 1894 )

There is, in contemplation of law, no "case settled on appeal." And we might dismiss the appeal for want of a case. Mitchell v. Tedder,107 N.C. 358. We prefer, however, that the matter should be disposed of upon its merits, and will direct that it be remanded, in order that the case on appeal may be redrafted, according to the order of his Honor below. This is necessary, because the principal point before us was an objection to his Honor's charge upon the presumption of law and burden of proof. In the statement of the case presented by the appellant the exception is stated to the charge of his Honor, setting out the language objected to. In the exceptions of appellee the whole of his Honor's charge is set out. This differs from that portion objected to by appellant. We are uncertain whether his Honor intended that the charge, as stated by appellant, was to be amended by the addition of that stated in appellee's exception as the judge's charge, or whether the amendment was to be inserted in place of that set out in the appellant's statement. What the presiding judge did instruct the jury upon the point in question will, of course, have an important bearing upon the determination of the question involved in the appeal.

Remanded.

Cited: McDaniel v. Scurlock, 115 N.C. 297; S. v. King, 119 N.C. 910;Stevens v. Smathers, 123 N.C. 499; Gaither v. Carpenter, 143 N.C. 241.

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