Russell v. . Hill , 122 N.C. 772 ( 1898 )

When there is a conflict between the "case on appeal" stated by the judge and the record proper, the latter governs. Cases cited in Clark's Code (2 Ed.), p. 579. But here the conflict is in the record itself. Upon the issues sent up in the record the second issue is answered "No," while in the judgment it is recited that it had been answered "Yes." If this were a mere clerical error in copying it could be cured by a certiorari or by amendment here, S. v. Beal, 119 N.C. 809; S.v. Preston, 104 N.C. 733; but counsel concur that the conflict is in the original record below. Such being the case, the only remedy is by a new trial.

New trial.