#### D. S. RUSSELL v. HILL & NELSON.

(Decided May 3rd, 1898.)

Appeal — Record on Appeal — Cortflict in Record.

While a mere clerical error in copying the record on appeal could he corrected in this Court by amendment or certiorari, an acknowledged conflict existing in the record below between the recitals in the judgment and the responses to the issues can only be corrected by a new trial.

Oivtl action for conversion of personal property, tried before Robinson, J., and a Jury, at August Special Term, 1897, of Swain Superior Court. From a judgment for the plaintiff the defendants appealed. The *773record on appeal, as well as that below, shows that the jury answered the second issue “No,” while the judgment recited that the second issue was answered “Yes.”

Mr. Q. S. Ferguson, for plaintiff.

Mr. JR. L. Leathenvood, for defendants, (appellants.)

Per Curiam:

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 (2nd 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 he cured by a certiorari or by amendment here, State v. Beal, 119 N. C., 809; State 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.