#### PHILLIPS v. WILMINGTON AND WELDON RAILROAD CO.

(Filed June 10, 1902.)

1. INSTRUCTIONS — Judge—The Qode, Sec. 4H-

A request that the trial judge “charge the jury in writing, and as follows” (here follow the prayers), is a request solely to deliver those instructions to the jury, and is not a request . to put the entire charge in writing.

2. INSTRUCTIONS — Exceptions and Objections — Assignment of

Error — The Code, Bee. 414-

Exception to failure to give instructions in writing must he made before verdict.

3. INSTRUCTIONS — Judge—The Code, Sec. 414 — Evidence.

A request to give instructions in writing, under The Code, Sec. 414, does not require that the recapitulation of evidence he in writing.

ActioN by J. L. Phillips against the Wilmington and Weldon Railroad Company, heard by Judge George LI. Brown and a jury, at October Term, 1901, of the Superior Court of Beaufort County. From a judgment for the plaintiff, the defendant appealed.

Okas. F. Warren,, and Rodman & Rodman, for the plaintiff.

Small & McLean, for the defendant.

Clark, J.

At the close of the evidence the defendants handed up to the Court the following paper: “Defendant’s prayers. The defendant requests the Court to charge the jury in writing, and as follows: First” (here follows ten prayers, duly numbered). The exception 3 is that the Court did not put the whole charge in writing. This is the sole point presented by the appeal, for exception 1 is abandoned; exception 2 is to allowing the witness to explain what he *583meant by a remark wbicb be testified be bad made, and is without merit, and exception 4 is to refusal of a new trial for above alleged errors.

We tbink bis Honor correctly beld tbat tbe language of defendant’s request “to charge tbei jury in writing, and as follows,” and entitled “Defendant’s prayers,” was a request under The Code, Sec. 415, solely to> deliver those instructions ro tbe jury, and was not a request to put tbe entire charge in uniting, under tbe provisions of Tbe Code, Sec. 414. Tbe addition of tbe words, “and as follows,” restricts the request to tbe written matter wbicb followed. Tbe defendant did not, at tbe conclusion of tbe charge, by exception or otherwise, indicate to tbe Judge tbat be expected tbe whole charge to be in writing, and if tbe defendant’s counsel himself pat such construction on bis prayers, it would have been but just to tbe Judge and to tbe opposite party to have made that known while tbe matter could have been corrected, and not have waited till after verdict. By not excepting in apt time, objection was waived.

Tbe charge seems to have been quite full and almost all in writing, a large part being tbe written requests to' charge; but if there bad been a request to put tbe charge in writing, it would have been tbe duty of tbe Judge to put bis whole charge as to tbe law- — -but not tbe recapitulation of tbe evidence — in writing. Bank v. Sumner, 119 N. C., 591, and other cases collected in Clark’s Code (3d Ed.), page 538.

No Error.