#### R. H. HARDY and W. D. MEWBORN v. N. C. MITCHELL.

(Filed 26 February, 1913.)

1. Negotiable Instruments — Indorsers—Due Course — Instructions.

IVbere the defense to an action on a negotiable note involved the question as to whether it was indorsed to the plaintiff in due course, it is error for the trial judge to omit from his charge as to what constituted due course, that the indorsee received it in good faith, for value, and that “at the time it was negotiated he had n0‘ notice of any infirmity in the instrument or any defect in the title of the person negotiating it”; but in this case the error was rendered harmless when construed with the other parts of the charge, wherein the burden was placed on the plaintiff to show that he had no knowledge of the infirmity of the note or of any defect in the title of the person negotiating it.

2. Instructions — Statements of Fact — Objections and Exceptions— Appeal and Error.

In an action upon a note, a charge to the jury that the amount paid for the note was not controverted, was merely a statement as to a fact, and not a conclusion of law, and if an erroneous statement, it was the duty of objecting counsel to have called it to the attention of the judge in time for him to correct it and clear up the misunderstanding, and comes too late when excepted to after the trial.

3. Same — Presumptions.

Where it appears that the judge made a certain statement as to an admission of the parties in his charge to the jury, it will be assumed on appeal to be a correct statement, nothing else appearing; and the record is silent thereon.

Appeal from Justice, Jat February Term, 1912, of Mitchell.

Civil action brought to recover upon a note.

These issues were submitted to the jury:

First. Was the note given for a valuable consideration? Answer: No.

Second. Was the note sued on procured by fraud and under circumstances against public policy, as set out in the answer? Answer: Yes.

Third. Was the note sued on indorsed to plaintiffs in due course and before maturity? Answer: Yes.

*352From the judgment rendered, the defendant appealed.

L. V. Morrill and L. I. Moore for plaintiffs.

J. P. Frizzelle, G. V. Gowper, and L. B. Varser for defendants.

BROWN, J.’

This case was before this Court at a former term and is reported in 156 N. C., 76, which is referred to for a statement of the facts.

His Honor instructed the jury upon the third issue as follows :

> “Was the note sued on indorsed to the plaintiffs in due course and before maturity? The burden of that issue is upon the plaintiffs to satisfy you by the weight of the evidence that they received the note in due course.

> “In the case of a negotiable instrument, the law applies to it when you say ‘due course’ the following: That the holder in due course is the holder who has accepted the instrument under the following conditions: That the instrument is complete and -regular upon its face, and that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such is the fact.”

The defendant excepted to so much of said charge as defines the meaning of “due course” as used in our statute, Revisal, chap. 54, sec. 2201, commonly known as the negotiable instrument statute.

We think the exception is not well taken. It is true that his Honor omitted two essential parts of the definition as laid down in this case, 156 N. C., 76, and Bank v. Fountain, 148 N. C., 590, viz., “in good faith and for value,” “and at the time it was négotiated to him he had no notice of any infirmity in the instrument or any defect in the title of the person who negotiated it.”

We think the omission was fully supplied in subsequent parts of the charge wherein the jury were instructed'that the burden was on the plaintiff to show that he had no knowledge of the infirmity in the note and no notice of any defect in the title of the person negotiating it.

*353Defendant excepts because bis Honor instructed tbe jury tbat “there is no controversy upon tbe question tbat Mewborn paid $225 for tbe note of $250 and tbat it is admitted tbat $225 was paid for tbe note.”

It is true, we find no sucb admission in tbe record, but it may bave been made orally during tbe trial and not appear of record, but tbe instruction was a statement of a fact made to tbe jury by tbe court. It was not a conclusion of law. If it was an inadvertence upon tbe part of tbe judge, it was tbe duty of counsel for defendant at tbe conclusion of tbe charge, or at some appropriate moment before tbe case was finally given to tbe jury, to call tbe judge’s attention to it, so tbat tbe misunderstanding could be cleared up and tbe error corrected at tbe time. Counsel will not be permitted to sit still and acquiesce in a statement by tbe court tbat a fact is admitted when it is. not. Counsel should give tbe court opportunity to correct tbe error, if in fact one was made.

It is different in regard to matters of law embodied in tbe charge. To those instructions counsel may note exception after tbe trial is over, and are not required to except or call tbe court’s attention to them immediately at conclusion of tbe charge. “We must assume,” says Mr. Justice Allen, “tbat tbe judge correctly stated tbe admissions of tbe parties, and if by inadvertence be did not, it ought to bave been called to bis attention at tbe time, and cannot be made tbe subject of exception for tbe first time in tbe case on appeal.” LaRoque v. Kennedy, 156 N. C., 360.

We think it needless to consider tbe other exceptions. We bave examined them and found them to be without merit.

Affirmed.