The appellee returned a countercase as a statement of his exceptions to appellant's case. This is often convenient, and sometimes it is the only mode in which the appellee can intelligently present his objections. The practice has always been recognized as a substantial compliance with the statute. State v. Gooch, 94 N.C. 982; Horne v. Smith, 105 N.C. 322;McDaniel v. Scurlock, at this term. The court adopted the countercase. We must, therefore, take it as the "case on appeal."
The defendant testified that he signed the note as surety, and that fact was known to the payee at the time. He then called the payee (the note having been transferred since maturity to the plaintiff), who testified that he did not know of the suretyship till after this (190) action was brought. The court instructed the jury, if they believed the evidence, to find the issue whether the suretyship of defendant was "known to the payee at the time of signing the note" in the affirmative. There being a conflict of evidence, this was error, for which there must be a
New trial. *Page 130