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Root v. King

8 Cow. 125 Court N.Y. Sup. Ct. English

Contents

Majority

p. 125
Root against King and Verplank.[1]

Headnote

At the trial, the defendants took'various -exceptions ;to decisions and charge-of the circuitjudge: and after "ver- ° jo
diet against them, applied to him for an order allowing time to make a case, with liberty to turn it into a bill of exceptions or special verdict. The judge refused this order ; but made an order giving time to make a case or bill of exceptions, on the ground that, according to his impression, the Supreme Court had disapproved of making cases to be changed into bills of exceptions or verdicts. A case was made, on which a new trial was denied. (See 7 Cowen 613, S. 0.) And now
Where apartytakesexceptions at the trial, he may, as a matter of right, make a case subject to be turned into a bill of exceptions. If a party request of a circuit judge on the trial leave'.to make a case, subject to be- turned into a bill of exceptions orupeéial verdict, it is'the duty .of .the judgetoallow.this privilege.
*J. Blunt moved for leave to turn the case into a bill of exceptions.
He cited 3 Cowen, 58; 4 id. 43.
J. Sudani, contra,
cited 5 Cowen, 415; 1 John. Rep. 192 , 195.

We think the defendants had their right to a case subject to be turned into a bill of exceptions. True, where a bill and case are both made, we will compel the party to elect which he will argue. We will not hear both árgued; but this does not deprive the party of a right to his case subject to be turned into a bill.

He may elect to argue his case; and afterwards have it placed in the form of a bill of exceptions or special verdict, provided he requested this liberty at the trial. Such is the proper course; and we think it is the duty of circuit judges to allow it. The privilege cannot be denied when it is requested at the trial. The motion must be granted.[1]

Motion granted.

[1] [1] See Rules of N. Y. Supm. Ct., of 1847, No. 33; 5 Wendell, 103; 7 Wend. 483 ; N. Y. Code, sec. 268; Rules of N. Y. Supm. Ct., of 1849, No. 15; Ib. of 1852, No. 16; Ib. of 1847, No. 34; Ib. of 1849, No. 16; Ib. of 1852, No. 16; 1 Caine’s Rep. 23; Code, secs. 264, 265, 281; Rule 19 of 1849; 8 Cowen’s Rep. 406; 8 Cowen, 746; 1 Howard’s Pr. Rep. 226.