Root v. King , 8 Cow. 125 ( 1828 )

Curia.

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] 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.