
    Root against King and Verplank.
    
    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.
    
      
      
         7 Cowen, 613, S. C.
    
   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.

Motion granted. 
      
       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.
     