
    COURT OF APPEALS.
    Nathan Cobb agt. George B. Cornish.
    There are but two cases in which the proceedings upon a trial at the circuit can be reviewed at the general term, in the first instance, before judgment. One is, where the unsuccessful party desires to move for a new trial vqionexceptions taken by him upon the trial, (if the judge deems them of sufficient importance to be sent to the general term.) If the exceptions are sustained, the general term is authorized to grant a new trial; if not sustained, to render final judgment.
    The other case is, where upon the trial, an uncontroverted state of facts is presented involving only questions of law. In that case, the judge may, if he think fit, direct a verdict subject to the opinion of the court at general term. It devolves on the party in whose favor the verdict is rendered, to prepare the case upon which the general term is to render judgment. In such a case, the question for the general term is, not whether a new trial shall be granted, but
    ' which party upon a conceded state of facts, shall have final judgment.
    Where the plaintiff on the trial took an exception to the ruling of the court upon a question of evidence, and the defendant also took exceptions to the refusal of the court to instruct the jury as to the value of the property in dispute; the jury having rendered a verdict for the plaintiff, the court ordered that the motion for judgment, upon a case to be made, be heard at a general term in the first instance, and the general term rendered final judgment against the plaintiff:
    
      Held, that the case was not in a situation to authorize the judge to send it to the general term for final judgment. The plaintiff was not unsuccessful The verdict was in his favor. He had no occasion to avail himself of his exception as a ground for a new trial.
    The verdict being for the plaintiff, the case could only go to the general term upon the exception of the defendant, and all that the general term could regularly do, was to render judgment upon the verdict, if the exception was not well taken; or if well taken, to grant a new trial.
    The cause was not in a condition to authorize the .court to direct a verdict subject to the opinion of the court at a general term, for the reason that exceptions had been taken, upon which the parties had a right to be heard upon a motion for a new trial
    
      March Term, 1858.
   By the court—Harris, Judge

Great irregularities have occurred in the proceedings through which this cause has reached this court. The action was tried .at the circuit, and by a jury. Upon the trial, evidence was offered by the plaintiff, which being objected to by the counsel for the defendant, was excluded; an exception was taken to the decision. The testimony being closed, the court directed the jury to assess the value of the property in question. The defendant’s counsel requested the court to give certain instructions to the jury in relation to the effect of a part of the evidence upon the question of value. This the court refused to do, and the counsel for the defendant excepted. The jury havingrendered a verdict for the plaintiff, the court ordered that the motionfor judgment, upon a case to be made, be heard at a general term in the first instance, and that judgment be suspended in the meantime.

This order was clearly irregular. The judge at the circuit had no authority to make such an order. There are but two cases in which the proceedings upon a trial at the circuit can be reviewed at the general term in the first instance, before judgment. One is, where the unsuccessful party desires to move for a new trial upon exceptions taken by him upon the trial. In that case, the judge trying the cause may, if he deem the questions presented by the exceptions of sufficient importance, direct that the motion for a new trial upon the exceptions be heard in the first instance at a general term, and that judgment be suspended until such hearing. If the exceptions are sustained, the general term is authorized to grant a new trial, if not sustained, to render final judgment.

The other case is, where upon the trial, an uncontroverted state of facts is presented involving only questions of law. In that case, the judge may, if he think fit, direct a verdict subject to the opinion of the court at the general term. In form, (the verdict is rendered in favor of one party or the other, and it is quite immaterial which. The only effect of rendering the verdict in favor of a party is, that it devolves on him to prepare the case upon which the general term is to render judgment.

The case before us was not in a situation to authorize the judge at the circuit, to send it to the general term for final judgment. The plaintiff had taken an exception to the ruling of the court upon a question of evidence. If unsuccessful upon the trial, he had a right to have that question considered, upon an application for a new trial. But he was not unsuccessful. The verdict was in his favor. He had, therefore, no occasion to avail himself of his exception as a ground for a new trial. And yet the general term has rendered final judgment against him. This it was not authorized to do. The verdict being for the plaintiff, the case could only go to the general term, upon the exception of the defendant, and all that the general term could regularly do, was to render judgment upon the verdict if the exception was not well taken; or if well taken, taken, to grant a new trial.

The case was not in a predicament to authorize the court to direct a verdict subject to the opinion of the court at a general term, for the reason that exceptions had been taken upon which the parties had a right to be heard upon a motion for a new trial; and upon a verdict subject to the opinion of the court, the question is never whether a new trial shaE be granted, but which party, upon a conceded state of facts, shall have final judgment.

But if these irregularities are to be disregarded,* I have no difficulty in affirming the judgment. The defendant is chargeable with no breach of obligation or duty. He was the master of a vessel bound from New-York to San Francisco. The plaintiff, upon an adventure, shipped on board his vessel three cases of boring machines. They were consigned to Charles E. Hunter. Upon arriving at San Francisco, the defendant received a letter from the plaintiff, informing him that one Dali, a carpenter, had taken one of the machines over the Isthmus to exhibit, and directing him, if Dali could do anything with the machines by way of sale, to deliver them to him, he paying the freight thereof, and if Dali should be unable to seE them, to keep the cases' on board the vessel. Neither Hunter, the consignee, nor Dali, to whom the plaintiff had directed the defendant to deliver the machines, would receive them. Under these circumstances, the defendant had nothing to do T^it’fo obey the plaintiff’s instructions, and keep them on hprd jhis vessel. This he did. The vessel remained at San Francisco several months, and receiving no further directions in relation to the machines, they were brought back to Hew-York upon the return of the vessel. The defendant might, perhaps, have been justified, even without instructions, in storing the machines at San Francisco when he left, but. he certainly was under no legal obligation to do so. Upon the merits, there* fore, the judgment should be affirmed.

But a majority of the court are of opinion that the irregularities, before noticed, are too serious to be overlooked. They, in fact, amount to a mistrial. Upon this ground, the judgment must be reversed and a new trial granted, with costs to abide the event.  