#### Gabriel L. Lewis and Horatio G. Lewis *versus*Walter Stevenson.

A case made can never be turned into a special verdict, or bill of exceptions, unless the right to do so, .is reserved at the trial.

Where a verdict has been taken, subject to the opinion of the court upon a case, with the assent of both parties, and the court, in deciding on the case, give a judgment founded on *facts,*rather than questions of law, a new trial will not be granted upon the ground, that *one*of the parties *supposed*that the case would be decided upon questions of law, and did not, therefore, make his proof as strong before the jury as he might have done.

At the trial of this cause, *[ante*p. 63.] a verdict was taken .for the plaintiffs, subject to the opinion of the court, upon a case to be made, and no right was reserved by either party to turn the case into a bill of exceptions, or a special verdict.

*249The judgment of the court, (which was in favor of the plaintiffs,) was founded principally upon the *fact,*that the defendant had not, in receiving the goods of the mortgagor on pledge, acted with a sufficient degree of caution, and had not made due inquiry as to the right of the party in possession, to pledge property which had been previously conveyed to the plaintiffs.

*Mr. Barnes*and *Mr. Anthon,*for the defendant,

now moved for a new trial, upon the ground of surprise, and if that motion should be denied, then for leave to turn the case into a special verdict, or bill of exceptions. They read an affidavit of the defendant, setting forth, that at the trial neither himself, nor his counsel, supposed that any question of fact, as to his vigilance, in receiving the property, would be raised, and that he could have produced testimony upon that point, which would have satisfied the jury, if he had supposed that such a question was to arise in any stage of the cause. That after the evidence had been closed, it was assumed by the Judge, who tried the cause, and by the counsel for both parties, that the result would depend entirely on questions of law; and that, therefore, the defendant’s counsel were willing that a verdict should be taken for the plaintiffs, subject to the opinion of the court, upon a case to be made, not supposing that the judgment of the court, would rest upon a question of fact. The affidavit then stated, that the defendant was taken entirely by surprise, and that, upon a new trial, he could make the question of caution, clear in his favor.

*Mr. W. H. Harrison*and *Mr. O. Hoffman, contra,*for the plaintiffs,

read an affidavit of Mr. Harrison, stating that at the trial, after the evidence had been closed, the Chief Justice asked the counsel for both parties, if there was any question of fact *to*be submitted to the jury: that the *defendants*counsel replied, that they did not know that there was, and that they were willing that a verdict should be taken for the plaintiffs, subject to the opinion of the court upon a case. That some conversation was held between the counsel of both parties, as to the question of fraud, and that the Chief Justice then informed them, that if a verdict were taken, subject to the opinion of the court upon a case, that the court *250would then be judges of *the facts,*as well as the law. The affidavit further stated, that the deponent was aware, that if either party should be desirous of removing the cause to a higher tribunal, by writ of error, it was necessary to reserve that right *at the trial.*That the plaintiffs’ counsel being willing to abide by the judgment of this court, did not reserve any such right to themselves, and supposed that the judgment here would be final.

Upon these affidavits, the counsel for the defendant contended, I. that they had been taken by surprisethat they did not suppose, that the. judgment of the court could turn upon any collateral question of fact, but would be founded, exclusively, upon the questions of law presented by the case. For this reason they asked for a new trial.

II. If the court should deem the first point untenable, then they asked for leave to turn the case into a bill of exceptions, or special verdict. They contended, that this was a matter within the discretion of the court, and that this privilege, under the circumstances of the case, ought not to be denied to the defendant. He was willing to abide by the decisionof this court, so long as he supposed that it would depend on questions of law, but as it had turned upon a question of fact, he claimed the right of carrying his whole cause to a higher tribunal. If there, was neglect, or fault in not reserving the right at the trial, it was the neglect of counsel and not of the party ; and that the court ought not to visit upon the party the consequences of such a neglect.

The counsel for the plaintiffs replied to both points, and contended, as to the last, that the court had no discretion in the matter; that they could not *now*allow the case to be converted into a bill of exceptions or special verdict, without destroying the practice upon which the plaintiffs had relied. That the plaintiffs being aware of the consequence of takinga verdict, subject to the Opinion of the court had concluded themselves at the trial. If the judgment had been adverse to them, they would have been without the means of redress. They submitted the whole question of law and fact to the court, and had now a right to claim all the benefit of a final judgment *251in their favor. As to evidence, if the defendant had produced more evidence upon the question of negligence, the plaintiffs would have done the same, and the court could not say upon which side the preponderance would be. The)' insisted, therefore, that the motions ought to be denied.

Per Curiam.

As to the first point, the defendant has no cause of complaint. He might have submitted all questions of fact to the jury, at the trial, if he had been disposed to do so, and there was no attempt to influence him to the contrary. By putting the whole question to the court, he took no higher risk than the plaintiffs did, and can have no greater rights. If the opinion of the court had been adverse to the plaintiffs, upon the question of fraud, whether in fact or inlaw, or upon any of the other questions presented by the case, their judgment would have been final. The plaintiffs could not have moved again in the matter, but would have been concluded by their own acts. The defendant’s rights in these particulars are the same with the plaintiffs, and he has concluded himself, by voluntarily putting all questions of fact, as well as law, to the court. There can be no new trial upon this ground, without manifest injustice to the plaintiffs, and the defendant cannot be permitted now to receive a favor, which the plaintiffs could not have claimed if the judgment had been for the defendant.

Secondly. A case can never be turned into a bill of exceptions, or special verdict, unless the right to do so, is reserved at the trial. In practice, we do not require the party to *take formal*exceptions at the trial; it will be sufficient if he make his objections informally. But if he wishes to bring a writ of error, it must appear upon the face of the case, that he has reserved the right to do so, either in the shape of a special verdict; or a bill of exceptions. The case of *Woolsey v. Camp,*(3 *Cow. R.*358,) shows such to be the practice of the Supreme Court, and it is expedient that the same course should be adopted here.

*Motion denied on both points.*

[W. H. Harrison, *Att’y for the plffs.*E. Barnes, *Att'y for the def’t.]*