¶1We 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.
¶2He 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.
¶3Motion granted.
¶4 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.