As the case now stands, if we overrule the exceptions, we can only affirm the judgment on the verdict; otherwise we should decide a mere abstract quéstion, leaving at least one of the issues in the cause, namely, whether excessive force was used, wholly undetermined and to be settled by another trial.- Parties should bear in mind that, under our present system, a judgment of the court of common pleas is a final judgment, subject only to be set aside, on exceptions or appeal, for erroneous rulings in matter of law. Rev. Sts. c. 82, §§ 12-15. St. 1840, c. 87, §§ 4, 5.
This ruling is said in the exceptions to have been “ pro forma.” But the parties were entitled to the judge’s opinion, to his best judgment, on every question of law arising in the course of the trial. The case stands very differently from a case in this court, which a judge may, in his discretion, or on the motion of either party, reserve for the opinion of the whole court, and break off the trial for that purpose. Rev. Sts. c. 81, §§ 26, 27. The ruling of the judge of the court of common pleas, as stated at the close of the bill of exceptions, was entirely irregular, and as the plaintiff is unwilling to let his whole case depend upon the main question of right, the entry must be
Exceptions vacated; case remitted to the court of common pleas, with directions to set aside the verdict, and grant a neiv trial upon the whole matter in issue.
Note. By St. 1859, c. 196, § 32, the superior court is authorized, after verdict, to report a case for determination by this court.