The opinion of the court was delivered by

The defendant’s motion for judgment ought not to have been granted. It raised for the first time, after verdict, a mixed question of law and fact, for which no foundation was laid by the verdict or by any motion made at the trial. The proposition of law upon which the motion rested was that the plaintiff could not have judgment against Arlington if Beckman was a resident of New Jersey, and the proposition of fact stated in the motion was that it did not appear that Beckman was a non-resident. There may be differences of opinion as to whether the fact of Beckman’s residence in New Jersey was a matter of defence, or whether proof of his non-residence was'part of the plaintiff’s case, but there can be no difference of opinion that neither this proposition of law nor the question of fact on which it rests was stirred at the trial. True it is that each of the parties *189gave, in another connection, testimony that was wholly consistent with. Beckman’s non-residence and that militated strongly, although not conclusively, against liis having a residence in this state.

Brom this testimony it appeared that Beckman was a traveling showman with a sort of wild west show, which ho was exhibiting in the far west or in the southern states, and that he had the sort of ambulatory residence incident to that line of business. That he had any other sort of residence in New Jersey was not suggested, but on the contrary, was to some extent negatived by the fact that he stored a trunk and locked chest with the plaintiff, a thing he would hardly have done if lie had here a residence of his own. These and other facts that came out quite incidentally were, nevertheless, some evidence on the question of Beckman’s non-residence in this state; the reason for the lack of explicitness evidently being that neither party regarded Beckman to he a resident of this state or regarded the fact of Ms non-residence as having any legal significance in the case. Snell being the attitude of the parties at the trial and the state of the evidence, the injurious effect of withholding, until after the verdict, a motion based entirely upon the fact of Beck-man’s residence is at once apparent.

If such a motion had been made during the trial it might have resulted in the taking of further testimony or in the submission of the question of Beckman’s residence to the jury upon such testimony as had found its way into the case, and thus either a foundation would have been laid for the legal proposition that is now relied upon, or its inapplicability have been made manifest. The course pursued by the defendant in making such motion for the first time after verdict,"whether by design or by an afterthought, deprived the plaintiff not only of the opportunity to appeal to the discretion of the trial court as to further testimony, but also denied him his strict' right to request that the question of fact as to Beckman’s residence be submitted to the jury and to appeal from the decision of the trial court if his request was denied.

*190Aii irregular procedure that resulted in these substantial injuries to the plaintiff ought not, in the exercise of a sound judicial judgment, to have been sanctioned.

The defendant’s motion for judgment should have.been denied and judgment for the plaintiff entered upon the verdict of the jury; to which end the judgment for respondent is reversed and the record remitted to the Circuit Court.

Judgment final may be given for the appellant for $825.20, with interest and costs, which reversal also carries the costs of this appeal.

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, JJ. 13.