Muir et al. v. Berkshire et al.

it does not. Their right arises out of the fact that James Muir, their ancestor, by his purchase of the land from Holman, became the equitable assignee of the mortgage made by James Radley to Holman. Berkshire does not hold the land from Muir, nor from Mullen, nor by the same chain of title. He purchased from Radley's heirs, after the ouster of Mullen and the recovery against the appellants on the covenants of James Muir. Berkshire holds the land precisely as he would have held it, if there had been no sale by Holman and no controversy between the appellants and Mullen. The sale by Holman to Muir being void, and having been declared void by a judicial proceeding before Berkshire bought the land, he took it subject to the mortgage, and his vendee, Hunter, can take no better title than Berkshire, of all of which, as the complaint alleges, both Berkshire and Hunter had notice.

The petition is overruled.

DOWNEY, J.-So far as the foregoing opinions hold that the heirs of Muir can be subrogated to the rights of Holman under the mortgage, without showing that they were legally liable to Mullen for the damages sustained by him, and that they had paid the same to Mullen, I cannot concur therein. The appellees are not bound by the judgment of Mullen against the heirs of Muir. They were not parties to that action. Maple v. Beach, 43 Ind. 51. It is not enough to allege that Mullen recovered a judgment against them, but the facts rendering them liable should be averred. McShirley v. Birt, 44 Ind. 382. If the conveyance to Muir vested in him the equitable right to claim under the mortgage, then I do not see why the conveyance by Muir to Mullen did not carry that right on to him. How, then, could the right

Only, as I think, by show

become vested in Muir's heirs? ing that they were legally liable to pay the damages sustained by Mullen, and that they had paid the same.

These

facts the complaint in question does not show, and therefore, in my judgment, it is insufficient.

Watts v. Coxen,

WATTS v. COXEN.

STRIKING OUT Pleading.—Bill of Exceptions.—A pleading which has been struck out by the court cannot again be made a part of the record, except by being set out in a bill of exceptions.

SAME.-There is no error in striking out a paragraph of an answer in which there is contained no matter which is not admissible under remaining paragraphs of such answer.

NEW TRIAL.—Request to Instruct Jury in Writing.—It is a good cause for a new trial, that the court, having been requested to instruct the jury in writing, gave a portion of the instructions orally.

From the Dearborn Circuit Court.

F. Adkinson and G. M. Roberts, for appellant.

DOWNEY, J.-This action was brought by the appellee against the appellant. The complaint is in two paragraphs. In the first, it is alleged that, in July, 1869, the defendant seduced and debauched the plaintiff, whereby she became sick and pregnant, and so continued until December, 1871, when she was delivered of a child (there is probably a mistake in these dates), by means of all which she was unable to perform any labor, whatever, for a long time, and incurred great expense; and that, to effect such seduction, etc., the defendant undertook and faithfully promised to marry the plaintiff, which he has refused, and still refuses to do, but has married another woman, whereby she has been damaged five thousand dollars, for which she prays judgment.

The second paragraph alleges mutual promises of marriage between the parties, in 1869, and that the defendant, in November, 1870, wrongfully married another woman, etc. The defendant answered in six paragraphs, the third and sixth of which were struck out on motion of the plaintiff. The first was a general denial. The second was payment, and was pleaded to the first paragraph of the complaint. The fourth alleges mutual releases, each in consideration of the other, and is pleaded to the second paragraph of the complaint. The fifth is to the second paragraph of the complaint, and alleges that, after the making of said promise in

Watts v. Coxen.

said paragraph set forth, the defendant learned that the plaintiff was of bad repute for chastity, and had been guilty of illicit sexual intercourse with divers men and boys, and particularly with one Thomas Jones, of all of which defendant was ignorant at the time of the making of said promise; and plaintiff, in order to induce the defendant to promise to marry her, falsely represented to him that she was a woman of good repute for chastity, and of correct and virtuous deportment, whereby she deceived the defendant, and fraudulently procured him to make the promise in said paragraph set forth, etc.

Reply in denial of the second and fifth paragraphs of the

answer.

The trial was by jury, and there was a verdict for the plaintiff. A motion for a new trial was overruled, and there was final judgment on the verdict.

The errors assigned are:

1. The striking out of the third and sixth paragraphs of the answer.

2. Refusing a new trial.

We think the first alleged error cannot avail the appellant. The paragraphs struck out are not again made part of the record by proper bill of exceptions. There is a bill of exceptions in the transcript, which refers to the paragraphs struck out, but they are not set out as part of the bill, and are not, therefore, part of the record, although copied by the clerk, with the other paragraphs, in the transcript. We have, however, examined the paragraphs, and are of the opinion that they contain no matter not admissible under the remaining paragraphs. There was, therefore, no error in striking them out.

The next question is on the ruling of the court in refusing to grant a new trial.

There are several grounds on which it is contended the new trial should have been granted. We need not examine all of them. One ground was, that the court, after having been requested to instruct the jury in writing, gave a portion of

Covey, Administrator, v. Campbell.

the instructions orally. For this action of the court the judgment must be reversed. The statute imperatively requires that the instructions shall be in writing when so required. 2 G. & H. 198, sec. 324, fifth division. There are numerous decisions in accordance with this ruling.

The other questions made in the motion for a new trial may not present themselves on another trial of the cause. The judgment is reversed, with costs; and the cause is remanded, with instructions to grant a new trial.

COVEY, ADMINISTRATOR, v. CAMPBELL.

DEPOSITION.-Suppression of Question for Irrelevancy.—A question in a deposition, which may in the course of the trial become relevant, should not, before the trial, be suppressed for alleged irrelevancy. EVIDENCE. Opinion of Witness as to Value of Service of Attorney.—On the trial of an action to recover the value of services rendered by the plaintiff as an attorney in defending another action, a question is not irrelevant which seeks the opinion of a witness as to the value of such services, such opinion being founded upon the character of the case set out in the complaint filed in said other action, or upon a hypothetical case put to the witness corresponding with the real case.

From the Hendricks Circuit Court.

C. C. Nave, for appellant.

L. M. Campbell, for appellee.

WORDEN, J.-This was a claim filed by the appellee against the estate, for services as an attorney at law, rendered by the appellee to the deceased in his lifetime, in an action in the Boone Circuit Court, wherein one Mary Hendricks was plaintiff, and the deceased was defendant. Answer, issue, trial by jury, verdict and judgment for the plaintiff.

No question is made in the case except such as arise upon the motion for a new trial.

The defendant moved for a new trial, and assigned the following causes:

Covey, Administrator, v. Campbell.

"1. That the verdict of the jury is not sustained by sufficient evidence.

"2. That the verdict of the jury is contrary to law.

"3. That the jury erred in the assessment of the amount of the recovery, the same being too large.

"4. That the court erred in refusing to quash the sixth question and answer in the deposition of C. C. Galvin, setting out the question and answer at large.

"5. For error of the court in overruling the objection of the defendant to the introduction in evidence of the question and answer above mentioned in the fourth cause.

"6. For error of the court in permitting the following question to be put to, and answered by, C. C. Wesner, Joshua G. Adams and Cyrus C. Hines, over the objection of the defendant, on the ground of 'irrelevancy and inadmissibility,' viz.: 'From the character of the case set out in the complaint filed in the Boone Circuit Court, of Mary Hendricks against Jesse Hendricks, for a divorce, what would be a reasonable fee for defending said suit?' Answer: 'It would be worth from five hundred to a thousand dollars, taking into consideration the circumstances growing out of the charges and character of the case.""

With regard to the first three reasons for a new trial, we may observe that it seems to us that the verdict was in accordance with law, sufficiently sustained by the evidence, and that the amount of the recovery, three hundred dollars, was reasonable and not excessive.

Before the trial, the defendant moved to suppress the sixth question and answer in the deposition of C. C. Galvin, "because of its irrelevancy," but the motion was overruled. The question sought the opinion of the witness as to the value of the plaintiff's services in the case in the Boone Circuit Court, the assumed nature and character of the case being put hypothetically. We are of opinion, on comparing the case thus put hypothetically to the witness with the case as shown by the complaint in the Boone Circuit Court,