Bickham v. Smith

The opinion of the court was delivered, by Thompson, C. J. The jury found a verdict in favor of the plaintiff and undertook to direct how it should be paid. This was surplusage only and did not vitiate the verdict. The court very properly disregarded it and entered judgment on the verdict: 1 Watts 259 ; 8 S. & R. 441; 4 B. Munroe 7. There was nothing in the testimony to sustain the apportionment attempted. The proof applied to services in favor of the defend [47] ants jointly. It is true, in rendering services in that matter, the case of lunacy against Bickham, was often under consideration, for the reason that by the finding of the inquest the necessity for the bill in equity arose to get back the trust property, in which Mr. Smith was employed as counsel. He earned a fee in that, and this the jury fixed by their verdict, but said that one of the defendants should pay a. certain portion of it individually, because they supposed he was benefited individually. I presume they did this to protect the trust from expense. But they could not fix the trust estate for any part of it. That would be for the cestui que trusts to see to on a settlement of the trust account. The whole, or only a part, might then be allowed to the trustees, dependent on what a court might think of the necessity for the litigation. The question in this case is not what it was when here before. The case was well tried the last time, and the action of the jury must not be allowed to defeat the plaintiff by an excess in their finding. There was a general objection to the deposition of Mr. Al-ricks. What the grounds of this general objection were, does not appear; and as there was no specific objection made, we see no error in its admission. Tt was evidence for some purposes most certainly, and could not therefore be excluded on a general objection. We need not say anything about the other assignments of error for reasons appearing on their face. Judgment affirmed.