ceived and considered by the jury, it is his duty to do so. (1 Spelling New Tr. & App. Pro. 271; Byrne v. Byrne, 113 Cal. 294, 45 Pac. 536.) This is a wholesome rule, but the case under consideration does not fall within it. When the deed was offered in evidence the defendant did not ask that it be limited to the specific purpose for which it was admissible, but objected to the instrument being admitted at all. If the court had been requested to do so, it no doubt would, in its instructions to the jury, have limited the consideration of the deed to the specific purpose for which it was admissible. In State v. Thompson, 31 Utah 228, 87 Pac. 709, Mr. Justice Straup, speaking for the court says:

"Where evidence is received in a case which is admissible only for a certain purpose, and is inadmissible for other purposes to which the jury unaided may improperly apply it, it is essential that the court should correctly instruct them as to the purpose for which they may consider the evidence." (Brush Elec. L. & P. Co. v. Wells, 103 Ga. 512, 30 S. E. 533; 2 Thompson on Trials, 2416.)

In this case, however, no such instruction was asked for by defendant.

When the evidence was all in and the state had rested, counsel for defendant asked the court to peremptorily instruct the jury to return a verdict of not guilty. One of the grounds, urged in support of the motion was that the evidence failed to show that the defendant was a married man; that is, it failed to show that he had a lawful wife living at the time of the commission of the crime charged in the information. The court, in overruling the motion, and in the presence and hearing of the jury, made use of the following language: "Perhaps in passing upon a question such as is before the court now I might be handicapped in the presence of the jury, but I want to say to you, gentlemen, that it is against my ideas of this situation that a man should be permitted to live in a community for years and years and years and hold himself out as a married man and his wife, a woman as his his wife, live together, cohabit together, associate together, lead all their neighbors and friends to believe that they were husband and wife, and then

simply because the state cannot produce a record of their marriage, or some eyewitness to the ceremony, that for that reason the defendant would have to go scot free." The foregoing remarks of the court, which were duly excepted to, are assigned as error. We think there is merit to this assignment. The question as to whether the defendant was a married man at the time of the alleged commission of the crime charged was a vital issue in the case. There was no direct. proof that defendant and Grace D. Greene were ever actually' married, and the state sought to prove this fact by evidence which tended to show that defendant had on several occasions admitted that Grace D. Greene was his wife, and that she was reputed to be such in the community where he resided. In fact the state relied solely upon this kind of evidence to establish the fact that a marriage had actually taken place between these parties. The foregoing terse and forcible summing up of the evidence on this point by the court not only conveyed to the jury his opinion as to the sufficiency of the evidence to prove an actual marriage, but also carried with it an inference that, in the opinion of the court, the other material allegations of the information had been sufficiently proved. We know of no rule of law that permits a judge before whom a case is being tried to express his opinion in the presence of the jury and in their hearing as to the weight of the evidence on a controverted question of fact. But, on the contrary, the authorities uniformly hold that for him to do so is error. (2 Thompson on Trials, sec. 2297; 11 Ency. Pl. & Pr., 114; 21 Ency. Pl. & Pr., 994-5; State v. Ah Tong, 7 Nev. 148; State v. Harkin, 7 Nev. 377; Andreas v. Ketcham, 77 Ill. 377; Furhman v. Mayor, etc., 54 Ala. 263; McMinn v. Whelan, 27 Cal. 320; Commonwealth v. Barry, 9 Allen [Mass.] 276; State v. Dick, 60 N. C. 45, 86 Am. Dec. 439; Cronkhite v. Dickerson, 51 Mich. 177, 16 N. W. 371; Sullivan v. People, 31 Mich. 1; State v. Stowell, 60 Iowa 535, 15 N. W. 417; Kane v. Kinnare, 69 Ill. App. 81; Peeples v. State, 103 Ga. 629, 29 S. E. 691; Sharp v. State, 51 Ark. 147, 10 S. W. 228, 14 Am. St. Rep. 27.)

While it is apparent from the record that the remarks

complained of were purely inadvertent, and were not intended to influence the jury, yet this fact does not render them any less prejudicial to the defendant than if the judge had deliberately and intentionally made them for the express purpose of impressing upon the jury his opinion respecting the guilt or innocence of the defendant.

The judgment of the court below is reversed, and a new trial granted.

FRICK, J., concurring.

STRAUP, J. (concurring.)

I concur with the conclusion reached by the Chief Justice that the deed was properly admitted in evidence as an admission of the defendant that he and Grace D. Greene were husband and wife, and that they bore such a relation to each other; that it was inadmissible as a declaration of Grace D. Greene; and that, had a proper request been made, the court should so have instructed the jury. I, however, do not concur with the remark that such an admission of the defendant could only be considered by the jury "in connection with evidence of cohabitation and repute," etc. The effect of such an admission, the weight to be given it, and whether it is sufficient or insufficient to authorize a finding of the jury that the defendant was a married man is not now before us. All we are called upon to decide is, was the evidence properly admitted? The test of its admissibility cannot be made to depend upon the question of its sufficiency.

I also concur in a reversal of the judgment because of the remarks of the court in passing on the motion to direct a verdict. I think, however, that it is entirely proper for a court in the presence of the jury to state its reasons for a ruling. And, as the claim was made that the evidence was insufficient to show that the defendant was a married man, I think the court could properly have called attention to the evidence which the court thought bore on the question, and could have expressed his opinion on such evidence so far as it was neces

sary to explain the ruling. The remarks, however, went beyond this. They were unnecessary to explain the ruling. They were expressions of an opinion as to the weight and effect of the evidence referred to, the conclusion that ought to be drawn from it, and an indirect intimation of the court's belief as to the defendant's guilt. For these reasons I think they were improper.

CHESNEY v. CHESNEY.

No. 1903. Decided April 8, 1908 (94 Pac. 989).

1. PLEADINGS-CONSTRUCTION-STATUTES. Revised Statutes 1898, section 2986, providing that pleadings shall be construed liberally with a view to substantial justice between the parties, is ineffective to cure a defect in the complaint which is insufficient for failure to allege an indebtedness.1

2. SAME ALLEGATION OF INDEBTEDNESS-LEGAL CONCLUSIONS. A complaint alleging that on a specified date defendant was indebted to plaintiff in the sum of $6,009.20 was an allegation of a mere legal conclusion, and was insufficient without a further statement of the material facts from which the indebtedness arose.

3. SAME. An allegation that a certain sum is now due and owing from defendant to plaintiff is ineffective as an allegation of an indebtedness, unless preceded by a statement of the facts out of which the indebtedness arose showing a promise and consideration therefor.

4. MORTGAGES-DEED AS MORTGAGE-FORECLOSURE-MERGER OF DEBTCOMPLAINT. Where a complaint alleged that a deed sought to be foreclosed as a mortgage was given to secure an antecedent indebtedness, the debt was not merged in the mortgage, and hence a reference in the complaint to the deed and an option agreement to reconvey attached as an exhibit was insufficient to obviate the necessity of an allegation in the complaint of an existing indebtedness from defendant to plaintiff.

5. SAME FORECLOSURE-PERSONAL JUDGMENT. In an action to foreclose a mortgage given to secure a debt or obligation, it must be made to appear by proper averments that there is an existing ob

1 Pugmire v. C. S. L. Ry. Co. (Utah), 92 Pac. 762; Baily v. Leishman (Utah), 89 Pac. 78.

ligation to pay, precisely the same as though the action were instituted to obtain a personal judgment merely since, where there is no right to a personal judgment in case the mortgage is given as security for money only, there can be no right to foreclosure or to subject the property to the payment of the debt until the right to a judgment at law is made to appear from the complaint.

6. PLEADING CURING DEFECTS BY ANSWER. If there is a defect of substance in a complaint by reason of which no cause of action is stated, and the answer supplies such defect, the defendant may not avail himself thereof after verdict and judgment, under Revised Statutes 1898, section 2965, providing that the pleading over to any action after the overruling of a demurrer shall not be deemed or considered a waiver of the demurrer.

7. JUDGMENT-SUPPORT IN PLEADINGS. Whether a judgment is supported by the pleadings depends, not on the allegations of the complaint alone, but on a reasonable construction of all the pleadings considered together.

Where a

8. PLEADING-DEFECTIVE COMPLAINT EFFECT OF ANSWER. complaint to foreclose a deed as a mortgage alleged that the deed was given to secure payment to plaintiff of $6,009.20, and prayed judgment for $7,491.59, with interest, etc., but failed to allege an "existing" indebtedness by defendant to plaintiff, such defect was not cured by a general denial followed by an admission that the deed was given as security for an indebtedness then existing by defendant to plaintiff, not exceeding $4,600; such allegation not being an admission of any indebtedness at the time suit was brought. 9. MORTGAGES-FORECLOSURE-PLEADINGS. Where a complaint to foreclose a deed as a mortgage sought to enforce the same as security for defendant's payment to plaintiff of $7,491.59 and interest, but the complaint failed to allege an existing indebtedness, and the answer contained an admission that the deed was given to secure a debt amounting to only $4,600, the pleadings were insufficient to sustain a judgment for plaintiff for $8,292.69, though the answer be regarded as curing the defect in the complaint to the extent of the amount defendant admitted the deed was given to secure.

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by Annie W. Chesney against James Chesney. Judgment for plaintiff, and defendant appeals.

REVERSED WITH DIRECTIONS.