By the Court,
UoWNBB, J".The motion for a nonsuit should have been granted. The plaintiff -in his complaint alleges that he executed the note and mortgage therein described, and “ delivered the same to said defendant, to be by him safely kept and held as an escrow, to be delivered to said company only upon the fulfillment of the condition aforesaid.” This allegation of delivery to the defendant was ipaterial; and as it appears to us, the plaintiff entirely failed to prove it. The plaintiff testified that he delivered the note and mortgagé either to Ball or Babcock, he could not say which. Babcock was the secretary of the railroad company to which the note *245and mortgage were given, or made payable, and a delivery to him would be a delivery to tbe company. On his cross-examination the plaintiff produced an agreement between him and the railroad company, which he testified was executed and delivered at the same time the note and mortgage were executed, in which it is recited, inter alia, that the note and mortgage had been received in payment of twenty shares of the capital stock of the company. This was very strong if not conclusive evidence of the delivery of the note and mortgage to the company. It is therefore obvious that the plaintiff failed to prove the delivery to Ball. If we take into consideration all the testimony of both parties, we still find no evidence of delivery to Ball; and the jury should have been instructed to find for the defendant.
The circuit court also erred in refusing to reduce its charge to the jury to writing. Section 12, ch. 132, R. S, provides that “ Whenever, on the trial of any cause in the circuit court, either party shall request it, the judge presiding in such court shall reduce his charge to the j ury to writing, before giving the same to the jury; and if any such judge shall give any charge to the jury on the trial of any cause, when so requested, without the same being in writing, it shall be sufficient cause for reversing, on appeal or error to the supreme court, the judgment which may be rendered therein.”
After the evidence was all in, and before the counsel for either party had begun to argue the cause to the court or jury, the defendant’s counsel requested the judge to reduce his charge to the jury to writing. The judge did not comply with this request, but gave a part of his charge without its being reduced to writing. The circuit judge of the first circuit has adopted a rule that such request must be made at or before the commencement of the trial; and it is claimed that this rule is reasonable and does not conflict with the statute. In courts of record instructions are ordinarily presented to the court after the evidence is in and before summing up the *246cause to the jury, aud frequently just before the court charges the jury. Until the testimony is closed, the judge could not well begin to reduce his charge to writing; for his charge is presumed to be based upon the evidence in the case. Up to this point of time, counsel may not know that it is desirable to have the instructions reduced to writing. In plain and simple cases the request would not ordinarily be made. But where there is a conflict of testimony, or doubtful questions of law arise upon it, it is often very important that the exact instructions given should be preserved. There is frequently great difficulty in embodying in bills of exceptions oral charges. Opposing counsel understand the charge differently, and the judge is not always able to recollect exactly his own expressions. To avoid this difficulty and uncertainty the statute was enacted', and should be so construed as to give the desired remedy. We have been referred to several decisions of the supreme court of the state of Indiana, made under a similar statute. They are to the effect that the statute must be so construed as to require the party who desires a written charge to notify the court a reasonable time before it may be called on to charge the jury, of his desire that such charge be in writing. The request in this case, made immediately after the testimony was all in, must be regarded as in time. It was the earliest moment that it could be of any practical advantage to the judge to know of this request. It would be unreasonable to require it to be made sooner. The rule requiring it to be made at or before the commencement of the trial is therefore in conflict with the statute, and void.
The judgment of the circuit court is reversed, with costs’ and a venire de novo awarded.
Dixon, 0. J. dissents from the first point in this opinion.