¶1This was a claim case, aud upon the trial of the claim in the court below, counsel went out of the record to discuss the merits of the case in which the judgment was rendered upon which was issued the execution levied on the property claimed in the present case. This is complained of in the 4th ground of the motion for a new trial, which alleges that the court erred in permitting Mr. E. G. Simmons, one of the attorneys *577for the claimant, in his concluding argument to the jury, over objection of plaintiff’s counsel, to argue to the jury the merits of the original case between Ilarrold, Johnson & Co. and R. W. Slappey, G. J. Slappey and G. W. Slappey, in Webster superior court; Mr. Simmons having stated to the jury that G. J. Slappey only signed the trover bond to keep his brother R. W. Slappey out of jail, and that Harrold, Johnson & Co. were seeking to incarcerate his brother, R. W., in Webster county jail upon an unjust claim; that it was only a brother’s love that induced him to sign the bond, that his brother might be kept out of prison and remain with his sick wife and children, who needed his attention. We think the court erred in not stopping counsel in his argument to the jury; and while we might not in a plain case be disposed to grant a new trial upon this ground, yet in a case as close as this is, we cannot say what effect such remarks of counsel may have had upon the jury.
¶2The 5th assignment of error is, that the court erred in refusing to charge the jury, as requested by plaintiffs’ counsel, that the defendant in execution, G. J. Slappey, was concluded by the judgment in Webster superior court as to the debt, and that he was as much liable to pay this debt as if it had originally been his own undertaking. We think that under the circumstances this request was proper; for while the whole matter is dehors the present record, yet in view of the remarks of counsel for the defendant in error above complained of, the request should have been given so as to. correct any wrong impression which the jury may have received from such remarks of counsel. Judgment reversed.