author: Sentley, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Haynes, Scribner and Bentley, JJ.
    PARKER v. SAMPSON.

      Notice of appeal — When to he made.

    Under the statute of 1892, the notice of intention to appeal mush be entered upon the record within three days from the time of the entering of the decree, and a bond must be filed within thirty days from the rendition of the decree.
   Sentley, J.

This is a motion to dismiss appeal m the case of Sewell S. Parker v. Sarah E. Sampson. The motion is based upon the ground,first,that the case itself is not an appealable one; and secondly, that the steps provided by the statute for perfecting an appeal, were not followed. We think the motion is well taken, upon both grounds, being an action upon a note and mortgage and to recover a certain amount that the plaintiff claims to have paid for the defendant by way of taxes upon the premises. When the action was begun, the note itself, by its terms,was not due as to the principal. It was given, I think, in 1892, and by its terms ran three years; but the interest was payable semi-annually and an action would arise in favor of the holder of the note for each installment of interest as it became due and was unpaid. There was a provision in the mortgage that in case the taxes upon the premises were not paid as they became due, or in case any installments of interest upon the note were not paid as they fell due, the holder of the note and mortgage might proceed to collect the entire indebtedness.

The petition alleges that the taxes had not been paid as provided; that several installments of interest upon the note had become due and were unpaid, and the prayer was that personal judgment for the full amount of the note and the interest and also for the money that had been advanced to pay the taxes might be rendered. Personal judgment was rendered for the amount advanced hy the plaintiff for taxes and for the full amount of the note, and an order to foreclose the mortgage was entered.

It may be that under the authorities, the amount of the personal judgment was too large. It is not necessary for us to decide that. There are authorities which would indicate that it was too large, namely — that the personal liability upon the note must be determined by the terms of the note itself, and that the provision in the mortgage that the whole indebtedness should become due upon default in paying the interest and taxes, was simply a provision affecting the foreclosure of the mortgage, and not giving a legal claim fox’ personal judgment for the full amount of the note.

However that may be, the plaintiff was entitled to a personal judgment for some amount. He had a judgment for too large an amount, possxbiy, but he was entitled at least to a persoxxal judgment for some amount and foreclosure of the mortgage.

Under the authorities, which I need not take time to call attention to now, beginning with the case of Ladd v. James, in the 10 Ohio St. we conclude that this presents a case that is not appealable.

As to the other matter: The judgment was rendered and decree entered on the 14th of February. The notice that the party would appeal the case to this court was exxtered upon the Í9th of March. The appeal bond was in fact given some time, I think, after the middle of May. It is true, the party, after the rendition of the judgment, filed a motion for a new trial,and that was continued along and not disposed of until perhaps in May; but we think that does not extend the time of notice for the appeal, or for the giving of a bond for the appeal.

Under the statute as it now stands — the statuteof 1892, the notice must be entered upon the records within three days from the time of the entering of the decree and a bond must be filled within thirty days from the renditioxi of the decree, or the entering of the decree. Neither of these statutory requirements having beexx complied with, the appeal will be dismissed.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Haynes, Scribner and King, J,T.
    THE CENTRAL OHIO INSURANCE COMPANY v. THE LAKE ERIE PROVISION COMPANY.

      Insurance agent is agent of company — Sec. 3644.

    Where a insurance agent applies to another insurance agent to procure a certain insurance in his company, under the statute sec. 36áá both agents are to be considered the agents of the insurance company.
   Haynes, J.

This was an action brought by the Lake Erie Provision Company against the Central Ohio Insurance Company upon a policy of insurance for a loss that occurred.

The case proceeded to trial in the common pleas and a verdict was rendered against the Insurance Company. To reverse that verdict the Insurance Company prosecute this petition in error. The main ground that is set forth as a matter of exrur is, that the court erred in charging the jury in regard to an agency. It appears from the testimony that the Central Insurance Company was doing business in this city. The Provision Company was organized, I believe, in Cleveland It appears that a certain insurance broker in Cleveland made application to the Provision Company to do all of its insurance,representing to them that he could do it better than they could; that it would be better for them to have it done all through one broker and put into various companies; that he would prepare for them a special policy of insurance which would better protect and preserve their rights, and that, for these various reasons, they had better do all their insurance with him; and thereupon they agreed to do so, and he shortly afterwards placed insurance upon their property in one company and another as he could make the applications Some of these insurance companies after-wards cancelled their policies. It so happened that one company cancelled its policy where the Provision Company had paid the premium on the policy to this broker. Thereupon he undertook to place that insurance in another company, and he finally wrote to a broker in Chicago in regard to the matter and sent his application there, and he made an application to the plaintiff in error here — to an agent it had in Chicago — and it placed the insurance and issued the policy.

The court charged the jury that this payment which had been made to the agent at Cleveland was a payment to the Insurance Company in fact — that is to say, that the agent at Cleveland was the agent of the Insurance Company, and that a payment to that agent was a payment to the Insurance Company. It is claimed here that the court; erred in so charging.

We think that the court of common pleas did not err.

Section 3644, Rev. Stats, provides: “A person who solicits insurance and procures the - application therefor, shall be held to be the agent of the party hereafter issuing the policy upon such application, or a renewal thereof, anything in the application or policy to the contrary notwithstanding.”

Now, this application was made by the insurance agent in Cleveland, through another broker acting for him in Chicago. The only question, under the statute, would be whether or not, as he employed the second party, or another insurance broker, that would still leave him as agent of the company. Rut we think that the true construction of the statute is, that the first broker would be the agent of the Insurance Company. The statute is a wise one, and should be so construed as to protect the interests of the person who is insured. To give it any other construction would make-the person who is insured subject to a great many dangers of' losing his insurance. It would be a very easy matter to-avoid the statute and get around it, if the agents were-allowed to employ other agents or brokers and have the-courts hold that the second broker is the only agent of the-Insurance Company. We think the true construction is, to-hold the second broker the agent of the first broker, and the application made to the Insurance Company to be the same as if made to the first broker. The judgment of the court of common pleas will therefore be affirmed.

Chittenden & Chittenden, for plaintiff in error.

J. K. Hamilton, for defendant in error.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y Term 1895.)'
    Before Haynes, Sciibner and King, JJ.
    WILL B. PAGE v. JOHN R. MILLER.

      False Imprisonment — Action for damages for — What will not be' considered ‘‘ ‘proceeding under advice of counsel” as will amount to a defense—
    Stating to counsel only such facts as are necessary to draw the affidavit is not such proceeding under advice of counsel as will be-a defense in a suit for damages for false imprisonment.

      Same — Verdict for defendant not maintained by the evidence—
    Where the fact as developed in the evidence clearly show want of probable cause and that the arrest was procured wrongfully and merely for the purpose of intimidating the plaintiff, a verdict for the defendant will be set aside as not maintained by the evidence.
    (Decided February, 211895.)
   Haynes, J.

In this cass a petition in error is filed for the purpose of reversing the judgment of the court of common pleas. The plaintiff below is the plaintiff here. The suit was brought to recover damages for an alleged false imprisonment, and the petition set out in substance that the defendant, Millor, had caused the arrest of Page for larceny, and made other and proper averments to make a case for false imprisonment. The defendant, admitting the arrest, trial, and discharge of defendant upon that trial, practically denies the other averments of the petition. The case proceeded to trial in the court of common pleas, was heard upon the evidence, and was submitted to the jury under what is admitted on all hands to be a very able, clear and impartial charge of the law by the court. Thereupon the jury returned a verdict for the defendant. Amotion for a new trial was made upon the ground, among other things, that the verdict was not sustained by sufficient evidence; and that being overruled, and judgment being rendered in favor of the defendant, the petition in error is prosecuted here.

The facts of the case are substantially these: The defendant, Miller, and H. M. Claflin, who,, resided in Cleveland, were either co-partners or jointly engaged in taking contracts in this city for paving streets, and work of that kind. A contract being let for the paving of St. Clair street, an arrangement was made between Claflin and Miller upon one part, and John Streicher upon the other, whereby Claflin and Miller were to furnish the stone for that work, and were to have certain other profits. The stone was to be furnished on board cars in Orleans county in the state ofN.ew York, was to be Medina stone from Albion county, where the Medina stone quarries are situated. That work proceeded, and wí s carried forward to completion, and had been finished for some time, and other work had been carried for-war during that time or about that time, by Claflin and Miller. Finally Claflin and Miller had disagreed about matters, and a petition was filed in the court of common pleas of this county to wind up their partnership affairs, and a receiver was appointed, being Col. Bunker, of this city, to take possession of the assets and to hold them subject to the order of the court. This was in February of a certain year. A list of all the property that was owned by the Claflin and Miller interest was sent forward by Claflin to Col. Bunker, and Col. Bunker, taking that list, together with Miller went through the city looking up the property that was upon the list,and the property that belonged to the firm of Claflin and Miller. There was left at the time that the work was done in St. Clair street, quite a quantity of stone said to have been rejected — stone that Streicher refused to receive —and that was piled up upon a certain lot on Orange street in this city, and amounted to several car-loads. That remained there from February of that year until October.

About that time the plaintiff, who resided in Cleveland, and who is the secretary of the Albion Stone Company,came here and went to Col. Bunker, and .stated to him that he was the secretary of the Albion Stone Company, from Cleveland; that he was sent here by Mr. Clafln, who was the president of that company — being the same Mr. Olaflin who was also of the firm of Olaflin and Miller — to take these stone that were rejected; that they belonged to the Albion Stone Company, and that the company desired to use th im or to sell them. He wanted to know if the receiver made claim to them in any manner of form, or had any objection to his taking them. The receiver said that he didn’t know about them, but that he would look into the matter. Thereupon Mr. Page returned to Cleveland, and came back here again in a few days, and called upon Col. Bunker, and the latter told him that he had been looking into the matter somewhat. If I remember right, he didn’t give Mr. Page a final answer at that time, and he again returned to Cleveland, and came back in a few daj^s, and the Colonel then told him that he should not interfere at all with his taking the stone — that he made no claim to them in fact, but that if he took them he would not give his consent to taking them, but Page would take them at his own peril; 'he didn’t make any objection to his taking them, as receiver. Thereupon Page proceeded to make arrangements for cars to take them to Cleveland, and not being able to obtain cars at that time, which was early in the week, he arranged for cars later in the week, at which time he again returned here, having also made arrangements for teams with the Moreton Truck Company. He proceeded to have the stone loaded and placed on board cars, and he had worked a day or more when the event occurred of which complaint is made.

It would seem that during this time, in the course of the conversation or inquiries, that Col. Bunker had spoken with Mr. Miller about the matter, and at some time during that time, and before the arrest, as I understand it, had said to Mr. Miller — meeting him perhaps at theBoody House — that, he had concluded not to interfere with the removal of those stones.

After Page had loaded stone about a day, perhaps on the second day, or he had got nearly two car-loads loaded, Mr. Miller appeared at the point where the stone were piled up, on Orange street, and inquired of Mr. Page what he was doing with the stone. He told him that he was removing the stone. Miller asked him who for. Page told him that he was removing them by the order of the president of the Albion Stone Company; that the stone belonged to the Albion Stone Company, and that he had been directed to have them loaded, and was proceeding to do it. Thereupon Mr. Miller told him that they belonged to Claflin and Miller, and not to move them, and Mr. Page replied that he could not take any orders from Mr. Miller in the matter, and if he objected to having them removed, he would have to take some legal steps to stop it; that the stone belonged to the Albion Stone Company, and that he was proceeding by the orders of the president of that company to take them for that company. This was perhaps about three o’clock in the afternoon.

Thereupon Mr. Miller proceeded to the office of the Clerk of Police Court and asked for a warrant for the arrest of Mr. Page, and the clerk told him he would have to seethe Police Prosecutor. The Police Prosecutor being engaged in a trial, Miller waited there some time, he thinks nearly an hour, and the Prosecutor being disengaged, he went into his room, and stated what he wanted, but instead of stating to the Pros ecutor the whole of the facts, he told him that Claflin and Miller had some stone on Orange street, and a man by the name of Page was taking them away claiming that they belonged to the Albion Stone Company, and that he wanted to stop him. Miller says that the Polico Prosecutor told him that he would have to make an affidavit. Thereupon he filled out an affidavit, in which affidavit he alleged that the stone belonged to Miller, saying nothing about Claflin. Upon that a warrant was issued, and forthwith placed in the hands of the officer. Miller went to his office, he being.at that time the city engineer. He remained there during the afternoon, went to supper at the Boody House, he boarding at the Boody House where Page was stopping at the time. There the}' met and passed without speaking, but Page was seen by Miller, and Miller was seen by Page. There is some divergence in the testimony after that, but Miller claims that he afterwards saw Kruse, one of the police officers — a detective, so-called — at his office in the Masonic building, about half-past nine in the evening, and claims to have had a conversation with him in which be told him not to arrest the man, .or he need not arrest him. Miller claims also that early in the evening he telephoned to Capt. O’Dwyer at the police station, that if this man Page was arrested, that it would not be necessary to take anything more than his own bond or recognizance. Thereupon O’Dwyer proceeded to go out into the country somewhere, and said nothing to anybody about it, and carried the information on the subject with him. ■ -

Kruse testified that he was up and had some conversation with Miller at the hotel, but he places it earlier in the evening. Be that as it may, Kruse didn’t have the writ, but was with the man that did have it, and about ten o’clock in the evening, Page having been all the evening at the hotel, engaged in writing at one of the tables in the vestibule of the hotel, the officers came in and told him they wanted to see him, and took him out into the hall and declared him under arrest for grand larceny. Page told the officers he wanted to see his attorney. They said no, he must go to the station, and took charge of him. They then proceeded -with him to the station. He told them that they need not take hold of him, that he should not run away. They then marched down there. Page was not a very large man. He went to the station with an officer on each side of him. After he got down there he was allowed to send out a communication to his counsel, Pratt & Wilson. They proceeded to the station, but the officers could not take any bail. It should be said in passing that they said they could not postpone the arrest of the man; the writ was in their hands and it must be executed. Thereupon Mr. Pratt proceeded to the residence of the police judge, got him up and got the amount of the bail fixed, proceeded to the residence of the clerk of the police court, and thence to the office of the clerk, and finally got a bond executed, about half past one o’clock in the morning, and obtained the release of Mr. Page, who wrent back to the hotel.

The next morning Mr. Page appeared at the police court, with his counsel, to have the matter disposed of. The complainant said he was. not ready, that he wanted the testimony of John Streicher, who was out of the city. It appears that John Streicher was here pretty much all of the time. Finally, on the 15th, the case came to hearing, the defendant was discharged, and that ended the prosecution, so far as that was concerned. It also appears from the testimony that Mr. Miller, at the time that he was at the stone-pile in the afternoon, did not consult with any counsel, or go to any of the parties who were interested, but took the matter into his own hands,and proceeded immediately to the police court for the purpose of getting out a warrant.

Exactly why this writ was delayed so long in its execu-tion, does not appear. The testimony shows that the writ was issued somewhere about four o’clock in the afternoon, and immediately placed in the hands of these officers. Mr. Page was stepping at that time at the Boody House, as Mr. Miller knew, and had been but a short time before left by Mr. Miller at this point on Orange street at the stone-pile. About six o’clock, Mr. Page proceeded to the hotel, and remained there until ten o’clock, when he was arrested, not going out, except after supper going across the street to the postoffice, to deposit some letters, returning immediately. For some unexplained reason, the execution of the writ was delayed until ten o’clock, long after the office of the clerk had been closed, and he was taken down to the police station to look out for himself as best he could in the way of getting bail.

As I have said, the charge was very full, very clear, and very able. The court gave this definition of larceny:

Now, a brief definition of larceny, which was the charge made in this case, is this: It is the wrongful taking of the personal property of another person without the owner’s consent, and with the intent to deprive the owner of it; I give you this definition of larceny, so that you may know what the charge is that was made in this case, and consider it in connection with the evidence as to the conduct of defendant, and in connection with the evidence as to what he knew, or by the use of reasonable care and diligence might have known. In this case, if the jury find that Page, the plaintiff, in taking this property, was acting fairly, openly and honestly in taking this property, as an officer of the Albion Stone Company, under directions from the president of that company, under color of title to the property in the same company, then he could not be held guilty of larceny for such taking: and if Miller, the defendant, before 01 at the time of his arrest, knew these facts — that is, if he knew that Page was acting openly and fairly and honestly in the taking of the property, as an officer of the Albion Stone Company, under the directions of the president of that company under color of title to the property — then he was not justified in making a charge of larceny against Page, and the jury should find that he made the charge without probable cause.

In regard to the ownership of the stone, in addition to what has already been stated, it was shown that at the time that the contract was taken for furnishing these stones, an arrangement was made between Streicher and Miller and Claflin, by written contract, whereby Miller and Claflin were to furnish Medina stone from Albion county; that soon after Claflin, as president of the Claflin Company or as a member of the firm of Claflin & Miller, arranged with the Albion Stone Company that, they should furnish the stone, practically assigning that part of the contract to them for a certain consideration — perhaps a portion of the profits — and they were to furnish the stone here in Toledo. The stone, in the ordinary course of business, was shipped by the Albion Stone Company from Albion, N. Y., consigned to John Claflin, Toledo. Mr. Streicher received the stone here, and as the stone were received he used them, or such as were fit and proper to go into the street, rejecting the others, which constituted the stone which were in the pile in controversy.

No assignment had ever been made of those stones from the Albion Stone Company to Claflin and Miller or to any one. Miller testifies that he never heard of this assignment until he saw the assignment at the trial before the police judge at the time of the hearing upon this warrant of arrest. It was shown, however, that a draft had been drawn upon Streicher by the Albion Stone Co., payable to the order of John B. Miller, and indorsed by John R. Miller, showing that the stone were being furnished by the Albion Stone Co., and that they were drawing for the price of the .stone, and that Miller had knowledge of that from the fact that he had indorsed the draft.. That draft was in existence at the time of the trial in the court of common pleas, but has since been lost.

The court charged, in addition, upon the question as to whether the want of probable cause would be sufficient to entitle the jury to find that the action of the defendant below was malicious; and as a definition of the law of malice, he stated to.the jury that “malice must be shown as well as a want of probable cause.” Malice in a legal sense, means any wrongful act done purposely, and without a reasonable or lawful excuse, to the injury of another. And a prosecution on a criminal charge, which is brought under such circumstances, is malicious. And a prosecution is malicious when it is begun or set on foot from any improper motive.

Now, it will be noticed in the testimony that Mr. Miller, at the time that the property of the firm of Miller and Claflin was taken into possession by the receiver, went with the receiver for the purpose of identifying the firm property; that he at no time claimed, or pointed out, or showed to the receiver that these stones were the property of CJañin & Miller. They were not included in the list of the firm property which Mr. Claflin had furnished to the receiver so that attention was called to it at the time, and no claim was made of its being firm property. It is shown that when Mr. Page came here and was talking about taking this property, that Miller knew that th j matter was being discussed as to whether the receiver should make any objection to it. He was informed by the receiver that he didn’t consider it as firm property and would have nothing to do with it. It is shown that at the time Page went to work he was notified that the stone were being taken by Mr. Page as secretary of the Albion Stone Company, under the directions' of the president of the Albion Stone Company, and that they were being shipped for and on account of the Albion Stone Company to Cleveland; 'that they were a large quantity in bulk, and that the work was going on openly and publicly, and was being done in the regular and usual and ordinary course of business; also that Mr. Page had exercised great care to avoid any conflict, if there was or was likely to be any, with the receiver.

On this state of facts, the verdict was, as I have said, for defendant. We know not, of course, on what grounds the jury based their verdict; possibly on the grcund of want of malice. We are unable to see, however, under the charge of the court and under the facts of the cas», how they could have found that there was probable cause. They should have found want of probable cause, under the definition here given of malice — that is to say, that the act done by Miller was done purposely. There is no question about that. It was done wrongfully, there can be no question about that. The stone were not the stone either cf Miller or of Claflin. They belonged to the Albion Stone Company, and they were being taken by the agent of the Albion Stone Company, under the direction of the Albion Stone Company. In no sense whatever was there any larceny being committed by Mr. Page or the Albion Stone Company. Mr. Miller took the responsibility of causing this man to be arrested for larceny, charging him with a crime that was a felony — causing him to be arrested and to be taken to the police station as a person who had committed a heinous offense, and when he arrived there the officers refused him to be admitted- to bail or to allow him to depart on his own recognizance, or anything of that kind, because, it was a felony that he was charged with ; he was to be treated as a felon, and he was treated as a felon. Clearly there was a gross violation of the rights of Mr. Page, and a violation that was, on the part of Miller, in our judgment, reckless, and without any proper regard of the rights of Mr. Page or of the facts of the case. When he received this notice, before he took any steps of the kind that he did, he should have made further inquiries and learned something more about the matter; but he chose, evidently for the purpose of intimidating Mr. Page, to arrest him for the crime of larceny, We think that the verdict of the jury under these circumstances is wrong, and clearly wrong.

Pratt & Wilson, for Plaintiff m Error.

Kinney & Neioton and S. Brophy, for Defendant in Error.

It is said here, and caimed, that he took advice of counsel —took the advice of the city attorney. But the testimony, we think, very clearly shows that he never went to the police prosecutor for the purpose of taking any advice of him, or to any other counsel, only to get a writ. He went to the clerk to get a writ; and the clerk refused to issue the warrant until he was directed by the prosecutor, and when he came to make the statement to the prosecutor, he merely stated such facts as were necessary to draw an affidavit; that the property was owned by Claflin & Miller,and was being taken by Mr. Page and shipped out of the city — stolen, in fact, —and on that the affidavit was drawn and signed by Miller, We are unable to see that there is in that statement any element of defense for Mr. Miller, under the circumstances. We think therefore, that the verdict of the jury in this case is not sustained by sufficient evidence, and for that reason the judgment of the court of common pleas is reversed, the judgment set aside, at the costs of defendant in error, and the case remanded for further proceedings according to law.

It is urged that this question has been passed by the court of common pleas. While we have great respect for the judgment of the court of common pleas at all times, and endeavor always to treat it with deference, nevertheless, when a case comes to this court, and the question is upon the facts of the case, it is our duty to examine those facts, and if in our judgment the verdict is not sustained by sufficient evidence, to so declare it, as we have in this case.


text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    June Term, 1895).
    Before Haynes, Scribner and Kihg, JJ.
    IN THE MATTER OF THE CLAIM OF N. G. HOLLIDAY FOR KEEPING UP THE GENERAL INDEX OF REAL ESTATE RECORDS.

      General Index of Records — Compensation to Recorder must be allowed by the County Commissioners.

    The compensation payable to the County Recorder for keeping the general indexes under sec. 1155, is payable to him only on the allowance by the county commissioners.

      No officer to fix his own compensation — Public policy.

    It is contrary to public policy of this state for any officer to fix his ■own compensation or the amount due him for his services.
    Appeal from the Court of Common Pleas of Huron county.
   Haynes, J.

The case of the claims of certain parties for the allowance of fees and work performed for the county, is one which is brought here from the common, pleas court by appeal from the order of the court, which claims were, by the court of common pleas, allowed, and finding of facts made, and the case is brought here upon error.

The claims arose under section 1155, of the statutes, and I will read,in connection with it, section 1154:

“In any county where, in the opinion of the county commissioners, the same is needed,and they so direct, the recorder shall, in addition to the alphabetical indexes, make in the books prepared for rhat purpose, general indexes to the records of all the real estate in the county, by placing under the heads of the original surveyed sections or surveys, or parts of a section or survey, squares, subdivisions, or lots,on the left page of such index book, first, the name of the grantor or grantors; second, next to the right, the name of the grantee or grantees; third, the number and page of the record where the instrument is found recorded; fourth, the character of the instrument, to be followed by a pertinent description of the property conveyed by the deed, lease or assignment of lease; and on the opposite page in like manner, all the mortgages, liens or other incumbrances affecting said real estate; and for his services in making such description and noting incumbrances, he shall receive for each tract described, five cents, in addition to his other fees. ”

Section 1155 reads as follows:

‘When general indexes, such as are described in the next preceding section, or any other indexes authorized by the county commissioners, are brought up and completed, the recorder shall keep up the same; and he shall receive for indexing any lot or parcel of land ten cents, to be paid out of the county treasury. ”

The court of common pleas, in its finding of facts, found:

1. That general indexes to the records of all the real estate of said Huron county are kept in the recorder’s office cf said county.

2. That the said general indexes so kept are in substantial compliance with the form prescribed by section 1154, of the Revised. Statutes of Ohio.

(These indexes,it will be understood,are in addition to the alphabetical indexes which are required in all counties, and always have been during the history of the state.)

3. That said general indexes so kept, were duly authorized by the commissioners of said Huron county, prior to the claim on which the procsedings herein are based.

4. That said general indexes were brought up and completed to the date of the claim on which the proceedings herein are based.

5. That the said claimant, W. Gr. Holiday, during the time included in and covered by the claim on which the proceedings herein are based, was the duly elected, qualified and acting recorder of said Huron county.

6. That said W. G. Holiday, as such recorder, during the entire time included in, and covered by the claim on which the proceedings herein are based, brought up and completed said general indexes.

7. That the services charged for by said recorder in said claim, were rendered as therein stated, and under section 1155 of the Revised Statutes,.and that the amount thereof, is in accordance therewith. ”

The contention of the counsel on behalf of the plaintiff in error is, that the claim is one in which the compensation is fixed by the statute, and that it was the duty .of the auditor of the county to have issued to the county recorder, the amount of his bill, and that the ccmmissioners of the county had no jurisdiction whatever to pass upon the bill, and have no authority upon which either of the parties might appeal to the court of common pleas.

Section 894 is cited, and reads as follows:

“No claims against the county shall be paid otherwise than upon.the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by Jaw, or is authorized to be fixed by some other person or tribunal, in which cases the same shall be paid upen the warrant of the'county auditor, upon the proper certificate of the person or tribunal allowing the same; but no public money shall be disbursed by the county commissioners, or any of them, but the same shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled to the same, on what account, and upon whose allowance, if not fixed by law. ”

Section 1024 is also cited:

“The auditor shall issue warrants on the county treasurer for all moneys payable out of the treasury, (except moneys due the state, which shall be paid out upon the warrant of the auditor of state), when the proper order or voucher is presented therefor, and shall keep a register of all such orders showing the number, date of issue, the amount drawn for, in whose favor, and on what fund; but he shall not issue a warrant for the payment of any claim against the county unless the same is allowed by the county commissioners except in cases where the amount due is fixed by law, or is allowed by some other officer or tribunal authorized by law to allow the same.”

The whole question, it will be seen, lies in a nut-shell; the simple question is, whether or not the compensation that, is to be paid to the recorder, is one that is to be fixed by law’; and the claim is that the county auditor shall give an order or warrant for the amount without any other intervention, but the language of section 894 is:

“No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law.”

We have listened to the learned arguments of counsel upon both sides, but without going into any lengthy discussion of the case, we are clearly of the opinion ourselves that the amount due is one that must be fixed by the county auditor; the rate of compensation is fixed by statute; the statute fixes the rate; that is to say, ten cents for each deed; but the number of deeds, and the amount that is due, is not fixed, in our judgment, by the recorder himself, nor is it to be paid upon his warrant, nor is he the party to state, as against the county, the number of deeds that he has recorded; but his claim should be presented to the county commissioners, and he should give them the number of deeds he has recorded, and that amomt should be certified, audited and fixed by the county commissioners.

T. G. Laylin, and J. A. Williamson, for Plaintiff in Error.

S. M. Young, and J. R.McKnight, fox County Commissioners.

We think it is contrary to the public policy of this state, as shown by the various statutes of the 'state, for any officer to fix his own compensation, or the amount due him for his services.

The statute is, in all cases, very carefully and jealously guarded bjr the legislature of the state, and it is right that it should be so.

In this case, the claims were rejected by the county commissioners,'because they had not ordered the work.

The statute provides that the county commissioners may, if they see fit, order certain indexes to be made, and for making this, the county recorder shall receive tne sum of five cents for each deed.

That contemplated the bringing up back records of the county — bringing them up to date, or to any given date; but after that was done, and the records were once brought up to any given date and completed, it became the duty of the county recorder, after that time, to enter upon the record each deed as it was recorded, so that the record might be a perfect record for the purpose for which it was established, upon the various parcels of land in the county. Those records were brought up in this county, as the court finds, and the work that was done after that was done under section 1155; so that the question whether or not the county commissioners had ordered the work, it seems to us, is a question that is irrelevant to the case. The county recorder having found these prior records in existence, which had been made and accepted by the county, he had but one duty to perform, and that was to make an entry of these various deeds.

We are of the opinion that the judgment of the court of common pleas should be affirmed, and it is so ordered.


text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    June Term, 1895).
    Before Haynes, Scribner and King, JJ.
    ISAAC W. BOSTWICK v. THE NORWALK NATIONAL BANK.

      Surety — Notice to creditor to bring suit — Creditor' not bound to go. out oj state to sus.

    The true construction of Sec. 5833, Rev. St., which provides that a surety may require a creditor by notice in writing to commence suit to collect the debt from the principal, and to make the judgment therefor from the principal by execution, is that the creditor must proceed in the courts of this state to bring such suit. But such creditor is not bound to go into another state to bring such suit.
    Error to the Court of Common Pleas of Huron county.
   Haynes, J.

This case is prosecuted in this court for the purpose of reversing the judgment of the court of common pleas.

The petition in the court below, filed by Bostwick, sets up that he admits the recovery against him upon a cognovit note by the First National Bank of Norwalk, Ohio, and he avers that the note was executed by himself and another party, and that he was surety upon the note, and he seeks to have it set aside for several reasons, one of which is, he claims that there was never any copy of the note presented to the court at the time the judgment was taken; and secondly, there was never any copy of the judgment note filed with the clerk of the court.

Then the third defense set up is:

“That this defendant never did, alone, or jointly with the said Lyman, ever execute any warrant of attorney authorizing the said Rowley, or any other person, to confess the judgment aforesaid as the said defendant then well knew.
“This plaintiff further says that the said defendant,in obtaining the entry of said judgment, practiced fraud upon said court and this plaintiff, in this, to-wit: For that the said defendant well knew at the time it procured said judgment that ths plaintiff was surety merely upon the note sued on in said action, and that the said Lyman was principal debtor thereon, and that the plaintiff was not bound thereon, and never had been bound thereon, except as surety for said Lyman; that on the 25tb day of September, 1893, and after said note became due and payable by the terms thereof, this plaintiff served a written notice upon said defendant requiring it to commence an action against said Lyman on said note forthwith, as provided under section 5833, of the Revised Statutes of Ohio; that if the said defendant did not within a reasonable time after said notice, proceed in the ordinary course of law to recover judgment against said principal debtor for the money due on said note and to make by execution the amount, that this plaintiff relied upon said facts to exonerate him from liability upon said note; yet the defendant, well knowing, as aforesaid, all said facts, concealed the same from the court, and obtained said judgment without a disclosure thereof.
“This plaintiff further says that there was,at the time said judgment was obtained, and is now, nothing due or payable upon said note from this plaintiff to the said defendant, and that this plaintiff had a full, ample and complete defense to said action, as said defendant then and there well knew, which defense is of the nature following; that is to say:”

Then he sets up that he served notice upon the bank to commence an action on said note forthwith against said principal debtor for the amount due on said note, or to make the amount thereof by execution against him, but that the bank failed to do it.

Subsequently the bank took judgment against Ryan and himself upon the note

The answer, in what is called the second defense, says that;

“The' defendant, for a second defense, says that said promissory note, upon which said judgment ivas rendered, was for the sum of one thousand dollars, and was made and delivered to the defendant in this state; that said Lyman,at the time of, and ever since the service of the notice in plaintiff’s petition alleged, was, and has been a non-resident of, and absent from this state, and a resident of the state of Illinois.”

There is an amended reply to that answer in which the plaintiff says:

“And further replying, the said plaintiff says that he admits the facts pleaded in the second defense of said answer, but says that at the time of making and delivering of the note mentioned in said defense, the said Lyman was, then and there, as defendant well knew, the principal debtor on said note, and was, as the defendant also well knew, a nonresident of said state of O.hio, and a resident of the state of Illinois, where he has ever since, and now, resides, and that said note was accepted by said defendant with full knowledge of all said facts. ” commence an action and obtain judgment and endeavor to collect the money upon the note before it could have an action against the surety, or, upon its failure to do so, that the surety might be discharged.

Upon motion of the defendant, judgment as rendered for the defendant bank upop the pleadings, thus refusing to open and allow them to come in and make a defense, and piactically confirming the former judgment.

The simple question raised here, and the real question raised on the issue is, whether or not, under the status of this case, the bank was compelled to proceed into the state of Illinois, or wherever it might find the principal judgment debtor, and

The statute reads as follows, (Section 5833):

“A person bound as surety in a written instrument for the payment of money, or other valuable thing, may, if a right of action accrue thereon, require its creditor, by notice in writing, to commence an action on such instrument forthwith, against the principal debtor; and unless the creditor commence such action within a reasonable time thereafter, and proceed with due diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, and to make, by execution, the amount thereof, the creditor, or the assignee of such instrument, so failing to comply with the requisition of such surety, shall thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due thereon.”

In the order of proceeding, the first question to be considered here is, whether there is sufficient cause for setting aside the judgment, or, rather, under the pleadings m this case, all questions resolve themselves into one If the defendant was not obliged to go to the state of Illinois and prosecute this claim against the plaintiff in this proceeding: that is to say, against Lyman: if it was net bound to go to Illinois and prosecute the claim against Lyman, the principal debtor, then, of course, there was no fraud — there could be no allegation of fraud in taking judgment upon the cognovit note.

It seems to us very clear that the true construction of this satute is, or must be, that a party is only bound to proceed in the courts of this state to obtain judgment and to prosecute his claim to iinal judgment.

We think the law is very well settled by the Supreme Court of Indiana which has a statute almost like this. That court held, for reasons that we think are cogent and conclusive, that the defendant was not bound to go to another state, or to follow the principal debtor out of the jurisdiction of the state of Indiana.

The decisions that are found in 48 Indiana, 260, and volume 54, page 290, are very full and very clear decisions upon the question, and state the law as clearly as we can state it. j&g

The judgment of the court of commonfpleas will be affirmed, and reasonable cause will be certifiedjfor[filing petition in error.


text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Haynes, Scribner and Bentley, JJ.
    LOUIS PHILLIPS, v. THE OHIO FARMER'S INSURANCE COMPANY.

      Insurance policy — Statements in application correctly stated by applicant., but erroneously written dawn by agent himself— Question for jury—
    Where in a suit on a fire insurance policy the defensa is set up that the facts stated in the application as to encumbrances were not correctly stated, and the plaintiff denies fraud and claims that the facts were correctly stated and well known to the agent who wrote them in rhe application himself, this would entitle him to a recovery, and the question whether this was so should be submitted to the jury.

      Policy on building and personal property,-when severable—
    A policy insuring the buildings ápd the personal property in two distinct items and amounts, is severable, and if the insurance fails as to one, may be good as to the other.

      Cross-examination of witness — Limits—Rule in Ohio—
    The law in Ohio in regard to cross-examination of witnesses is somewhat different in different parts of the state. The practice in a large portion of the state is to require counsel upon cross-examination, to limit himself entirely to the cross-examination of such matters as have been referred to by plaintiff m his examination in chief; but the rule in the sixth district has been, to allow the defendant to cross-examine the plaintiff’s witnesses upon anj matters at issue upon which the plaintiff himself might produce testimony, — with this limitation or qualification, that the defendant shall not be permitted'to go into matters of defense in his cross-examination of plaintiff’s witnesses. And that is the rule laid down also by the Supreme Court.

      Cross-examination on new mattez'not in issue — ■
    An insurance company can not cross-examine plaintiff’s witnesses as to matter not opened in examination in chief, nor which would constitute a defense to an action on the policy, but is not set up in its answer, and therefore not in issue.
   Haynes, J.

This’case is prcsecuted for fhe purpose of reversing the judgment of the court of common pleas. The action was brought by Louis Phillips in the court of common pleas against the Ohio Farmers’ Insurance Company upon a certain policy of insurance, and such proceedings were had in that court that a verdict was rendered against the plaintiff, ándito reverse that judgment and set aside that verdict, this proceeding in error is prosecuted. Since the case was tried at least one very important decision has been rendered by the Supreme Court of this state upon questions that are at issue in this 'case. The case will have to be reversed and sent back for a new trial.

The requests to charge are quite numerous, and upon request of the parties were given before argument, and after argument the general charge of the court to the jury was given.

I will not take the time to go through with the various requests for charge, but will state generally our views with regard to the law of this case, and I think by so doing, upon another trial, the whole question of charge and request for charge will be changed, and shape itself more in accordance with the decisions of the Supreme Court.

The plaintiff avers in his petition that he had insured with the defendant company, buildings upon a certain farm which he then owned in this county, and upon certain personal properij' situated upon this place, — a policy of insurance upon dwelling-house No. 1, and cellár, $500; upon household furniture, clothing and provisions, while therein, $200; barn No! 1, and shed, $800; hay,grain,fodder and seed while therein, $300; live stock while therein, and against lightning on the farm, $200; farm implements, wagons, carriages and harness while in barn or barns insured therein, $200.

Plaintiff set up the fact that he had made proofs of loss and presented them, but that the party defendant had refused to pay, and that thereupon he had brought his suit.

The defense has first, admissions as tc certain matters and a general denial as to the residue. There are some four or five special defenses. The first refers to the declarations that were required to be made by the applicant in his written application for insurance upon his property.

The particular part that is complained of relates to the questions that were put to him, as is stated, as to whether there were mortgages upon the property, and it was replied that there was a mortgage of $2,000, and in regard to the value of the property, that the property was worth $7,500. It is averred that there was, in fact, at that time, a mortgage cf $4,000 upon the property, and that the value of his property was not nearly so much as was stated. But, it is claimed by the terms of the application and policy, that that was a warranty, and its -truthfulness is a condition precedent to the right of the plaintiff to recover. The other defenses relate to matters that arose subsequent to the insurance. One of the defenses is that there had been a transfer of the title, and as it was claimed, che land had been conveyed to Margaret .Phillips, who, as it appears, was the wife' of the plaintiff.

Another defense was, that the property had been allowed to remain vacant and unoccupied, cr that it was occupied by tenants, and that by virtue of a provision of certain clauses of the policy, that avoided the policy. Another defense was that there had been a suit commenced to foreclose certain mortgages upon the pruperty which was then pending ahd for judgment at the time of the fire; and that the property was being offered for sale by the sheriff of the county, and it is claimed that this is a violation of certain clauses in the policy.

Charges were requested to the court upon these various points upon both sides, and general propositions were given to the jury.

• It will be seen that these defenses may be divided inte two classes, one as to matters that occurred prior to the issuing of the policy, and the others that occurred subsequent to the issuing of the policy.

There was also a question raised during the trial in regard to the right of the plaintiff to recover in this case for the personal property that was insured, even though the jury might find against the plaintiff upon the real property upon the buildings.

It is perhaps proper to say that the house and barns were both totally destroyed, and with them, as it is claimed, a large amount of personal property which was covered by this policy of insurance.

In reply to these various defenses,- it was set up in the reply that was filed in the case, that the application w'as taken by an agent of the company who wrote out all of the various answers that appear in the application. It was set up further that there had been insurance upon this property by the defendant company for a period of many years,— twenty years, perhaps, — and that the policy had been renewed from time to time, and that this was simply a renewal of the former policy, although in fdrm,. it was a new policy taken upon a new application. It is claimed also by the plaintiff below, and testimony .was offered to prove, that the plaintiff, in all the statements that he made to the agent, told' the truth as it existed, and if any errors occurred in the written answers, it was the error of the agent and not the error of the plaintiff herein. It was not denied, however, as we understand, by the answers, that there was in fact, a mortgage upon the property of more than $2,000.

In regard to the condition precedent, there are two questions arising in the case; one was. how far it would avoid the policy on the specific property itself; the second was, how far it would avoid the whole policy.

It was claimed on the part of the plaintiff that he might recover for the personal property, although, as a matter of fact, he might not recover for the real property.

We think that question has been largely settled in this state,by the case of Coleman & Co. v. The Insurance Co., in the 49 Ohio St., and in the cases that are therein cited. I read from page 810in that case:

“A policy of fire insurance issued by the defendant which, for a premium in gross, insured the plaintiffs to the amount of $200 on their storehouse, and $8800 on their stock of goods, therein, contained a condition-that, ‘if the building intended to be insured stands on ground not owned in fee simple by the assured, the policy shall be void, unless consent in writing by the company be endorsed thereon.’ Within the period covered by the policy, the house and goods were destroyed by fire; and, it appeared that the plaintiffs did not own,in fee simple, the ground on which the building stood. In an action on the policy: ‘Held, that the contract is severable; and that the breach of the condition as to tüe title to the land, does not defeat the plaintiff’s right to recover for the loss of the stock of goods insured by the policy.”

The case is quite lengthy, and a large number of cases are cited by the judge of the Supreme Court who delivered the opiniou in the case. I can only recommend to counsel in this case to read that decision, to shape carefully in the future with reference to it, the charges he desires to be given to the jury.

Whether this policy would be defeated by a violation of this warranty will depend upon several things. As I have said, it is claimed by the plaintiff here that the answers were written by the agent of the company; it is claimed that he told the truth to tfie company in regard to the condition of the property, and that they had full knowledge in regard to the liens on the same. That question is a question that should be submitted to the jury for proper consideration, under the decision of the case I have cited, and other decisions that have been made by the Supreme Court. If the assertion was made knowingly and wilfully, and was knowingly and wilfully ialse, we suppose there is no question but that the plaintiff would be barred from recovery, so far as the buildings themselves were concerned; but it should be submitted to the jury whether or not these representations were trhe; that these answers were written by the agent of the company,and whether the plaintiff had correctly informed him, and be had full knowledge at the time in regard to these mortgages, and whether there had been any intentional fraud on the part of the plaintiff.

It will be observed in this case of Coleman v. The Insurance Company, that there are many cases cited that come almost substantially within the same facts that are set forth, or proven in this case.

In regard to the conditions that have arisen since the making of the policy which should avoid the same, a decision was rendered by the Supreme Court of this state last month which has a direct bearing upon the matters in issue. It was the case of Myron C. Moody v. The Amazon Insurance Company, and was error to the circuit court of Ashtabula county. We only have the syllabus (for full report see 32 W. L. Bulletin, 402; 52 Ohio St., 52). In the second syllabus the following statement was made on conditions precedent:

“The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary an order to perfect his right of action on the policy, such as giving notice and making proof of the loss, furnishing the certificate of the magistrate when required by the policy, and, it may be, other acts of like naturb. ”

(I call attention to this in reference to the same question that arose in evidence, which I shall speak of later on.)

“Conditions which provide that the policy shall become void or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, or doing, or omission to do some act, are matters of defense, and to be available must be pleaded, and their breach alleged.”
“8. When the action is upon such a policy issued since the passage of the act of March 5, 1879, tc regulate contracts of insurance of buildings and structures (Rev. Stats., Secs. 3643, 3644,) and there has been no intentional fraud on the part of the insured, an answer which alleges the breach of a condition that the insurer shall not be liable for loss or damages in or on vacant or unoccupied buildings unless consent for such vacancy or non-occupancy be indorsed on the policy, is insufficient, unless it is also averred that the risk was thereby increased; and if the allegations of the answer be put in issue, whether the building insured became vacant, or unoccupied, or the risk was increased, are questions for the jury, upon both cf which the defendant has the burden of proof. ”

The case of the Insurance Company against Leslie, in the 47 Ohio St., page 409, has a uearirig upon this question, as affected by the statutes of the state of Ohio, and of course, by the decisions of the Supreme Court of this state. I will read from the syllabus:

“The act of March 5, 1879, ‘to regulate contracts of insurance of buildings and structures’ (now Secs. 8643 and 3644 of the Rev. Stats,) applies tc all policies issued since it went into effect, insuring any building or structure in this state against loss or damage by fire. The neglect or omission of the company’s agent to make the examination of the property and fix its insurable value, as the statute requires, cannot prevent its application to a policy issued by the company, or defeat or affect the operation of the statute.”
“2d. The statute is founded upon considerations of public policy; its purpose being to exact diligence and care on the part of insurance companies, to avoid improper risks and over-insurance by requiring them to cause their agents to make personal examination of the property, a full description thereof, and fix its insurable value, as well as to protect the insured against unreasonable forfeitures and defenses. The more effectually to accomplish these results, the statute holds the company liable on its policy, unless after its issue, a change occurs increasing the risk without its consent, or the insured has been guilty of intentional fraud, and in case of the total loss of the property by fire, the measure of the liability is fixed at the amount mentioned in the policy, upon which the insurer received a premium. The statute cannot be regarded as conferring upon the assured a mere personal privilege which may be waived by agreement. It molds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.”

We had occasion to examine this question in a case that arose in Williams county at the June term, 1891, — the ease of The People’s Mutual Fire Insurance Company, against Clarence Bowersox, receiver. In that case there was a clause in the policy by which the company would not be liable by virtue of any policy issued by it for incumbrance procured or-suffered to accrue covering property e therein specified,- or-¡any part thereof. There had been a judgment rendered-in that case upon two.notes with cognovit in the usual-form, in an action below, and it was claimed that the placing of these liens, or permitting them to be placed upon the property by giving this cognovit, avoided the policy. - We'followed the same doctrine that is laid down in the' 47-Ohio St., and held that it did not avoid the policy, unless.it was ¡shown-that the risk was increased, and the burden-was upon the defendant to prove that. Those rules, we suppose, apply to all the matters set up subsequent to the issuing of the policy. (See 5 C. C. Rep., p. 444.)

In regard to the bringing of the suit, that was brought in the name of Louis Phillips. It is shewn in evidence -that subsequent to the making of the policy, the -property'had been conveyed to Margaret Phillips. That is not denied in the reply. Evidence was offered to show that the-conveyance was made in trust for-the plaintiff, Louis Phillips. It was claimed in testimony that Louis Phillips had'become perhaps weak in mind,or his faculties a little impaired, and for the purpose of protecting the property, under the advice of counsel, the legal title of the property was placed in the name of Mrs. Pihllips, and m trust for Louis Phillips, who was, -in fact, the real owner of the property.

That particular fact was not set up in the reply. We think, of course, it ought to have been, because it is a very material and important matter; but we think, from that state of facts, that the plaintiff could have the right to commence an action, if he chose, in his on name. It is true that under Sec. 4995, an executor, administrator or guardian, a trustee of an express trust, may bring an action in his on name without joining with the other party.

There are a large number of requests that were made by counsel to be given to the jury before argument, both'on' behalf of the plaintiff, and on behalf of the defendant.

The statute permits propositions of that kind to be submitted to the court, and the court should be required to either give them or refuse to give them. The difficulty with many of these propositions is tnat they are very general,and it is a 'dangerous to give abstract propositions of law tb a jury. A request should be so molded as to fit the facts of -the case as they are claimed, at least, by the respective parties, and the court should be asked then to charge that if the jury find the facts to be so and so, then the law would be so and so. That is to say that, finding the facts to be so and so by the jury, the law should be stated with that distinctness and care which is to guide the jury in coming to a conclusion in regard to respective rights and liabilities of the parties under the laws of the land.

The court, if I understand the record correctly, refused to give the proposition in substance — that even if the plaintiff could not recover for the value of the buildings, that he might recover, under proper circumstances, for the personal property. That is to say, as we understand it, the court construed the contract to be one and indivisible, inasmuch as the clause, of the policy provided that in case there should be any change in the title or any part thereof, or that the same should be encumbered by mortgage or otherwise, without the written consent of the party, then the policy shall be void. I have pointed out that the Supreme Court of this state have taken a different view in regard to that class of policies, and that the charge of the court in that respect should be so modified as to meet the views of the Supreme Court of the state.

As to conditions subsequent, the Coleman case I think settled that question. The views of the Supreme Court of this state are, that the rule is the same with regard to conditions that are subsequent as-it is with regard to conditions that are precedent. They follow the same general rule. My own conclusion is, from the decisions, that conditions subsequent follow the same as conditions precedent.

There is another matter that is referred to here in the record, and that is the examination of the witness, Margaret Phillips. She was called and examined by the plaintiff in regard to the occupancy of the buildings and in regard to the contents of the buildings at the time of the fire, and some other matters; and then,upon cross-examination,counsel for the defense propounded this class of questions. On cross-examination, questions were asked and answers were given for the purpose of showing the character of the witness and her interest in the case, and tending to show first, that the witness was at and before the time of the fire, the real owner of the property burned, she having received the deed of the same from Phillips; that the witness had known before the file that the property had been mortgaged for about $4,000; that she had known before the fire that a mortgage had been foreclosed and the property was being advertised for sale by the sheriff, the same week, or a few days after the fire; that witness was desirous of bidding the property-in, and to that end was seeking to raise money; and further, for the purpose of tending to show that the fire in question was of incendiary origin and that she either burned the buildinsg or property insured, or procured the same to be burned.

For the purposes aforesaid, the following questions were asked and allowed by the court:

“Had not Arthur, the mortgagee, brought suit to foreclose the mortgage, and was it not advertised for sale under that proceeding at the time of the fire: Was not the farm deeded to you by your husband after the policy was issued?”

In regard to the first question, that perhaps, is proper, because the allegation of the plaintiff was, that he was the owner of the property at the time it was insured, and he left that matter standing as a fact that he was the owner at the time the fire occurred. That was put in issue by the answer.

It might be competent, under- that state of pleadings, for the defendant to show that he was the owner at the time the fire occurred. The other questions refer entirely to matter that arose upon the defense set up by the company.

Save and except, I think, the question in regard to the incendiary origin of the fire,' — that she either burned the buildings, and property insured, or procured the same to be burned,' — there was no allegation in the answer in any form that the buildings were burned by the plaintiff, or indeed, that the fire was of incendiary origin.

The question as to whether this fire was of incendiary origin was a question entirely foreign to this issue, unless it was connected directly with parties to this suit, because the policy of insurance covers incendiary fires as well as accidental fires, provided the fires are not set by the party himself. Then they proposed to show that she either burned the buildings and property, or procured the same to be burned. The law in Ohio in regard to cross-examination of witnesses is somewhat different in difieren* parts of the state. I had occasion, I remember,several years ago, in connection with the court I was then sitting with, to examine that question. It is said to be the practice in a large portion of the state, to require counsel upon cross-examination, to limit himself entirely to the cross-examination of such matters as have been referred to by plaintiff in his examination in chief; but I think the rule in this district has been, to allow the defendant to cross-examine the plaintiff’s witnesses upon any matters at issue upon which the plaintiff himself might produce testimony, — with this limitation or qualification, that the defendant shall not be permitted-to go into matters of defense in his cross-examination of plaintiff’s witnesses.

There are many reasons in support of that rule, and that is the rule that has been laid down also by the Supreme Court of this state. It is true that in cross examination of a witness, at times, the witness is allowed to be asked about collateral matters for the purpose of testing his memory and sime matters of that kind. It has been allowed to ask the witness if he has not been convicted of crime sometime for the purpose of affecting his credibility. But I suppose when a party goes into anything merely collateral for the purpose of testing the witness’s memory, the court should guard jealously and carefully that the party shall not be allowed to treat the answers as proof óf independent evidence before the jury. In a case of this kind it was very easy to raise the issue where a party could, offer testimony himself in regard to the origin of that fire.-

If the company believed that that fire was of an incendiary origin by the act or procurement of the plaintiff or of this witness, that .matter could be averred and set up in their answer, and testimony could be offered upon it. How far the witness might be examined upon that as to testimony in chief, is perhaps doubtful; however, she offered herself as a witness upon that issue,and she probably would open herself to a full cross-examination in regard to the whole matter; but we think that the court ought not to permit counsel to go into matters of this kind without any issue, for the purpose of getting independen t{testimony before the jury — or in attempting to — that would tend to show or throw suspicion upon the plaintiff, or a suggestion that she herself had been the cause of the fire; nor should he be permitted to go into those matters which are purely matters of defense.

The burden of proof rests upon the company, by the decision of the Supreme Court, and it should have waited until such time as it had an opportunity to put its witnesses on the stand; then it could have opened up its case, and probably that would have brought all these matters before the jury, and would have given counsel ample opportunity to examine his witnesses.

We note that although the testimony was allowed to go to the jury, nothing was said by the court to the jury in regard to any limitation upon the testimony.

For the reasons I have stated, the judgment of the court of common pleas will be reversed, the verdict set aside, and the cause remanded tc the court of common pleas for a new trial.