
    Martin et al. v. Elden.
    1. A -witness may be cross-examined as to his examination-in-ehief, in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination-in-chief. The right to cross-examine extends, in any view, to all matters connected with the res gestee.
    
    2. The denial of such right, upon a trial, is error, for which a judgment may be reversed by a reviewing court, though the cross-examiner does not disclose the answers which he expects to elicit by such cross-examination. The rule requiring such disclosures is not, ordinarily, applicable to what is strictly cross-examination.
    Error to the District Court of Jackson county.
    The original action in this case was instituted by defendant in error, William Elden, who filed his petition in error in the Court of Common Pleas of Jackson county, against, the plaintiffs in error, John M. Martin, his father-in-law, John Stinson, Maria Martin, his wife, and his three sons,.. George Martin, James Martin, and William S. Martin.. In his petition he alleged, in substance, that in June, 1855, he recovered a judgment against the said John M. Martin for $1,057.16, with ten per cent, interest and costs, which was revived in February, 1868, and still remained in full force and wholly unsatisfied, and that execution had been issued thereon, and returned unsatisfied; that said John M. Martin, in 1862 and 1863, purchased sundry lots in the town of Jackson, he paying the full consideration therefor, but fraudulently procuring the title to said lots to be conveyed by the vendor to his father-in-law, John Stinson, to prevent the plaintiff from levyiug an execution thereon, and that Stinson afterward, in August, 1866, conveyed some of said lots to Maria, wife of said John M. Martin, and others of them to George Martin, son of said John M.; that said John M. Martin, in March, 1866, purchased a part of another lot in the town of Jackson, and paid in full the consideration therefor, but, for the same fraudulent purpose, took the title therefor in the name of his son, James Martin; that one of the lots, so fraudulently conveyed to George Martin, was by him subsequently conveyed to his brother, Wm. S. Martin, who mortgaged the-same back to him, to secure the payment of $1,000, with interest; that said mortgage, and the note secured thereby, was held by said George Martin in trust for said John M-Martin. He thereupon asked to have all of said lots subjected to sale for the satisfaction of his said judgment against John M. Martin.
    The defendants answered severally, each of them denying all the fraud charged ; John M. Martin denying that he purchased either of said lots, or paid the purchase money therefor, or any part thereof, and disclaiming any interest therein, except such as he might have as tenant by courtesy in the lots conveyed by his father-in-law to his wife, Maria. Stinson avers that he purchased the lots conveyed to him with his own money and means, and subsequently conveyed a portion of them to his daughter, Maria Martin, by way of advancement, and that the residue of said lots he purchased for his grandsons, George Martin and James Martin, intending to convey the same to them in ease they were successful in raising the money and means to pay the purchase money therefor, and that upon their paying such purchase money from the funds received by them as pay and bounty while in the army, he conveyed said lots to them accordingly. George Martin ■answered, averring that he paid from his own money and means for the lots conveyed to him by his grandfather, and that he was the legal owner and holder of the note and mortgage executed in his favor by his brother, William S. Martin. James Martin answered, denying that John M. Martin had any interest, legal or equitable, in the lots to which he holds the legal title, and averring that the same were purchased for him, and paid for out of his own separate money and means. Maria Martin denies all the fraud charged, and avers that the lots conveyed to her were purchased and paid for by her father, John Stinson, ■as stated in his answer.
    Upon the hearing of the case in the court of common pleas, a decree was rendered for the defendants below. An ■appeal was taken, by plaintiff below, to the district court, where he amended his petition by alleging that the co-defendants of John-M. Martin, knowing him to be insolvent, received moneys, goods and chattels, and choses in action belonging to him, and permitted the same to be held in their own individual names, and thereby became trustees of the same for the benefit of his creditors, and ought to account therefor. Defendants answered denying these .averments.
    Upon the trial of the case in the district court, a decree was entered in favor of the plaintiff below, ordering a sale, for the satisfaction of plaintiff's judgment, and of the ■claims of other creditors who might come in and prove their claims, of all the lots in question, except a part of a lot which the court found was purchased and improved by James Martin, from his own means, and belonged to him. But the court further found, that said James Martin permitted John M. Martin to deposit the sum of $1,300 in bank, and there remain, for the purpose of hindering, delaying, and defrauding the creditors of John M. Martin, .and that he held the same in trust for the benefit of such creditors, and awarded judgment and execution against him for said sum, with interest.
    
      Defendants moved the court for a new trial, but their motion was overruled, and they excepted.
    The motion for a new trial was predicated on the following grounds:
    1. That the judgment given in this case is against and contrary to the weight of the evidence and the law of the case.
    2. That the court erred in refusing to permit H. L. Chapman to answer certain questions propounded to him on-cross-examination by defendant’s attorney, and in permitting said witness to answer certain questions propounded-to him by plaintiff’s attorney, as will fully appear by a bill of exceptions, marked “A,” and hereto attached as part of this motion, for certainty.
    Two bills of exception were taken on the trial, by defendants below; in one of which is embodied all the evidence offered by the parties on the trial. The other brings on the record certain rulings of the court as to the admission and exclusion of evidence upon the trial. The latter-bill of exceptions is as follows :
    “ The plaintrfij to maintain the issue on his part, called to the witness stand H. L. Chapman, who testified that he was a banker in Jackson, Ohio, and that John M. Martin opened an account with the bank in the name of James Martin, the first deposit being made July 2,1866, and last one 17th of March, a. d. 1869; and that a great many of the deposits up to $150 were made by James, and James-frequently drew money out, but John M. Martin generally attended to it, and took up the checks and had the bank book balanced.
    “On cross-examination the defendants, by their attorneys, propounded to said witness the following questions :
    “ ‘At the time this money of which you speak was deposr ited to the credit of James Martin by John, how did you-come to place it to James’ credit, and what <jid John say about it ? ’
    “ Whereupon, the plaintiff, by his attorney, objected to-the witness answering said questions, which objection was-sustained by the court, and said witness was not permitted to answer said questions, and said testimony ruled out, to which opinion of' the court said defendants, by their attorneys, excepted ; thereupon, the defendants, by their attorneys, propounded to said witness, the following questions, to wit:
    “ ‘How did you come to place to the credit of James Martin money placed there by John M. Martin ? ’ To which said witness answered by saying, ‘ I did it by the instructions of John M. Martin ; ’ and thereupon, the defendants, by their attorneys, propounded to said witness the following question, to wit:
    “ ‘What languagedid John M. Martin use in giving those instructions ? ’
    
    “Whereupon, the plaintiff, by his attorney, objected to the witness answering said question, which objection was sustained by the court, aud said witness was not permitted to answer said question, and said testimony was ruled ■out; to which opinion and ruling of the court the defendants, by their attorneys, excepted, and prayed the court this their bill of exceptions' in that behalf might be allowed.
    “In the examination-in-chief of said witness, H. L. Chapman, there was propounded to him the following question, to wit:
    “ ‘ What is the present value of the homestead property of John M. Martin, and what is the present value of the houses on the other lots, and of the lots also ?'
    “Whereupon, the said defendants, by their attorneys, objected to the, witness answering said question, which objection was overruled by the court, and said witness was permitted to answer said question, to which said several rulings and holdings of the court the said defendants excepted.”
    The assignment of errors here, draws in question the correctness of these rulings of the court below, as well as the findings of the court upon the evidence.
    
      
      Hoffman & Hoffman, for plaintiff in error.
    
      John W. Okey and J. R. Challen, for defendants in error.
   Scott J.

As to the competency of the question propounded by the plaintiff below, to his witness, Chapman, in his examination-in-chief, it is certainly not easy to perceive any legitimate bearing that an inquiry into the present value of John M. Martin’s homestead property, or as to the present value of the other lots in controversy, could have upon the facts in issue between the parties. It certainly could throw no reliable light on the question of their cost a number of years previously.

We are inclined to think that the question was, at least, not relevant to the issues made by the pleadings ; and that the objection to it should have been sustained..

But whether the answer of the witness (which is shown by another bill of exceptions) was prejudicial to the plaintiffs in error, so as to require a reversal of the j udgment bn account of its admission, we find it unnecessary to determine.

Eor, we are clearly of opinion that the court below erred in refusing to permit this same witness to answer the questions put to him, on cross-examination, by defendants below. Those questions were, in every respect, pertinent and proper. The importance of the right of full cross-examination, of an adverse witness, can scarcely be overestimated. As a test of the accuracy, truthfulness, and credibility of testimony, it is invaluable. It is the clear right of a party cross-examining', to elicit suppressed facts, which weaken or qualify the case of the party examining in chief, or support the case of the cross-examining party. Powell on Ev. 380. “In any view, the right of cross-examination extends to all matters connected with the res gestee.” Wharton’s Law of Ev. § 529. A witness may be cross-examined, as to his examination in chief, in all its bearings, and as to whatever goes to explain or modify what he has stated in his examination in chief. Wilson v. Wagar, 26 Mich. 452.

In the case before ns, the witness, Chapman, on his examination in chief, had testified that John M. Martin had, at a specified time, opened an account in his bank, by depositing therein moneys in his possession, in the name of his son, James Martin. The vital question in the case, was-whether the moneys thus deposited belonged to John M. Martin or to his son, in whose name they were deposited., The plaintiff below was interested in showing that these moneys, in fact, belonged to his debtor, John M. Martin.. Eor this purpose, he proved by the witness, that John M-Martin had the moneys in his possession, which was prima facie evidence of ownership, and that he exercised the rights-of apparent ownership over them, by depositing them in witness’ bank. This evidence, unexplained, would tend strongly to show that John M. Martin was depositing his-own money, for a fraudulent purpose, in the name of his son. To counteract the effect of this testimony, the witness was asked, on cross-examination, to tell what John M. Martin said about the money at the time of depositing it.. The court refused to allow this question to be answered. We think his declarations, made at the time of making the deposit, were, to all intents, as much a part of the res gestae,. as was the fact of the deposit itself.

The defendants had a right, if they could, on cross-examination, t-o repel the prima facie inference, arising from the examination in chief, that John M. Martin was dealing with these funds, as his own, by showing that he professed, to be acting only as an agent for his son, who had sent him the funds for the purpose of being deposited to his credit..

So far as this testimony might'tend to qualify or explain' the testimony in chief of the witness, it was clearly competent, and the court erred in excluding it. Besides, the witness testified that he placed the funds deposited, to the credit of James Martin, “by the instructions of John M. Martin.” He was thereupon asked, on cross-examination, “ What language did John M. Martin use in giving those instructions ?” • The court did not allow this question to b» answered. Eor the fair import of the language used by John M. Martin, he might well be held responsible; but the court refused to hear what he said, and held him bound by the construction put upon his language by the witness.. We find it impossible to justify this ruling of the court, or-to resist the conviction that the plaintiffs in error were deprived of their right of proper cross-examination.

It is claimed, however, that the judgment in question can not be, for that reason, reversed, because it is not shown what the plaintiffs in error expected or offered to prove by way of answers to the questions propounded on cross-examination. But we think this rule can have no proper application to the cross-examination of a witness. The plaintiffs in error did not call Chapman as a witness for the purpose of proving anything. He was a witness called by the adverse party, and they were seeking to extort from him a qualification of his testimony in chief. They can not be presumed to have known what his answer's would be to questions propounded in proper cross-examination.. Nor would they be bound by such answers. The value of a cross-examination, as a test of truth, would be lost in the-case of a crafty and unreliable witness, if the examiner were-bound to disclose, in advance, the purpose and intent of every question asked. As was said by Welch, J., in the-case of Burt v. State of Ohio, 23 Ohio St. 402: “I know of no case where the rule requiring such a disclosure has been applied to a cross-examination.” Where a witness, on his examination in chief, testifies to important facts in favor of the party calling him, we think prejudice to the-adverse party should be presumed to arise from the denial of the right to a fair and proper cross-examination. And for the error of the court below, in the denial of this right,, its judgment will be reversed.

It is, therefore, not essential to a proper judgment in this proceeding, that we should consider the farther error assigned, and inquire whether the findings and decree of the court below were warranted by the pleadings and evidence-in the case. But, in view of another trial, it is proper to-say that we have examined the evidence with a good deal of care, without discovering anything to justify some of the findings of the court.

The court found that James Martin had permitted his father John M. Martin to deposit the sum of $1,300 in his name, in bank, and there remain for the purpose of hindering, delaying, and defrauding the creditors of John M. Martin; that he holds the same as trustee for said creditors, .and ought to be required to account for the same to the •court, and for that sum with interest from September 10, 1872, judgment and execution was awarded against him.

We have looked in vain for the evidence on which this particular finding and judgment can properly rest.

We are also of opinion that the decree ordering the unconditional sale of all the lots in controversy, was not warranted either by the allegations of the petition or the findings of the court. The petition was not filed on behalf of the creditors of John M. Martin generally, but for the single purpose of subjecting the lots in question to the payment of the judgment held by Elden, the plaintiff below.

The petition charged, and the court found no other fraudulent purpose in the conveyances to and by Stinson, than that they were so made to prevent the plaintiff from levying on the lots, and so to hinder him in the collection of his judgment. No other creditors, if there were any, intervened, or were made parties to the suit. The decree should, therefore, in no event, have ordered the sale of more property than would be sufficient to satisfy the plaintiff’s •claim, with interest and costs.

A.s to the weight of the evidence in regard to fraud in the purchase and improvement of the lots in question, as charged in the original petition, we think it proper to express no opinion.

Judgment reversed, and cause remanded.  