agreed, as the county could not afford to try the case over again, or for him to use similarly coercive language.57 Each juror should be left perfectly free to pronounce his own convictions and the judge should not, even if his patience is tried, infringe upon the functions of the jury by suggestion or otherwise,58 but if the restraint is not improper or no injustice is done the complaining party, a reversal is not warranted. It is not error to call attention to the fact that an agreement is desirable.60 Absence of the Judge and Other Irregularities. During the absence of the judge from the presence and the hearing of the jury while evidence is being taken or counsel is arguing, the proceedings are regarded as coram non judice. There is no court without a judge and his presence is as necessary at one time as another to assert his authority, and it has been held in a criminal case, in which class of cases this point most frequently arises, that it makes no difference that the parties consented and that the judge 61 57 Slater v. Mead, 53 How. 57; N. D. C. Ry. Co. v. McCue (Tex. Civ. App.), 35 S. W. Rep. 1080; Ins. Co. v. White (Ark.), 24 S. W. Rep. 425; State v. Hill, 91 Mo. 423; McPeak v. Railroad, 128 Mo. 644; Physioc v. Shea, 75 Ga. 466; T. H., etc. R. Co. v. Jackson, 81 Ind. 19; State v. Bybee, 17 Kan. 462; State v. Ladd, 10 La. Ann. 271; Randolph v. Lamkin (Ky.), 14 S. W. Rep. 539; Edens v. Railroad Co., 72 Mo. 212; Phoenix Ins. Co. v. Moeg, 81 Ala. 335; Pierce v. Rebfus, 35 Mich. 54; South. Ins. Co. v. White (Ark.), 24 S. W. Rep. 425; Green v. Telfair, 11 How. Pr. 260; T. H., etc. R. Co. v. Jackson, 81 Ind. 19; Obear v. Gray, 68 Ga. 182; Spearman v. Wilson, 44 Ga. 473. Similar error on the part of a sheriff is reversible. Gholston v. Gholston, 31 Ga. 625. 58 Sargent v. Lawrence, 16 Tex. Civ. App. 540; People v. Engle, 118 Mich. 287 (distinguishing Com. v. Tuey, 8 Cush. 1); McPeak v. Mo. Pac. Ry. Co., 128 Mo. 644; State v. Hill, 91 Mo. 423; State v. Punshon, 124 Mo. 458; Ins. Co. v. White (rk.), 24 S. W. Rep. 425; Goodsell v. Seeley, 46 Mic 623; Randolph v. Lampkin (Ky.), 14 S. W. Rep. 8. 59 Shely v. Shely (Ky.), 47 S. W. Rep. 1071; Farnham v. Farnham,73 Ill. 497; State v. Garrett, 57 Kan. 132; Wiggins v. Downer, 67 How. Pr. 65; Erwin v. Hamil. ton, 50 How. Pr. 32 (distinguishing Green v. Telfair, 11 How. Pr. 260); State v. Rogers, 56 Kan. 362; (distinguishing State v. Bybee, 17 Kan. 462); Buntin v. Danville, 93 Va. 200; Pierce v. Rehfus, 35 Mich. 53. 60 Allen v. Woodson, 50 Ga. 53. 61 Palin v. State, 38 Neb. 862; Thompson v. People, 144 Ill. 378; Hayes v. State, 58 Ga. 35; State v. Bener. man, 59 Kan. 586, 53 Pac. Rep. 874; O'Brien v. People 17 Colo. 561; 1 Bishop Cr. Pro. sec. 957; State v, Smith, 49 Conn. 376; Davis v. Wilson, 65 Ill. 525; Britton v. Fox, 39 Ind. 369; State v. Carnagy, 106 Iowa, 483; Palin v. State, 38 Neb. 862. 63 was in the same building and an attorney was presiding in court.62 It is not reversible error for the judge to step into an adjoining room where he can hear what is said in court and be ready to pass on objections, and in any event to justify a reversal it must appear that prejudice resulted.64 In at least one reported case the trial judge it appeared was intoxicated while on the bench. The conduct is characterized not only as reprehensible but also as criminal.65 Exceptions by Counsel.-It is the duty of the counsel complaining of what is regarded as misconduct on the part of the trial judge to object thereto and to preserve exceptions to the rulings. If this is not done the objections are considered waived.66 The mere statement of counsel in a record on appeal that the judge acted improperly on the trial is not sufficient. The error must be made clearly to appear.67 A party who does not ask that the jury retire, during a discussion, cannot afterwards object on the ground that the remarks were made in the jury's presence.68 When improper acts are not done in court, of course counsel are not expected to object at the time, but can bring the irregularities to the attention of the court on a motion for a new trial.69 While the above doctrine requiring the preservation of exceptions is generally adopted there are cases in which verdicts will be set aside without ex 62 Merideth v. People, 84 Ill. 479. On a point that a member of the bar cannot exercise judicial powers see Hoagland v. Creed, 81 Ill. 506; Bishop v. Nelson, 83 Ill. 601; and Cobb v. People, 84 Ill. 511. 63 Shintz v. People, 178 Ill. 320; Turbeville v. State, 56 Miss. 793; State v. Smith, 49 Conn. 376. 64 Allen v. A. & C. Ry. Co., 106 'Iowa, 602. The appellate court of Illinois has recently decided in C. C. Ry. Co. v. Anderson, 93 Ill. App. 419, that while a nap of four or five minutes during a trial of eight or nine days' length is an irregularity on the part of the judge, it is not necessarily reversible error, when counsel does not suspend the examination of the witness on the stand or attempt to awaken the judge and no exception is taken to the latter's conduct. This case has just been affirmed by the supreme court, 193 Ill. 9. 65 Redpath v. Walker, 13 Colo. 109. 66 Mahoney v. Decker, 18 Hun, 365; C., etc. Co. v. Havelick, 131 Ill. 179; Fein v. Cov M. B. Assn., 60 Ill. App. 275; Throckmorton v. Eve. Post Pub. Co., 54 N. Y. Supp. 887; Com. v. Preston, 188 Pa. 429; Owen v. Long, 97 Wis. 78; Cone v. Smyth, 3 Kan. App. 607. 67 Reiger v. Davis, 67 N. Car. 185; Mittel v. City of Chicago, 9 Ill. App. 543; Kellar v. State, 102 Ga. 506. 63 Gregory v. State: (Tex. Crim. App.), 43.S. W. Rep. 1017, rebearing denied 48 S. W. Rep. 577. 69 Danes v. Pearson, 6 Ind. App. 465. ceptions. Justice Ward, of New York, on this subject, said: "A verdict improperly influenced by a misdirection of the judge or by prejudicial statements will be set aside upon motion upon a case made, although no exception has been taken at the time of the trial.''70 Conclusion. Decisions bearing on the different phases of the general subject under discussion are too numerous to permit their exhaustive citation with convenience and profit. The foregoing considerations are based, so far as practicable, on the more recent decisions. One conclusion is, that reversals on account of errors on the part of trial judges continue to be frequent. A change in this respect can be effected in one of two ways: improvement in conduct and speech on the part of judges or modifications in the jury system as fixed by constitutional and statutory provisions and judicial interpretations thereof. While it may be insisted by some that the system could be improved, there is apparent no general desire for modifications sufficiently radical to dispense with free and unbiased verdicts, and so long as unprejudiced judgments by the jury on the facts are desired, so long will trial judges be limited in the exercise of their powers in order that the province of the jury may not be invaded. A system of trials by jury, as free from extraneous and improper influences as possible, is apparently as highly cherished by the people now as it ever has been. The position of a judge presiding at a jury trial is a difficult one, requiring wise discretion and good judgment. Portia, although entertaining a prejudice seldom exceeded was praised during a brief judicial career for being an upright and learned judge. There are many more excellent qualities besides uprightness and learning that the competent trial judge should possess. He should be vigilant in the detection of trickery and fraud and yet patient when dealing with the timid and inexperienced. He should be determined, for the enforcement of law requires strength, and yet he should be open to conviction in order that his opinions may not 70 Davison v. Herring, 48 N. Y. Supp. 760; Whittaker v. Canal Co., 49 Hun, 400, 8 N. Y. Supp. 576; Roberts v. Tobias, 120 N. Y. 6, 23 N. E. Rep. 1105; Mandeville v. Martin, 30 Hun, 282; Hogan v. Railroad Co., 124 N. Y. 649, 26 N. E. Rep. 950. lead him to oppose the right. He should be industrious, impartial, considerate and, in brief, pre-eminently capable. Matters before him are frequently of great importance and the questions involved bitterly contested. The lawyers are partial to their respective sides, if not unreasonably prejudiced. They are sometimes shrewd and in too many instances dishonest. Witnesses are in many cases careless, forgetful and ignorant. All these and many other considerations add to the difficulties of the trial judge. Under these circumstances there should be no blame attached to an honest, competent judge, who, inadvertently or by mistake, commits a reversible error, His elevation to the bench did not lift him above fallibility. cuses. The printed law reports, however, show conclusively that trial judges do commit errors for which there can be no valid exRemarks are made or acts done by judges who must have been prompted at the time by levity, impatience, anger, partiality or absolute indifference to the cause of justice. To avoid the prejudicial effect of errors of this kind statutes and judicial decisions restrict trial judges to such conduct and remarks as are required by a proper regard for the rights of litigants and the province of the jury. Chicago. CYRUS J. WOOD. FIRE INSURANCE-REMOVAL OF STOCK-CON- Supreme Court of Michigan, July 10, 1901. 1. Comp. Laws, sec. 7246, relative to foreign insurance companies, declares that the term "agent" shall include any acknowledged person who shall aid in transacting the business of any foreign insurance company. Held, that where an insurance agent procured another to write a policy in one of his foreign companies on property of the former agent's customer, and thereafter delivered the policy, collected the premiums, and attended to all dealings relative to the policy with the insured, he was the agent of the company, so that his consent to a removal of the stock to other premises was binding on the insurer. 2. Where a policy provides that no conditions thereof shall be waived or altered unless consent thereto is indorsed on the policy, but the company's agent consents to a removal of the insured stock to other premises, and continues to accept premiums, the insurer cannot defend against an action on the policy on the ground that the consent was not binding, not having been indorsed by the policy. MOORE, J.: This is an action upon a fire in surance policy. The policy was dated September 4, 1894, and was for one year. It contained the following provisions: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to wave any provision or condition of this policy except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured, unless so written or attached." It is conceded that, if defendant is liable at all, it is for $1,800 and interest from July 19, 1899. The facts are not in dispute. The plaintiffs are wholesale merchants in Detroit. For some years their place of business was at 143 Jefferson avenue. In September, 1898, plaintiffs ordered from Bierce & Sage $4,000 of insurance, and they delivered two policies of $2,000 each, running one year from above date. One of these policies was in the defendant company. Bierce & Sage were not agents for this company, but it was represented in Detroit by one Victor P. Gaukler, from whom Bierce & Sage ordered the insurance. Gaukler delivered the policy to Bierce & Sage, and the latter delivered it to plaintiffs. Later Bierce & Sage collected the premium from plaintiffs, and made a settlement with Gaukler. Plaintiffs began moving from 143 to 185 Jefferson avenue about January 1, 1899. Before commencing to move, Robert Pollock had called the attention of Frank Sage, an employee, and special agent for Bierce & Sage, to the contemplated change, and shown him the new location. Sage told him he was glad they were going to move, that it was a better risk, and that their insurance must be transferred. The record shows the fire risk in the new location was regarded as less than in the old one. January 3d, Robert Pollock telephoned Bierce & Sage to transfer their insurance from 143 to 185. Mr. Sage then called up Gaukler's office, and told the young lady who answered the telephone that Pollock, Pettibone & Chapman were moving, or had removed, to 185 Jefferson avenue, and wanted their insurance transferred. All of these policies were transferred as of January 3d, except two, which were transferred on the 9th. Plaintiffs supposed all their insurance had been transferred to the new location. The fire occurred April 4, 1899. After the fire, it was discovered that the policy in defendant company had not been formerly transfered to the new location by transfer slips actually affixed to the policies. It is insisted Bierce & Sage were not defendant's agents, and that no permission was given in writing to remove the goods to the new location. The first question calling for attention is, under the facts and circumstances shown, were Bierce & Sage agents of the defendant? The legislature of this state has undertaken to regulate the manner in which, and the conditions under which, foreign insurance companies can do business in this state. Section 7246, Comp. Laws, makes it obligatory upon the company to do certain things before it can do business at all in the state. The section also contains a provision reading as follows: "The term agent or agents under this section, shall include any acknowledged agent, surveyor, broker or other person or persons who shall in any manner aid in transacting the insurance business of any insurance company not incorporated by the laws of this state." Wisconsin has a statute in substance like this one, which has been construed by the courts of that state a number of times. In Schomer v. Insurance Co., 50 Wis. 575, 7 N. W., Rep. 544, the facts are almost, if not quite, the same as those in this case, Lawson standing in the place of Bierce & Sage. In disposing of the case the court said: "Now, it is difficult to imagine what object this provision was intended to accomplish, or what purpose subserve, if it has not the effect, under the circumstance, to make Lawson the agent of the defendant in the transaction. His acts certainly bring him within both the letter and the spirit of the law. He was the only real actor for the defendant in making the contract. Pro hac vice he assumed to represent, and did represent the company in the matter. He received the application, settled with the insured the note and terms of insurance, delivered to them the policy, collected the premium, and shared in the commission. In fact, he did everything that was done on behalf of the company, except the mere act of countersigning the policy. He was the only person the plaintiffs dealt with. They knew no other agent in effecting the insurance. They were totally ignorant of his relation to the defendant, or of his want of authority to represent and act for it. It is idle to deny that he did not in any manner aid or assist in making the contract for the company when he was, in fact, the only person who did treat with the plaintiffs on its behalf. * *But * it is said that is was unreasonable to make the defendant responsible for the acts of Lawson, who was never authorized to act for it, or bind it in any way. The answer to this objection is, the legislature has assumed the right to regulate the business of insurance, and prescribe the manner it shall be conducted in this state. It has declared that whoever solicits insurance on behalf of an insurance company, or makes any contract of insurance, or in any manner aids or assists in making such contract, or transacts any business for the company, shall be held an agent of such company to all intents and purposes The obvious intention of the legislature is to * make an insurance company responsible for the acts of the person who assumes really to represent and act for it in these particulars, and to change the rule of law that the assured must, at his peril, know whether the person with whom he is dealing has the power he assumes to exercise, or is acting within the scope of his authority. * *It seems to be designed in the clearest manner to make the company responsible to the public for the acts of one whom it permits to solicit insurance on its behalf, or who receives applications for insurance, makes or aids in making contracts of insurance, or transacts the business, whether such person has in fact authority to act for it or not. The law imposes upon the company the duty of seeing to it that none but its regular authorized agents shall do its business, or deal with the public. It is certainly not difficult for an insurance company to say to the local agents that they alone must transact the bus ness; that they must in all cases deal directly with the insured in making insurance contracts, and not allow the interference of any stranger in its business, for whose acts it does not wish to be held responsible. That this is the plain object and intent of the statute we have no doubt. And, where the insurance company issues a policy in a case where a person has assumed the right to act for and represent it in making the contract, it must abide by the consequences, and meet the liability which the statute imposes upon it." A like statute applying to a like case was construed in Insurance Co. v. Ruckman (Ill. Sup.), 20 N. E. Rep. 77, where the court said: "The manifest intention was to make such companies responsible for the acts, not only of its acknowledged agents, etc., but also of all other persons who in any manner aid in the transaction of their insurance business. Nor do we see anything inequitable or oppressive in such provision. Doubtless, the mere assumption of authority to act for an insurance company will not of itself charge the company with responsibility for the acts of the assumed agent. The company must in some way avail itself of such acts, so that the person performing them may be said to aid the company in its insurance business. But, after the company has availed itself of the acts of the assumed agent, and thus adopted them as its own, there is nothing oppressive in assuming as against such company the existence of the relation of principal and agent, and charging the company, with responsibility for such acts." See, also, Alkan v. Insurance Co., 53 Wis. 136, 10 N. W. Rep. 91; Co., 63 Wis. 157, 23 N. W. Rep. 132; Bennett v. Insurance Co., 70 Iowa, 600, 31 N. W. Rep. 948; May v. Assurance Co. (C. C.), 27 Fed. Rep. 260; McGraw v. Insurance Co., 53 Mich. 145; Ahlberg v. Insurance Co., 94 Mich. 259, 53 N. W. Rep. 1102. We see no reason why the same construction should not be put upon this statute that has been put upon like statutes in sister states. We then come to the question, does the liability of the company cease because the goods were removed to a new location without the consent to the removal being indorsed upon the policy? In Ins. Co. v. Gusdorf, 43 Md. 506, the policy provided that "anything less than a distinct agreement indorsed on this policy shall not be construed as a waiver of any written or printed condition, restriction or stipulation herein contained." The goods were damaged by fire during the life of the policy, but not until they had been removed to an adjoining building. Previous to the removal, the insured went to the company's office, and there saw the president, and notified him that he desired to move into another brick building, and asked whether there was any objection to his so doing. The president asked him if he had his policy with him, and, on being informed that he had not, replied it did not matter; he could fix it all right. Insured understood him to say it was not necessary for him to bring the policy. The company defended on the ground that there was no indorsement on the policy consenting to the removal of the goods. Miller, J., after referring to the case of Insurance Co. v. Crane, 16 Md. 260, 77 Am. Dec. 289, which was a case of additional insurance without the stipulated indorsement on the policy, said: "Since that decision, the doctrine of equitable estoppel has, especially in insurance cases, been extended, and applied at law as well as in equity, by adjudications of the courts of last resort in many of the states, and the current and weight of judicial precedent and authority in this country have established the proposition that in such cases the estoppel is equally available in either tribunal. The supreme court in Wilkinson's case, 13 Wall. 222, 20 L. Ed. 617, has also in a very able opinion sustained this position. The principle is that, where one party has, by his representations or his conduct, induced the other party to a transaction to give him an advantage, which it would be against equity and good conscience for him to assert, he would not, in a court of justice, be permitted to avail himself of that advantage. This proposition, thus sustained by the modern decisions, and founded in reason and justice, they add, does not admit that the written instrument may be contradicted by oral testimony, but goes upon the idea that it may be shown by such testimony that the written instrument cannot be lawfully used against the party whose name is signed to it. Most of the reported cases in which this doctrine has been applied, are those where the acts, representations, or omissions of the agents of the companies precede or attend the issuing of the policies. But it is also applicable where facts arise during the currency of the contracts; as, for instance, where, in cases of insurance by a mutual insurance company, assessments have been made and received by the company on the premium note, or where premiums have been received after knowledge, actual or constructive, * operate of the invalidity of the policy ab initio, or of a subsequent breach of its conditions. May, Ins. § 502. In our opinion, the case before us falls clearly within the principle thus established, and it is no extension of the doctrine thus to apply it. The assured, before removing his goods, applied in person to the president of the company, and asked him if there was any objection-that is, would the removal affect the continuance of the insurance upon them? He was informed by the president, who knew of the absence of the policy at the time, that it was no matter, that he would fix it all right, and that he need not bring the policy. That is, he said to the assured, in effect: 'Go on, and remove your goods. You need not bring your policy, and have the permission to do so indorsed on it. The insurance shall continue in force without such indorsement.' The assured departs, and removes his goods, relying upon the statements and assurance thus made and given to him. By so acting he did that which prejudiced his interest under the policy. He thereby gave the company the advantage of retaining the premium without further continuance of the risk, and also the advantage of setting up this defense against their liability after the loss had occurred. Would not the successs of this defense a fraud upon the assured? We think it clear the company ought to be and are estopped from making it. Whilst the law affords ample protection to these companies, as well as to individuals, against frauds, misrepresentations, and breaches of warranty, it will not, and ought not, to help them to perpetrate frauds upon those with whom they make contracts, in which good faith on both sides, as well in their continuance as origin, has always been regarded as a ruling consideration." In Henschel v. Insurance Co.,4 Wash. 476, 30 Pac. Rep. 735,31 Pac. Rep. 332, 765, the insured, desiring to remove his goods several blocks distant from the place where they were originally insured, delivered his policy to the company's agent, who promised to indorse consent to the removal on the policy, in writing, and return it to him. Before the indorsement was made, the building to which the goods had been in the meantime removed was burned, and a loss occurred. The agent then indorsed a cancellation on the policy. The company disclaimed liability, and in an action insured recovered the full amount of the insurance. The policy contained a clause like the one in the policy in this case as to limitations upon the power of agents and the necessity for written indorsements. Stiles, J., said: "The appellant substantially claims for a clause the construction that, until its consent was physically indorsed upon the paper, the property of the respondent was unprotected in its new location, notwithstanding the agreement of the agent to indorse the necessary consent, and his receipt and retention of the policy for that purpose. The respondent claims that the conduct of the agent estops the appellant to say that the proper indorsement was not made. Appellant's counsel have presented us many eminent authorities upon the subject of the waiver of conditions in such contracts by agents, but with due respect to the learning of counsel, and the force of the authorities they produce, we cannot regard this as a case of technical waiver. We do not find that the respondent is proposing to strike from the policy a single line or word, but that, fully recognizing the binding force of the extremest stipulations against him, he went to the agent, and himself proposed a strict compliance with them. To this proposition the agent assented, and agreed, not that anything should be waived, but that he himself would indorse upon the contract the words necessary to cover the goods in their new location; and now the respondent, invoking the equitable rule that, since he has relied upon the promise made to him, what was agreed to be done shall be taken as having been done, claims that the contract is what it, but for the negligence of the agent, undoubtedly would have been." The court then proceeds to discuss the power of the agent, and quotes with approval, Insurance Co. v. Gusdorf, 43 Md. 506, and closes with these words: "So, in this case, the appellant, having received the premium for a year's insurance, now, without any offer to return any portion of the unearned premium, sets up what we deem an unconscionable defense, when it claims that, after actually insuring the respondent less than thirty days, the neglect of its own agent to do what he ought to have done should relieve it of all liability." In Pelkington v. Insurance Co., 55 Mo. 172, where it was made the express condition of a contract of insurance that, if the assured should make any other insurance on the property without the written consent of the company indorsed on the policy, he should recover no insurance thereon, and it appearing that the agent was duly notified of such additional insurance, and made no objection, the court said: "When the assured has notified a company that he has procured additional insurance, it is the duty of the company, if it does not intend to be further bound, or to continue the risk, to express its dissent, and not allow the party to repose in fancied security, to be victimized in case of loss. It is unconscientious to retain the prem um, and affirm the validity of the contract, while no risk is imminent, but, the very moment that a loss occurs, then to repudiate all liability, and claim a forfeiture. If the indorsement is not made upon notice duly given, a waiver will be presumed, in the absence of any dissent. If a party, by his silence, directly leads another to act to his injury, he will not be permitted, after the injury has happened, to then allege anything to the contrary, for he who will not speak when he should will not be allowed to speak when he would." See Copeland v. Insurance Co., 77 Mich. 560, 43 N. W. Rep. 991, 18 Am. St. Rep. 414; Tubbs v. Insurance Co., 84 |