PREFACE.

Ar the December Term, 1859, the Court made the following order: "The Court being of opinion that for volume 9 Ohio State Reports to contain all the cases of the present term to be reported, would make it too large, and would also delay the publication of the volume until the close of the adjourned session to be held in November next, do therefore direct the Reporter to proceed with the publication of said volume, and to put into it such of the unreported cases decided at the last term, which are yet to be reported, as he has been furnished opinions in by the judges, and also such of the cases of the present term to be reported, as will be sufficient to make the volume contain not more than seven hundred nor less than six hundred and fifty pages, including the Index and Table of Cases, as may be practicable."

There are a number of cases decided at December Term, 1859, and for report, which do not appear in the present volume, for want of room. And there are a few cases of previous terms not found in this volume, for the reason that the Reporter could not obtain them. In the next volume he expects to publish the balance of the cases for report, of December Term, 1859, and as many of the unreported cases of previous terms as he can obtain.

Volume 10 will be issued by the first of December next, and will contain such of the cases to be decided at the adjourned session to be held in November, as may be necessary to make a full volume.

In the report of the cases of Bushnell and Langston in this volume, the argument of Mr. Wolcott, the Attorney General, is reported in full by special direction of the Court.

COLUMBUS, July, 1860.

(vii)

RULE OF COURT.

It was ordered by the Court at December Term, 1859, that the eighth General Rule of Court be rescinded, and the following substituted therefor:

RULE VIII.

NOTICE OF APPLICATION IN ERROR.

Before the allowance of a writ of error, or leave given to file a petition in error by either the court when in session or a judge thereof in vacation, notice in writing of the intended application, briefly specifying the errors relied on, shall be given to the adverse party, or his attorney, at least five days before the application shall be acted on, unless in view of special circumstances attending the case, the court or judge should determine that justice required the time of such notice to be abbreviated, or such notice to be dispensed with. A copy of such notice, with proof of the service thereof, shall accompany the application.

(viii)

JOHN HOLLISTER AND JOHN W. SMITH v. JOHN P. Reznor.

In an action by a holder of a bill of exchange against the other parties thereon, it is competent to prove declarations made by a prior holder, before the transfer and after the dishonor of the bill, showing that the parties were discharged from liability.

But the substance of the declarations, or sufficient of them to show their tendency and effect, should appear in the bill of exceptions taken to the ruling of the court below excluding proof of such declarations, so that the reviewing court may be advised that the party may have been prejudiced by such ruling. And, therefore, where a witness is produced on the part of the defense in such action, to prove certain conversations touching the liability of the parties to the bill, and the court sustain an objection to the competency of the proof offered, but not to the competency of the witness, and the bill of exceptions does not disclose what the conversations were, which were offered to be proved, nor their tendency and effect, the reviewing court will not reverse.

VOL. IX-1

Hollister and Smith v. Reznor.

2] *IN error to the district court of Lucas county.

The original action was assumpsit, brought upon a bill of exchange drawn by J. W. Smith upon W. H. Sabin, payable to the order of John Hollister.

The action was brought by John P. Reznor, as indorsee, against Smith as drawer and Hollister as indorser.

Plea-the general issue.

Hollister indorsed the bill in blank to William P. Reznor, who transferred it to his brother, John P. Reznor.

The cause was tried to a jury at the April term, 1855, of the district court, on appeal, and resulted in a verdict for the plaintiff below.

Thereupon Hollister and Smith, defendants below, moved the court for a new trial, on the ground that the verdict was against the evidence, and that the court had improperly refused to permit them to give certain evidence to the jury. The court overruled this motion, and rendered judgment upon the verdict.

To reverse this judgment Hollister and Smith filed their petition in error in this court.

A bill of exceptions was taken on the trial in the district court. When the bill of exceptions was signed and sealed, the words "and before transfer to plaintiff," which occur in the portion of the bill of exceptions quoted below, were in it. Afterward they were erased by the presiding judge; but in obedience to a mandate of the Supreme Court (Hollister and Smith v. The Judges of the District Court of Lucas County, 8 Ohio St. 201), said words were restored to the bill of exceptions.

The bill of exceptions, after setting out the bill of exchange and other evidence, contains the following statement, and on which the case turns, viz: "And thereupon the defendants, further to maintain the issue on their part, produced on the stand, as a witness, one John Bates, and offered to prove by said witness certain con3] versations that then and there took place between said. witness and William P. Reznor, a year or two prior to the commencement of this suit, and before transfer to plaintiff, in regard to said draft, and the liability of the parties thereon. To the admission of all which evidence plaintiff objected, and the court then and there sustained said exceptions and refused to permit the defendant to prove said conversations. To all which defendants then and there excepted."