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Hollister and Smith v. Reznor.

The errors assigned are, that the court below refused to permit the defendants below to prove "said conversation," rejected John Bates as a witness, and overruled their motion for a new trial.

James Murray, for plaintiffs in error, insisted that the admissions by the assignor of a chose in action, made while he is the owner thereof and before assignment, are evidence against his assignee, and all claiming under him, and cited Brown v. McGraw, 10 S. & M. 267; Jackson, Cox & Co. v. Holloway, 14 B. Mon. 137; Horton v. Smith, 8 Ala. 73; Sharp v. Smith, 7 Rich. (S. C.) 3; Blount v. Riley, 3 Ind. 471; Abbott v. Muir, 5 Ind. 444; Miller v. Bingham, 3 Williams (Vt.), 82.

P. B. Wilcox (with whom was W. Baker), for defendant in error, argued :

The cases cited on the other side do not meet the question. The court will find the doctrine on this subject discussed in Byles on Bills of Exchange, 352, and numerous other cases there cited. See also 2 Phil. Ev. 644, 663, 387, and notes, 446, 481; 1 Greenleaf Ev. 222, sec. 190. If the court should come to the conclusion that W. P. Reznor did stand in such position that his declarations are admissible, still, we claim, on two grounds, that no error whatsoever hath intervened, in that respect, neither in form nor substance.

1. The bill of exceptions discloses no error whatever.

The court below refused to allow John Bates to tell ** certain [4 conversations" he had with Reznor, in regard to "said draft," and the "liability" of the parties thereon.

But what were these conversations ? What did Reznor tell Bates ? Did he say the draft was a good one? or a bad one? False or genuine? Or, what did he say? Did he say the parties were liable ? or, not liable? and why? or why not? or which party? or what did he say? Who knows? What ideas does this phrase, “ certain conversations” with John Bates, now convey to the minds of this court ? To anybody's mind? What possible ideas, except that there was a man called John Bates, and that he talked, sometimes, with W. P. Reznor?

Now, at common law, before bills of exception were known, the error complained of must appear affirmatively on the record. Coke's Lit. 29, b. And the record always had to show what his grief was. 1 Aikin, 380.

Hollister and Smith v. Reznor.

And the same rule has always been applied to bills of exception since they were introduced. 1 Mason, 57; 4 Cranch, 62, 64; 1 Morris, 364; 7 Iredell, 239; 1 Kelley, 1; 2 S. & M. 473; 7 Mo. 293; 3 Litt. 15; 5 Johns. 467; 40 Maine, 274; 3 Comst. 322; 10 Texas, 503.

The same rule is constantly acted upon in Ohio. 17 Ohio, 495. See also 14 Ohio, 473; 17 Ohio, 439; 16 Ohio, 170, 282; 18 Ohio, 28, 122; 7 Ohio, 214; 4 Ohio St. 159.

2. All the testimony in the case is not disclosed. The rule of law is too well settled in this court to require refer

See cases above cited. Also 14 Arkansas, 298; 3 Term, 27; 1 Aikin, 380.

ences,

PECK, J. The principal and indeed only ground, taken in the argument, for the reversal of this judgment, is the alleged error of the district court, occurring at the trial, in not permitting John Bates, a witness produced by the plaintiffs in error to prove" certain 5] conversations” had *between him and Wm. P. Reznor, an intermediate owner of the bill, some time after its maturity, and while the bill was the property of said W. P. Reznor, touching the bill and the liability of the parties thereon. That part of the bill of exceptions, which relates to the production of said witness and the rejection of his testimony by the court, appears in the statement of the case.

According to the bill of exceptions, the district court of Lucas county refused to permit proof of statements made by the holder and owner of a dishonored bill, upon which other parties wero apparently liable, touching their liability upon it, when offered in evidence by the parties thus apparently bound. If the bill of exceptions correctly delineates the action of the court and the circumstances under which the decision was had, it is difficult to discover the principle upon which the ruling was made. It could not have been from any real or supposed legal disability on the part of the intermediate holder of commercial paper, who has transferred it to another, by his acts and declarations before its transfer, to affect its validity in the hands of a subsequent bona fide holder; for it was a dishonored paper when it was transferred by him, and the defendant in error, its subsequent recipient, could not claim protection under that salutary principle of the commercial law. Nor could it bave been because William P. Reznor was himself & competent witness, and might have been examined in the cause;

Hollister and Smith v. Reznor.

his statements as to the liability of the other parties to the bill, while in his ownership and possession, in derogation of his rights, were original, and not mere hearsay testimony. Nor could it have been because William P. Reznor, himself a witness in the case, had not been previously interrogated respecting these conversations. They were competent as original evidence, reflecting upon the legal liability of the plaintiffs in error, and might be offered by them, without previously interrogating him respecting his statements; the object being to establish the issue, and not merely to discredit Reznor.

*We might solve this difficulty, and satisfactorily account [6 for the ruling of the court, perhaps, if we were at liberty to con-' sider the circumstances under which the first bill of exceptions was framed and then altered, and the testimony tending to show that the conversations, if any, were in fact subsequent to the transfer of the bill by W. P. to John P. Reznor. If the conversations offered in evidence were, in fact, subsequent to the transfer to the defendant in error, they were liable to rejection as mere hearsay, and if offered to discredit W. P. Reznor, he should have been first interrogated respecting them, and, in either case, they would have been rightfully excluded.

But this can not be done. We must take the bill of exceptions as it now reads, to be true—importing verity, and unexplainable by other testimony.

And upon the record, as it now stands, two questions arise :

1. Did the court err in rejecting the testimony offered by the plaintiffs in error?

2. Was that error, as shown by the bill of exceptions, of such character and significance as requires at our hands a reversal of the judgment subsequently rendered for the defendant in error ?

Every error in the admission or rejection of testimony will not, as of course, authorize a reversal of the judgment. As a general rule, it is only in cases where, from the facts stated in the bill of exceptions, it is apparent to the court reversing the judgment, not only that error has intervened, but that that error has been prejudicial, to some extent, to the party excepting, that it will thus interfere and vacate the judgment.

Thus, in Scovern v. State, 6 Ohio St. 204, where improper questions had been permitted to be asked and answered, defendant objecting thereto, but the bill of exceptions did not state the answers

Hollister and Smith v. Reznor.

nor the substance of them, it was held to be “the settled law of Ohio, that in order to justify a reversal of a judgment on error, 7] the record *must show afirmatively, not only that error has intervened, but that it was to the prejudice of the party taking advantage of it.” Nor is this rule peculiar to Ohio. See Whidden v. Seelye, 40 Maine, 256; Onondaga M. Ins. Co. v. Minard, 2 Comst. 98; Holmes v. Gale & Bowers, 1 Ala. 517.

In State v. Cowen, 7 Iredell, 243, evidence of certain declarations or admissions had been improperly admitted; but the bill of exceptions did not set out the testimony of the witness. The court said, "for aught we can tell, the declarations proved by him may have been irrelevant and, so, harmless; or they may have been beneficial to the prisoner. It is necessary that the appellant should show in his exception some error to his prejudice, otherwise the court can not set aside the solemn verdict of the jury.”

This case and the one cited from 6 Ohio St. 204, were cases in which the error complained of was the wrongful admission of testimony, and in which the question naturally arose whether the testimony improperly admitted had prejudiced the rights of the party against whom it was admitted; to the solution of which question it was necessary and important to know what was the purport and effect of the testimony which had been delivered to the jury, in order to determine its legal and probable effect upon the verdict subsequently rendered. While it was holden in Duffee v. Pennington et al., 1 Ala. 508, that the rule requiring it to appear affirmatively in the bill of exceptions or record, that the party had been prejudiced, applied only to cases where the testimony offered was ruled out on account of the relevancy or competency of the testimony itself, and not by reason of the incompetency of the witness to testify; and that where a competent witness was excluded as incompetent, no necessity existed in the party excepting to set out in his bill of exception the matter he expected to prove by the witness, unless. the court, before adjudging the witness incompetent, required the party offering the witness to state what he expected to prove the 8] ground of rejection in such case *being, not on account of the subject-matter he was called to establish, but his legal disability to 'testify at all in the case; and that in such cases the court must hold that the party offering the rejected witness was, prima facie, prejudiced by the ruling, and for that cause should reverse the judgment. The same rule, with the same qualification, was also ad

Hollister and Smith v. Reznor.

judged in the Supreme Court of North Carolina, in the case of the State v. Jim, 3 Jones (N. C.), 348. It seems to us that the distinction taken in tbe cases from Alabama and North Carolina, and which is also sanctioned in Kentucky in the case of Force v. Smith, 1 Dana, 151, is correct, and that the general rule laid down in Scovern v. The State, 6 Ohio St. 204, is to be taken with the qualification, that where a witness is rejected for incompetency to testify in the case, the court not having required the party producing the witness to state what he expected to prove by him, the bill of exceptions need not set forth what the witness would prove or was expected to prove, in order to show that the party producing the witness had been prejudiced. In other words, where the witness offered is rejected as incompetent to testify, the court will hold that the party offering the witness bas been prejudiced by his exclusion, though the facts he was expected to prove are not stated—the ground of exclusion being one wholly irrespective of the subjectmatter of his testimony.

It appears, however, from the bill of exceptions in this case, that John Bates, the witness offered by plaintiffs in error, was not re jected from any supposed incompetency in him to testify in the case, but the rejection was solely on account of the supposed incompetency or irrelevancy of the facts he was offered to prove. It was on account of the subject-matter of his testimony, and not of any legal disability in him to testify as to facts relevant to the issue. Thus the bill states that the plaintiffs in error" produced on the stand one John Bates, and offered to prove by said witness certain conversations that then and there took place between said witness and William P. Reznor, a year *or two prior to the commencement [9 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 (not which witness) the plaintiff objected, and the court then and there sustained said exception, and refused to permit the defendant to prove said conversations.

John Bates then was not rejected as being incompetent to testify; but the subject-matter he was called to establish, was adjudged incompetent or irrelevant

It being apparent from the bill of exceptions, then, that the testimony was rejected solely on the ground that the facts which the witness was called to prove were incompetent or irrelevant, all the authorities above cited from Ohio, Maine, Alabama, North

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