
    John W. Kirk et al. v. Albert L. Mowry.
    A bill of exceptions, purporting to show all the testimony taken on tlie trial of a case, is not competent evidence, on a subsequent trial, to prove wbat the testimony of the witnesses was on the trial in which the bill of exceptions was taken.
    Error to the Superior Court of Cincinnati.
    
      V. Worthington and Wm. Worthington, attorneys for plaintiffs in error:
    A bill of exceptions allowed on a motion for a new trial imports verity only for the purposes of revision, and can not be otherwise used. The act of April 12, 1858, allowing such a bill, contemplates its use simply in a court of -error. Woodruff v. Parham, 8 Wall. 138; Straus v. Eagle Ins. Co., 5 Ohio St. 61; Crawford v. Morris, 5 Grattan, 90, 103, 105; Runyan v. Price, 15 Ohio St. 10; Lesslie v. The State, 18 Ohio St. 390.
    The effect of the admission of the bill is to impeach the witnesses, if the testimony varies at all from that offered .on the first trial; for if it does not vary, there is obviously no motive for introducing the bill. This can not be done in this manner. A witness can be impeached by proving that he has formerly made a different statement, only by producing a writing under his hand, or by oral testimony, that the opposing party may have the right of cross-examination. “ The general rule, at law, is, that no evidence shall be admitted but what is or might be under the •examination of both parties.” 1 Greenleaf on Evidence, -•sec. 554. A bill of exceptions taken under the act of April 12, 1858, to show all the testimony, is liable to the same objection as a deposition, when there has been no opportunity of cross-examination. Such a bill is made up by the exceptor and the court, and the opposing party has no right to interfere. 2 S. & C. 1029, sec. 294. Nor can it be altered by the witness, who can secure correctness in a deposition by refusing to subscribe it if incorrect.
    The ruling in 1 Ohio St. does not apply.
    
      Cox, Follett Cochran, attorneys for defendant in error:
    The bill of exceptions was admissible in evidence.
    It is not a question whether it was original evidence or conclusive evidence of anything, or whether it was proper evidence on which to convict Kirk of perjury; but simply whether it was admissible at all.
    It seems to us sufficient to say, that, without having the bill before it and carefully considering it, the coui’t could .not act advisedly in the case.
    The record is the primary, the conclusive, the necessary evidence of the preceding stages of the case, and the fact that it is so fundamental and primary that the court will take judicial cognizance of it, without its being formally offered, does not at all strip it of its character of evidence, nor preclude a party from formally offering it as such, even though such offer be a work of supererogation. The Commissioners of Montgomery County v. Carey, 1 Ohio St. 463.
    The introduction of the bill of exceptions could not prejudice the plaintiffs, and a reversal of the judgment cannot be asked by them on this ground, even though its admission was technically erroneous.
    The decisions of this court are numerous and uniform to-the effect that:
    
      “ In order to justify the reversal of a judgment or decree-upon error, the record must show affirmatively, not only that error intervened, but that it was to the prejudice of the party seeking to take advantage of it.” Ohio Life & T. Co. v. Goodin, 10 Ohio St. 557; Banning v. Banning, 12 Ohio St. 437; Dudley v. Granger Iron Co., 13 Ohio St. 168; Courtright v. Staggers, 15 Ohio St. 511; Scovern v. Ohio, 6 Ohio St. 288; Reynolds v. Ex’rs of Rogers, 5 Ohio, 171, 172; May v. Ohio, 14 Ohio; 467, 468; Hollister & Smith v. Reznor, 9 Ohio St. 1-6.
    
      The same principle is enacted in the code, sections 138 and 295.
   Day, C. J.

The action was brought to recover damages for the breach of a contract for the sale and delivery of railroad securities amounting to about $13,000'. The parties were at issue upon every material point in the pleadings. On the trial, both parties testified, and materially disagreed in their testimony. Each of them alluded to their testimony on a former trial of the case. The defendant offered in evidence the record of a bill of exceptions taken on the former trial, purporting to show all the evidence given on that trial, “ to show what was the testimony of the witnesses on that trial,” to which the plaintiff objected; but the court overruled the objection, and the record was admitted in evidence. To this ruling of the court, the plaintiff excepted.

It is admitted that the testimony given on the former trial, as shown by the bill of exceptions, differed from that given on the last trial. But how far this difference may be regarded as material, and what effect it might have had in determining the issues between the parties, we need not now inquire, since the evidence was such that we can not say it could have had no effect.

Conceding that it was competent to prove what the testimony of the witnesses on the former trial was, the question is whether it was competent to prove it in that manner. We think not. The bill of exceptions was taken under the statute for a specific purpose in that trial, and imports verity no further than the statutory purpose for which it was authorized. It was never intended to be used as evidence, in a subsequent trial of the case, of what was the testimony of the witnesses on the trial in which it was taken. Whenever it becomes competent to show, on a subsequent trial of the case, what testimony was given on a former trial, the usual modes of proof can not be dispensed with by resort to the bill of exceptions taken for no such purpose.

It follows that the court erred in admitting the bill of exceptions as evidence for the purpose stated, and that, for that reason, the judgment must be reversed, and a new trial awarded.

This conclusion renders it unnecessary for us to consider the other questions presented in argument. They may be materially modified by the new trial.

Judgment reversed, and cause remanded.

McIlvaine, Welch, White, and Rex, JJ., concurring.  