
    David Loudenback v. James Collins.
    A plaintiff can not sustain a motion to rule out tie defendant’s testimony, by evidence in reply to it.
    A correct judgment will not be reversed, because a bad reason for it was given by tie court tiat rendered it.
    A decree in ciancery may be as effectual a bar to an action or defense, at law, as would be a judgment at law.
    But to make the dismission of a bill a bar, it must have been upon tie merits of tie ease, and not merely for want of prosecution.
    Where the question is whether a bill was dismissed upon tie merits, or for want of prosecution, and tie ground of dismission is not stated, nor anything found in tie record from which it may be inferred there is no presumption either tie of which is, tiat, as it must be established that the dismission was upon, the merits, and that fact is not shown and can not be presumed, there is no bar.
    But where it appears that a dismission was upon a hearing of the case, it is to be inferred that it was upon the merits.
    A judgment will not be reversed, because an erroneous instruction was given to the jury, unless the record discloses some evidence tending to show that the instruction was material.
    The question whether an instruction was correct or not, may become immaterial, owing to the finding of the jury.
    *Error to the district court of Miami county.
    The action below was assumpsit, brought March 13, 1851, by the plaintiff, Loudenbaek, as indorsee, against the defendant, Collins, as maker, of five promissory notes — two of which were drawn payable to William B. Spears, or bearer, and tbe others, to Chester Shattuck, or bearer.
    To the declaration, which was in tbe common form; the defendant pleaded non-assumpsit, with a notice that he would prove on the trial that the notes were fraudulently obtained from him by tbe payees, respectively, for Burger’s patent cross-cut saw, for the states of Virginia and Tennessee; and that the said patent was wholly valueless; of all which the plaintiff was fully cognizant at the time he received said notes from the payees; that the plaintiff was not a bona fide indorsee, but took all said notes with notice that the same had been obtained by fraud upon the defendant, as aforesaid.
    On the trial in the district court, the jury found for the defendant; and the court, after overruling a motion of the plaintiff for a new trial, gave judgment upon the verdict. Two bills of exception were taken by the plaintiff —one in the progress of the trial before the jury, and the other upon the overruling of the motion for a new trial.
    The first of these bills, omitting the formal parts, is as follows :
    “ The plaintiff having given in evidence the notes on which the ;suit was brought,, and the defendant having adduced proof tending to show that the notes were given for patent right territory which patent-right was worthless; and that the execution of the notes was fraudulently procured by Shattuck and Spears, the payees in said notes and assignors of the plaintiff, -the plaintiff moved the court to rule out .the testimony .offered by .defendant, for tbe reason that tbe .same matters of defense bad been before adju•dicated between the parties, and that that adjudication estopped the defendant from setting up his present defense — and, in support of the motion, the plaintiff offered the record of the suit of James Collins (defendant in this case) against David Loudenback, Chester Shattuck and William B. Spears, in Champaign common pleas, in chancery, which is made part of these exceptions, marked A. But the court held and decided, that the defendant was not debarred or estopped by said former proceeding and record, from making his present defense, and therefore overruled the motion of the plaintiff to rule out defendant’s testimony. Whereupon the plaintiff excepts.”
    The chancery record above referred to, shows that on January 9, 1849, Collins filed his bill against Loudenbaek, Spears, and Shat-tuck, charging, among other things, that the notes hereinbefore mentioned, had been obtained from him by the fraudulent devices and representations of Spears and Shattuck, and their confederates, ■upon no other consideration than the assignment to him of a right to use and vend, in the states of Virginia and Tennessee, a certain void patent-right, for a wholly worthless invention, called “Burger’s 'Cross-cutting Saw,” or “ Burger’s Improvement in the Cross-cutting Saw; ” and that Loudenbaek had bought the notes with full knowledge of these facts. The bill prayed, inter alia, that the defendants might be enjoined from instituting actions at law upon the notes, and that they might be "delivered up and canceled.
    Upon this bill a provisional injunction was allowed.
    October 8,1849, the complainant filed a supplemental bill, charging that a paper, purporting to be a settlement of the matters in controversy, had been executed by him, in ignorance of its contents ,and without any settlement having been made, through the fraudulent devices and practices of an agent of Spears and Shattuck, and praying that it be delivered up and canceled.
    January 28, 1850, Loudenbaek answered, admitting that he had purchased the notes, and that before he did so, he had heard upon what consideration they were given; but denying that he *had any knowledge of the invalidity or worthlessness’of the consideration, or of the fraud alleged in the bill; and averring that he was -a bona fide purchaser, and for a valuable consideration.
    To this answer a general replication was filed.
    April 22, 1858, Spears and Shattuck answered, taking no notice of the allegations of the original bill, but relying on the paper purporting to be a settlement, mentioned in the supplemental bill.
    July 8, 1850, exceptions to their answer having been sustained, Spears and Shattuek pleaded said paper, or settlement, in bar. To-this plea no replication was filed.
    The suit was continued until the October term, 1850, when the following entry, and .nothing more, was made: “Injunction dissolved and bill dismissed. Decree against complainant for costs.’
    The second bill of exceptions, omitting the caption and formal-conclusion, is as follows :
    “ Be it remembered, that on the trial of this cause at the May term of said court, to wit, on May 31, 1853, the evidence having been closed, the court charged'the jury, among other things, as follows:
    
      “ 1. That if an indorsee has received a promissory note before due, and has paid a valuable consideration therefor, having such grounds for suspecting the consideration to be a worthless patent-right as-would, or ought to have, put a prudent man upon inquiry, he takes the note at his peril.
    “2. That if the jury should find that the plaintiff had obtained the note before due, and had paid value for it, without notice of fraud or want of consideration, and that the note had in fact been procured by the payees from the maker fraudulently and without consideration, the jury would be justified in rendering a verdict for the plaintiff, for the amount he actually paid for the notes, if the testimony showed what that was.
    “And thereupon the jury gave their verdict against the ^plaintiff. Whereupon, the counsel on the part of the said plaintiff, David Loudenback, moved the court for a new trial, by reason of the supposed misdirection of the said court, so given as-aforesaid, to the said jury. But the said judges overruled the said motion, and gave judgment upon the verdict of the said jury, against the said David Loudenback.^ Whereupon, the counsel of the said David Loudenback made their exceptions,” etc.
    To reverse said judgment this petition in error was filed
    The assignment of errors is—
    “1. The court erred in overruling the said motion of the said David Loudenback, to rule out the said testimony of the said defendant.
    “ 2. The court also erred in overruling the said motion for a new trial, and in entering judgment for the said James Collins.”
    
      
      Young & Leedom, J. A. & I Corwin, and Warden & BanJtin, for plaintiff in error.
    
      Charles Morris, Jr., and John W Andrews, for defendant in error.
    
      John II. Young, for plaintiff in error, made the following points:
    Decrees in chancery stand upon the same principles with judgments at common law. 1 G-reol. Ev., sec. 551; Swan’s Stat. 708. A decree dismissing the bill upon the merits between the same parties, and upon the same subject-matter, without reservation, is conclusive, until reversed. 7 Johns Ch. 286; 5 Ohio, 450 ; 6 Ohio, 528; 8 Ohio, 214; 4 Johns. Ch. 142; 4 Wash. C. C. 659; 1 A. K. Marsh. 526; 4 Dana, 84.
    The bill was, in this case, dismissed, not for want of proper parties, for want of jurisdiction, nor on the ground of informality of the proceedings, nor because of any neglect of counsel on either side. The parties and their counsel were all present, and having submitted the case to the court, the court decide it, dismiss *the .bill without any reservation, and decree that Collins pay the costs. .Shall it be said, that the court have not decided the;whole ease?
    A bona fide holder of a note, for a valuable consideration, before due, without notice of any infirmity, will hold and collect the note, let the infirmity be what it may, even if the payee had acquired it by fraud, or theft, or robbery, even although the consideration be illegal. Story on Prom. Notes, 210, secs. 191,192, and 193; 6 Mass. 428. Testimony tending to show what the consideration was, with ■the view of proving that a valuable consideration had not been paid, and that therefore plaintiff was not a bona fide purchaser, might have been proper, but for that purpose only, and not to limit the amount of recovery.
    The charge of the district court, that “ if an indorsee has received a promissory note, before due, and has paid valuable consideration therefor; having such grounds for suspecting the consideration to be a worthless patent-right as would, or ought to have, put a prudent man upon inquiry, betakes the note at his peril,” is erroneous. ..Story on Prom. Notes, 220, sec. 197 ; Story on Bills, 415, 416.
    
      John W- Andrews, for defendant in error, made the following points:
    I. A former recovery may be pleaded in bar, and it may also be given in evidence under the general issue! Where it could not, from the nature of the case, have been pleaded in bar, it is equally conclusive in its effect, as if it were specially pleaded by way of estoppel. 1 Greenl. Ev., secs. 828, 829, 830. The record in this case was not offered at all as evidence to go to the jury, but simply in support of the motion to rule out the defendant’s testimony. It. could not avail the plaintiff for such purpose.
    II. If it had been offered in evidence to the jury, it would not have been conclusive against the defendant, as the bill relied upon was filed against the plaintiff and two other persons as defendants,. *and was dismissed solely for want of prosecution. A decree or order, dismissing a former bill for the same matter, may be-pleaded in bartola new bill, if the dismission was upon the hearing, upon the merits. An order dismissing a bill for want of prosecution is not a bar to another bill. Story’s Eq. Plead. 610; Mitford’s-Chan. Plead. 298, and cases there cited; 1 Greenl. Ev., sec. 539. Unless the second bill be filed by the same complainant or his representatives, against the same defendant or his representatives, even a decree of dismissal on the merits in the first case is no'bar. Neafie v. Neafie, 7 Johns. Ch. 1; Sawyer v. Bletsoe, 2 Vern. 328.
    The jury rendered a verdict for the defendant; the plaintiff therefore has in no way been injured by the second part of the charge of the court to the jury, and has no valid ground for exception thereto.
    The first part of the charge of the court below is well sustained by authority as well as upon principle. If an indorsee takes a bill without due caution, and under circumstances which ought to have excited the suspicion of a prudent and careful man, the maker or acceptor may be let in to his defense. Gill v. Cubitt, 3 B. & C. 466; 3 Kent’s Com. 84; Beckwith v. Corral, 2 Carr & Payne, 261; Nicholson v. Patton, 13 Louisiana, 213; Ayer v. Hutchins et al., 4 Mass. 37; Thompson v. Hale, 6 Pick. 261; Story on Prom. Notes, 221, note.
    The contrary decision, in Lawson v. Weston, 4 Esp. 56, was overruled by Lord Tenterden, in Gill v. Cubitt, 3 B. & C. 466. The rule laid down in the cases of Crook v. Gadis, 5 B. & Adol. 909, and of Backhouse v. Harrison, 5 B. & Adol. 1098, was modified by Lord Henman in 1835, who, in the case of Goodman v. Harvey, 4 Adol. & E. 870, decided, that gross negligence is not alone enough to destroy the title of a holder for value, but that a case of mala' fides must be made out against the holder, to defeat his claim. This rule has since been followed in England, and is, undoubtedly, there the law. It has *not however been followed by any court in the United States, and there seems to be no good reason why the rule, as long settled in this country, should be shaken. Whatever the exigencies of the overshadowing commercial policy of England may exact from her courts, in encouraging and stimulating the sale and transfer of commercial paper in the market, there is no reason, in this country, why a purchaser of a promissory note should not be held to reasonable caution and inquiry as to the rights of third persons. ‘ The shaving of notes, as a business, needs no stimulus in Ohio. The rule laid down in its charge by the court below, so far as it may have a tendency to cheek and moderate this species of business, and to compel the men who make their money by it, te pay some sort of regard to the rights of their neighbors, will practically work well in this country.
    
      J. A. & I. Corwin, and Warden & BanMn, for plaintiff in error, replied:
    I. What is simply offered in evidence, is necessarily offered to both court and jury, if, in its nature, it is proper for both. The motion, to support which the record was offered, was, substantially, one to instruct the jury as to the effect of evidence. The plea was the general issue, with notice; no replication was proper. It was in reply to the defense- — so to speak — that the record was offered, and nothing remained but to declare its legal effect on the defense set up. That legal effect was to render the defense unavailing.
    The language of the decree neither says, nor imports, that the dismission was solely for the want of prosecution. It must be construed to be the action of the court on the merits, and is a full bar.
    II. The distinction sought to be made between commercial interests and necessities in this country, and the same interests and necessities in England, appears to be wholly unfounded. All wise and prudent regulation of commerce is in favor of the rule *as now firmly established in England. That rule has been recognized here and everywhere. Cone v. Baldwin, 12 Pick. 546; Story on Prom. Notes, sec. 197.
   Thurman, C. J.

It is quite clear that there is nothing contained in the first bill of exceptions that would warrant a reversal of the judgment. The point meant to be presented by the bill is, whether the decree in the chancery suit estopped the defendant to set up the defense specified in his notice. Rut, in order to raise that point, it was indispensably necessary for the plaintiff to offer the chancery record in evidnece to the jury. Had he done so, and had it beeD objected to and the objection sustained, or had it gone to the jury, and had the court charged that it did not operate as an estoppel, then by a bill of exceptions the point might have been saved. But it was never offered to the jury, and of course there was no refusal to permit it to go in evidence, nor any instruction given in respect to it. The idea that it could be made available, on a motion to rule out the defendant’s testimony, is certainly as novel as anything that we have met with, and quite as unsound as it is novel. The jury, and not the court, were the triers of the facts; and to them, and not to the latter, was the plaintiff to adduce his testimony in answer to the defense. And it makes no difference that the .question, what was the legal effect of the testimony, might be for the determination of the court, the testimony itself was to go to the jury, subject to the right of the court to instruct them.

But it is said that the court did actually hold that the decree did not bar the defense, and that such an opinion was expressed as a reason-for overruling the plaintiff’s motion, is certainly true; but how does this aid the plaintiff? The motion was correctly decided, whatever was the effect of the decree; and if the opinion of the court was erroneous, it simply presents a case of a sound judgment with a bad reason given for it. That such a judgment should not be reversed for such a cause, would seem to be too *obvious to need the support of authority; but if that is needed, it may be found in abundance. Steamboat Waverly v. Clements, 14 Ohio, 37; Harman v. Kelley et al., Ib. 507.

It is hardly necessary to add, that the opinion expressed by the court did not dispense with the necessity of offering the record to the jury, if the plaintiff wished to save his point; but it is to be noted, that the only thing excepted to under this head was the overruling of the motion, and that nothing else is assigned for error based upon the first bill of exceptions. It is very clear, then, for each of these reasons, that this part of the case presents nothing for us to decide but the question, whether the motion was properly overruled. That it was so, is too plain for doubt.

Nevertleless, the repugnance we feel to decide a case upon any other than its substantial meiits, has led us to examine the opinion ■complained of; although, it could not, for the reasons I have stated, be of any avail to the plaintiff, were we convinced that the opinion •is erroneous. But we are not so convinced. On the contrary, the result of our investigation is, that we think it is correct.

There is no question that a decree in chancery may be as effectual a bar to an action or defense at law, as would be a judgment at law; but the question is, when is a judgment or decree a bar? Upon this subject Chancellor Kent, in the well considered case of Neafie v. Neafie, 7 Johns. Ch. 4, said: “A bill regularly dismissed upon :the merits, may be pleaded in bar of a new bill for the same matter; for if the same matter, or the same title, should be drawn into question again by another original bill, it would, as the cases say, ‘ introduce perjury, and make suits endless.’ The cases to this point were referred to in Perrine v. Dunn, 4 Johns. Ch. 142. But in the cases I have looked into upon dismission of former bills, the new bill was brought by the same party who filed the original bill; and the're is said to be a material distinction between a new bill by such a party and a new bill concerning the same subject by the defendant *in the first suit. To make the dismission of the former suit a technical bar, it must be an absolute decision upon the same point or matter; and the new bill, it is said, must be by the same plaintiff, or his representatives, against the same defendant or his representatives.”

This doctrine was fully approved by Judge Story, in his Commentaries on Equity Pleading, sections 791-793, and other authorities cited in its support; and he states the rule to be, that “ a decree or order dismissing a former bill for the same matter, may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not, in terms, directed to be without prejudice. But an order of dismission is a bar only, where the court has determined that the plaintiff had no title to the relief sought by his bill; and therefore an order, dismissing a bill for want of prosecution, is not a bar to another bill.”

If these principles be applied to the case before us, there would ■seem to be no reasonable doubt, that the opinion of the district court is correct. For, first, the action at law was not brought by the plaintiff in the chancery suit, but by one of the defendants. Secondly — and this, in our judgment, is of much more imporiauee—it does not appear that the bill was dismissed upon hearing, or the merits of the case. There is certainly nothing in the record to show, what Judge Story says is indispensable, that the court had “ determined that the plaintiff had no title to the relief sought by Ms bill.” Eor aught that is stated, the bill may have been dismissed for want of prosecution; and if it be said that this ought, not to be presumed, the answer may well be made, that it ought not to be presumed that the dismission was upon the merits. We think that, where the ground of dismission is not stated, nor anything found in the record from which it may be inferred, there is-no presumption either way; the consequence of which is, that it must be established that the dismission was upon the merits, and that fact is not shown and can not be presumed, there is no bar.

I should perhaps add, to avoid misapprehension, *that where it appears that the dismissal was upon a hearing of the case, it is to be inferred that it was upon the merits.

The second bill of exceptions contains two instructions given to the jury, and to which the plaintiff excepted.

By the first of these instructions, the jury were told, “ That if an indorsee has received a promissory note before due, and has paid a valuable consideration therefor, having such grounds for suspecting the consideration to be a worthless patent-right as would, or ought to have, put a prudent man upon inquiry, he takes the note at his peril.”

It is unnecessary for us to say whether, in our opinion, this instruction was correct or not; for there is not a word of testimony disclosed by the record to make it material. It is not certain that it was in proof to the jury, that the notes sued on, or either of them, had boon indorsed to the plaintiff: and' it is certain that it does not appear that they were indorsed before due. Nor is it shown that he paid any value whatever for them, nor that, when he purchased them, if he made any such purchase, he had any ground for suspecting what was their consideration. Evidence tending to prove all these matters was necessary to lay a foundation for the instruction ; but no evidence is shown, as having been given to the jury, tending to prove any one of them.

That a judgment will not be reversed, because an erroneous instruction was given to the jury, unless the record discloses some evidence tending to show that the instruction was material, is as Well settled as any point can be, and has nowhere been more distinctly stated, or constantly acted upon, than in our own courts. See Creed v. Com. Bank of Cincinnati, 11 Ohio, 489 ; Wash. Mutual Ins. Co. v. Reed and Brown, 20 Ohio, 202, 206, 207; Kugler v. Wiseman, Ib. 361; Walker v. Lessee of Devlin, 2 Ohio St. 605.

For the same reason, it is unnecessary to decide whether the second instruction was correct; and also for an additional reason.

*This instruction related to the amount the plaintiff would be entitled to recover should the jury find in his favor. They were told that, upon the hypothetical case stated, the proper damages would be the sumí he paid for the notes. Assuming that that was less than their amount — although the bill of exceptions contains no proof to that effect — counsel say that the charge was erroneous; and that the proper damages would have been the amount of the notes, with interest. But it is obvious that, as there could be no-assessment of damages unless the defendant was found to be liable on the notes, and as the jury found that he was not so liable, it is-now wholly immaterial whether the instruction was correct or not.

As the motion for a new trial rested upon the same matters we have herein considered, and on no other, nothing need be said about it.

Judgment affirmed.  