
    The Shamokin Bank v. Zadok Street.
    1. A note payable in bills of a particular bank, without reference to their value- or currency, is not commercial paper; and want of consideration is a good, defense to an action thereon by the indorsee against the maker.
    2. When a demurrer is erroneously decided against a party, and he afterward amends, setting up a different and repugnant case, abandoning the old oner the final judgment against him on the new case of defense, will not be reversed for such error.
    3. Judgment will not be reversed for alleged error in overruling exceptions to depositions, unless it appear, by bill of exceptions or otherwise, that the facts upon which the exceptions are predicated exist. The allegation in the exceptions is not itself sufficient.
    4. Before the passage of the act of May 1, 1862, the deposit of money to the amount fixed for the undertaking for a second trial-was not sufficient to-give the court jurisdiction.
    
      5. When such deposit was made in a bank certificate of deposit, and the clerk made and signed a memorandum or entry upon the journal of the fact that such deposit had been made, stating that he was to restore the money if the party should abide and perform the judgment and order of the court, and pay all moneys, damages, and costs awarded against him, consequent upon said second trial; otherwise, that the clerk was to apply the money to the payment of the same, and stating that the security was approved by the clerk: Held, that neither the certificate nor the journal entry is an undertaking, and that there was not such a proceeding as would justify the filing of a perfect undertaking, so as to give the court jurisdiction.
    *Error to the court of common pleas of Columbiana county. Reserved in the district court.
    The original action was brought in the common pleas by the plaintiff, against the defendant Street and one Thomas Kennet.
    The petition alleges : That the defendant, Zadok Street, executed and delivered to R. R. Underhill, his two promissory notes payable to said Underhill’s order, in “ Shamokin Bank notes,” at the Bank of North America, in Philadelphia, each dated June 9, 1858, the one payable three months after date, for $3,045, and the other four months after date, for $2,856; that Underhill indorsed the notes to the plaintiff for a valuable consideration, before the same became due and payable; and that Street subsequently made an assignment of his property and effects to the said Thomas Kennet, in trust, for the benefit of his general creditors. The petition then prays for a money judgment against Street, and that “ said Thomas Kennet apply an equitable proportion of the trust funds in his hands, belonging to the said Street, to the payment of the same, and for other proper relief.”
    To this petition Street answered, setting forth two grounds of defense:
    1. That the notes were “wrongfully obtained from him without consideration.”
    2. That at the time of giving the notes to Underhill, Street •executed to him a sealed bond, founded on the same supposed consideration, and as collateral security for the notes, with a warrant ■of attorney to confess judgment for the amount thereof; upon which bond and warrant of attorney the said Underhill had since recovered judgment against him for the amount of the notes, which still remains in force.
    Kennet made no answer.
    
      To tbe answer of Street, the plaintiff interposed a general demurrer.
    The court overruled the demurrei
    The plaintiff then filed its “first amended petition,” containing two counts against Street, upon the two notes, asking judgment against him for their amount; and a count ^against Rennet, asking a decree against him, that he apply an equitable portion of the trust funds in his hands to the payment of the judgment. The ■counts against Street allege that the notés were delivered by Street■ to the plaintiff, and were indorsed by Underhill as surety, upon considerations passing from the plaintiff to Street.
    To this “first amended petition,” the defendant demurred:
    1. Because several causes of action were, improperly joined.
    2. Because neither the first nor second count contained facts sufficient to constitute a cause of action.
    The court sustained the demurrer, and the plaintiff excepted.
    The plaintiff then filed its “second amended petition,” embracing only the two causes of action founded on the notes, alleging that Street executed them to Underhill, who then and there, “ for a valuable consideration, assigned and delivered the same to the^ plaintiff.”
    To this second amended petition, Street put in a new, distinct, and full answer, in which he set forth two defenses:
    1. That Underhill did not assign and transfer the notes to the plaintiff, and that the plaintiff obtained them wrongfully, without his consent.
    2. The execution of the bond and warrant of attorney; the recovery of judgment thereon for the amount of the notes; and that the defendant had satisfied and discharged the judgment.
    To this answer, the plaintiff replied, traversing the first defense, but confessing and pleading mattera in avoidance of the second.'
    Upon these issues the cause went to'trial. But the jury failed "to agree.
    The record shows that, before the final trial, the plaintiff filed exceptions to certain depositions taken by the defendant, alleging ■ as a ground of exception, that they were not sealed up, directed, and certified according to law; but there is no bill of exceptions to show, nor does it otherwise appear, what were the facts in relation to them, except as they are to be inferred from the allegation in the ■exceptions to the depositions.
    
      *At the March term, 1862, the cause was submitted to the court. The finding and judgment were in favor of the defendant-
    The plaintiff thereupon demanded a second trial, which was allowed by the court. Undertaking fixed at $200.
    The action of the plaintiff under this demand and allowance is; shown by the following entry on the journal:
    
      “ On the 20th day of March, 1862, A. L. Brewer, attorney for the-plaintiff in this case, deposited with me two hundred dollars, to be held for the benefit of the defendant in this case, in lieu of an. undertaking for a second trial in said case, to be paid back to said plaintiff upon the condition that said plaintiff shall abide and perform the order and judgment of said court, and pay all moneys, costs, and damages which may be required, or awarded against said plaintiff, consequent upon such second trial, otherwise the said money is to be applied by me to the payment thereof; and said security-being approved by me, said cause is this day entered upon the-second-trial docket, in pursuance of law.
    
      “Wm. J. Jordan, Qlerk.”
    
    At the next term, the defendant moved to strike the cause from; the second-trial docket, for want of an undertaking; and the plaintiff submitted a motion for leave to file a new and more perfect, or an additional undertaking.
    On the hearing of these motions, the plaintiff proved, that instead" of a deposit of money, the said attorney deposited with the clerk an instrument, of which the following is a copy :
    “No. 2,142. Banking House oe Lodge, Pritchard & Co.,
    “New Lisbon, Ohio, March 20, 1862.
    “Northumberland Co. Bank has deposited in this office two hundred dollars, payable to the order of A. L. Brewer, in current funds,, on the return of this certificate properly indorsed.
    “ $200. Lodge, Pritchard & Co.”
    Indorsed: “ A. L. Brewer.”
    This instrument the clerk indorsed to Lodge, Pritchard & Co.,, and took from them a like certificate payable to his own order.
    Upon these facts the court overruled the plaintiff’s motion, *and struck the case from the second-trial docket, and the-plaintiff excepted.
    To reverse this ruling and judgment of the common pleas, the-plaintiff filed his petition in error in the district court, insisting that the common pleas erred:
    1. In overruling the plaintiff’s demurrer to the defendant’s original answer.
    2. In sustaining the defendant’s demurrer to the plaintiff’s first amended petition.
    3. In overruling the exceptions of the plaintiff to ihe depositions taken and filed by the defendant.
    4. In overruling the plaintiff’s motion for leave to file a more ■perfect and additional undertaking for a second trial.
    5. In sustaining the defendant’s motion to strike the cause from the second-trial docket.
    6. In holding that it had no power to allow the plaintiff to file a .new, amended, or additional undertaking for a second trial.
    7. In not proceeding to trial and judgment on the merits.
    8. In entering judgment for the defendant instead of the plaintiff.
    The case was reserved in the district court for decision in this ■court.
    
      Simeon Wisden, for plaintiff in error, argued:
    1. The notes sued upon are negotiable. Keith v. Jones, 9 Johns. 120; Judah v. Harris, 19 Johns. 144; Howe v. Hartness, 11 Ohio St. 449; Sweetland v. Creigh et al., 15 Ohio, 118; White v. Richmond, 16 Ohio, 5; Morris v. Edwards, 1 Ohio, 189; Riggs v. Price, 3 Iowa, 334. And the plea of a want of consideration is not available against the claim of a bona fide holder of negotiable paper indorsed and delivered before due. The notes were not merged in the bond, which was only collateral. Livingston v. Grey, 34 Maine, 50; Hawke v. Hinchcliffe, 17 Barb. 492; McNaughten et al. v. Partridge et al., 11 Ohio, 232; Sloo v. Lea, 18 Ohio, 304.
    2. The court below erred in sustaining the demurrer to the first •.amended petition. Code, sec. 81; Dugan v. Campbell, 1 *Ohio, 115; King et al. v. Foster, 6 Ohio, 281; Leonard v. Sweetser, 16 Ohio, 1; Bartges v. O’Neils, 13 Ohio St. 72.
    3. The court below erred in overruling the exceptions to the depositions. Code, secs. 347, 292, 293; Bendell & Co. v. Cook & Co., 1 Handy, 94. The facts are fully set forth in the motion, and that forms part of the record.
    4. The court below erred in refusing plaintiff in error leave to file ■a more perfect and additional undertaking for a second trial, and in striking the cause from the second-trial docket. Irwin et al. v. Bank of Bellefontaine, 6 Ohio St. 89; State v. Bowman, 10 Ohio, 445.
    
      W■ II. West,- for defendant in error, argued:
    1. The notes sued oh are not negotiable. S. & C. Stat. 862, sec. 1. A promissory note payable in the notes of a particular bank—as in Arkansas money of the Fayetteville Branch, Hawkins v. Watkins, 5 Pike, 481, or in office notes of the Lumberman’s Bank at Warren, Irvine v. Lowry, 14 Peters, 293—is not negotiable. This doctrine-is not in conflict with the Ohio cases. The notes not being negotiable, the defense of want of consideration, is good against the indorsee ; as is also the other defense—the giving of the bond, and; judgment, in full force, taken thereon.
    2. The plaintiff in error having abandoned the original petition, no final judgment was entered on it, and hence no prejudice resulted to the plaintiff in error from any interlocutory order or entry in relation to it.
    3. The demurrer to the plaintiff’s first amended petition was properly sustained. Code, secs. 35, 36, 80, 87.
    4. As to the alleged error in overruling the exceptions to depositions. The record does not show the facts upon which the court, acted, nor that the plaintiff in error was prejudiced.
    5. The court did not err in striking the cause from the second-trial docket. No undertaking had been given; there was nothing: to amend.
   Welch, J.

The first question raised, is upon the sufficiency of the answer to the original petition The court- of *common pleas held the answer a good defense, and overruled the plaintiff’s, demurrer thereto. Was this holding erroneous, and did it result i-n injury to the plaintiff?

We answer both questions in the negative. The answer sets up-two grounds of defense: 1. The execution of the bond, and the judgment thereon; 2. That the notes were obtained wrongfulLy and “ without consideration.” Each of these goes to the whole case made in the petition, and if either is a good defense, the court did. .not err in overruling the demurrer. Without deciding upon the-sufficiency of the first, we are satisfied that the second is a good defense. The notes were not payable in money or currency; nor were they payable in bank-notes generally, or in bank-notes current at any particular place. They were made payable in the paper of a particular bank, absolutely, and without reference to the currency or value of the paper. They were not, therefore, notes for the payment of money, within the principles of any former adjudication of this court, or of any respectable authority elsewhere. It follows,, that the consideration may be inquired into, and the want of it may be set up as a defense, as well against the bona fide indorsee, as against the original payee, and that there was at least one good ground of defense contained in this answer. The court, therefore, did not err in overruling the demurrer to the answer.

But suppose it were otherwise—suppose the court did err ini holding the answer sufficient. Has that error resulted to the plaintiff’s injury, so as to justify him in asking the reversal of the final judgment on that account ? Clearly.not. The defense in question —a want of consideration—-was subsequently abandoned, and a new and -totally different defense—a want of indorsement—was interposed. The answer setting up the latter defense, by its silence on the subject, admits the existence of a good consideration. The final judgment, which the plaintiff seeks to-reverse, was predicated upon the admitted fact that there was a good consideration, and upon the further fact, found by the court upon the evidence, that the notes had never been indorsed. How, then, can the plaintiff be injured by the supposed error of the court ? What he failed to obtain from the the court, by its refusal to hold the ^defense of no consideration invalid in law, he obtained from the party, by the tacit admission of its non-existence in fact. In other words, if there was in fact a good consideration, the opinion of the court as to the effect of a supposed want of consideration, becomes a mere abstraction. If the notes were never indorsed to the plaintiff, he had no cause of action, and it is wholly out of the case finally made and decided, to inquire what would have been the effect of a want of consideration, had they been indorsed.

The second error alleged is, in sustaining the demurrer to the first amended petition. It seems clear to us that there was a misjoinder of parties, and that upon that ground alone, the court were right in sustaining the demurrer. It matters not that the petition made a good case against some of the parties, or against each of them separately; if they were improperly joined, the court could only sustain the demurrer, leaving it to the plaintiff to say whether he would amend, and-proceed against some of the parties only-This is precisely what the court did; and the plaintiff accordingly amended, and proceeded against Street alone, upon the notes.

But there is a second answer to this petition in error, as • there was to the former, in the fact that the case made in the first amended petition was afterward abandoned, and a new and repugnant case made in the second amended petition. The case made in the first .amended petition was on notes made to the plaintiff, upon a consideration passing from the plaintiff. The case in the second amended petition was, upon notes made to Underhill, upon (implied) considerations passing from Mm, and an indorsement and sale of the notes by him to the plaintiff. It is only necessary to state the cases, in ■order to see that they are not repugnant, and that a party setting up one necessarily abandons the other, and admits that it is untrue. And it is unnecessary to say that a party can not reverse a judgment for an erroneous holding in a supposed ease, which he finally admits has no existence in fact.

It is said, in the third place, that the court erred in overruling the plaintiff’s exceptions to certain depositions. But the record does not show any of the facts. There is no bill of exceptions, and the -record only shows that the plaintiff ^excepted to the ■depositions, alleging as a reason that they were not properly sealed up and directed by the officer. Whether they were in fact so sealed and directed, the court below had the means of knowing—we have not. It is unnecessary, therefore, to decide whether the objections were valid in law, as it is not shown that’they were founded in fact. The bare assigning them as a ground of excejDtion, is no proof of the facts. If it were, the court surely erred; for it appears, in another part of the record, that a similar exception was overruled, where the ground alleged was, that the deposition was not taken at the time and place specified in the notice; and yet no exception was taken to this order.

The only remaining question is, whether the court erred in refusing the motion to amend the alleged undertaking, and in striking the cause from the second-trial docket. In other words, was there any “ undertaking ” susceptible of amendment as such, or were the steps taken for the purpose of giving such undertaking sufficient to give jurisdiction to the court, and justify an order for amendment.

There certainly was no “undertaking” in any admissible sense of the term. The entry on the journal was made by Jordan as ■cleric, and not as an obligor, or surety. It is a mere memorandum, ■of the fact that money had been deposited—“in lieu of an undertaking.” It has none of the elements of an undertaking, such as ■the statute requires. It is ex parte. It is a private memorandum, •made to aid the memory of the clerk, as to the fact of the deposit. It was not the entry on the journal that the clerk “ approved.” He .approved the “ security ”—the $200 deposited. The plaintiff had no intention, and he took no steps, to file an undertaking. What he ■intended was, to deposit money—“ in lieu of” the undertaking—and, possibly, to preserve evidence of the fact. He fully accomplished .all he intended or attempted. No doubt he omitted to file the undertaking, in ignorance of the law, and acted in good faith, believing that a deposit of the money would be all that was required. But is that sufficient ? Is the simple fact that money was deposited, with the general intention of complying with the law, enough to give jurisdiction ? It is neither an undertaking, nor a “ proceeding” for *the “purpose” of filing an undertaking. It can not be .amended into an undertaking. The remedy, if any is necessary, is with the legislature. When the legislature enact that the general intention to comply with the law for second trials, and any act done in pursuance of that intention, shall be sufficient to give the ■court jurisdiction, this case will come within the law. At present there is no such law. By the act of May 1, 1862, passed after this -cause was decided, the deposit of money in such cases is allowed in lieu of an undertaking. But there was no such law in force at the time the thirty days allowed for filing an undertaking in the «ase expired. I know the general power of amendment given to the courts by the code is very broad, and is only limited by the ■“ justice ” of the case. . But the statutory thing to be amended must exist, before the power can be exercised. Under the present statute ■an imperfect deposit of money, or steps taken to make it, could be amended or aided. Before its passage it was only an undertaking, •or steps taken to give one, that could be so amended or aided.

It is hardly necessary to say, that we can not see any force in the •suggestion that the certificate of deposit, filed as money in the case, and treated as money by the clerk, may be considered as an undertaking. It was not filed as such, and has not the form of such. It ■was merely evidence that the-plaintiff had money deposited in bank, payable to his order. In the clerk’s entry he calls it money, and having received and treated it as such, could properly call it nothing else. It requires little more imagination to make an undertaking out of the petition filed in the case, than it does to make one out of this certificate of deposit.

Upon the whole, then, we can see no error in the record, and are of opinion that the judgment of the common pleas should be affirmed.

Judgment affirmed.

Brinkerhoee, C. J., and Scott and White, JJ., concurred.

Day, J., having been of counsel, did not sit in the cause!  