
    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.
    
      *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 ei'ror 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 oase 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 con-
    
    
      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.”
    
      Tbe 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 tbe 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. Ifithe court should come to the conclusion that W. P. Eeznor 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 *!i certain conversations ” he had with Eeznor, in regard to “ said draft,” and the “ liability” of the parties thereon.
    But whatwere these conversations ? What did Eeznor tell Bates? Bid he say the draft was a good one ? or a bad one ? False or genuine? Or, what did he say? Bid 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. Eeznor?
    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.
    
      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; & 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 references. See cases above cited. Also 14 Arkansas, 298; 3 Term, 27; 1 Aikin, 380.
   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 conversations” had ^between him and ¥m. P. Reznor, an intermediate owner of the bill, some time after its maturity, and while-tho 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 were-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 have been because William P. Reznor was himself a competent witness, and might have been examined in the causes (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 /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 nor the substance of them, it was hold to be “ the settled law of Ohio, that in order to justify a reversal of a judgment on error,. the record *must show affirmatively, not only that error has intervened, but that it was to the prejudice of the party taking advantage of it.” Mor 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 whore 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-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 adjudged in the Supreme Court of North Carolina, in the ease of the State v. Jim, 3 Jones (N. C.), 348. It seems to us that the distinction taken in the 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 has 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 subject-matter 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 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 in-com petent 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, Eorth ■Carolina, Kentucky, and others which might be referred to in New York, Pennsylvania, and elsewhere, and which are referred to by Collier, O. J., in 1 Ala. 508, require that it should appear affirmatively from the bill of exceptions, not only that error intervened, but also that that'error was prejudicial, in some degree, to the complainant.

It is also a well-settled rule of construction, that bills of exception are to be construed most strongly against the party excepting. Perminter v. Kelly, 18 Ala. 719; Andress v. Broughton, 21 Ala. 204.

And when susceptible of two constructions, that which will sustain the judgment will be preferred. Donnell v. Jones, 17 Ala. 689.

This is but another form of stating the rule that the presumption is always in favor of the validity of the judgment. 40 Maine, 274; 3 Litt. 315; 7 Mo. 293.

To apply these principles to the case at bar, let us inquire whether the plaintiffs in error have made it appear affirmatively in their bill of exceptions:

1. That the court below erred in the ruling complained of.
2. That that error was prejudicial to the plaintiffs in error.

Secondly. Is it apparent from the record and bill of exceptions, that the plaintjffs in error have been prejudiced by the ruling of the district court; or, in other words, is it manifest from the record, that the ruling of that court deprived them of any beneficial testimony ?

They wére prevented, it is true, from proving one or more conversations, which Wm. P. Reznor had held with John Bates in regard to the liability of the parties to the bill of exchange, and this is all which the bill of exceptions asserts — nothing .is stated as to the purport, substance, or effect of those con•versations. Wholly unadvised as to the substance and effect of those conversations, how can we say they would have benefited the plaintiffs in error, if John Bates had been permitted to disclose them ? For aught we know, from the statements of the bill of exceptions, Reznor, in those conversations, may have asserted that the draft was still due and unpaid, and complained of the tardiness of the plaintiffs in error. We must look to the bill of exceptions alone for the information, not only as to the competency, but also as to effect of those conversations. It was the duty of the party taking the exception, the objection being as to the subject-matter offered, to have stated in his bill the substance and tendency of the proof offered and rejected. This might be done by stating the facts he expected to establish, advising *the court of its pertinency to the issue and its materiality to himself. 1 Ala. 508, and authorities cited by Collier, C. J., to this point.

The bill of exceptions affirms that they offered to prove by John Bates, certain conversations of his with Wm. P. Reznor, in regard to the draft and the liability of the parties thereon but does not inform us what it was that Reznor said upon those occasions, in regard to the liability of the parties to the bill. Clearly, such a statement does not make it apparent to the court that the plaintiffs in error were prejudiced by not being permitted to prove conversations, the purport and effect of which are not in any degree disclosed.

Nor will the merely formal statement of the bill of exceptions, that the plaintiffs in error offered proof of the conversations, in order to maintain the issue on their part, in any degree relieve them from stating the purport and tendency of such conversations. Give to this expression its utmost latitude and it merely amounts to this, that the party expected and believed that those conversations would aid him in maintaining his issue. In this he may have been mistaken — may have altogether misapprehended the tendency and legal effect of the conversations he was desirous to prove — and a . disclosure of the substance or effect of the conversations ruled out, might render it apparent to the legal mind that plaintiffs in error were not prejudiced by the suppression of the testimony. It is the fact of prejudicial action on the part of the court, and not the expectation or belief of the interested party, which the law requires, before reversal, and as to which the judicial mind must be satisfied. It is to be borne in mind that the court below did not, in terms, rule out all declarations of Wm. P. Reznor, but only certain, i. e., particular declarations. We do not undertake to say whát would' have been the effect of ruling, that no declarations of Reznor should be given in evidence — which, in some sense, would be analogous to the rejection of a witness as incompetent. *A11 we do-say is, that where it appears that only “ certain conversations ” were ruled out, it must appear, from the record, that the party excepting was, to some extent, prejudiced thereby, and to make this apparent the tendency and effect of the conversations should be set foi’tk in-the bill of exceptions.

We are, therefore, clearly of opinion that the bill of exceptions-does not-disclose such a state of facts, in regard to the rejection of the testimony of John Bates, as will authorize this court to reverse the judgment.

It is also assigned for error that the court erred in rejecting John Bates as a witness offered on behalf of the plaintiffs in error.

This, for the reasons before stated, is not correct. It is apparent, from the bill of exceptions, that John Bates was not prevented by the court from giving testimony to any facts deemed competent and relevant by the court.

The overruling the motion for a new trial, by the district court, “ because the verdict is contrary to the evidence,” is also assigned for error.

This point is not noticed in the argument, and upon an inspection of the record, we have not been able to discover that this objection is well taken.

We are, therefore, of the opinion that the judgment of the district court, now in review, ought to be and it hereby is affirmed, with costs.

Swan, C. J., and Brinkbrhorr and- Scott, JJ., concurred.

Sutliff, J.,

dissenting. The record, as presented, imports absolute verity. The fact of its amendment may or may not explain the reason of the holding of the court below. It is, however, a fact foreign to our inquiries. The members of this court are unanimous in the opinion that the court erred in excluding the proof offered in the case by the plaintiff in error. But it is a rule of law that to entitle the party to a reversal of the judgment, there *must not only be error in the proceedings, but it must also appear to be error to Ms prejudice. Under an application of this-reasonable rule, a majority of the court have come to the conclusion that the judgment below ought not to be reversed.

In that conclusion I find myself unable to concur. I can not avoid the conclusion that, by a fair application of the rules of law to the facts of this case, the judgment of the district court ought tobo reversed; and I will briefly give the reasons that have led me-to this conclusion.

The constitutional provision that no person shall be deprived of his property but by due course of law, as well as the long-established- and well-understood principles of the common law, give to every party to a civil suit in court, a right to introduce proof in support, of the issue of fact, upon his part, on the trial. To exclude, without, cause, a competent witness, introduced to give testimony in support of the claim of the suitor so introducing the witness, is an error-which is presumed to be to the prejudice of the party so wrongfully-denied a hearing of his proof.

A bare statement of the case under consideration is an illustration-of the correctness' of the foregoing proposition.

The suit was brought upon a bill of exchange drawn by Smith,, one of the defendants below, and indorsed by the other defendant, (the plaintiff in error) as an accommodation indorser, for $2,000, upon W. H. Sabin, Esq., of Onondaga Hollow, N. Y., payable thirty-days from date, and dated at Perrysburg, Ohio, December 17,1835.

The plaintiff, John P. Reznor, who had, shortly previous to commencing the suit, obtained the bill of exchange from his brother,. William P. Reznor, insisted, upon his part, that over $1,000 remained due and unpaid thereon. The defendants, Smith and Hollister,, both insisted that the sum had been paid, and their liability fully-discharged, while the paper was in the hands of Wm. P.; and that,. *before transferring it to his brother John P. he had admitted the fact.

The plaintiff, to support his claim upon the trial (which took place in 1854), gave in evidence the bill of exchange, upon which, appeared to have been indorsed, as receipted by Wm. P. Reznor. July 9,1836, the sum of $1,546.50; and also the deposition of Wm. P. Reznor, and the deposition of one Oliver B. Finley, and rested.

The defendants thereupon introduced the witness Bates, “to-maintain the issue on their part,” as the record states, to prove « certain conversations that then and there tools: place between said witness and ffm. P. Reznor (while holding the bill of exchange), .and a year or two prior to the commencement of this suit, in regard to said draft and the liabilities thereon; to the admission of all which evidence plaintiff objected, and the court then and there sustained said exceptions, and refused to permit the defendants to prove said ■conversations.”

The defendants below had the same right upon the trial to prove the admissions of William P., who had continued to hold the bill of •exchange for more than ten years after overdue, in relation to the same having been fully paid, that they would have had if he had continued to hold it and had himself brought the suit upon it. After •so long a time had intervened, the representations of the party so holding the note might be of greatest importance. Owing to the death and removal of living witnesses, and forgetfulness from lapse ■of time, other means of proof must have become greatly diminished .and limited. Under such circumstances, it seems to me almost equivalent to a general denial to the defendant to introduce any proof upon the issue, to prohibit him from introducing the proof he offered in this case. And we all agree that the court below wrongfully excluded this proof.

But the majority-of the court think that the same rule applies to a case of wrongfully excluding competent proof *which is applicable to the case of wrongfully admitting incompetent proof. I do not so understand the rule.

Where the proof is admitted, the proof being before the court can be put on the record and its import and bearing upon the issue •shown; and if the party has been prejudiced, or thinks himself to have been, it is to be presumed that he will avail himself of this .right, and carry the proof into the record. The same remark applies to written evidence, which has been offered by a party, and •wrongfully excluded ; and in both of these cases, I admit, the party -excepting to the ruling of the court, must set forth upon the record •so much of the proof, or its import, as is sufficient to show that he has been prejudiced by such erroneous holding of the court.

But I do not understand that rule as extending to the case of the •exclusion of competent witnesses, as applied in this case. It is impossible for the court or the party to know the import and bearing •of the evidence, until it is uttered; and by excluding the witness, the court precludes the party from putting the evidence upon the ¡record. Suppose the same holding applied generally by that court to all witnesses, admitted to be competent, introduced by the defendants. This court would, of course, be unanimous, as in this-case, that the court below had erred in their holding, in the exclusion of the defendants’ witnesses, so introduced “ to maintain the issue on their part.” And yet, under the application of the-rule, as insisted upon by the majority of the court in this case, the judgment below would be affirmed, for the reason that it did not appear by the record what testimony the witnesses would have given,. if not excluded; whether it would have made for, or against the-defendants. And the court would therefore assume, that the defendants were not prejudiced by being prohibited from introducing-any witnesses on the trial.

Nor can this objection to such an application of the rule by the majority of the court be avoided, by insisting that *the party introducing a witness, might state what he expected to prove by the witness. It would, I apprehend, be a novel rule to the legal profession; not to require the objector to state his objection to a. competent witness, when he made it, but to require the party introducing a competent witness to show causo why he should not. be excluded; and this on a general objection; and without any reason for such exclusion being stated by the objector. But very' often it would not be in the power of the plaintiff to state, in truth, what a witness would testify. The witness may be a friend of the opposite party, and refuse to inform the party subpenaing him, before sworn, what he can or will testify. The party subpenaing. the witness, may have proceeded upon the information that the other party had been in the habit of communicating with the witness freely upon the subject; that the witness had been his clerk, or in such a relation at the time of the transaction as to render it probable that his testimony would be highly important for the-party introducing him; and the very fact of his refusing to hold any communication upon the subject, or inform the party producing him as a witness, in relation to the nature or extent of his-knowledge, under certain circumstances, would be good cause for supposing that his evidence would be prejudicial to the opposite party, and favorable to the party so introducing him. And yet,, under the application of the rule as applied in this case, how would. it be possible for the party introducing the witness, to avail himself of his right to his testimony, when the witness had been so wrongfully excluded ? This court, it is true, say it is error in the--court below excluding him; and we would certainly give you a chance to introduce the testimony in the case, if you had only .given us the substance of the testimony upon the record, and thus -shown us its materiality. But as it is, say the court, we do not know but the witness might have testified only to something foreign to the issue: or, perhaps, adversely to your interest; or even have obstinately stood mute ; and it therefore does not appear from the record that you have been prejudiced by this error of -excluding your proof.

Again, it not unfrequently happens that an impartial and honest ■witness is found who, for some reason satisfactory to himself, refuses to have any communication with either party or 'attorney, in relation to what he can testify; and yet, when introduced and .■sworn, his testimony is found to be of vital importance in the case. And other cases might be mentioned, where, for different reasons, the witness has made no disclosures of the nature and extent of ■the testimony he could give until expressed under oath as a witness upon the stand. But if the court wrongfully excludes the witness in such cases, and refuses to let him be sworn and testify, how can the party spréad upon the record the substance of his testimony? Neither the court nor party have any means of knowing what evi-dence is excluded in. such a case.

I think none of the cases referred to will be found to sustain the rule as applied by my brethren in this case; an'd for the reasons stated, I feel myself bound to dissent from their holding.  