
    *Henry L. Whitman and others v. Myron Keith and John Coon.
    1. The right of action against a garnishee, given by section 218 of the code, passes by an assignment of the judgment obtained against the defendant in attachment, and an action may be brought under that section by the assignee in his own name.
    2. Proceedings in garnishment may, in a proper case, be instituted against a partnership by its firm name.
    3. In such case, the copy of the order of attachment, and notice to appear and answer, must be served upon the firm, by leaving the same at its usual-place of doing business within the county.
    4. An action under section 218 of the code, to enforce against a partnership-a liability arising under its provisions, may be brought against the partnership either in the name of the firm or in the names of the persons who compose it, at the option of the plaintiff.
    5. Where a special examination of a garnishee is ordered, pursuant to statute, it is competent for the court to appoint a commissioner to take the same. It is not necessary that such examination should 'be had in open-, court.
    6. A judgment will not be reversed on the ground that evidence,was improp erly excluded by the court upon the trial, if the record shows that the-plaintiffs in error could not have been prejudiced thereby.
    Error to the court of common pleas of Cuyahoga county. Deserved. in the district court.
    In September, 1856, one George A. Howe brought a civil action in the court of common pleas of Cuyahoga county, against one-William E. Cornwall, seeking to recover the value of a certain-draft or bill of exchange drawn by one Byers, which, as he averred, had been received for him by Cornwall, while in his employment, and which Cornwall had fraudulently converted to his own use.
    Having made the necessary affidavits, he procured an order of' attachment against Cornwall, and garnishee process against the-firm of Whitman, Standart & Co., under which name the plaintiffs-3n error were doing business as bankers. This process was served on the firm by leaving a true copy thereof at its usual place of business, with Stephen H. Standart, he being in charge of the office.. Stephen H. Standart was not a member of the firm; but Charles' W. Standart, one of the partners, subsequently appeared with an attorney retained by him on behalf of the firm, before a commissioner appointed by the court for that purpose, and without objection ^answered to the process by submitting to an examina- [1B5-tion touching the alleged property of Cornwall in possession of the firm, and the alleged indebtedness of the firm to Cornwall. On that examination he stated, among other things, that in December, 1854, the firm had opened an account with Cornwall, and that he-had been in the habit since that time of drawing on them from time to time, and of leaving papers with them for collection, and that they had accepted and paid his drafts and checks, under am arrangement between the parties, that the debts and credits of _ Cornwall should, at the end of each quarter, be transferred to the' account of Henry L. Whitman,, who was one of their firm, and who; had agreed to assume and become responsible to the firm for all such debts ; that this arrangement was still subsisting in August, 1856, at which time Cornwall left with them a draft draft drawn by T. N. Byers, to the order of himself, on J. M. Craig, payable at New Orleans, for $1,311.67, due December 17, 1856; that the draft was left to be collected on account of Whitman under said arrangement, and was so entered on their collection register, and was intended, as they understood, to cover Cornwall’s indebtedness to him.
    Howe recovered a judgment in his action against Cornwall, in May, 1858, for the sum of $1,442.83 and costs.
    This judgment remaining wholly unpaid, the defendants in error, as the assignees thereof, commenced the original action in this case, in January, 1859, under section 218 of the code, seeking to subject the plaintiffs in error, who are the members of said firm, to liability, by reason of the alleged unsatisfactory and untrue character of the answer of the firm, as such garnishee, and to recover a judgment against the plaintiffs in error, individually, for the amount of the property and credits of Cornwall in the possession of the firm at the time when it was so garnisheed.
    The petition in the court below alleged that the answer of the firm in the garnishee proceeding was untrue, in averring that the firm was not indebted to Cornwall and had none of his property under its control, when in fact it was so indebted, and had the control of such property to the amount of $1,400.
    130] *Tlio defendants demurred to this petition, on the grounds: 1. That the action should have been brought in the name of George A. Howe, the plaintiff in attachment, and could not be maintained in the name of his assignees, the present plaintiffs; 2. That the action should have been brought against the firm by its firm name, .and not against the members of the firm individually; and, 3. That the petition does not state facts sufficient to constitute a cause of :action.
    This demurrer was overruled by the court.
    The defendants then answered, reciting the substance of the answer and disclosure made by Charles W. Standart, on his examination under the process of garnishment, and averring that the same was in all respects a full and true disclosure. They further say, that at the time the Byers draft was left with them for collection, and from thence up till the time of,its collection, Cornwall was indebted to Whitman in a sum greater than the amount of the draft; that they did not succeed in collecting the draft till December, 1858, when the net proceeds thereof, amounting to $1,339.40, were paid over by the firm to Whitman, leaving a balance still due to him from Cornwall; and they aver that they wore on no other account indebted to Cornwall, as alleged in the petition, and had no other-property of his in their possession or control. They also say that neither the firm nor any of its members wore ever legally served with process of garnishment; they deny that the firm ever appeared or answered to said process; and deny that Charles W. Standart ever appeared or was authorized to appear and answer thereto on behalf of the firm, or that he had power to bind the firm by his answer.
    The pfiaintiffs replied, and among other things denied that the-Byers draft was left by Cornwall for collection on account of Whitman, or under any such arrangement as was stated by Charles W. Standart in his answer in the proceeding in garnishment; they denied that any such arrangement existed during the month of August,, 1856, when the draft was left for collection; and they say it is not true that Cornwall gave any directions as to the application of the proceeds of the draft, or was at all indebted at the time either to" Whitman or to the firm.
    *TTpon the issues thus made, the cause was, for the third [137 time, submitted to a jury, and the plaintiffs below obtained a verdict in their favor for $1,653.04.
    The pfiaintiffs in error moved for a new trial, on the grounds-among others, that the court had erred in its charge to the jury, and that the verdict was contrary to law, and not sustained by sufficient evidence, and was contrary to the evidence.
    This motion was overruled, and exception taken, and thereupon-judgment was entered on the verdict.
    A bill of exceptions was taken by defendants below, which brings-into the record all the evidence offered upon the trial, as w:ell as the ruling of the court in excluding certain evidence offered by defendants below upon the trial, and portions of the charge of the court to which exception was taken, and sundry instructions which the court refused to give to the jury, though requested so to do by counsel for pfiaintiffs in error.
    To reverse this judgment, the defendants below filed their petition-in error in the district court, where the cause was reserved for the ■ decision of this court.
    The errors assigned, and relied on in argument, are: That the- ' -court erred in overruling the demurrer to the plaintiff’s petition ; in excluding testimony offered by defendants below ; in refusing to charge the jury as requested by said defendants, and in the -charge given to the' jury ; and in overruling the motion for a new tidal.
    
      Moses Kelley, and Prentiss & Baldwin, for plaintiffs in error:
    1. The action should have been bx'ought by Howe, plaintiff in ;attachment. Code, sec. 218, authorizes Howe, and Mm alone, to 'bx’ing the action. There is no conflict between this section ¿.nd .sections 25 and 27 of the code, taken together. The general rule that the party in interest must be plaintiff has no force or application to the case px-ovided for by section 27 ; a person expressly .authorized by statute, may bring an action without joining with 133] him the person for whose ^benefit it is prosecuted. See Jackson v. Shipman, 28 Ala. 488, cited in 18 U. S. Dig. 6, Nos. 96, 97, 98.
    Proceedings under- our code, in aid of execution, are given to the “judgment creditor.” Have they ever been allowed in the name of the assignee of the judgment?
    2. No lien was acquired in the garnishee proceedings in the suit ■of Howe against Cornwall, for the reason that the law does not .authorize a suit as to the mere collatei-al part thereof by garnishment to be commenced against a firm, in the firm name; and no •provision of law for the service of such process exists; and there was no equivalent for legal sexwice by an appearance which could •constitute a waiver, so thex’e is no foundation laid for this suit; and if there was such foundation, there are not facts enough to •constitute a cause of action in the petition. The demurrer filed in the case brings up this latter question.
    It is, evident from,the language of sections 200 and 201 of the code that garnishment proceedings are limited to — 1. Natural persons; 2. Artificial persons or corporations. A firm is neither, but a merely ideal or imaginary existence. And a firm is a firm, and, ;as something diffex*ent from, and other than the natural persons composing it, can not be served as required by section 201, and can not answer under oath as required by section 214, and can not be proceeded against for contempt as provided by section 216.
    The statute, entitled “ an act in aid of the law regulating suits-.against companies and partners,” does not at all apply to attaeh-xnent proceedings, nor can it be brought in to sustain this action, •or the original attachment proceeding.
    No sort of necessity exists for garnishee proceedings to be against the firm, instead of the individuals composing it; and after thé .garnishment of a firm by its firm name, it is not necessary to sue the firm by its firm name, on the statutory liability.
    The firm, as a firm, was never brought into court as garnishee, ¡and was, therefore, never made garnishee.
    The statute has required a particular service (Code, secs. 200, 201), and that is the only mode of service on a garnishee; none -other can be substituted for it. Expressio unius *esi exclusio [139 ■alterius. It is a special mode of service for a special case. Such mode of service was not adopted in this case, and the service which was made the court decided to be illegal and invalid.
    -The appearance of C. W. Standart before .the referee was no appearance whatever. 1. It was no appearance in court; 2. It was not a voluntary appearance (Code, sec. 65) ; 3. It was not an appearance in fact and to the action ; 4. It was not an appearance •of the firm. C. W. Standart had no right to make the attorney the attorney of the firm, so that his presence would bind the firm. 1 Am. Lead. Cas. 442.
    If the firm was legally brought into court as garnishee, by the .apjxearance of C. W. Standart with the attorney of the firm, it does not lay a legal foundation for this action against the individuals -composing the firm, then defendants.
    A lien must be created by the attachment proceedings on property belonging to the defendant in that action, to enable plaintiffs "to sustain this action.
    No such lien was created or existed by virtue of the attachment jjroceedings. The service, and not the appearance and answer, .attaches the lien, and attaches it at the' time of service. Code, sec. 206; Drake on Attach., secs. 185, 194, 224; Gardner v. Hust, 1 Richardson, 601; 2 Handy, 161.
    The court correctly charged that the service in this ease did not create a lien, but erroneously held that the appearance and answer did, by waiving the defects of service. The garnishee could not waive anything essential to create that lien, because the thing to be affected is not his, but the debtor's.
    
    A waiver of service is not a service, and does not therefore create ;a lien, as a lien can only be created under the statute by a service.
    
      3. There is no ground to hold Whitman, Standart & Co. as garnishees on the disclosure or otherwise.
    4. The verdict was clearly against the weight of the evidence, and there was really no evidence to sustain it.
    5. Proof of the lien should have been allowed. Any proof to show that Whitman, Standart & Co. had the right to hold the prop-MO] erty against Cornwall was proper; that they had acclaim, upon it of any description ; and the extent of that claim.
    6. The statements of Cornwall that he had made such an arrangement with Whitman as is stated in the answer, as the first-arrangement between them, were evidence. Harrison v. Castner, 11 Ohio St. 345; 1 Greenl. Ev. 222, sec. 190.
    7. Whitman, Standart & Co. are not liable merely for holding for collection an uncollected bill, on which, in the natural course of business, expenses must have accrued, and nothing had been received. Drake on Attach. (3 ed.), secs. 481, 544; Supton v. Cutler,, 8 Pick. 298. If Howe had not been satisfied when this disclosure was made, why did he not, under code, section 217, ask the court to order the “ delivery of the bill into court?”
    8. The court had no power to refer to a referee to take the disclosure, as that power is only given in case of several attachments to ascertain priorities, etc., and thereby it is fairly implied there is no other power; and. this matter has its origin in, and is wholly regulated by, the statute in relation to attachments. See secs. 214, 216, 217, 225.
    9. Whitman ought not to be compelled to occupy the position liéis placed in by this judgment. Drake on Attach. (3 ed.), secs. 683, 688, 689a; Brown v. Warner, 43 N. H. 430; Boston Type Co. v. Morton, 7 Pick. 166; Hathaway v. Russell, 16 Mass. 472 ; Stearnsv. Smith, 19 Pick. 20.
    10. Under our system, does not the garnishee stand like any other Avitness of the party calling him ? You may not impeach him directly or indirectly, but you may show his account of the matter is incorrect. Cronmon v. Cronmon, 21 Pick. 21; Drake on Attach., part 6 of sec. 59; Jewett v. Bacon, 6 Mass. 60; Parker v. Danforth, 16 Mass. 299; Warner v. Perkins, 8 Cush. 518; Claflin v. Iowa City, 12 Iowa (4 With.), 284; Smith v. Clarke, 9 Iowa, 241 Chase v. Worth, 4 Minn. 381.
    
      
      Keith & Coon, in person :
    The case sought to be made by the plaintiffs in error is a purely technical one, and depends upon the proposition that the laws of Ohio do not authorize the issue and service of ^process of [141 garnishment against a copartnership or firm, in its firm name.
    
    1. Garnishees in attachment are parties to the suit, and are parties adverse to the plaintiff. Dennison v. Benner, 36 Maine (1 Heath), 227; Code, secs. 200, 215.
    In the suit of Howe v. Cornwall, as principal and defendant, and Whitman, Standart & Co , as garnishees, there was an. exact compliance with the terms of the act of February 27, 1846. S. & C. 1138.
    2. But, if we concede that the proceedings of garnishment against, the defendants below were originally erroneous and defective, what then ? The 13th section of the code provides, in express terms, that “ the court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party ; and no judgment shall be-reversed or affected by reason of such error or defect.”
    Now, it will not, we suppose, be contended that assets of a defendant in attachment can not be reached in the hands of a co-partnership, by process of garnishment. We understand the defendants below as objecting, simply that the process of garnishment was issued against them and served upon them, as a firm, in their-firm name. If this was erroneous or defective, what “ substantial right ” of theirs did the error or defect injuriously affect ? It is-not pretended that any other form of proceeding, or mode of service, could have been more advantageous to them. The form of proceeding and mode of service adopted, apprised them, in the precise terms prescribed by the statute, of the nature of- Howe’s demand, and of their obligations as garnishees. Proceedings instituted against them, as individuals composing the firm, and process-served upon them, severally, in like manner, could have done no more, and no less. It is impossible, therefore, to perceive how the error alleged and assigned could have affected any substantial right of the garnishees. And it will bo observed that the notice of garnishment was served upon Whitman individually, by leaving a copy thereof at his residence.
    3. If the error assigned existed originally, it was cured by the appearance and answer of the garnishees. Abernethy v. *Latimore, Jenkins & Co., 19 Ohio, 286; Smith v. Eaton, 36 Maine, 298. [142
    
      4. It is claimed by tbe plaintiffs in error that the court erred in •excluding evidence of Cornwall’s statements as to his pretended •“ arrangement ” with Whitman. Reference is made to the testimony offered through the witness, N. M. Standart, which was •objected to and excluded. We are relieved from discussing the admissibility of such testimony in the case stated, by the fact that two other witnesses, Whitman and C. W. Standart, were permitted to testify to substantially what was offered to be shown by N. M. Standart, and that N. M. Standart had already stated in substance what was again offered.
    5. As to the weight of the evidence, three different juries have passed upon this case, and in every instance rendered a verdict for the plaintiffs below. It is manifest that the jury must have found, in every instance, primarily, that said “ arrangements ” between Cornwall and Whitman, and between Whitman and the firm of Whitman, Standart & Co., if they ever had an existence, terminated with the close of the Lake Superior business, in the early summer ■of 1855, before Cornwall left the draft with them.
   Scott, J.

The first question raised by the assignments of error in this case is : Did the court below err in overruling the demurrer to the plaintiff’s petition ? This demurrer, it is said, should have Been sustained for several reasons.

It is claimed that the action should have been brought by Howe, the plaintiff in attachment, and could not be maintained in the name of his assignees. The right of action against a garnishee, .given by section 218 of the code, was intended as a means of procuring satisfaction of the attaching creditor’s claim. It is incidental to, and inseparable from, the ownership of such claim, and by the assignment of the claim, passes to the assignee. The general rule of the code, established by section 25, is that “ every action must bo prosecuted in the name of the real party in interest,” and and the only exceptions to that rule are to be found in section 27, and none of them relates to the case of assignments. But section 26 provides that “ in the case of an assignment of a thing in action. 143] *the action by the assignee shall be without prejudice,” etccloarly implying that the action is to be brought by the assignee. Where at common law, an assignment of a chose in action would jpass only the equitable title, it is the policy of the code to vest in ■the assignee the legal title, and consequent right of action in his own name.

It is claimed, in the next place, that the action should have been brought against the firm by its firm name, and not against the members of the firm by their individual names. This position is 'wholly untenable. The remedy provided by the statute which authorizes suits to be brought by and against jDartners in their firm name is not a substitute for the remedies previously existing, but is in addition thereto. This is expressly declared in its fifth section. S. & C. Stat. 1139. It follows that partnership liabilities may be enforced by action brought under this statute, and pursuant to its provisions, or by suit against the partners by their individual names, as before the statute, at the option of the plaintiff.

Again, it is claimed that the demurrer to the petition should have been sustained because no lien could be acquired, nor liability toe imposed on the firm by process of garnishment issued against a firm by the firm name; the claim being that a firm as such can not be garnisheed. The same point was made upon the trial by instructions asked to be given in charge to the jury and refused by the court; and it presents a question which is, perhaps, not free from doubt.

Section 200 of the code provides that: “When the plaintiff, his agent, or attorney shall make oath in writing that he has good neason to, and does believe that any person or corporation, in said affidavit named, has property of the defendant in his possession (describing the same), if the officer can not get possession of such property, he shall leave with such garnishee a copy of the order of attachment, with a written notice that he appear in court and answer,” etc. The literal terms of this section embrace only the case of a single person or a corporation. But its provisions are remedial, and should be liberally construed; certainly not with such strictness as would defeat its evident purpose. Properly construed, it must be held to authorize proceedings against any number of persons, who, as an unincorporated company or [144 association, have the property of the defendant in attachment in their joint possession. The only question of doubt is, whether in .such case process must issue against the partners by their individual -names, or may, at the option of the plaintiff, issue against the .company or association by the firm name which it may have assumed for business purposes.

By the act of February 27, 1846, in aid of the law regulating" suits by and against companies and partners,” which has already been referred to, unincorporated companies or partnerships formed for the purpose of carrying on any trade or business within this state, are authorized to sue or be sued ” in any of the courts of this state, by such usual or ordinary name as such company, partnership, or association may have assumed to itself or be known by; and-in such case the statute declares it shall not be necessary to set forth in the process or pleadings, or to prove at the- trial, file-names of the persons composing such company. The purpose of this statute was to give to every partnership of the kind which it' describes, a status in court as a person, an artificial or ideal person,, it is true, but still the status of a person, who is regarded as the-owner of the partnership property and rights in action, and is responsible for the partnership debts and liabilities of every kind. To render the administration of justice more convenient and easy,, this statute authorizes suits to be brought by and against this ideal person in the name which the partners have seen fit to give it, and authorizes judgments which may be rendered against it to be satisfied by executions to be levied only on the partnership property. This capacity of appearing in court, in the firm name, is conferred by the statute upon partnerships in general terms; they “may sue and be sued” in this manner; not in special cases, or classes of cases, but, without qualification or limitation, they may thus sue and be sued generally. Now, what is it “ to sue,” or “ be sued,” within the meaning of this statute? These terms comprehend much more than the inauguration and prosecution of the civil action provided for by the code. It is sufficient for the purposes of the present case to say that a party may, at least, be said 145] to be sued, #when, by proper legal process, he has been brought into court to answer to a claim preferred against him by another, upon the validity of which the court has jurisdiction topase judicially to render a valid judgment, and enforce the same-by writ of execution.

Now, by the provisions of the code, when the plaintiff in attachment, upon proper affidavits, procures the issuing and service of garnish ee process, the garnishee becomes bound to appear, and answer fully and truly touching any property of the defendant in - attachment in his possession or under his control, and touching his own indebtedness to such defendant, and to submit to such special .examination as the court may direct; and this obligation to make ■a full disclosure may be enforced by attachment. If he answer fully and truly, and comply with the order of the court, made in ■the premises, he is entitled to recover his costs. If, by his answer, he admit an indebtedness to the defendant in the principal action, ■the court may order the payment of the whole or a part thereof to :the plaintiff; and upon this order, if not complied with, an execution may issue, as upon judgments for the payment of money. •Code, sec. 200. In addition to all this, is the remedy given by section 218, under which the original action in this case was brought. Looking, therefore, to the nature and results of proceedings in garnishment, we think they exhibit the characteristic elements of a .■suit; that a garnishee, when duly served with a copy of the order of attachment, and notice to appear and answer, may properly be said to “ be sued,” within the meaning of the act of 1846, and that ■process of garnishment may therefore well issue, and proceedings ..thereon be conducted against a partnership under its firm name.

Another question, closely connected with the one we have been examining, was raised in the court below, as well by the pleadings as by instructions asked to be given in charge to the jury. The plaintiffs in error asked the court to charge the jury that service of the order of attachment, and notice to the garnishee made upon the firm by leaving copies thereof at the usual place of business of .the firm, with the person in ^charge of the office, would be [146 wholly invalid, and that this irregularity and defect in the mode of service would not be waived or cured by an appearance and answer, on behalf of the firm, by one of its members. The -court charged as requested in regard to the defective character of .such a service, but instructed the. jury that if one of the defendants, with the attorney of Whitman, Standart & Co., appeared and made answer before the referee, in pursuance of the notice, such .appearance and answer would cure the defects of the service, and that the defendants were bound by such appearance. Did the court err in refusing to charge as requested? Section 201 of the code -directs that: “ The copy of the order and the notice shall be served upon the garnishee, as follows: If he be a person, they shall be served upon him personally, or left at his usual place of residence; if a corporation, they shall be left with the president or other head -of the same, or the secretary, cashier, or managing agent thereof.” This mode of service is substantially the same as had been prescribed in preceding sections, in the case of a summons, but as the’ antecedent provisions were limited to the service of a summons, this-section providing for special process was necessary and proper. But neither in'this section nor in any other part of the code, do we find any mode prescribed for the service of a summons, or any other mesne process upon a firm when sued in the manner authorized by" the act of 1846. That act, however, and all its provisions, remain unrepealed and in full force, and are the only authority for judicial proceedings by or against a partnership in the firm name. The* second section of that act directs “ that process against any such company or firm, under the provisions of this act, shall be served by copy left at their usual place of doing business within the county.” Here, then, in the same statute which gave the new and cumulative-remedy, we find prescribed the mode, and the only mode, of serving' a summons, or such other “ process ” as the particular case may require, whenever a party would avail himself of the remedy here-given. We think the court below was-mistaken in charging the jury that the service of garnishee prohess by a copy of the order and notice left at the partnership office or place of business would’ 147] *be irregular and invalid; but as this instruction was given-at the request of plaintiffs in error, and could not prejudice them, it. can furnish no ground of complaint on their part.

Whether an irregularity in the mode of service would have been' waived or cured by a subsequent appearance and answer, as was held by the court below; and whether, without special authority, one of the partners could bind the firm by a voluntary appearance and answer, it is, of course, unnecessary to inquire.

The power of the court to appoint a commissioner to reduce to writing the special examination of the garnishee, and. report the same to the court, is also drawn in question by counsel. We think: the court might well make such order. The only limitation on the-power of the court in that regard is found in section 200, which provides in favor of garnishees not resident in the county in which the order of attachment issues, that: “ Any special examination of such garnishee, which may be ordered by the court shall be in the-county in which he may reside.” This provision is not indicative of a purpose to require the special examination of the garnishee to-be had in open court, in any case.

It' is also claimed that the court erred in refusing to charge the-jury, at the request of plaintiffs in error that, independent of any arrangement between Cornwall and the banking firm of defendants, sncb as was set up in their answer, the firm would have a banker’s lien upon the proceeds of the Byers draft, for any balance of account in their favor against Cornwall. No issue of this kind has-been made by the pleadings. The defendants below had claimed by their answer that this draft had been left for collection on the account of "Whitman, and that he was entitled to its proceeds in virtue of an agreement with Cornwall to that effect. The court below was of the opinion that the claim of the plaintiffs below could not be defeated by a lien wholly inconsistent with that set up in the answer; or, in other words, that the proofs must substantially correspond with the pleadings; and in this we think that court was entirely correct.

On the trial below the plaintiffs in error offered to prove by the testimony of Needham W. Standart certain statements *or [148 admissions made by Cornwall, to the effect that he had, in the fall of 1854, made an arrangement with Whitman, and his partners, such as is stated in their answer. To the introduction of this evidence the plaintiffs below objected, and the court sustained the objection and excluded the evidence. It is alleged that the court erred in this ruling. It may be conceded that the evidence offered would have been competent, irrespective of the circumstances of the case, for the purpose of proving that such an arrangement had been made by the parties thereto as was proposed to be shown. Still, its exclusion would not justify the reversal of the judgment, if it appear satisfactorily, that the plaintiffs in error could not have been prejudiced thereby. The fact that such an arrangement had been made between Cornwall and Whitman in the fall of 1854. was not controverted by the plaintiffs below-, either by their pleadings or by evidence offered on the trial. Their claim was that this arrangement terminated when Cornwall quit the Lake Superior trade, which was before August, 1856 when the Byers draft was left for collection, and that it was not therefore, deposited with the bank under and pursuant to the former agreement. Each of the defendants below was permitted, without objection, to testify directly to the making of the original agreement between Cornwall and Whitman; they were allowed to state, and did fully state its terms, the time when it was made, and the reasons which gave rise to it. Even the witness, through whom the excluded evidence was offered, had already testified that Cornwall was authorized to draw checks on the firm, under an arrangement made by Whitman with the firm;” he had testified fully to the terms of this arrangement; “that Whitman was to have the benefit of any money or paper deposited with said firm by said Cornwall;” that this was in pursuance of an arrangement between Whitman and Cornwall, the terms of which he knew by hearing them talk about it arid say what it was, in 1854 or 1855. Whitman had testified very fully both as to the existence and terms of the arrangement between Cornwall and himself, as well as of that between himself and the 149] firm; and no evidence of a contradictory character *was offered from any quarter. We think it evident that the defense below failed, not for want of proof that the arrangement claimed to have been made in 1854, was in fact then made, but from a failure to satisfy the jury that it still subsisted in August, 1856, and that the draft was deposited in pursuance thereof. This was what the plaintiffs’ reply had denied. As the evidence excluded was at most only cumulative, and upon a point evidently not controverted, and as plaintiffs in error had the benefit of what was substantially the same evidence from the same witness, wo think they could not have been prejudiced by the ruling complained of. This doctrine is fully .sanctioned by the case of Gandolfo v. The State, 11 Ohio St. 114.

Finally, it is claimed that the court efrod in overruling the motion for a new trial, on the ground that the verdict was against the weight of evidence. The main question to be passed on by the jury was whether the Byers draft had been left with defendants below, by Cornwall, for collection on the account of Whitman, or •on his own account. There were admitted facts, as well as direct testimony, tending to impeach the evidence of the defendants on that subject. They had, contrary to their usual custom, made two entries of the Byers draft on their bank register. The first of these entries originally showed that the collection was to be made on Cornwall’s account. From this entry, the name of Cornwall had been erased and that of Whitman substituted. Why or when the • duplicate entry was made was not clearly shown. The plaintiffs below testified that the alteration in the first entry had not been made when the register was first exhibited on the special examination of Charles W. Standart; whilst the defendants testified otherwise. In this irreconcilable conflict of evidence, it was for the jury to determine all questions of credibility; and if they found these against the defendants, then it was their province, in the light of tbe evidence and under proper instructions, to determine whether ■the alteration was made for the honest purpose of correcting a mistake, or for the fraudulent purpose of giving color to a false claim. XJpon this question, the finding of the jury may have been contrary to the fact, but we think it was not so clearly unwarranted *by [150 the evidence as to require a third, verdict of the same kind to be set .aside.

Judgment affirmed.

Day, C. J., and Brinkerhoff, Welch, and White, JJ., concurred.  