
    George Holland v. John B. Hatch, assignee of Hatch & Langdon.
    1. When a judgment is reversed and the cause remanded for further proceedings, aDd the plaintiff in the court below then voluntarily becomes non suit he is not estopped from bringing a new action.
    2. The unauthorized addition of the words “ without relief from valuation or appraisement laws" by an agent intrusted with the filling up and negotiation of a blank bill of exchange, will not render it invalid, there being a complete bill of exchange without them.
    
      Error to the superior court of Cincinnati.
    The case below was an action brought against the plaintiff in error, by Hatch as assignee of Hatch & Langdon, upon an alleged bill of exchange, of which the following is a copy:
    “ $2708.00. Brookville, October 28,1854.
    Thirty days after date, pay to the order of Tyner & Childers, twenty-seven hundred and three dollars, value received, without any relief from valuation or appraisement laws.
    
      “ To R. Tyner, Cincinnati, rS Ú “ Payable at Central Bank, g1^ Geo. Holland. “ (Indorsed) <j p= ■
    . “ Tyner & Childers.”
    Two defenses were set up in the court below: 1. Denying the execution of the bill; and, 2. Pleading a former judgment upon the same matter in favor of defendant, in the su-. preme court of Indiana.
    The cause was submitted to the court, which found for the plaintiff below, and rendered judgment against the plaintiff in error for the amount due on the bill of exchange. A motion for a new trial, on the ground that the finding was against the-law and the evidence, was overruled, and a bill of exceptions-was taken.
    The bill of exceptions shows the facts of the case, substantially as follows: , '
    Richard Tyner, a merchant in Brookville, Indiana, in the-year 1854, was, and for a long time had been, in the habit of borrowing money, at the branches of the State Bank of In-., diana, and in Cincinnati, Ohio, upon notes and bills of exchange, drawn or indorsed in blank by the defendant George Holland, an attorney at law, and resident of Brookville, to be sold- or discounted at such branches or elsewhere, as occasion-required, for the accommodation of Mr. Tyner.-
    In the fall of 1854, Hatch & Langdon, the assignors of’ plaintiff, were bankers in Cincinnati, and held the of ’ Tyner, with the name of Holland upon it, for a sum not far from the amount of the bill sued on in this case.
    Mr. Tyner was not prepared to pay the paper held by Hatch & Langdon when it became due, and on the day or before the day that paper became due, he called at the office of Hatch & Langdon, in the. city of Cincinnati, Ohio, with the skeleton printed bill of exchange, with the name of George Holland written on it as the drawer, as follows :
    “No. . $- 185 ,
    “ Pay to the order of
    
      u dollars,
    “ Yalue received.
    “ To \ “ /
    Geo. Holland.
    The signature of Holland to the blank bill was admitted, Ibut it was insisted that Tyner had no authority to insert or radd the words, “ without any relief from valuation or appraisement laws,” and that their unauthorized insertion rendered it void.
    By the laws of Indiana, in force at the time of the execution of the paper, no valuation or appraisement was required, in sales on judgment rendered upon notes and bills containing those words; and by the same law, no appraisement or valuation was allowed on judgments upon notes or bills discounted in banks of Indiana, whether those words were inserted or not.
    The blank bill was filled up by Hatch & Langdon, as it now is, in the presence of Tyner, and handed to him for his inspection. .-He assented to the filling, and handed it back, and the proceeds were applied in payment and satisfaction of the past due paper of the parties. Mr. Tyner says: ,,
    • “ This bill I handed to Hatch & Langdon, to fill up themselves. I did not tell them a word about putting, or not,putting, in the waiver of valuation or appraisement laws.— They handed me the bill to look at, after it Ayas filled. I cast •my eyes on .the, amount and the time for Avhich it was drawn, and did not look at or notice the rest of it. I then handed it back to them, my acceptance and the other names being on it before I first handed it to them,” .etc. “ It was in this shape when I handed the bill to the plaintiffs to be filled up, and they filled up the rest of it as it now stands. Among business men, ninety-nine out a hundred of notes given by me in the ■ eastern cities and in Cincinnati on my own account for goods, had that clause in them. I have taken motes of my debtors' in that way. It is, so far as I know, the general usage of business men here (Brookville) and in Cincinnati to take and give notes in that way.”
    . Hatch & Langdon, before they assigned to Hatch, brought s/uit against Holland in the circuit court of Indiana, and recovered a judgment for the amount of the bill. The case was taken by Holland to the supreme court of Indiana, by writ of error, and the judgment of the circuit court was there reversed — the supreme court holding that the bill was void as to Holland, by reason of the unauthorized insertion of the valuation or appraisement clause; and the cause was remanded to the circuit court for further proceedings. When the case came back to the circuit court, the plaintiffs, Hatch & Langdon, voluntarily became non suit. Hatch & Langdon having subsequently assigned to Hatch, the latter brought the present suit in the superior court of Cincinnati.
    
      Collins &¡ Herron, for plaintiff in error:
    1. The superior court of Cincinnati erred in entertaining the main question as to the liability of Holland on the bill, after it had been finally adjudicated by the court of last resort in Indiana. Outram v. Morewood, 3 East, 346; Bisher v. Richards, 9 Ohio St. Rep. 498; Armstrong v. Harvey, 11 Ohio St. Rep. 532; Dutchess of Kingston’s case, 11 State Tr. 291; Harvey v. Richards, 2 Gallison, 228; Neafie v. Neafie, 7 Johns. Ch. 4; Hibleshan v. Dulleham, 4 Watts, 191; Lore v. Truman, 10 Ohio St. Rep. 53; Story’s Eq. Pl. secs. 791-793; Barney v. Patterson, 6 Harr. & John. 182; Pelton v. Platner, 13 Ohio Rep. 209; Loudenback v. Collins, 4 Ohio St. Rep. 261; Birck 
      
      head v. Brown, 5 Sandford, 145; Doty v. Brown, 4 Comst. 71; Bank of Augusta v. Earle, 13 Pet. 519, 589; Palmer v. Yarrington, 1 Ohio St. Rep. 261; 7 Ohio St. Rep. 387.
    2. The superior court erred in holding that Holland was liable on a bill which, in point of fact, he never made. He never proposed to make such a contract; he never authorized any one to make such a contract for him. Williams v. Bosson, 11 Ohio, 62; Holland v. The State Bank, 11 Ind. 151; Holland v. Hatch, 11 Ind. 497; Fay v. Smith, 1 Allen (Mass.), 477; Wade v. Worthington, 1 Allen, 512; Bell et al. v. The State Bank, 7 Blackf. 456; Master v. Miller, 4 Term Rep. 320; Smith’s Lead. Cas. 487; United States v. Linn, 1 How. 104; Boalt v. Brown, 13 Ohio Rep. 373.
    
      A. Brower, for defendant in error:
    1. The superior court rightfully held that Hatch & Lang-don and their assignee were not concluded by the proceedings disclosed in-the case as having taken place in Indiana. Harvey v. Richards, 2 Gallison, 216, 228, 230; Davis et al. v. Clemson, 6 McLean, 622, 624; Cook v. Litchfield, 5 Sandford, 230, 337.
    2. The superior court rightfully held that Holland was liable on the bill, on the merits of the case as disclosed in the record. Fullerton v. Sturges, 4 Ohio St. Rep. 529, 534; Russell v. Langstaff, Douglass, 514; Jessup et al. v. The City Bank, of Racine, 14 Wisconsin, 331.
   Welch, J.

The plaintiff in error insists that there was error in the finding and judgment of the superior court, for two reasons: 1st. The plaintiff below was estopped by the judgment of the supreme court of Indiana; and 2d. The bill of exchange is not the bill of Holland, because of the unauthorized insertion of the words “ without relief from valuation or appraisement laws.”

It seems to us, that when the judgment of the Indiana circuit court was reversed in the supreme court of that state, and tire cause remanded, again to the circuit court for further pro¿eedings, the ease stood in the circuit court as it did before trial pr judgment. The judgment of the circuit court had become a nullity by the reversal. The judgment of the 'supreme court was the only thing left to estop the parties, and that simply estops them from denying that the judgment below was reversed, and that the cause .was remanded. And the final judgment below seems to éstop them from denying that the case ended in a non suit, and not in a judgment upon the merits.

We are therefore unable to see how this judgment of the supreme court can be held to estop a party to it from asserting that Holland executed the bill of exchange in question. The only verdict and judgment as to that fact were against Holland. But as that finding and judgment have been set aside, and the cause again reinstated, and dismissed, both parties are free, as they were before suit, to make any averments the cause or defense might seem to require, as to the merits of the original cause. Both are estopped from denying the reversal, the remanding of the cause, and the non suit, and they are estopped no further; and surely no one will deny, that the effect of a non suit is to leave the plaintiff at liberty to bring a new action.

The other defense interposed seems to me* to present a question of fact:. Was Tyner authorized, under all the circumstances, to insert the words “ without any relief from valuation or appraisement laws f ’ It is not the case of an altered bill. The bill was in its present form when finally delivered to Hatch & Langdon for discount. It is a question of authority to fill up the bill, with the objectionable words inserted.

No question is made as to the authority to fill the other blanks in the skeleton bill — the date, the amount, the time of payment, names, etc. The form of the paper, and the law merchant, alone, raise a legal presumption of' authority for the filling of these. The authority to add the words objected to, must depend on all the circumstances of the parties, as tending to show whether the intention did in fad exist, to give to the agent Tyner authority to that extent.

I think the circumstances are sufficient. The agent, Tyner, who was intrusted with the blank bill, and therefore, with authority to fill up ordinary and usual blanks, had often been intrusted by Holland, with power to waive relief from valuation or appraisement laws, by negotiating them in the Indiana banks. ' He had often so negotiated them, with the approval of Holland, who himself drew most of his own notes with that clause inserted. The bill in question was to be discounted for the special purpose of discharging paper due to Hatch & Rangdon, on which Holland’s liability .had become fixed; and its proceeds were so applied, and the paper was taken up or canceled. Moreover, Tyner admittedly had authority to discount the paper in an Indiana bank, where the effect would have been the same, without the insertion of the objectionable clause. Holland lived in Indiaña, and knew the laws of Indiana, and he gave his name to this skeleton, with the name of the payee, and of the place of discount blank, and must have intended to give authority to negotiate it in such form, or in such place, as to deprive him of the relief from valuation or appraisement" laws. Whether this authority was exercised by negotiating the bill in an Indiana bank, or by negotiating it in Cincinnati, with the provision inserted, seems to me immaterial. My brethren, however, do not concur in this view of the case, not being satisfied that the insertion of the words was unauthorized under the circumstances. But a majority of us concur in affirming the judgment below, upon a different ground. And that is upon the ground that there is a complete bill without these words, and that they may be rejected, as forming no part of it, and affecting in no "way its validity. ■These added words relate exclusively to the remedy, and are no part of the bill proper. They have much the same relation ■to the bill as would be that of the usual warrant of attorney, added to bills and notes, to confess a judgment for their amount. The one is as readily and distinctly separable therefrom as the other. This view seems to be within the principle settled in Fullerton v. Sturges, 4 Ohio St. Rep. 529. It simply draws a line, where that is practicable, between what is authorized and what is unauthorized.

If the bill is to be considered as drawn in Ohio, and not in Indiana — and such appears to be the law, as settled in Davis et al. v. Clemson, 6 McLean, 622 — then it would seem, that the words objected to may be rejected as mere surplusage, because in no sense altering the legal effect of the bill, even as to any remedy upon it; such would be the fact at least, should the remedy be sought in Ohio, where it is presumed that parties can not effectually bind themselves in contracts to waive relief from valuation and appraisement laws, applicable thereto. The power given, authorized the filling up of the bill in the usual way, and the addition of these unauthorized words does not render it invalid. Whatever their legal effect, if any, there is a completeJbill of exchange without them. The insertion of these words was the mere unauthorized act of the agent, and therefore void as to the principal, and if separable ■from the authorized bill, should not be allowed to viciate it, or destroy its effect.

The judgment of the superior court is affirmed.

Scott, and White, JJ., concurred.

Brinkerhoee, C.J., and Dat, J., dissented as to the second proposition of the syllabus.  