
    Amos Spafford v. William Bradley.
    A judgment of the Supremo Court on the circuit, reversing the judgment of an inferior tribunal for refusing a new trial, where it was claimed that the finding was against the evidence, will not, as a general rule, he considered the subject of reversal here. 
    
    Nor will the action of an inferior tribunal in granting a new tria.l in a like case be held exceptionable by the Supreme Court.
    Error to the Supreme Court of Hamilton county.
    *Tho plaintiff in error brought suit in the commercial court of Cincinnati, upon two promissory notes given to him by the defendant, Bradley, and dated, “Detroit, November 8, 1847”—the first in the sum of $158.67, payable in three months, and the second for $159.12, at four months; and both made payable at the Commercial Bank in Cincinnati.
    The defense was, that the notes were given on a transfer of stock in “the Cincinnati and Presque Isle Mining Company of Lake Superior,” which stock was claimed to be without value, and, consequently, it was insisted by defendant, that there was a total failure of consideration.
    The cause came on for trial at the October term of the commercial court, 1848, and was submitted to the judge, without the intervention of a jury.
    The only witness called by plaintiff was one Abel Goddard, who testified that he was present in April, 1848, when the plaintiff presented the notes to defendant for payment. He said the de« fendant promised to pay the amount so soon as he could got a certain mill in operation, which was then in process of building; that he repeatedly afterward heard promises of a similar import. This witness said further that in the years *1845 and 1846 he was acquainted with the affairs of “ the Cincinnati and Presque Isle Mining Company,” and that during said years the stock was in good repute, and the prospects of the company flattering; but that his information did not reach a subsequent period.
    On the part of defendant, the depositions of Alvah Hand, William O’Callahan, and Hugh O’Birne wore read to the court.
    - Hand swore, in substance, that he was present at Detroit, in the early part of November, 1847, when defendant made to plaintiff two notes, for an amount something over $300; that these notes were given for stock in “ the Cincinnati and Presque Isle Mining Company of Lake Superior.” At the time the notes wore given, witness supposed said stock to be of some value, but subsequent events had satisfied him that he was mistaken—the stock was worthless.
    
      O’Gallahan stated that he had learned from plaintiff, that defendant, Bradley, bad given him notes for stock in the “ Cincinnati and Presque Isle Mining Company;” is acquainted with the nature of this stock, and considers it worthless. At the time of the execution' of said notes, and ever since, witness has regarded the stock as a humbug.
    
      O'Bine testified that on November 9,1847, Spafford, the plaintiff, sold to Bradley, the defendant, 364 shares of stock in “ the Cincinnati and Presque Isle Mining Company.” From conversation between the parties, he thinks one or more notes were given by defendant for said stock. There is no sale for said stock in the market, and there never has been to any great amount, within the knowledge of deponent, excejit between stockholders. It is the opinion of witness that said “ mining company ” was a swindling speculation of said Amos Spafford and other persons from Ohio.
    No other testimony was submitted on either side except the notes. '
    *The plaintiff took judgment for the amount of notes and interest.
    The defendant moved for a new trial, on the ground that the judgment was against law and evidence. The motion was overruled and exceptions taken.
    At the May term of the Supreme Court for Hamilton county, A. d. 1850, this judgment was reversed, and the cause was remanded to the commercial court, for further proceedings.
    The present writ of error is brought to the judgment of reversal.
    E. J. Henry, for plaintiff in error:
    I. Was there such error in the commercial court in refusing to grant a new trial, as justified the interference of the Supreme Court ?
    This court, in Hicks v. Person, 19 Ohio, 446, have well remarked : 11 That the court before whom a trial is had, where witnesses appear, and are examined; where the bearing of any specific testimony is seen and understood, can judge with much more propriety whether a new trial should be granted in a given case, than can an appellate court, to which nothing is presented but a statement of facts proved.”
    II. There is not sufficient evidence that the notes were given for the consideration alleged by defendant..
    III. But to admit that the notes were given for the consideration alleged, it is not proved that there was no consideration in law, and in fact.
    All the world over, the holder of the notes of a bank at the time it stops payment, bears the loss, although the bank may have been insolvent for months. Story’s Promissory Notes, see. 502, and notes; Chitty on Bills, 108, and notes; 13 Wend. 101.
    A broker buys the depreciated paper of a bank, at its market value—say seven-eighths of one per cent, on the dollar. *Can he resist payment, by merely proving that twelve months afterward there was no sale for the paper of the bank ?
    I buy stock in a morus multicaulis silk company, and give notes; the “stock” turns out to be worthless. I can not resist payment. See Button’s Adm’r v. Clark, 16 Ohio, 297.
    A note given for a quitclaim deed for land, without fraud, in the absence of covenants, can not be avoided by total failure of title. 2 Caines, 188; 2 Johns. Ch. 522; 5 Johns. Ch. 29, 79; 3 Breese, 270; 3 Scam. 502; 3 N. H. 522; 1 N. H. 174; 4 Johns. 421; 5 Johns. 404; 10 Mass. 197; 2 East, 314; 4 Blackf. 57.
    Notes given on compromise are valid, without respect to the legal rights of the parties. Douglass, 654; 5 Barn. & Ald. 117; 2 Bibb, 448. Notes given on compromise of slander suit, for words not actionable, are valid. 2 Penn. 531.
    Where pax-ties deal with equal means of knowledge, without warranty or fraud, caveat emptor is the rule. 2 Kent, 478, 485; 1 N. H. 174; 3 Term, 438; 8 Mass. 46.
    Even false representation, without fraud, no defense. 1 Breese, 268; 2 Scam. 13, 452, 363, 444; 2 Kent, 485, 486.
    The slightest benefit to the promisor, or the slightest loss to the promisee, is sufficient considex’ation. Inadequacy is no defense, either in law or equity, without fraud. 16 Ohio, 297 ; Chit. Con. 31, 32, and notes; 2 Hill, 606.
    The transfer of the possession, or claim of title to lands, is to the prejudice of the seller, and a benefit to the purchaser, and therefore forms a good consideration. 3 Scam. 337; 6 Wend 648.
    A party wishing to rescind, must be ready, prompt, and eager to place vendor in statu quo. And where goods are sold with warranty, failure to give notice of broach, raises a strong presumption against the buyer, that the goods, at the time of sale, had not the defect complained of. Chittv, 458, and notes. And a fortiori, if the buyer, after five months, promise payment.
    *Eaton & Justice, for defendant in error.
    No argument came to the reporter’s hands.
    
      
       See act of March 12,1845, 43 Ohio L. 81, “ to regulate the judicial courts and the practice thereof.”
      Under this act where a cause is submitted to the court without a jury, the same right exists to except to the ruling of the inferior court in refusing, on motion for new trial, to set aside their own finding, as though the cause had been submitted to a jury, and the right to prosecute a writ of error is the same. Per Spalding, Judge.
      In Markle v. Akron, 14 Ohio, 586, it was hold that “ when the facts are submitted to the court, instead of the jury, for decision, its judgment will not be reversed on error, though unsustained by the weight of evidence.” And see Wright’s S. C. 46, 673; Reynolds ot al. v. Rogers’ Ex’r, 5 Ohio, 171. The point thus decided seems to be modified by the act of March 12, 1845. In Kepner’s Adm’r v. Snively’s Adm’r, 19 Ohio, 296. it was held that where there has been a motion for a new trial overruled, and a bill of exceptions taken, showing the evidence, whether the cause has been submitted to the court or jury, under said act of March 12, 1845, such case may be reviewed on error. A judgment will not be reversed because decided against the evidence, unless there is a motion for new trial. 19 Ohio, 296.
      This act is construed in Baker v. Cory, 15 Ohio, 9, and Kepner’s Adm’r v. Snively’s Adm’r, 19 Ohio, 296. Cleveland v. Bodwell, 13 Ohio, 133, is said to be obsolete by force of this act. Curwen’s Cases Overruled, 17. See also Hicks v. Person, 19 Ohio, 426; see also Bayless v. Belmont Bank, 15 Ohio, 606; Wagers v. Dicky, 17 Ohio, 439.
      As to jurisdiction of Supreme Court, see West. Law Journal, 1849-50, p. 221.
      See Pierre Chouteau, Jr., et al. v. Rait, in this volume of Beports.
    
   Spalding, J.

The record before us nowhere shows that the decision of the Supreme Court on the circuit turned exclusively upon the refusal of the court below to grant a new trial.

We find, however, that this is the only matter assigned for error deserving of much consideration, and, in our examination of the subject, will assume the proposition of plaintiff’s counsel to be true; that no other sufficient cause of reversal was found by the court to exist in the record.

By the act of March 12, 1845, entitled “ an act to regulate the judicial courts and the practice thereof,” it is provided that in all cases pending in the courts of common pleas, etc., either party shall have the right to except to the opinion of the court in all cases of motion for a new trial, by reason of any supjjosed misdirection of the court to the jury, or by reason that the verdict may be supposed to be against law or evidence, so that such case may be removed by writ of error.

The right to except to the ruling of the inferior tribunal in refusing, on motion for a new trial, to set aside their own finding, in the absence of a jury, is also recognized in practice by this court as within the spoirit of the legislative enactment.

Since the right of appeal has been taken away from the parties in actions at law, this court has often interposed, under the act of 1845, to reverse a judgment, for the reason that the court in which it was rendered had unreasonably refused a new trial; the verdict being manifestly against the evidence.

This is, in effect, a second trial upon the weight of the testimony before a different tribunal; and the power conferred by the statute upon this court is sometimes necessarily called into exercise to prevent a total failure of justice.

Not so, however, where the error assigned is that the court below sustained the motion for a new tria 1, and set aside the verdict or judgment. No irreparable wrong can be done in *such a case, as it only compels the parties to retrace.their steps, and submit their proofs and allegations a second time to the same tribunal.

Hence, although by the terms of the statute the party supposing himself aggrieved would seem entitled to his writ of error, as well where a motion for a new trial is sustained as where it is refused, no case has occurred in practice where this court has seen fit to reverse the proceedings of a subordinate tribunal for the sole reason that it has, on motion, set aside a verdict as against evidence, and ordered a new trial.

In the case at bar, the testimony is by no means of a preponderating and conclusive character. The members of this court would probably divide in opinion, if called to try the cause upon its merits.

A jury might, therefore, without any glaring impropriety, have returned a verdict for either party; and if the judge of the commercial court had seen proper, on reflection, to have set aside his own finding, and to direct a new trial, this court, most undoubtedly, would have refused to disturb his proceedings.

What different bearing has the question before us been made to assume ?

The judge of the commercial court refused to entertain the motion of defendant for a new trial, and entered up judgment for plaintiff upon the notes. Two judges of the Supreme Court, sitting for the county of Hamilton, deeming the evidence insufficient to sustain the plaintiff’s claim, have set aside the judgment and directed a new trial.

Saying nothing about the perplexity into which the parties litigant would be thrown by a different course of procedure, I ask if it can be expected that we shall treat the proceedings of the Supreme Court for Hamilton county with less respect than that which we are at all times ready to extend to the action of the commercial court of Cincinnati ?

We would not have interposed our authority to prevent a second trial, if ordered by the commercial court, for the same *causo.

We will not interfere to disturb the action of the Supreme Court, which has produced no other or different result.

The judgment is affirmed..  