author: * Thurman, C. J.

text:
    *Thomas Ewers v. William Rutledge et al.
    Under the provisions of the act regulating appeals to the district court (Swan’s Stat. 717), one of two or more defendants, 'against whom jointly a judgment has been rendered in the common pleas, may appeal the case to the district court, and his appeal will vacate the judgment — its lien, however, being preserved — and take up the whole case.
    To perfect the appeal in such a case, it is not necessary for the appellant to give a bond that will cover the faults of his co-defendant; it is sufficient if it cover his own.
    Error to the district court of Muskingum county.
    William Rutledge and others, plaintiffs below, brought a civil action, in the court of common pleas, against Samuel Winegarner and Thomas Ewers, upon an administrator’s bond, given by Wine-garner as principal, and Ewers and others as sureties, reciting that Winegarner had been appointed administrator, with the will annexed, upon the estate of William Rutledge, Sen., deceased, and conditioned according to law.. The plaintiffs claimed to be dis» tributees, and that Winegarner had failed to pay, etc.
    The defendants below, Winegarner and Ewers, put in a joint answer, setting up payment by Winegarner, and release of him. This was found against them in the court of common pleas, and a joint judgment rendered against them for the several sums due to each of the plaintiffs. The defendants gave a joint notice of appeal, which was perfected by Ewers alone in a bond, of. which the following is a copy:
    BOND.
    Know all men by these presents, that we, Thomas Ewers, Simon Thomas, and Henry Horsey, of the county of Muskingum, in the State of Ohio, are held and bound firmly unto William Rutledge, Robert Irwin and Elonor Irwin his wife, Josiah Rutledge, Zachariah Rutledge, William D. Rutledge, Nathan Ships and Elizabeth E. Ships his wife, Thomas F. Rutledge, Isaac McCammon and Mary Jane McCammon his wife, and Simon Hursey, in the penal sum of twenty-four ^hundred and forty dollars and sixty-two cents, lawful money of the United States; to the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Sealed with' our seals, signed and dated at Zanesville, this 19th day of .June, a. D. 1854. The condition of the above obligation is such, that, whereas, at the May term, A. D. 1854, of the court of common pleas within and for the said county of Muskingum, -in a certain civil action, in said court of common pleas then pending, wherein the said obligees were plaintiffs, and Samuel Winegarner and Thomas Ewers were defendants, a certain judgment was, by the said court of common pleas, rendered in favor of the said plaintiffs, and against the said defendants, for the sum of eleven hundred eighty-eight dollars and five cents, and thirty-two dollars and twenty-six cents costs of suit; and, whereas, the said defendants, attne said term of the said court of common pleas gave due notice of their intention to appeal from said judgment to the district court,, within and for the said county of Muskingum, and the said defendant, Thomas Ewers, is now desirous of ■ perfecting such appeal. Now know ye, that if the said defendant, Thomas Ewers, shall abide and perform the order and judgment which may be.made or rendered by the said district court against him, in this behalf, and shall also pay all moneys, costs, and damages, which may be required of or awarded against him by the said district court, in this behalf, then the above obligation shall bo void; otherwise, in full force and; virtue.
    Thomas Ewers,. [seal.] Simon M Thomas, [seal.] Henry Hursey, ' [seal.]
    Accepted and approved by me, this 19th day of June, A. d. 1854..
    Ch. C. Russell,

      Clerk of the said Court of Common Pleas.

    Witness: S. R. Tucker.
    At the September term, 1854, of the district court, a motion was-made by the defendants in error to dismiss the appeal. The successful result of this motion is the error complained of.
    The following is copied from the record:
    Wm. Rutledge et al. vs. Samuel Winegarner and Thomas Ewers.

    Appeal by Ewers.
    And now come the plaintiffs herein and move the court to dismiss the appeal, and for cause show to the court—
    That, at the May term, 1854, of the court of common pleas of this county, plaintiffs recovered a judgment against the said Samuel' Winegarner and *Thomas Ewers, for the sum of $1,188.05,. and $32.26, costs; that at the said term of said court, the said defendants gave notice of their intention to appeal from said judgment to the said district court; that on the 19th day of June, 1854, the said Ewers, with surety to the acceptance of the clerk of said court of common pleas, executed a bona to plaintiffs, conditioned, however, not that the said Winegarner and Ewers should abide and perform the order and judgment of the district court, etc., but conditional that the said Ewers should abide and perform, etc., as will more fully appear from a copy of the bond hereto attached ; that at. the said May term, 1854, in the said court of common pleas, on the rendition of said judgment against Winegarner and Ewers, the defendants gave notice of appeal generally, and that there was no allowance by the said court of common pleas to the said Ewers, fr> appeal any separate part of said ease.
    That the subject-matter of the action in which said judgment, was rendered, was and is not capable of the separation contemplated and provided for by section 4 of an act regulating appeals to the district court, passed March 23, 1852. Swan, 717.
    T. J. Taylor, Attorney for Plaintiff.

    ISee copy of bond before.)

      At the said September term, a. d. 1854, of our said district court, to wit, on this 23d day of September, a. d. 1854, on motion of plaintiffs, and it appearing to the court that the appeal bond in this case is conditioned for the payment, by the obligors, of such judgment as may be rendered in this court against the-defendant, Ewers,, and is not conditioned for the payment of any judgment which may be rendered in this court against the defendant, Winegarner, it is ordered by the court that the appeal be dismissed; provided, however, that if the defendants, or one of them, shall, within thirty days from this day, execute a new appeal bond, to the acceptance of the clerk, conditioned in the form prescribed by the statute in this behalf, for the payment of such judgment as may be rendered against the said defendants, Ewers and Winegarner, or either of them, then the order of dismissal above made shall not take effect, but the cause shall stand continued to the next term for trial. The defendant, Ewers, excepts to the decision of the court upon said motion, and asks that this exception be here noted, which is accordingly done.

      Goddard & Eastman, for plaintiff in error.

      T. J. Taylor, for defendant in error.
   * Thurman, C. J.

By the first section of the act regulating appeals to the district court (Swan’s Stat. 717), it is provided “that appeals may be taken from all final judgments in civil cases at law,, decrees in chancery, and interlocutory decrees dissolving injunctions, rendered by the court of common pleas, etc., by any party against whom such judgment or decree shall be rendered, or who-may be affected thereby, to the district court; and the cause so appealed shall be again tried, heard, and decided in the district court, in the same manner as though the said district court had original jurisdiction of the cause.”

The second section requires notice of the intention to appeal to be entered on the record of the court in which the judgment or decree is rendered, at the judgment term, and an appeal bond to be filed within thirty days from the rising of the court.

The third section prescribes the penalty of the bond, and who shall be its obligee, and requires it to be “ subject to a condition to the effect, that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys,. costs, and damages which may be required of, or awarded against said party, by such coui't.”

The fourth section allows an appeal of a part of a case, where the ■interest of the appellant “ is separate and distinct from that of the other party or parties.”

The ninth section provides: “ That when an appeal shall be .granted, and bond and security given thereon as aforesaid, the judgment or decree rendered in such case, in the court below, shall thereby be suspended.”

Under this legislation, we are to inquire whether the district court erred in dismissing the appeal in this case.

In the first place, it is to be observed that counsel are right in saying that section 4 of the act has no application here. The purposes of that section may be seen by a reference to Hocking Valley Bank v. Walters, 1 Ohio St. 201; Glass v. Greathouse, 20 Ohio, 511; and Emerick v. Armstrong, 1 Ohio, 516.

*In the next place, we are of the opinion that if Ewers’ appeal can be sustained, it brings up the whole case. The judgment was joint, and we do not suppose that the legislature intended that a joint judgment should be enforced against one of the defendants by execution, and suspended against the other. It is true that section 9, before quoted, differs in language from the former statutes respecting appeals. Under the old law, an appeal vacated the judgment appealed from, but preserved its lien; the present statute declares that the judgment shall be “ suspended." But the purpose in both statutes is, we imagine, the same — namely, to preserve the lien — for the legislature could not have intended that there should be two judgments in force; one rendered by the common pleas, and the other by the district court.

Under the old law, one of two or more judgment debtors had a right to appeal, and if the- judgment were joint, his appeal vacated it and took up the whole case, however unwilling his co-defendants might be. This was expressly decided in Emerick v. Armstrong, ■supra, and affirmed in Glass v. Greathouse, supra, upon reasons that are entirely satisfactory, and which, we think, apply with as much force tb^he existing statutes as to those under which the above decisions were made. Hence it was said in Hocking Valley Bank v. Walters, supra, which was a case under the present statute, that an rappeal vacated the decree appealed from.

In the case before us, the district court dismissed the appeal, because tbe bond was not conditioned for tbe payment of whatever judgment should be recovered against the defendant, Winegarner, but only for the payment of such judgment as should be recovered against the appellant Ewers.

If this is a correct construction of the statute, it is very evident that the right of appeal is of no value whatever to many defendants, and in a great variety of cases. Eor of what use is it for a defendant, who has a valid defense, to appeal from an erroneous ^judgment or decree against him, and make good his defense in the appellate court, if he is to be bound by the appeal bond to pay whatever judgment may be recovered against his co-defendant, who has no defense ? True, in actions ex contractu, the general rule, before the adoption of the code, was, that the plaintiff must recover against all the defendants, or he could recover against none; and hence, in such cases, an appellant incurred no additional risk by executing an appeal bond covering the default of his co-defendants as well as his own. But in suits in chancery, actions in tort, and ■certain exceptional cases in actions ex contractu, a different rule prevailed, and a recovery might be had against a part-only of the defendants, and the others be discharged. In such cases, therefore, to require an appellant to stipulate for his co-defendants as well as for himself, would be, in a vast number of instances, to deprive him of any benefit from his appeal. He might make good his defense and obtain a judgment or decree against the plaintiff for costs, and yet be compelled, by force of the appeal-bond, to pay the plaintiff’s ■claim against his co-defendants — not because he was 'originally bound for them, or ought in equity or good policy to be so, but simply because they were unable to pay.

We see nothing in the statute that requires so hard a construction. It provides that an appeal may be taken “ by any party,” against whom a judgment or decree shall be rendered, “ or who may be affected thereby;” and that the condition of the appeal bond shall be “ to the effect, that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required of, or awarded against said party, by such court.” The order and judgment ” here mentioned, are an order or judgment against the appellant; the expression, “said party,” refers to the appellant; and the word “ party ” is not used as a noun of multitude only, necessarily including all the defendants, but means the one, or more of them — ■ all, or less than all — wbo shall take the appeal and execute the bond.

*It is admitted that one of several defendants may appeal the case; and it will not be denied that, if a judgment be recovered against him, he may become liable upon his appeal bond, although no judgment shall have been rendered against his co-defendants but how can either of these things be, if the word “ party ” necessarily means all the defendants ?

Had this case arisen under the act of 1831 (Swan’s old Stat. 682)' —which required the appeal bond to be “ conditioned for the payment of the full amount of the condemnation money, in the Supreme Court, and costs, in case a judgment or decree should be entered therein in favor of the appellee” — there might be more doubt-about it. But even under that statute — in view of all its provisions and the decisions before referred to, holding that one of several defendants should appeal the whole case — it might be questioned whether a defendant, against whom no judgment was recovered in the Supreme Court, could be made liable, on the appeal bond, to pay a judgment rendered against his co-defendant. Upon this question, however, we neither express nor intimate an opinion, because-it is in nowise involved in this case. It is sufficient that the act. under consideration requires no such hardship.

The order quashing the appeal must be reversed, and a writ of' procedendo awarded.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    Lessee of Thompson’s Heirs v. David Casson.
    Ejectment. Reserved in Licking county.
   Ranney, J.

This case is submitted to the court upon the same state of facts, and is brought to recover a portion of the same tract of land, as in the foregoing case of Lessee of Thompson v. Green. The opinion in that case, therefore, disposes of this. There must be a judgment for the defendant.


author: *Bartley, J.

text:
    *James Parks v. The State of Ohio.
    It is not essential that the record, of the conviction of a person of the crime of murder, should set out and show expressly that the grand jurors, who returned the indictment, had the requisite qualification of electors of the county.
    Where a motion is made for a new trial, in a criminal case, on the ground that one of the petit jurors had, previous to his being called on as a juror, expressed his opinion that the accused was guilty, although, when interrogated in the jury-box before being sworn, he answered that he had neither formed nor expressed any opinion on the subject: it is essential that the motion should be supported by an affidavit, showing that the fact of such objection was wnhnown, either to the accused or his counsel, at the time the jury was impaneled.

      Motion for the allowance of a writ of error.
    The ease is stated in the opinion of the court.

      H. Griswold, for Parks, made the following points :
    I. The names of the grand jury which found the indictment must appear on the record, and a plea that one of the members had not the proper qualifications is a good plea. The record must show that the jury was a competent jury.
    II. One of the petit jurors was disqualified because of his having previously formed and expressed an opinion as to the guilt of the prisoner. In order to obtain a new trial, it is sufficient to show that such disqualification existed at the time when the jury was impaneled. It is not necessary, on the motion for a new trial, to show, by affidavit, that the prisoner had no knowledge of its existence at the time. In a criminal case, a defendant can not waive his right to a trial by a full jury; neither can he, by mere silence, waive his right to a trial by twelve competent jurors.
   *Bartley, J.

This is an application for the allowance of a writ of error, to reverse the judgment of the court of common pleas of Cuyahoga county, on an indictment against James Parks, alias James Dickinson, for the crime of murder in the first degree. At the December term of the court of common pleas of Summit county, Parks was convicted on the same indictment, and sentenced to the punishment of death. This judgment having been reversed, on writ of error, in the Supreme Court, and the cause remanded for further proceedings, the venue was changed, and the cause transferred to the common pleas of Cuyahoga county. At the February term, 1855, of the court last mentioned, the cause was again tried, and the accused convicted of the crime of murder in the first degree. And application is now made for the allowance of a writ of error, to reverse the judgment of the common pleas of the county of Cuyahoga, upon the following grounds:

1. That the record does not show that the grand jurors, by whom the indictment was found, had the requisite qualifications of electors; and,

2. That the court of common pleas overruled a motion for a new trial, founded on the fact that one of the petit jurors had, previous to his having been called as a juror, expressed his opinion that the accused was guilty.

It is true, that the statute requires, that the grand jurors should have the qualification of electors of the county; and although it is essential that the record, in a criminal case, should disclose the names of the grand jurors, by whom the indictment was found, it is not requisite that this statutory qualification of the jurors should be alleged. It has been held, that the fact of the want of this qualification in the grand jury, might be set up as a defense, by way of special plea. 17 Ohio. This defense not being involved in the issue made by the plea of. not guilty, it must precede that plea, and can only be made available by special plea. After a verdict for the-state, on the plea of not guilty, as in this case, the accused can not go back and make a question, in ^regard to the qualification of the grand jurors, not apparent on the record.

The other error assigned, is, that the court of common pleas should have granted a new trial, on the ground, that one of the petit jurors had, previous to his having been called on as a juror, expressed his opinion that the prisoner was guilty. The motion for a new trial, however, was not supported by any evidence, showing, by affidavit or otherwise, that the fact of such objection to the juror was unknown to the defendant or his counsel, at the time the jury was impaneled. The defendant was bound to avail himself of every objection to the jurors known at the time of the impaneling of the jury; and he could not be allowed to reserve an objection, of this kind to a juror, until after verdict against him, and then-make it a ground for a new trial. For this reason, it was essential, in order to make this objection to the juror available on the motion for a new trial, that it should have been shown, by affidavit or-otherwise, that the objection was unknown, either to the accused or his counsel, at the time the jury was impaneled.

The allowance of the writ is therefore refused.


author: Bartley, J.

text:
    John Sidle v. John Maxwell et al.
    The object of the statute requiring the record of mortgages, being notice to-persons other than those who are parties to the instrument, a mortgage maybe valid and binding as such without record, as between the parties to the instrument.
    The execution of a mortgage is the act of a mortgagor, but the filing it for record is exclusively the act of the mortgagee, not requiring the assent of the former, and not in reality a part of the execution of the instrument.
    The language of the court in the case of Holliday v. The Franklin Bank of Columbus, 16 Ohio, 533, declaring “ that the delivery of a mortgage for record is a part of the execution of the instrument, and that, before the filing i::'for record, a mortgage has no validity, either in law or in equity,” must be received with the qualification that it has exclusive reference to the effect of the instrument as to those not parties to it.
    This is a proceeding in chancery, in which, among other things, partition of certain real estate is prayed for, and the question of the validity of a mortgage on the premises presented.
    The heirs of Ann Robinson, deceased, and also Daniel Heltzler, : are made defendants; the former as the owners of the fee of the undivided fifth part of the lands in question, and the latter as the holder of a mortgage lion upon the same interest. It appears that Heltzler was the holder of a note against James Robinson, the husband of said Ann Robinson, deceased, for two thousand dollars, on ■which John White, deceased — the ancestor of said Ann, from whom said lands descended to her — had been security. And in order to release the administrators of the estate of White, and enable them to make final settlement without paying the note, Heltzler consented to the erasure of White’s name from the note, and took, in lieu of the personal security, this mortgage, executed by James Robinson and his wife, the said Ann Robinson, dated May 30,1846. It was acknowledged, at the time of its date, in due form, except that, in the certificate of the wife’s acknowledgment, there occurred .an omission of the words, “ by me, separate and apart from her said husband.” Thus acknowledged, the mortgage was delivered for record on the 3d, and recorded on the 4th of June, 1846. Immediately after the record, the omission in the justice’s certificate was discovered; whereupon Robinson and wife re-acknowledged the .execution of the mortgage before the same officer, who adopted his former certificate, by interlining the words omitted, and changing the date from the 30th of May to the 2d of June; and as thus acknowledged, the mortgage was not recorded until the 15th of December, 1850, which was after the death of Ann Robinson. *It appears that the land was held in the right of Ann Robinson/ and descended to her heirs; and the whole controversy submit ted for decision here, relates to the validity of the mortgage ..against the heirs of Ann Robinson, deceased.

      Win. White, for Daniel Heltzler, one of the defendants, made the following points:
    I. A moi’tgage is good against the mortgagor without being recorded. The law, providing that a mortgage shall take effect from the time of delivery for record, construed with a view to its object, has reference to the rights and claims of third persons, and not to the parties to the instrument. This proposition is not inconsistent with the former decisions of the Supreme Court. Lake v. Dond et al., 10 Ohio, 415; Stansel v. Roberts, 13 Ohio, 148; Mayham v. Combs et al., 14 Ohio, 428. The case of Holliday v. Franklin Bank of Columbus et al., 16 Ohio, 533, affirms the points decided in Mayham v. Combs et al. The manifest meaning of the judge, delivering the opinion in Holliday v. Franklin Bank, is apparent from the-decision in White v. Denman, made at the same term. 16 Ohio, 59; 1 Ohio St. 112. The recording of the instrument can in no sense be said to form part of its execution, as between the parties, although it may reasonably be regarded as incomplete, until made public by record, as to the rights of third persons. In this sense, its record may be said to form part of its execution. 19 Vin. Abr. 512 ; 1 Dallas, 434; Purdon’s Digest, 163, see. 8; Leving v. Will, 1 Dallas, 450; 4 Dallas, 153; Purdon’s Digest, 172; 13 Serg. &. Rawle, 167; Conn. Stat. 390, 391; 14 Conn. 46; 4 Kent’s Com. 168-171.
    II. If an unrecorded mortgage be operative as a conveyance, so as to create an incumbrance on land against the mortgagor, while living, it will be equally so against his heirs at law, after his decease. Bond’s Lessee v. Swearingen, 1 Ohio, 311; Piatt v. St. Clair’s Heirs et al., 6 Ohio, 227, 238-240.
    *IH. The execution of the mortgage and its delivery to the-mortgagee invest him with authority to cause it to be filed for record at any time. From the time of its filing, it becomes as' effectual against the heirs as it would have been against the ancestor, if he-had been living. Such authority, being a power coupled with an interest, is not limited for its execution to the life of the author, and is irrevocable. Bergen v. Bennett, 1 Caine’s Cas. in Er. 1; Hunt v. Rousmaniere’s Adm’r, 2 Mason, 244; 1 Parsons on Contracts, 60,61 ; 2 Kent’s Com. 643, 644, side pages; Knapp v. Alvord, 10 Paige’s Ch. 208; 23 Pick. 330, 332, 333.
    IY. The only examination of the wife authorized and required of the officer the the is one rate and apart from her husband. Where the officer certifies that she was examined, and the contents made known to her, etc., it is to bo presumed that the examination certified to have been made was a separate one. Stevens v. Doe ex dem. Henry, 6 Blackford, 475; Watson v. Clendenin et al., Ib. 477; Lessee of Ward v. Barrow, 2 Ohio, 241.
   Bartley, J.

The only question for determination in this case is that of the validity of the mortgage, as between the heirs of Ann Robinson, deceased, and Heltzler, the mortgagee. The claim that the mortgage is ineffectual, is founded on the supposed construction heretofore given to the statute of 1831, and the amendatory act of 1838, which declare “that mortgage deeds shall take effect, and have preference, from the time the same are delivered to the recorder of the proper county for record.” Rev. Stat. 310, 311.

If the mortgage were operative against Ann Robinson in her lifetime, it must be equally so against her heirs; for, so far as the inheritance is concerned, the heirs stand in the shoes of the ancestor, and can take no other interest or estate than that which she possessed ; and if the mortgage was valid to her, they are estopped by her deed.

*Every statute must be construed according to its intent, and with reference to the mischief to be prevented, and the remedy provided. The manifest object of the statute requiring the record of mortgages, is notice of the incumbrances created; and of course, this notice has reference to persons other than those who are parties to the instrument. No sensible object could be accomplished in subjecting persons to the expense of this public record, with a view of notice to the parties themselves. The provision of the statute, therefore, declaring that mortgages shall take effect and have preference from the time of their delivery for record, has reference to the rights of persons other than the parties to the instruments, and was designed to regulate and fix with certainty the priority of right among incumbrances. The expression which has been used in some of the reported decisions in this state, “that the delivery of a mortgage for record is part of the execution of the instrument,” is not strictly correct. All the decisions in which this language is used, determine simply the effect of the mortgage in relation to its giving a preference over other lienholders. The case of Holliday v. Franklin Bank of Columbus et al., 16 Ohio, 532, in which the language of the court in this respect is the most unguarded, and most needs qualification, simply determines that a mortgage, previous to its delivery for record, has no effect, either at law or in equity, against a subsequent judgment. The result of all the decisions on this subject is, simply, that a mortgage does not take effect as a recorded instrument, or, in other words, does not take effect in giving any priority over subsequently acquired liens, until it is delivered for record. In reality, the delivery of the mortgage for record is not a part of the execution of the instrument. The requisites for the execution of mortgages are especially prescribed in the statute. The execution and acknowledgment of a mortgage is the act of the mortgagor — the-delivery of it requires the concurrence of the mortgagor and the mortgagee; but tbe filing it for record is exclusively the act of the mortgagee. Indeed, by the express ^language of the statute, the instruments required to be recorded are executed mortgages. The execution and delivery of a mortgage are intended to divest the mortgagor of his estate, and the recording of the mortgage to give notice to the world of its existence. So that a mortgage is valid and binding as such without record, as between the parties to the instrument. And the delivery of it for record being exclusively the act of the mortgagee, not requiring the assent of the mortgagor, or being in reality any part of the execution of the instrument, it will become operative as to third persons only when delivered for record, although such delivery be after the death of the mortgagor. In the case of White v. Denman, 16 Ohio, 59, it was held, that although an instrument of writing defective in its execution, as a mortgage, by having but one subscribing witness, could not be set up to defeat a subsequent lienholder, yet, that as between the parties to the instrument, it will be regarded in equity as a good and valid mortgage. The mortgage in question, therefore, is a good and valid instrument against the heirs of the mortgagee, Ann Robinson.

Decree in favor of Daniel Heltzer, and cause remanded for further proceedings.


author: Kenyon, J.

text:
    Ernestine Scheferling (by her next friend) v. William Huffman et al.
    An ante-nuptial contract entered into in Germany, according to the laws of that country, by which the husband, for a valuable consideration, agreed that all the property of the intended wife, which she then owned, or which they might mutually acquire during coverture, should be the property of the wife, is not contrary to the policy of our laws, and will be enforced in this' country.
    Such property can not be taken on execution in this country to satisfy the debt of the husband.
    Upon a bill in chancery, filed by the wife, by her next friend, for the purpose of enjoining a creditor of the husband from selling such property on execution, the court will, by injunction, restrain such sale.
    *Bill in Chancery ; reserved in Montgomery County.
    This bill is filed to restrain the sale of chattels, taken in execution as the property of the husband of the complainant, upon a judgment in favor of Huffman. She claims that the property is hers by virtue of an ante-nuptial contract, entered into in Germany by her and her husband, before they emigrated to this country, a translation of which contract is here inserted:
    [hessian revenue stamp.]
    Obernkirchen, March 31,1838.
    Present, the assessor of the court — Gleim.
    At our court-house appeared the miller and tenant, Henry Christopher Scheferling, from the windmill at this place, a native of Colshorn, district of Burgdorf, and kingdom of Hanover, thirty-two years old, as the betrothed of Ernestine Ebeling, widow of the windmiller Kunnecke, forty-two years old, and also from the windmill at this place, and stated as follows:
    Voluntarily, and without compulsion, we have resolved to enter into a matrimonial connection ; and whereas,
    1. My (Schoferling-’s) right to acquire property, and also that I am tenant at this place, is certified to in Appendix I; and whereas,
    2. My (Scheferling’s) father, the old father Heinecke, Christopher Scheferling, at Colshorn, has given his consent to this marriage, my mother being dead — all of which will appear from Appendix II; and whereas,
    3. My (Ernestine’s) mother, the unmarried Wilhelmine Ebeling, No. 9 at Rolfshagen, has also given her consent to this marriage, as will appear from Appendix III; and whereas,

      4. The appointment of a guardian for my (Ernestine’s) children by former marriage, in the person of the master saddler, Dietrich Trebein, and also the demise of my husband some eighteen months ago, is known to the court from the guardian’s docket; and whereas,
    5. The payment of the entrance money by me (Scheferling) appears from Appendix IV, and the payment of the hospital tax from Appendix V; and whereas,
    6. There exists no consanguinity between us:
    Therefore, we pray that this notice of our marriage may be confirmed .by the court.
    In regard to our property we agree as follows :
    1. That if I (Scheferling) should die first, my affianced (Ernestine) shall inherit all my property; but if, at the time of her death, there shall be children or descendants living from this marriage, she shall not deprive them of said property.
    2. That if I (Ernestine) should die first, he (Scheferling) shall receive annually for his support, and in full satisfaction for all claims for property acquired during our marriage,
    *a) The little by-house, for a residence;
    b) The use of the piece of land on which the by-house stands;

      cj Annually 20 himten of rye, weighing each from 48 to 49 pounds;
    d) Two himten of wheat, each from 53 to 54 pounds;
    e) Nine himten of barley, 42 pounds each;
    f) Twenty pounds of pealed barley;
    g) Twenty pounds of groats.
    If he, however, shall marry again, all these uses shall cease from the day of such marriage; and, in that case, he shall receive—
    a) One hundred thalers, if we should have been married five years;
    b) Two hundred thalers, if we should have been married ten years; and
    c) Four hundred thalers, if we should have been married fifteen years, and no more.
    Besides this, he shall have the use of his own property, but he shall not deprive the children which we may have of the same; and he shall have no claim whatsoever upon my (Ernestine’s) own property, nor upon that which we may acquire during our marriage.
    Finally, I (Ernestine), in order to prevent contentions between my children of the two marriages, declare it to be my will that all the property I own at present, and all the property which may be acquired during the continuance of this marriage, shall, after my decease, be divided in equal shares between my children of the first and of this marriage.
    Saddler Trebein, the guardian of the children of the first marriage, was present at the above declaration, and approved tbe same-in all respects.
    Read and approved. C. SCHEEERLING, Runneker, Dietrich Trebein, Mark X X X of the mother of Ernestine.
    Subscribed and closed est supra.

      In fidem. A. Gleim, Ph. Duntz.
    The prayed-for confirmation of tbe court is, salvo jure tertii, hereby granted eod quo supra.

    f Seal of Justiciary Court J Justiciary Court of tbe Electorate^ J. of Obernkireben, Elec- [• A. Gleevi, (_ torate of Hessen. J Ph. Duntz.
    Seen and approved by tbe Ecclesiastical Court, Obernkireben,. April 16, 1838. E. Meter, Pastor.

    By agTeement of counsel, certain questions touching tbe validity of tbe above contract were referred to tbe counsel for the-^Electorate of Hessen, at New York, who gives bis opinion in writing, as follows:
    “Ante-nuptial agreements are permitted, by the German law, to alter or modify tbe common rules concerning property, hereditary rights, and succession. If made as this agreement, such changes- or modifications are irrevocable by tbe one party, without tbe consent of the other. Stipulations as to tbe acquisitions of tbe married couple becoming the property of tbe wife are lawful, and may be enforced in tbe German courts.”

      Conover and Craighead, for complainant, made tbe following-points :
    I. Tbe validity and construction of tbe ante-nuptial contract are-to be determined by tbe laws of tbe country where -it was made. Wilcox et al. v. Hunt, 13 Pet. 178; Bank of United States v. Donnelly, 8 Pet. 361; Blanchard v. Russell, 13 Mass. 1; Story’s Con. Laws, sec. 242, and cases cited; Decouche v. Savatier, 3 Johns. Ch. 190; Story’s Con. Laws, sec. 145, a, secs. 276, 277, 278.
    II. By tbe laws of Germany, where it was made, it was valid,, and irrevocable by either party, without tbe free consent of the other.

      III. By the express terms of this contract, the complainant was ■to be, during her natural life, and surviving her husband, as exclu .sivoly as before marriage, the owner of all the property which she had at the time of marriage, and all the acquisitions of the married life; if this be not expressly provided, yet any other ownership of the property is utterly inconsistent with what is expressly agreed between the parties. When, from the terms of the gift, settlement, ■or bequest, the property is expressly, or by just implication, de- . signed to be for the wife's separate and exclusive use, the intention will be fully acted upon. Story’s Eq. Jur., sec. 1381.
    IY. If she did not retain the exclusive ownership, still she *has such an interest and estate in the property during her life, with power of disposition at her death, that the property can not, against her will, and in the absence of fraud on her part, be subjected to her husband’s separate debts.
    Y. Change of domicil does'not invalidate the contract, but, being an express agreement as to the present and future, it will be enforced by the courts of this state, unless it be against the policy of •our laws, in the meaning attached to that phrase by the courts. .Story’s Con. Laws, secs. 222, 246, 258, 259, 183, 184, 185, 187, and note, Secs. 178 and 143; Decouche v. Savatier, 3 Johns. Ch. 190.
    YI. Complainant has not voluntarily abandoned her rights under the contract; has not been guilty of active or passive fraud generally, or to respondent Huffman in particular; she was not a party to, or cognizant of, the contract between her husband and Huffman, ,and did not induce the credit to her husband. If she is to be deprived of her property in spite of this ante-nuptial contract, it must be by the mere stern operation of the policy of our laws, and without wrong or fraud on her' part.
    YII. This contract is not, in the accepted sense and force of the phrase, against the policy of our laws, but it is in accordance with the common law, and especially with the spirit and tendency of modern legislation, and decisions in this country and state, in reference to the separate rights and property of married women. Story’s Eq. Juris., secs. 1378, 1379 ; Reeve’s Dom. Rel. 162, note 2, and authorities there cited; Story’s Eq. Juris., secs. 1380, 1381; Reeve’s Dom. Rel. 162, 163, note 1, 164, 172, note 2, and cases cited; Merrit v. Lyon, 3 Barb., N. Y., 110; 13 Peters, opinion, pp. 594, 595; 10 Ohio, 371; Magniac v. Thompson, 7 Pet. 348; Reeve’s Dom. Rel. 1176, note, and cases cited; Ib. 165, 166; Meth. E. Church v. Jaques, 1 Johns. Ch. 450; Same ease, 3 Johns. Ch. 1, and 77; 18 Johns 548; Hardey v. Green, 12 Beaven, 182; 13 Jurist, 77, cited in 7 Harrison’s Digest, 711 (Sup. vol. 3).
    *T. I. S. Smith and Haynes & Howard, for defendant, made the following points:
    The agreement entered into by the complainant and her husband does not'vest in her the acquisitions of her husband; by it she could have no property in them during his life. Everything that is contracted for is upon the event of the death of one or the other of them. It seems clearly to be in the nature of a testamentary disposition. If it was the purpose of the parties to prevent the husband from acquiring any property, to make him his wife’s servant, without any wages, that purpose should appear without any doubt. 2 Story’s Equity, 608. If such a purpose were clearly expressed, a court of equity would hardly enforce the contract. 2 Story’s Equity, 602.
    If the contract is in the nature of a testamentary disposition, it can have no effect upon the husband’s acquisitions, so long as he and his wife are living, and simply disposes of what each has at the time of his or her death. The law of their domicil fixes the ownership of whatever is held or acquired by them, and that vests all in the husband, and is subject to the claims of his creditors.
    There may.be an interest for life in chattels, which is a right to the use only. But the use of such chattels as grain, hay, and fruit consists in the consumption. The use and the property can not exist separately. The right j;o the use of such things is, therefore, an absolute property in them. 2 Kent’s Com. 353. Nearly all the property taken in this case was of that description.
    The ante-nuptial contract has been abandoned and abrogated. The evidence disclosed in the testimony proves most strongly that the parties did not regard the contract as in force, when the levy was made. In equity, a married woman’s agreements with her husband are held valid, and may be enforced. 2 Story’s Equity, 601. Her rescission of such a contract as this should then be held valid.
    *By our law, a promise in consideration of marriage must be in writing, and signed by the party to be charged therewith, or it is void. This contract, though made in a manner more solemn, ■is not according to our law, not being signed by either of the parties, and should not be enforced in our courts.
    It ought not to be held operative here, because it is against the policy of our laws. Story’s Con. Laws, 158, sec. 182; lb. 95, ■sec. 9; lb. 85, sec. 87; lb. 33, sec. 33; lb. 29, sec. 28. By the policy of our laws, man is the head of our family, and has the ■charge and control of its affairs; all acquisitions of property vest in him. The right to acquire and hold, is an important incentive to industry and exertion. Here it is taken away entirely. Scheferlirig had'sold himself. It may do in Germanyfor a man to place himself in such a position, but when he becomes an American citizen, he should be emancipated, whether he will or not.
   Kenyon, J.

William Huffman obtained judgment in the court ■of common pleas of Montgomery county ag-ainst Henry Runnecke and Henry Scheferling, for about five hundred dollars, loaned to Runnecke, for the payment of which money Henry Scheferling was in fact but surety.

An execution was issued on this judgment, and the sheriff levied upon various articles of personal property, consisting of horses, cattle, etc,, as the property of Henry Scheferling. The bill in this case was filed by Ernestine Scheferling, by her next friend, against her husband, Henry Scheferling, William Huffman, the judgment creditor, and others, claiming that the property thus levied upon was her property, and not that of her husband, and praying that the court might so decree, and enjoin Huffman from making sale of the property.

Huffman answers, denying that the property belonged to the wife, and claiming that it in fact belonged to Henry Scheferling, and was liable to be taken in execution for his debts.

Testimony was taken in the case on both sides, and on the ^hearing in the common pleas, the court found the equity in the complainant, and decreed a perpetual injunction. The defendant, Huffman, appealed, and the case was reserved by the district court of Montgomery for the decision of this court.

In support of the complainant’s exclusive claim to the property levied upon, she introduced and proved by proper evidence, that, in the year 1838, she entered into an ante-nuptial contract with •her present husband, Henry Scheferling.-

This contract was duly entered into before the proper court in Germany, and was valid and binding in that country. The question of its validity in Germany was, by agreement of counsel, submitted to the German consul at New York, who decided that this was a legal and binding contract where made. The validity and interpretation of contracts are to be governed by the laws of the country where made.

When this contract was entered into, Ernestine was a widow of forty-two years of age, and her husband, Henry Seheferling, a man of thirty-two. She had property to the amount of several thousand dollars ; he had little or no property. She was the mother of five children by her first husband.

The contract, after reciting the various facts making it lawful to marry, has, among others, the following provisions: In regard to our property, we agree as follows : 1. That if I, Seheferling, should die first, my affianced Ernestine, shall inherit all my propertv, but if, at the time of her death, there should be children or descendants living from this marriage, she shall not deprive them of said property. 2. That if I, Ernestine, should die first, he, Seheferling, shall receive annually for his support, and in full satisfaction for all claims for property acquired during our marriage, (a) the little by-house for a residence; (6) the use of the piece of land on which the by-house stands ; (c) annually twenty himten of rye, weighing each from 48 to 49 pounds; (d) two himten of wheat, each from 53 to 54 pounds; (e) nine himten of barley, 42 pounds each; (f) 20 pounds of pealed barley; (g) 20 pounds of groats. If, however, he should marry *again, all these uses shall cease from the day of such marriage, and in that case he shall receive (a) one hundred thalers, if we should have been married five years ; (b) two hundred thalers if we should have been married ten years ; (e) four hundred thalers, if we should have been married fifteen years, and no more. Besides this, he shall have the use of his own property, but he shall not deprive the children which we may have of the same ; and he shall have no claim whatsoever upon my (Ernestine’s) own property, nor upon that which we may acquire during our marriage. Finally, I, (Ernestine,) in order to prevent contentions between my children of the two marriages, declare it is my will, that all the property which may be acquired during the continuance of this marriage, shall, after my demise, be divided in equal shares between my children of the first and this marriage.”

Tho first question made on this contract is to determine its proper construction. It is claimed by the respondents, that this contract relates only to a disposition of the property at the time of the decease of either or both the parties; that the contract relates to. property which may bo in existence at the time of the death of one or the other of the parties, and not to the title during marriage. We think such is not tho proper construction of this agreement. It is provided that if she should die first, he shall receive certain things, in full satisfaction for all claims for property acquired during-marriage; and again, if she should die first, and he marry again, he should receive so many thalers, but should have no claim whatsoever on her (Ernestine’s) own property, nor upon that which they might acquire during their marriage. It is very evident from this contract, that if Henry Scheferling had tho j>ower under -it to dispose of Ernestine’s own property, and the property acquired during marriage, the whole object of the contract would be defeated, and there might be nothing left of any kind, and the contract might as. well not have been made. The language of the contract gives her, in equally as strong language, the control and disposition of the-property acquired during marriage as of her own property; and for his relinquishment of *that property, if she should die first, a full satisfaction was provided for him in consideration of ■such relinquishment. But, in construing this contract, we do not feel it necessary to determine to whom belongs the property which he might acquire during marriage with her own means exclusively.

When the parties came to this country, he had little or no property. She had several thousand dollars in money, with which were purchased real estate, and the title; to take that, Scheferling should have a fee simple estate in an undivided portion of tho land after tho death of Ernestine. She made the contract; she had the money and took the deed, according to her views of propriety and right; her money purchased all the personal property, such as household furniture and farming utensils, etc.; and if his labor should, to a-certain extent, bo mixed up in some of the products of the farm,, which have been seized in execution, it is very evident that her own. money and means are also mixed with his labor, and that she has some interest in these articles, which are proposed to be sold as his property. It is property which they acquired by her means and his labor, and which, we think, upon a fair construction of this, contract, belongs to her exclusively.

It is however claimed, that by the sale of the by-house, etc., in Germany, and the conduct of the parties in this country, it maybe fairly inferred that they had abandoned the agreement. Ve are well satisfied, from the whole of the evidence, that the parties intended no such thing; that he considered her the owner of all the property, by virtue of the original contract, and consulted her, and, indeed, was wholly governed by her in all his sales and purchases; that he accounted to her for all the property he sold, of every kind, and that she furnished the money to make all the purchases.

Nor do we perceive that the execution of this contract in this country, according to the original intention, would interfere at all with the policy of our own laws.

*Henry Scheferling, when he entered into this contract, was capable of making such a contract. He considered that he had procured a sufficient consideration for agreeing to give her the whole of her own property, and all the property which they should mutually acquire during the marriage. He is still satisfied with that contract, and no good reason can be assigned why such contract should not be fully carried into execution as between the parties themselves.

Our conclusion is, that the property levied upon belongs to Ernestine.

Decree of injunction accordingly.


author: Thurman, C. J.

text:
    David Loudenback v. James Collins.
    A plaintiff can not sustain a motion to rule out tie defendant’s testimony, by evidence in reply to it.
    A correct judgment will not be reversed, because a bad reason for it was given by tie court tiat rendered it.
    A decree in ciancery may be as effectual a bar to an action or defense, at law, as would be a judgment at law.
    But to make the dismission of a bill a bar, it must have been upon tie merits of tie ease, and not merely for want of prosecution.
    Where the question is whether a bill was dismissed upon tie merits, or for want of prosecution, and tie ground of dismission is not stated, nor anything found in tie record from which it may be inferred there is no presumption either tie of which is, tiat, as it must be established that the dismission was upon, the merits, and that fact is not shown and can not be presumed, there is no bar.
    But where it appears that a dismission was upon a hearing of the case, it is to be inferred that it was upon the merits.
    A judgment will not be reversed, because an erroneous instruction was given to the jury, unless the record discloses some evidence tending to show that the instruction was material.
    The question whether an instruction was correct or not, may become immaterial, owing to the finding of the jury.
    *Error to the district court of Miami county.
    The action below was assumpsit, brought March 13, 1851, by the plaintiff, Loudenbaek, as indorsee, against the defendant, Collins, as maker, of five promissory notes — two of which were drawn payable to William B. Spears, or bearer, and tbe others, to Chester Shattuck, or bearer.
    To the declaration, which was in tbe common form; the defendant pleaded non-assumpsit, with a notice that he would prove on the trial that the notes were fraudulently obtained from him by tbe payees, respectively, for Burger’s patent cross-cut saw, for the states of Virginia and Tennessee; and that the said patent was wholly valueless; of all which the plaintiff was fully cognizant at the time he received said notes from the payees; that the plaintiff was not a bona fide indorsee, but took all said notes with notice that the same had been obtained by fraud upon the defendant, as aforesaid.
    On the trial in the district court, the jury found for the defendant; and the court, after overruling a motion of the plaintiff for a new trial, gave judgment upon the verdict. Two bills of exception were taken by the plaintiff —one in the progress of the trial before the jury, and the other upon the overruling of the motion for a new trial.
    The first of these bills, omitting the formal parts, is as follows :
    “ The plaintiff having given in evidence the notes on which the ;suit was brought,, and the defendant having adduced proof tending to show that the notes were given for patent right territory which patent-right was worthless; and that the execution of the notes was fraudulently procured by Shattuck and Spears, the payees in said notes and assignors of the plaintiff, -the plaintiff moved the court to rule out .the testimony .offered by .defendant, for tbe reason that tbe .same matters of defense bad been before adju•dicated between the parties, and that that adjudication estopped the defendant from setting up his present defense — and, in support of the motion, the plaintiff offered the record of the suit of James Collins (defendant in this case) against David Loudenback, Chester Shattuck and William B. Spears, in Champaign common pleas, in chancery, which is made part of these exceptions, marked A. But the court held and decided, that the defendant was not debarred or estopped by said former proceeding and record, from making his present defense, and therefore overruled the motion of the plaintiff to rule out defendant’s testimony. Whereupon the plaintiff excepts.”
    The chancery record above referred to, shows that on January 9, 1849, Collins filed his bill against Loudenbaek, Spears, and Shat-tuck, charging, among other things, that the notes hereinbefore mentioned, had been obtained from him by the fraudulent devices and representations of Spears and Shattuck, and their confederates, ■upon no other consideration than the assignment to him of a right to use and vend, in the states of Virginia and Tennessee, a certain void patent-right, for a wholly worthless invention, called “Burger’s 'Cross-cutting Saw,” or “ Burger’s Improvement in the Cross-cutting Saw; ” and that Loudenbaek had bought the notes with full knowledge of these facts. The bill prayed, inter alia, that the defendants might be enjoined from instituting actions at law upon the notes, and that they might be "delivered up and canceled.
    Upon this bill a provisional injunction was allowed.
    October 8,1849, the complainant filed a supplemental bill, charging that a paper, purporting to be a settlement of the matters in controversy, had been executed by him, in ignorance of its contents ,and without any settlement having been made, through the fraudulent devices and practices of an agent of Spears and Shattuck, and praying that it be delivered up and canceled.
    January 28, 1850, Loudenbaek answered, admitting that he had purchased the notes, and that before he did so, he had heard upon what consideration they were given; but denying that he *had any knowledge of the invalidity or worthlessness’of the consideration, or of the fraud alleged in the bill; and averring that he was -a bona fide purchaser, and for a valuable consideration.
    To this answer a general replication was filed.
    April 22, 1858, Spears and Shattuck answered, taking no notice of the allegations of the original bill, but relying on the paper purporting to be a settlement, mentioned in the supplemental bill.
    July 8, 1850, exceptions to their answer having been sustained, Spears and Shattuek pleaded said paper, or settlement, in bar. To-this plea no replication was filed.
    The suit was continued until the October term, 1850, when the following entry, and .nothing more, was made: “Injunction dissolved and bill dismissed. Decree against complainant for costs.’
    The second bill of exceptions, omitting the caption and formal-conclusion, is as follows :
    “ Be it remembered, that on the trial of this cause at the May term of said court, to wit, on May 31, 1853, the evidence having been closed, the court charged'the jury, among other things, as follows:

      “ 1. That if an indorsee has received a promissory note before due, and has paid a valuable consideration therefor, having such grounds for suspecting the consideration to be a worthless patent-right as-would, or ought to have, put a prudent man upon inquiry, he takes the note at his peril.
    “2. That if the jury should find that the plaintiff had obtained the note before due, and had paid value for it, without notice of fraud or want of consideration, and that the note had in fact been procured by the payees from the maker fraudulently and without consideration, the jury would be justified in rendering a verdict for the plaintiff, for the amount he actually paid for the notes, if the testimony showed what that was.
    “And thereupon the jury gave their verdict against the ^plaintiff. Whereupon, the counsel on the part of the said plaintiff, David Loudenback, moved the court for a new trial, by reason of the supposed misdirection of the said court, so given as-aforesaid, to the said jury. But the said judges overruled the said motion, and gave judgment upon the verdict of the said jury, against the said David Loudenback.^ Whereupon, the counsel of the said David Loudenback made their exceptions,” etc.
    To reverse said judgment this petition in error was filed
    The assignment of errors is—
    “1. The court erred in overruling the said motion of the said David Loudenback, to rule out the said testimony of the said defendant.
    “ 2. The court also erred in overruling the said motion for a new trial, and in entering judgment for the said James Collins.”

      Young & Leedom, J. A. & I Corwin, and Warden & BanJtin, for plaintiff in error.

      Charles Morris, Jr., and John W Andrews, for defendant in error.

      John II. Young, for plaintiff in error, made the following points:
    Decrees in chancery stand upon the same principles with judgments at common law. 1 G-reol. Ev., sec. 551; Swan’s Stat. 708. A decree dismissing the bill upon the merits between the same parties, and upon the same subject-matter, without reservation, is conclusive, until reversed. 7 Johns Ch. 286; 5 Ohio, 450 ; 6 Ohio, 528; 8 Ohio, 214; 4 Johns. Ch. 142; 4 Wash. C. C. 659; 1 A. K. Marsh. 526; 4 Dana, 84.
    The bill was, in this case, dismissed, not for want of proper parties, for want of jurisdiction, nor on the ground of informality of the proceedings, nor because of any neglect of counsel on either side. The parties and their counsel were all present, and having submitted the case to the court, the court decide it, dismiss *the .bill without any reservation, and decree that Collins pay the costs. .Shall it be said, that the court have not decided the;whole ease?
    A bona fide holder of a note, for a valuable consideration, before due, without notice of any infirmity, will hold and collect the note, let the infirmity be what it may, even if the payee had acquired it by fraud, or theft, or robbery, even although the consideration be illegal. Story on Prom. Notes, 210, secs. 191,192, and 193; 6 Mass. 428. Testimony tending to show what the consideration was, with ■the view of proving that a valuable consideration had not been paid, and that therefore plaintiff was not a bona fide purchaser, might have been proper, but for that purpose only, and not to limit the amount of recovery.
    The charge of the district court, that “ if an indorsee has received a promissory note, before due, and has paid valuable consideration therefor; having such grounds for suspecting the consideration to be a worthless patent-right as would, or ought to have, put a prudent man upon inquiry, betakes the note at his peril,” is erroneous. ..Story on Prom. Notes, 220, sec. 197 ; Story on Bills, 415, 416.

      John W- Andrews, for defendant in error, made the following points:
    I. A former recovery may be pleaded in bar, and it may also be given in evidence under the general issue! Where it could not, from the nature of the case, have been pleaded in bar, it is equally conclusive in its effect, as if it were specially pleaded by way of estoppel. 1 Greenl. Ev., secs. 828, 829, 830. The record in this case was not offered at all as evidence to go to the jury, but simply in support of the motion to rule out the defendant’s testimony. It. could not avail the plaintiff for such purpose.
    II. If it had been offered in evidence to the jury, it would not have been conclusive against the defendant, as the bill relied upon was filed against the plaintiff and two other persons as defendants,. *and was dismissed solely for want of prosecution. A decree or order, dismissing a former bill for the same matter, may be-pleaded in bartola new bill, if the dismission was upon the hearing, upon the merits. An order dismissing a bill for want of prosecution is not a bar to another bill. Story’s Eq. Plead. 610; Mitford’s-Chan. Plead. 298, and cases there cited; 1 Greenl. Ev., sec. 539. Unless the second bill be filed by the same complainant or his representatives, against the same defendant or his representatives, even a decree of dismissal on the merits in the first case is no'bar. Neafie v. Neafie, 7 Johns. Ch. 1; Sawyer v. Bletsoe, 2 Vern. 328.
    The jury rendered a verdict for the defendant; the plaintiff therefore has in no way been injured by the second part of the charge of the court to the jury, and has no valid ground for exception thereto.
    The first part of the charge of the court below is well sustained by authority as well as upon principle. If an indorsee takes a bill without due caution, and under circumstances which ought to have excited the suspicion of a prudent and careful man, the maker or acceptor may be let in to his defense. Gill v. Cubitt, 3 B. & C. 466; 3 Kent’s Com. 84; Beckwith v. Corral, 2 Carr & Payne, 261; Nicholson v. Patton, 13 Louisiana, 213; Ayer v. Hutchins et al., 4 Mass. 37; Thompson v. Hale, 6 Pick. 261; Story on Prom. Notes, 221, note.
    The contrary decision, in Lawson v. Weston, 4 Esp. 56, was overruled by Lord Tenterden, in Gill v. Cubitt, 3 B. & C. 466. The rule laid down in the cases of Crook v. Gadis, 5 B. & Adol. 909, and of Backhouse v. Harrison, 5 B. & Adol. 1098, was modified by Lord Henman in 1835, who, in the case of Goodman v. Harvey, 4 Adol. & E. 870, decided, that gross negligence is not alone enough to destroy the title of a holder for value, but that a case of mala' fides must be made out against the holder, to defeat his claim. This rule has since been followed in England, and is, undoubtedly, there the law. It has *not however been followed by any court in the United States, and there seems to be no good reason why the rule, as long settled in this country, should be shaken. Whatever the exigencies of the overshadowing commercial policy of England may exact from her courts, in encouraging and stimulating the sale and transfer of commercial paper in the market, there is no reason, in this country, why a purchaser of a promissory note should not be held to reasonable caution and inquiry as to the rights of third persons. ‘ The shaving of notes, as a business, needs no stimulus in Ohio. The rule laid down in its charge by the court below, so far as it may have a tendency to cheek and moderate this species of business, and to compel the men who make their money by it, te pay some sort of regard to the rights of their neighbors, will practically work well in this country.

      J. A. & I. Corwin, and Warden & BanMn, for plaintiff in error, replied:
    I. What is simply offered in evidence, is necessarily offered to both court and jury, if, in its nature, it is proper for both. The motion, to support which the record was offered, was, substantially, one to instruct the jury as to the effect of evidence. The plea was the general issue, with notice; no replication was proper. It was in reply to the defense- — so to speak — that the record was offered, and nothing remained but to declare its legal effect on the defense set up. That legal effect was to render the defense unavailing.
    The language of the decree neither says, nor imports, that the dismission was solely for the want of prosecution. It must be construed to be the action of the court on the merits, and is a full bar.
    II. The distinction sought to be made between commercial interests and necessities in this country, and the same interests and necessities in England, appears to be wholly unfounded. All wise and prudent regulation of commerce is in favor of the rule *as now firmly established in England. That rule has been recognized here and everywhere. Cone v. Baldwin, 12 Pick. 546; Story on Prom. Notes, sec. 197.
   Thurman, C. J.

It is quite clear that there is nothing contained in the first bill of exceptions that would warrant a reversal of the judgment. The point meant to be presented by the bill is, whether the decree in the chancery suit estopped the defendant to set up the defense specified in his notice. Rut, in order to raise that point, it was indispensably necessary for the plaintiff to offer the chancery record in evidnece to the jury. Had he done so, and had it beeD objected to and the objection sustained, or had it gone to the jury, and had the court charged that it did not operate as an estoppel, then by a bill of exceptions the point might have been saved. But it was never offered to the jury, and of course there was no refusal to permit it to go in evidence, nor any instruction given in respect to it. The idea that it could be made available, on a motion to rule out the defendant’s testimony, is certainly as novel as anything that we have met with, and quite as unsound as it is novel. The jury, and not the court, were the triers of the facts; and to them, and not to the latter, was the plaintiff to adduce his testimony in answer to the defense. And it makes no difference that the .question, what was the legal effect of the testimony, might be for the determination of the court, the testimony itself was to go to the jury, subject to the right of the court to instruct them.

But it is said that the court did actually hold that the decree did not bar the defense, and that such an opinion was expressed as a reason-for overruling the plaintiff’s motion, is certainly true; but how does this aid the plaintiff? The motion was correctly decided, whatever was the effect of the decree; and if the opinion of the court was erroneous, it simply presents a case of a sound judgment with a bad reason given for it. That such a judgment should not be reversed for such a cause, would seem to be too *obvious to need the support of authority; but if that is needed, it may be found in abundance. Steamboat Waverly v. Clements, 14 Ohio, 37; Harman v. Kelley et al., Ib. 507.

It is hardly necessary to add, that the opinion expressed by the court did not dispense with the necessity of offering the record to the jury, if the plaintiff wished to save his point; but it is to be noted, that the only thing excepted to under this head was the overruling of the motion, and that nothing else is assigned for error based upon the first bill of exceptions. It is very clear, then, for each of these reasons, that this part of the case presents nothing for us to decide but the question, whether the motion was properly overruled. That it was so, is too plain for doubt.

Nevertleless, the repugnance we feel to decide a case upon any other than its substantial meiits, has led us to examine the opinion ■complained of; although, it could not, for the reasons I have stated, be of any avail to the plaintiff, were we convinced that the opinion •is erroneous. But we are not so convinced. On the contrary, the result of our investigation is, that we think it is correct.

There is no question that a decree in chancery may be as effectual a bar to an action or defense at law, as would be a judgment at law; but the question is, when is a judgment or decree a bar? Upon this subject Chancellor Kent, in the well considered case of Neafie v. Neafie, 7 Johns. Ch. 4, said: “A bill regularly dismissed upon :the merits, may be pleaded in bar of a new bill for the same matter; for if the same matter, or the same title, should be drawn into question again by another original bill, it would, as the cases say, ‘ introduce perjury, and make suits endless.’ The cases to this point were referred to in Perrine v. Dunn, 4 Johns. Ch. 142. But in the cases I have looked into upon dismission of former bills, the new bill was brought by the same party who filed the original bill; and the're is said to be a material distinction between a new bill by such a party and a new bill concerning the same subject by the defendant *in the first suit. To make the dismission of the former suit a technical bar, it must be an absolute decision upon the same point or matter; and the new bill, it is said, must be by the same plaintiff, or his representatives, against the same defendant or his representatives.”

This doctrine was fully approved by Judge Story, in his Commentaries on Equity Pleading, sections 791-793, and other authorities cited in its support; and he states the rule to be, that “ a decree or order dismissing a former bill for the same matter, may be pleaded in bar to a new bill, if the dismission was upon the hearing, and was not, in terms, directed to be without prejudice. But an order of dismission is a bar only, where the court has determined that the plaintiff had no title to the relief sought by his bill; and therefore an order, dismissing a bill for want of prosecution, is not a bar to another bill.”

If these principles be applied to the case before us, there would ■seem to be no reasonable doubt, that the opinion of the district court is correct. For, first, the action at law was not brought by the plaintiff in the chancery suit, but by one of the defendants. Secondly — and this, in our judgment, is of much more imporiauee—it does not appear that the bill was dismissed upon hearing, or the merits of the case. There is certainly nothing in the record to show, what Judge Story says is indispensable, that the court had “ determined that the plaintiff had no title to the relief sought by Ms bill.” Eor aught that is stated, the bill may have been dismissed for want of prosecution; and if it be said that this ought, not to be presumed, the answer may well be made, that it ought not to be presumed that the dismission was upon the merits. We think that, where the ground of dismission is not stated, nor anything found in the record from which it may be inferred, there is-no presumption either way; the consequence of which is, that it must be established that the dismission was upon the merits, and that fact is not shown and can not be presumed, there is no bar.

I should perhaps add, to avoid misapprehension, *that where it appears that the dismissal was upon a hearing of the case, it is to be inferred that it was upon the merits.

The second bill of exceptions contains two instructions given to the jury, and to which the plaintiff excepted.

By the first of these instructions, the jury were told, “ That if an indorsee has received a promissory note before due, and has paid a valuable consideration therefor, having such grounds for suspecting the consideration to be a worthless patent-right as would, or ought to have, put a prudent man upon inquiry, he takes the note at his peril.”

It is unnecessary for us to say whether, in our opinion, this instruction was correct or not; for there is not a word of testimony disclosed by the record to make it material. It is not certain that it was in proof to the jury, that the notes sued on, or either of them, had boon indorsed to the plaintiff: and' it is certain that it does not appear that they were indorsed before due. Nor is it shown that he paid any value whatever for them, nor that, when he purchased them, if he made any such purchase, he had any ground for suspecting what was their consideration. Evidence tending to prove all these matters was necessary to lay a foundation for the instruction ; but no evidence is shown, as having been given to the jury, tending to prove any one of them.

That a judgment will not be reversed, because an erroneous instruction was given to the jury, unless the record discloses some evidence tending to show that the instruction was material, is as Well settled as any point can be, and has nowhere been more distinctly stated, or constantly acted upon, than in our own courts. See Creed v. Com. Bank of Cincinnati, 11 Ohio, 489 ; Wash. Mutual Ins. Co. v. Reed and Brown, 20 Ohio, 202, 206, 207; Kugler v. Wiseman, Ib. 361; Walker v. Lessee of Devlin, 2 Ohio St. 605.

For the same reason, it is unnecessary to decide whether the second instruction was correct; and also for an additional reason.

*This instruction related to the amount the plaintiff would be entitled to recover should the jury find in his favor. They were told that, upon the hypothetical case stated, the proper damages would be the sumí he paid for the notes. Assuming that that was less than their amount — although the bill of exceptions contains no proof to that effect — counsel say that the charge was erroneous; and that the proper damages would have been the amount of the notes, with interest. But it is obvious that, as there could be no-assessment of damages unless the defendant was found to be liable on the notes, and as the jury found that he was not so liable, it is-now wholly immaterial whether the instruction was correct or not.

As the motion for a new trial rested upon the same matters we have herein considered, and on no other, nothing need be said about it.

Judgment affirmed.