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Opinion of the Court.

Logan county has not. We see no reason to extend Lemmon v. State beyond the facts stated therein.

But in this court, for the first time in the progress of the case, it is objected that there is no bill of exceptions; and in support of that objection it is urged, first, that under the provisions of Section 7304, Revised Statutes, the taking of bills of exceptions must be governed by Sections 5301, 5301a, 5301b and 5302, Revised Statutes. This view of the law would seem to be correct; but it does not appear in the record, nor in the bill of exceptions itself, that the formalities required by the statute were not complied with. At any rate, a bill of exceptions certified to contain all of the evidence that was offered and given on the trial, and found to be true, and allowed and signed by the probate judge, is in the record. The presumption is that notice was given to counsel and that the proper steps were complied with, although the record is silent as to those matters. Findlay Brewing Co. v. Brown, 62 Ohio St., 202; Felch, Assignee, v. Hodgman Mfg. Co. et al., 62 Ohio St., 312. And this is the rule notwithstanding it may not appear, from the record, that a motion for a new trial had been made and overruled. If the question here were whether the judgment below was against the weight of the evidence, a motion for a new trial would be necessary; but the question being whether the trial court properly applied the law to the facts, the absence of a motion for a new trial is not material.

But it is settled law that objections of this kind cannot be made in the court of last resort for the Opinion of the Court.

first time. Lessee of Perkins v. Dibble, 10 Ohio, 433; Lewis v. Bank, 12 Ohio, 132, 148; Seymour v. Railway Co., 44 Ohio St., 12, 15; Railway Co. v. Construction Co., 49 Ohio St., 681. “Where a cause has been brought up for review from an intermediate court of appellate jurisdiction to the court of last resort, questions, other than such as go to the jurisdiction of the subject matter, which were neither made in the court of first instance nor assigned for error in the intermediate court, will not be considered. Nor, with the limitation referred to, will a question which could have been, but was not, raised in the intermediate court be considered by the court of last resort.” 2 Cyc., 676.

The foregoing matters being therefore eliminated, the case is reduced to the same terms as State v. Lynch, ante, 336; and accordingly the judgment of the circuit court affirming the judgment of the court of common pleas reversing the judgment of the probate court, is






One signing promissory note-On face thereof-Becoming surety

for principal maker-Is primarily liable for payment of such note-Common law rule that agreement between holder and principalVarying contract by which surety is bound-And thereby releasing latter from liabilityNo longer in force as to one signing on face of instrument-Construction of Sections 31751, 31750, 31750 and 3178a, Revised StatutesNegotiable Instruments Act of Ohio.

1. One who signs a promissory note on the face thereof, and,

who in that way becomes a surety for the principal maker, is, by force of section 3178a, Revised Statutes, primarily

liable for the payment of such note. 2. Section 3175j, Revised Statutes, relating to the discharge of

negotiable instruments, provides in what manner, and for what causes, such instruments may be discharged, and, by force of the rule expressio unius est exclusio alterius, sureties upon such instruments who are primarily liable thereon cannot be otherwise relieved from responsibility for their

payment. 3. The rule of the common law that any agreement between the

holder of a promissory note and the principal, which varies essentially the terms of the contract by which a surety is bound without the consent of such surety will work his release from liability, is no longer in force as to one who has signed on the face of the instrument, such rule having

been in effect abrogated by section 3175j, Revised Statutes. 4. Sections 31750 and 3175p, Revised Statutes, relating to the

alteration of instruments, apply to the physical alteration of the instrument itself, but do not apply to a contract between the holder and the principal maker for an extension of time of payment of the instrument.

(No. 11424—Decided January 18, 1910.)

ERROR to the Circuit Court of Franklin county.

Argument for Plaintiff in Error.

At the April term, 1907, of the court of common pleas of Franklin, a judgment was entered as by confession, upon a cognovit note on the face of which appeared the names of The Ohio Dredging Company, a corporation, and others with the plaintiff in error, C. E. Richards, against said parties and in favor of the The Market Exchange Bank Company, defendant in error here, for $5,017, and costs. Later in the term Richards, here plaintiff in error, made application to the court to suspend the judgment and for leave to file answer. The answer tendered set up as defense that he, the defendant, was surety only on the note, The Ohio Dredging Company being the principal, all of which was known to plaintiff, and that the plaintiff had, without the knowl. edge or consent of answering defendant, for a valuable consideration, extended the time of payment of the note. But the court, on consideration, refused to suspend the judgment and refused to allow defendant to file said proposed answer upon the ground and for the reason only that it did not and does not state a defense. A motion for new trial was then interposed which was also overruled. On error to the circuit court the judgment was affirmed. Richards seeks a reversal of both judgments.

Messrs. Sater & Seymour and Mr. Charles C. Pavey, for plaintiff in error.

We maintain that the negotiable instruments act of April 17, 1902, did not repeal, expressly or by implication, all other statutes of Ohio, upon the rights

Argument for Plaintiff in Error.

and remedies of persons to negotiable instruments and particularly sections 5419, 5832 and 5836, Revised Statutes, pertaining to the rights of sureties upon an instrument of writing. On the law of repeals by implication, the citations are: Sutherland on Statutory Construction, sections 137, 138, 147, 152; Wood v. United States, 16 Pet., 342; City of Galena v. Amy, 5 Wall., 705; Arthur v. Homer, 96 U. S., 137; County of Clay v. Society of Sar'ings, 104 U. S., 579; E.r parte Crow Dog, 109 U. S., 556; Coats v. Hill, 41 Ark., 149; Connors v. Iron Co., 54 Mich., 168; People v. Supervisors, 67 N. Y., 109; Cass v. Dillon, 2 Ohio St., 607; Brown v. Van Wert, 4 C. C., 407; Fosdick v. Perrysburg, 14 Ohio St., 473; State v. Newton, 26 Ohio St., 200.

It may be claimed by the defendant in error that the negotiable instruments act was a general revision of the statutes of Ohio on negotiable instruments, and hence all other statutes and positive law in Ohio on the subject have been abrogated. On this proposition see: Sutherland on Statutory Construction, sections 154, 155, 156, 157, 158; Bartlet v. King, 12 Mass., 545.

The negotiable instruments act contains no reference whatever to the subject-matter of sections 5419, 5832, 5836, nor to the rights and remedies of sureties, unless it be in sections 31750 and 3175p, concerning the alteration of an instrument.

Always, heretofore in Ohio, the alteration of a written agreement by the holder and principal debtor without the knowledge and consent of the surety has worked a release of the surety.

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