
    Bourdett Wood v. Joseph Newkirk.
    1. Upon petition in error, the district court may order the court of common pleas to send up a perfect transcript of its record, but it has no power, in such a case, to order an amendment of the record itself.
    2. A promise by the principal debtor to pay usurious interest, is a sufficient consideration to support an agreement by the creditor to give further time, and operates a discharge of the surety in the note given for the original loan.
    Error to the district court of Erie county.
    Wood, the plaintiff in error, brought an action in the common pleas against Joseph Newkirk, the defendant in error, and one David Newkirk, upon a promissory note, made by David as principal, and Joseph as surety, for money loaned to David. Judgment was taken by default against David. Joseph answered separately, alleging that after the note fell due, a contract was made between David and the plaintiff, by which the plaintiff bound himself to extend the time of payment for a limited period, in consideration of David’s promise to pay a specified usurious rate of interest. The plaintiff denied the making of the alleged contract for further time. • The issue was submitted to the jury.
    On the trial there was evidence tending to prove the alleged agreement for further time; and the defendant moved the court to instruct the jury to find for the defendant, in case they should be of opinion that the allege^, agreement was proved. The court refused the instruction, and instructed the jury that such contract would not be supported by a good consideration, and would not be legally binding upon the plaintiff, so as to‘discharge the defendant. The defendant excepted to the opinion of the court, and took a bill of exceptions; and the jury having found a verdict for the plaintiff, judgment was entered thereon for the amount of the note.
    The defendant filed his petition in the district court to reverse this judgment, annexing thereto a copy of the record, containing what purported to be the bill of exceptions as aforesaid. In the district court the plaintiff moved for an order, to be served upon the clerk of the court of common pleas, requiring the record to be amended by striking out the alleged bill of exceptions, and a copy of the amended record to.be sent up; and in support of the motion he offered to prove, that the alleged bill of exceptions was in fact signed and sealed after the term of court had expired, and dated back as of the term, and that in fact no valid bill of exceptions ever was taken in the case. But the court refused to hear the evidence, and overruled the motion. To this ruling and order the plaintiff excepted. And, on further hearing, the district court held that the common pleas erred, and reversed their judgment. To reverse this judgment of the district court the present petition in error is filed.
    
      H. Goodwin, for plaintiff in error, argued:
    I. The district court erred in refusing to hear the evidence of the plaintiff in error upon his motion for an order on the clerk of the common pleas to send up a complete and perfect record leaving out the bill of exceptions mentioned, and in overruling that motion. Code, sec. 530.
    Such a motion may be properly addressed to the district court as well as to the common pleas. Both courts have jurisdiction to grant such a motion. The district court must necessarily have such power. Otherwise a party might be taken by surprise, and have no available remedy.
    Again: the district court have this power to enable them to do justice. They have before them the proceedings of the court below, to see whether any illegal act has been done in the matter by that court, acting as a court. Now, must they not have the power of determining what was done by that court as a court, and of discriminating between what was done by the court, as such, and what done by somebody else ?
    2. An executory contract to pay an amount of usurious interest over and above what the note drew by its terms (and no part of which is legal interest), is not a good consideration for an extension of time. 1 Parson’s Contr. 374, and cases there cited; 2 Am. Lead. Cas. 420, and cases there cited; Vilas et al. v. Jones et al., 1 Comst. 274; Hill v. Calloway, 1 West. Law Jour. 398; 1 S. & C. 744; Com. Bank Cincinnati v. Reed, 11 Ohio Rep. 500; Spaulding v. Bank of Muskingum, 12 Ohio Rep. 544; Rains et al. v. Scott, 13 Ohio Rep. 115; Graham v. Cooper, 17 Ohio Rep. 605; State v. Ex’rs of Buttles, 3 Ohio St. Rep. 320; Raquit v. Roll, 7 Ohio Rep. Pt. 1, 79 and 80; 1 Chit.Pl. 294, and note 3 and authorities; Jones v. Brown, 11 Ohio St. Rep. 601; Jenkins v. Clarkson, 7 Ohio Rep. 71; 6 How. 283; Reynolds v. Ward, 5 Wend. 502; Farmer’s Bank of Canton v. Reynolds, 13 Ohio Rep. 84; Thurston and Hays v. Ludwig, 6 Ohio St. Rep. 1.
    
      
      W. F. Stone and J. M. Root, for defendant in error, argued:
    1. In relation to the motion made on behalf of the plaintiff in error in the district court:
    1st. That under the code the reviewing court has no more power over the records of the inferior courts than it had under the former practice.
    2d. That under the former practice the reviewing court could on suggestion of diminution of record, or ex officio, require a perfect transcript of the entire record to be sent up, but they had no power to animl the record of the court below, or to strike out anything which appeared to be regularly and properly there. The inquiry in such a case always was, whe'ther something had not been omitted; and the object was to get the whole record and not to amend it.
    
    3d. If the record is to be amended, it must be dono by the court whose record it is.
    4th. The district court had no power to grant the motion as made, and hence it was properly overruled.
    2. The contract for forbearance was supported by a sufficient consideration. 2 Am. Lead. Cas. 419; McComb v. Kittredge, 14 Ohio Rep. 348; Jones v. Brown, 11 Ohio St. Rep. 609.
   Welch, J.

The first question is, whether the district court erred in refusing the evidence and overruling the motion of the plaintiff. We think not. The district court has no power over the records of the common pleas. The extent of its power in this respect is, to cause a correct and complete copy of the record to be sent up. The common pleas alone has power to alter or perfect its own records, and application should have been made to that court, and not to the district court for that purpose.

It only remains to inquire whether the alleged contract of' forbearance se't up by the defendant, was founded upon a sufficient consideration, so as to be binding on the plaintiff, and discharge the defendant as surety for David Newkirk. The contract of David was, to keep the money for a specified time, and to pay therefor usurious interest. Under our laws this contract was void as to the excess above six per cent., but was good as to the six per cent. Here there was a valid promise by David, to keep the money for a specified period, and to pay six per cent, for that time for its use. Why was that promise not a good consideration for an agreement to forbear ? It surely was, and we only follow the decision made by this court in McComb v. Kittredge, 14 Ohio Rep. 348, in so holding. We think the common pleas erred in instructing the jury otherwise, and that the district court properly reversed the judgment.

Judgment of the district court affirmed.

Brinkerhoee, C.J., and Scott and White, JJ., concurred.  