
    BEVER v. BUTLER AND HULL.
    Principal and security — giving time — consideration—statute of frauds.
    Where time lias been given to the principal debtor under an agreement which has been executed, the creditor will not be allowed, as against the security, to show that the agreement to give time was invalid, being without consideration.
    The real question in such cases is, was time given to the principal debtor, without the consent of the security? if so, the new contract waives the performance of the old one, and substitutes in its stead the new, thus discharging the old.
    Such an agreement, to give time to a bond to convejr land, is not within the statute of frauds.
    Debt on a penal bond, conditioned that Butler should make a deed for certain land, within a stipulated time. Hull pleaded three pleas, in substance: that he was security in the obligation, and after its execution; but before the time for making the deed, Bever, by agreement with Butler, without the defendant’s knowledge or consent, postponed the time for making the deed, beyond the time mentioned in the condition, to such time as he should demand it. The plaintiff replied, that after the postponement, he demanded the deed, which was refused. To this there is a general demurrer.
    
      
      •Newton and Perkins, for the defendant,
    contended that the replication was no answer to the pleas.
    
      J. C. and J. II. Paine, contra,
    contended that the first fault was in the pleas, which were—
    1. That the agreement to postpone, was void under the statute of frauds, as an agreement arising out of lands.
    2. Void, because it was without consideration.
    • 3. Bad, because it did not aver that the contract was performed. They cited 15 John. R. 202; 1 Wend. R. 318; 5 East. i?. 18; 2 Wend.R. 590; 5 Wend. R. 503; 3 T. R. 598; 2 Bay. R. 208.
   By the Couet.

The case of The Bank of Steubenville v. Carrol, 5 O. R. 214, is decisive of this. The cases cited upon the subject of valid contracts and good consideration, do not apply to the question before us. In this case, the contract (to give time) has been executed by the parties as a valid one, and it does not lie in the mouth of either now to say, they might have refused to execute the contract, because it was without consideration. ■ The real question is, was time given by the obligee to the principal debtor, without the consent of the surety? that is alleged and admitted by the demurrer. Such time given upon a new contract, waves the performance of the old one, and substitutes in its stead a new one, and in that way discharges the old. We do not presume that the statute of frauds bears upon the contract; but if it did, the execution or admission of the contract would take it out of the statute.

Judgment for the defendant.  