dissenting. — At the trial, I ruled that an agreement between the promisee and the principal prom-isor, without consideration, for a delay of payment, could not be set up in defence by the surety, whether made with or without his knowledge and consent. Whereupon an issue of fact was presented to the jury, whether the written agreement for a delay of one year was based upon a consideration. Upon that issue the princijjal defendant swore that the consideration was the sum of $11,91, and the plaintiff that that sum was received only in part payment of the note. The jury believed the defendant. There was no evidence produced that the surety ever knew or understood, or authorized a legal contract for delay such as would preclude him from paying the note and resorting to his principal for security. The agreement produced expressed no consideration, and the letters of the surety were equally silent upon that subject. Hence, it will be perceived that the instruction reported was based upon the documentary evidence, which was silent as to any consideration.