delivering the opinion.
Ereeman acted in this transaction as the agent, not as the attorney at law, of Kerr & Hope. His testimony, therefore, given on the common law trial, was legal, and would have been admissible, had it been objected to; as it was not his answer to the bill, if in life, as a co-defendant could not be excluded, and could be used against his principal. Being dead, his original answers are to be received as the sworn statements of a competent witness — perhaps more than this, of one of the parties to the contract with the complainants.
As to the charge of the Court, that the indebtedness of Williams was the consideration for the new note, and not the undertaking of the agent of the payee, to cause the fi. fa. to be transferred to the securities to the new note, we understand the law to be this: If the creditor neglects to perform or performs defectively any of the conditions, either express or implied, which are incumbent upon him, or any of the terms which collectively form the consideration of the security’s contract, or of the contract to which the security acceded, the surety is discharged, or rather his liability never attached. Theobald on Principal and Surety, 103. Burge on Suretyship, 115.
But for the promise to deliver the execution against Williams, to the sureties to indemnify them against loss, the presumption is, they would not have consented to be bound. If the creditor failed to do this, are they not discharged ?