
    Hill v. Bull.
    December, 1820.
    Priascipai and Surety — Extension of Time — Discharge of Surety. —Giving farther time for payment, to the principal, without the consent of the surety, discharges the surety from all liability.
    Hill exhibited his bill in the Superior court of Chancery of Winchester, setting forth, that having become surety for Hite to Bull for 1961., Bull many years afterwards, and after Hite had become insolvent, applied to Hill for payment, and Hill gave Bull a deed of trust on his own property to secure the debt; that Hill made an arrangement with Hite (who was clerk of Jefferson County court) that he should appropriate a sufficient amount of clerk’s tickets to meet the payment of the debt to Bull; that Hite did appropriate his clerk’s tickets accordingly;, that after the fees were collected, Hite wrote to Bull, informing him that the. fees had been at Hill’s instance appropriated to the payment of this debt, and requesting that Bull would be content to receive out of them 1001., and permit Hite to use the rest of the money, and give him another jear’s indulgence for the balance of the debt; that Bull, assented, and gave the indulgence, without Hill’s knowledge, or consent; that Hill af-terwards induced Hite to deliver other clerk’s tickets equal to the balance due Bull, to North (Bull’s acknowledged agent for the collection of the debt) to be applied by North, when collected, to the payment of the balance; *andthat North again permitted Hite to draw the money from North himself (who was sheriff) and apply it to his own use. Bull, Hite, and North, are made defendants, and the bill prays, that Hite may be decreed to carry his agreement to appropriate his clerk’s fees to the payment of the debt due Bull, into specific execution; that Hite and Bull may discover the contents of the letters which passed between them on the subject; that Bull may be decreed to release his lien on Hill’s property, and enjoined from claiming the debt of Hill, and that North might be compelled to settle it.
    North answered, that he was once agent for Bull for the collection of the debt, that he was requested by Hill not to sue for it, till he heard farther from him, but Hill never spoke of it more; that Hite once placed in his hands, clerk’s fees, nominally, equal to the debt, but the fees were principally due from insolvent debtors; what he collected he paid to Bull; that while he was sheriff, Hite put other clerk’s tickets into his hands for collection, but without any appropriation of them to Bull’s debt, the proceeds of the collection were paid to Hite.
    Bull, in his answer, acknowledges, that at Hite’s request, he had given him farther indulgence for the debt, but without knowing at the time, or having any reason to believe, that any specific fund had been appropriated to the payment of it, much less that Hite had made such appropriation, in consequence of an agreement with Hill, as stated in the bill. The indulgence he gave, was intended as an indulgence not only to Hite, but to Hill, whose property was pledged for the debt.
    The deposition of Hite, a defendant, was taken in the cause, which was objected to as inadmissible.
    Tucker and Bouldin for the appellant.
    Hite is a competent witness. It is clear where the interest is equal either way, the testimony is admissible. Bull had an existing judgment against him; and Hill had his right *to a decree in equity; if the interest be not equal, it is strongest against the party calling him; in that case also, he is competent.() As to the objection of costs, it applies with equal force in any possible event of the suit. Costs in equity are discretionary, and Hite should pay them, for withdrawing the funds appropriated for the payment of the debt.
    But Hill was discharged by the new contract, entered into between Bull and Hite; by which, Bull gave farther time. For this, Rees v. Berrington, () is a clear authority.
    Leigh, contra.
    Hite is an incompetent witness; for he is liable for costs, being a party to the suit on the record.
    Nor was Hill discharged from liability, by the indulgence given Hite. The doctrine on this subject is stated with too much latitude by the other side. It is true, a principal shall never give up a lien, and hold the surety bound afterwards. This is the rule laid down in Croughton v. Duval, () But Bull gave up no lien.
    Besides, Hill is not a mere surety. There was a consideration personal to Hill: it was a longer forbearance, which induced him to execute the deed of trust. He assumed the debt by this act, on himself. He cannot now be suffered to remit himself back, to the original bond.
    
      
       Principal and Surety -Extension of Time — Discharge of Surety. — The rule seems well settled that a creditor, who, without the consent ot the surety, enters into a binding- contract, upon a sniflcient consideration, to indulge the principa) debtor so as to tie his hands from proceeding to collect his debt tor any time, however short, by such contract, releases the surety from liability for the debt. The principal case is cited as authorizing this proposition in Norris v. Crummey, 2 Band. 337; Chichester v. Mason, 7 Leigh 202; G-lenn v. Morgan. 23 W. Va. 469; Bank v. Lee, 2 Fed. Gas. 702. Gas. No. 921: note to Hopkirk v. McOonico, 12 (Fed. Cas. 603, Cas. No. 6.696.
      For further authority in point, see Bennett v. Maulé, Cxilm. 328; Croughton v. Duval, 3 Call 72, 73; Ward v. Johnson, (i Munf. 6; Hunter v. Jett, 4 Rand. 101; foot-note to Devers v. Ross, 10 Gratt. 252; Adams v. Logan, 27 Gratt. 201, and foot-note-, Shannon v. McMullin, 25 Gratt. 211, and foot-note; Dey v. Martin, 78 Va. 1; Christian y. Keen, 80 Va. 389: Bur-son Y. Andes, 83 Va. 445, 8 S. IC. Rep. 249: Stuart v. Lancaster, 84 Va. 772, 6 S. 1C. Rep. 139; Wells y. Hughes, 89 Va. 543,16 S. 13. Rep. 689; Exchange Building, etc., Co. v. Bayless, 91 Va. 134. 21 S IC. Rep. 379; State Savings Bank v. Baker, 93 Va. 510. 25 S. ¡S. Rep. 550: Bacon v. Bacon, 94 Va. 686, 27 S. E. Rep. 576; Wright v. independence Nat. Bank, 90 Va. 728. 32 S. B. Rep. 459; Tate v. Bank, 96 Va. 765. 32 S. IC. Rep. 476; Shields v. Reynolds, 9 W. Va. 485 et sea.
      
      See also, foot-note to wright v. Stockton, 5 Leigh 153.
    
    
      
      ) 2 Salk. 691.
    
    
      
      ) 2 Ves. jr. 243.
    
    
      
      ) 2 Call 69.
    
   ROANS, Judge.

Without deciding upon the admissibility of Geo. Hite’s deposition, so far as it is affected by his alleged liability for costs, in the case before us; and there being other abundant testimony, the court is of opinion, that the appellee Bull, having agreed to wait with the said Hite, the principal debtor, one whole year, for a moiety of his debt, without the knowledge or consent of the appellant; thereby making a new contract with the principal, without the assent ' of the surety, *which not only varied materially the situation of the parties, but suspended his resort to a bill of quia timet; this case is brought within the established principle of equity, which was admitted by this court, in the case of Croughton and Duval, and the appellant is absolutely discharged thereby, from his liability to pay the debt in question.

The decree is, therefore, to be reversed with costs, and the appellee decreed to release the deed of trust in the proceedings contained; and be also perpetually injoined from demanding the debt aforesaid from the appellant.  