
    Harnsberger’s Ex’or v. Geiger’s Adm’r.
    July Term, 1846,
    Lewisburg-.
    (Absent Baldwin, J.)
    1. Bonds — No Consideration — When Binding. — A bond executed without consideration, for the purpose of being sold by the obligee for the benefit of the obligor, is of no obligatory force until it passes into the hands of a holder for value.
    2. Same — Endorsement—When Part of Bond. — An endorsement of such a bond, made after its execution, and before it passes to a holder for value, is part and parcel ofthebondin thehands of snch holder ; and is supported by the same valuable consideration, on which every other part of the bond rests.
    3. Same — Sureties — Release of — Conditional Agreement to Give Time. — A conditional agreement by the holder to give time to the principal obligor, will not bind the holder, unless the condition is strictly complied with ,- and therefore, though such agreement was without the consent of the surety, yet if the condition has not been complied with, the surety is not released.
    In January 1843, Georg-e Geiger filed his bill in the Superior Court for Augusta county, against John Churchman as the executor of Walter H. Tapp, for the purpose of having a settlement of Churchman’s accounts *as executor, and obtaining satisfaction of two judgments which he had recovered against him, as the executor of Tapp. In the progress of the cause the accounts were referred to a commissioner, who was directed to call in the creditors of Tapp, and state an account of their dehts.
    Among the debts reported by the commissioner was one due to the executor of Robert Harnsberger; and it being ascertained that the estate of Tapp was not sufficient to pay all the debts, Geiger’s administrator, by leave of the Court, filed an amended bill in which he charged that Harnsberger’s debt was founded on a usurious consideration ; and that Tapp, who was only a surety in that debt, had been released from his liability therefor by Harns-berger’s having given time to the principal.
    This Court was of opinion that the charge of usury was not sustained by the proofs. On the other question the facts were, that Henry Imboden desiring to borrow money, procured Tapp to become his security, and they executed to George W. Peck, a bond dated the 3d of Maj 1836, and payable twelve months thereafter, with interest from the date, for one thousand dollars. Peck gave no consideration for the bond, but was merely the agent of Imboden to borrow the money. As such agent he applied to Harnsberger for a loan on the bond, who at first refused. After this refusal, Peck and Imboden, in the absence, and without the knowledge of Tapp, made the following endorsement at the foot of the bond. “N. B. The above note is not to be pushed on for three years, by the interest being punctually paid at the expiration of each year. Given under my hand this 3d of May 1836.
    (Signed), G. W. Peck.”
    The endorsement having been made, Peck again took the bond to Harnsberger, who then gave him 900 dollars for it, which he paid over to Imboden.
    *The interest on the bond was not paid punctually at the end of the first year; though on the 28th of August 1837, Imboden made a payment upon it of 170 dollars. . He afterwards became a bankrupt, and received his certificate of discharge.
    When the cause came on to be heard, the Court below, declining to decide whether the consideration of the bond was usurious, held that Harnsberger had given time upon it to Imboden without the knowledge of Tapp, and that Tapp was therebj’ discharged. And it was therefore decreed that Harnsberger’s ex’or should not participate in the assets of Tapp’s estate by virtue of said debt. From this decree, Harnsberger’s ex’or obtained an appeal to this Court.
    Stuart, for the appellant.
    Fultz, for the appellee.
    
      
      He had been counsel in the cause.
    
    
      
      Principal and Surety — Release of Surety — Extension of Time. — An indulgence granted by a creditor to the principal debtor, will not discharge the sureties of such debtor, unless the creditor has bound himself, in law or equity, not to pursue his remedy against the principal for any length of time. Norris v. Crummey, 2 Rand. 323 ; M’Kenny v. Waller, 1 Leigh 431; Alcock v. Hill, 4 Leigh 622 ; Knight v. Charter, 22 W. Va. 422, 429, and cases cited. The principal case is cited in this connection in Coleman v. Stone, 85 Va. 388, 7 S. E. Rep. 241, and Lyttle v. Cozad, 21 W. Va. 206.
      Same — Same—Same.—The principle upon which an agreement for an extension of time discharges a surety is, that the creditor thereby deprives the surety of the means of relieving himself, by paying the debt and proceeding immediately against the principal; or by his filing his bill quia timet to compel the debtor to pay the debt; or by notice to the creditor under statute. The sureties cannot be discharged by an act which in no manner affected their rights, or impaired the remedies of the creditor. Adams v. Logan, 27 Gratt. 207, citing Price v. Edmunds, 10 Barn. & Cress. 578; Harnsberger v. Geiger, 3 Gratt. 144. See Dey v. Martin, 78 Va. 4.
    
   CABHHH, P.,

delivered the opinion of the Court.

The bond in this case was executed by Tapp as surety for Imboden, and at the time of its execution, it was payable twelve months after date. No valuable consideration passed from Peck, the obligee. On the contrary, it was executed solely for the accommodation of Imboden, the principal, and to enable him to raise money for his own benefit, by transferring it to Harns-berger. Accordingly, Imbo'den employed Peck, the obligee, to make the arrangement with Harnsberger. The evidence in the cause does not shew whether Harnsberger was informed or knew that the bond had been given without value, and for. the accommodation of the principal obligor. But whether he knew it or not, that was certainly the fact; and therefore, according to well established principles, -the instrument had no obligatory force, on any body, until it passed into the hands of Harnsberger, for value. But before the bond was thus' passed to him, a memorandum had been made thereon, *and signed by Peck, the obligee, to the effect that payment should not be enforced for three 3ears, provided the interest should be punctually paid at the expiration of each year. This memorandum, although signed by Peck only, was in fact the act of Imboden; for he himself wrote it, and Peck was nothing more than his agent in the transaction. It was also known to Harnsberger before he traded for the bond. Before he gave value for it, the bond, as before observed, had no obligatory force. It took effect as a bond from that time only; and as the memorandum for extending .the time of payment, was then upon the instrument, and signed by the obligee, and known to Harnsberger, that memorandum was part and parcel of the bond as taken by Harns-berger, and is supported by the same valuable consideration on which every other part of the bond rests. It was therefore obligatory upon Harnsberger, to the extent to which it purported to bind him. And if the agreement for the extension of the time of payment had been absolute and unconditional, it would, according to numerous decisions of this Court, have absolved the surety who had not assented to the agreement.

But the agreement was not absolute; there was a condition attached to it, namely, the punctual payment of the interest at the expiration of each year. This condition was not performed; for no interest was paid until many months after the expiration I of the first year. That the nonperformance of a condition, on the performance of which, the agreement to extend the time of payment depends, destroys the obligatory force of the agreement, and leaves the parties in the same situation, and with the same rights and obligations, as if the agreement had never been made, was decided in the case of Norris v. Crummy, 2 Rand. 323. The hands of Harnsberger, therefore, were never tied up, so as to prevent his suing the principal, as soon as he could have *sued him, if the agreement had never been made. The remedies of the surety were never impaired, and of, course his obligation to pay the bond, remained in full force.

The Court is farther of opinion, that the evidence is not sufficient to shew that the said bond was given for a usurious consideration.

The decree is therefore reversed, and the cause is remanded, to be farther proceeded in, according to the principles now declared.  