delivered the opinion of the court, January 5th, 1885.
This judgment was entered for want of a sufficient affidavit of defence.
The first question is, was the plaintiff below entitled to a judgment, if no affidavit of defence had been made ? If he was not, the judgment for want of a sufficient affidavit of defence must be reversed, for in such ease no affidavit of defence' is required from the defendant: Gottman v. Shoemaker, 5 Norris 31; Strock v. Commonwealth, 9 Id. 272. The filing of one is no waiver of an objection to the sufficiency of the plaintiff’s affidavit of claim.
Rule 8 of the Common Pleas declares that, to entitle the plaintiff to a judgment for want of an affidavit of defence, he shall file with, or before, his declaration, a specification of the items of his claim, together with a statement of the facts necessary to support it, “ verified by affidavit.” Rule IB provides “ all affidavits required by these rules maj' be made by the party or his agent.” This clearly implies that the affidavit of claim shall be made by some person who has some knowledge of the facts to which he swears. If not made by the party, but by an agent, then the fact of his agency should in some manner, be averred in the affidavit. A mere stranger, in no manner connected with the party or with the case, and Avithout alleging any authority to act for the party, cannot make the affidavit required. The right of a trial by jury cannot be defeated by the act of a mere intruder.
A just administration of the law and a correct interpretation of the rules of court require us to hold that any person other than the party making the affidavit, shall, in some form, allege his agency or authority to so act.
In the present case the affidavit of claim was not made by the party. It is made by a person who does not therein allege any agency or authority to act for the party. It follows that *519tbe ease was not in a condition to demand any affidavit of defence.
This suit was against the plaintiff in error as surety for Vaters & Co., for the fulfilment of a contract between them, and the defendants in error. The former hired of the latter, for the term of two years, the labor and service of boys and girls, inmates of the Pennsylvania Reform School. They were to be employed in manufacturing light saddlery and harness goods in the workshops of said school, by Vaters & Co., who were to pay for the labor certain sums stipulated, payable quarterly. In said contract it is agreed, that on the failure of Vaters & Co. to pay any instalment due for labor performed thereunder, the other party “shall retain and keep in their possession all merchandise, goods and machinery and tools whatsoever,” which may be on the premises of said school at Morganza, belonging to said Vaters & Co. and hold the same as a pledge for the payment of such moneys as may be matured or become due, until the same be paid; and if not paid in a reasonable time, then to sell and dispose of the same either at public or private sale, and after paying from the proceeds all moneys owing them from Vaters & Co. and all costs and expenses, to pay over the residue, if any, to Vaters & Co.
In paragraph 6 of the affidavit of defence it is averred substantially that the personal property of Vaters & Co., on the promises at Morganza, which the plaintiffs below were bound to retain, sell, and apply the proceeds under the contract to the liquidation of any indebtedness thereon, was worth about $2000, and if the same had been properly sold, said sum would have been realized therefrom ; yet that they made no such application of the property or its proceeds, but on the contrary they caused the property to be levied on and sold at sheriffs sale, on an execution in a suit wherein they had recovered a judgment against Vaters & Co. on an entirely different matter, as appears by the record; and at said sale the property was sacrificed for about $463. How far these facts may be disproved, or their presumptive effect be removed, on the trial, we cannot now anticipate.
We must at present assume the facts to be as averred in the affidavit of defence. It thus appears that the contract of Vaters & Co., for the performance of which the plaintiff in error became surety, expressly declares, on the very contingency which has happened, the other party “ shall retain and keep in their possession ” the property specified, and sell and apply the proceeds thereof on this indebtedness to them. When the surety became bound, he saw the contract imposed this imperative obligation on the other party. It required Vaters & Co. to furnish in the workshops of the *520school all tools, machinery, and implements necessary to manufacture the goods named. The surety had a right to assume this property would be some substantial security to reduce the measure of his liability. If, in fact, in violation of the contract the Reform School appropriated this property to another separate and distinct debt to the damage of the surety, it may give the latter an equitable defence to the extent of that damage. It may be a question on the trial whether the property was sold in good faith, and according to the agreement, so as to produce the largest sum practicable, or whether it “was sold in such a manner as to unduly prejudice the rights of the surety.
It was well said by Mr. Justice Story, in Miller v. Stewart, 9 Wheat. 680: “Nothing can be clearer, both on principle and authority, than the doctrine that the liability'' of a surety is not to be extended by implication beyond the terms of his contract. To the extent, and in the manner and under the circumstances pointed out in his obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract, and if he does not assent to any variation of it, and a variation is made, it is fatal.” Any material variation of the contract with the principal discharges the surety: Tull v. Serrill, 1 W. N. C. 373. It ceases to be the contract for the fulfilment of which the surety became bound.
It is settled law, when a creditor has the means of satisfaction either actually or potentially in his hands, or within his control as security, and does not choose to retain it but relinquishes it, the surety is discharged:. Reed v. Garvin, 12 S. & R. 100 ; Everly v. Rice, 8 Harris, 297 ; Boschert v. Brown, 22 P. F. Smith 372.
The mere taking of promissory notes does not of itself create a legal presumption that thej^ were taken in satisfaction of a previously existing indebtedness, nor establish an agreement to give further time.
As the remaining several questions are stated, we discover no merit in them.
Judgment reversed, and a procedendo awarded.