1. The recognizance was taken on the first day of August 1859, and the affidavit and certificate to authorize the arrest were made on the 18th day of July 1859. The St. of 1857, c. 141, was then in force, and the directions of that statute were properly followed. The argument for the defendant, based on the provisions of the statute of 1860, has no application.
2. The affidavit, which states that “ the defendants,” naming them, “ has property,” &c. “ which he does not intend to apply,” is to be construed distributively, and as if it had said that “ each of the defendants has property.” There is a defect in grammar, but the sense is apparent.
3. The agreement with the principal debtor, which the defendant contends discharged him as surety on the recognizance, *74provided that the plaintiff would discharge the debtor, with whom it was made, from the execution, if certain payments were punctually made, reserving expressly the right to hold the surety. There is nc doubt of the correctness of the general doctrine, that a valid contract for giving time to the principal will discharge the surety. Boston Hat Manufactory v. Messinger, 2 Pick. 223. Greely v. Dow, 2 Met. 176. But there must be a valid contract, binding upon the creditor either in law or equity, in order that this consequence should follow. Here the giving of time was conditional upon the punctual payment, at a time fixed, of a part of a sum, the whole of which was absolutely due. This time was within the period appointed by the recognizance for the surrender of the debtor, so that the surety was not misled; and the condition was not performed. But further, and what is more material, the agreement was wholly without consideration, and neither gave the debtor any right nor created any obligation upon the creditor. It was a- mere gratuitous offer, that if a part were paid at "one time, the creditor would wait for the payment of the residue. It made no change in the legal or equitable relations of the parties, and ceased to be even a subsisting offer, before the position of the surety was in any respect altered. Under such circumstances, we are aware of no authority for holding the surety discharged, although no effect were given to the stipulation that his liability should not be affected. Judgment for the plaintiff.