The objection to the deposition of Childs, because the interrogatories were leading, could not be made’ at the trial of the cause. There is no difference in this respect, between evidence taken by deposition, and the oral examination of the witness in court. In either case, the objection must be made when the question is propounded to the witness, or it will be considered as waived. [Towns & O’Brien v. Alford & Butler, 2 Ala. 378.]
The objection to the release is alike ineffectual. It was proved to have been in fact made, before the witness was examined, and from his deposition, that he knew it had been made, and the fact that it is found on 'file among the papers in the cause, is at least prima facie evidence of its delivery.
The objection to the witness, because of his bankruptcy, is founded upon the idea, that to render him competent, he should have released his interest to the assignee. The effect of his testimony in this case, was not to relieve his estate from the payment of a debt, and thus to increase his interest in the surplus, if any, because if by the aid of his testimony, the sureties should avoid the payment to the creditor, the debt would still be due from the principal debtor, and would *592consequently remain a charge upon the estate. Independent however of this consideration, the question appears to be settled by the express terms of the bankrupt act. The fourth section declares, that “ the discharge and certificate, when duly granted, shall in all courts of justice, be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are proveable under this act, and shall, and may be pleaded as such,” &c. To ascertain therefore whether a bankrupt is discharged from a debt, contract, or engagement, it is only necessary to inquire whether it was “ proveable” under the act.
The fifth section is devoted to this subject, and provides that “ all creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry, and respon-dentia bonds, holders of policies of insurance, sureties, in-dorsers, bail, or other persons having uncertain, or contingent demands against such bankrupt, shall be permitted to come in, and prove such debts, or claims, under this act, and shall have a right, when their debts and claims become absolute, to have the same allowed them,” &c. It is impossible not to see, that the design of the act was, to absolve the bankrupt from all his debts, engagements and contracts, whether due at the bankruptcy or not; or whether absolute or depending on some further contingency. It is not left to speculation or conjecture, whether the contract of a surety, which had not been enforced at the time the bankrupt took the benefit of the act, is included in the list of contracts, which the bankrupt is discharged from. As a general rule, it is certainly true, that until the surety pays the debt of his principal, he has no demand upon him; or, to speak with more precision, the relation of debtor and creditor does not subsist between them until such payment; but by the express terms of this act, the surety is permitted to come in, and prove his liability to pay, as a debt, and being proveable under the act, the bankrupt is discharged from it. From this view it appears, that the bankrupt had no interest whatever in this controversy between his former creditor, and his sureties, being alike discharged from the claims of both.
The question arising upon the exclusion of the note offered in evidence, and of the charges given and refused, present *593some embarrassment, from the manner in which they are presented upon the record.
There is some difficulty in ascertaining, what the contract was, which the witness, Childs, deposed to, whether he meant to state that there were two contracts for delay — one by which sixteen per cent, per annum, was paid in money for delay, and and a subsequent agreement for which a note was executed — or whether there was but one agreement; and if so, whether any portion of the money agreed to be given for the delay, was in fact paid when the agreement was executed. Nor was any question expressly made in the court below, so far as we can judge from the record, as to the true nature of the contract, whether it was usurious, or upon sufficient consideration or not.
The two first charges moved for by the plaintiffs, assume, that although a note for fifty dollars was executed by the debtor for delay, without the consent of the sureties, that it will not absolve them from liability unless the note was paid. These charges the court refused to give, and in the last charge affirmed the converse of this proposition to be the law. This is certainly correct, assuming the contract to be valid, and upon sufficient consideration, which the proposition as put, appears to admit. Upon the execution of such a con. tract, the sureties would be immediately discharged, whether it was ever performed or not.
The court was however asked to charge the jury, upon all the evidence in the cause, and to instruct them, that if they believed it, the defendants were not entitled to a verdict. As the testimony was almost entirely documentary, and all introduced by the defendants, no objection exists to asking such a charge; and the question arises, what is the testimony proved in the cause. Although the testimony of Childs is somewhat ambiguous, we think the fair interpretation of it is, that there was but one contract made for the delay, and that Childs agreed to allow sixteen per cent, per annum for this indulgence. It is true, in one part of his deposition he says, u I paid Gunter sixteen per cent to wait with me twelve months, and upon that consideration he did wait with me twelve months.” He adds, in the same sentence, “I executed my *594note to him for the same per cent, to wait with me twelve months longer, he agreed to do.” But in answer to the next question, whether any time had intervened after the note became due, within which suit could not have been brought, he says, “ In consideration of the above payment of sixteen per cent, said Gunter verbally promised me that he would not sue on the note.”
It seems necessarily to follow from this, that there was but one suspension of the right to sue, and this is confirmed by the admission of the plaintiff, Gunter, brought out by the defendants, that Childs had executed to him anote for fifty dollars, to extend the time of payment for one year. It appears to us, the just interpretation of this testimony is, that when the witness speaks of paying sixteen per cent, he means it was secured by the note he executed; but this note it appears was but for fifty dollars, which would be but about eight per cent, on the amount of the debt, which added to the interest up on the debt secured also by note, would make the sixteen per cent. It is difficult to suppose, that Childs would have spoken in this ambiguous manner, when his attention was particularly directed to it, if in fact he had made two successive agreements for delay, one of which was obtained by the payment of money, and the other secured by a note.
In this view of the case, the question arises, whether a promise by the debtor, to pay the creditor usurious interest for delay, is such a contract as will release the sureties. We have met with but few cases precisely in point, but it appears to us, that an agreement which the creditor cannot enforce, but at the pleasure of the debtor, is not such a contract as will discharge the sureties. A contract without consideration will not have this effect, because the debtor cannot enforce it, and the reason is precisely the same when it is unavailing to the creditor. All the authorities agree, that a contract for delay between the debtor and creditor, which will absolve the sureties from payment of the debt, must be a valid, binding contract, which will disable the creditor from suing, during the period stipulated. Yet it is perfectly clear, that this contract did not prevent the creditor from disregarding his promise, and suing for the debt immediately, because the contract for the delay was absolutely void.
*595In the cases of Tudor v. Goodloe, 1 B. Monroe, 322, and Pykes v. Clarke, 3 Id. 262, this precise point was so determined — that a promise by the debtor to the creditor to pay him usurious interest for delay, did not discharge the surety; and also in Wilson v. Langford, 5 Humph. 320.
If the money had been in fact paid by the debtor, instead of a promise to pay it merely, the case would be different. There would then have been a consideration for the delay, and it would not have lain in the mouth of the creditor to say, that it was an illegal one. Being an executed contract, it would be obligatory on him, as one of the parties to it.
As it respects the proposition of the plaintiffs, to introduce the note of Childs for <|50, it is very clear, that after the defendants had introduced the admissions of the plaintiffs, that such a note had been received by them from Childs, they had the right to introduce the note itself, and it was for the jury to say, whether it was the note referred to by the witness, or not. The possession of the note by the plaintiffs, was cogent testimony to prove that the usurious interest promised for the delay had not in fact been paid.
We have already remarked, that the testimony is not so certain as it is desirable that it should be, and if we have mistaken it, it can be rendered certain upon another trial, and as the cause would at all events have to be reversed, upon the last point considered, the defendants cannot be injured by the view taken of the testimony if incorrect.