A new trial must be ordered, in consequence of the instructions that were given to the jury. They should have been instructed, we think, as follows: If Mills carried the money to the plaintiff, and would have paid it to him, on his requiring payment, but the plaintiff thereupon made an agreement with him, without the consent or knowledge of his sureties, that he might keep back the money for a time, and pay his own debts with it, and if he did so, then the sureties had a good defence. And we are of opinion that the jury would have been warranted in finding all these facts on Mills’s testimony. At least, it was for them to decide what inferences of fact might or might not be properly deduced from that testimony.

The argument for the plaintiff is, that he did not give time to Mills by an obligatory agreement which deprived him of the power .of immediately suing on the bond; Orme v. Young, Holt N. P. 84; nor by an agreement for the breach of which Mills would have had a remedy either in law or equity; Greely v. Dow, 2 Met. 176; and therefore the sureties are not discharged. Pitman on Prin. & Surety, 167 & seq. But we think this doctrine is not applicable to the present case. No time for the payment of the collected taxes was mentioned in *506the condition of the bond; so that the agreement of the plaintiff with Mills was not, in strictness, an agreement to extend the time of payment. It was, in effect, a lending of money to Mills, to be used for his own purposes, for the payment of which the sureties on the bond did not undertake. Whether such an agreement between the treasurer and collector-would have exonerated the sureties, if the bond had been given to the town, as it ought to have been, instead of the treasurer, it is not necessary to inquire.

New trial in this court.