The opinon of the Court was delivered by

The rule is well settled, that mere forbearance, however prejudicial to the'surety. will not discharge him. It is his peculiar business to judge of the danger to be apprehended from delay, and to quicken the creditor, where the occasion requires it, in the way known to the law; in default of which, the loss incurred is necessarily to be attributed to his own supineness. Was there any thing beside forbearance here? A judgment is entered upon certain revenue bonds in 1819, on which there is no proceeding,but a still-born fieri facias till 1826, when the present scire facias is brought, anda general appearance entered for both défendants, one of whom (the principal) confesses judgment in person, on the 14th of August, in the same year. Previous to this, he has procured the assent of government, to an arrangement for payment of instalments; and on the 31st March, 1825, the Fifth *440Auditor df the Treasury* acting as Commissioner of the Revenue> and being further importuned for indulgence, instructs the attor^ ney of the United States tú admit of no change in the terms, but is induced on the 17th February following, to protract the time for payment of the first instalment: and this is the ground of the supposed equity. Now though an extention of the credit beyond the time mentioned in the contract, will undoubtedly discharge the surety, it is well established that a consent to forbear which does not tie up the creditor’s hands, will be attended with no such consequence, being in effect nothing more than forbearance in fact; and what was then to preclude the United States from proceeding at any moment here? The government made no agreement with any one, having merely acceded to an overture for indulgence on the score of humanity. Because the indulgence accorded was purely gratuitous; and even were the instructions of the Auditor evidence of a contract, it would be without eonsidei’ation. It is said the confession of judgment by the principal, was the consideration. That, however, was not stipulated as a condition, and it did not take place till six months afterwards. We have then a bare case of forbearance, at the instance of the principal, which in Todd v. Blair, decided by this court at Chambersburg, in 1827, was held to give the surety no equity. That case has not been reponed; but the facts were, that Todd was the bail of Irwin, in a recognizance to obtain the stay of execution allowed by law on a judgment obtained by Blair; who, to an application of Irwin for terms, answered thus: “I have spoken to Mr. Lyon (the attorney) not to urge the payment of the money now due me on the County docket by you and Mi-. Todd, before the first of September next, I have money to pay myself at that time, and can not give any further indulgence. I mention this to you, as you spoke to me a few days ago, to wait ten days or two weeks on you, and that you would make the money up without any more cost, which is certainly my wish.” And this being by sufferance, and Consequently nudum pactum, was held not to release the bail. Such then being the law of the case, it was error to submit to the jury, as an inquiry material to the merits, whether the jury had been prejudiced by the actual or supposed expiration of the creditor’s lien on the land of the principal, or by any other consequence of the creditor’s naked quiescence. In the Commissioners of Berks v. Ross, 3 Binney, 520, the surety was not discharged, though the creditor had waived his demand of special bail, in consequence of which the principal was enabled to flee to another state. That a loss from indulgence, which is purely permissive, will discharge a surety, is unsupported by authority, and in contradiction of the most obvious principles of justice; such a loss being fairly attributable to the surety’s own negligence, in omitting to warn the creditor to *441próceéd; without which he may not know that aloss is impending. Actual detriment is not the criterion, or a material ingredient. If the creditor has disabled himself, the surety is ipso facto discharged: if he has not, no eventual loss from mere delay, will produce that effect. In the case, therefore, as it appeared on the evidence, there was nothing to submit; and where the pretentions of a surety are put in contrast to a claim of the public, for whom no sympathy' is ever felt, it is indispensable to justice, that the jury be held strictly to the law and the evidence.

The objection to the admission of the letters is not sustained. The signature of the auditor was proved by one who had become familiar with it in a long correspondence with him; in addition to which the letters had been produced by the”attorney of the United States, to whom they were addressed, and we see no reason to doubt of the propriety of their admission.

Judgment reversed and a venire de novo awarded.