By the Court.
Lumpkin, J.
delivering the opinion.
[1.] There was some confusion in the charge of the Court?' in submitting the law of this case to the Jury, resulting, perhaps, from the indistinctness of the proof. While a mere-agreement, on the part of Campbell & Co. not to collect the-residue of their debt out of Goodwin, would not be binding for want of consideration; and while the consent of Goodwin, that the overplus of the fund in the hands of Campbell' & Co. might be applied to the open account debt of theirs. against him, would not be a siffficient consideration, inasmuch as Goodwin was bound to pay all his debts — and this book account among the rest. Yet, if it was stipulated between Campbell & Co. and Goodwin that they might sell his land,., and putting his property in their hands for this purpose, and:, they to apply the proceeds — and they, in consideration thereof, undertook and bound themselves not to enforce the payment of the balance of the execution out of him, it would, in [419]*419the opinion of this Court, constitute a valid agreement which might be enforced, and which, if executed, would amount to a release of Goodwin, one of the co-defendants; and consequently, discharge Brown and Harris the other two.
But the proof as to this agreement, is too v-ague and indefinite. It is to be gathered, if at all, from inference only.
We see no objection to the competency of the witness, Montmollin.
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