Eccleston J.,
delivered the opinion of the court.
The important question in this case is, whether, by virtue of the arrangement, entered into between the plaintiff, the Wash[450]*450ington County Bank and R. Gilmor, in regard to the transfer of the judgment, recovered by the bank, against Brien and Grove, to Gilmor, Grove relinquished in favor of Gilmor, the interest from the date of the judgment to the 1st of June 1845, and which Grove had paid, as surety for Brien.
The agreement in evidence, which was signed by certain judgment creditors of Brien, clearly provides, that the parties shall assign their judgments, for the use of Gilmor, upon receiving from him the principal and costs, with the interest to the date of their judgments. Thereby giving up, for the benefit of Gilmor, all the interest, accruing between the date of the judgments and the time of the arrangement. Grove did not sign this agreement; but Neill, the witness, says, he agreed that the bank’s judgment should be assigned, and that he assented to the written agreement, between the judgment creditors and said Gilmor.” After which, the bank took Gilmor’s note for the principal, the costs and the interest, up to the date of the judgment, abating the portion of that interest paid by Grove. The bank agreeing, that when the note should be paid, the judgment was to be absolutely assigned to Gilmor, without recourse to the bank; that the same should be entered for his use, and that he should execute a release to Grove, of his joint liability for said judgment.
Gilmor then gave his note to Grove, for the amount of the interest paid by him, which had accrued prior to the date of the judgment. For which note Grove gave Gilmor a receipt, stating it to be for the “balance due on the settlement of the Washington county bank’s judgment, agreeably to the terms of compromise.”
■ When Grove assented to the arrangement, he said he was willing to .do so; and added, that Brien had promised to pay him the balance of the money, which he had paid to the Bank, after deducting the amount of Gilmor’s note. This declaration of Grove was brought out by the cross-examination of Neill, (the defendant’s witness,) and was part of a conversation introduced by the defendant.
[451]*451At the trial the plaintiff submitted three prayers, all of which were refused. And the defendant offered three also, which the court granted.
The first of the plaintiff’s prayers asked the court to instruct the jury, that under the facts in this case he was not precluded from recovering, unless they should believe he had relinquished, in favor of Gilmor, his claim against Brien for the payments made on the judgment of the bank.
This instruction was refused by the court. And in our opinion they were right in doing so.
In Ragan vs. Gaither, 11 G. & J., 479, the defendant set forth, in a prayer, certain portions of evidence, and asked an instruction upon them to the jury. The court refused the prayer, but instructed the jury “that upon the aforegoing statement of facts, the plaintiff is entitled to recover the whole amount of the purchase money.” On page 489 it will be seen that the Court of Appeals reversed this decision, because it assumed the truth of the facts, instead of submitting that question to the jury. The present prayer is obnoxious to a similar objection. It calls upon the court to say to the jury, “ that upon the facts in this case the plaintiff is not precluded from recovering,” unless they believe he has relinquished his claim. In other words, that the proof is sufficient to entitle him to a verdict, except upon the contingency stated. It takes from the jury their undoubted privilege, of deciding upon the truth of the evidence. In 2 Gill, 426 & ’7, (The Charleston Insurance and Trust Co. vs. Corner,) the Court of Appeals say, “Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side, does not authorise the court to direct the jury, that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right, to weigh the credibility of evidence.”
The second prayer of the plaintiff takes the position, that he was entitled, to a verdict if he “did assent to the assignment to Gilmor on the terms stated, as a surety in the judgment [452]*452assigned, and in order to authorize the bank to make the assignment, and compromise without discharging the plaintiff as a surety in the judgment,if the jury should believe he paid on the judgment the money claimed by him, which was never refunded.
Assenting to the arrangement with a view of authorising the bank to make the assignment and compromise, without releasing the plaintiff as surety, is not necessarily inconsistent with the idea, that in making the arrangement, the plaintiff did transfer all his interest and claim in the judgment, in such manner as to discharge Brien from all liability to him. The bank might have been unwilling to make the compromise without holding Grove ultimately bound, in the event of a failure on the part of Gilmor, to fulfil his engagements; and yet, for the purpose of effecting the arrangement even upon those terms, with a view of inducing Gilmor to take this judgment, Grove might very willingly have consented to the transfer of all his claim for interest. Especially when, by the terms, Gilmor was to release the plaintiff as surety, from a large claim, where the principal debtor was greatly embarrassed in his circumstances. And as there was evidence from which the jury might have drawn such a conclusion, the rejection of the prayer was not erroneous.
The third prayer of the plaintiff asked the court to instruct the jury, that if they should believe the plaintiff became a party to the compromise, and assented to the assignment of the judgment, he was not precluded from recovering, if they •should also believe that he became a party to the compromise, and assented to the assignment, with the understanding and condition, that he was to hold Brien responsible to him for the money paid by the plaintiff, and not refunded.
The terms of the written agreement, signed by the judgment creditors, are such, that if Grove assented to them and the bank came into the arrangement also, it follows, as a necessary consequence, that all his claim on account of the judgment was transferred to Gilmor; unless the parties agreed to qualify or alter, in some manner, the terms of the compro[453]*453misa. And what evidence is there of any such qualification or alteration? The fact that the promise alleged to have been made by Brien, was mentioned by Grove to Neill, (the agent of Gilmor,) cannot be considered as an understanding, that the interest paid by Grove, was not to he transferred, with the residue of the judgment, to Gilmor. It was at the very time when Grove assented to the compromise, by the terms of which, each entire judgment was to he assigned. If he intended to retain his claim for the interest, and it was the understanding between him and Gilmor’s agent, that he should do so, notwithstanding the written agreement, there was no manner of use in saying that Brien had promised to pay, because the claim, in that condition of things, -would have been good without the promise. The reference to this promise seems to confirm, and not to militate against, the intention of the parties, that Gilmor was to he entitled to the interest paid by Grove.
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Eccleston J.,
delivered the opinion of the court.
The important question in this case is, whether, by virtue of the arrangement, entered into between the plaintiff, the Wash[450]*450ington County Bank and R. Gilmor, in regard to the transfer of the judgment, recovered by the bank, against Brien and Grove, to Gilmor, Grove relinquished in favor of Gilmor, the interest from the date of the judgment to the 1st of June 1845, and which Grove had paid, as surety for Brien.
The agreement in evidence, which was signed by certain judgment creditors of Brien, clearly provides, that the parties shall assign their judgments, for the use of Gilmor, upon receiving from him the principal and costs, with the interest to the date of their judgments. Thereby giving up, for the benefit of Gilmor, all the interest, accruing between the date of the judgments and the time of the arrangement. Grove did not sign this agreement; but Neill, the witness, says, he agreed that the bank’s judgment should be assigned, and that he assented to the written agreement, between the judgment creditors and said Gilmor.” After which, the bank took Gilmor’s note for the principal, the costs and the interest, up to the date of the judgment, abating the portion of that interest paid by Grove. The bank agreeing, that when the note should be paid, the judgment was to be absolutely assigned to Gilmor, without recourse to the bank; that the same should be entered for his use, and that he should execute a release to Grove, of his joint liability for said judgment.
Gilmor then gave his note to Grove, for the amount of the interest paid by him, which had accrued prior to the date of the judgment. For which note Grove gave Gilmor a receipt, stating it to be for the “balance due on the settlement of the Washington county bank’s judgment, agreeably to the terms of compromise.”
■ When Grove assented to the arrangement, he said he was willing to .do so; and added, that Brien had promised to pay him the balance of the money, which he had paid to the Bank, after deducting the amount of Gilmor’s note. This declaration of Grove was brought out by the cross-examination of Neill, (the defendant’s witness,) and was part of a conversation introduced by the defendant.
[451]*451At the trial the plaintiff submitted three prayers, all of which were refused. And the defendant offered three also, which the court granted.
The first of the plaintiff’s prayers asked the court to instruct the jury, that under the facts in this case he was not precluded from recovering, unless they should believe he had relinquished, in favor of Gilmor, his claim against Brien for the payments made on the judgment of the bank.
This instruction was refused by the court. And in our opinion they were right in doing so.
In Ragan vs. Gaither, 11 G. & J., 479, the defendant set forth, in a prayer, certain portions of evidence, and asked an instruction upon them to the jury. The court refused the prayer, but instructed the jury “that upon the aforegoing statement of facts, the plaintiff is entitled to recover the whole amount of the purchase money.” On page 489 it will be seen that the Court of Appeals reversed this decision, because it assumed the truth of the facts, instead of submitting that question to the jury. The present prayer is obnoxious to a similar objection. It calls upon the court to say to the jury, “ that upon the facts in this case the plaintiff is not precluded from recovering,” unless they believe he has relinquished his claim. In other words, that the proof is sufficient to entitle him to a verdict, except upon the contingency stated. It takes from the jury their undoubted privilege, of deciding upon the truth of the evidence. In 2 Gill, 426 & ’7, (The Charleston Insurance and Trust Co. vs. Corner,) the Court of Appeals say, “Doubtless the jury would have found these facts according to the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side, does not authorise the court to direct the jury, that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right, to weigh the credibility of evidence.”
The second prayer of the plaintiff takes the position, that he was entitled, to a verdict if he “did assent to the assignment to Gilmor on the terms stated, as a surety in the judgment [452]*452assigned, and in order to authorize the bank to make the assignment, and compromise without discharging the plaintiff as a surety in the judgment,if the jury should believe he paid on the judgment the money claimed by him, which was never refunded.
Assenting to the arrangement with a view of authorising the bank to make the assignment and compromise, without releasing the plaintiff as surety, is not necessarily inconsistent with the idea, that in making the arrangement, the plaintiff did transfer all his interest and claim in the judgment, in such manner as to discharge Brien from all liability to him. The bank might have been unwilling to make the compromise without holding Grove ultimately bound, in the event of a failure on the part of Gilmor, to fulfil his engagements; and yet, for the purpose of effecting the arrangement even upon those terms, with a view of inducing Gilmor to take this judgment, Grove might very willingly have consented to the transfer of all his claim for interest. Especially when, by the terms, Gilmor was to release the plaintiff as surety, from a large claim, where the principal debtor was greatly embarrassed in his circumstances. And as there was evidence from which the jury might have drawn such a conclusion, the rejection of the prayer was not erroneous.
The third prayer of the plaintiff asked the court to instruct the jury, that if they should believe the plaintiff became a party to the compromise, and assented to the assignment of the judgment, he was not precluded from recovering, if they •should also believe that he became a party to the compromise, and assented to the assignment, with the understanding and condition, that he was to hold Brien responsible to him for the money paid by the plaintiff, and not refunded.
The terms of the written agreement, signed by the judgment creditors, are such, that if Grove assented to them and the bank came into the arrangement also, it follows, as a necessary consequence, that all his claim on account of the judgment was transferred to Gilmor; unless the parties agreed to qualify or alter, in some manner, the terms of the compro[453]*453misa. And what evidence is there of any such qualification or alteration? The fact that the promise alleged to have been made by Brien, was mentioned by Grove to Neill, (the agent of Gilmor,) cannot be considered as an understanding, that the interest paid by Grove, was not to he transferred, with the residue of the judgment, to Gilmor. It was at the very time when Grove assented to the compromise, by the terms of which, each entire judgment was to he assigned. If he intended to retain his claim for the interest, and it was the understanding between him and Gilmor’s agent, that he should do so, notwithstanding the written agreement, there was no manner of use in saying that Brien had promised to pay, because the claim, in that condition of things, -would have been good without the promise. The reference to this promise seems to confirm, and not to militate against, the intention of the parties, that Gilmor was to he entitled to the interest paid by Grove. He agreed to the compromise adopted by the other creditors, did not require Gilmor’s agent to ■consent to any limitation or restriction of its terms, but simply spoke of Brien’s promise to pay him. In addition to -which, Gilmor’s note for the interest prior to the date of the judgment, and Grove’s receipt for the same, as “being the balance due on the settlement of the Washington County Bank’s judgment, agreeably to the terms of compromise,” strongly tend to prove that Gilmor was to have that judgment upon the same terms he was to take the others. And if so, then, notwithstanding Brien may have promised to pay the plaintiff the interest, such a promise was without consideration and void. Brien could not be bound to Gilmor and Grove, both, for the same sum. If, therefore, the promise was void for want of consideration, it must be treated as though it had never been made, so far as regards the responsibility of the appellee’s intestate. And this being the only evidence relied upon to prove an understanding or condition, that Grove was to hold Brien bound to him for the interest; there is nothing on which the court were authorised to submit to the jury the question, whether the plaintiff became a party to the compro[454]*454mise, and assented to the assignment, with the understanding and condition, that he was to hold Brien responsible to him for the money paid on the judgment by the plaintiff, and not refunded to him. And as this constitutes a part of the plaintiff’s third prayer, the same was properly rejected by the court.
Matters similar to those embraced in the first prayer of the defendant, have been spoken of in the previous part of this opinion, except that portion of it which relates to the state of the docket in regard to the judgment, the absence of any credits, and there being no stipulation or agreement that the payments should be credited. We shall therefore confine ourselves, at present, to this part of the prayer.
When a surety pays part of a judgment, it gives him an equitable interest in the judgment to that extent, and the payment does not operate as a credit in favor of, or as a discharge to, the principal, as against the surety, unless with his consent. So far from any evidence of such consent or intention in this case, Grove actually received from Gilmor, the interest which accrued prior to the date of the judgment. A partial payment by a surety does not operate as an assignment to him, pro tanto, so as to enable him to exercise any control over the judgment or execution. The original creditor having that power until he is fully satisfied. 2 H. & G., 91, Hollingsworth vs. Floyd. But the surety, possesses an inchoate equitable interest, to the extent of his payment, which may be released or transferred. And there being no credit entered upon this judgment, and no evidence of any stipulation that the payments made by Grove should be so credited or entered, a transfer of the judgment, by the bank, with the consent and approbation of Grove, would pass all his interest in the, same.
We think the court were right in giving the instruction, that if the juiy should believe the judgment of the bank against Brien and Grove was bargained and sold by the bank, with the assent of Grove, to Gilmor, according to the terms of the said compromise, and that at the time of such bargain and sale, the said judgment stood open upon the docket, that [455]*455neither of the sums paid to the bank by Grove had been credited upon the judgment; and if the jury should further believe that there was no stipulation or agreement between the parties to the arrangement, that the said payments should be so credited on the judgment, that then Gilmor or his representatives, were entitled to an assignment of the said judgment for the whole amount thereof, and without such credits being entered thereon. That Brien being liable under such circumstances, to Gilmor, for the whole of said judgment, a positive promise of Brien, to pay Grove any portion of the money paid by him would be void, and no action could be maintained upon such promise.
To discuss the positions taken in the second and third prayers of the defendant, would he a repetition of what has been previously said, and therefore we shall only express our approbation of the opinions given on those prayers, in the court below.
Judgment affirmed,