delivered the opinion of the court.

In this case, the scire facias recited that Alexander Caldwell, a3 administrator of James Caldwell, had previously recovered a judgment against William Muldrow for seven thousand five hundred dollars debt, and twelve hundred and fifty-seven dollars and fifty cents damages, together with costs. That on the 17th of September, 1841, the letters of said Alexander Caldwell were revoked, on presentation of the will of the said James, and letters of administration, with the will annexed; were granted to Joseph Caldwell — and Muldrow was summoned to show cause why the. judgment should not revive in the name of the said Joseph, together with execution &c.

The substance of the testimony upon the trial was, that the judgment originally recovered against Muldrow was on the joint note of defendant, John McKee, William Wright and Uriel Wright, the last of whom were then insolvent. That on the 25th of September, 1843, .the said John McKee assigned to James Caldwell (the deceased) an award of arbitration in his favor, against Ezra Stiles Ely, ior the sum of about eighteen thousand dollars, with the understanding between the said McKee and Caldwell that the latter should collect the whole debt, if practicable, of Ely, and have for his trouble and expense in, doing so, all over and above the sum which might be sufficient to discharge the debt dué by himself, Muldrow and the Wrights, and with the further understanding, (“in honor,”) between Caldwell and McKee, that the latter was *525never more to be molested on account of said debt. This assignment was made with the knowledge and assent of Muldrow, by whom, as well as others, it was fully understood that “no party was released by the papers,”

This being the substance of the testimony, as we .gather it from the bill of exceptions, the defendant, by his counsel, asked the court to decide the law to be as follows :

1. If it appear from the evidence that the defendant and John McKee were jointly liable to the plaintiff for the debt now in controversy, and that in September, 1843, the plaintiff and John McKee entered into an agreement each with the other, whereby, in consideration that McKee would assign, transfer and set over to plaintiff, a certain award rendered by Messrs. Carty Wells and Samuel T. Glover, in favor of said McKee and against E. S. Ely, for 18,160 dollars and 81 cents, reserving •thereupon 500 dollars due to Wells and Glovér, and also a deduction of about 750 dollars to E. S. Ely; and also that he would assign and transfer in like manner all his (said McKee’s) right of action, of whatever kind he had against any of the members of the late Marion City Company, said plaintiff would accept and receive the same in satisfaction and discharge of his (said McKee’s) liabilities for said joint debt; and that in pursuance to said agreement said McKee did then and there assign, transfer and set over the said hward, and the said rights of action to said plaintiff, and that plaintiff did receive and accept said transfer and assignments, in full satisfaction and discharge of the liabilities of said McKee for said joint debt, that this discharges the defendant as well as McKee of all liability for said debt, unless the court shall believe, from the evidence, that the defendant, knowing of the discharge of McKee, consented to continue separately bound for said debt, notwithstanding the discharge.

2. Although the court may believe from the evidence that the defendant was present at the time of the negociation of the discharge of McKee, yet his being so present, and making no objection to the discharge of his creditor McKee, will not warrant the court in finding that the defendant consented to continue separately bound.

3. In order that the defendant shall continue separately bound for the joint debt, notwithstanding the discharge of McKee, (one of the joint debtors,) it must appear affirmatively, by the evidence, that at the time of the discharge, with a full knowledge thereof, he consented to remain separately bound for the debt.

The court having overruled this motion, the defendant excepted, and after judgment for the plaintiff properly preserved the point in his mo*526,tion for a new trial, which being also overruled he has brought the case here.

We think the court might safely have given these instructions, and have found the same verdict it did, on the ground that although they state the law properly enough, where abstractly considered, the hypothesis upon which they proceed has no sufficient foundation in the facts of this case. We think, therefore, that the court did better to refuse the instructions, for the reasons stated, and that its judgment was a proper one, in view of the facts upon which it was founded, and the law legitimately governing their application. In short, the view we have taken of the whole case is so perspicuously and so fairly presented in the prints which are made, and in the authorities which are referred to, by the counsel for the appellee, that we would deem it unnecessary and redundant either to copy or enlarge upon them.

The judgment of the court of Commons Pleas is therefore affirmed.