By the Court.
Benning, J.delivering the opinion.
Was the Court below right in refusing a new trial ?
That, of course, depends on whether any one of the grounds of the motion for a new trial was sufficient.
The first ground of that motion was, the refusal of the Court to give the requests in charge to the jury.
The first request was in substance, that, if an “arrangement” of the original debt was made by the agent of the holders of the debt, the effect was, to render John H. Wyley only a surety, although his name might appear as a principal.
[1.] Now the evidence as to this “arrangement” was such as to leave it doubtful, whether John H. Wyley was not to bear towards the holders of the debt the relation of principal, and not that of surety. See the answer of Augustus C, Wyley to the fourth direct interrogatory.
But if the evidence was such as to leave this doubtful, it is manifest, that for the Court to have told the jury as requested, that the arrangement, if made, would render Wyley only a surety, would have been wrong. What the Court ought to have done in such a case, it did: it called the attention of the jury to the character of the evidence, and left them to decide what the evidence proved. See the part of the charge relating to the third ground of illegality.
The second request went on the assumption, that there was something in the evidence to authorize the jury to believe, that some arrangement, i. e. pf course, some binding arrangement, was made by the holders of the note, and one *396of the makers of it, A Han, by which Allan -obtained indulgence on the note.
But, in truth, there was nothing in the evidence to authorize the jury to believe any such thing.
Besides, the request also tacitly assumes, that John C. Wyiey 'wag but a surety; and yet it was doubtful, as we have seen, whether he was not a principal.
A request to be good must have evidence to rest on.
As to the third request, there are two or three things to be said:
1st. The evidence hardly justifies a request, assuming that all the assets of Allan went into the hands of Stanford.
2d. But if it does, it dons not show, that they may not have properly gone into his hands. It may be, therefore, that they went, into his hands to satisfy some debt having precedence of this debt.
At least, it may be that they went into his hands to satisfy a debt of equal claim, or equity, with this. And if so, the effect ought not to be to “satisfy” this debt, unless at least, the assets were sufficient to satisfy both debts. And the evidence rather is, that the assets were not sufficient to satisfy both debts.
3d. It may well be doubted, whether in any case, the transfer could work a satisfaction of this debt at laio. And the proceeding was at law, being an affidavit of illegality.
As to the fourth request, there is this to be said: first, it, like the rest, assn mes that Wyiey was ouly “secondarily” liable: secondly, the evidence does not show whether the property bought by Stanford, was “first liable” to the judgment or not. The evidence does not show what was the nature ot the claim or right which Stanford had aeainst Allan, from whom he got the property.
The next ground taken in the motion, was that the charges were erroneous.
The charge was in three parts. The first part was, that the *397dismissal of. the levy by the plaintiffs in the fi.fa. did not extinguish the debt.
The levy was one on real property. The dismissal of a levy on real property by the plaintiff in Xhe fi.fa. does not extinguish the debt. Authority is not needed to establish this.
[2.] It is equally manifest, that the dismissal of such a levy, although it be on the property of the principal, cannot hurt the surety, for the lien of the judgment on the property remains unaffected, and the property being realty, cannot be removed, and the lien of the judgment is one to which the surety becomes entitled, the moment he pays the debt. 2d section of Act of 183Í, amendatory of an Act to define the liability of sureties. Cobb’s Dig. 595.
The first part of the charge, then, was not erroneous.
[3.] The second part of the-charge, was objected to, as being obnoxious to these words of the Act of 1850, to prevent Judges from making “certain charges,” &c., viz: “It. shall not be lawful for any or either of the Judges of the several Superior Courts of this State, in any Court whether civil or criminal, or in equity, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has o 4 been proved. Cobb's Dig. 452.
Rut we do net find that it is. It is very certain that the Court in this part of the charge docs not say that, one thing or mmihor has hvvn prom/. or not proved.
Tito seme remark may be unido as to the observation of the Co-**!, uttered “dudirg the progress” of the trial, and al Ac fian? when i< wr.c deciding a motion to dismiss the illegality., s- .pocially a» iho observation was called out by the ran.-.', of the motion, and the motion was a motion ruado by th“ p-wi/ excepting to the observation.
/ :.nl b is equally true., that this objection does not lie to the third ye A of the, charge; and this w.is the only objection nrr. I apa» .ni ihai part of the charge.
'Ado Court told the jury, that the testimony of Wyley, on - ; :ticuUr point, was open to two constructions ; and what *398they were• but it did not tell them which to take. What the Court told them was true, and it did hot amount to the expression, or the intimation of the Court’s opinion, as to which of the two constructions was the true one.
Upon the whole, we find no error in the charge. '
Nor do we think that the verdict was contrary to the evidence.
The result therefore is, that the judgment of the Court, refusing a new trial, must be affirmed.
Judgment affirmed.