
    SMITH v. RICHARDS.
    (Filed November 26, 1901.)
    
      RELEASE — Judgment—Contribution.
    "Where the costs of an action are adjudged against several plaintiffs and two of them pay the defendant their aliquot parts of the judgment and receive a receipt therefor not under seal, the receipt releases other plaintiffs who have paid no part of the judgment, of the part only in excess of their aliquot parts, and the defendant is entitled, to judgment therefor against them separately.
    ActioN by Jobu B. Smith against John Richards and others, heard by Judge O. H. Allen, at Spring Term, 1900, of the Superior Court of GastoN County. Erom a judgment for the defendants, the plaintiff appealed.
    
      O. F. Mason, and J. N. Holding, for the plaintiff.
    
      Jones & Tillett, for the defendant.
   Fubches, C. J.

This is an action against several defendants upon a former judgment for seven hundred and odd dollars — being the amount of costs in an action against the plaintiff, in which these defendants (plaintiffs in that action) had failed, and judgment was entered against them and in favor of the plaintiff in this action. Since the rendition of said judgment, two of the defendants have paid the plaintiff their aliquot parts, and the plaintiff gave them separate receipts therefor, as follows: “Received of W. S. Richards ninety-two. 94-100 dollars, for one-sixth the costs in a judgment rendered in the case of J. B. Richards et al. v. J. B. Smith, at Spring Term of the Superior Court, March, 1889. This is to release W. S. Richards in full of the costs of suit above mentioned. This 28th day of December, 1896. (Signed) John B. Smith.” The other receipt, to Fannie Rutledge and husband J. L. Rutledge, is the same substance as the above.

All tbe parties against whom judgment was rendered in the former action are made defendants in this action; and the defendants W. S. Richards and Eannie Rutledge and her husband J. L. Rutledge did not plead. But the other defendants answered and set up the above-mentioned receipt as a release and discharge of them from any liability on said judgment. This presents the only question in the case.

It seems that, originally, contribution between co-obligors was held to rest upon a moral obligation only, and Courts of Equity alone could enforce it. Moore v. Isley, 22 N. C., 372. But, at a later date, Courts of Law in many jurisdictions considered it a joint obligation in the nature of a contract, and actions at law were sustained when they were to recover only an aliquot part. Parsons on Contract (3d Ed.), 34 and 35. But where more than this was demanded on account of insolvency, or for other cause, it still remained a matter for the Courts of Equity, as Courts of Law could not adjust equities between the parties. But it seems probable the Courts of Law in this State still declined to take jurisdiction of matters of contribution, as we find that in 1807 the Legislature 'passed an act authorizing co-sureties to bring actions on the case in assumpsit for contribution. Sherrod v. Woodard, 15 N. C., 360, 25 Am. Dec., 714; sec. 2094 of The Code. But this act only applied to co-sureties, and, it would seem, left the law as to co-principals as before its passage. And whether this remained so or or not, under the divided jurisdiction, it is now so under the Constitution of 1868 and The Code. Russell v. Adderton, 64 N. C., 417; Dudley v. Bland, 83 N. C., 220; Craven v. Freeman, 82 N. C., 361. The rights of the parties may now be administered, whether legal or equitable in their nature. Russell v. Adderton and Dudley v. Bland, supra. And the rights of the defendants, as between themselves, may be adjusted and settled in an action against them. Parrish v. Graham, at this term.

This is not an action for contribution; that right does not arise at law or in equity until tbe co-obligor bas paid tbe money. And none bas been paid in tbis case by either of tbe defendants wbo are contesting tbe plaintiff’s right to recover. But tbe doctrine of contribution is involved, and it was necessary to consider it in determining tbe rights of tbe parties.

Tbe defendants contend that tbe payments of W. S. Richards and Rutledge and wife, and their discharge, was a discharge of them. It was admitted by defendant that tbe “receipt” was not a release, as it was not under seal. But it was ingeniously argued that tbe reason that a partial payment and receipt, stating that it was in full, were not a discharge, was because there was no consideration to support it beyond tbe amount paid; and that it was nudum pactum for all above tbe amount paid; whereas, a similar receipt under seal would be a discharge, because tbe seal imported a consideration. And it was argued that tbe act of 1874-5 (section 574 of Tbe Code) supplied tbe consideration, and a receipt now for a part was as effective as if it was under seal. Tbis is so in cases where tbe statute applies, but it seems to have no application to- tbis case.

Tbe receipt does not seem to have been intended as a compromise of tbe whole, nor of any part of the debt. It was a payment in full of tbe defendants’ aliquot parts of tbe judgment, and a discharge of tbe parties paying it from any further liability. And as these defendants are discharged from paying anything more, it is a discharge of tbe other four defendants from any liability beyond their aliquot parts — one-sixth each. Eor, as plaintiff could recover nothing more out of W. S. Richards and Rutledge and wife, these four defendants could recover nothing more out of them, as their rights depend upon tbe rights of tbe plaintiff Smitli and their right of subrogation.

We do not feel called upon to enter into a further discussion of tbe principles governing tbis case, as they have been so fully discussed in Russell v. Adderton and Craven v. Freeman, supra, and especially in Dudley v. Bland, supra.

It therefore follows that the plaintiff Smith is not entitled to judgment in solido against all the defendants; nor is he entitled to such a judgment for the unpaid balance against the four defendants who have paid him nothing on his former judgment; but that he is entitled to a judgment or decree against them separately for their aliquot parts, that is, against John Kichards for one-sixth, George Eichards for one-sixth, Sarah Summerrow and her husband H. M. Summer-row for one-sixth, Elizabeth Jenkins and husband for one-sixth. No right of contribution exists between them upon said judgment, nor is either of these defendants liable to the plaintiff for anything more than his judgment for the said one-sixth of the original debt.

There is error, and the judgment should be entered as .above indicated.

Error.  