McDonald J.,
By the Court. delivering the opinion.
The plaintiff is attempting to revive a dormant judgment against the defendants. The plea sets forth the defence fully. The evidence of the defendants supports the plea, and the reply of the plaintiff by proof, presents matter of evidence on which he relies to defeat the effect of the plea. The plaintiff insisting that the plea was insufficient in law to bar the plaintiff’s action, demurred to it. The Court below overruled the demurrer, and the judgment on the demurrer is excepted to and assigned as error.
The parties proceeded to trial, and after the evidence was heard, the presiding Judge charged the Jury that, under the proof, the plaintiff was not entitled to recover. The plaintiffs counsel excepted to the charge and assigned error thereon.
[1.] In determining the points presented in the record, it will be necessary to construe the contract of the parties. The plaintiff recovered, on the first trial of the action of trover, twelve hundred dollars, which might be discharged b3r the delivery of the negro sued for, and three hundred dollars for hire. From that verdict the defendant appealed, and gave Asa Bates as security. Ayer was the sole defendant in the action of trover. An appeal would give him a new trial, to which he was entitled, as a matter of right, on his paying costs and giving security for the eventual condemnation money. Bates was the security. To use terms applied to such cases in the French law, the principal obligation was Ayer’s, and that of Bates ivas accessary to it. The entire [292]*292obligation was therefore Ayer’s. The obligation of Bates was for the whole or part, according to circumstances. If Ayer paid no part, and could pay no part, Bates was bound to pay the whole, and Ayer became bound to him for the whole amount on his payment of it. If Ayer paid a part, but could not pay the whole, Bates was bound to pay the part unpaid by him, and he became liable to Bates for that part on his (Bates’) payment of it. Bates did not and could not become liable to Ayer for the part paid by him. Although the obligation was joint and several as to the plaintiff, and he was entitled to an execution against one or both at his option, still the relation of principal and surety subsisted beUveen the defendants, and the plaintiff was bound to regard it in his dealings with them. The principle of contribution did not apply, for if Ayer had paid the whole, he •could not call on Bates to respond for any part, while, if Bates had paid, he had a right to demand of Ayer all he paid. Hence, it follows, that the whole and every part of the obligation was Ayer’s; he could not'avoid its payment either to the plaintiff or to Bates. This is 'the construction of the contract.
[2.] We will now proceed to considerthe effect of the payment -made by A. K. Ayer, the principal. The plaintiff) as evidenced by the receipt, received of him, naming him as principal, the amount of one-half of the Ji. fa., his part in full of said fi. fa. If his part was the whole of said fi. fa., and the plaintiff received one-half in full of his part thereof, it was a receipt of one-half in full of the whole. Now, if the plaintiff is not, at liberty to treat this arrangement as a nude fact, he cannot proceed to collect the balance claimed by him, and the judgment must be considered as satisfied, and cannot be revived.
[3.] The case of Fitch vs. Sutton was cited by plaintiff’s counsel in support of his position, that the acceptance of half of the judgment cannot, in law, be a satisfaction of the whole, and that case supports him. The Court held that there must [293]*293be some consideration for the relinquishment of the residue. The Judge who tried the cause at the Assizes, directed the jury to find for the defendant. He.was of opinion that, upon principle, the settlement made by the parties whs valid and binding. ■ Jf the statement of the case be correct, it is to be inferred from it, that the 7s. in the pound for which the debt- or compounded with his creditors, was paid at the time. That it was an executed contract.' It seems, that in the case relied on as authority to support it, Cumber vs. Ware, to which I have not access, the defendant pleaded the acceptance by the plaintiff of a security for a lesser sum in satisfaction of a similar security for a greater. An action at law cannot be supported by a nudum pactum. That is clear. If the defendant could not have sustained an action on the subject matter of his plea, it being an executory contract, he would not avail himself of it as a defence, for the plaintiff, by replying a want of consideration, would, as to the plea, convert the defendant into a plaintiff. 2 Burn, and East, 24.
The case of Heathcote vs. Crookshanks is not an authority for Fitch vs. Sutton. There the debtor compounded with his his creditors, and agreed to pay a less sum for a greater, which the creditors agreed to accept, the same to he paid in a reasonable time. When the debtor offered to pay subsequently, and, as he averred, in a reasonable time, the creditor refused to accept the smaller sum, and by his plea the defendant asks to be permitted to enforce the agreement The Court says he cannot do it because it is a nudum pactum. There is no consideration for it. In delivering his opinion, Ashurst, Justice says: "It is true, that if A. promise to give B. ¿815 and he actually pays it, he cannot recover it back again; hut here the question is, whether an agreement by the plaintiff to take a less sum is obligatory without acceptance. It is said that a tender is, in all cases, equivalent to a payment; but that is not so; for if a tender be pleaded in bar of a promise, it is no't taken as a payment, but as a bar to the action. This [294]*294agreement is not binding in law, and the plaintiff is always entitled to the whole demand. And, therefore, as this agreement has not been followed up by an actual acceptance, which is negatived by the record, it was not obligatory Justice Suffer remarked in the same case: “ It was said that all the creditors were bound by this agreement to forbear; but that is not stated by the plea. It is only alleged that they agreed to take a certain proportion; but that is nudum pactum, unless they had afterwards accepted it.” It follows, that if the plaintiff had accepted the smaller sum when tendered, ho would have been bound by it.
in the case of Silver vs. George, 1st OampbelFs Rep., 392, the defendant gave in evidence a receipt in fuff of all demands. Against this defence it was proposed to prove that before the date of the receipt, the plaintiff’had assigned the whole of his effects for the benefit of his creditors; that the defendant had full notice of the assignment; that in reality no money passed upon the giving of the receipt; that the whole was a collusion between them to cheat the creditors; that the action was brought in the name of the plaintiff by the trustees, in behalf of themselves and other creditors. Lord Ellenborough, who delivered the opinion in Fitch vs. Sutton,
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McDonald J.,
By the Court. delivering the opinion.
The plaintiff is attempting to revive a dormant judgment against the defendants. The plea sets forth the defence fully. The evidence of the defendants supports the plea, and the reply of the plaintiff by proof, presents matter of evidence on which he relies to defeat the effect of the plea. The plaintiff insisting that the plea was insufficient in law to bar the plaintiff’s action, demurred to it. The Court below overruled the demurrer, and the judgment on the demurrer is excepted to and assigned as error.
The parties proceeded to trial, and after the evidence was heard, the presiding Judge charged the Jury that, under the proof, the plaintiff was not entitled to recover. The plaintiffs counsel excepted to the charge and assigned error thereon.
[1.] In determining the points presented in the record, it will be necessary to construe the contract of the parties. The plaintiff recovered, on the first trial of the action of trover, twelve hundred dollars, which might be discharged b3r the delivery of the negro sued for, and three hundred dollars for hire. From that verdict the defendant appealed, and gave Asa Bates as security. Ayer was the sole defendant in the action of trover. An appeal would give him a new trial, to which he was entitled, as a matter of right, on his paying costs and giving security for the eventual condemnation money. Bates was the security. To use terms applied to such cases in the French law, the principal obligation was Ayer’s, and that of Bates ivas accessary to it. The entire [292]*292obligation was therefore Ayer’s. The obligation of Bates was for the whole or part, according to circumstances. If Ayer paid no part, and could pay no part, Bates was bound to pay the whole, and Ayer became bound to him for the whole amount on his payment of it. If Ayer paid a part, but could not pay the whole, Bates was bound to pay the part unpaid by him, and he became liable to Bates for that part on his (Bates’) payment of it. Bates did not and could not become liable to Ayer for the part paid by him. Although the obligation was joint and several as to the plaintiff, and he was entitled to an execution against one or both at his option, still the relation of principal and surety subsisted beUveen the defendants, and the plaintiff was bound to regard it in his dealings with them. The principle of contribution did not apply, for if Ayer had paid the whole, he •could not call on Bates to respond for any part, while, if Bates had paid, he had a right to demand of Ayer all he paid. Hence, it follows, that the whole and every part of the obligation was Ayer’s; he could not'avoid its payment either to the plaintiff or to Bates. This is 'the construction of the contract.
[2.] We will now proceed to considerthe effect of the payment -made by A. K. Ayer, the principal. The plaintiff) as evidenced by the receipt, received of him, naming him as principal, the amount of one-half of the Ji. fa., his part in full of said fi. fa. If his part was the whole of said fi. fa., and the plaintiff received one-half in full of his part thereof, it was a receipt of one-half in full of the whole. Now, if the plaintiff is not, at liberty to treat this arrangement as a nude fact, he cannot proceed to collect the balance claimed by him, and the judgment must be considered as satisfied, and cannot be revived.
[3.] The case of Fitch vs. Sutton was cited by plaintiff’s counsel in support of his position, that the acceptance of half of the judgment cannot, in law, be a satisfaction of the whole, and that case supports him. The Court held that there must [293]*293be some consideration for the relinquishment of the residue. The Judge who tried the cause at the Assizes, directed the jury to find for the defendant. He.was of opinion that, upon principle, the settlement made by the parties whs valid and binding. ■ Jf the statement of the case be correct, it is to be inferred from it, that the 7s. in the pound for which the debt- or compounded with his creditors, was paid at the time. That it was an executed contract.' It seems, that in the case relied on as authority to support it, Cumber vs. Ware, to which I have not access, the defendant pleaded the acceptance by the plaintiff of a security for a lesser sum in satisfaction of a similar security for a greater. An action at law cannot be supported by a nudum pactum. That is clear. If the defendant could not have sustained an action on the subject matter of his plea, it being an executory contract, he would not avail himself of it as a defence, for the plaintiff, by replying a want of consideration, would, as to the plea, convert the defendant into a plaintiff. 2 Burn, and East, 24.
The case of Heathcote vs. Crookshanks is not an authority for Fitch vs. Sutton. There the debtor compounded with his his creditors, and agreed to pay a less sum for a greater, which the creditors agreed to accept, the same to he paid in a reasonable time. When the debtor offered to pay subsequently, and, as he averred, in a reasonable time, the creditor refused to accept the smaller sum, and by his plea the defendant asks to be permitted to enforce the agreement The Court says he cannot do it because it is a nudum pactum. There is no consideration for it. In delivering his opinion, Ashurst, Justice says: "It is true, that if A. promise to give B. ¿815 and he actually pays it, he cannot recover it back again; hut here the question is, whether an agreement by the plaintiff to take a less sum is obligatory without acceptance. It is said that a tender is, in all cases, equivalent to a payment; but that is not so; for if a tender be pleaded in bar of a promise, it is no't taken as a payment, but as a bar to the action. This [294]*294agreement is not binding in law, and the plaintiff is always entitled to the whole demand. And, therefore, as this agreement has not been followed up by an actual acceptance, which is negatived by the record, it was not obligatory Justice Suffer remarked in the same case: “ It was said that all the creditors were bound by this agreement to forbear; but that is not stated by the plea. It is only alleged that they agreed to take a certain proportion; but that is nudum pactum, unless they had afterwards accepted it.” It follows, that if the plaintiff had accepted the smaller sum when tendered, ho would have been bound by it.
in the case of Silver vs. George, 1st OampbelFs Rep., 392, the defendant gave in evidence a receipt in fuff of all demands. Against this defence it was proposed to prove that before the date of the receipt, the plaintiff’had assigned the whole of his effects for the benefit of his creditors; that the defendant had full notice of the assignment; that in reality no money passed upon the giving of the receipt; that the whole was a collusion between them to cheat the creditors; that the action was brought in the name of the plaintiff by the trustees, in behalf of themselves and other creditors. Lord Ellenborough, who delivered the opinion in Fitch vs. Sutton, said in this case: “ Sitting here, I can only look to the strict legal rights of the parties on the record; and there can he no doubt that a receipt in fuff, where the person who gave it was under no misapprehension, and can complain of no fraud or imposition, is binding upon him.” In the case before us, the money was paid, the receipt was given, the transaction was closed. It was an executed contract. There was no fraud or imposition,, and the parlies did what they intended to do. There was no misapprehension. If it be said that the plaintiff received half of the amount only, and that he did iot intend a full satisfaction as to both defendants; yet if his writing discharges both he must be bound, for he is presumed to know the legal effect of the instrument he signed. Lewis vs. Jones, 4 Barn, and Cress. 506.
[295]*295[4.] There is no reservation, of the right, in the receipt, to collect the balance of the debt from the surety. The parties, so to speak, were dealing at arms length. It docs not appear that the defendant Ayer would have paid one-half, with such reservation in the writing. It seems that he and his surety were both insolvent at the timo, and he must have been dependant on the aid of a friend for the means of paying the one-half, and it is not probable he would, at the very time he expected to be relieved from the payment of half the judgment, stipulate for his countinucd ultimate liability to his surety for that half, whatever he may have said at the time. He must he supposed to have understood the legal effect of the receipt which the plaintiff signed, that when it discharged him as principal, it discharged his surety also, without an express saving in the receipt to the contrary. The plaintiff Knew that Ayer was principal, and that Bates was surety. He ought to have known, that to release him absolutely, without reserving in the instrument of release the right to go against the security, the security would be also discharged.
But to pass to the evidence given by the plaintiff who examined the defendant Ayer. He testified that he settled with the plaintiff the half of said Ji. fa., as specified in the receipt. The defendant Bates was not present. The plaintiff remarked at the time that he should proceed to make the other half out of Bates the best way he could. It was understood between them, at the time of the payment and the giving the receipt, that the plaintiff was not to look to Ayer any further on said judgment or fi. fa., but was to make the other half out of Bates the best way he could. He was security on the appeal. The plaintiff received and accepted what was paid by witness Ayer, in discharge, of all his (Ayer’s) liability to the plaintiff on the judgment or fi. fa. The testimony then shows that the defendant Ayer paid the plaintiff one-half of the amount of the debt, which he received and accepted in discharge of, all his liability on the judgment and fi. fa. Here was a clear discharge of Ayer by the [296]*296payment and acceptance of a sum agreed upon. The contract was executed by the payment of the money, and by the giving of the receipt. If it be true that the debt may be satisfied in this way, the judgment against Ayer, who was principal, was extinguished. “Whenever the principal is discharged, in whatever manner it may be, not only by actual payment or compensation, but also by a release,'the surety is discharged likewise; for the essence of the obligation being that the surety is only obliged on behalf of the principal debt- or, he therefore is no longer obliged, when there is no longer any principal debtor for whom he is obliged.” 1 Pothier, 209. Bates was bound for Ayer and not otherwise. Ayer is no longer bound, by reason of his discharge, and Bates, the surety, being only bound for him, cannot be held bound after his liability ceases. When the principal obligation is extinguished, the accessary obligation, which can have no existence without it, becomes extinct also.
This Court, in the case of Rankin vs. Tarver, 3 Kelly, 210, decided that when two judgments had been obtained on the same debt, one in Alabama, and the other in Georgia, the satisfaction of the judgment, in Alabama by the payment of a sum much less than the amount due, although the receipt which was offered in evidence in proof of satisfaction, stated that the money was received il in compromise of the judgment, hut not to affect any otherf may be shown, and when proven, should be held to be satisfaction of the judgment in Georgia. That is a strong authority in support of the principle contended for by the defendant in error here, and goes beyond what is necessary .to sustain the judgment of the Court below in this case.
Judgment affirmed.