Winston v. . Dalby

64 N.C. 299

• Court: Supreme Court of North Carolina
• Decided: January 5, 1870
• Status: Published

Opinion

Settle, J.

We are of the opinion that the instrument given by the plaintiff to Bullock, does not amount to a release.

It operates in the nature of a covenant not to sue.

Upon an examination of the authorities, it will be found, that the Courts have been slow to adopt the doctrine, that a covenant not to sue, may operate as a release, and have only permitted such covenants to have that effect, in order to avoid circuity of action.

In Dean v. Newhall, 8 T. R. 168, it is held that the obli-gee, who had covenanted not to sue one of two joint and several obligors, might sue the other, although a release to one would have been a bar as to both.

The same point is decided in Hutton v. Eyre, 1 E. C. L. 385, where the debt was a joint one, and not joint and several; and Gibbs, C. J., says “ we think the rule that a covenant not to sue, operates as a release, applies only to eases where the covenantor and covenantee are single.”

Upon the authority of these cases, and of Walmsly v. Cooper, 39 E. C. L. 51, the text writers lay it down, that a covenant not to sue has not the effect of a release, in discharging a co-contractor: 1 Archb. N. P. 191; 1 Tidd. 10.

No question was raised before us as to whether this debt was joint or several, nor do we think there could have been, for our statute provides that “in all cases of joint obligations or assumptions of co-partners in trade or others, suits may be brought and prosecuted on the same, against all or any number of the persons, making such obligations, assumptions or agreementsBev. Code, ch. 31, sec. 84.

The judgment of the Superior Courtis reversed, and judgment entered here in favor of the plaintiff, according to the case agreed.

Peb Cubiam. Judgment reversed, &c.