#### J. M. BROWN et al. v. NORFOLK SOUTHERN RAILROAD COMPANY et al.

(Filed 18 September, 1935.)

Torts C a — Judgment debtors held entitled to have judgment credited with sum paid by joint tort-feasors for covenant not to sue.

Where some of defendants, sued as joint tort-feasors, pay plaintiff a sum in consideration of a covenant not to sue, and as to them plaintiff takes a voluntary nonsuit, and thereafter the action is prosecuted against the other defendants, and judgment recovered against them, the defendants against whom judgment was entered are entitled to have the judgment credited with the amounts paid by the other defendants for the covenant not to sue upon their motion made prior to execution, the motion coming within the spirit if not the letter of C. S., 620, and movants not being barred by their laches either in failing to bring the matter to the trial court’s attention at the time of rendition of judgment, since the matter appeared on the face a judgment in the cause, or in waiting until issuance of execution, the execution still being in the hands of the sheriff.

Appeal by defendants, Fry and Garner, from *Shaw, Emergency Judge,*at February Term, 1935, of Mooke.

Motion to credit judgment with partial payment and modify execution accordingly.

Tbe plaintiffs instituted an action against D. B. Arcbbell, Norfolk Southern Railroad Company, C. F. Garner, and 0. 0.- Fry, alleging an unlawful conspiracy in restraint of trade, 0. S., 2563, which action was nonsuited at the September Term, 1929, Moore Superior Court, and reversed on appeal. *Lewis v. Archbell,*199 N. 0., 205, 154 S. E., 11.

Thereafter, on 15 September, 1931, the plaintiffs came into court and suffered a voluntary nonsuit as to D. B. Archbell and Norfolk Southern Railroad Company, agreeing in open court not to sue said defendants “for any matter or thing growing out of or alleged in the complaint in this cause.”

The cause then came on for trial against the defendants, C. 0. Fry and C. F. Garner, at the September Term, 1933, Moore Superior Court, and resulted in verdict and judgment for plaintiffs. The jury fixed the damages at $600 and judgment was rendered for treble this amount as provided by O. S., 2574. On appeal, the judgment was affirmed. *Lewis v. Fry,*207 N. 0., 852.

The present motion was filed 29 December, 1934, while execution was in the hands of the sheriff, and heard at the February Term, 1935, Moore Superior Court. From judgment dismissing the motion, defendants appeal, assigning errors.

*424
      *E. F. Sea/well, Jr., for plaintiffs.*

*W. B. Clegg, J. E. Scott, and L. B. Clegg for defendants.*

Stagy, C. J.,

after stating tbe case: His Honor was evidently of tbe opinion tbat tbe failure to bring tbe matter to tbe attention of tbe court at tbe time of trial, as was done in *Holland v. Utilities Co., ante,*289, deprived movants of tbeir right to bave tbe judgment (not verdict) credited witb tbe amount paid plaintiffs by tbeir codefendants for tbe covenant not to sue. *Homans v. Tyng,*67 N. Y. Supp., 792. Ordi--narily, tbis view might prevail *(lex reprobat moram, Battle v. Mercer,*188 N. C., 116, 123 S. E., 258) but for tbe fact tbat tbe matter appears on tbe face of a judgment entered in tbe cause.

It is provided by C. S., 620, tbat payments made upon docketed judgments and not entered of record, may be credited upon motion and bearing. True, tbe amount received by plaintiffs for tbe covenant not to sue some of tbe defendants was not strictly within tbe terms of tbis statute, nevertheless it would seem to be within its spirit. Tbe payment inured to tbe benefit of movants. *Holland v. Utilities Co., supra,*It was said in *Homans v. Tyng, supra,*tbat where a party entitled to enforce a judgment, on which execution has issued, consents to an amendment of tbe judgment, reducing tbe amount of recovery, tbe proper procedure is not to vacate tbe execution but reduce it in accordance witb tbe agreement.

Tbat movants are not entirely out by tbeir laches — tbe execution being still in tbe bands of tbe sheriff — is supported, in tendency at least, by what was said, and tbe authorities cited, in *Williams v. Dunn,*158 N. C., 399, 74 S. E., 99.

Error.