The case turns upon the construction of the deed executed by the plaintiff to Patrick, administrator of Crump. If the instrument be treated as a “ release,” it operates by way of extinguishment, and enures to the benefit of the other obligors, as well as of Crump. If it be treated as a “covenant not to sue,”'the other obligors remain liable for the balance of the debt.
The first construction in most cases disappoints the intention of the parties, and carries the legal effect of the instrument beyond their meaning; for which reason the Courts incline to adopt the construction which gives to the instrument the effect merely of a covenant not to sue, and the intention of the parties is carried out by allowing the creditor to take judgment at law, leaving the party who holds the covenant to his remedy in equity for a specific performance, by which he is fully protected not only from, paying any more directly, but, if therebe sureties, by restraining the creditor from collecting any amount out of them, because that would subject him to their action, and thus indirectly violate the covenant, or, if there be other principal obligors ■ by restraining the collection of any more than an aliquot part of the debt, or any amount that would subject the party to an action for contribution.
In our case the intention that. the deed is not to operate as a release and extinguish the whole debt, is not left to conjecture, but is apparent on the face of the instrument. The consideration set out, is the payment of a part of the debt, and there is a proviso “that this agreement is in no way to affect the liability of the other principals.” So, *421beyond question it is merely a “covenant not to sue.” The sureties are not named, and are treated as if discharged, and although by the words of the proviso the liability of the . other principals is in no way to be affected, this must be taken in connection with the other parts of the instrument, by which it is stipulated that the sum paid was to be in full of all claims against Patrick, administrator. The defendant was to enter a non-suit as to him, and “ was not to receive the same (the amount paid by Patrick) upon the suits now pending.” From this it is clear that the liability of the other principals was to be affected by giving them the benefit of the sum paid, and although their liability was not to be otherwise affected, taking them jointly, still it was to be affected, taking them severally, to the extent ot not subjecting any one to the payment of more than an aliquot part, for if he was forced to pay more, that would subject Patrick to an action for one-half of the excess, and thus violate the stipulation that the receipt of part should be in full of all claims so far as he was concerned, directly or indirectly. The deed being in the words of the creditor, is to be taken most strongly against him, so as to give it full effect in favor of the other party. It follows, there was no error in enter-, ing judgment for the whole balance, according to the verdict, leaving Patrick, in connection with any of the other principals, to see to it that no more than an aliquot.part was collected from any one, so as to give an action against Patrick for contribution, by a bill for a specific performance should it become necessary.
Under the Code of Civil Procedure the matter could be set up as a counter claim, so as to put the judgment in the form of a separate one against the several other principals, for an amount of the debt and interest which would not give them a right of action against Patrick. In this particular *422tlie Code is an improvement upon tlie old mode of filing a bill.
As the plaintiff does not appeal, we take no notice of tlie •order allowing Stokes to withdraw tlie money paid into Court. If objected to, its correctness might have been questioned; he is liable for the amount which he originally agreed to pay. This may save the parties from the expense of a resort to the Courts, in order to,have the “covenant not to sue” specifically performed.
Per Curiam. Judgment affirmed.