#### C. N. MASON v. A. H. STEPHENS and BLADES LUMBER COMPANY.

(Filed 10 March, 1915.)

1. Trials — Nonsuit—Joint Tort Feasors — Release of One — Release Pro Tanto.

In an action against two defendants, A. and B. — against A. for wrongfully cutting timber on plaintiff’s land and against B. for receiving a part of it and not paying therefor, it is error for the trial judge to enter judgment of nonsuit in A.’s case, because the case of B. had been compromised and nonsuit entered as to him, for a release of that demand could only be a release of A. pro tanto.

2. Judgments — Default and Inquiry — Nonsuit—Appeal and Error.

Where a judgment by default and inquiry has been taken and at a subsequent term the inquiry is being duly made, it is erroneous for the trial judge to order a nonsuit.

Appeal by plaintiff from Peebles, J., at September Term, 1914, of CRAVEN.

W. D. Melver and R. A. Nunn for plaintiff.

H. L. Gibbs and A. D. Ward for defendants.

*371Clark, C. J.

This is an action against tbe defendant Stephens for wrongfully cutting timber on plaintiff’s land, and against tbe Blades Lumber Company for wrongfully receiving part of tbe same and not paying therefor. Judgment by default and inquiry as to Stephens was taken at February Term, 1913, and at May Term, 1913, a nonsuit was taken as to tbe lumber company.

At tbe trial term tbe judge directed a nonsuit as to Stephens on tbe ground that tbe nonsuit as to tbe lumber company bad been entered in consequence of a compromise and payment of tbe amount due by said lumber company. This was error. It appeared that tbe recovery was sought of tbe lumber company only for that part of tbe lumber which it bad wrongfully received, and a release of that demand was not a release of Stephens except pro tanto. Besides, if it bad been for tbe entire amount, an agreement for a valuable consideration not to sue one joint tort feasor, or a dismissal of tbe action as to him, does not release tbe other, but only to tbe extent of tbe payment made. Chicago v. Babcock, 143 Ill., 385, Jaggard on Torts, sec. 117; 38 Cyc., 538. It does not have tbe same effect as tbe absolute release of one tort feasor, which it has been held releases tbe other. Indeed, tbe lumber company received tbe lumber from tbe defendant Stephens, or rather cut it under a contract with him, and tbe nonsuit as to tbe lumber company could do no barm to Stephens, who bad no action against tbe company in any event.

It was also error to direct a nonsuit as to tbe defendant Stephens, against whom there was a judgment by default and inquiry, taken at a previous term, and which inquiry was then being duly made. Jordan v. Pool, 27 N. C., 111.

There was also error in excluding certain testimony offered, which it is not now necessary to discuss.

Tbe judgment of nonsuit is

Reversed.