Field C. J., concurring.

We think the judgment in this case was not authorized by the complaint. The suit was brought to enjoin the enforcement of a judgment recovered by defendant Tevis against the plaintiff and the defendant Greene. It is alleged that Greene paid to Tevis the amount of this judgment, and that he procured an assignment of it to the defendant Vassault, who is proceeding to enforce it against the plaintiff. The Cóurt below granted the relief asked. According to the complaint, Vassault was the mere agent of Greene, and we shall treat the case as though the assignment had been made directly to the latter. The question is whether the payment by Greene satisfied and discharged the judgment. Such, evidently, was not the intention with which the payment was made. What that intention was, is of course obvious, and we think effect must be given to it so far as it can be done without doing injustice to the *245 plaintiff. It would be unjust to allow the judgment to be enforced for a greater sum than that legally chargeable to him as his proportion of the debt; but to that extent no injustice can result from its. enforcement, and we see no reason why it may not be used by Greene for his protection and indemnity. The plaintiff and Greene were jointly liable upon the judgment, and of course, as between themselves, they were severally liable for their respective proportions of the amount necessary to discharge it. Greene paid the whole of this amount, and we think he is entitled to he subrogated to the rights of Tevis to the extent of the amount paid by him for the benefit of the plaintiff. We are not without authority in support of these views. In Scribner v. Hickok, (4 John. Ch. R. 532) it was held that a defendant who had paid more than his proportion of a decree was entitled to stand in the place of the plaintiff, and to use the.decree for his protection and indemnity, so far as it appeared that the other defendants ought to contribute. The same doctrine was laid down in Wheeler’s Estate (Md. Ch. D. 80). “ Where the judgment stands open,” said the Chancellor, “ I cannot see why a codebtor, paying more than his due proportion, may not avail himself of the judgment for his indemnity.”

The plaintiff attempted at the trial to show that the funds used in the payment of the judgment were the joint funds of himself and Greene, but as the complaint alleged that the payment was made by Greene, it was incompetent for the plaintiff to show anything to the contrary. The evidence upon this point was not only unauthorized by the pleadings, but so far as it tended to establish a joint payment by the plaintiff and Greene, was in direct conflict with the complaint.

The conclusion at which we have arrived is, we think, in accordance with the equity of the case as stated in the complaint, and we cannot look at the evidence for the purpose of determining whether the rights of the parties are in fact different.

Judgment reversed and cause remanded for further proceedings.

Williams & Thornton filed a petition for rehearing, in which they urged: 1st,- that this Court had, in its opinion, violated an established rule not to disturb a verdict upon conflicting evidence, in this ; that while the Court below in its decree finds that the judg *246 ment against Coffee & Greene was paid off and satisfied by Greene’s payment, and intentionally so, yet this Court holds the contrary to be the fact—that there was no such intention. (Ritter v. Stock, 12 Cal. 402 ; Knowles v. Joost, 13 Id. 620.) 2d, that, conceding that this judgment had not been paid and satisfied, still the doctrine of “ subrogation ” has never been carried so far as in the opinion of this Court; that the case of Wheeler's Estate in 1st M. D. Ch. Dec., was not a case of “ subrogation,” and that the clause from that case, quoted in the opinion here, is mere dictum, not called for by the facts ; and that the case of Scribner v. Hickok (4 John. Ch. 532) was a case of principal and surety, where the doctrine of “ subrogation ” applies ; that in this case Greene was not a surety in the equity sense ; that even though contribution is in all cases an equitable right, still it does not follow that “ subrogation ” exists wherever there is a right to contribution, citing 1 Smith's Lead. Cases in Equity, 102 et seq. and 106 et seq.; Wayland v. Tucker, 4 Grattan, 268; Notes to Deering v. Winchelrea, 1 Lead. Cases in Equity, 100 et seq.; and finally, that when the complaint avers that Greene paid the judgment, it may be construed to mean—if the facts so proved—that it was paid with funds under his control.

On this petition Cope J. delivered the opinion of the Court— Field C. J. concurring.

The petition for a rehearing must be denied. Our decision was based upon the insufficiency of the complaint, and we see no reason for changing our opinion upon that subject. We did not pass upon the evidence, and cannot undertake to do so now.

Petition denied.