
    Harriet Robertson versus Joshua Gardner.
    In covenant, the plaintiff, an administratrix, sets forth in the declaration, an indenture under seal, between an insolvent debtor, of the first part, the defendant, of the second part, and the creditors, of the third part, whereby the debtor assigned bis property to the defendant in trust to pay, first, some of the debts in full, and then the other debts pro rat&, and the defendant covenanted with each of the other parties to perform the trusts; and the plaintiff avers, that the defendant has not paid the debt due to her intestate, according to the trust. The defendant pleads, that the intestate, by a writing under his hand, directed and licensed the defendant to pay, in preference to the debt due to the intestate, another debt which was subsequent in order in the indenture, and that he paid it accordingly, and that all the funds which had come to his hands under the assignment, at the time when the action was commenced, had been applied by him in the manner required by the indenture and the intestate’s orders. Held that the plea wag good.
    This was an action of covenant broken, brought by Harriet Robertson, as administratrix of Andrew Robertson deceased.
    The declaration sets out the substance of an indenture, under seal, of three parts, made on the 7th of May 1827, between Samuel Downer and Luke Baldwin junior, merchants and partners, of the first part, Gardner, the defendant, of the second part, and certain creditors of Downer & Baldwin, of the third part, by which indenture Downer & Baldwin conveyed all their goods, real estate and choses in action to Card ner, in trust, first, to pay all the reasonable expenses growing out of the assignment; secondly, to pay all the bonds at the customhouse due from Downer & Baldwin ; thirdly, to pay all the creditors of Downer & Baldwin, parties to the indenture, whose names, with the amounts due to them, are borne on a schedule marked A, annexed to the indenture, and in the order in which their names are placed on the schedule, the full amounts due to them respectively; fourthly, to pay to .Andrew Robertson & Co., and other persons named, all such amounts as they might be obliged to pay in consequence of having indorsed certain notes, and having become sureties in certain customhouse bonds, enumerated in a schedule annexed, marked C; and then to pay over and distribute the residue of the assigned property among the several persons whose names are borne on a schedule annexed, marked B, who should become parties to the indenture within sixty dayu, in proportion to their several demands ; and to pay over the residue, if there should be any, to Downer & Baldwin. The declaration further alleges, that Gardner did, in the indenture, covenant with each of the parties thereto, that he would, according to his best skill and judgment, perform all the trusts therein contained, The plaintiff then avers, that the name of Andrew Robertson, the intestate, is borne on the schedule A, and that the amount of $ 11,769-39, is placed thereon, as due to him; and that he became a party to the indenture on the 7th of May.- The plaintiff then assigns for breach, that Gardner has not, according to his best skill and judgment,, sold and disposed of the goods and real estate assigned to him, nor collected the choses in action, nor applied the proceeds of the assigned property according to the trust; and that he did not pay to the intestate, in his lifetime, and has not, since his decease, paid to the plaintiff as administratrix, the sum of $ 11,769-39, but that the same remains wholly due and unpaid.
    The defendant, after oyer of the indenture, and of the schedules thereto annexed, (which indenture was executed by the parties of the first and second parts, and all the parties of the third part whose names were on schedule A, and some of those whose names were on schedule B,) pleads, that after the making of the indenture and before either of the trusts to be executed by the defendant, was performed in whole or in part, viz. on May 15, 1827, the intestate, by a writing under his hand, declared and consented that certain promissory notes indorsed by his partnership, styled Andrew Robertson & Co., or by the defendant, or by C. Wade, or sums of money for which they or some of them were liable, should be paia out of the assigned property, before the debts mentioned in schedule A, and that the intestate thereby directed and licensed the defendant to pay those indorsed notes and sums of money in preference to the debts contained in scheduled?; that afterwards, on June 2, 1827, the intestate by another writing under his hand, declared and consented that certain debts due from Downer & Baldwin on account of the intestate’s partnership, ought to have been placed among the preferred debts and should be paid next in order after the customhouse bonds and the indorsed notes mentioned in the indenture, and the intestate thereby directed and licensed the defendant to pay, out of the assigned property, the debts due from Downer & Baldwin, on account of the intestate’s firm, to an amount not exceeding $3000, in preference to the debts mentioned in schedule A ; that he, the defendant, did, with all convenient speed, and according to his best skill and judgment, sell the goods and real estate and collect the choses in action assigned to him ; and that at the time of the commencement of the plaintiff’s action, the whole amount of the moneys which had been received by him as the property assigned, was not sufficient for the payment of the debts which by the indenture and by the orders and licenses given to the defendant by the intestate, were to be and ought to be paid by the defendant in preference to and before the debt alleged in the declaration to have been due from Downer & Baldwin to the intestate ; and that the defendant, at the time when this action was commenced, had paid and applied all the proceeds of the assigned property which had been received by him under the indenture, for, towards and in satisfaction of the several expenses, debts and claims to which, by the indenture and the abovementioned orders and licenses of the intestate, the same proceeds were applicable and payable.
    
      March 10th.
    
    To this plea the plaintiff demurred.
    Fletcher,
    in support of the demurrer. The defendant’s covenant cannot be varied or controlled by the writings set forth in the plea, which are not of so high a nature as the indenture. He does not allege payment, a discharge under seal, or accord and satisfaction, but merely a parol license. 3 Stark. Ev. 1002 ; Littler v. Holland, 3 T. R. 590 ; Leslie v. De la Torre, cited 12 East, 583; Crane v. Newell, 2 Pick. 613, and cases there cited ; Stackpole v. Arnold, 11 Mass. R. 27.
    The plaintiff’s intestate, being only one of several parties of the third part, could not authorize the change in the order of payments, for the others were interested to sustain that order, and they are not alleged to have joined in the license.
    No consideration is shown for the agreements set forth by the defendant. Rann v. Hughes, 7 T. R. 350. note.
    
      
      April 1st.
    
      Sohier and Sumner, for the defendant,
    denied that die pnnciple first urged on the otiier side, had any application to this case, the plea being merely that the defendant had applied to the intestate’s orders, so much money as was due to him by the indenture ; and to show that even a verbal direction obeyed, would have been a justification to the defendant, they cited Langworthy v. Smith, 2 Wendell, 587 ; Freeman v. Adams, 9 Johns. R. 115 ; Jewell v. Schroeppel, 4 Cowen, 564 ; Ratcliff v. Pemberton, 1 Esp. Rep. 35 ; Le Fevre v. Le Fevre, 4 Serg. & R 241 ; Munroe v. Perkins, 9 Pick. 298 ; Hanson v. Parker, 1 Wils. 257 ; Hultz v. Wright, 16 Serg. & R. 345.
   Shaw C. J.

delivered the opinion of the Court. It is objected on the part of the plaintiff, that the defendant’s covenant cannot be controlled or varied, except by an instrument of as high a nature as the indenture itself. The Court, in sustaining the plea, do not feel themselves called upon to question the validity of this principle ; but they think it is not applicable to the present case. The agreements of the intestate set forth in the plea, were subsequent, collateral and independent; they presuppose and affirm the validity and existing terms of the indenture, and do not alter or vary them. They were new and independent agreements as to the manner in which the intestate’s separate interest, under the assignment, should be appropriated by the assignee, agreements which the cestui que trust was competent to make. Though under such an assignment creditors have a joint interest in equity in the property assigned, till distribution is to be made ; yet each has a several interest in the expected dividend, and each may assign over or otherwise direct the disposition of his own share ; and a direction or agreement in writing, though not under seal, is a competent authority to the assignee to make such a disposition.

Besides, there was not in the present case, so wide a departure from the terms of the indenture, as there would have been in directing payment to a stranger, since the intestate was a partner in the house of Andrew Robertson & Co., and he agreed to have the money paid to this partnership, instead of being first applied to the payment of his several debt.

These considerations substantially embrace the second objection," namely, that the indenture being joint, all parties must unite to alter it. If the agreement set forth in the plea affected any other interests but those of the intestate, there would be much force in this objection. But as the agreement related solely to the disposal and appropriation of the dividends, each of the cestui que trusts had a right to agree for himself, without the concurrence of the other parties. So far as the rights of others are concerned, they are not drawn in question in this action ; and as against them, should they make a like claim, for aught that appears, the defendant may show a like agreement, on their parts respectively.

It was further objected, that there was no consideration shown for the new agreements.

An obvious answer to this objection is, that these agreements have been executed. The defendant alleges, that he was licensed and authorized by the intestate to pay over the money in a particular way, and that he paid over the money accordingly. No question arises here, as to the rights of those, who ■claimed payment under the agreements, or as to what would have been the rights of the intestate or the defendant, had the former revoked the license and authority given by such agreements, before payment made pursuant to them. In that case the question of consideration would have been material. But as they were in fact executed, it is not now necessary, as between these parties, to show a consideration.

Plea adjudged good.  