
    Josiah Sewall and Others versus Jonathan Sparrow, Administrator, &c.
    •A, a creditor of B. &. C., copartners in trade, in consideration of a sum of money paid him by B., promises him in writing, that he will not sue any process against B. & C., by which B.’s separate estate might be taken for the debt yet due from B. & C., but only the joint property or the separate estate of C.—B. dies insolvent, and the commissioners upon his estate reject the claim of A. for the said joint debt; whereupon A. brings his action against B.’s administrator:—I; was holden that the action could not be maintained
    
      This was an action of debt, founded on several judgments of this Court, recovered in October, 1809, by the plaintiffs, against one Thomas Webster, and one John Thatcher, the latter of whom is deceased, and the defendant is his administrator; and the plaintiffs aver that they exhibited the said several judgments to i .e commissioners appointed to receive and examine the claims of creditors against the estate of said Thatcher; but they refused to allow the same * or any part thereof; and they having [ * 25 ] made report of their doings to the judge of probate, the plaintiffs gave notice according to the statute, &c.
    The defendant pleads in bar, that on the 21st of October, 1808, the said Thatcher and Webster, having been before that time joint partners in trade, were indebted to the plaintiffs in divers sums of money; and in consideration' that he, the said Thatcher, then and there paid to the plaintiffs, in part of said debts, the sum of 1,410 dollars out of his own separate property and estate, they, the plaintiffs, by their agreement in writing of that date, agreed with, and promised the said Thatcher, that they would not serve any writ that might be sued out after said date, nor levy any execution that might be issued on any judgment then rendered, or to be rendered after said date, against the said Thatcher and Webster, on their said debts, upon the sole and separate estate and effects of the said Thatcher, which he then had or might have, distinct from the joint stock and effects of the said Thatcher and Webster, or of the proceeds thereof; but would serve and levy the same only on the joint stock, effects, rights and credits of the said copartners, and the proceeds thereof, and on the estate, &c., of the said Webster. And the defendant further avers that the said Webster is still living, wholly insolvent and unable to pay any part of the debts aforesaid; and that the several sums, for the recovery of which this action is brought, are a part of the sums or debts mentioned in the said discharge, and not different.
    To this plea in bar the plaintiffs demur generally, and the defendant joins in demurrer.
    
      Whitman and Potter, for the plaintiffs.
    The plea is no answer to the declaration. It is not good as an accord and satisfaction : nor is it a discharge, not being under seal . It is not a covenant or promise not to sue. If the plaintiffs, in bringing their action, have violated their contract with the intestate, the defendant has his remedy against them by action. But as no execution can issue on *the judgment now sought by the plaintiffs, there [ * 26 ] is in truth no violation of the agreement; which was with the intestate in his life, and was intended as a personal favor to him The enforcing of it now will operate only as a favor to his other creditors, while it will be palpably injurious to the plaintiffs. But if the estate was not insolvent, this action would not violate the agreement. Nothing but levying an execution on the separate property of Thatcher is provided against. Were he living, an execution might be levied on his body, within the terms of the writing; and such a contract ought to receive a very strict construction.
    
      Mellen and Longfellow, for the defendant.
    
      
       11 Mass. Rep. 45. —Bull. N. P. 152.
    
   Parker, C. J.

If the written agreement, which is averred in the plea in bar, had been a sealed instrument, it would be construed to be a perpetual covenant not to sue John Thatcher for the debt of the company. For although, by the terms of the agreement, the plaintiffs contracted only not to serve any writ, or levy any execution upon Thatcher, which might issue after the date of the agreement against the company, yet the intent and effect of it was, without doubt, to exonerate and discharge Thatcher from the debt of the company, in consideration of his having paid one half of it out of his private effects.

But there is a technical objection at common law to the plea, founded upon the rule, that no specialty can be avoided but by an instrument of as high a nature; and the judgment which is sued, being a security of the highest character, cannot by the common law be avoided by a writing not under seal.

We think, however, that the operation of our statute for the set tlement and distribution of insolvent estates , must necessarily control the common law, where the application of its rules will be repugnant to the provisions and general intent of the statute.

It is stated in the plaintiff’s declaration, that the judgment now sued, has been filed before the commissioners appointed [ * 27 ] by the judge of probate to receive and examine * the claims against the estate of the defendant’s intestate. We must, therefore, conclude that his estate has been represented insolvent. The plaintiffs then have no right to an action at common law, but only in pursuance of the statute; which gives an action in the nature of an appeal, when the claim shall be rejected by the commissioners. When the action is thus brought, whatever would have been a good answer to the claim before the commissioners, must be a sufficient defence in Court. Otherwise a different rule would prevail, between those demands which are adjusted by the commissioners, and those which are adjudicated according to the statute, in Court. Now, as the commissioners undoubtedly had authority to reject the claim of the plaintiffs, upon seeing the agreement which is pleaded in bar of this action, we think it clear that the Court, sustaining the action by virtue of the same statute which gave authority to the commissioners, may proceed upon the same principles as to set-offs, and all other equitable defences, which might lawfully govern the commissioners; and in this view, without infringing upon any common law rule, may well decide that the plea in bar is good .

It was said in the argument that the defendant’s remedy is to sue the plaintiffs upon their agreement, and recover his proper damages for the breach of it. But it would be absurd, as well as unjust, to give him this shadow of a remedy, when the substance can be obtained in the present action. If the true intent and effect of the agreement is to release the intestate’s estate from all the debts of the company to the plaintiffs, then the damages must be equivalent to the debt to be recovered in this action. These, when recovered, would go to the administrator, to be distributed among the creditors. The present plaintiffs, upon this supposition, will still stand as creditors, and claim a dividend upon the very sum they pay as damages for the breach of their promise. Then a new action must be brought by the administrator ; and so on, until the pursuit is given up from the insignificance.of the sum to be claimed.

* These results show the necessity of admitting this en- [ * 28 ] gagement in defence to the action ; and as we confine our opinion to the case before us, which we do not consider as an action at common law, we infringe no rule of pleading, nor any principles of the common law, in maintaining the defence.

Defendant’s plea in bar adjudged good. 
      
      
        Stat. 1784, c. 2.
     
      
      
        [Sed Quaere. The statute prescribes no role of proceeding in these cases, to make them differ in this respect from other actions at law. In this case, if the instrument had been under seal, it could not have operated as a release. Hutton vs. Eyre, 6 Taunt. 289. —1 Marsh. 203. —Shed vs. Pierce & Al. 17 Mass. 623. —Ruggles vs. Patten. 8 Mass. 480. —Ed.]
     