
    Ebenezer T. Andrews and nine Others versus Samuel Etheridge and Another.
    An insolvent debtor having conveyed to certain of his creditors, amongst other things, the tools of his trade, an agreement was afterwards executed by a portion of those creditors, that they would deliver him one third part of the same, so selected as to enable him to renew his business; — it was holden that those who executed the agreement were not bound, since all had not executed it; and that the creditors’ taking into their possession the two thirds, was not evidence of the selection contemplated in the agreement, and that therefore the property of the one third still remained in the creditors, to whom it had been granted.
    Replevin for sundry chattels mentioned in the writ. The defendants pleaded property in Samuel Etheridge, and not in the plaintiffs. The plaintiffs replied property in themselves, on which issue was joined to the country.
    This issue was tried before the Chief Justice, at the sittings here after the last October term.
    
      The plaintiffs, to maintain the issue on their part, gave in evidence a grant of the goods replevied amongst others, *made to them on the 10th of September, 1809, and executed by the defendant Samuel Etheridge, together with Jonathan Hastings and Elam Bliss.
    
    The defendant, in support of the issue on their part, offered in evidence a deed dated January 24, 1810, executed by five of the plaintiffs, in which, after reciting that the said Hastings, Etheridge, and Bliss, being copartners in trade, in consequence of their insolvency, had conveyed, by the deed above mentioned, all their stock in trade, and certain other property, both real and personal, as security to creditors therein named; and that, among the property so conveyed, were included all the printing apparatus in the printing-office in Charlestown, and tools necessary for that business, which had been conducted by the said Etheridge, although the same were not liable to attachment for debt, so that the said Etheridge was deprived of the means of supporting himself and his family by his usual occupation ; in consideration of the premises and of one dollar paid to each of the subscribers, they covenant and agree with' the said Etheridge, that if they should retain the said printing materials, they will deliver him one third part of the same, so selected as to enable him to renew his business as theretofore, although the property so conveyed should not equal the amount of their claims; and in case the property so conveyed should exceed the amount of their legal demands, and certain other creditors who had attached the covenantors as trustees of said Hastings, Etheridge, and Bliss, should consent to release and discharge the covenantors from the said third part of the printing apparatus so to be selected and delivered, so that they might not be holden to account for them, then they would deliver them as above expressed; with some other covenants not bearing upon the issue on trial.
    The defendants admitting that they had no evidence that the plaintiffs, or any of them, had expressly made the selection referred to in the said deed, or, on an application * by said Etheridge, had refused to make the same; or that the said attaching creditors had released the covenantors as is mentioned in said deed, and because the said deed was not executed by all the plaintiffs; the judge refused to admit the defendants to offer any further evidence, and instructed the jury that this deed did not maintain the issue on the part of the defendants.
    A verdict was taken for the plaintiffs, subject to the opinion of the Court, whether said refusal and instructions of the judge were right. If they were right, judgment was to be entered on the ver diet; if they were wrong, the verdict was to be set aside, and a new trial granted.
    
      Ward for the defendants.
    The property conveyed to their creditors by Hastings, Etheridge, and Bliss, proved not sufficient for the payment of their demands ; the release, therefore, by the attaching creditors, is out of the case. Although it was admitted at the trial that no actual and formal selection of the one third of the apparatus had been made by the creditors, yet the defendants could have shown, and they desire a new trial that they may yet show, what was tantamount to such selection, viz., that the creditors had actually taken into their possession but two thirds of the whole'.
    The contract was complete and binding on those who executed it. The creditors had several and unequal interests in the concern, and each could, and did, covenant for his proportion. It does not appear that it was intended or expected that the whole ten should execute the deed. Had it been so intended, they would have been all named in the body of the deed ; and if it had not been intended that the deed should operate as to those who should execute it, provision would have been made that it should have no effect unless executed by all.
    
      Bigelow for the plaintiffs.
   * By the 'Court.

The verdict in this case must stand, and judgment be entered accordingly. It is to be presumed that all the plaintiffs were expected to execute the covenant produced by the defendants, and that none of them contemplated being bound unless all were bound. The fact suggested by the defendants’ counsel, as proving virtually a selection by the plaintiffs, viz., that they took away from Etheridge a part of the apparatus, without notice to him that what was not taken away was for his use, would not, in our opinion, amount to sufficient evidence of a selection within the intent of the parties to the covenant.  