
    Pearson Eaton versus Charles Lincoln.
    The creditors of one in failing circumstances, in pursuance of an agreement at a general meeting, appointed an agent to receive all his property, and distribute the proceeds amongst them pro rala; in consideration of which they agreed to acquit the debtor. He delivers up his property to the agent, and this latter tenders to one of the creditors, who has joined in the appointment, his proportion of the proceeds, who refuses to accept it. It was holden, that the debtor was discharged as to such refusing creditor, although the debtor was no party to the original agreement, and although one of the creditors, who was a party thereto, had refused to join in the appointment, and had recovered the full amount of his demand.
    Assumpsit on a promissory note for $70.82, made by the defendant, payable to the plaintiff or his order on demand with interest, dated September 1, 1808. The action was commenced on the 8th of April, 1814.
    The cause was submitted to the decision of the Court, upon - a statement of facts agreed by the parties.
    In June, 1809, the defendant being in failing circumstances, ms creditors met at his request, being twenty in number, and they a., agreed to appoint one of their number as their agent, to receive and sell the defendant’s property, and from the proceeds thereof to pay over to them in proportion to the amount of their respective demands; and to acquit the defendant of the same, whether the property should produce the full amount of their demands or not; the defendant, at the same time, consenting and agreeing thereto.
    On the 3d of July, 1809, a writing was drawn up, and signed and sealed by all the creditors who had been present at the said meeting, except one; but it was not * executed by the defendant.; to the following purport and effect.
    “ Know all men, that we, Pearson Eaton [and nineteen others], have made, &c., and do make, &c., Henry Gray, of, &c., to be our lawful attorney, for us and in our names, to demand and receive of all persons, all moneys, &c., due, belonging, or coming unto us. But this letter of attorney is for the sole purpose of authorizing our said attorney to settle our several claims and demands, due to us from Charles Lincoln, of, &c., in the best way possible for our interest. Our said attorney is to take a good and sufficient deed of the said Lincoln’s house and land, and to sell the same to the best advantage for each and all of us. The money arising from the sale of the house and land is to be paid over to each of us, in proportion to our several demands. If any thing should remain in the hands of our said attorney, after we have received our twenty shillings on the pound, it is to be paid over to the said Lincoln; and, if the said house and land should not sell to meet the demands, we agree, jointly and severally to acquit the said Lincoln of our several demands, and divide ir pioportion as above mentioned.” Then follow general powers to sue, &c., with authority to substitute, &c.
    
      Shepard Cary, one of the creditors named in said writing, and present at the said meeting, after the plaintiff and other creditors had signed and sealed the said writing, refused, and did not sign or seal the same ; but soon after commenced a suit against the defendant, and attached his property, and thereby received the full amount of his demand, the same being about twenty or thirty dollars.
    After the attachment by said Cary, the said attorney received a good and sufficient deed of the defendant’s house and land, and all his remaining property, and sold the same, and divided the proceeds among the respective creditors, according to the conditions of the said writing ; and he offered to pay the plaintiff his proportion, it being at * the rate of four and a half per cent. No acquittance or discharge had been given to the defendant of the plaintiff’s demand, except the aforesaid writing.
    Judgment upon nonsuit or default was to be rendered, as the opinion of the Court should be upon the foregoing statement.
    Harrington, for the defendant.
    In consideration of this instrument, which the defendant considered a complete discharge on the part of his creditors, he surrendered all his effects ; and, if he is still liable on their demands, he has been fraudulently entrapped. But this was a voluntary agreement of his creditors, and it was perfectly equal and fair ; and, unless he has done some act which should deprive him of the benefit, he is lawfully discharged. The refusal of Cary to execute the instrument, after he had agreed to its terms, cannot operate to discharge the plaintiff, who did execute it. Nor can his refusal to acc.ept the dividend prejudice the defendant.
    Loud, for the plaintiff.
    The defendant was no party, nor privy to the writing, and, not being himself bound by the terms of it, it was without consideration, and nudum pactum, on the part of the creditors. His posterior act, of conveying his house and delivering his property, could not give a binding force to the instrument. He may recover the money from Mr. Gray, the attorney of the creditors ; .or if it has been paid over to the creditors, he will have all the benefit of it, as a discharge pro tanto. He has not, then, been entrapped.
    The refusal of Cary to execute the agreement was equal to a revocation by the rest, each of whom executed the writing upon the full understanding and condition, that it should be executed by all The small amount of Cary's demand cannot affect the principle.
   Parker, C. J.,

delivered the opinion of the Court. We think that the plaintiff is barred of his action, by the compromise made by him and the other creditors with the defendant. They au thorized their agent to receive a * conveyance of the defendant’s house and land, and other property; and they agreed to receive a distributive share of the proceeds of the sale thereof, and to discharge their demands against the defendant, whatever portion of their demands the proceeds of such sale should nay That one creditor refused to execute the letter of attorney makes no difference ; as there was no provision that it should be void, if it was not executed by all. Nor is it material, that no agreement, in the nature of a counterpart, was executed by the defendant. This was not required by the terms of the contract; and the execution and delivery of the deed by the defendant, in pursuance of the agreement of the creditors, and the acceptance of that deed by their agent, and his sale of the property afterwards, was a complete execution of the contract on both sides.

These facts would have maintained the issue for the defendant, upon a plea of accord and satisfaction. For, although the plaintiff refused to receive his dividend of the proceeds, yet his agent had received the equivalent for the discharge which was promised, when he took the deed of the defendant’s property.

Plaintiff nonsuit.  