1787. KESTERTON against SABERY and another. 1 the said defendants now brought here into the court of our said lord the king, before the king himself, the date whereof is the same day and year last above mentioned) reciting, that the said I. P. had agreed to assign over, and had actually assigned over by indenture, bearing equal date with the said deed poll now brought here into court, all his estate and effects then lying at the Custom House, or elsewhere, and all his right, title, and interest to seized goods, prosecutions, and penalties, which might be legally recovered from any person or persons whomsoever, to the said defendants, by the respective names and descriptions of two of his the said I. P.'s creditors, in trust for themselves, and the benefit of those creditors only who should forthwith come in and sign the said deed poll, to be divided in equal shares and proportions; and further reciting, that the said I. P. had stipulated, promised, and agreed upon having a full discharge from his several creditors parties to the said deed poll, to pay 6s. 8d. in the pound upon every seizure that should be made by him in future, and out of all monies that he might receive at the Custom House, or elsewhere, or should possess or be entitled to thereafter on any account whatsoever, till each and every of his creditors should have received full 20s. in the pound who should respectively come in and execute the said deed poll, but not otherwise. It was declared by the said deed poll, that they the said creditors of the said I. P., did for themselves severally and respectively, and for their several and respective executors, administrators, and assigns, covenant, promise, and agree, to and with the said I. P., his executors, administrators, and assigns, to accept, receive, and take their and each of their share and dividend of the estate and effects of the said. I. P., at the Custom House or elsewhere, arising from the several seizures made by him, or otherwise, any money that might be coming on that or any other account to his estate; and the said several creditors did severally and respectively covenant, promise, and agree, to and with the said I. P., his executors, administrators, and assigns, that they the said defendants, or the survivor of them, should have full liberty to sell and dispose of the goods, chattels, wares, and merchandizes, at the Custom House or elsewhere, or should sue for all rights, interests, or claims of the said I. P., as they might judge necessary, or compound for the same, and the money that should arise therefrom, after deducting all costs and expences on account of the same, should, when the same should amount to five shillings in the pound, within the space of twenty days, be divided rateably and proportionably amongst all the creditors of the said I. P., who should respectively have executed the said deed poll; and any two or more of his creditors, upon giving three days notice, should have full liberty to inspect the books or accounts of the said defendants, containing the trust accounts; and the said plaintiff, and the said several other creditors, by the said deed poll, did covenant, promise, and agree, to and with the said I. P., his executors, administrators, and assigns, that they would not at any time or times thereafter sue, arrest, molest, trouble, imprison, attach, or condemn the said I. P., or his goods or chattels, for any debt or other thing then due or owing to them or any of them, provided the estate and effects of the suid I. P., should be fairly accounted for by the said defendants, and a dividend made amongst them the said several creditors of the said I. P., parties to the said deed poll, as by the said deed poll, reference, &c.; and the said defendants further say, that after the making of the said deed poll, they the said defendants did take upon themselves the said trust mentioned in the said deed poll, and did receive a large sum of money, to wit, 1787. KESTERTON against SABERY and another. 1787. against SABERY the sum of 1167. 2s., under and by virtue of the said KESTERTON trust; and the said defendants further say, that they the said defendants always have been and are ready and and another. willing to account for the same, and to pay the same according to the form and effect of the said deed poll, to wit, at, &c., aforesaid, and this, &c.; wherefore they pray judgment whether the said J. K. ought to have execution for the residue of the debt and damages aforesaid, against them, &c. Replication. And the said plaintiff says, that by reason of any thing in the said plea above alledged, he ought not to be barred from having execution against the said defendants for the residue of the debt and damages aforesaid, because he says that the estate and effects of the said I. P. have not been fairly accounted for by the said defendants, and a dividend made amongst the said several creditors of the said I. P., parties to the said deed poll, according to the form and effect of the said deed poll, and of the said proviso therein in that behalf contained, but on the contrary thereof the said plaintiff says that after the sealing of the said deed poll by the said plaintiff, and after the death of the said I. P., and before the suing out of the said writ of scire facias, to wit, on &c., aforesaid, &c., a certain large sum of money, to wit, the sum of 500l. of the estate and effects of the said I. P. was in the hands of the said defendants, and that he the said plaintiff then and there requested the said defendants to account for the same, and to make a dividend thereof amongst the said several creditors of the said I. P., parties to the said deed poll, according to the form and effect of the said proviso in the said deed poll in that behalf contained; but that the said defendants then and there refused so to do, and the same remains hitherto in the hands of the said defendants, wholly unaccounted for and undivided amongst the creditors aforesaid, contrary to the form and effect of the said deed poll, and of the said proviso in that behalf made; and this, &c., wherefore he prays judgment, and that he may have execution for the residue of his debt and damages aforesaid, to be levied of the goods and chattels which belonged to the said I. P. at the time of his death, and which are in the hands of the said defendants, to be administered, &c. Demurrer. For that it doth not appear, nor is it alledged in and by the said replication, that the said defendants have received any sum of money for or on account of the said trust in the said deed mentioned, whereby a dividend of five shillings in the pound could be paid to the creditors of the said I. P., who have executed the said deed; and for that the said plaintiff hath not shewn where or when the said defendants refused to make any dividend of, or to pay the money so received by them as aforesaid; nor hath the said plaintiff laid any venue where the said defendants received the said money so alledged in and by the said replication to be received by them as aforesaid, nor is it thereby shewn or alledged for whom or on what account the same is supposed to be received by them, as aforesaid; and for that the said replication is in various other respects informal, defective, and insufficient. Joinder in demurrer. Baldwin, for defendants. This scire facias will not lie against the defendants in the character of administrators. The intestate did every thing he could for the benefit of his creditors, and he was to have his discharge on making an assignment of his property. The intestate by this deed was discharged from his 1787. KESTERTON against SABERY and another. 1787. KESTERTON against SABERY and another. debts; and it would be hard, if for the misconduct of trustees he should be liable. The deed operated as a Russell, for plaintiff.. The deed in this case did not operate as an absolute release of the plaintiff's claim, but it was merely a covenant on his part not to sue, provided the effects were fairly accounted for by the defendants. The defendants have refused to account, and the covenant is discharged, and the defendants are liable as administrators. He cited Aloff v. Scrinshaw, 2 Salk. 573. Raym. 187, 393, 413. S. C. 1 Show. 46, 47. Comb. 123. Carth. 63. Holt, 619. As to the other point, it would be intended from the averment that the defendants received 500/.; that it was sufficient to satisfy five-shillings in the pound; and if it was not, defendants should have so rejoined. The court were of opinion in favour of the plaintiff, but gave the defendant liberty to withdraw demurrer and rejoin. |