#### Henry Bender and Another *versus*George Sampson and Others.

Of pleading a discharge.

[Defendants pleaded in bar to an action upon a promissory note, that it was agreed by the plaintiffs and defendants, and other creditors of the defendants, by a writing under the hands and seals of the plaintiffs and said creditors, that *G.*and *D.,*agents and attorneys appointed by the subscribers to the instrument, to receive the boob accounts, notes, and other property of defendants, and to collect what might be collected, and divide the same ratably among the cred-. itors, provided the defendants should conduct with integrity, and permit their demands to be collected without interference, were by said instrument authorized to discharge the defendants from the demand of said subscribers, thereby ratifying whatever their said agent should do in the premises, and that *G.*and *JO.*received said notes, accounts, and property, as well as the demands of plaintiffs and the other creditors, and proceeded to collect the same, &c., and make dividends, Sec. ; and that defendants conducted with integrity, and permitted, Sec. ; and *G.*and *D.,*agents as aforesaid, before the commencement of the suit, discharged the defendants from the said demand of the plaintiffs, as they were lawfully authorized to do, and that the plaintiffs, and said other creditors, then and there ratified the same. Plaintiffs demurred, and assigned for cause of demurrer that there was no *profert*of the writing under the hands and seals of the plaintiffs set forth in the plea. Held, that the plea for this cause was bad; and also because tire discharge by the agents was not specially set forth, and shown to be, by an instrument under seal, duly executed. A discharge of any contract after it is broken, or of a debt that is due, which is to have operation by its own validity, without any regard to the consideration upon which it was made, must be’ by writing under seal.]

Assumpsit against the defendants upon a promissory note made by the said *George,*for himself and the other defendants, copartners, dealing under the name of *George Sampson &f Co.,*payable to the plaintiffs or their order.

The defendants plead in .bar of the action, that on, &c., they were indebted to the plaintiffs and to divers other persons, *viz.:*A, B, *Sec.,*in certain sums of money respectively, which they were unable to pay and satisfy; and for the compounding of the debts of the defendants, it was agreed by the plaintiffs and the said other creditors of the defendants, and the said defendants, by a writing *46under the hands and seals of the plaintiffs, and the said other creditors, in the words following, *viz.: “*Know all men, that we, the subscribers, creditors of *G. S. fy Co.,*of *Plymouth,*do hereby appoint *N. Goodwin*and *J. D. Dunbar,*Esquires, our agents and attorneys, to receive all the book accounts and notes of [ *43 ] hand, * and other property belonging to the said *G. S. &f Co.,*and also our demands against said *G. S. Co.,*and to collect what is capable of being collected, and to make dividends once in three months, of whatever they may be able to collect, among us; the creditors, in proportion to our several demands; and provided the said *G. S. 8f Co.*conduct with integrity, and permit the collection of their accounts and notes by our said agents, without interference, then we hereby authorize our said agents and attorneys to discharge said *G. S. &f Co.*from our said demands; hereby ratifying whatever our said agents and attorneys shall do in the premises. In witness whereof,” *&c.*

The defendants then aver that the said *Goodwin fy Dunbar*re ceived all the book accounts, notes of hand, and other property belonging to them, the said *G. S. Co.,*as well as the demands of the plaintiffs and of the said other creditors, and proceeded to collect, &c., and made dividends, &c. And they further aver that they, the defendants, have conducted with integrity, and have permitted, &c.; and the said *Goodwin 8f Dunbar,*agents as aforesaid, thereafterwards, before the commencement of the present action, discharged the defendants from the said demands of the plaintiffs, as they were lawfully authorized to do; and the plaintiffs and the said other creditors then and there ratified the same; all which they are ready to verify; wherefore they pray judgment, &c.

To this plea in bar the plaintiffs demur; and assign for causes of demurrer, — 1. That the same plea is not an answer to the declaration ; and, 2. That there is no *proferí*of the writing under the hands and seals of the plaintiffs, which is set forth in the declaration. [Plea.]

*Prescott*for the plaintiffs. *Simmons*for the defendants.

Sewall, C. J.,

delivered the opinion of the Court.

To an action of *assumpsit*upon a promissory note, made payable by the defendants to the plaintiffs, the defendants have pleaded a discharge by or for the plaintiffs; and they aver an au- [ * 44 ] thority by the plaintiffs and other creditors of the * defendants, given in a letter of attorney under seal to *N. Goodwin*and J. *D. Dunbar.*This letter of attorney is set forth *in hcec verba,*but without any *profert.*[Here the *Chief Justice*stated the contents of the instrument from the plea ir. bar, and the averments of the defendants in the same plea.] To this plea there is a *47demurrer and joinder in demurrer; and the want of *a proferí oí*the letter of attorney is pointed out as a cause of demurrer.

This objection, although to a defect in form only, must prevail against the plea, if the letter of agency is to be considered as an instrument in the power of the defendants. It has been argued that it was inducement only, and that the discharge is the substance of the plea. But in that view it must be regarded as a letter of attorney only, and as containing no contract with the defendants; for if relied on as a contract, on the part of the plaintiffs, made with the defendants, it is the substance of the plea, and for the same reason it must be considered as an instrument in their power to produce; and their neglect to malte a *proferí of it*renders their plea defective in form, and this in the particular pointed out as a cause of demurrer, *(a)*

But, without insisting upon this, the plea is substantially defective, because it is no answer to the demand of the plaintiffs. Tire defendants do not show or aver a sufficient bar to the action against them.

If there was a contract to discharge them, upon certain considerations and compliances on their part, which is the most favorable construction for the defendants of the instrument set forth in their plea, the effect of this agreement depended upon the discharge to be given them by the agents. They were made the umpires, if I may so express it, to determine when the defendants had performed the conditions which, would entitle them to a discharge; and the evidence of this was to be a discharge by the agents, for and in behalf of the plaintiffs.

It seems to be well settled that a discharge of any contract after it is broken, [or] of a debt that is due, which is to have * operation by its own validity, without any regard to the [ * 45 ] consideration upon which it was made, must be by a writing under seal. (1) And this seems to be especially requisite when the discharge is to be by an agency authorized by a writing under the seal of the principal. It is in all cases to be pleaded specially how, and in what manner, the discharge was made; as the sufficiency of such an instrument, the purport and effect of it, is a question of law, which the party, whose ■ deed and. contract it is alleged to be, has the privilege of referring to the court. The plea is defective, therefore, substantially, as averring a discharge. (b)

*48We have considered whether the plea shows an accord and satisfaction,— any thing accepted by the plaintiffs as a satisfaction of their demands. But the plea is, in this view, substantially defective. It seems, indeed, to have been drawn without any reference to that mode of defence. There is no averment of an acceptance by the plaintiffs of the books or notes, or of any dividends from the proceeds collected thereon, as a consideration and payment in full of their demands, or that any thing was paid them. And, indeed, as the acceptance is virtually referred to the agents, and to be proved by their discharge of the defendants, there seems to be no contract averred, which can receive the construction of an accord, and payment pursuant to it. accepted by or for the plaintiffs, as in full of their demands.

*Plea in bar adjudged bad.*

(a)

 The writing set forth was simply a power of attorney to third persons, to the possession whereof the defendants were not entitled. A *yrofert,*therefore, it would seem, was unnecessary.—1 *Chitty)*398, 7th ed. — 1 *Saund.*9 and 9a, *n.*1. — 1 *Ves*394.

(1)

*Bull.*N. *P.*152, cites 2 *Lev.*144. — *Ca. K. B.*538. — 1 *Mod.*259.

(b)

 If the discharge were under seal, it might have been pleaded as a release, of *48given in evidence under the general issue.—1 *Chitty,*513. — 3 *Chitty,*930, 7th ed. As to what was a defect in matter of form, in this case, which would be cured by a general demurrer, or by a special demurrer if not assigned as a cause of demurrer, and what was matter of substance. — See *Heard*vs. *Baskervill, Hob.*233. — *Mansel Dem.*96—99. — *Stephen, Plead.*165—167, and the cases there cited