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.

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