Imparlance. Replication. Rejoinder. Declaration in covenant, in greement to ac intent and meaning of the faid indenture, and of the aforefaid co- And hereupon the faid James prayeth leave to reply to the plea of the faid Edmund here until Friday next after the morrow of the Holy Trinity, and he hath it, &c.; the fame day is given to the said Edmund here, &c.; and now at this day cometh here as well the faid Edmund in his proper perfon, as the faid James by his attorney aforefaid; and upon this the faid James faith, that he, by reafon of any thing by the faid Edmund above in pleading alledged, ought not to be barred from having his aforefaid action against the faid Edmund, because he faith, that he the faid Edmund did not pay to the faid James the faid feveral fums of twenty-five pounds and twenty-five pounds in manner and form as the faid Edmund háth above in pleading alledged; and this he prays may be enquired of by the country. R. LEIGH. And the faid Edmund doth fo likewife; therefore the fheriff is commanded to cause to come here on Wednesday next after three weeks of the Holy Trinity, twelve, &c. by whom, &c. and who neither, &c. to recognize, &c. becaufe as well, &c. MIDDLESEX, to wit, Jofeph Nelfon complains of Richard Towne, being, &c. in a plea of breach of covenant; for that breach of an a- whereas the faid Jofeph, before and at the time of the making of cept a lease of the the agreement hereafter mentioned, was lawfully poffeffed of the plaintiff, of pre- feveral premifes in fuch agreement and hereafter mentioned, with m.fes,when pre- the appurtenances, for the then refidue and remainder of a certain pared, the lease term of years thentofore thereof granted, and still fubfifting and unwas prepared, expired, and whereof twenty-one years and more would be and jused to execute were to come and unexpired on the twenty-fifth day of March the same. next, after the making of the faid agreement and now laft paft; and but defendant re being fo thereof poffeffed, whilft he was fo poffeffed, to wit, on, &c. at, &c. by a certain agreement then and there made between the faid Jofeph, by the name of, &c. of the one part, and Richard, by the name of, &c. of the other part; one part of which agreement, fealed with the feal of the faid Richard, the faid Jofeph now brings into court here, the date whereof is the day and year laft aforefaid, the faid Jofeph did (amongst other things) pro mife, &c. &c. [fet out the agreement] as by the faid agreement, reference being thereto had, will more fully appear: And the faid Jofeph avers, that in pursuance of the faid agreement the faid Jofeph afterwards, and before the twenty-fifth day of March next, after the making thereof, to wit, on, &c. at, &c. caused to be prepared and engrofled on parchment duly flamped, a good and valid indenture of leafe of the faid premifes in the faid agreement mentioned, for the faid term fo thereby agreed to be granted as aforefaid, and containing therein fuch covenants and agreements as aforefaid, together with a counterpart of fuch leafe, according to the tenor and effect of the faid agreement; and afterwards, to wit, on, &c. at, &c. duly executed the faid leafe, and then and there tendered the fame, together with fuch counterpart thereof as aforefaid, unto him the faid Richard, and then and there required him to execute fuch counterpart thereof accordingly, and upon fuch execution thereof to pay unto him the faid Jofeph the faid fum of fifty pounds in the faid agreement mentioned, and thereby agreed to be paid to him as aforefaid, as and for the expence of erecting and building the faid double coach-house and room over the fame in manner aforefaid; yet he the faid Richard did not, nor would then and there, at the time of the said Jofeph's fo executing fuch leafe as aforefaid, or at any other time whatfoever, then and there execute and deliver, nor hath he as yet exe cuted or delivered unto him the faid Jofeph the faid or any other counterpart of fuch leafe, nor did he then and there, or at any other time whatfoever, pay or caufe to be paid, nor hath as yet paid, or caufed to be paid to the faid Jofeph, the faid fum of fifty pounds in the faid agreement mentioned, and thereby agreed to be paid as and for the expence of erecting and building the faid double coach-house and room over the faine in manner aforefaid, but then and there refused fo to do, or to accept fuch leafe, and therein wholly failed and made default, contrary to the tenor and effect of the faid agreement, and of the faid covenant fo by him in that behalf made as aforesaid: and fo the faid Jofeph fays, that he the the faid Richard (although often requested) hath not kept his faid covenant fo by him made with the faid Jofeph in this behalf as aforefaid, but hath broken the fame, and to keep the fame with the faid Jofeph hath hitherto wholly refused, and still refuses fo to do; wherefore the faid Jofeph faith, that he is injured, and hath fuftained damages to the value of two hundred pounds, and therefore he brings his fuit, &c. V. LAWES. Covenant in the LONDON, to wit. John Walker and Elizabeth Walker, debtors exchequer by baron and feme, and complainants of our fovereign lord the prefent king, come before on articles of a the barons of the exchequer at Weftminster, on the fixth day of greement to be- November in the fame term, by Richard Edmunds their attorney, come a co-part- and complain by bill against Jofeph Harris, prefent here in court nerin trade with the fame day, of a plea of covenant broken: for that whereas, a feme fule,accord. ing to the cutem by a certain agreement made the fixth day of Auguft, in the year of the city of Lon- of Our Lord 1792, to wit, at London aforefaid, in the parish of don, carrying on St. Mary-le-Bow in the ward of Cheap, between the faid John the trade of a and Elizabeth, by the refpective names and defcriptions of John print-feiler, car- Walker, of Cornhill, in the city of London, printfeller, carver, ver, and gilder. and gilder, and Elizabeth his wife, of the first part, one Thomas Morgan, by the name and description of Thomas Morgan, of the Inner Temple, London, efquire, of the fecond part, and the faid Jofeph Harris, by the name and defcription of Jofeph Harris, of the city of Bristol, fugar refiner, of the third part (one part of which faid agreement, fealed with the feal of the faid Jofeph, the faid John and Elizabeth now bring here into court, the date whereof is the fame day and year in that behalf aforefaid, reciting that the faid John Walker had, by a certain deed or writing, bearing date the twenty-third day of June, which was in the year of Our Lord 1790, affigned, transferred, and made over unto the faid Thomas Morgan in truft, for and in behalf of the faid Elizabeth Walker his wife, and for her sole and separate use and benefit, and for no other ufe and purpose whatsoever, all and fingular his then ftock, utenfils, and implements in trade, monies, books, debts, and all other properties and effects whatsoever and wherefoever to him the faid John Walker then belonging, and therein for ever quitted all claim and demand whatsoever to, or intereft in the faid trade or business, or any part thereof, or profits arifing therefrom (except as is therein excepted), reference thereunto being had would more fully and at large appear; and further reciting that the faid trade or business was then carried on by the faid E. W. as her fole right and property, and for her fole benefit and advantage, according to the custom of the city of London (excepting as before excepted), and as was thereby acknowledged by the faid John Walker her faid husband, it is by the faid agreement now brought here into court, witnesfed that the faid E. W. had, by and with the advice and consent of her faid hufband, and alfo by and with the advice and confent of the faid Thomas Morgan (party thereto), agreed to take the faid Jofeph Harris as a co-partner in the faid trade or business of printfeller, carver, and gilder, and all and every the parts and branches thereof, and to be carried on in the dwelling-house and fhop of the faid Elizabeth Walker, fituate in Cornhill aforefaid, and in the joint names of them the faid Elizabeth Walker and Jofeph Harris, for and during the term of fourteen years, or until the expiration of the leafe of the house and premises then in the occupation of the faid John Walker, and alfo a moiety or half part of the intereft in the taid leafe, to commence from and after the twenty-ninth day of September then next enfuing the date there of, of, on the terms and the confiderations therein mentioned, that is to fay, the faid Jofeph Harris fhould pay to the faid Elizabeth Walker, on or before the twenty-ninth day of September then next enfuing the date thereof, the fum of three hundred pounds, as a premium or fee to be admitted into a co-partnership with her into the faid trade or bufinefs, and to be entitled to, and receive for his own separate use and benefit one full moiety or half fhare of the benefits and profits that might arife thereupon; and it was by the faid agreement further agreed, that the ftock, utenfils, and implements in trade of the faid Elizabeth Walker fhould be valued, and an account thereof taken by two indifferent persons, one of whom should be chosen by the faid Elizabeth Walker, and the other by the faid Jofeph Harris, or by any other mode of valuation in which they might mutually agree, the amount of the ftock, utenfils, and implements fo valued fhould be taken into the faid co-partnership, and should be accounted and acknowledged to be the capital of the faid Elizabeth Walker; and the said Jofeph Harris did alfo thereby agree to advance and bring into the faid co-partnership such fum or fums of money as should be equal to the amount of the value of the stock, &c. of the said Elizabeth Walker, and which should be advanced and paid in fuch proportions, and at fuch times as might be required, for the use and benefit of the joint concern, the faid Jofeph Harris allowing or paying intereft after the rate of five pounds per cent. for fuch fum or fums as fhould remain unpaid from time to time after the twenty-ninth of September aforefaid, until the whole fhould be advanced or paid, and the fame should be acknowledged or accounted to be his capital as by the faid agreement now brought here into court, reference being thereto had may more fully appear: And the faid John and Elizabeth in fact fay, that although the faid Elizabeth well and truly performed and fulfilled every thing in the said agreement mentioned on her part and behalf to be performed and fulfilled, yet protesting that the faid Jofeph hath not performed and fulfilled any thing in the faid agreement mentioned on his part and behalf to be performed and fulfilled, the faid John and Elizabeth in fact fay, that the faid Jofeph did not pay to the faid Elizabeth, on or before the twenty-ninth day of September next ensuing the date of the faid agreement, that is to fay, the twenty-ninth day of September, in the year of Our Lord 1792, nor hath he at any time fince paid to the faid Elizabeth the faid fum of three hundred pounds, or any part thereof, as a premium or fee to be admitted into the faid co-partnership with her into the said trade or bufinefs, or on any other account whatioever, according to the form and effect of the faid agreement, and of the covenant of the faid Jofeph in this behalf made as aforefaid (although the faid Elizabeth, from the time of the making of the faid agreement, always hitherto hath been ready and willing to take the faid Jofeph into the faid co-partner hip), but hath wholly neglected and omitted fo to do, contrary to the torm and effect of the faid agreement, and of the covenant of the faid Jofeph in this behalf made as Plea that no ar onal covenants as aforefaid: And the faid John and Elizabeth further in fact fay, that the the faid Elizabeth heretofore, to wit, on the twenty-fecond day of September, in the year of Our Lord 1792, at London aforefaid, in the parith and ward aforefaid, did caufe due notice to be given to the faid Jofeph, that fhe the faid Elizabeth would, on the seventeenth day of October then next enfuing (the fame being a reasonable and proper time in that behalf) cause the stock, utenfils, and implements in trade of her the faid Elizabeth to be valued, and an account thereof taken by one R. L. an indifferent perfon chofen by the faid Elizabeth, and did then and there, to wit, on the twenty-fecond day of September, in the year laft aforefaid, at London aforefaid, in the parish and ward aforefaid, require the faid Joseph to chufe fome indifferent perfon to join in the valuation and account of the faid ftock, utenfils, and implements of trade on the part of him the faid Jofeph, according to the tenor, true intent and meaning of the faid agreement, and of the covenant of the faid Jofeph in this behalf made as aforefaid; but the faid John and Elizabeth further fay, that the faid Jofeph did not, on the faid feventeenth day of October, in the year laft aforefaid, or at any other time, chufe any perfon to join with the faid R. L. in the valuation and account of the faid ftock, utenfils, and implements in trade, nor point out or propofe any other mode of valuation whatfoever, but altogether neglected, omitted, and refused respectively fo to do, and ftill doth neglect, omit, and refufe, contrary to the tenor, true intent and meaning of the faid agreement, and of the covenant of the faid Jofeph in this behalf made as aforefaid; and fo the faid John and Elizabeth fay, that the faid Jofeph, although often requested, hath not kept with the faid Elizabeth the covenant made between the faid Jofeph and Elizabeth, but hath broken the fame, and to keep the fame with the faid Elizabeth hath hitherto wholly and ftill doth refufe, to the damage of the faid John and Elizabeth of five hundred pounds, whereby they are the lefs able to fatisfy his faid majefty the debt which they owe to his faid majefty at his faid exchequer; and therefore they bring this fuit, &c. Pledges, &c. AND the faid Jofeph Harris, by A. B. his attorney, comes ticles of co-part- and defends the wrong and injury, when, &c. and prays oyer of nership, with the faid agreement, and it is read to him in these words, to wit: meceljary additi- [this agreement, made this, &c] which being read and heard, have been legal. the faid Jofeph fays, that the faid John and Elizabeth ought not ly made accord to have or maintain their aforefaid action thereof against him, being to the effect cause he fays, that no articles of co-partnership covenant or of the indenture, agreement in the faid declaration mentioned, have at any time been legally made with fuch additional covenants as might be neceflary for the due performance thereof, according to the form and effect of the faid indenture; and this he is ready to verify: wherefore he prays judgment if the faid John and Elizabeth ought to have or maintain their aforefaid action thereof against for the performance thereof. |