1853. BOWER V. HODGES. thenceforth, and from time to time, and at all times thereafter during the continuance of the said licence, pay or cause to be paid unto the said Richard Prosser, his executors, administrators, or assigns, the rent or royalty reserved and made payable to him and them by the said licence, at the time or times and in the manner in which the same was in and by the said licence reserved and made payable, and likewise would observe, perform, fulfil, and keep the covenants, agreements, stipulations, provisoes, and other conditions contained in such licence, and on the part of the said Charles Palmer, his executors, administrators, or assigns, to be performed, fulfilled and kept: That, by indenture dated the 22nd of October, 1842, and made between the said Charles Palmer of the one part, and the plaintiff of the other part, and sealed, &c., reciting the said letters-patent, and the said indenture or licence of the 20th of June, 1840, and an agreement between the said Charles Palmer and the plaintiff that the plaintiff should advance in the said patent manufacture and business, for carrying out the same, a sum of 20007., and should be entitled to two equal third parts of the profits of the said business, and that the said Charles Palmer should be entitled to one equal third part of the said profits, and that a deed should be prepared for carrying out such arrangement as therein mentioned, and that such deed should effect an assignment of the said licence to the plaintiff for the purpose of giving better effect to the said arrangement, and that pursuant to the said agreement the said assignment of the 4th of May, 1842, was made, and that disputes had arisen, and that it had been agreed that such declaration, assignment, release, and covenants, should be made and entered into as thereinafter contained, they the said Charles Palmer and the plaintiff thereby declared, that, with the mutual assent of each other, they determined and dissolved, from the 20th of September then last, the partnership in which they were engaged as thereinbefore mentioned, and, for the considerations therein mentioned, the said Charles Palmer assigned, transferred, and set over unto the plaintiff, his executors, administrators, and assigns, all the share and interest of him the said Charles Palmer in the stock in trade, debts, moneys, and effects of the said partnership, and especially in the said licence of the 20th of June, 1840, and all right, title, possibility, property, claim, and demand whatsoever, both at law and in equity, of the said Charles Palmer, into, out of, or upon the same, and every part thereof; and the plaintiff thereby covenanted with the said Charles Palmer, that he, the plaintiff, his executors, administrators, and assigns, would, as from the 29th of September then last, and thenceforth from time to time, and at all times thereafter during the continuance of the said licence, pay or cause to be paid unto the said Richard Prosser, his executors, administrators, or assigns, the rent or royalty reserved and made payable to him and them in and by the said licence, at the time or times, and in the manner, in which the same was in and by the said licence reserved and made payable, and likewise would observe, perform, fulfil, and keep the several covenants, agreements, stipulations, provisoes, and other conditions contained in such licence, and which on the part of the said Charles Palmer, his executors, administrators, or assigns, were thereby required, as from the said 29th of September then last, and thenceforth to be observed, performed, fulfilled, and kept: That, by deed dated the 5th of September, 1845, and made between the plaintiff of the first part, the defendant George Selby of the second part, and the defendant William Robert Hodges of the third part, and sealed, &c.-reciting the said several indentures of the 20th of June, 1840, the 4th of May, 1842, and the 22nd of October, 1842, and that the plaintiff 1853. BOWER v. HODGES. 1853. BOWER v. HODGES. did, on or about the 25th of December, 1842, enter into partnership with the defendant George Selby in the business of making and selling iron tubes under the said licence, and that the same licence formed part of the property of the said partnership, and that, accordingly, by deed bearing date the 1st of September, 1845, and made between the plaintiff of the first part, the said George Selby of the second part, and Thomas Selby of the third part, the said licence was assigned to the said Thomas Selby, his executors, administrators, and assigns, in trust for the plaintiff and the said George Selby, their executors, administrators, and assigns, and to be assigned and disposed of as they should jointly direct, and that the plaintiff and the defendant George Selby had mutually agreed to dissolve the said partnership, as from the 25th of December then last, and that the defendant George Selby intended to carry on the said business in partnership with the defendant William Robert Hodges, and that it was agreed that such business should be carried on under the style or firm of "The Patent Welded Iron Tube Company," and that all the share, estate, and interest, of the plaintiff of and in the stock in trade, credits, effects, and property of the said partnership, should form part of the stock in trade, credits, effects, and property of the partnership so to be carried on by the defendants, and that, by a deed bearing even date therewith, and made between the said Thomas Selby of the first part, the plaintiff of the second part, the defendant George Selby of the third part, and Henry Reynolds and Edward Mackeson of the fourth part, the said licence had been assigned to the said Henry Reynolds and Edward Mackeson, their executors, administrators, and assigns, in trust for, and as part of the property of, the said partnership so to be carried on by the defendants, they the defendants covenanted with the plaintiff, that they the defendants, their executors, administrators, and assigns, would well and truly pay, or cause to be paid, all and every the sum and sums of money, and perform all and every the covenants, provisoes, and agreements, which should from the said 25th of December then last respectively become payable, and to be performed, in respect of the said licence and the said letters-patent, under or by virtue of the several thereinbefore recited or mentioned indentures or deeds, or any of them, or otherwise howsoever, and should and would keep harmless and indemnified the plaintiff, his executors and administrators, and his and their estate and effects, goods and chattels, of and from the payment and performance thereof respectively, and all costs, charges, damages, and expenses which might arise in consequence of the non-payment, nonperformance, or non-observance thereof respectively, or of any of them: That, afterwards, and after the 29th of September, 1847, and during the continuance of the said licence (which still continued), and between the day and year last aforesaid and the 20th of September, 1852, the persons carrying on the said business under the said firm or style of "The Patent Welded IronTube Company," made and sold, in pursuance of the aforesaid licence, great quantities of the said iron tubes, and thereby, and before the commencement of this suit, great sums of money became payable to the said Richard Prosser in respect of the said licence and letters-patent, and for the royalty by such licence reserved and made payable: Yet that the defendants had disregarded their said covenant, in this that they had not paid or caused to be paid the same sums of money, and the same still remained unpaid; and the defendants had further disregarded their said covenant, in this, that no just and true account in writing of the quantity in weight of the iron pipes or tubes so sold as aforesaid in pursuance of 1853. BOWER v. HODGES. 1853. BOWER v. HODGES. the said licence, had been delivered to the said Richard Prosser and the plaintiff claimed 10,0007. To this declaration, the defendant demurred, the points marked in the margin of the demurrer being,— that no breach of covenant by the defendants was shewn on the face of the declaration, inasmuch as it was not averred or shewn that any pipes or tubes were made or sold by Charles Palmer, his executors, administrators, or assigns, in pursuance of the licence; and that the first breach was bad, on the ground that the sum payable under the covenant was such as should be payable on the face of the account, and it was not averred that any such account had been rendered. Quain (with whom was Byles, Serjt.), in support of the demurrer. The declaration does not shew any breach of covenant by Palmer, his executors, &c. The covenant is, that Palmer shall deliver to Prosser within seven days after the end of each quarter, a true account of the quantity in weight of iron tubes sold during the quarter under the licence, and pay a certain royalty thereon. This is not an assignment of the patent, but of a licence only, which stands upon a different footing,-Protheroe v. May, 5 M. & W. 675,-inasmuch as it may be assigned to an indefinite number of persons. The declaration shews that the licence is by assignment vested in Reynolds and Mackeson as trustees for the intended partnership: but it does not shew a manufacture of any tubes by Palmer, his executors, administrators, or assigns; consequently there is no breach of the covenant by the defendants to perform the covenants entered into by Palmer in the indenture of the 20th of June, 1840. The declaration does not even aver that the defendants carried on business by the name of The Patent Welded Iron Tube Company. The other breach, -the non-payment of the money,—is premature. The |