Page:The English Reports v1 1900.pdf/1528

alum mines, or alum works, with their appurtenances, in the county of York; by articles, dated the 26tli of February 1703, agreed to demise to William Ward, the appellant's father, and the [582] appellant, the said estate and alum mines for the term of eight years and an half, from Lady-day 1704, under the yearly rent of £2379 in money, and 740 tons of alum, at the prices therein mentioned: and he also agreed to bargain and sell to the said William Ward and the appellant, all his stock of alum, with the materials and utensils for making of alum, then remaining in and upon the said alum works and promises, and that a schedule should be taken thereof and annexed to the intended lease; and the lessees agreed, at the end of the lease, to leave and deliver up to the duke, his heirs or assigns, as large and good a stock of alum, etc. on the premises, as should be mentioned in the said schedule; and that they would likewise execute a bill of sale thereof gratis, to the duke and his heirs.

Accordingly, a schedule was soon after taken, and dated the 16th of March 1703, of all the alum, etc. on the premises, and delivered to the said William Ward; and pursuant to the articles, the duke executed a lease of the premises to him, and the appellant and Joshua Ward his brother, for the said term of eight years and an half, under the said yearly rents and covenants; and the said schedule was annexed to the lease.

About two years afterwards, the appellant persuaded the duke to accept of a surrender of that lease, and grant them a longer term; and thereupon the duke, by indenture dated the 23d of March 1705, demised to the said lessees, the estate, alum mines, works, etc. from Lady-day 1706, for 19 years, under the like yearly rents in money and alum; and he did thereby bargain and sell to the lessees, all the stock of alum, coals, kilp, lead, iron mine burnt and unburnt, fats, furnaces, coppers, coolers, tools, utensils, stores, implements, and things belonging to the duke, which then, or on the 25th of March 1704, were, or at any time since had been remaining in and about the said alum works and other the premises; with an exception in these words, viz. "excepting all or any quantity of rock, or mine, at present lying in any storehouse there, quite finished and made into alum fit to be sold or shipt away." Which said stock and premises, except as before, thereby sold, was expressed and set forth in a schedule or inventory thereunto annexed. And the lessees on their parts, among divers other covenants, did covenant to deliver up to the duke, his heirs and assigns, the alum works and premises in good condition at the end of the term, and to deliver up as large and as good a stock of alum made, and materials, utensils, and things, in and upon the alum works, as were mentioned in the schedule to the said lease annexed; and to execute a bill of sale gratis, to the duke and his heirs, for his and their benefit.

The interest in this lease was afterwards vested solely in the appellant, but that the duke might be certain, at the expira-[583]-tion of the second lease, of having all the particulars comprised in the schedule delivered up to him, the same schedule taken the 16th of March 1703, was annexed to the second lease made the 23d of March 1705; and according to that lease, and by virtue thereof, the lessees continued in the possession of the premises, and of the stock of alum, utensils, and other things mentioned in the said schedule; and were constantly in the possession thereof, till the expiration of the said second lease.

The duke had for several years intrusted and employed the appellant in considerable transactions, for great sums of money; and in the year 1717, he desired an account might be settled between them. The appellant having accordingly made up his accounts, there appeared in one article a gross error, relating to a sum of £9684, to clear which the duke appointed a day to have the appellant's books inspected; but on that day, the appellant pretended that all his books of account, and several receipts from the duke, relating to the payment of several sums of money, had been just before stolen out of his counting-house; whereas the duke denied that he had received any of the sums which the appellant pretended to have paid, and thereupon brought his bill in Chancery against the appellant, to compel him to come to a fair account. To accommodate which suit the appellant proposed to pay the duke £10,000. And although there was at that time very large sums due to the duke, yet, to get rid of the appellant, and to be released of certain agreements of copartnership which had been made about five years before, and were then subsisting, the duke agreed to take that sum, and a release of the copartnership; and general releases were accordingly executed of all matters between them, except the lease of the estate and alum works.

Among many other particulars in the schedule annexed to that lease was an item