To the Sheriff of our county of Suffolk his Undersheriff or Deputy Greeting. We command you to Attach the Goods or estate of James Apthorp of Boston within our county of Suffolk merchant to the value 177of ten thousand pounds lawful money of Great Brittain and for want therof to take the Body of the said James if he may be found in your precinct and him safely keep so that you have him before our Justices of our Inferior Court of Common pleas next to be holden at Boston within and for our said county of Suffolk on the first Tuesday of October next, then and there in our said Court to answer to William Gardiner late of said Boston merchant in a plea of covenant broken, for that by a deed of Indenture made and executed at Boston aforsaid on the first day of January A.D. 1763 by and between the said James of the one part and the said William by the name of Wm. Gardiner of Hartford in the county of Hartford and Colony of Connecticut merchant on the other part, one part of which said Deed of Indenture of that date sealed with the seal of the said James shall be in court produced,2 he the said William in consideration of the sum of twenty six hundred pounds lawful money of the Province of the Massachusetts Bay to him in hand paid by the said James in notes of hand payable to the said James and William in company, and in consideration of the covenant in said Deed contained on behalf of the said James, did release and quit claim to the said James as well all the agreements and covenants contained in certain articles of copartnership between him the said James and the said William as well as all his the said Williams right title claim Interest and demand of in and to the Goods, Moneys, effects, debts (except the notes aforsaid) that were then belonging or due to the said James and William in company. And further the said William by said deed of Indenture did then and there covenant to and with the said James that he the said William would pay one half the expences attending the shipping of all the English goods that then were at Hartford aforsaid belonging to the said company to Boston aforsaid and would in case of any loss that should arise on such Goods by shipping the same as aforsaid bear one half of all such losses, and that he the said William would deliver to the said James all the monies notes papers books and goods belonging to said company (except the notes before excepted) as soon as he the said William conveniently could that were then in his possession, and 178would from time to time deliver to the said James all such moneys, notes, bonds, papers, and goods (except the notes before excepted) as should come to his the said Williams hand and possession that belonged to the said company, he the said James paying the charges thereof, if any there should be. In consideration whereof the said James did then at Boston aforsaid by said deed of Indenture among other things covenant with the said William that he the said James would on or before the first day of January A.D. 1764 pay and deliver to the said William the further sum of three thousand five hundred and thirty three pounds six shillings eight pence like money in good notes on interest that should then be due and payable on demand, and that he the said James would make good and pay to the said William all such sums of money as should not be recovered by and paid to the said William in the same notes which he the said James should put into his the said Williams hands for the payment of the said sum of three thousand five hundred and thirty three pounds six shillings and eight pence; that he the said James would make good and pay to the said William all losses that should or might arise on any or all of said last mentioned notes, and also that he the said James would pay all the debts that were then or should thereafter become due from said company to any Person or persons whomsoever for any matter cause or thing whatsoever and would for ever thereafter indemnify and save harmless the said William of and from all debts and demands then due or that might thereafter become due from the said company on any account whatsoever.3 And the said William did at said Boston on the said first day of Jany. A.D. 1763 by said deed of Indenture further covenant with the said James that he the said William, in case the money due on any of the said notes should not be paid within six months after the same should be demanded by the said William, that then he the said William would cause the same to be sued for and would prosecute all such suits and obtain Judgment as Soon as he could for the recovery thereof, and would do his endeavour to obtain satisfaction of all such Judgments, and in case he the said William should neglect to prosecute as aforsaid then he should take the risque of the payments of all such notes upon himself and bear the loss, if any, accrued. And that the said James by said deed of Indenture then, viz., on the first day of Jany. A.D. 1763 at Boston aforsaid, did further covenant with the said William that in case the 179said William should put any of the last mentioned notes in suit and should not finally obtain full satisfaction thereof in money but should be obliged to levy his the said Williams execution on and take real estate in discharge of all or any part of the same, then he the said James would after notice thereof pay to the said William at said Williams election other notes on interest due in the year A.D. 1764 the amount of what he the said William should so take in real estate as aforsaid. And the said William then, to wit on the said first day of Jany. A.D. 1763 at Boston aforsaid, by said deed of Indenture did further covenant with the said James that he the said William would quit claim to the said James all the right and title that he the said William should have in any such real estate so taken as aforesaid, the said James requiring it and being at the cost of the conveyance.4 Now the said William in fact saith that he hath well and truly performed and fulfilled all and singular the covenants contained in said deed of Indenture on the part of the said William to be performed and fulfilled according to the true Intent and meaning of the same, yet the said James tho requested hath not paid all the debts that were then and now due from the company, nor hath he the said James tho requested indemnified and saved harmless him the said William of and from all debts and demands that were then, to wit on the said first day of Jany. A.D. 1763, and are now due from said company. For that on the twenty fifth day of Jany. A.D. 1765 there was due from said company to Messrs. Trecotheck and Thomlinson the sum of six thousand nine hundred and forty nine pounds eleven shillings and seven pence sterling with interest from the said James and William in company as aforsaid, which said sum and the interest thereof then at Boston aforsaid by the said Messrs. Trecothick and Thomlinson was demanded of the said William as one of the said first mentiond company, and the said William is still held and obliged to pay the same and never discharged or Indemnified by the said James therefrom. So the said James his covenants aforsaid hath not kept but broke the same to the damage of the said William as he says the sum of twelve thousand pounds lawful money of Great Britain which shall then and 180there be made to appear with other due damages. And have you there this writ with your doings therein. Witness Eliakim Hutchinson Esq. at Boston this twelfth day of September in the sixth year of our Reign Annoque Domini 1766.

For want of Goods or estate to Attach of the within named James Apthorp I took his Body and have taken bail to Respond the action at time and Court within mentiond.

And the said James comes and defends &c.,2 and saith that the said William hath not been damnified by any demand made upon him by Messrs. Trecothick & Thomlinson or in any manner as the said William in his Declaration hath alledged and supposed and thereof the said James puts himself on the countrey.

And the said William says that the plea aforsaid pleaded by the said James in manner and form afore pleaded and the matter in the same contained are insufficient in Law and that he the said William to that plea in manner and form aforsaid pleaded hath no necessity nor is bound by the Law of the Land in any way to answer and this he is ready to verify wherefore for want of a sufficient plea in this behalf the said William prays Judgment and the damages by reason of the premises to be adjudged to him and costs.

And for causes of demurrer in Law in this behalf according to the 181form of the Statute in such case made2 he sets down and to the Court here expresses the causes following

And the said James says that the plea aforsaid by him in manner aforsaid pleaded and the matter therein contained are good and sufficient in Law to preclude him the said William from his action aforsaid against him the said James which plea the said James is ready to Verify &c. and because the said William doth not answer to that plea nor hitherto any ways deny the same he the said James prays Judgment that the said William may be precluded from his action aforsaid against him and he be allowed his Costs.