Solomon Levey

Deed of co-partnership betwen Daniel Cooper and Solomon Levey, Merchants, 5 May 1826, W. C. Wentworth

Transcript: 

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This Indenture made the fifth day of May in the year of our Lord one thousand eight hundred and twenty six Between Daniel Cooper of Sydney in the Colony of New South Wales Merchant of the first part and Solomon Levey, also of Sydney in the said Colony Merchant of the second part   Whereas the said Daniel Cooper and Solomon Levey have for some time past carried on general trade and business as Copartners under the Style and firm of “Cooper and Levey” without any Deed of Copartnership having been executed between them And Whereas it hath been agreed that the terms conditions and duration of the said Copartnership shall be defined set forth and limited so as to prevent all mistakes uncertainties and controversies in respect thereof. Now this Indenture Witnesseth that the said Daniel Cooper and Solomon Levey for and by reason of the trust good opinion and confidence which each of them hath in the other and to the intent the better to improve their respective Estates have agreed to continue and become Copartners and joint Traders together in the way of general Trade business and merchandizing under such stipulations provisions and agreements as are hereinafter mentioned expressed and declared of and concerning the same such Copartnership to be considered as commencing from the day of the date hereof and to continue for and during the term of seventeen years subject to be determined at the first ten years or the first seventeen years as hereinafter is mentioned: The said Trade or business to be carried on in the said several messuages tenements warehouses or places wherein the same is conducted at present or in such other messuages tenements warehouses or places as they the said Daniel Cooper and Solomon Levey shall at any time hereafter mutually agree to [indecipherable] rent take or purchase and for the better managing and carrying on the said Trade or business (the said Daniel Cooper as for his part of the capital stock to be employed in the said Copartnership business hath brought in and advanced or will bring in and advance the full sum of Thirty Thousand Pounds in lawful money of Great Britain and the said Solomon Levey hath brought in and advanced or will bring in and advance the like full sum of Thirty Thousand Pounds of like lawful money: And it is hereby agreed between the said parties to these presents that in a fair valuation [indecipherable] shall be made previously to the execution of these presents of the Stock in trade “Bills, Bonds Specialities Messuages Lands Tenements and Hereditaments and all other matters and things Whatsoever of and belonging to each of them the said Daniel Cooper and Solomon Levey [indecipherable] between the said parties hereto or such person and persons as they shall nominate and appoint for that purpose and that the stock in trade and things so valued and appraised shall be taken as part of the Capital Stock so to be brought in by them the said Daniel Cooper and Solomon Levey. And that the said Joint Stock in Trade and business of this Copartnership and all buyings sellings receipts payments debts Bills of parcels specialities and Assurances which during the said Copartnership shall be had made or taken in or touching the said Joint Trade or business shall from time to time be made charged and carried on entered and taken in the said Joint names of the said Daniel Cooper and Solomon Levey under the said Style and firm of Cooper and Levey and to and for their mutual benefit and advantage and that each of the said parties hereto his Executors and Administrators at all times during the continuance of this Copartnership and at the ceasing and dissolving or other sooner determination thereof shall have and enjoy his proportionable share right title and interest of in and to all gains profits increase and benefit whatsoever which shall arise accrue or be made in or by the said Joint Trade or business and Capital Stock thereof and for his and their own respective use and benefit.  And that each of the said parties shall or may upon or after the dissolution or other determinations of this Copartnership by death or otherwise receive and take his and their said part or share of all and singular the premises to his and their own respective use in manner hereinafter mentioned and expressed without any benefit or claim to be taken by either of the said parties surviving the other as to any part of the then Capital Stock of the said Copartnership whether the same be in reality or personally any Law or Custom or anything herein contained to the contrary in anywise notwithstanding.  And that all debts and duties which are in or shall be owing by the said parties on account of the said Joint Trade or business and all losses and damages which shall happen to the said Joint Trade or business or the gains thereof by bad Debts loss damage decay of Goods neglects mismanagement of Servants and Apprentices fall of Markets or any other accident or event whatsoever  And all Clerks’ and Servants’ wages charges of books and letters Houses Ships and Warehouse rent together with all travelling expenses and all other necessary charges and expences which shall be occasioned laid out or happen in or about the said Joint Trade or business shall at all times during this Copartnership be paid allowed sustained and borne by and out of the joint Stock and gains thereof so that each of the said parties hereto shall pay and bear his proportionable part or share thereof  And it is hereby also declared and agreed that the Principal Clerk for the time being shall be the General receiver of all the money belonging to the said Joint Trade or business who shall thereout pay all petty demands to be approved of and ordered by the said parties and shall from time to time pay all the surplus cash into such Bank or other place of deposit as they the said Daniel Cooper and Solomon Levey shall appoint.  And it is hereby mutually agreed by and between the parties to these presents and each of the said  parties for himself his Executors and Administrators doth hereby covenant promise and agree to and with the other of them his Executors and administrators that he shall at all fit and reasonable times during this Copartnership unless prevented by illness or other inevitable accidents diligently and faithfully apply and employ himself unto and in and about the said Joint Trade or business of this Copartnership and the management hereof and the carrying on the same and the affairs and business thereof for the promoting of the same for the best advantage and benefit of both of them the said parties. And likewise that neither of them the said parties shall under take or go any Journey or Voyage or otherwise absent himself from the business of the said Copartnership for more than seven days without the consent of the other of the said parties first had and obtained in writing. And further that each of the said parties shall and will be true just and faithful to the other of them the said parties in all his bargains buyings sellings receipts payments accounts dealings and transactions in and about the said Trade and business. And thereof upon request of the other of the said parties shall and will from time to time give a true and just account each to the other of them  And it is hereby agreed by and between the said parties that it shall not be lawful for either of them to take out of the cash of the said Joint Stock more than the sum of one thousand pounds for [indecipherable] towards his own private and particular expences for the space or term of two years next ensuing the date hereof and the [indecipherable] gains which shall accrue during the said last mentioned space or term shall go and be in augmentation of the said Capital Stock of the said Copartnership  And that after the expiration of the said last mentioned space or term it shall and may be lawful to and for each of the said parties to take out of the cash of the said Joint Stock the sum of two hundred and fifty pounds quarterly towards his private and particular expences  The said respective sums to be charged to each of their accounts and that neither of them shall take out of the stock or the cash thereof any further sum for his own separate use without the consent of the other of them for  that purpose had and obtained in writing under his hand and that such sum or sums of money so taken and drawn out with such consent shall be payable and be paid by the party having the same within twenty one days  after notice in writing given for that purpose by either of the said parties together with Interest on such sum or sums at the then current or legal rate of Interest in the said Colony from the time of drawing and taking out the same to the time of repayment thereof. And it is hereby mutually agreed by and between the said parties and it is the true intent and  meaning of these presents that neither of the said parties during this Copartnership  shall with his own money not belonging to the said Joint Stock or employed in the said Joint Trade or in business or upon credit given him by any person or persons whatsoever trade traffic or be concerned in any trade or business of any nature or kind soever separately for his own account or in partnership with any other person or persons or in the names of any person or persons in trust for him but only for the account and for the benefit Interest and advantage of the said Joint Trade or business and for the better manifesting of the  true and plain dealings and of all transactions between them the said parties concerning the said Joint Trade business Capital Stock and Copartnership it is hereby covenanted and agreed by and between the said parties that they shall and will provide and keep or cause to be provided and kept such and so many books as shall be necessary wherein they shall forthwith fairly write and enter or cause to be fairly written and entered the just and true particulars of all monies received and paid and of all Goods Wares Merchandizes and Commodities that shall be consigned accepted exported bought sold and received in or delivered out and of all Debts contracted and all other matters affairs transactions and things in any wise relative and necessary or conducting to the manifesting the true affairs state and condition of the said Joint Trade or business of this Copartnership  And that the same Books together with all Bills Notes Letters Specialities Papers and Writings touching or relating to the said Joint Trade or business of this Copartnership shall as well during this Copartnership as afterwards remain open and extant and be kept in some

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Convenient part of the Counting House or place of trade where each of the said parties may during this Copartnership and at reasonable times afterwards have free access to and may come by them or any of them and may read peruse and at the expense of the party desiring it copy out the same or any of them at his free will and pleasure without any let or hindrance of the other of them in that behalf of his Executors or Administrators   And that neither of the said parties without the consent of the other shall send lend or deliver by way of credit or trust any Monies Goods Wares or Merchandizes belonging to the said Joint Trade to any person or persons whomsoever when the other of the said parties shall by writing forewarn or forbid to be credited or trusted   And that neither of the said parties shall without the consent or unless in the absence of the other of them from the said Colony release compound or discharge any debt or duty which during this Copartnership shall be due or owing to the said parties on account of their said Joint Trade or business or Capital Stock thereof save only for so much as shall bona fide be received and brought into the stock or Cash of the said Copartnership  And that each of the said parties shall bona fide answer and pay all such monies or goods belonging to the same as he or they or any other by his order or directions shall receive discharge or give any receipt for   And that neither of the said parties shall during this Copartnership without the consent of the other of them first thereunto had in writing under his hand enter into any deed bond judgment or statute or otherwise become bound or charged as Bail or Surety or give any promissory or other notes or accept any Bill or Bills of exchange for himself and purchase without the knowledge and consent of each other first had and obtained with or for any person or persons whomsoever or do or wilfully suffer to be done any act or thing whatsoever by means whereof the said Joint Stock or trade or the monies goods wares and merchandizes debts increase gains or effects which  shall be in, due, or belonging to the said Copartnership shall or may be prejudiced hindered attached seized expended or be taken in Execution   And that neither of the said parties shall permit or suffer the said Joint Trade or business or the stock thereof or any of the monies goods wares merchandizes debts or effects which are or shall be in, due, or belonging to the same to be in any wise charged or incumbered with or for any private or particular Debt or duty which shall not concern or relate to this Copartnership but that every such private or particular debt or duty shall from time to time be discharged and paid by the party whose debt or duty the same shall be by and out of his particular and private Estate not employed in the Stock or business of this Copartnership   And that each of the said parties his Executors and Administrators shall and will well and sufficiently save harmless and keep indemnified the said Joint Trade or business and the stock and effects thereof from and against all debts and duty incurred and contracted before the commencement of this Copartnership so and in such manner that the said Joint Trade or business and the Stock thereof and the other of the said parties his Executors or Administrators shall not be in anywise prejudicially effected thereby   And that all Apprentice or Apprentices Clerk or Clerks or other covenant Servant or Servants taken to be employed in the said Joint Trade or business during this Copartnership  shall be taken by and with the joint and mutual consent of both the said parties and not otherwise unless either of the said parties shall be absent from the said Colony and shall be maintained during their respective employment therein by and out of the gains and profits of the said Joint Trade or business and all monies paid to or received by the said parties or either of them with or on account of any such apprentice or apprentices clerk or clerks or any other covenant servant or servants shall be added to the Joint Stock for the increase and augmentation of the same and employed therewith for the mutual benefit of the said parties   And also that they the said parties shall and will unless one of them be absent from the said Colony sometime between the first day of [blank] and the first day of [blank] in every year during the continuance of this Copartnership join together and make up state and adjust a true and fair account and valuation in writing of all the monies goods wares and merchandizes effects messuages lands tenements and hereditaments and all the other property of what nature or description whatsoever belonging to or included in the said Joint Stock and of the debts due and owing from or to the said parties in respect of the said joint Trade or business and all other their joint dealings and transactions to the intent that it may thereby plainly appear how much is the net produce of the said partnership Stock and Estate and what gains and profits shall have been made of the said Joint Trade or Copartnership in case of the death of either of the said parties   And that upon the stating of every such annual account all the debts due from the said Joint Business shall be forthwith paid and all such of the said debts as shall be then due to the said Copartners and as shall be deemed bad or desperate shall be separated from the others and shall stand and be accounted by themselves and shall not be estimates or valued in such accounts   And if any monies or other satisfaction shall be had or obtained thereby the same shall be divided between the said parties their Executors and administrators share and share alike   And when such accounts shall be passed the same shall be transcribed in the Ledger of accounts and subscribed by the said parties   And such accounts so stated and settled shall be final and conclusive as to all matters contained therein   And the said accounts so settled shall not be opened or unravelled unless there shall be some error or errors therein amounting to the sum of two hundred pounds and then only for such error or errors and so as the same shall be discovered in the life time of the said parties and not otherwise and upon making up stating and adjusting every such yearly account of and concerning the said Joint Trade or business as aforesaid there shall be in the third year next ensuing the date hereof but not sooner a division made of the annual gains and profits unless it shall be otherwise mutually agreed   And also paying to the said parties the then current and legal rate of interest in the said Colony for such sum or sums of money goods wares or merchandizes as either of the said parties shall have advanced and brought to the said Joint Stock and Trade at the commencement of this Copartnership or at any time afterwards during the same exceeding such sum or sums of money as the other of them the said parties shall have had advanced and brought into the said Joint Stock and trade   And also that if either of them the said parties shall at the commencement of this Copartnership or at any time afterwards during the same have or bring into the said Joint Trade any greater sum or value of money goods wares or merchandizes than his share or proportion of the said Capital Stock of Sixty Thousand pounds amounts unto then and in such case it shall and may be lawful for such party at any time during the said Copartnership upon giving to the other of the said parties six months notice in writing to withdraw and receive out of the said Joint Trade and to convert to his own use such greater sum or value in money goods wares or merchandizes than his said share or proportion of the aforesaid Capital Stock amounts to   And in case either of the said parties shall

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Continue in the said Joint Trade such greater sum or value in money goods wares and merchandizes as aforesaid [indecipherable] the said party shall be repaid the same and every part thereof by and out of the said Capital of the said joint Stock and trade before the said Capital shall be shared and divided between the said parties or their respective Executors and Administrators in manner hereinafter in that behalf mentioned    And it is hereby further mutually agreed by and between the said parties and each of them for himself his heirs  Executors and Administrators doth hereby covenant promise and agree to and with the other of them his Executors and Administrators that at the end or other sooner determination of the said Copartnership the said parties if they be then both living shall within three months next following meet and account together and make cast up settle state and fully adjust between them a true plain perfect and final account and reckoning in writing of for and concerning the said Joint Stock and Trade or businesses and all monies debts goods wares and merchandizes  profits gains advantages effects lands tenements hereditaments property and possessions whatsoever which shall be then in, due, or belonging or in anywise appertaining to the said joint stock or trade or to the said parties on account or in respect thereof    And also of for and concerning all debts sums of money losses charges damages and expenses which by reason or on account of the said joint trade or business shall be by them the said parties due and owing to any person or persons or which they the said parties shall have suffered or sustained by reason or on account thereof  And so and in such manner that it shall and may thereby plainly appear what the true state and condition of the said joint stock or trade shall then be   And which said final account when stated and settled as aforesaid shall after the death of either of the said parties be binding and conclusive and shall not afterwards be opened and called in question by any person or persons whomsoever except manifest error appears   And then only for the purpose of explaining and rectifying such error  And immediately thereupon and as soon as conveniently may be after such final account shall be stated and settled as aforesaid true payment shall be made or good order taken for the true and speedy payment of all such debts and sums of money as at the time of the expiration of the said Copartnership shall be by them the said parties due and owing to any person or persons for or on account of the said joint trade or business   And then also (after in the first place deducting sufficient  for the payment of the said debts) true payment  division and delivery shall be made by and between the said parties (after payment to each of the said parties of the amount of such sum or sums of money as he or they had brought in and paid to the said Capital Stock at their then house or place of business) of all and every such monies debts goods wares and merchandizes effects and other things save and except all and singular the messuages lands tenements and hereditaments which shall be then appertaining to or included in the joint stock or trade) which shall then be due or belonging to the said joint Stock trade or business or to the said partners on account or in respect thereof   And it is hereby further agreed that all debts and sums of money which shall be outstanding due or owing to the said joint stock or trade or to the said partners on account thereof as the same shall from time to time be received and got in (which each of the said parties doth hereby for himself his Executors and Administrators covenant and agree to and with the other of them his Executors and Administrators to do his and their utmost endeavours to receive and get in accordingly) shall immediately thereupon be shared divided and paid to them the said parties respectively or to their respective Executors and Administrators   And thereupon each of the said parties his Executors or Administrators shall make and give unto the other of them his Executors and administrators such assignments of his and their part and share of the said outstanding debts with full power and authority to sue for and recover the same as the party or parties who is or are to have the same debts shall upon such Division as aforesaid reasonably require   And after such division and assignment shall be made neither of the said parties his Executors or Administrators shall receive release compound for or discharge any debtor debts which shall be allotted unto the other of them his Executors or Administrators without the consent of him or them to whom the same shall be so allotted   And it is hereby further agreed that at the end or other sooner determination of the said Copartnership the party who shall receive notice as hereinafter mentioned from the other that the said Copartnership shall at the end or expiration of the time in the said notice specified cease determine and be dissolved shall be at liberty to take the share of the party giving such notice of in and to all and singular the messuages lands tenements and hereditaments then included in belonging or appertaining to the said joint Stock trade or business or to the said partners for, on account of or in respect thereof at the last valuation of the same on the annual statement of accounts between the said parties in manner hereinbefore provided   And the amount of the said valuation shall be paid in manner following that is to say one third part thereof with interest upon the whole at the then current and legal rate of interest in the said Colony at the end of six calendar months – one other third part thereof with interest after the rate aforesaid upon the remaining two third parts thereof at the end of twelve calendar months and the remaining third part thereof with the Interest after the rate aforesaid at the end of eighteen calendar months next after the expiration or other sooner determination of the said Copartnership    And for the better securing  the said payments the continuing party shall within one calendar month next after the expiration or other sooner determination of the said Copartnership execute to the retiring party a bond in double penalty with two sufficient Sureties for the amount thereof and also or like Bond for indemnifying the said retiring party from all debts and demands in respect of the said messuages lands tenements and hereditaments upon the delivery of which bonds the said retiring party shall at the expense of the continuing party convey and assure his share of the said messuages lands tenements and hereditaments to the said continuing party or his appointees as the said continuing party or his Counsel shall lawfully direct and require   And in case the said continuing party shall decline to take the said messuages lands tenements and hereditaments at the said valuation but not otherwise then the said retiring party shall be at liberty to take the same in and upon the like terms and conditions in all respects   But in case both of the said partners shall decline to take the said messuages lands tenements and hereditaments then the same shall be sold by public auction or private contract as shall be agreed by the said parties and the money to be produced by such sale (after payment of all expences attending the same) shall be divided between the said parties in equal shares and proportions:  [Note in margin:] In case of death of either Partner  Provided always and it is hereby declared and agreed by and between the parties hereto that in case of the decease of either of the said parties before the expiration or other sooner determination of the said Copartnership the said joint trade or business shall for one year next following such decease (if the other party shall so long live) be carried on by the surviving partner for the benefit of himself and the Executors or Administrators of the party deceased under and subject to the like terms conditions and agreements as the said Copartnership between the said Daniel Cooper and Solomon Levey is hereby agreed to be carried on and that as fully and efficiently to all intents and purposes as if the names of the Executor and Administrator Executors or Administrators of the party deceased had been originally inserted in these presents in lieu of the name of the said party save only that the said Executor or Administrator Executors or Administrators shall not himself or themselves be empowered or be at liberty to do any act matter or thing whatsoever which his or their testator or Intestate could or might do under and by virtue of these presents without the sanction authority and concurrence of the surviving party who is to have the sole and exclusive management of the said Copartnership trade or business subject to the advice and consent in all things of the said Executor Administrator Executors or Administrators of the party deceased who shall not be at liberty to interfere in any manner in the mode of conducting the said Copartnership trade or business

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during the said last mentioned term except by protesting against the same in writing in which case if the surviving party shall persist in the measure or transactions so protested against it shall be at the sole risk of the said surviving partner and shall be considered and deemed to be to all intents and purposes a particular and private credit debt or transaction of his own for which the representatives of the said deceased partner shall be in no wise held or taken to be responsible either in law or at Equity  [Note in margin:] In case of D Cooper’s death John Wood is nominated Provided also and it is hereby further declared and agreed that in the event of the decease of the said Daniel Cooper after the approaching departure of the said Solomon Levey from the said Colony that the said Copartnership trade or business shall be carried on during the absence of the said Solomon Levey by John Wood of Chipping in the said Colony in the room place and stead of the said Solomon Levey under and subject to the like terms clauses articles covenants conditions and agreements as are herein mentioned expressed entered and agreed upon between and by the [said] parties hereto or as near thereto [indecipherable] as the circumstances of the case will admit  Provided also and it is hereby further declared and agreed that in the event of its becoming necessary that the said John Wood should take upon himself the burden of the trade and business of the said Copartnership during the aforesaid absence of the said Solomon Levey the said John Wood shall be allowed ten percent on the clear profits of the said trade or business during the time he shall carry on the same   And if the aforesaid percentage shall not be equal to the sum or rate of five hundred pounds per annum of lawful money of Great Britain then the said John Wood shall be allowed whatever deficiency may exist from the funds of the said Copartnership so that the said John Wood may at all events receive for his trouble whilst entrusted with the management of the Said trade or business a salary not less than the [indecipherable] annual sum or rate or five hundred pounds   Provided always and it is hereby further declared and agreed that in the event of the decease of either of the said parties aforesaid it shall and may be lawful for the surviving party after the expiration of the said term of one year to take the said messuages lands tenements and hereditaments at the like valuation and upon the like terms and conditions as are hereinbefore provided in the event of the expiration or other sooner determination of the said Copartnership during the life time of the said parties  Provided also and it is hereby further declared and agreed that in the event of the decease of either of the said parties aforesaid and after the Expiration of the said term of one year next after such decease the like adjustment and settlement of accounts the like deduction for payment of debts due by the said Copartnership and the like payment division and delivery shall be made by and between the said surviving party and the representatives of the party deceased of all and every such monies debts goods wares and merchandizes effects and other things which shall be then in or due belonging or appertaining to the said joint stock trade or business as are hereinbefore provided in the event of the expiration or other sooner determination of the said Copartnership during the life time of the said parties as aforesaid   And it is hereby further agreed by and between the said parties hereto that in case either of them shall happen to die during this copartnership then also such esteemed bad and desperate debts due or owing to or on account of the said joint trade or business as shall not have been deemed and accounted as a good estate and as such cast up and included in such yearly account or accounts shall be stated with all convenient speed be divided and shared between the surviving party and the Executors And Administrators of the party deceased who shall give unto each other and to the Executors and Administrators of each other full power and authority to sue for get in and receive his and their respective parts and shares of such esteemed bad debts  Provided always and it is hereby expressly declared and agreed by and between the said parties hereto that neither of the said parties shall or will without the consent in writing of the other of them for that purpose first had and obtained sell assign or transfer his share or interest in the said joint trade business or Copartnership or any part thereof respectively to any person or persons whomsoever   And also that in case any dispute or difference shall happen to arise between the said parties to these presents their respective Executors or Administrators touching or concerning the said joint trade business or Copartnership or any of the accounts transactions or dealings relating thereto or the construction of these presents or of any covenant clause matter or thing herein contained the same shall be finally determined settled and adjusted by the award determination or arbitrament of two indifferent persons one to be chosen or named by the said Daniel Cooper his Executors or Administrators and the other by the said Solomon Levey his Executors or Administrators so as such award determination or Arbitrament be made given and delivered in writing under the hands and Seals of such arbitrators to the said parties their respective Executors or Administrators or such of them as shall demand the same within three months after the choice and nomination of the said Arbitrators  And in case the said arbitrators shall not make and deliver their said award determination or arbitrament within the time so limited for doing thereof then the said parties their Executors or Administrators shall stand to obey abide by and perform and keep such award umpirage and final end and determination of such umpire as shall be nominated and chosen by the said Arbitrators so as such umpire shall make and deliver his award determination or arbitrament in writing under his hand and Seal to the said parties their respective Executors [or] Administrators within one month next ensuing the choice of such umpire touching all such matters in difference between the said parties their respective Executors or Administrators or any of them   And it is hereby further covenanted concluded and agreed by and between the said parties hereto that in case either of them shall be minded and desirous to make an end of this Copartnership at the end of the first ten or first seventeen years next after the date hereof and shall give twelve months notice of such his mind and desire in writing under his hand unto the other of the said parties immediately preceding either of the said terms of ten or seventeen years that then and immediately after the expiration of the said term of ten years or seventeen years this present Indenture and the Copartnership between the said parties shall cease determine dissolve and be at an end and be absolutely void to all intents and purposes whatsoever In Witness whereof the said Daniel Cooper and Solomon Levey have hereunto set their hands and seals the day and year first above written
Daniel Cooper                                Solomon Levey

[On reverse of document:]

Signed Sealed and Delivered In presence of
[Chas H Chambers]
M Macauliffe