
    *Lockridge v. Carlisle.
    August, 1827.
    Covenant — Construction of. — A covenant to use reasonable diligence in collecting debts, is not a covenant to pay at all events.
    Pleading — Plea with Verification — Replication.— where a plea concludes with a verification, there cannot be a joinder oí issue vvitbout a replication.
    This was an action of covenant brought in the Superior Court of Bath County, by Carlisle against Lockridge. The covenant was in these words: “Received of John Carlisle notes on men in Virginia, for collection, to the amount of nine hundred and ninety-six pounds, which I will be bound to him for the amount. Given under my hand and seal, this 27th of September, 1817.” The breach stated in the Declaration was, that the Defendant “had altogether failed to comply with his said covenant on his part, and hath broken the same in the following particulars: 1. By failing to collect the said notes, and to pay the amount collected to the Plaintiff. 2. By failing to pay to the Plaintiff the sum of 9961.
    The Defendant demurred to the Plaintiff’s Declaration, and assigned the following causes: 1. The first breach laid is inconsistent in charging the Defendant with not collecting the notes, and with not paying the amount collected. 2. The amount collected, and the amount not collected, are not particularly set forth. 3. Eor not averring that any part had been collected. 4. Eor not averring that a reasonable time had elapsed since the Defendant’s undertaking, and that he had failed to use due diligence in the collection. To the second breach the Defendant demurred, because it presented no cause of action, the Defendant not being bound, at all events, immediately to pay the sum of 9961. as the said breach supposed.
    The Defendant also pleaded three several pleas, all concluding with a verification. The third was rejected by the Court, and issue was joined on the remaining pleas.
    *The Jury found a verdict for the Plaintiff, and the Court gave Judgment accordingly.
    The Defendant appealed.
    Johnson, for the Appellant.
    Chamberlayne, for the Appellee.
    
      
       Covenant — Construction.—See monographic note, on “Covenants” appended to Todd v. Summers, 3 Ur a It. 167.
    
    
      
       Pleading Flea with Verification-Replication.— There cannot be an issue, where there is a plea of new matter, concluding with a verification, without a replication. Henry v. Ohio River R. Co., 40 W. Va. 234, 238, 21 S. E. Rep. 863, 865. citing the principal case as authority. To the same eifect the principal case was cited in Briggs v. Cook, 99 Va. 276, 38 S. E. Rep 148. and distinguished in Douglass v. Central Land Co . 12 W. Va. 512.
    
   August 21.

JUDGE CABELL

delivered the opinion of the Court.

The covenant was, not to pay at all events, but that he would use reasonable diligence in collecting the debts, and would pay the amount collected, upon request. The demurrer, therefore, should have teen sustained, and Judgment given /or the Defendant.

Moreover, there was no issue joined on the second plea, there being no replication. There cannot be a joinder of issue, without a replication, where the plea concludes with a verification.

Judgment to be reversed, and entered for the Appellant. 
      
       The President. and Judge Coadter, absent.
     