an attorney of the Common Pleas, and privileged there. Per totam curiam, there is no caufe of action. For put the cafe as strong as you will; fuppofe one be retained as an attorney to fue for a debt, which he knows to be released, and that he himself were a witness to the release; yet the court held that the action would not lie; for that what he does is only as fervant to another, and in the way of his calling and profeffion. And for fuing an attorney in an inferior court; that (they faid) was no cause of action: for who knows whether he will infift upon his privilege or not? And if he does, he may plead it and have it allowed. 1 Mod. 209, 210.

Gibfon brought an action upon the cafe against Mudford, for caufing him to be taken upon a capias; the defendant faid that J. S. recovered in a certain action against the plaintiff, and that he was the lawful attorney of 7. S. and took out a capias upon the judgment, &c. upon which it was demurred; it was moved that the plea was not good, because it doth not fhew by what warrant he fued out the capias. Per Haughton, the plea is that he was his lawful attorney, ergo well enough. Per Doddridge, an attorney need not enter his warrant, but it is fufficient to file it, and that is the ufage. 2d point. The plea fays, that J. S. had judgment against the plaintiff, but it doth not fay prout patet per recordum, &c. and therefore it was objected it is not good; but per G. Croke it seems good, for it is pleaded that there was a record of the judgment at the time of taking out the capias, which is now reverfed, and therefore we cannot plead prout per recordum, fo it feems well enough without pleading prout per recordum, quod fuit conceffum per curiam. Croke and Haughton thought that if the attorney procures an erroneous judgment for his client, the other cannot have an action upon the cafe against him for it, unless he hath procured it by practice. 1 Roll. Rep. 408. Gibfon verfus Mudford. Trin. 16 Jac. Many other books may be feen touching this kind of injury, and wherein damages are recoverable by the common law, as F. N. B. writ of Difceit, 98 & 99 Comb. 2 Bro. tit. Attorney, pl. 76. Hutt. 125. ftat. Weftm. 1. cap. 29. 2 Inft. 213, 214, 215, &c. &c. &c.

Upon the whole, Norwood in this cafe fued out the capias, delivered it to the officer to be executed, and Mrs. Barker the now plaintiff has been injured by falfe imprisonment, for which the law gives this action, in which all are principals; upon this ground we are all of opinion that judgment must be entered for the plaintiff against both Norwood the real actor, and his client Mrs Braham the nominal actor.

Judgment for plaintiff, per totam curiam.

Cooke

2 Black. Rep. 856. S. C.

[On a covenant that (in

confideration of a weekly

payment to A.

and his executors, &c. for a term certain) A.

act exercife a

particular trade, the executors of A. are not bound to ab

ftain from ex

erciling it.]

This record

mas term, 12 Geo. 3.

Rolls 477 & 478.

Cooke widow, adminiftratrix, verfus Colcraft.

Middlefex, WILLIAM COLCRAFT, late of Gofwell-flreet (to wit) in the county of Middlefex, Dyer, was fummoned to answer Ann Cooke adminiftratrix of all and fingular the goods and chattels, rights and credits, which were of William Cooke her late husband deceafed at the time of his death, who died inteftate in a plea that he render to her the faid Ann gool. of lawful money of Great Britain, which he unjustly detains himfelt hall from her, &c.; and whereupon the faid Ann by Jofeph Kaye her attorney fays, that the faid William Colcraft on the 7th day of November 1761, at Westminster in the faid county of Middlefex, by his certain writing obligatory, fealed with his fcal, became held and firmly bound to the faid William Cooke in his life-time in the faid fum of 300l. of good and lawful money of Great Britain, to be paid to the faid William Cooke, or his certain attorney, executors, adminiftrators or affigns, when he the faid is of Michael- William Colcraft fhould be thereunto afterwards requested; nevertheless the faid William Colcraft (although often requested) hath not paid the faid fum of money, or any part thereof, to the faid William Cooke in his life-time, or to the faid Ann fince the death of the faid William Cooke (to which faid Ann, fince the death of the faid William Cooke' (to wit) on the 12th day of July in the year of our Lord 1769, (to wit) at Westminster aforefaid, in the faid county of Middlefex, adminiftration of all and fingu. lar the goods and chattels, rights and credits of the faid William Cooke at the time of his death, by Frederick by Divine Providence lord Archbishop of Canterbury, primate of all England and metropolitan, was committed ;) but he the faid William Colcraft to pay the fame hath hitherto altogether refused, and ftill doth refufe to pay the fame to the faid Ann, to the damage of the faid Ann of 20l. and therefore fhe brings this fuit, &c. And the faid Ann brings here into court, as well the writing obligatory aforefaid, which teftifies the debt in form aforefaid, the date whereof is the day and year in that behalf above-mentioned; as alfo the letters of adminiftration aforefaid, to her the faid Ann as aforefaid granted, which teftify the granting of the adminiftration aforefaid to the said Ann in form aforefaid, the date whereof is the day and year in that behalf above-mentioned, &c.

Debt upon a

bond for 300l.

aft Plea.

and iffu

And the faid William Colcraft by Philip Carter his attorney Non eft factum comes and defends the wrong and injury when, &c. and faith, that the faid writing obligatory is not his deed, in manner and form as the faid Ann hath aboved thereof complained against him, and of this he puts himfelf upon the country, and the faid Ann

thereon.

doth

of the con

Wm. Cocke, his executors,

&c. 85. a week during his life and his wife's life, and the fur

doth fo likewife. And for further plea in this behalf, he the faid William Cooke by leave of the court here for this purpose first had and obtained, according to the form of the ftatute in fuch cafe made and provided, craves oyer of the faid writing obligatory, and it is read to him, &c. he alfo craves oyer of the con- 2d Plea dition of the faid writing obligatory, and it is read to him in craves oyer. these words, (to wit) The condition of this obligation is fuch, dition, which that if the above-bounden William Colcraft, his heirs, executors is to pay to or adminiftrators, fhall and do well and truly pay or cause to be paid unto the above-named William Cooke, his executors, adminiftrators or affigns, the full fum of 8s. of good and lawful money of Great Britain, clear of all taxes and deductions what foever, weekly and every week during the natural lives of the above-named William Cooke and Ann his wife, and the life of vivor. the furvivor of them, the first payment of the faid weekly fum of 85. to begin and be made on Monday the 23d day of November inftant, and the like fum or weekly payment of 85. on every Monday following during the lives of the faid William Cooke, and Ann his wife, and the life of the furvivor of them, in purfuance and performance of certain articles of agreement bearing equal date herewith, and made or mentioned to be made between the above-named William Cooke of the one part, and the abovebounden William Colcraft of the other part; and alfo if, the faid And for the William Colcraft his heirs, executors or adminiftrators, fhall and performance do well and truly obey, abide, perform, fulfil and keep, all and agreement every the covenants, claufes, articles and agreements, mentioned which are and contained in the faid articles of agreement in all things, according to the true intent and meaning of the faid articles of agreement, then this obligation to be void, or elfe to remain in full force he also craves oyer of the faid articles of agreement in the faid condition of the aforefaid writing obligatory mentioned, and they are read to him in thefe words, (to wit) Árticles of agreement indented, made, concluded and agreed upon this 7th day of November, in the fecond year of the reign of our Sovereign Lord George the third, by the grace of God, of Great Britain, France and Ireland, King, defender of the faith, &c. and in the year of our Lord 1761, between William Cooke of the parish of Saint George, Hanover-fquare, in the county of Middlefex, ftationer and news-man of the one part, and William Colcraft of Gofwell-freet in the parish of Saint Alderfgate, in the

faid county of Middlefex, Dyer, of the other part; whereas the faid William Cooke is intitled according to the agreements and regulations made by the proprietors of a certain news-paper called the Daily Advertifer, and according to the cuftom of newsmen to have and receive daily of the faid proprietors 30 copies of the first impreffion of the faid paper, and the faid William Colcraft hath agreed that the faid William Cooke thall affign his

of articles of

here fet forth.

faid right and title in and to the faid 30 copies of the firft impreffion of the faid paper, and all other his business as a newsman unto the faid William Colcraft, and the faid William Colcraft has agreed, in confideration thereof, to pay the faid William Cooke the fum of 85. weekly and every week, during the joint lives of the faid William Cooke and Ann his wife, and the life of the furviver of them. Now these present articles witnefs, that the faid William Cooke, for the confiderations aforefaid, hath affigned, transferred and fet over, and by thefe prefents doth affign, transfer and fet over unto the faid William Colcraft his executors and adminiftrators, all his the faid William Cooke's right, title and intereft in and to the faid 30 copies of the faid paper called the Daily Advertifer of the first impreffion, as foon as the fame fhall be published, and all his the faid William Cooke's business as a newsman, subject nevertheless to the provifo and agreement herein after mentioned. And the faid William Cooke doth hereby for himself, his executors and adminiftrators, covenant, promife and agree to and with the faid William Colcraft, his executors, adminiftrators and affigns in manner following, (that is to fay) that he the faid William Cooke, his executors and adminiftrators, fhall and will from time to time and at all times hereafter, fo long as the faid paper fhall be published, procure the faid William Colcraft to have and receive daily and every day of and from the proprietors of the faid paper, 30 copies of the faid paper called the Daily Advertifer, of the first impreffion of the faid paper early every morning as foon as the fame fhall be published; and alfo that he the faid William Cooke fhall not, at any time hereafter, vend or fell any news-papers, nor in any wife deal as a news-man in felling news-papers, magazines or other periodical papers which are generally deemed to belong to the business of a news-man, except fuch magazines or other periodical papers as the faid William Cooke fhall fell for the fole benefit of the faid William Colcraft, his executors, adminiftrators and affigns; and further, that he the faid William Cooke fhall and will ufe his utmoft endeavours to procure for the faid William Colcraft all his the faid William Cooke's customers in the bufinefs of a news-man. And the faid William Colcraft in confideration of the premifes doth for himself, his heirs, executors and administrators, covenant, promife and agree to and with the faid William Cooke, his executors, adminiftrators and affigns, that he the faid William Colcraft, his heirs, executors and adminiftrators, fhall and will well and truly pay or cause to be paid unto the faid William Cooke, his executors, adminiftrators and affigns, weekly and every week during the natural lives of the faid William Cooke and Ann his wife, and the life of the furvivor of them, the weekly fum of 8s. of lawful money of Great Britain, clear of all taxes and deductions whatfoever; the first payment of the faid weekly fum of 8s. to be

gin and to be made on Monday the 23d of November instant, and the like fum or weekly payment of 8s. on every Monday following, during the lives of the faid William Cooke and Ann his wife and the life of the furvivor of them; and alfo that he the faid William Colcraft fhall not, during his natural life, vend or deal in ftationary ware, books or pamphlets, except magazines and periodical pamphlets, which are ufually esteemed the bufinefs of a news-man. Provided always, and these prefents are upon this condition, and it is hereby declared and agreed to be the true intent and meaning of thefe prefents, and of the parties here. unto, that if default fhall happen to be made in the faid weekly payments or any of them, fo that there fhall be at any time due to the faid William Cooke, his executors, adminiftrators or affigns, four pounds or upwards on account of the non-payment thereof, that then and in fuch cafe, the affignment hereby made of the faid 30 copies of the faid firft impreffion of the faid Daily Advertifer fhall be void; and the faid William Cooke, his executors, adminiftrators or affigns fhall be at liberty thenceforth to receive the fame from the proprietors of the faid paper, and to difpofe of his right thereto, and to follow the bufinefs of a news-man as if these prefents had not been made, any thing herein contained to the contrary thereof in any wife notwithstanding. Provided alfo, and it is further declared and agreed to be the true intent and meaning of thefe prefents and of the parties hereunto, that in cafe fuch default fhall be made in the faid weekly payments as aforefaid, and the faid William Cooke fhall re-affume his right to the faid 30 copies and the business of a news-man, the faid William Colcraft, his heirs, executors or adminiftrators fhall continue to pay the faid weekly fum to the faid William Cooke, his executors, adminiftrators or affigns, during the lives of the faid William Cooke and Ann his wife, and the life of the furvivor of them, in the fame manner as if the faid William Cooke was to continue and enjoy the faid 30 copies of the faid paper of the first impreffion and the faid Wilham Cooke was to continue to be debarred from exercifing the business of a news-man. In witness whereof the parties first above-named have hereunto set their hands and feals the day and year firft above-written; which Whereupon being read and heard, the faid William Colcraft faith, that the defendant pleads payfaid Ann ought not to have her aforefaid action thereof against ment of the him, because he faith that he the faid William Colcraft paid and 8s. per week caused to be paid unto the faid William Cooke always during the according to life-time of the faid William Cooke, weekly and every week, and of the bond, from and after his death until the 16th day of July in the year and the ar1770, unto the faid Ann, weekly and every week, the weekly fum ticles of of 85. of lawful money of Great Britain, clear of all taxes and agreement. deductions whatsoever, the firft payment whereof was began and made on Monday the 23d of November in the year of our Lord

2

1761,

the condition