1761, in the said articles mentioned according to the tenor, true intent and meaning of the conditions of the faid writing obligatory and the faid articles; and that he the faid William Colcraft hath not at any time fince the making the faid writing obligatory and the faid articles, vended or dealt in ftationary wares, books or pamphlets, except magazines and periodical pamphlets, which are ufually deemed the bufinefs of a news-man; but the faid William Colcraft further faith, that before and on the faid 16th day of July in the year of our Lord 1770, and from thence hitherto (during all which time the faid news-paper called the Daily Advertifer hath been published) fhe the faid Ann as adminiftratrix of the goods and chattels, rights and credits of the faid William Cooke hath neglected and refufed (although often requefted) to procure the faid William Colcraft or his affigns, 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 firft impreffion of the faid paper early every morning as foon as the fame was published, but therein wholly failed and made default, and he the faid William Colcraft had not, nor had his affigns or affignees during all that time, or during any part thereof by the procurement of the faid Ann or otherwife, 30 copies of the faid paper of the firft impreffion of the faid paper, early every morning as foon as the fame was publifhed, contrary to the tenor and effect of the faid articles, whereby the faid William Colcraft loft and was deprived of the benefit of the fale of the faid paper, which ought according to the tenor of the a:ticles aforefaid to have accrued to him (to wit) at Westminster aforefaid; and this he the faid William Colcraft is ready to verify wherefore he prays judgment if the faid Ann ought to have her aforefaid action thereof againft him, &c. And for further plea in this behalf, he the faid William Calcraft by like leave of the court for this purpose firft had and obtained according to the form of the ftatute in fuch case made and effect, with provided faith, that the faid Ann ought not to have her aforefaid action thereof against him; because he faith, that he the faid William Colcraft paid and caufed to be paid to the faid William Cooke, always during the life-time of the faid William Cooke, weekly and every week, and from and after his death until the 16th day of July in the year 1770, unto the faid Ann, weekly and every week the weekly fum of 8s. of lawful money of Great Britain, clear of all taxes and deductions what foever, the first payment whereof was begun and made on Monday the 23d day of November, in the year of our Lord 1761, in the faid articles mentioned, according to the tenor, true intent and meaning of the condition of the faid writing obligatory and of the faid articles, and that he the faid William Colcraft hath not at any time fince the making of the faid writing obligatory, and the

3d Plea.

To the like

little varia

tion.

facts contrary

to the faid

articles of

faid articles vended or dealt in flationary ware, books or pamphlets (except magazines and periodical pamphlets which are ufually deemed the business of a news-man) but the faid But defandWilliam Colcraft further faith, that fince the death of the faid ant further William Cooke (to wit) before and on the faid 16th day of July, plaintiff bath fays that in the year of our Lord 1770, and from thence hitherto, fhe the done fome faid Ann hath vended fold and dealt in magazines and other periodical pamphlets, which are generally deemed to belong to the bufines of a news-man, and which were not, nor were, nor was agreement. any or either of them fold or dealt in or vended by her the faid Ann, for the fole benefit of him the faid William Colcraft, or his affigns or affignee, or in any manner for the benefit of him or them, any or either of them (to wit) at Weftminfter aforefaid, contrary to the tenor and effect of the faid articles, whereby the faid William Colcraft loft and was deprived of the benefit of the fale of the faid magazines and other periodical pamphlets, fo by her the faid Ann fold as aforefaid, and which ought accordingly to the tenor of the articles aforefaid to have accrued unto him (to wit) at Westminster aforefaid; and this he the faid William Colcraft is ready to verify wherefore he prays judgment if the faid Ann ought to have her aforefaid action thereof against him, &c. Wm. Kempe.

concludes to

And the faid Ann as to the faid plea of the faid William by Replication him fecondly above pleaded fays, that the by reafon of any thing to the fecond therein contained, ought not to be barred from having or main- plea in bar taining her aforefaid action thereof against him the faid William the country. Colcraft, because protesting that the faid William Colcraft did not pay or caufe to be paid unto the faid William Cooke always during the life-time of the faid William Cooke, weekly and every week, and from and after his death until the 16th day of July 1770, unto the faid Ann, weekly and every week, the weekly fum of 85. of lawful money of Great Britain, clear of all taxes and deductions what foever, in manner and form as the faid William hath above in his faid fecond plea alleged; yet for a repli cation in this behalf the faid Ann fays, that the faid William Colcraft has had and received 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 firft impreffion of the faid paper, early every morning as foon as the fame was published by the procurement of the faid Ann, according to the tenor and effect of the faid articles; and this fhe prays may be inquired of by the country.

Plaintiff de

muis gene

And the faid Ann fays, that fhe by reafon of any thing in the faid plea of the faid William by him thirdly above in pleading rally to the alleged, ought not to be barred from having or maintaining Vol. III.

СС

her

third plea, as being bad in point of fubfance.

Defendant

joins iffue to tion to the fecond plea, and joints in

the replica

demurrer as to the third plea.

her aforefaid action thereof againft him the faid William Colcraft, because the fays that the plea aforefaid, and the matter therein contained, are not fufficient in law to bar the faid Ann from having or maintaining her aforefaid action thereof against the said William, to which faid plea the faid Ann is under no neceffity, nor is fhe in any wife bound by the law of the land to anfwer; and this fhe is ready to verify: wherefore for want of a fufficient plea in this behalf the faid Ann prays judgment and her debt, together with her damages by occafion of the detaining that debt, to be adjudged to her, &c.

Thomas Walker.

And the faid William as to the faid plea of the faid Ann by her above pleaded, in reply to the faid plea of the faid William by him fecondly above pleaded, and whereof the faid Ann hath put herfe!f upon the country, he the faid William doth the like, &c. And the faid William inafmuch as he in his faid plea by him thirdly above in pleading hath alleged fufficient matter in law to bar the faid Ann from having her aforefaid action thereof against him, which he the faid William is ready to verify, and which faid matter the faid Ann doth not deny, nor in any manner answer the fame, but hath altogether refufed to admit the verification thereof, he the faid William as before prays judgment, and that the faid Inn may be barred from having her aforefaid action thereof against him, &c.

William Kempe.

In this term, the demurrer upon the third plea was argued by Serjeant Walker for the plaintiff, and Serjeant Kempe for the defendant.

66

66

Serjeant Walker-The third plea is no legal defence to this action, it is not within the terms of the agreement; the covenant is in these words, viz. "That he the faid William Cooke shall "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 bufinefs of a news-man, except fuch ma gazines 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."This covenant only extends to William Cooke himfelf, not to his reprefentative, it is a mere perfonal covenant, and binds no body but himself; fo that the allegation in the third plea by the defendant, wherein he fays that after the death of the faid William Cooke, the the faid Ann [who is his adminiftrator] hath vended, fold and dealt in magazines and other periodical pamphlets, which are generally

deemed

deemed to belong to the business of a news-man, &c. is nugatory, and no answer to the plaintiff's declaration.

But fuppofing there had been a covenant binding upon the reprefentative of William Cooke, it could not have been pleaded in bar at this cafe, for damages in an action of covenant are uncertain, and in the breaft of a jury; fo 'tis impoffible to plead an uncertain covenant (as damages) in bar of another covenant, as appears by 7 Rep. 10. b. Ughtred's cafe, which cites 48 Ed. 3. 34. for good laws, " where it appears that indentures were

made between Sir Rafe Poole, Knt. of the one part, and Sir "Richard Tolcefter of the other part, by which Sir Rafe cove"nanted with Sir Richard to ferve him with three Efquires "of arms in the war of France, and Sir Richard covenants for "it to pay him forty-two marks, in this cafe each party hath equal remedy." If the prefent cafe had refted upon a condition precedent to have been performed by William Cooke or his reprefentative, it might perhaps have required another confideration, as appears by Ughtred's cafe, 7 Rep. 10, 11. where divers points touching conditions precedent and subsequent, and covenants are laid down and settled.

Serjeant Kempe for the defendants-This cafe refts upon the intention of the parties. The articles of agreement and the bond are to be taken together, as if both were contained in the fame inftrument, whereby William Cooke, a ftationer, being intitled to 30 copies every day of a news-paper called the Daily Advertifer, agrees to affign the fame to the defendant, who in confideration thereof agrees to pay William Cooke 8s. per week; I conceive it is a condition precedent, that the 30 copies fhall be delivered every day to the defendant before the weekly payment fhall be made; the confideration to be paid is not a grofs fum, but a weekly fum which a poor news-man could only raise by fale of the papers; and it is provided that upon failure of payment of the 8s. per week, and upon 4. being in arrear, the whole affignment of the papers to be void; fo that it feems to me very clear that it was a condition precedent that Cooke should first deliver the papers, and then the defendant was bound to pay, and not before. All agreements are executory or executed, this agreement is executory, and the cafe of Thorpe and Thorpe, 1 Lutw. 245. applies to it, and fo does 1 Burro. 900. Hob. 88. and many other cafes cited in Thorpe and Thorpe.,

It is objected this covenant doth not extend to the plaintiff the adminiftrator.In anfwer, it is laid down in Cro. Eliz. 553. Hyde verfus Dean and Canons of Windfor, that a covenant lies against an executor in every cafe, although he be not named, un

CC 2

lofs

2 Black, Rep.. 872. S. C.

An indebitatus

a fumpfit for money lent to

the wife at

lefs it be fuch a covenant as is to be performed by the perfon of the teftator which they cannot perform; and here in this cafe the plaintiff may perform the covenant by not vending newspapers, &c. executors who are to reap advantage fhould be bound by covenant of their teftators. Qui fentit commodum fentire debet et onus; the demurrer admits that Mrs. Cooke has dealt in newspapers for her own benefit, and not for the benefit of the defendant Colcraft, fo the has broken her covenant, which is in the nature of a condition precedent, and ought to have been per formed before fhe can maintain this action, fo I pray judgment for the defendant.

Serjeant Walker was ready to reply; but the court stopped him, they being of opinion that this was a very clear cafe, and the plaintiff muft have judgment.

Curia. The queftion for our confideration is, Whether the third plea is good? And we are of opinion that it is not an anfwer to this action; it appears by the articles that the covenant by William Cooke not to vend or fell any news-papers, &c. was only a reftriction laid on himself, and muft expire with his life; we think this action is well brought by Mrs. Cooke, for it is clear by the agreement that the 8s. per week was to be paid to Cooke and his wife, for their lives and the life of the furvivor: fuppofe Cooke had made a ftranger his executor who was a news-man, fhall that executor be hindered from being a newsman? No certainly.

Judgment for the plaintiff on the demurrer to the third plea (abfent Lord Chief Justice De Grey.)

the request of"

the husband is a good

count.

66

Stephenfon verfus Hardy. C. B.

ACTION upon the cafe upon promifes; the declaration contained eight counts; the fixth count runs thus, viz. That the defendant on fuch a day and year, was indebted to the plaintiff in thirty pounds, for money before that time lent by the plaintiff to Ann the wife of the defendant in his abfence, and at his fpecial inftance and request, and being fo in"debted he promifed payment.' Iffue being joined upon non affumpfit, this caufe was tried at the fitting after laft term, when a general verdict upon all the counts in the declaration was given for the plaintiff.It was proved at the trial that the defendant being about to fet out upon a voyage to Ireland, defired the plaintiff to lend his [defendant's] wife money if the fhould have occafion for it in his abfence, the plaintiff accord