That the plaintiff did not request the defendant to render to the plaintiff an account of the sale or of the moneys arising therefrom, or to deliver up to the plaintiff such of the goods as remained unsold, as alleged.

That after the sale of the said goods in that count mentioned, and before this suit, he, upon request, rendered to the plaintiff a true and just account of the sale of the goods, and of the moneys arising therefrom, and delivered to the plaintiff such of the goods as remained unsold [of course the traverse will depend on the form of the allegation denied].

2. Pleas (to Form 3, ante, 40) that Defendant used due Care in selling.

That he did use due care and diligence in endeavoring to sell and selling the said [sugar] for the plaintiff.

3. Pleas (to Form 4, ante, 40).—1st. That Plaintiff did not order Defendant to sell at the Price mentioned.

2d. That Defendant could not obtain the Price.

3d. That Defendant sold Part at such Price.

4th. That Defendant used due Care in trying to obtain the Price. 5th. That Plaintiff consented to delay the Sale, and then allowed Defendant to sell for the Best Price.

That the plaintiff did not order or direct the defendant as alleged. That he could not, by using due care and diligence, have obtained for the said sugar a higher price than the same was sold at.

So far as the same relates to part, to wit, forty-five hogsheads of the sugar therein mentioned, and the causes of action in respect thereof, the defendant says that he did, within a reasonable time after he was so ordered and directed, sell and dispose thereof at the price at which he was so ordered and directed to sell, in obedience to such order and direction.

That he did use due care and diligence in obeying the said order and direction.

That after he was so ordered and directed as in that count mentioned, and before he was able, using due care and diligence in that behalf, to obey such order and direction, he, with the assent and by the authority of the plaintiff, abstained from selling the same sugar, and then, and before this suit, with the assent and by the authority and command of the plaintiff, sold and disposed thereof at the best price which he, using due care and diligence in that behalf, could then obtain for the same.

4. Plea to a Count for Money had, &c. that the Defendant received it as Plaintiff's Agent, and that it was stolen from him.

That the said money was received by him the defendant as the agent and servant of the plaintiff, and for his use and by his permission to be kept by the defendant as such agent and servant in his possession and custody for the plaintiff, until the defendant could pay over the same to the plaintiff; and the defendant further saith, that after he had so received the said money as aforesaid, and before the same or any part thereof was demanded of him by the

plaintiff, and whilst the sum was so in his the defendant's possession and custody as aforesaid, and before the defendant could or might pay over the same to the plaintiff, and before any default in that behalf on the part of the defendant, and before this suit, the said money was unlawfully and feloniously taken, stolen, and carried away, by persons to him unknown, from the defendant as such agent and servant as aforesaid, without his default, and although he then took due and reasonable and proper care of the same.

ALIEN.

OBS. The position of aliens in this country is very much improved by 7 & 8 Vict. c. 66. By s. 4, alien friends may hold every species of personal property except chattels real, with the same rights, remedies, exemptions, privileges, and capacities, as if he were a natural-born subject of the United Kingdom." They can become naturalized, so as to " enjoy all the rights and capacities which a natural-born subject of the United Kingdom can enjoy and transmit," with certain exceptions. S. 6.

An alien friend may enter into contracts, and maintain actions thereon. Bac. Abr. Alien, D.; Co. Litt. 1296. But an action will not lie either by or in favor of an alien enemy; Brandon v. Nesbitt, 6 T. R. 23; and no contract made with an alien enemy in time of war can be enforced in a British court of judicature, although the plaintiff do not sue until the return of peace, and although the plaintiff be a British-born subject resident in the enemy's country; Willison v. Patteson, 7 Taunt. 439; and an alien, carrying on trade in an enemy's country, though resident there also in the character of consul of a neutral state, is considered as an alien enemy, and as such is disabled from suing. Albretcht v. Sussman, 2 V. & B. 323. So a British subject voluntarily domiciled in an enemy's country cannot sue in British courts; M'Connell v. Hector, 3 B. & P. 113; even though he be naturalized in a neutral state; O'Mealey v. Wilson, 1 Camp. 482; but this does not appear to be so unless it be shown that he adheres to the enemy. Roberts v. Hardy, 3 M. & S. 533. A natural-born subject, domiciled in a friendly foreign country, may trade with an enemy's country. Bell v. Reid, 1 M. & S. 726; Houriet v. Morris, 3 Camp. 303.

Where the contract is made with an alien enemy, it is thereby illegal, and the plea should be pleaded in bar; but if the cause of action has accrued before the plaintiff became an alien enemy, the right of action being only suspended, the plea should be in abatement. Flindt v. Waters, 15 East, 260. See Harman . Kingston, 3 Camp. 153.

If the defendant is under terms to plead, a plea of alien enemy will not be allowed. Shepeler v. Durant, 14 C. B. 582.

The wife of an alien enemy cannot maintain an action in her own name on a contract made either before or during coverture. De Wahl v. Braune, 1 H. & N. 178.

If real estates are devised to British-born subjects upon trust for the benefit of aliens, the trust will in equity be executed for the benefit of the crown. Barrow v. Wadkin, 24 Beav. 327.

Plea in Abatement, that the Plaintiff is an Alien Enemy. (d) Commencement as ante, 16.] That the plaintiff is an alien enemy, born in the kingdom of of alien parents, and was not nor is a subject of our lady the queen by naturalization, denization, or otherwise, and is residing in this kingdom without the license, safe conduct, or permission of our said lady the queen. [Conclude as ante, 17.]

(d) See form, Alcenius v. Nygren, 4 El. & Bl. 217; and see Casseres v. Bell, 8 T. R. 166. If the plaintiff became an enemy after the commencement of the suit, the plea

should be pleaded to the further maintenance of the action. See Alcenius v. Nygren, ubi supra; Le Bret v. Papillon, 4 East, 502.

ALTERATION OF A WRITTEN CONTRACT.

OBS. Where the action is founded on a written document, which is set out in the declaration, the general issue, or any plea denying the making of the document in question, will let in the defence that it has been rendered unavailing by any alteration which avoids it under the stamp laws. Mason v. Bradley, 11 M. & W. 590. So it may be shown under such a plea that the instrument has been rendered void at common law (without reference to the stamp acts) by any alteration which causes a variance between the instrument produced in evidence and that described in the declaration, for such a plea says in effect that the defendant did not execute the document declared on; Cook v. Coxwell, 2 Cr., M. & R. 291; but if the plaintiff declare upon the document in its unaltered form (or even in its altered form, provided the alteration were not such as to avoid it under the stamp laws; Parry v. Nicholson, 13 M. & W. 778; and the defendant wishes to contend that the alteration, whether previous or subsequent to execution, vitiated it at common law, then he must plead the alteration specially. Hemming v. Trenery, 7 Ad. & E. 114; Davidson v. Cooper, 13 M. & W. 342; Croockewit v. Fletcher, 1 H. & N. 893. See form, post, "Bills."

The alteration of a written contract in a material or immaterial part by either of the parties to it without the consent of the others; Pigot's case, 11 Řep. 27; Shepherd's Touchstone, 69; or by a stranger in a material part, Ib., renders it void. Davidson v. Cooper, 11 M. & W. 778; 13 Ib. 343; Master v. Miller, 4 T. R. 320; 5 Ib. 367; 1 S. L. C. 776. As to what alterations by strangers vitiate the writing, see Waugh ». Bussell, 5 Taunt. 707; Prew v. Burton, 1 Cr. & M. 533. As to the alteration of a charter-party, Croockewit ɛ. Fletcher, 1 H. & N. 893. As to alteration of bills of exchange, see post, "Bills,' "Obs. [It has recently been held in the court of queen's bench, that a promissory note which did not express any time for payment, but to which, while it was in the possession of the payee, he had added, without the assent of the maker, the words "on demand," was not thereby vitiated; inasmuch as the alteration only expressed the legal effect of the note as originally framed, and was therefore immaterial. Aldous v. Cornwell, L. R. 3 Q. B. 573. This decision is in harmony with the general current of authority. Falmouth e. Roberts, 9 M. & W. 469; Nichols v. Johnson, 10 Conn. 192; Hunt v. Adams, 6 Mass. 519; Smith v. Crooker, 5 Mass. 538; Hatch v. Hatch, 9 Mass. 307; Granite Railway Co. v. Bacon, 15 Pick. 239; Langdon v. Paul, 20 Vt. 217; Adams v. Frye, 3 Met. 103; Pequawket Bridge v. Mather, 8 N. H. 139; Blair v. Bank of Tennessee, 11 Humph. 84; Thornton v. Appleton, 29 Maine, 298; Bassett v. Bassett, 55 Maine, 125; Pope r. Chaffee, 14 Rich. Eq. 69; Skelton v. Deering, 10 B. Mon. 405; Carr v. Welch, 46 Ill. 88; Burnham v. Ayer, 35 N. H. 351; Ames v. Colburn, 11 Vt. 390. As to discharge of guarantor by alteration of guaranty, see Bank of Hindostan v. Smith, 36 L. J. C. P. 241. It has been held in several cases in the United States, that an alteration by a stranger, though material, if made without the procurement or connivance of either party, will not avoid the instrument. Nichols v. Johnson, 10 Conn. 192; Boyd v. McConnell, 10 Humph. 68; Lee v. Alexander, 9 B. Mon. 25; Newell v. Mayberry, 3 Leigh, 250; Wheelock v. Freeman, 13 Pick. 165; Mills v. Starr, 2 Bailey, 359: Rees v. Overbaugh, 6 Cowen, 746; Medlin v. Platte County, 8 Missou. 235; Boston v. Benson, 12 Cush. 61; Bigelow v. Stephen, 35 Vt. 521. And so, even if the alteration is made with the consent of the party claiming under the instrument, provided there be no intent to defraud; Thornton v. Appleton, 29 Maine, 298; Adams v. Frye, 3 Met. 103; Smith e. Dunham, 8 Pick. 246; Willard v. Clark, 7 Met. 435: Rollins v. Bartlett, 20 Maine, 319; Marshall v. Gangler, 10 Serg. & R. 164; and provided, also, that the original contents or tenor of the instrument can be ascertained; Waring v. Smyth, ? Barb. Ch. 119; Lee v. Alexander, 9 B. Mon. 25; or can be proved. Boyd v. McConnell, 10 Humph. 68. But where a party, claiming under a written instrument, wilfully alters it in a material part without the consent of the other party, he cannot afterwards avail himself of it. Babb v. Clemson, 10 Serg. & R. 419; Richmond Manuf. Co. v. Davis, 7 Blackf. 412; Boston E.

OBS. Benson, 12 Cush. 61; Burnham v. Ayer, 35 N. H. 351; Davis v. Coleman, 7 Ired. (Law) 424; Mills v. Starr, 2 Bailey, 359; Newell v. Mayberry, 2 Leigh, 250; Nunnery v. Colton, 1 Hawks, 222; Williams v. Starr, 5 Wisc. 534.]

If the alteration is made by mistake or accident; Raper v. Birbeck, 15 East, 17; Wilkinson v. Johnson, 3 B. & C. 428; Novelli v. Rossi, 2 B. & Ad. 757; see Baines v. Woodfall, 6 C. B. N. S. 657; or if the seal had been torn from a deed by a child; Argoll v. Cheney, Palm. 403; [see Powers v. Ware, 2 Pick. 451, 458–460;] or if the deed be destroyed by accident; Bolton v. The Bishop of Carlisle, 2 H. Bl. 259; or by accident and time; Read v. Brookman, 3 T. R. 151; and see per Lord Ellenborough, Hendy v. Stephenson, 10 East, 60; an action can still be brought on it in its original form. The instrument will not in general be vitiated where all the parties consent to an alteration. [Stewart v. Preston, 1 Florida, 10; Wilkes v. Caulk, 5 Harr. & J. 36: Boston v. Benson, 12 Cush. 61; Wright v. Wright, N. J. (Law) 175; Camden Bank v. Hall, 14 N. J. (Law) 533; Lewis v. Payn, 8 Cowen, 71; Wilson v. Henderson, 9 Sm. & M. 375. As to the respective provinces of the court and of the jury, the burden of proof and the presumptions, in regard to alterations, see 2 Chitty Contr. (11th Am. ed.) 1163, and note (e) and cases cited; Hunt v. Gray, 6 Vroom, 237; Haydon v. Goodnow, 36 Conn. 164; Leake Contracts, 433.] See post," Rescinded Contract.”

1. That a written Contract was altered and made void.

[That the said contract was made in writing and signed by the defendant; and afterwards, and whilst the said contract in writing was in the possession and custody of the plaintiff, it was rendered void by being materially altered without the consent or knowledge of the defendant, that is to say, by [here state the alteration made, as affixing a seal by and near the signature of the defendant as and for the seal of the defendant, or altering the words twenty shillings per bushel into thirty shillings per bushel, or as the case may be, so as to show the materiality of the alteration. If the declaration shows that the contract was in writing, the first allegation may be omitted.] (a)]

2. Replication that the Deed was altered by inserting the Amount. Fazakerly v. M'Knight, 6 El. & Bl. 795.

AMBASSADOR.

OBS. — An ambassador of a foreign state, accredited to and received by the queen, having no real property in England, and having done nothing to forfeit the privileges of ambassadors, cannot be sued in this country for a debt while he remains ambassador. The Magdalena Steam Navigation Co. v. Martin, [2 El. & El. 94.] And a secretary of legation, acting in the absence of his ambassador as chargé-d'affaires, is entitled to all the privileges of his ambassador (Taylor v. Best, 14 C. B. 487, where all the law is collected); and this privilege is not forfeited by his engaging in mercantile transactions. Taylor v. Best, 14 C. B. 487. See 7 Anne, c. 12. But where the servant of an ambassador did not reside in his master's house, but rented and lived in another, part of which he let off in lodgings, his goods in that house, not being necessary for the convenience of his ambassador, are liable to be distrained for poor rates. Novello v. Toogood, 1 B. & C. 554.

(a) [For a like plea, see Mollett v. Wackerbarth, 5 C. B. 181. Plea that the agreement was altered by affixing a seal so as to make it purport to be a deed of the defend. ant; Davidson v. Cooper, 11 M. & W. 778;

13 M. & W. 343; that a charter-party was altered by the insertion of material words; Croockewit v. Fletcher, 1 H. & N. 893. Other forms, see Stobart v. Dryden, 1 M. & W. 615; Harden v. Clifton, 1 Q. B. 523.]

1. Plea to an Action of Debt, that the Defendant is an Ambassador. The Magdalena Steam Navigation Co. v. Martin, 28 L. J. Q. B. 310; [2 El. & El. 94.]

ANNUITY.

OBS. The general issue non est factum to an action on an annuity deed, denies the execution of the deed. The 17 & 18 Vict. c. 90, repeals the 53 Geo. 3, c. 141, which required the enrolment of a memorial of annuity deeds. For forms in cases arising under the repealed acts, see the 2d edition of this work, 445.

APOTHECARIES.

OBS.In an action for an apothecary's bill, the defendant may, under never indebted, put the plaintiff on proof that he is registered according to 21 & 22 Vict. c. 90, s. 30. Sect. 27 points out the mode of proof. See ante, 47, Apothecaries."

college, may, if by-law having Gibbon M. D.

Since the 21 & 22 Vict. c. 90, a physician, not a fellow of the registered, recover his fees without a special contract, no been passed to restrain the general members from doing so. v. Budd, 32 L. J. Ex. 182. It is sufficient if the registration has taken place at any time before trial, Turner v. Reynall, [14 C. B. N. S. 28 ;] and, per Erle C. J. and Byles J., it is sufficient if one of two partners is registered. Ib.

APPRAISER.

Plea that Plaintiff was not duly licensed.
Palk v. Force, 12 Q. B. 666.

APPRENTICE. See ante, 49, Obs.

1. General Issue, Non est Factum.

Ante, 285.

2. That, up to a certain time Defendant did teach, &c. and that then the Apprentice without leave quitted the Defendant's Service and never returned.

Hughes v. Humphreys, 6 B. & C. 680. See Winstone v. Linn, 1 B. & C. 460.

[2a. That Apprentice would not be Taught.

Rayment . Minton, 35 L. J. Q. B. 153.]

3. That the Plaintiffs were Partners when Apprentice Deed was executed, and that they have since dissolved.

Lloyd v. Blackburn, 9 M. & W. 363; 1 Dowl. N. S. 647.

ARBITRAMENT AND AWARD. See post, "Award."