him at the best prices he could obtain and according to market rates, and the defendant authorised him to give credit in the exercise of his discretion. 2. He sold the 1000 tons of coal in the ordinary way of business to persons who were of good commercial reputation. 3. The plaintiff did not direct the defendant to sell the 2000 tons of coal mentioned in the statement of claim for 16s. a ton. He sold them for the best price he could obtain. 4. He was never the del credere agent of the plaintiff. Counter-claim. And by way of counter-claim, 5. The defendant claims the sum of £100, being his agreed commission of 6d. per ton on 4000 tons of coal sold by him on the plaintiff's behalf in the town of C. during the year 1879. Particulars of the said sales of coal, being of greater length than three folios, accompany this defence and counter-claim. Reply. The plaintiff, as to the defence, says he joins issue. 1. It was expressly agreed that the defendant should only be entitled to the said commission of 6d. per ton when he remitted to the plaintiff the price of the coal sold by him. 2. He has not remitted the price of the 4000 tons of coal sold by him in the year 1879 or any part thereof. of Action against an Agent for not Paying Over the Price of Goods sold by him, and for Damages for Negligently Selling. 1. On the 188, the defendants, as the plaintiff's agents, sold 100 tons of the plaintiff's manure, and received the price thereof, viz., £250, but they refuse to pay over the said sum, less their commission. 2. In the alternative, the defendants sold the said 100 tons of manure to G. H. at three months' credit, and delivered the same to him. 3. The said G. H. was then in insolvent circumstances, and the defendants might by ordinary care and diligence have ascertained the fact. G. H. has become bankrupt, and the plaintiff has been unable to recover any portion of the said £250. The plaintiff claims £250 as damages. Defence. 1. The defendants have not received the price of the said 100 tons of manure or any part thereof. 2. The defendants sold the said manure to the said G. H. by the express directions of the plaintiff. 3. The said G. H. was not then in insolvent circumstances, and if he was, the defendants could not by the exercise of ordinary care and diligence have ascertained the fact. 4. The plaintiff might have received the greater portion of the said sum of £250 from the estate of the said G. H. if he had not neglected and failed to prove against it. Reply. The plaintiff, as to the defence, says he joins issue. Duty and liability of an agister. Agistment (a). Claim for Loss of Cattle through Negligence and Misconduct of 1. The plaintiff's claim is for damages for the loss of seven head of cattle received by the defendant on the 1st of May, 1880, to be agisted in his park for reward. (a) The duty of an agister of cattle is to furnish them with suitable food and nourishment, and to give them a proper and reasonable amount of exercise and fresh air. He is also bound to take reasonable care of their safety. Thus, if he turn them on a common and afterwards take no heed of them so that they are lost, he is liable. (Coggs v. Bernard, 2 Raym. 909.) If a person places a horse in a pasture surrounded by rotten or defective fences, and the horse is lost, the agister is liable, but if it went away through its own vicious or ungovernable nature, and got away through its own impatience of restraint as much as in consequence of the defects of the fences, the agister is not liable. (Addison on Contr., 7th ed. 653. See also Smith v. Cook, L. R. 1 Q. B. D. 79.) In the case of gratuitous bailment or agistment the agister is only liable for gross neglect. (Rooth v. Wilson, 1 B. & Ald. 61, 62.) 2. Through the negligence of the defendant the said cattle were mixed with other cattle which were at the time suffering from a contagious disease, whereby they contracted the said disease, and by the further negligence of the defendant the said cattle did not receive proper medicine and attendance while they were ill. The plaintiff claims £60 damages. Defence and Counter-claim. Defence. 1. The said cattle were never mixed with any other cattle suffering from any contagious disease, and they did not contract the said disease in that way. 2. The plaintiff's cattle were properly attended by the defendant while they were ill, and suitable medicines were given to them. Counter-claim. And by way of counter-claim, 3. There is due and owing to the defendant the sum of £10 for twenty weeks' agistment of the said seven head of cattle at per week, and £2 for medicine supplied to the said cattle while ill. The defendant counter-claims £12. Reply. 1. The plaintiff as to the defence says he joins issue. 2. As to the counter-claim he says that up to the time of the death of the said cattle there was due in respect of their agistment the sum of £8, and no more. The defendant did not supply any medicine to the said cattle. Alteration (a). Defence of Alteration in Action upon a Bill or Note. 1. The bill (or note, or check) was rendered void after issue by a material alteration, viz., by the alteration of the date from the 21st of January to the 2nd of January. (a) "When any deed is altered on a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by K Defence of Alteration to Action on Deed or Written Contract. 2. The written contract (or deed) in the paragraph of the statement of claim mentioned was, after the signing (or execution) thereof by the plaintiff and the defendant, and whilst the same was in the possession and under the control of the plaintiff, materially altered without the consent or knowledge of the defendant, namely, by the introduction of the words, "subject to the approval and right of rejection by the said William Jones," at the end of the third clause [or such alteration as may have been made]. Effect of alteration made in a contract. Annuity. interlineation, addition, rasing, or by drawing of a pen through a line or through the midst of any material word, the deed thereby becomes void." (Pigot's Case, 11 Rep. 26, second resolution, as to which said Jessel, M. R., in Suffell v. Bank of England, 9 Q. B. D. 559, “no doubt has ever been raised.") This rule was afterwards extended, in Master v. Miller (4 T. R. 320; 1 Sm. L. C. 8th ed. 857), to instruments not under seal, "and following that case it has been well established that the principle so laid down extends to negotiable instruments, and that a bonâ fide holder for value cannot recover on them when there has been an alteration in the instrument coming within such principle." (Per Cotton, L. J. in Suffell v. Bank of England, supra.) It was held by the Court of Appeal in the latter case that a plaintiff who was the bona fide holder of notes issued by the Bank of England, which after their issue had been altered by erasing the numbers upon them and substituting other numbers, could not in an action against the Bank recover upon them. But the alteration which vitiates an instrument must be a material alteration. (Sanderson v. Symonds, 1 B. & B. 426; Aldous v. Cornwell, L. R. 3 Q. B. 573; Cotton v. Simpson, 8 A. & E. 136; Suffell v. Bank of England, quoted supra, and 7 Q. B. D. 270.) When an instrument contains only a contract or can be used only as evidence of a contract, no alteration of it which does not affect the contract is material (Per Brett, L. J., in Suffell v. Bank of England); but the rule which vitiates an instrument which has been altered in a material part is not confined to instruments which only contain contracts (ibid.). If the parties agree to make an alteration, this rescinds the old contract and a new contract consisting of the old one as modified is thus created. The agreement so made generally requires a fresh stamp, and if it be one which may not be stamped after execution, it cannot be used in evidence. (Roscoe, Ev., 13th ed. 257, 627.) Apprentice (a). Action against the Bondsman for Misconduct of Apprentice. 1. By an indenture of apprenticeship, dated 10th August, 1875, made between defendant and C. H. L., of the one part, Misconapprentice. duct of an What constitutes the con (a) A contract of apprenticeship can only arise where there is an undertaking on one side to serve and learn, and on the other to teach. Therefore if there is an engagement on the part of the servant to serve and learn, but no express or implied engagement on the part of the tract of master to teach, so that no action could be maintained upon the contract apprenticeagainst the latter for neglecting to teach, the contract is one of hiring ship. and service only, and not of apprenticeship. (R. v. Shinfield, 14 East, 541; R. v. Burback, 1 M. & S. 370.) Must be in writing. As the contract is always made for more than a year, it must be in writing, but need not always be by deed; but it is essential to the validity of the contract that the consideration or premium paid be duly set forth upon the face of the instrument, in order that the proper amount of stamp duty may be secured thereon. (Westlake v. Adams, 27 L. J. C. P. 271.) Except in cases to which the custom of the City of London applies, Apprentice an apprentice is not bound by an indenture of apprenticeship upon his not bound attaining his twenty-first year, and he can then with perfect impunity, after 21. so far as he personally is concerned, leave his master's service though the term of service has not expired. The master is not however necessarily without any remedy, for it is usual in apprenticeship articles for some person, frequently the apprentice's father, to covenant for the apprentice's good behaviour during the term of service, and where there is such a covenant, though the apprentice may, on attaining twenty-one, leave his master's service, the bondsman would remain liable. (Cuming v. Hill, 3 B. & Ald. 59.) Covenants by master and bondsman independent In the articles of apprenticeship it is usual for the master to enter into a set of covenants that he will properly instruct the apprentice. and for the apprentice and his bondsman to enter into covenants that the apprentice will faithfully serve; but it has been decided that these covenants are perfectly independent covenants, and that breach of the one cannot be pleaded as a defence to breach of another. (Winstone v. Linn, 1 B. covenants. & C. 460; Phillips v. Clift, 28 L. J. Ex. 153.) Thus, if the bondsman were sued for the misconduct of the apprentice in absenting himself, it would be no defence to the bondsman that the master had neglected properly to instruct the apprentice. The bondsman's proper course would be to add to his defence, whatever it might be, a counter-claim against the master. This is the course adopted in the forms given in the text. It is, however, a good defence to an action against the bondsman for a desertion by the apprentice of his service that the master had abandoned one of the trades which he had covenanted to teach the apprentice (Ellen v. Topp, 6 Exch. 424); and it is a good defence to an action for breach of the covenant to teach and provide for an apprentice that he quitted the service without leave. (Hughes v. Humphreys, 6 B. & C. 680.) Master bound to maintain It is said that a master takes his apprentice for better or for worse, and if. therefore, the apprentice become ill so that he cannot work, or meets with an accident, so that the master is put to additional expense on his account, the master is still bound to keep him in his service and to pro- apprentice vide for him. (Reg. v. Smith, 8 C. & P. 153.) It is laid down in several though he text books, and assumed to be law by the judges in one or two old cases, becomes that a master is entitled to chastise his apprentice. Mr. Manley Smith, ill. |