compos mentis, a contract of sale will nevertheless be valid, if no imposition was practised on the part of the plaintiff, and if the defendant was clearly not prejudiced by his mental imbecility.

Persons at

notcontract.

SECTION IV.-ATTAINDER.

Persons outlawed (a), or attainted, are incapatainted can- ble of contracting, because they can have no property in goods; since all personal property, accruing to them either before or after attainder, is vested in the crown without office found (b). The disability consequent upon attainder is removed, by a pardon under the great seal (c); or, by completion of the punishment which the offender has been adjudged to suffer (d). It was held by Holt, C. J., that a transfer of goods without valuable consideration, by one on the eve of trial for felony, was void (e). But the decision proceeded on the ground of fraud; for, if the sale

(a) Hage v. Skinner, 3 Lev. 29; Bac. Abr. Outlawry D.; Rex v. Cook, 1 M'Clel. & Y. 196.

(b) Bullock v. Dodds, 2 B. & A. 258: see Lambert v. Taylor, 6 D. & R. 188; 1 Lutw. 610; Co. Litt. 391, a. [Secus as to real property, before office found; Doe v. Pritchard, 5 B. & Ad. 765.]

(c) Bull v. Tilt, 1 B. & P. 199.

(d) 9 Geo. IV. c. 32. s. 3.

(e) Jones v. Ashurst, Skinn. 357.

had been bona fide, it would have been good, since the property is not forfeited until conviction (ƒ).

SECTION V.-ALIEN ENEMY.

Alien enc

sue upon

any con

tract.

An alien friend lies under no disability to con- my cannot tract or to maintain personal actions; because, it is said in Bacon's Abridgement, if he were incapacitated to merchandize, it might be as much to our prejudice as his own (a). But an alien enemy is utterly disabled from suing in England (b), whether the action be brought in his own name or in the name of another; therefore, even where the parties on the record are subjects of this realm, it is a good plea in bar, that the person interested (whose interest is alleged on the record) is an alien born, and the subject of a country at war with the King of Great Britain (c). The question always is, whether the plaintiff was alien enemy at the time

(f) Ib.; Fleetwood's case, 8 Rep. 171, a.-Post.

(a) Bac. Abr. Alien D.; Dyer 2, b.; Tuerlcote v. Morison, Yelv. 198; S. C. Bulstr. 134; Openheimer v. Levy, 2 Str. 1082; Duckworth v. Tucker, 2 Taunt. 37, n.; Hoppen v. Leppet, Andr. 76.

(b) Co. Litt. 127, b.; Wells v. Williams, 1 Salk. 46; Bristow v. Towers, 6 T. R. 35. [It had been held, that an alien enemy might recover on a right claimed to be acquired by him in actual war; Ricord v. Bettenham, 3 Burr. 1734; Cornu v. Blackburn, 2 Dougl. 641. But this doctrine is over-ruled; Anthon v. Fisher, 2 Dougl. 650. n.]

(c) Brandon v. Nesbitt, 6 T. R. 23.

of making the contract, and not whether he was so at the time only of the action brought. For, where a party is alien enemy when the contract is entered into, such contract is absolutely void, and cannot be enforced even on the return of peace (d); but where he becomes alien enemy subsequently, as there is nothing to render the contract itself illegal, the disability cannot be pleaded in perpetual bar, being only temporary and liable to be removed on the cessation of hostilities (e).

1. Who is held to lie under the disability (ƒ).

A plaintiff may be incompetent to sue on the ground of being an alien enemy, though he be not a native of the hostile country; thus, where the consul of a neutral state is resident in an enemy's country and trades there, he cannot recover (g). So, even where the plaintiff is not alien born, as an English

(c) Brandon v. Curling, 4 East, 410; Willison v. Patteson, 7 Taunt. 439; S. C. 1 B. Moore, 133.

(e) Flindt v. Waters, 15 East, 260; Harman v. Kingston, 3 Campb. 153; Ex parte Boussmaker, 13 Ves. Jun. 71; De Tastet v. Taylor, 4 Taunt. 233. [Where the plaintiff becomes alien enemy subsequently to the commencement of the action, the disability ought to be pleaded in bar of the further maintaining the suit; Le Bret v. Papillon, 4 East, 502. However the Court would not consider themselves bound by an improper prayer of judgment.]

(f) It is the province of government to decide in what relation of peace or war any country stands in respect of this kingdom; Blackburne v. Thompson, 15 East, 81.-Post. Chap. iv. Sect. 3. (g) Albrecht v. Sussman, 2 Ves. & B. 323.

man residing and trading in an enemy's country(h), or residing there merely without carrying on trade (i). But if an Englishman resides in a neutral state, he may lawfully exercise the privileges of a subject of that country by trading with a nation at war with England (k), although if he were resident here, such trading would be illegal (1). And a neutral subject may maintain an action on a contract entered into with a British subject in an enemy's country (m).

Residence by a British subject in an enemy's country, does not disqualify him from entering into contracts, if such residence is involuntary; as where he is a prisoner of war (n). It seems to be doubtful whether an alien enemy, a prisoner of war in this country, would be disqualified (o): but a neutral, taken prisoner on board an enemy's ship, was allowed to sue on a contract made by him on the voyage to Great Britain (p).

(h) M'Connell v. Hector, 3 B. & P. 113; O'Mealey v. Wilson, 1 Campb. 482; Willison v. Patteson, 7 Taunt. 439.

(i) De Luneville v. Phillips, 2 N. R. 97. [But see Roberts v. Hardy, 3 M. & S. 533.]

(k) Bell v. Reid, 1 M. & S. 726.

(1) Potts v. Bell, 8 T. R. 548.-Post. (m) Hourict v. Morris, 3 Campb. 303.

(n) Daubuz v. Morshead, 6 Taunt. 322; Antoine v. Morshead, 6 Taunt. 237.

(0) Maria v. Hall, 1 Taunt. 33. [No judgment was ever given in the case.]

(p) Sparenburgh v. Banatyne, 1 B. & P. 163.

When the disability is removed.

2. In what cases the disability is removed. If an alien enemy comes here sub salvo conductu, his disability is removed (q); so, if an alien friend come here by licence and live under the protection of the king, and a war breaks out during his residence, he may nevertheless maintain an action (r). But if he pleads such protection in the latter case, he must prove that the king has sanctioned his stay after the commencement of hostilities (s), and not merely that his residence has been. acquiesced in without molestation (t).

An alien enemy may also sue on a contract arising out of a trading adventure which has been legalized by a licence granted by the crown (u). And he may sue, at the conclusion of the war, on a subsequent promise to pay; for, though the original contract could not be enforced, there is a moral obligation sufficient to support the promise (x).

(q) Bac. Abr. Alien, D.

(r) Wells v. Williams, 1 Lord Raym. 282; S. C. 1 Salk. 46. (s) Boulton v. Dobree, 2 Campb. 163.

(t) Alciator v. Smith, 3 Campb. 245.

(u) Vandyck v. Whitmore, 1 East, 475.-Post.

(x) Duhammel v. Pickering, 2 Stark. N. P. C. 90.