the trial had not quite assumed its modern aspect. If the members of the secta stuck to their tale and convinced the court the plaintiff won his case. The defendant could not call rebutting evidence. All he could do was to accuse the plaintiff's witnesses of perjury; and to succeed on this charge he must produce at least two more witnesses than the plaintiff." Thus we see the law at the interesting stage in which the old ideas of proof, though they still prevailed, were fast being developed into something approaching the modern conception of a trial by a court which finds the facts in accordance with the sworn evidence 3 produced before it. It was not till the sixteenth century that the common law trial by a judge and jury definitely reached this stage. It is certainly instructive to see that, even in the trial by compurgation, there were possibilities of a development, which, if it had continued, might have ended in the final evolution of a rational procedure. If we turn from adjective to substantive law we can see that the commercial character of these tribunals similarly affected the nature of the law which they administered. No doubt a considerable number of the entries on the records of the fair courts are taken up with recording the presentments of the juries charged with bringing to justice those who had offended against the peace and order of the fair. Many of these entries do not differ from the presentments of similar juries in the boroughs and leets of the country at large. But such presentments as those 4 proximam curiam ad ducendum et probandum, et defendenti ad audiendum probaciones querentis nisi forte sectam suam ad illam primam curiam adduxerat paratam ; quod si fecerit statim admittantur et examinentur: quæ examinatio sic fiat"; each witness is sworn separately to speak the truth; "Et tunc examinetur per sensescallum Curiæ in aperta audiencia parcium et totius curiæ et irrotuletur ipsius probacio. et ita post modum successive examinentur et jurentur omnes adducti quilibet per se separatim. Et si Senescallus et curia suspicionem habeat quod hujusmodi adducti sint locati vel subornati ad dicendum falsum tunc nullus eorum audiat alternis examen "; cf. Red Book of Bristol i 79, 80. 1 Ibid 65, "Et si demonstrationem suam probare poterit cum tribus testibus notis et fide dignis et sufficientibus, tunc recuperet secundum quod probaverit, nisi forte defendens offerat et novam securitatem inveniat ad convincendum querentem in forma quæ subsequitur.' 2 Ibid 79, 80, "Queratur a defendente antequam judicium reddatur si aliquid pro se habeat vel dicere sciat quare secundum probaciones illas ad judicium procedi non debeat. In quo casu est ordinatum quod defendens ille in sua propria persona tunc sit ibi et offerat se paratum ad reprobandum et convincendum querentem seu petentem et sectam esse perjuros;" the proper forms as to finding security and the like having been complied with, "Tunc uterque potest adducere, scilicet querens (sc. defendens) ad convincendum, et defendens (sc. querens) ad efforciandum, primam sectam suam productam. Et ille cujus probacio extunc melior et verior comperta sit habeat judicium pro se . . . ita tamen quod convixio sive attincta pro nullo habeatur nisi ipse qui convictus est excedat eum qui convincendus est in numero per duos testes ad minus." 3 Vol. i 334-336; vol. iii 648-649; vol. iv 516-518; Pt. II. c. 7 § I. 4 Vol. ii 389-391. 5 4 2 which relate to forestalling,1 selling out of the fair, selling without making a proper display of one's goods, or using false measures,3 are naturally prominent. No doubt, too, a certain number of entries relate to ordinary torts-theft, assault, trespass and so forth. But here again some of these cases illustrate the commercial character of the fair. There is an action in tort for impeding a sale; and other notable examples are to be found in actions for defamation whereby the plaintiff has suffered in his trade and credit. By far the most important of these entries, however, relate to commercial contracts; and it is assumed that the litigation concerning these contracts will be conducted in accordance with a law merchant made and administered by the merchants native and foreign who come to the fair. The king had promised the foreign merchants in 1303 that their disputes should be speedily settled by such a law; and, considering the large number of various cities represented at the fair of St. Ives,3 and doubtless at other important fairs, it will be clear that it was only a law, from which national technicalities were as far as possible eliminated that would suffice for their needs. If we could understand the nature of this law administered in the English fair courts we must glance rapidly at some of the cases recorded on their rolls. 7 As we might expect, cases turning upon the contract of sale are the most numerous. The contract was generally made by the agreement of the parties evidenced by the gift of a God's penny or earnest money. The mode by which it was enforced 1 Gross, op. cit. i 48, 92, 93; for the common law as to forestalling see vol. iv 375-379. 2 Gross, op. cit. 21, 56, 78. 3 Select Pleas in Manorial Courts (S.S.) 149, 153, 154; Gross, op. cit. i 19, 40, 62, 74. Ibid 17; at p. 97 there is an action of trespass in which the plaintiff asserted that, having bought certain salmon for 24s., the defendant " de dicto barganio ejecit " the plaintiff, and bought them for 28s. ; 5 Ibid 13, "Et insuper defamavit ipsum Johannem versus quosdam mercatores, per quam defamacionem idem Johannes perdidit in mercandisis suis faciendis ad valenciam duodecim denariorum ad dampuum et vituperium suum dimidie marce 57-a slander " per quam famam perdidit creanciam"; 85—a similar allegation. 6 Vol. i 536. 7 Carta Mercatoria, Munimenta Gildhallæ (R.S.) ii Pt. I. 206, 207, "Et si forsan super contractu hujus modi (i.e. contracts between merchants) contentio oriatur, fiat inde probatio vel inquisitio, secundum usus et consuetudines feriarum, et villarum mercatoriariarum ubi dictum contractum fieri contigerit et iniri. Item quod omnes ballivi et ministri feriarum, civitatum, burgorum mercatoribus antedictis. celerem justitiam faciant de die in diem, sine dilatione, secundum legem mercatoriam, de universis et singulis quæ per eandem legem poterunt terminari." 8 Thus in 1312 we read of merchants from Louvain, Diest, St. Troud, Bruges, Ypres, Ghent, St. Omer, Caen, Dinant, as well as merchants of the society of the Bardi and of the society of London, Gross, op. cit. i 91; cf. Select Pleas in Manorial Courts (S.S.) 134. The validity of these forms had been recognized by the Carta Mercatoria, Munimenta Gildhallæ (R.S.), ii Pt. II. 206; see Gross, op. cit. 39, 40, 79; at p. 103 both a God's penny and earnest money are given. 4 2 was the action of debt in which compurgation played a large part. But we have seen that this primitive procedure was rendered more rational by the power of the court to examine witnesses; and that the case was sometimes decided in quite a modern fashion according to the impression made on the court by the evidence thus given.1 We can see too that certain rules relating to the incidents of this contract, which were afterwards incorporated into the common law, were being evolved. Damages for the defective quality of the goods sold could only be got if seller had warranted their quality; and similarly damages could be got if the goods had been warranted equal to sample and had failed to come up to the sample.3 As in the later common law, the failure to fulfil such warranties was regarded as a species of fraud. There seems to be no evidence as to whether a purchaser from a seller who was a non-owner could get damages if he were evicted. Judging from the analogy of the law as to defective quality, and from the later common law as to liability for defective title, it is probable that he could not, in the absence of an express warranty. There is more evidence as to the rights of the true owner against the purchaser of his goods; but it is conflicting. It would seem that, though, in the interests of commerce, both borough and fair courts were inclined to protect the purchaser," no certain rule had as yet been involved. At any rate, in 1332, it appears that proof of the plea of purchase in market overt, though it was generally recognized as a defence against a charge of theft, did not necessarily secure the purchaser's title. In England, as on the Continent, the customs on this matter were very various. Eventually, as we have seen, English law decided to admit that the proof of such a plea gave a good 1 Above 107-108. 8 5 2 Gross, op. cit. 60-sale of cheeses which the vendor " pledged to be good and fit to eat"; cf. the Lancaster custumal of 1562, Borough Customs (S.S.) ii 153, "Also that they which bye any malt on the markett or elsewhere within this towne, lette their eye be their chapman, for yf it prove nought, thei shall have no remedie for it afterwards, except thei can prove the seller thereof dyd warrand the same to be good." 3 Gross, op. cit. 91, 102, 105-106. Vol. iii 408; Pt. II. c. 5 § 6; cf. Gross, op. cit. 50, 91, 102, 106; frauds could also be presented and tried by an inquest, see ibid 62-a charge of selling with false measures, and of mixing Rhenish with white wine to defraud the merchants. 5 Below 297. 6 Gross, op. cit. 48, 49-a bona fide purchase in the market was accepted as a good defence to criminal proceedings for theft, and the purchaser was allowed to keep the goods. Ibid 110, III-W. found in S.'s stable a horse which he alleged to be his. He caused it to be seized by the steward of the liberty. S. brought the horse to court. S. and G. in court showed that G. put the horse in S.'s stable; and G. claimed to be owner as he bought it "in pleno mercato." The court decided that W. could not proceed against G. by seizing the horse-" ideo dictum est ei quod sequatur in alia forma si sibi viderit expedire." 8 Above 98-99, 104-105. title to a bona fide purchaser in market overt. This conclusion had been substantially reached before 1473, and was settled law by 1596.1 With the limitation upon this privilege which results from a successful criminal prosecution, and with the peculiar rules relating to the sale of horses, I have already dealt. Another contract which sometimes appears on the rolls is the contract of partnership. Generally they are quite simple cases. Two merchants have agreed to join in the hire of a booth for the fair and one has ejected the other.1 Goods have been handed over to a fellow merchant to exchange for other goods, and he will not hand over their equivalent. 5 But one case heard in 1300 at St. Ives raises an interesting point of law which has often come before the courts in modern times." In this case the plaintiff sued on an agreement to trade in Scotland, on the terms that he was to have one-third of the profits and his partner two-thirds, and that the losses were to be shared in the same proportion. He admitted the receipt of 60s. from the defendant, which, with money of his own, was to be the partnership capital; and alleged that, when the business had resulted in a profit he had paid over his partner's share of the profits, but now that the business had resulted in a loss his partner would not pay his share of the losses; but had demanded his 60s. as a debt, and had compelled him to hand over certain property as security for it. The defendant succeeded in showing that there never had been any contract of partnership, but merely a loan by him to the plaintiff to enable him to carry on his business. The commercial character of the litigation in the fair courts is also illustrated by the actions to which the employment of brokers gave rise. There are actions by brokers for their fees,? and there are actions on contracts made through them. Counsel were treated like other agents, and sued for their fees and expenses.9 We have seen too that among merchants both the contractual and delictual liability of masters for the acts of their apprentices and servants was somewhat larger than the liability imposed by the rules of the medieval commom law.10 The master as well as the servant or apprentice was liable to pay and 1 Above 105 n. 4; before 1473 the doctrine had made its appearance in the Y.BB. See Y.BB. 9 Hy. VI. Mich. pl. 28 p. 45 per Paston; 33 Hy. VI. Hil. pl. 15; 35 Hy. VI. Mich. pl. 33 pp. 28-29 per Haltoft and Prisot arg. 2 Vol. iv 522. 5 Ibid 64. 8 Ibid 39, 40. 3 Ibid. 4 Gross, op. cit. 49. 7 Ibid 15. 9 Ibid 96, 97; cf. Select Pleas in Manorial Courts (S.S.) 155, 156 a case which gives a curious sidelight on the professional habits of the day-"not only does a professional advocate sue for his fees, but he makes it a ground of complaint against his employer that he has been debarred of getting money out of the other side: no one seems to be surprised at this." 10 For these rules see vol. iii 382-387. able to sue for goods which had come to the master's hands through his servants or apprentices, even though he had not authorized their acquisition;1 and in some places he might also be liable for certain of their misdeeds though committed without his authority.2 The special rules of this kind relating to mercantile agency were, as we have seen, recognized by the statute of the staple. Other mercantile contracts which appear on the rolls are contracts of suretyship-there are actions by paying sureties against the principal debtor, and by creditors against sureties; 5 contracts of deposit, of loan, of carriage,R and for personal services of various kinds.9 3 6 4 As on the rolls of the borough courts, so on the rolls of these fair courts, we sometimes get very curious actions which illustrate the lighter side of the happenings at the fair. In 1288 at St. Ives an action was brought against a quack doctor, by name Roger Barber, who had undertaken to cure the plaintiff, John of Eltislay, of baldness for the sum of 9d. paid in advance. Roger "put his patient in plaster" on Tuesday and Wednesday, and then left him. The court decided that John must be repaid his 9d.10 In another case of 1316 the plaintiff made a sporting agreement with the defendant to sell all the money he had about him on a particular day for IOS. The plaintiff forthwith tendered all the money he had about him, to wit 7s. 74d. and demanded the 10s. which was refused. The court gave judgment for the plaintiff.11 fairs began to decline Here, as abroad, com 13 Like the continental fairs, the English in the fifteenth and sixteenth centuries. 12 merce was tending to become fixed in permanent urban centres; and the system of staple towns helped on this tendency ̧13 Thus, though some of these centres still continued to hold a special fair court, that court either became gradually merged in the ordinary courts of the town, or more often it decayed, 1 Red Book of Bristol i 66-67, cited vol. ii 387 n. 10; it must be proved that the relationship of master and servant existed at the time of the acquisition; if this were proved, the subsequent death or dismissal of the servant did not affect the right to sue; cf. Liber Albus (R.S.) 286 for a similar rule in London. 2 The Waterford rule as to apprentices (1300) was that "Every citizen ought to answer for his apprentices' wrongdoing and damage, made by day or night and at all times, as he would for his son if he were of age," Borough Customs (S.S.) i 222. 327 Edward III. st. 2 c. 19; vol. iii 387. 4 Gross, op. cit. 6. 7 Ibid 44, 107. 5 Ibid 26, 101-102. 6 Ibid 21-22. 9 Ibid 13, 59, 60-personal service during the fair; 22-service of delivering parcels; 57-58-employment as baker; 83-sailing a boat and other services. 10 Ibid 36-37. 11 Ibid 100. 12 Vol. i 539-540; as Mr. Gross says, op. cit. xvii, "the documentary material regarding the activity of piepowder or fair courts increases in range, though not in richness during the fourteenth and fifteenth centuries." 13 Gross, op. cit. xvii; for these towns see vol. i 542. |