distinction between transitory and local actions-" that is, between those in which the facts relied on as the foundation of the plaintiff's case have no necessary connection with a particular locality, and those in which there is such a connection." Ал instance of the former is an action on a contract, of the latter an action of trespass to land. "In the latter class of actions the plaintiff was bound to lay the venue truly; in the former he might lay it in any county he pleased."" Litigants were not slow to make use of this distinction; and in 13753 an action was brought on a deed which was made at Harfleur in Normandy. The plaintiff anticipated the device used at a later period by alleging in his claim that it was made at Harfleur in the county of Kent. The efficacy of this device was not then decided upon, as the case went off upon another point.

5

But it was soon found that the parties to actions in this litigious age abused this distinction. Plaintiffs harassed defendants by purposely laying the venue in a distant place; and therefore statutes of Richard II. and Henry IV.'s reigns required all actions to be brought in their proper counties.* These statutes were strictly enforced by the judges; and Littleton takes it for granted that cases which involved the consideration of facts happening outside the realm could not be heard by the courts of common law." But the judges were quite alive to the advantages to be got by enlarging their jurisdiction; and it is clear that they were ready to adopt any workable expedient to get jurisdiction over such cases. In 14427 an action was brought in the Common Bench on a contract made in France; and counsel, though he pleaded that no action lay on such a contract in England, did not dare to risk a demurrer on this point. Newton, indeed, asserted broadly that even though the contract was made in France, an action would lie in England if the parties chose to sue there. But this was rather too sweeping, as it left unsolved the difficulty as to where the venue should be laid. No doubt there was earlier authority for the proposition that if action was brought on a contract made in a county

8

1 British South Africa Co. v. Companhia de Mocambique [1893] A.C. at p. 618. 2 Ibid; but, as Lord Herschell said, "It was still necessary to lay every local fact with its true venue on peril of a variance if it should be brought in issue," see S.L.C. (10th ed.) i 598-600.

3Y.B. 48 Ed. III. Hil. pl. 6.

46 Richard II. c. 2; 4 Henry IV. c. 18.

S.L.C. i 597-598.

6 Litt. § 440, "Hee that is out of the realme cannot have knowledge of the disseisin made unto him by understanding of the law, no more than that a thing done out of the realme may bee tried within this realme by the oath of 12 men."

7 Y.B. 20 Hy. VI. Pasch. pl. 21.

866 Mesque l'obligation se fist en France, uncore si suit en Angleterre, action peut estre maintenir sur ceo cyeins assez bien;" and Fortescue, Y.B. 32 Hy. VI, Hil, pl. 13, seems to have held the same view.

Palatine, the jury could be summoned from the neighbouring counties. But in the case of an action brought in a foreign. country there were no neighbouring counties.

The judges of Henry VI.'s and VII.'s reigns got over this difficulty by laying down a somewhat narrower principle which had been hinted at in the case reported in 1375. They said that if the contract was made in England, or if any part of the contract was to be performed in England, the action could be brought there. The result was that if the contract was made in England to be performed abroad, or vice versa, action lay in the English courts. But if the contract was both made abroad and to be performed abroad, or if the foundation of the action was an act done wholly abroad, no action would lie. It is clear that the establishment of this principle considerably enlarged the jurisdiction of the common law courts. It enabled them to make full use of their new actions of assumpsit and trover, and to compete with the Council and the Chancery for a share in their jurisdiction over the external trade of the country. We shall see that in the following period its further development enabled them to claim not only a share but a monopoly of this jurisdiction.4

Thus, by the end of the medieval period, it had become. fairly obvious that the future development of English commercial law would take place in the central courts; and, since in the central courts the merchants played but a small part compared with the part which they played in the tribunals of the cities of Italy, Germany and France, it followed that the manner of its

1 Fitzherbert's Abridgment, Visne pl. 50, citing 45 Ed. III, Mich.; this seems to have been the rule laid down as to the practice of the court by the protho-notaries in Y.B. 32 Hy. VI. Hil. pl. 13.

2 Y.B. 48 Ed. III. Hil. pl. 6, Finchden says: "Si un home soit lowe per moy d'aler en mon message a Rome coment que le service sera fait hors de Roialme uncore pur le contrat fait en Engliterre il demandera son lower en cest court"; Tank puts the case of a sailor hired in England: "Il (the hire) sera demande en cest court per le comen ley et memy per la ley de Mariner "; Y.BB. 15 Ed. IV. Mich. pl. 18; 10 Hy. VII. Pasch. pl. 21; S.C. 11 Hy. VII. Hil. pl. 13; in this last case Brian thought that, though a trial of offences committed abroad might be had hereautrement touts ceux statuts sera voids"-it was otherwise as to contracts made here to be performed beyond the sea; but Fineux, Vavisor and Townshend were against him; the case is abridged by Brooke, Trialles pl. 154, and explained by Abbot C.J. in Rex v. Burdett (1820) 4 B. and Ald. 172; Fineux clearly lays it down, in Y.B. 21 Hy. VII. Mich. pl. 32, that, "Release oultre mer est void; mes si contract soit triable parcel deins ce Realm, et parcel oultre la mer, il sera trie icy en tout."

66

3 Though in Y.B. 7 Hy. VII. Hil. pl. 1, Keble arg. said, "Si on port accion de Debt pur son salary que il fuit retenu à servir un home in Brigg oustre la mer, et le Maistre dit que il depart de luy ou ne servit, ceo serra trie icy ou le bref est port"; the reporter adds Quære de ceo; cf. Y.B. 21 Hy. VII. Mich. pl. 32, cited in the last note; Dowdale's Case (1606) 6 Co. Rep. 47 b, lays down the law in accordance with Fineux's view in the last cited Y. B.

4 Below 140-142.

5 Above 68-71, 93-96.

development would be in some respects unique. Whether the common law courts, the Council, or Chancery would secure the greater share of this commercial jurisdiction was, as we shall see, an open question all through the sixteenth and the earlier half of the seventeenth century. But, before we consider the results of the work of these courts in the sphere of commercial law, I must say something about the mediæval development of English maritime law. Both in England and in France this development took place in the court of the Admiralty; and in both countries the Admiralty became a serious competitor for a large share of this commercial jurisdiction.

Maritime Law.

We have seen that, till the middle of the fourteenth century, the maritime part of the law merchant was, for the most part, administered in the local courts of seaport towns. These courts sat sometimes on the seashore, and heard, as the Bristol custumal says, summarily from tide to tide "the disputes which arose between merchants and sailors, or between merchants and merchants, or between sailors and sailors, whether burgesses or foreigners."3 Many of them survived, and were vigorously resisting the encroachments of the court of Admiralty in the sixteenth century.1 But all except the Cinque ports had succumbed before they were formally abolished in 1836.5 The law which these courts adminstered was almost certainly based upon the Laws of Oleron. It was these laws which, from the first years of the thirteenth century, had been accepted as the common maritime law of the North Sea and the Atlantic Ocean." Important seaports like London and Bristol copied them into their custumals; and, at a later date, they were copied into the Black Book of the Admiralty. Therefore if we would know what was the general character of the maritime law administered in

1 Vol. i 552; above 101.

2 Vol. i 530-532.

3 Borough Customs (S.S.) ii 193; cf. The Domesday of Ipswich, Black Book of the Admiralty (R.S.) ii 231.

Vol. i 531-532; Select Pleas of the Admiralty (S.S.) ii xix-xxii.

5 Vol. i 532; 5, 6 William IV. c. 76.

Vol. i 527; cf. Desjardins, Droit Commercial Maritime 31-36; they were, as recent commentators agree, "Des sentences rendues dans de procès réals ou des déclarations sur le droit, fruit d'une longue expérience, et consignées par ces hommes rompus aux affairs maritimes dans un registre ou sur des rôles pour en perpetuer la mémoire. . . . Il est hors de doute que dans les premières annees du treizième siècle, assez grand nombre des copies des vingt quatre articles avaient été déjà déliverées aux principaux ports de mer et que les jugements de la mer se transformaient en coutumes générales pour tout le littoral de l'Atlantique et de la Baltique. Il est donc bien difficile de ne pas les faire remonter à la première partie du douzième siècle, et l'on pourra toujours demander si cette date même ne doit pas être encore reculée," op. cit. 34.

this country in early days we must glance briefly at their contents.1

2

In the first place, they contain a number of provisions as to the position and powers of the master of a ship, and his relations to the sailors. The master has no power to sell the ship; but in case of necessity he may, after consulting with the mariners and by their advice, pledge the tackling of the ship. He is liable for value of the ship if she perishes in consequence of a start made contrary to the wishes of the majority of the ship's company; 3 and he is similarly liable if she is lost in consequence of his wrongful dismissal of a sailor. If he is in a foreign harbour, and has no money to buy necessaries, he may sell part of the cargo. The amount so sold is to be charged to the ship at the market price; but, as it has been carried, the part so sold must pay freight. The mariners are liable if they desert the ship without the leave of the master, and the ship in consequence perishes." They are also liable if they delay too long ashore in a port so that the ship loses money which it might have earned. If the ship is lost their right to wages is also lost. If a member of the crew incurs any hurt while about the business of the ship he is entitled to be healed at the costs of the ship. Similarly the master must look after him if he is taken ill. He is entitled to his wages which must be set off against the costs of his cure, and if he die his representatives can claim them. The master must keep order in the ship, "and if a maryner smyte the mayster (he is) to pay five shillings or to lose his fyst." 10 The meals to which the sailors were entitled were specified in some detail. In addition to food and stipulated wages, it was customary to allow the sailors, either to embark a small amount of cargo for themselves, or to allow them instead the freight payable to the ship on the amount of cargo which they might have embarked.12 They were not entitled to be paid the whole of their wages already earned when the ship reached her destination. The master might retain some part as security that they would finish the voyage.13 It was optional to the sailors to hire themselves for the voyage or to stipulate for a sum to be calculated according to the distance travelled. They

9

'The references are to the sections in the Black Book of the Admiralty (R.S.) i

883; see Pt. II. c. 4 II.

is the mother of wages.'

9 §§ 6, 7-8 6 enacts that, "yf the mayster sende them in any erande for the prouffyte of the shyppe, and that they shulde hurte theym, or that any dyd greve them, they oughte to be healed at the costes of the shyppe "-a principle not recognized by the common law, but introduced by recent legislation.

10

19 § 12.

11 § 17.

12 § 18.

12 § 19.

must always be ready to work the ship home to the port from which they had started.1

In the second place, these laws contain a number of rules relative to the rights and duties of the parties to the contract of carriage. The merchant who hires a ship must load her within the stipulated time or pay damages. Of these damages the master is entitled to three-quarters and the mariners to the other quarter. The merchant must pay the freight stipulated when the goods reach their destination. If the ship is wrecked and the cargo is saved he need only pay the freight due for the part of the voyage accomplished; but if the master can either repair his ship, or tranship the goods, and thus convey them to their destination, the whole freight is due. If the cargo is damaged in unloading by defective tackle the master and the mariners are liable for all the damage, unless the merchants have approved the tackle, in which case both parties contribute to the loss. Similarly the master and mariners are liable if the tackle is allowed to damage the cargo on the voyage." The pilot was responsible for bringing the ship to her berth: the master for any loss that occurred through defective mooring at the berth. Whether the cost of pilotage was charged to the merchants or the ship perhaps depended on the agreement of the parties.8

In the third place, there are a number of rules as to the incidence of the loss arising from the usual risks of a maritime adventure. In case of collision with a ship at anchor the curious rule was laid down that, unless the moving ship struck the other on purpose," the resulting damage was shared between the two ships and their cargoes. The reason assigned was that, if the colliding ship were obliged to pay the whole damage, it would tempt the master of an old ship to place her in the way of a new ship.10 Probably the true explanation is that it is an old rule which arose before the law had attained any idea of founding liability on negligence." A ship which damaged another because its anchor was not sufficiently buoyed was liable to make good the damage. 12 Apparently it was only damage done by one ship to another in harbour which these laws contemplated.

1 § 20. 5 § 10.

9

3 Ibid. 7 § 24.

484.

§ 13; cf. Black Book (R.S.) i 105 n. 3—the section is very obscure.

§ 15" the mayster of the shyp that hyt the other must swere on a boke, and and his marchauntes with hym, that he dyd it not with his wyll."

10 The reason why this jugement was made is, that an olde ship wyHingly lyeth not in the waye of a better, so fer forth as it knoweth not to domage it by grevying, but whan it knoweth wel that it must part by halfe it wyll passe by out of the way,' ibid.

"Marsden, Collisions at Sea (6th ed.) 119; vol. ii 51-52; vol. iii 375-382; Pt. II, 128 16.

C. 4 II.