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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. Goods have been handed over to a fellow merchant to exchange for other goods, and he will not hand over their equivalent. 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. 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. 3 Ibid. • Ibid 77, 78.
2 Vol. iv 522.
5 Ibid 64.
8 Ibid 39, 40.
4 Gross, op. cit. 49.
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."
19 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,8 and for personal services of various kinds."
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 10s. The plaintiff forthwith tendered all the money he had about him, to wit 7s. 74d. and demanded the IOS. which was refused. The court gave judgment for the plaintiff.11
fairs began to decline Here, as abroad, com
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.
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.
owing to the absorption of its jurisdiction by the central courts.1 Unlike the fair courts of the Continent, our English fair courts made no permanent contribution to the growth of special commercial courts, and took no large share in the development of a system of commercial law. The reasons for this difference between England and the Continent were (i) economic, and (ii) legal.
(i) We have seen that all through the Middle Ages England was economically in a backward state of development. The production and export of raw material, and the import of foreign manufactured commodities, were the outstanding features of its foreign trade. And this foreign trade was to a very large extent in the hands of foreign merchants. We read in the Venetian Calendar how in 1287 "Thomas Lauredano sent to England by Nicoleto Basadona about 10,000 lbs. of sugar and about 1,000 lbs. of candy, and four livres tournois gross, in money amounting to 3,580 livres. Nicoleto sold the goods in London, and went to St. Botolph's (Boston), where he invested the money in wool, which he shipped on board two coggos for Flanders." These foreign merchants lived very much to themselves. The Venetians and the Hanse, for instance, had their own factories in London. They naturally preferred to settle their own disputes, and attempted fairly successfully to prevent their own countrymen from appealing to any jurisdiction except that of their own consuls. No doubt English merchants had some share in the export trade of the country. But this trade was confined to the staple towns, and cases connected therewith were determined for the most part by the special courts of the staple. The result was that the great bulk of the cases which came before the courts of our English fairs and boroughs were concerned with the smaller transactions of internal trade. Naturally these economic facts reacted upon the law administered in their courts.
(ii) The impression which the published records of our fair
1 Gross, op. cit. xviii-xx; vol. i 569.
3 Vol. iv 315.
2 Above 93-100.
Ibid 71-a decree of the Senate of August 1446, "Forbidding Venetian citizens resident in London and Bruges to have recourse to the local courts of judicature for the settlement of disputes among themselves; any Venetian suing a fellow-countryman in any such court to incur a fine of 500 golden ducats"; cf. ibid 296-regulations of the Venetian Factory in London ratified by the Senate in 1503, which illustrates the jurisdiction exercised by the Venetian consuls. At the same time they sometimes had recourse to the English courts-thus in 1456, owing to the insults of the Londoners, all the Italian merchants withdrew to Winchester, and they wished to get the king to appoint a judge who should sit at Winchester to settle "all lawsuits and causes arising between Englishmen and Italians and amongst Italians that they may not have to go to the law courts of London," ibid 84-85. Cf. L.Q.R. xvii 67; vol. i 542-543.
courts leaves upon me is that they were courts which dealt for the most part with petty transactions, and that consequently, the law there administered had not much chance to develop. The forms of action, the procedure, and the rules of law possess the same primitive characteristics as marked the business in other local courts. Compurgation meets us at every turn. There is no clear line between tort and contract. The proprietary character of a debt and of the action of debt is sometimes very pronounced. It is true that we sometimes read of " scripta obligatoria" which bound their makers to pay the person named therein or his certain attorney, or the bearer; and we shall see that on the Continent "scripta obligatoria" of this kind were one of the germs from which the negotiable instrument was subsequently developed. But the process of development has not gone far in this country. Thus the powers of the "certain attorney" are limited he cannot plead non est factum" to a release under seal alleged to have been made by the payee. It is true that in London we can read much about the regulation of brokers and their evasions of the usury laws. But what Miss Bateson has said of the law administered in the boroughs is generally true of the law administered in the fairs. Neither in our fair nor in our borough records do we read much of the beginnings of those legal doctrines of our modern commercial law which were beginning to spread from Italy and south-western Europe to the great fairs of France and the trading cities of the Netherlands.
The fact that the notary never took the position of importance in England that he took abroad is significant. He was known well enough in England. In fact he was needed for the work of the ecclesiastical courts, and for public acts relating to foreign affairs; and he appears on occasions of more than ordinary
1 In the twelfth century custumal of Okehampton, Borough Customs (S.S.) i 133, we read "Si quis debitum alicujus burgensis asportaverit, burgensis catalla asportantis in burgo suo capiant"; this is of course an early custumal, but even at the beginning of the fourteenth century Debt and Detinue were not clearly distinct, cf. Gross, op. cit. 99, 103; cf. above 109 n. 4 for another instance.
2 Select Pleas in Manorial Courts (S.S.) 152, "Scriptum obligatorium inter ipsos confectum portanti solvisse debuerunt" ; Gross, op. cit. 62, a promise to pay "domino Willelmo vel suo certo attornato deferenti scriptum obligatorium"; 65, 66, 67-"per litteram obligatoriam solvere predicto Johanni vel suo certo nuncio litteram obligatoriam deferenti"; 86-87-a promise to pay to the plaintiff "vel suo certo attornato."
3 Pt. II. c. 4 I. § 2.
4 Gross, op. cit. 66-67.
5 Munimenta Gilhalla (R.S.) i 368-373, 394-402; similarly in the sixteenth century they were often in league with thieves, and assisted to dispose of stolen property, Aydelotte, Elizabethan Rogues and Vagabonds 97-98.
6 Above 105-106.
7 P. and M. i 197; for the notarial system abroad see above 78-79.
8 See instances cited by Brooke, The Office and Practice of a Notary of England (ed. 1901) 11-13.
solemnity.1 And though the fact that he was an imperial or a papal official occasionally led English kings from patriotic or interested motives to refuse to allow him to exercise his office,2 he was never permanently excluded. But he was never needed, and therefore was never recognized by the mediæval common law. I cannot but think that if Englishmen had had much need to use the commercial instruments which these notaries drew, if these instruments had come with any frequency before the courts, we should have seen a similar class arising in England. That no such class arose in the Middle Ages points, I think, to the fact that the larger commerce was mainly in foreign hands, and that the litigation arising from it did not trouble the English courts. And the fact that in the fifteenth and sixteenth centuries, when England began to take her own foreign trade into her own hands, a new commercial sphere of work opened to the notary, renders this hypothesis the more probable. Laymen as well as ecclesiastics began to fill the office. They began to be employed in England, as they were employed abroad, to draw up many different kinds of documents; and to this day all notaries are members of the Scriveners Company.3 But though notaries thus came to be used in England, they never attained the same position in English law as that which they attained abroad. Like much else that is peculiar to English law, the reason must be sought in the characteristics of the common law in the Middle Ages, and in its history during the sixteenth and seventeenth centuries. The backward economic condition of England in the Middle Ages, and the insularity of the common law, were the reasons why that common law never needed, and therefore never recognized, an official of the civil or canon law. The Reformation of the sixteenth century, and the victory of the common law over its rivals in the seventeenth century, reduced the civil and ecclesiastical law to a subordinate position; and the officials recognized by them naturally shared their fate.
The economic position of England in the Middle Ages had
1 Thus we find notaries among the persons deputed to give Richard II. notice of his deposition and to receive his resignation, R.P. iii 416, cited Brooke, op. cit. 13. 2 See two writs of 13 Edward II. cited by Prynne in his preface to his Animadversions on Coke's Fourth Institute, according to which imperial notaries were forbidden to exercise their office in England-to allow them, it was said, implied some sort of subjection to the emperor; ibid at pp. 58, 59 he cites the case of John de Bourne who, 3 Edward III., was imprisoned by the Barons of the Exchequer, because, with a view to questioning subsequently the proceedings in an ecclesiastical court, he brought a papal notary into the court of Exchequer to record the proceedings in a plea between himself and a parson.
3 Brooke, op. cit. 14, 15. Their later history is uneventful. At the Reformation the king assumed the papal power to appoint notaries, and vested it in the Court of the Faculties which was under the control of the Archbishop of Canterbury, 25 Henry VIII. c. 21; that body still appoints, but the office is regulated chiefly by the statutes 41 George III. c. 79, and 6, 7 Victoria c. 90.
• Above 78-79.