2

3

transitory"1 from the nature of the action to the nature of the defence. Littleton had said that if, in an action of trespass for battery or for goods carried away, the defendant pleaded not guilty in manner and form supposed, the plaintiff would recover, though the trespass was committed in another town than that alleged in the action. In Elizabeth's reign this was so, even if the trespass was committed in another county. Thus, though by statute the venue must be laid in the proper county, the defendant could not traverse the venue laid by the plaintiff, unless his plea was local in its nature, i.e. depended for its efficacy on the place in which the facts alleged in it happened. If his plea was transitory in its nature he could not object to the venue laid by the plaintiff. If, for instance, to an action for assault and battery in the county of X, it was pleaded that the defendant molliter manus imposuit to prevent the plaintiff from entering his (the defendant's) house in the county of Y, the plea was local, as the cause of justification was local; but if the plea was son assault demesne it was transitory. It is clear that most defences to actions on contracts, or to actions for torts to the person or to goods, are transitory. Therefore in most cases the defendant could not traverse the venue laid by the plaintiff. In other words the venue so laid was untraversable, and the objection based upon venue to hearing transitory actions founded upon foreign facts disappeared.

5

(b) The date at which this device was adopted by the courts of common law cannot be fixed with precision; but it was certainly during the latter half of the sixteenth century. In Henry VIII.'s reign it was commonly used in the courts of the City of London. Brooke, who had filled the offices of common sergeant and recorder of London, after abridging the pleading in the Year Book of 48 Edward III., says that this was the common practice in London in that reign, and that in such cases the place alleged was not traversable. But probably it did not become a common practice in the courts of common law till a little later. Perkins, whose "Profitable Booke" was first published in 1530, states the

5 Peacock v. Peacock (1599) Cro. Eliz. 705; cf. Inglebatt v. Jones (1588) Cro. Eliz. 99; Purset v. Hutchings (1601) Cro. Eliz. 842; and cf. Williams, Notes to Saunders' Reports 248, n. 1, "It is a rule that if to a transitory action the defendant pleads any matter which is itself transitory, he is obliged to lay it at the place mentioned in the declaration. But if the justification be local, the defendant must plead it in the county where the matter rose; and at common law the cause must have been tried there, and not in the county in which the action was laid; otherwise it was error."

Brooke, Abridgment, Faites pl. 95, "Home covenant de servir ove D. S. in le guerre in France per indentur que port date a Rone in France, et il counta pur son wages que le fait fuit fait al Rone in Kent, et bien, et sic utebatur in London tempore H. 8 sur autiels faits, quar le lieu nest traversable;" ibid Obligation pl. 87.

old law; and in 1539 a bill, which was apparently intended to give the common law courts jurisdiction over contracts made abroad, was rejected by the House of Lords. But in the latter half of the century the power which the legislature refused to give was secured by the adoption of this fiction. In Dowdale's Case (1606) its legality was finally upheld; and cases of 1586 and 1589 in which it had been adopted were approved. The old reasoning, which based jurisdiction on some act done in England, was thereby rendered unnecessary, because a plaintiff in any transitory action was now able to transport to Cheapside any act done in any part of the world.

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8

In spite of the arguments of the civilians, who gravely proved that such a fiction was wholly contrary to the principles of the civil law regulating the employment of fictions, in spite of the reluctance of the Council to accept it, and in spite of the ridicule of Prynne, the common lawyers held their ground. The result was that the common law courts, instead of being the least open of all courts to foreign actions, became the most open, provided that the cause of action was transitory. The chief limitations upon their jurisdiction arise either from their refusal to enforce rights wholly contrary to the principles of English law,10 or from the physical impossibility of serving process upon a foreign defendant who is out of the jurisdiction.11

1 Perkins, Profitable Booke §§ 494, 737.

Lords' Journals i 112, "Billa per quam debita in transmarinis partibus per singraphas concessa habilia efficiuntur in hoc regno Angliæ implacitari; quæ quidem Billa jam prima vice est lecta et relicta."

36 Co. Rep. 46b.

• Ibid 47b, 48a.

5Cf. Ilderton v. Ilderton (1793) 2 Hy. Bk. 162, where it is pointed out that there is no need to resort to this fiction if some part of the transaction happened in England.

6

Ridley, View of the Civil and Ecclesiastical Law 173-178; Zouche, Jurisdiction of the Admiralty Asserted, Assertion viii; Godolphin, A View of the Admiral Jurisdiction, c. 7.

7 Dasent xxiv I10 (1592-1593)—from a letter of the Council directing arbitration in a partnership case it appeared that one partner had refused arbitration, "Whereunto, as we are informed, he is induced the rather for that the contracte of partnershipp passed betwene them grewe and was made beyond the seas, which can receave no triall here at common law"; the frequent remonstrances of the Council to the judges on account of their issue of writs of prohibition and other interferences with the Admiralty point to the same conclusion, Dasent xiv (1586-1587) 317; Dasent xv (1587) 314; Dasent xxix (1598) 367-368; Dasent xxx (1599) 3, 4; cf. Dasent xxvii (1597) 180-where the merchants in a petition to the Council complain of damage caused by prohibitions issued to the Admiralty to stay execution of judgment. 8 Prynne, Animadversions 95, 97; vol. i 554.

9 Phillips v. Eyre (1870) L.R. 6 Q.B. 28, per Willes J.

10 For a recent illustration of this principle see Kaufman v. Gerson [1904] 1 K.B. 591; of course, the facts relied on by the plaintiff must also give rise to a cause of action in the place where they happened, Phillips v. Eyre (1870) L.R. 6 Q.B. 28, 29.

11"Though every fact arose abroad, and the dispute was between foreigners, yet the courts, we apprehend, would clearly entertain and determine the cause, if in its nature transitory, and if the process of the court had been brought to bear against the defendant by service of a writ on him when present in England," Jackson v. Spittal (1870) L.R. 5 C.P. 549, per Brett J.

Thus the common law got rid of the difficulties occasioned by the old rules of venue. At the same time it had acquired in the action of assumpsit a convenient and flexible remedy for the enforcement of all kinds of contracts, and, in the action of trover, a convenient action for the enforcement of title to goods. These changes enabled it, not only to claim a share in the commercial business of the country, but even to aim at securing a monopoly of that business, by prohibiting the court of Admiralty from hearing such cases.

According to the theory of Coke and the common lawyers, it was only if a contract was made super altum mare, and was to be performed there, that the Admiralty had jurisdiction.1 But if the Admiralty had been allowed to employ a similar fiction to that employed by the common law courts, this concession might have been used to give it the disputed jurisdiction. The courts of common law therefore denied this liberty to the Admiralty. Their own fictions were untraversable; but the allegation that a contract sued on in the Admiralty was made super altum mare could be defeated by a mere surmise of the litigant who applied for a Prohibition. The claims made by the common law to a monopoly of this commercial business were not finally made good till after the Restoration. In the sixteenth and early seventeenth centuries the agreements come to by the judges in 1575 and 1632 conceded to the Admiralty a concurrent jurisdiction. But we should note that these agreements assumed that the common law courts had succeeded in making good their claim to share in this jurisdiction, if the parties chose to bring their action before them.5 And it is clear that the common law and the common lawyers were beginning to acquire some knowledge of the mechanism of foreign trade, and of the law applied by the merchants to regulate their commercial relations. Thus the edition of William West's collections of precedents published in 1615, which was "newly augmented with divers Presidents touching Merchants' affaires, shows that the common lawyers were becoming acquainted with the usual forms of mercantile documents. These precedents, some of which were written in French, comprise such documents as a charter-party, a sale of a share in a ship, a bill of lading, a bill of exchange, an insurance policy, and a procuration of a merchant to his factor. Similarly in the reports we find cases turning on

3 Vol. i 556-558.

Ibid 553, 555-556.

This is expressly pointed out by Jenkins in his argument before the House of Lords in favour of a bill to ascertain the jurisdiction of the Admiralty, which proposed to enact in substance the agreement arrived at in 1632, see Wynne, Life of Jenkins i lxxxv.

West, Symboleography, Pt. I. §§ 655-675.

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7

such topics as jettison,1 average, insurance,3 charter-parties,* mercantile agents," partnership," bills of exchange, merchant's marks, bottomry, freight, the recaption of a captured ship,11 an agreement to share a captured prize. 12 One effect of the statute of 1624,13 which is the foundation of our modern patent law, was to make questions as to the validity of a patent, a matter for the common law courts. 14 It is not therefore surprising to find that Malynes recognized that it was desirable for a merchant to know something about the common law decisions.15

It was inevitable in these circumstances that the relation of commercial law and custom to the common law should undergo a change. In the Middle Ages, when the commercial customary law was administered in special courts for a very separate body of persons, it was something quite outside the common law. 16 It was therefore necessary to plead and prove as a special custom any particular rule upon which a litigant wished to rely in proceedings before a common law court.17 But, when the common law courts began to open their doors to commercial cases, it became clear that they must take notice of this customary commercial law, and accept it as part of the common law. A case reported

1 (1609) 12 Co. Rep. 63.

2 (1590) Moore K.B. 297; this was a case in the court of Requests, but the reporter clearly thought it was a useful case for a common lawyer to know.

3 Dowdale's Case (1606) 6 Co. Rep. 47b.

4 Ibid 48a; (1611) Cro. Jac. 263-264; (1625) Palm. 397.

5 (1610) I Bulstr. 103; (1618) Cro. Jac. 468.

6 Hackwell v. Brooks (1617) Cro. Jac. 410.

7 (1602) Cro. Jac. 7; (1613) Cro. Jac. 307; (1621) Winch, 24-25; these are the earliest cases reported, but there is reason to think that earlier cases had come before the courts, see Pt. II. c. 4 I. § 2.

8 (1618) Cro. Jac. 471, per Doddridge J. 10 (1612) 1 Brownl. and G. 22.

12 (1590) 2 Leon. 182.

14 See S.P. Dom. (1637) 108, ccclvi 62.

9(1628) Noy 95; Hob. 11, 12. 11 (1611) 2 Brownl. and G. II. 13 21 James I. c. 3; vol. iv 353-354.

15 Lex Mercatoria, Pt. I. 76; after giving two decisions on bills obligatory, he says, These observations at the common law, and such like book cases as I have put down, I hold to be necessary for merchants to know, albeit we handle the law merchant in this treatise, and not matters of the common law."

16 Vol. i 526, 535, 539; vol. ii. 307, 309-310; the earlier medieval point of view is illustrated by the following dialogue in Y.B. 21-22 Ed. I. (R.S.) 456-458: "Metingham C.J., He who demands this debt is a merchant; and therefore if he can give slight proof to support his tally we will incline to that side.-Gosefeld, Alas! Sir, we are here at common law; wherefore we are advised that he shall not be received in this Court, inasmuch as he can have his recovery elsewhere by Law Merchants;" but it should be noted that in the Eyre of Kent 6, 7 Ed. II. (S.S.) ii 49, 50 the rules of the law merchant were applied-perhaps because the Eyre suspended the sitting of all courts in Kent, including the mercantile courts; and in 1311, in an action on a sealed tally, Bereford C.J. recognized that "a man cannot use the law of the land in all its points against a merchant,” Y.B. 4 Ed. II. (S.S.) 154—even at this early date, it would seem, the common law was beginning to encroach on the sphere of the Law Merchant.

17 Placitorum Abbreviatio 321, gives a good illustration of the way in which plaintiff and defendant pleaded their different versions of the commercial custom affecting their case.

by Brooke shows that they had adopted this new position at least as early as 1543.1 In that case a general custom of the merchants had been specially pleaded; and it was agreed that the pleading was bad, because a custom prevailing inter mercatores per totam Angliam was common law, and could therefore no more be pleaded than any other general rule of the common law. It followed, to use Coke's words, that, "the Law Merchant is part of the laws of this Realm." 3

But, in spite of the recognition of the fact that the law merchant was part of the common law, the courts, at the beginning of the seventeenth century, found it much more convenient to allow the customs of the merchants to be pleaded specially.* This was due to three closely allied causes. In the first place, because the lawyers were very ignorant as to the exact scope of many of these customs, it was convenient to have them set out in the pleadings. In the second place, though mercantile custom was recognized as being part of the common law, it as yet applied only as between merchants; and it was necessary to state in the pleadings that the parties were merchants. In the third place, the forms of action at common law could not easily be applied to enforce many of the rights recognized by the merchants (e.g. the rights of the different parties to a bill of exchange) except by stating the custom in some detail, and giving an action on the case based upon the custom thus stated. But towards the end of the seventeenth century the courts were able to revert to the position taken up by Brooke and Coke. Their knowledge of mercantile custom was growing greater; and so it was decided

5

1 Brooke, Abridgment, Customs pl. 59, "Information in Scaccario vers marchant pur lader vine in estrange niefe. Le defendant plede lycence par le roy fait a J. S. de ceo faire, quel J. S. aver graunt son auctoritie inde al defendant, et quod habetur consuetudo inter mercatores per totam Angliam que un poet assigner tyel lycence ouster a un auter et que l'assigne enioyera ceo etc. que fuit demurre in ley, et fuit agre pur ley, que home ne puit prescriber custome per totam Angliam, que si soyt per totam Angliam, ceo est un commen ley et nemye un custome, contra si le custome ust estre plede d'estre in tyel citye ou countye.'

2 Cf. Y.B. 2 Hen. IV. Pasch. pl. 5, cited vol. iii. 386 n. 3.

3 Co. Litt. p. 182a.

On this matter generally in its application to negotiable instruments see Street, Foundations of Legal Liability ii 347-350.

5

"In Barnaby v. Rigalt (1633) Cro. Car. 301-302, error was assigned because the plaintiff was not shown to have been a merchant at the time of the delivery of the bill of exchange, which was the subject of the action; but judgment was affirmed because he was named a merchant in the declaration; cp. Edgar v. Chut (1663) Keb. 592, where, though it was said that the drawer or payee of a bill of exchange need not be a merchant, it was assumed that the remitter and drawee must be. As a matter of fact, bills of exchange were before this date ordinarily used by Englishmen travelling abroad; thus Evelyn says in his diary, May 6, 1645, "the bills of exchange I tooke up from my first entering Italy till I went from Rome amounted but to 616 ducati di Banco"; and in the Memoirs of Sir John Reresby (Ed. Cartwright 1875) 26, Sir John states that in 1654 he stayed no longer in Paris "than to get my clothes and to receive my bills of exchange."

VOL. V.-10