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English Legal History
3/17/2009
Outline
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A GLIMPSE AT THE
LOCAL COURTS
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1.
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Contracts in courts other than K.B/C.P. We could do number on tort, but
it would be a lot harder. These are wonderful cases to write papers about
if you are still looking for a paper topic.
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2.
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The Fair court of St. Ives—late 13th century—(the place is in
Huntingdonshire); franchisal court of the abbot of Ramsey by charter of
1110; for reasons that are not entirely clear (it may be related to the
rise of the Staple courts) the court declined in the 14th century).
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3.
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Ribaud v. Russell,
Mats. p. VII–33 (1287)
“Gilbert Ribaud complains of William Russell and Walter Clerk of Haddenham.
Pledge to prosecute, his faith; pledge of the defendants, feathers.
“And Gilbert appears and complains of the said William and Walter, for that
they unjustly detain from him and do not pay him 9s. 6d.; and unjustly
because, whereas it was covenanted between him, Gilbert, and the said
William and Walter, in the town of Bury St. Edmunds in the house of Alice
Coterun, on the Monday before the feast of St. Nicholas last past, a year
ago, that the said Gilbert should sell eleven sacks of feathers and that he
should receive as his stipend 12d. for each sack,
the said Gilbert as broker of the said William and Walter sold these sacks
to a certain John Waterbailie of Provins. And after the said sale had been
made the said Gilbert firmly believed that his stipend, 9s. 6d., would be
paid to him according to the covenant (secundum
convencionem); but the said William and Walter have detained the said
money from him and still detain it, to his damage a half-mark. And he
produces suit.
“The said Walter and William are present and deny all which should be
denied word for word, and they are at their law. And because they cannot
find pledges to make their law, the said Gilbert craves judgment against
them, as against those who are convicted, both for the damages and for the
principal.
“Wherefore it is awarded that the said William and Walter make satisfaction
to the said Gilbert and be in mercy for the unjust
detention. They are poor: pledge, their bodies. And afterwards they were
liberated, each on his own pledge of faith.”
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a.
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The use of the words ‘covenant’ and ‘detain’
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b.
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Note that wager fails sometimes. Let’s take a look at another case: Eltisley v. Barber, p. VII–33:
“John, son of John of Eltisley, complains of Roger Barber, for that he has
unjustly broken a covenant with him; and unjustly because, whereas the said
John was in the vill of Ramsey on the Monday after Epiphany last past, a
year ago, in the house of Thomas Buck, the said Roger came there and
undertook (manucepit) to cure
his, John’s, head of baldness for 9d., which the said John paid in advance.
“The said Roger was present and denied tort and force, etc., and put
himself on his law; and in finding
pledges of his law withdrew from the bar without leave.”
The defendant leaves the bar in attempting to find pledges, a suggestion
that he was desperate.
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c.
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What is the principle that determines whether a case goes to wager or to
some other form of proof? It’s hard to tell. A majority of the cases go to
wager of law. But Long’s Case (p.
VII–34):
“Peter Long of London complains of Geoffrey of Cam and says that he
unjustly detains from him 600 ells of canvas, which he, Peter, through his
broker Hamon of Bury St. Edmunds, bespoke and bought from him in his booth
in the vill of St. Ives, on the Friday after the feast of St. John before
the Latin Gate, for 29s. the hundred and a
farthing as a God’s penny, to his damage 40s. And he produces suit.
“The said Geoffrey is present and denies tort and force, etc., and says
that he never sold the said canvas to the said Peter or to any broker of
his; but he says that the said Hamon came to his booth and offered him 27s.
for each hundred ells of the canvas and thereupon
threw down a farthing as a God’s penny, against the will and without the
assent of Geoffrey. And that this is true he craves may be inquired, and
the adverse party does likewise; and a day is given them on Monday.”
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d.
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Hence, an inquest is used to determine what happened in a sales action.
It may be that we have a survival here of the notion that real function of
the judge is to determine who is to prove what and how.
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4.
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Colne v. Marshall, Mats. p. VII–33 (1287). No problem with damages
in covenant.
“John, son of Alan of Colne, complains of Robert Marshall and his son Adam,
and says that, whereas on Wednesday last he brought a certain horse of his
to the workshop of the said Robert and Adam to have three of the said
horse’s feet shod with new shoes and to have a fourth shoe removed for 2d.,
the said Robert and Adam removed the shoe from one foot of the said horse
and put a new shoe on another foot, but they broke their covenant as to the
other two feet; wherefore the said John by the delay of the said Robert and
Adam lost the sale of his horse on that day from the third to the ninth
hour, to his damage a half-mark.”
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5.
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Spicer v. Chapman,
Mats. p. VII–34 (1300).
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a.
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John Spicer, Sat before Candlemas 24 Edw I, 1295/6 February; Peter
Chapman gave J 60s, J gave P a horse worth 30s; 2d journey gave him another
horse worth 25s; 3d journey lost 33 marks (433s, 4d), demands 1/3 of the
loss (146s 8d), delivers 10s plus 50s worth of land (which must be a wash)
and 10.5d to his great damage 100s; what we have below suggests that the
damages claimed should have been 146s 8d, i.e., 11 marks, but he’s only
claiming 100s, why?
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Spicer/Chapman
Account per Spicer
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(amounts
owed Chapman showed in negative)
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Amount
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Unit
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LCD
(pence)
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Notes
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–60
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shillings
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–720.0
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original
loan
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30
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shillings
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360.0
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horse
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25
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shillings
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300.0
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horse
and saddle
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60
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shillings
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720.0
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messuage
+ cash
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–55
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shillings
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–660.0
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C's
share of the profits
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–10.5
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pence
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–10.5
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C's
share of the profits
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10.5
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pence
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10.5
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cash
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0.0
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Spicer
owes Chapman
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146
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shillings
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1752.0
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8
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pence
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8.0
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1760.0
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=11
marks; Chapman's share of the loss
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Spicer/Chapman
Account per jury
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–60
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shillings
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–720.0
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original
loan
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20
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shillings
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240.0
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2
horses
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40
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shillings
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480.0
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messuage
+ cash
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0.0
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Spicer
owes C and C owes S
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One way to reconcile the figures is to assume that the
jury is right about the numbers and Spicer is right about the deal.
If so:
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S owes
C
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–60.0
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shillings
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–720.0
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original
loan
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–55.0
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shillings
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–660.0
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profit
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–10.5
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pence
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–10.5
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profit
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Subtotal
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–1390.5
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S pays
C
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20
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shillings
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240.0
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2
horses
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40
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shillings
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480.0
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messuage
+ cash
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Net
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–670.5
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S owes
C
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C owes
S
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11
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marks
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1760.0
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loss on
third trip
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Net
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1089.5
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=93s 2d
C owes S
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Add 6s 10d for costs or rounding and you get 100s.
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b.
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Can we speculate as to why this deal went bad? The jury’s ultimate verdict is
implausible. Chapman (the word means merchant) is almost certainly not
lending Spicer money gratuitously. Either they agreed to share in the
profits and losses, in which case (assuming that the jury’s evaluations are
right) Chapman owes Spicer 93s 2d, or Chapman was to get profits but not
share in losses, in which case Spicer owes Chapman 55s 10.5d. Hence the
jury split the difference. Why?
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c.
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Clearly the sale of porret seed in Scotland was a high-risk
enterprise, but the potential rewards were also great. The first two trips
(assuming that Spicer put in 120s to match the 60s) yielded a profit of
165s on an investment of 180s. That’s a 92% return. Of course, the third
trip, if we believe Spicer’s numbers, yielded roughly a 360% loss. (Hard to
imagine how that could have happened unless the 120s was only for buying
the porret seed, and the Scots not only stole the
seed but also stole Spicer’s animals, etc., on the third trip.)
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d.
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The principal thrust, however, of Spicer’s argument may not have
anything to do with the harshness of the deal. It may be that if you
(Chapman) are going to avoid the usury prohibition by taking a share of
profits rather than direct interest, you have to share in the losses as
well. This, then, is the proposition that the jury refuses to buy. One of
the reasons, however, why it refuses to buy it is that it is able to see
the transaction as wash for Chapman. If we take the jury’s evaluations,
then Chapman got no profits, so we don’t have to get into the question
whether he should share the losses as well.
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e.
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Apart from this speculation we can add a few solid legal points:
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i.
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No rule about single claim
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ii.
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Complex cases can be brought
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iii.
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Account, partnership
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6.
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The City of London (Whittington v.
Turnebonis, Mat. p. VII–35)—It involves a former Lord Mayor of London,
a huge sum of money (£296), a transaction involving the sale of prisoner
taken at Agincourt, a special jury made up half of aliens and half of
denizens, and the use of a jury in what is essentially a debt case.
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7.
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Staple courts—cutting out a certain class of cases
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8.
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Royal courts with a special arrangement for big deals, e.g., assizes at
Southhampton (Dunstable v. Le Bal, 1278, p. VII–37):
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a.
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The record is an extract from an assize roll of 1278. The commissioners
of assize are one Solomon of Rochester and Mr. Thomas de Sutherington were
almost certainly to take the assizes in Hampshire and perhaps also to
deliver the jails. Our case, is heard pursuant to
a special writ issued out of the chancery, which tells the commissioners,
in effect, “oh, by the way, as long as you’re out there, hear this case
too.”
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b.
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The writ is not one of the standard writs in the register for beginning
litigation (though G.D.G. Hall’s edition for the Selden
Society of Early
Registers of Writs does contain a couple of writs in which matters are
to be determined “according to the law merchant”). The writ recites, in a
long “whereas” clause (foreshadowings of the famous “whereas” clause in
trespass on the case), the basics of Dunstable’s complaint. The king orders
his commissioners to inquire into the matter in a rather precise way: They are to do it in the presence of
lawful and discreet merchants and citizens of Winchester
and by the oath of upright and lawful men of Winchester. By these two groups the commissioners are
to find out the truth of the matter and swift and appropriate amends are to
be made in accordance with their findings and in accordance with the law
merchant.
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c.
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Is the “law merchant” a set of substantive rules or whether it is simply
a set a procedures. That the procedure/substance
distinction does not come easily to the men of this period makes it all the
harder. We can read the writ in two ways: (1) if you find this to be true,
then make an award according to the law merchant (in which case the law
merchant simply tells you how to calculate the remedy for something that
has already been determined to be actionable), or (2) if you find this to
be true and if it is the sort of thing for which the law merchant provides
redress, then supply redress. I lean toward the first interpretation, but
you don’t have to.
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d.
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What’s Dunstable’s gripe? He
bought wool on the basis of samples.
When he opened up the wool in a foreign market (S. Omer, Artois, modern Pas de Calais, close to the border of Flanders), it did not conform to his samples, indeed it was “vile, useless and altogether differing
from his agreement.” Hence, he lost
£100.
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e.
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What kind of action is this? An
action for breach of warranty of quality in sales of goods. One hundred
years later such actions will be heard in the CB using a variety of the
action on the case. In 1307, such an action was maintained in King’s Bench
on the theory of deceit (Ferrers v.
Dodford, Mats, p. VII–19),
but that case had a special royal interest. In all probability this action
could not have been maintained in the central royal courts in this period,
at least not as a matter of course.
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f.
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There was probably one or more merchant or local court which would have
been competent to hear this case, and the writ itself shows that there is
nothing about the case that is conceptually beyond what the men of this era
could conceive of as actionable. So why
the special procedure?
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g.
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We know that Edward I was interested in providing a forum for merchants.
Whether this is because he perceived, if dimly, that an effective court
structure is an important element of commercial infrastructure or whether
he had more personal reasons is perhaps unknowable, but the fact is that he
did this.
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h.
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Some clue as to the reason for royal intervention in this case can be
found in the numbers. If my arithmetic is right, the total sales price is
£482 13s 4d, or 724 marks. This is a huge deal. You could hire 241
carpenters for a year for this amount of money.
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i.
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The numbers also tell us something else. “Vile and useless” is almost
certainly an exaggeration. Even the plaintiff is only claiming a 20%
reduction in value. The jury, as we will see, puts the loss at less than
ten percent.
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j.
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When the parties are present before the court, the plaintiff counts. We
may be in the strange world of the law merchant and a special royal
authorization for something that is called an inquest, but there are some
constants. Lawsuits begin with the plaintiff laying out his claim orally
before the court. The claim is basically the same as in the writ, except
that Dunstable adds that when the S. Omer merchants discovered that they
were being cheated, he, Dunstable, stood in peril of his life.
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k.
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The next thing that happens is strange (this is in the full record not
in Fifoot’s extracts). Ball challenges the jurisdiction of the court on the
ground that he was not properly summoned. He also says that the sheriff
forced him to come. The justices (apparently) say that coercion should not
be used in this type of case (their statement is very broad, and cannot be
maintained as a general matter). Then the sheriff denies coercion and says
that he gave Ball three days’ notice, which the assessors say is adequate
under the law merchant. The speed
with which a case in law merchant can proceed is one of its chief
characteristics. Ball then leaves court in a huff, but the justices make no
attempt to bring him back; they simply call his departure contempt and
proceed to take the jury’s verdict.
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l.
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The jury basically confirms Dunstable’s story. They do say that the
amount of wool delivered to Dunstable was only one and half sacks short
rather than two and half as Dunstable had claimed. They also considerably
reduce Dunstable’s claimed damages. Assuming that Hall’s arithmetic is
right, the total loss on the whole shipment is £39 16s 8d, to which the
assessors (note the shift here between the jury and the assessors) add 20
marks in costs (£13 6s 8d). The justices enter the judgment (except that,
whether by clerical error or by design we cannot tell, the sum is left
out), and Ball is to be arrested (a rather harsh process for execution of
judgment, at least as an initial matter, but the justices probably were not
too pleased when Ball walked out on them).
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m.
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We emphasize, on the one hand, that the ideas are sophisticated and the
jury seems to know what it’s doing. Yes, you got
fewer sacks than you were entitled to but not as many fewer as you claim.
Yes, the wool was worth less than you it would have been if it had been
what was warranted, but it wasn’t worth that much less. How does the jury
know this? Clearly, they’re “plugged
in” to some kind of mercantile gossip market; perhaps it is provided by the
assessors. It is possible that Ball was not a crook but simply that the
wool deteriorated while it was in his hands, but I think it unlikely. The
fact that the wool in the sample sacks was worth what he said it was worth
suggests that he deliberately put his best sacks forward. It’s an old
trick. There are provisions in the Roman law of sale about this.
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n.
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On the other hand, and ultimately, we don’t know how effective this
process was. We’ve got a sophisticated judgment but the defendant is no
place to be found. Without more we cannot tell whether Dunstable ever
collected and that is the ultimate test of whether the process is
effective. The procedures in the Statute of Merchants and the Statute of
Staple give more assurance of collection, but they involve restructuring
the deal into the form of penal bonds. That is, of course, the story of how
big-time commercial deals were handled in the later Middle Ages, and it is also one of the reasons why it took so
long for the common law to develop a sophisticated commercial law.
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9.
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Exchequer—note the jurisdictional gimmick in Pylate v. Cause (1299,
p. VII–42): James Pylate, a merchant of Douai, is described as a yeoman of
Walter, Bishop of Coventry and LichWeld,
Treasurer of the lord King in order to give the court jurisdiction; note
the bearer paper in Le Feytur’s Case (1309, p. 504) (unclear how jd.
was obtained here): the buyer promised to pay £55 for 22 cloths of ray of
Ghent bought from sellers in the Fair of St. Botulph, to be paid to the
same sellers or to anyone bearing this letter at London.
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10.
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The ecclesiastical courts: Chart c. Foster, York BI CP.F. 321
(1511), p. VII–41:
“The aforesaid Oliver Foster, at a time before the feast of St. Lawrence
recently past, bought and received from the aforesaid George Chart forty
sheep, forty lambs and twenty hogs worth £6 6s 8d.
“The same Oliver on the day of delivery and receipt of the said sheep,
lambs and hogs, paid 26s 8d in part payment of the said sum of £6 6s 8d.
“The same Oliver by his oath faithfully promised the same George to pay £5
the rest of the same £6 6s 8d on a certain day now past.
“The aforesaid Oliver, thus requested as is aforesaid has delayed and
refused to pay or deliver to the same George the said £5, just as he delays
and refuses at the present time.
“The aforesaid are true, public notorious, and manifest, etc.”
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a.
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There are lots of these. The number runs into the 100’s on the records,
in the 1000’s in reality.
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b.
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This case is typical. The elements.
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c.
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In the early decades of the 16th century the number declines
precipitously.
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d.
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We will see tomorrow that competition from the king’s courts may not be
the answer.
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e.
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Why would Chart bring his case in the York consistory? Why would Foster allow it to stay there?
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