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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–35 (1287)
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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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Wager and jury—wager fails sometimes, what is the principle? It’s hard to tell. Note that on p. VII–36
(the Rogaine case Eltisley v. Barber), the defendant leaves the bar in attempting to find
pledges. In Long’s Case (p. VII–36), 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–36 (1287). No problem with damages
in covenant.
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5.
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Spicer v. Chapman,
Mats. p. VII–36 (1300)).
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a.
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John Spicer, Sat before Candlemas 24 Edw I, 1295; 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 (440s), demands 1/3 of the loss (146s 8d),
delivers 10s plus 50s worth of land and 10s 5d to his great damage 100s;
what we have below suggests that the damages claimed should have been 146s
8d, i.e., 11 marks
Spicer’s version:
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Spicer
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Chapman
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+60s
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–60s
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+65
5d
| t:solid windowtext 1.0pt;
mso-border-top-alt:solid windowtext .5pt;mso-border-left-alt:solid windowtext .5pt;
mso-border-alt:solid windowtext .5pt;padding:0in 5.4pt 0in 5.4pt'>
+30s horse
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–25s
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+25s horse + saddle
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–146s
8d
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–60s
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+60s messuage + cash
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–10s 5d
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+10s 5d
profit from previous journeys
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Bottom line Chapman owes Spicer 11 marks (146s 8d) but he’s only
claiming 100s, why?
Jury’s version:
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Spicer
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Chapman
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+60s
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–60s
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–40
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+40
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–20
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+20
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One way to reconcile the figures: the jury is right about the numbers,
and Spicer is right about the deal.
If so, Spicer owes
Chapman: 60s (return of
capital) + 65s 5d (profit) = 125s 5d
Spicer
has paid: 60s (using jury’s values)
Spicer
owe: 65s 5d
Chapman
owes: 148s 8d
Net (Chapman owes): 83s
3d (add 16s 9d 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 83s 3d, 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, Mats. p. VII–37)—special jury—big deal—debt in
a jury (blue-ribbon jury).
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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–40):
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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 (p. VII–42);
note the bearer paper in Le Feytur’s Case (1309, p. VII–43) (unclear
how jd. was obtained here).
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10.
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The ecclesiastical courts: Chart c. Foster, York BI CP.F. 321
(1511), p. VII–44:
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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.
/td>
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c.
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In the middle 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 Foster bring his case in the York consistory?
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