Various Obsolete Courts. The Law Merchant.-In early times the law relating to merchant's transactions, and in particular to foreign merchants, did not form part of the general common law, but was administered in particular courts, such as the Courts of the Staple attached to certain staple towns, the Courts of Pied Poudre attached to fairs and markets, the Court of Policies of Assurance in London, besides the various courts having admiralty jurisdiction. Staple towns dated from the reign of Edward I. (g), and were the only towns permitted by charter to deal with foreign merchants in the staple articles of commerce, such as wool, woolfells, leather, etc. The Statute Merchant (13 Ed. I. st. 3) provided a form of recognizance termed a statute merchant, to be entered into by a debtor before the mayor or chief warden of a city, town, or borough, and in default of payment a speedy remedy. The Statute Staple was a similar form of recognizance provided by the 27 Ed. III. st. 2, c. 9, to be entered into before the mayor or constables of the staple towns. (r) In addition to the staple towns which enjoyed the exclusive privileges of trade mentioned above, in all towns the merchants in early times formed themselves into guilds merchant, and no person who was not a member of the guild was allowed to trade within the town. These guild merchants split up eventually into particular craft guilds, mysteries, and trading companies, the members of which also enjoyed exclusive privileges of trading in their several arts or industries. These exclusive privileges were finally abolished by the Municipal Corporations Act, 1835, (s) which provided that any person, whether he enjoyed the freedom of the borough or of certain guilds, mysteries, and trading companies or not, should in future be free to use any trade, wholesale or retail, or to keep a shop in any city or town. The courts administering the law merchant gradually fell into desuetude, and by the time of Lord (q) Co. Inst. iv. 237. (r) Both these statutes, having long fallen into disuse, were repealed by the Statute Law Revision Act, 1863. (s) 5 & 6 Will. IV. c. 76, s. 14. Mansfield, who is said to be the founder of the commercial common law of England, (t) it had become incorporated with the ordinary common law of the land. The Courts of the Staple.-These courts were established in staple towns in the reign of Edward III. (u) to hear cases between merchants of the staple before the mayor and two constables of the staple. The staple court administered the law merchant, and its jurisdiction excluded that of the courts of common law. They have long since fallen into disuse. The Court of Pied Poudre.-This was a court of record attached by the common law to every fair or market in the county to try causes arising in that particular fair or market. The steward of the market was the judge, and it derived its name from the dusty feet of the suitors. It has long since fallen into disuse, though the Bristol Tolzey and Pied Poudre Court still survives. The Court of Policies of Assurance.-This court was established in the reign of Elizabeth (x) for determining all causes connected with policies of assurance in London. It was abolished by statute in 1863. (y) The Court of Marchelsea. --This court tried cases of trespass where one of the parties was a member of the royal household, and cases of contract where both parties were members. It was abolished by the 12 & 13 Vict. c. 101. The Palace Court. This court sat at Westminster and heard causes arising within twelve miles of Whitehall Palace. It also was abolished by the 12 & 13 Vict. c. 101. (z) (t) See Lickbarrow v. Mason (1793), 1 S. L. C. p. 704. (u) 27 Ed. III. st. 2, c. 21. (2) 43 Eliz. c. 12. (y) 26 & 27 Vict. c. 125. (z) In addition to these there are still in existence certain inferior courts which have power to exercise justice under ancient charter. Some of these are regulated by statute, viz.— The Liverpool Court of Passage. The Salford Hundred Court of Record, The Oxford University Chancellor's Court. Others have no special Acts governing their procedure; these are The Derby Court of Record. The Exeter Provost Court. The Court of the Constable and Earl Marshal.—It was customary in early times for the king, with the advice of the constable and earl marshal, to issue rules to be observed for the due ordinance and discipline of soldiers in time of war, and these rules and orders were enforced by the Court of the Constable and Earl Marshal. (a) The offices of constable and earl marshal were distinct, both being hereditary in different families. The office of the constable became extinguished by the attainder of the Duke of Buckingham in the thirteenth year of Henry VIII., and his jurisdiction accordingly reverted to the Crown. The office of earl marshal continued and still exists by hereditary right in the Duke of Norfolk's family, but it seems that the earl marshal had no power to hold his court in the absence of the constable. The court of chivalry, however, was never wholly abolished. (b) The jurisdiction thus acquired by the Crown was unduly extended under the Tudors and Stuarts, and it formed one of the grievances recited in the Petition of Right, (c) that commissions of martial law were issued in time of peace and to try civilians as well as soldiers. These commissions of martial law were finally declared illegal by the Bill of Rights, and courts martial to try military offences, which have taken the place of the old Court of the Constable and Earl Marshal, are now held under the authority The Kingston-upon-Hull Court. Peterborough Court of Common Pleas. Preston Court of Pleas. Romsey Court of Pleas. The Southwark Court of Record. As to the Salford Hundred Court see 31 & 32 Vict c. 130; and as to the Oxford University Chancellor's Court see 25 & 26 Vict. c. 26. (a) Hale's Hist. Com. Law, 42. The jurisdiction of the court was regulated by statute, the 13 Ric. II. c. 2, enacted as follows: "To the constable it pertaineth to have cognizance of contracts touching deeds of arms and of war out of the realm, and also of things that touch war within the realm and which cannot be determined nor discussed by the common law, with other usages and customs to the same matters pertaining." (b) See Adye on Courts Martial, p. 2 et seq. (c) 3 Car. I. c. 1. of the Annual Army Acts. The Court of the Constable and Earl Marshal, in addition to military offences, took cognizance of contracts relating to military matters, prisoners of war, prize, and the like. It also sat as a court of honour to settle disputes between military men. The constable ceased to be appointed in the reign of Henry VIII., (d) and the last case to be tried in the court was that of Sir H. Blount in 1737. (e) Procedure in Civil Actions. Forms of Action.-As in the early times of Roman law set forms of actions were invented, and it became a rule that each injury could only be redressed by its own particular remedy, any flaw in that particular form vitiating the whole proceedings, so in English law from the earliest times there were fixed forms of complaint, each form appropriate to the particular injury to be redressed. We have seen how difficult it was for a suitor to obtain redress for some injury for which there was no precedent for a writ; how eventually the clerks in Chancery were in such cases authorized to issue writs in consimili casu, and how eventually the chancellor took cognizance of those grievances which could not be fitted exactly into the hard and definite forms of the common law writs. According to the ancient division actions were either (a) Personal, (b) Real, or (c) Mixed. (a) Personal actions were considered as being founded on contracts or torts. Torts denoted all wrongs independent of contract, and were of three kinds (1) Nonfeasances, or the omission of an act which a man was legally bound to perform. (2) Misfeasances, which meant the improper performance of a lawful act. (3) Malfeasances, or the commission of unlawful acts. The forms of personal actions founded on contract (ex contractu) were: (1) Debt, where a certain sum of money alleged to be due from the defendant to the plaintiff was sought to be recovered. (2) Covenant, where damages for (d) Hale's Hist. of Com. Law, p. 41. (e) (1737) 1 Atk. 296. breach of an agreement by deed were sought. (3) Assumpsit, for damages for breach of an agreement not made by deed. Those founded on tort (ex dilicto): (1) Detinue, to recover a personal chattel unlawfully detained. (2) Trespass, where damages for an injury accompanied with actual force (vi et armis) were claimed, such as a wrongful entry upon another's lands, or a wrongful taking of another's personal goods. (3) Trover, where damages were claimed for the wrongful keeping or conversion of another's goods. (4) Trespass on the case, being a form of action which came into use in the reign of Edward IV., and invented under the authority of the statute in consimili casu (ƒ) on the analogy of the older writ of trespass. It lay where damages were claimed for an injury to property or person not coming within the other forms, as where there was a culpable omission of some act, or where the act was injurious only by consequence or collaterally. Also, where the idea of force was not applicable, the subject matter being incorporeal and intangible. (5) Replevin, which lay for the recovery of goods alleged to have been wrongfully distrained. By the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), these forms in personal actions were abolished, and the ordinary writ with the endorsement suitable to the particular case was substituted. Now the procedure in civil actions is governed by the Judicature Acts and the rules and orders made thereunder. (b) Real actions and (c) Mixed actions. These may be considered together. All actions involving the right to real property were formerly conducted (as in the case of personal actions) in certain set forms, such as the Writ of Right Close, Writ of Right quia dominus remisit curiam, Writ of Assize of Novel Disseisin, Writ of Right Juris Utrum, and many others, some of which have been noticed above. But these remedies were found tedious, and through the great nicety required in their management, the fact that judgment was conclusive, and that they could be brought in the Common Pleas, they fell into disuse. The action in ejectment therefore took their place. These real and mixed actions were formally abolished in 1833 (3 & 4 Will. IV. c. 27, s. 36), the writ of (f) Statute Westminster the second (13 Ed. I. st. 1, c. 24). |