19th century, the internal trade of the country had in the 16th century practically ceased to be ruled by a special law and by special courts. The companies of merchants and the craft guilds possessed no jurisdiction of their own. Some few courts of fairs survived; and we have seen that the courts of some large cities still continued to exercise jurisdiction. But, except in so far as statutes drew a distinction between traders and others,[1] the trader's or the merchant's dealings were not treated differently from those of any other class in the community. They were governed by the common law, and generally by the Common Law Courts. The common law had borrowed certain rules from the law merchant. The rules that there is no warranty of title in a sale of goods,[2] and that, under some circumstances, a sale in market overt by a non-owner will pass the property,[3] probably come from this source. The merchant's view of the efficacy of the earnest money to bind the bargain was recognised by the Statute of Frauds.[4] By the end of the 16th century the internal trade of the country was regulated by the common law so modified, and not by a separate Law Merchant.
The foreign trade of the country continued for a longer period to be governed by a separate Law Merchant. In France, Italy, and Germany the usages of the merchants were, in the 14th and 15th centuries, treated of by many writers. In the 17th century their works had been adapted by writers like Malynes, Marius, Molloy, and Beawes. They all considered the merchant as a class apart and subject to
- ↑ Instances are the earlier bankruptcy acts, and the earlier acts rendering the real estate of deceased persons liable to their debts.
- ↑ 3 Co. Rep. 22; Parke B., Morley v. Attenborough (1849) 3 Ex. 500, 511.
- ↑ Coke, 2nd Instit. 713, 714. Coke draws his rules as to the conditions under which this is allowed from the Year Books of Hy. VI.–Hy. VII.'s reigns, and from some cases of Henry and Elizabeth's reign. Cp. Hargreave v. Spink, L. R. 1892. 1 Q. B. 25.
- ↑ Carta Mercatoria (Munimenta Gildhallæ ii Pt. 1 205); 29 Car. II. c. 3 § 17; P. and M. ii 206, 207.
certain wares or merchandize by way of retail or otherwise, or use any or certain trades, occupations, mysteries, or handicrafts for hire, gain, or sale within the same; be it enacted that notwithstanding any such custom or bye-law, every person in any borough may keep any shop for the sale of all lawful wares and merchandizes by wholesale or retail, and use every lawful trade … within any borough."
