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eyes shut; but, first, to observe, that he is well versed in the quality, and has a perfect knowledge of the goods he takes in return, otherwise he may verify the proverb of being "Out of the frying-pan into the fire." As deceits are very common in these sorts of negociations; secondly, he ought to know where, and on what terms, he can get rid of his new effects, otherwise he may risk losing more by them than his old ones. And, thirdly, he should always avoid giving any share of ready money in the bargain, if he possibly can, as he that parts with it is sure to have less advantage in these uncertain dealings, than he that receives it.

8. And lastly, a merchant should never sell any of his goods in small parcels, except drove thereto by mere necessity, as this is derogating from his character, and will certainly occasion him a loss of his retail customers.

Merchants here were always particularly regarded by the common law, though the municipal laws of England, or indeed of any one realm, are not sufficient for the ordering and determining the affairs of traffick and matters relating to commerce; merchandizing being so universal and extensive, that it is impossible; therefore, the law-merchant (so called from its universal concern) all nations take special knowledge of; and the common and statute laws of this kingdom leave the causes of merchants in many cases to their own peculiar laws.

The custom or law of merchants is part of the common law of this kingdom, of which the judges ought to take notice; and if any doubt arise to them about the custom, they may send to the merchants to know their custom, as they may send for the civilians to know their law; and it is said, that the law of merchants cannot be proved by witnesses because it is the law of the land. Winch. 24. Hardress, 486. 3 Burr. 1663.

In the reign of King Edward IV. a merchant stranger made suit before the king's 13 Edw. IV privy council, for several bales of silk feloniously taken from him, wherein it was moved, that this matter should be determined at common law, but it was answered by the Lord Chancellor, that as this suit was brought by a merchant, he was not bound to sue according to the law of the land..

In former times it was conceived that those laws that were prohibitory against foreign goods did not bind a merchant stranger; but it has been a long time since ruled otherwise, for in the leagues that are now established between nation and nation, 19 HD.VII the laws of either kingdom are excepted, so that as the English in France, or any other foreign country in amity, are subject to the laws of that country where they reside, so must the people of France, or any other kingdom, be subject to the laws of England, when resident there.

and

English merchants are not restrained to depart the kingdom without licence, as all Mich. 12 other subjects are; they may depart, and live out of the realm, and the king's 13 Eliz. obedience, and the same is no contempt, they being excepted out of the statute Dyer 206. 5 R. II. c. 2. and by the common law they might pass the seas without licence, though

not to merchandize.

c. 30.

By Magna Charta it is enacted, that all merchant strangers in amity, (not publickly 9 Hen. III. prohibited) shall have safe conduct to come into, depart out of, and remain in England, and to travel by water or land, in and through the same to buy and sell, &c.

And if any disturbance or abuse be offered them, or any other merchant in a Stat.9Edw. corporation, and the head officer there do not provide a remedy, the franchise shall III c. 1. be seized, and the disturber shall answer double damages, and suffer one year's im

prisonment, &c.

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14 Edw. III Stat. 2, c.2.

5 R. II. c. 1

5 Hen. IV. c. 7.

27 Ed. III. c. 17.

All merchants (except enemies) may safely come into England, with their goods and merchandize.

Merchant strangers may come into this realm, and depart at their pleasure, an they are to be friendly entertained: and merchants alien shall be used in this kingdom as denizens are in others by the statute.

No merchant shall be impleaded for another's debt, whereof he is not debtor, &c. and if a difference arises between the king and any foreign state, alien merchants shall have forty days notice, or longer time to sell their effects, and leave the kingdom. N. B. The time for merchants to withdraw their effects has been by all late treaties with Spain, enlarged to six months, during which term they are to remain free and unmolested as and other well in person as goods.

Treaty of
Commerce

powers.
27 Ed. III.

c.3. and 38.

Ed.III.c.2.

18 Edw.II. c. 21.

4 Hen, IV. cap. 15.

All merchants may buy merchandize of the staple, and any merchant may deal in more merchandizes than one; he may buy, sell, and transport all kinds of merchandize, excepting by later acts, wool, &c.

Merchant strangers are to find sureties, that they shall not carry out the merchandize which they bring into England.

And when they bring any merchandize into the realm, and sell the same for money, Hen. IV. they are to bestow it upon other merchandizes of England, without exporting any gold or silver in coin, plate, &c. on pain of forfeiture.

c. 9.

Act for

trade.

This law is altered, permitting gold or silver bullion, or any foreign coin, or jewels 15 Car. II. to be exported.

c. 7.

8 Hen. VI.

The same extends as well to denizens as strangers, and in strictness of law, they ought not to receive any gold in payment. But now payment may be made in any of Hen. VII. the current coins of this kingdom.

c. 24.

c. 8.

1 Ric. III. c. 9.

29 Geo.II.

And the reasons of these laws were to keep the gold and silver within the realm, and at the same time increase our manufactures by encouraging their exportation abroad. Foreign merchants are to sell their merchandize at the port where they land in gross, and not by retail.

But goods imported in British built ships, being the property of foreigners, shall pay c. 34. 20. alien's duty.

1 Eliz. c. 11.

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Stat. 12. Car, 11. c. 4.

JW.and M. Sess. 1. cap. 34.

12 Ann.

cap. 8.

1 Hn. VII. c. 14.

22 H. VIII. c. 8.

1 Eliz.

cap. 1.

And merchandize is to be laden, and unladen, at certain ports, and in the day-time, under penalties.

It shall be lawful for merchants to transport iron, armour, pistols, muskets, saddles, swords, bridles, &c.

But see Van Omeron, v. Doaick. 2 Camp. 44.

Merchants, &c. corrupting or adulterating wine, or selling the same adulterated, are liable to penalties.

On importation of tobacco, merchants have an allowance of eight per cent. &c. All merchant strangers, that shall be made denizens, either by the king's letters patent, or by act of parliament, must pay for their merchandize, like custom and subsidy, as they ought, or should pay before they were made denizens.

The wares, merchandizes, debts, or duties that merchants have as joint-traders or Co. 2. Inst. partners, shall not go to the survivor, but shall go to the executor of him that is fol. 742. deceased; and the executor may join in an action with the surviving merchant.

31 E. III.

7. Coke on

This is not now law, for though the executor is beneficially interested, he cannot

Littleton, join in an action. Lord Raym. 340. Com. Dig. Merchants' D.

fol. 182.

9 Levinz.

188.

¡Vern.217,

In copartnerships between merchants it is not necessary to provide against survivorship; aliter, if the trade is to be carried on for the benefit of widow or children.

* Sed quære, for it hath been since held, that the executor and survivor cannot join, for the remedy survives, though the duty doth not; and therefore on recovery he must be accountable to the executor for that. Martin v. Crump. Salk. 414.

If two joint merchants occupy their stock, goods, and merchandize in common, to their common profit, one of them naming himself a merchant, shall have an account against the other, naming him a merchant, and shall charge him as receptor* denariorum, &c. that is, as receiver of the money of him B, from whatever cause and contract it shall redound to the common profit of them A and B, as may be made appear by Lex Mercatoria, 10 H. VII. 16. a.

But one partner cannot support an action of assumpsit against the other, unless a balance has been struck. 2 Term. Rep. 478. 4 East. 144.

So where there are two joint merchants, and one of them dies, the other shall have Lord Rayaccount against their factor, without the joining of the executor of the deceased.

mond, 340.

701, 703.

In an action upon the case against A, the plaintiff declares upon the custom be- 2Roll Abг. tween merchants, &c. that if two merchants are found in arrear upon an account, and they promise to pay it at certain days, that any or either of them may be charged for the whole singly; and then shewed the account, that A and B were found in arrears so much, &c. and promised to pay it at certain days, but did not, and the plaintiff brought his action against A only, and resolved that it lay.

Yel, 198, 1.
Bulst, 134.

Pernison

To call a merchant" alien bankrupt," is actionable. Tarloot cont. Morrison. Debt upon a bill by a merchant to pay foreign coin, amounting to so much to be paid Yel. 135,1. upon the feast of the purification called Candlemas-day. Upon non est factum pleaded, Brow. 103. verdict for the plaintiff. Moved in arrest of judgment, that the declaration was not and Pountgood, because payment at Candlemas is not known in our law; yet the judgement was ney's case. affirmed, for that amongst merchants such payment is known to be on the 20th of February, and the judges ought to take notice of it, being used among merchants, for the maintenance of traffick.

cap. 13.

sect. 3,

No ship shall be obliged to come to any port of England, nor to abide, against the 28 Ed. III. will of the master, or of the merchants, whose the goods be; and if such ships come of their good will, or be driven by misfortune to any port in England, and the masters or merchants will sell part of their merchandizes, it shall be lawful for every man to buy such merchandizes, albeit the same be not put to land to sell; so that no merchant or other go to meet such ships to forestal the merchandizes; so that the masters and merchants, after they have sold that which pleaseth them, and paid the custom, may freely depart, and none shall disturb any ship to come to any port of England, but to the port where the masters and merchants will of their free will arrive, nor shall meddle with the sale of the merchandizes, nor disturb the merchants; and if any set disturbance, he shall incur a grievous forfeiture to the king. Confirmed by 20 Ric. II. c. 4.

Indebitatus assumpsit for 10001. for monies had and received, and also an infimul computasset, upon account, the 10001. became due; the defendant pleaded the statute of limitations; the plaintiff replied, that he is a merchant, and the proviso, and exception for merchants accounts. By Twisden, Rainsford, and Moreton, absente Kelyng, stated accounts between merchants as this case is, are not within the proviso, but only accounts current, Webber cont. Tyrell. 1 Levinz. 287. 2 Keeble 622. 2 Sand. 124. where judgement for defendant; yet the case of Martin and Delboe, 1 Levinz. 298, to the contrary upon an account stated between merchants; yet the same case, Mod. 70. judgement for defendant, 2 Keeble 674. 1 Vent. 89. and 1 Sid. 465. See likewise the case of Farrington and Lee, 1 Mod. 268. and 2 Mod. 311. All kinds of merchandizes may be exported and imported from and to Ireland, by 34 Ed. III. aliens, as well as denizens, but wool and woollen manufactures, &c. are prohibited to c. 18. be exported from thence into foreign parts, by a modern statute.

Co. Litt. 172. lib. Intrat. 17, 18, 19. F. N. B. 117. D.

32 Car. II. c. 2.

Stat. 3

Geo. I. c. 4.

12 Geo. I. c. 28.

Privil.

Cattle, butter, cheese, &c. are not to be imported from Ireland into this kingdom, on pain of forfeiture to the poor.

The inhabitants of the islands of Jersey and Guernsey may import into GreatBritain goods of their own growth and manufacture custom free.

No wine, brandy, tobacco, East-India goods, &c. shall be brought from the Isle of Man into Great-Britain or Ireland, on pain of forfeiture, &c.

A woman that useth a trade in London without her husband, is chargeable without Loadini. him, as a feme sole merchant, she shall plead as sole, and if condemned to be put in prison till she pay the debt, also the bail for her are liable if she absent herself, and the husband shall not be charged.

Jac. II.c.8 sect. 2.

35 Eliz. c.ll,sect.2.

Sect. 9.

Sect. 4.

Sect. 5.

Ordin. pro.

By the custom of London, a feme sole merchant is where the feme trades by herself in one trade, with which her husband does not intermeddle, and buys and sells in that trade; then the feme shall be sued, and the husband named only for conformity; and if judgement be given against them, execution shall be against the feme alone, Langham v. Bewett. Cro. Čar. 68. This is one of those customs called executory customs, the meaning of which expression is, customs united to the courts of the City of London. They are pleadable in London and not elsewhere, except so far as they may be made use of in the superior courts by way of bar. Por Ld. Eldon, Ch. J. in Beard v. Webb. 2 Bos. and Pul. 98.

It shall not be lawful without licence from the king to import by way of merchandizes, gunpowder, arms, ammunition, or utensils of war, on pain to forfeit the same; and the importers, or they in whose custody such gunpowder, &c. shall be found, shall forfeit treble the value thereof.

All persons which shall transport beer beyond the seas for merchandize shall, if a stranger, before transporting, if a subject born, then within four months after, bring into this realm, for every six tons of beer two hundred of clapboards, fit for to make use of, in length three feet and two inches, or else the same cask again, or so much other good cask; or if the transporting be into Ireland, then to bring so much shaffold board, as the clapboard amounteth to.

No stranger shall transport beyond the seas any pilchards or other fish in casks, unless the same person have brought into this realm, for every six tons of fish, according to the rate aforesaid of clapboard or cask, upon pain of forfeiture of the beer, pilchards, and cask.

It shall not be lawful to transport wine casks out of this realm, with beer or beer-eager, nor any wine casks shaken, except for the victualling of any ship, or of her Majesty's garrisons and forces, upon forfeiture of forty shillings for every ton of

cask.

This act shall not extend to the transportation of herrings in casks.
Continued indefinitely by 3 Car. I. c. 4. and 16. Car. I. c. 4.

The justices of Ireland shall not arrest ships or goods, but merchants may carry their Stat Hibern merchandizes forth of Ireland to England or Wales; and if any justice do the contrary, he shall satisfy double damages, and be grievously punished by the king.

17 Edw. I. cap. 3.

Idem.

34 Ed. III. cap. 17.

12 Car. II.
cap. 4.
sect, 4.

Merchants may come into Ireland with their merchandizes, and from thence freely return with their merchandizes and victuals, saving to the king his ancient customs and other duties.

If any goods of any merchant born denizen shall be taken by enemies or pirates upon the sea, or perish in any ship that shall be taken or perished, whereof the duties shall be paid or agreed for, and that duly proved before the treasury or Chief Baron of the Exchequer, by the examination of the merchants, or by two witnesses, or other reasonable proof; the same merchants may newly ship in the same port where the goods were customed, so much other goods as the goods lost shall amount unto in

custom, without paying any thing, so as the proof be recorded and allowed in the exchequer, and certified to the collectors of the port; and every merchant denizen, who shall ship goods in any carrack or galley, shall pay all customs and subsidies in any alien born.

Provided that it shall be lawful to all subjects to transport in ships, and other vessels Sect. 5. of subjects, all herrings and other sea fish, to be taken by subjects out of any port, to any place out of his Majesty's dominions without paying custom.

It shall be lawful for any person to transport by way of merchandize any of these Sect. 10. goods following, viz. iron, armour, bandeleers, bridle-bits, halbert-heads and sharps, holsters, muskets, carbines, fowling-pieces, pistols, pike-heads, sword and rapierblades, saddles, snafflers, stirrops, calf-skins dressed or undressed, geldings, oxen, sheep-skins dressed without the wool, and all manufactures made of leather, paying the rates appointed by this act.

It shall be lawful for any person to transport by way of merchandize gunpowder, Sect. 11. when the same doth not exceed the price of 51. per barrel: but this was prohibited by proclamation during the late war with France, begun in 1756.

artificers

tools.

To prevent the destruction of our home manufactures, by transporting and seducing Seducing our artists to settle abroad; the Stat. 5 Geo. I. c. 27. provides, that such as so entice and exor seduce them, shall be fined 1001. and be imprisoned three months, and for the porting second offence shall be fined at discretion and be imprisoned a year: and the artificers so going into foreign countries, and not returning within six months after warning given them by the British Ambassador where they reside, shall be deemed aliens, and forfeit all their lands and goods, and shall be incapable of any legacy or gift. By 23 Geo. II. c. 13. the seducer incurs for the first offence, a penalty of 5001. for each artificer contracted with to be sent abroad, and imprisonment for twelve months; for the second offence 1000l. and two years imprisonment: And by the same stat. connected with 14 Geo. III. c. 71. if any person exports any tools or utensils used in the silk, linen, cotton, or woollen manufactures, excepting wool-cards to North America, he forfeits the same and 2001.; and the captain of the ship (having knowledge thereof) 1001.; and if any captain of a king's ship, or officer of the customs, knowingly suffers such exportations, he forfeits 1001. and his employment, and is for ever made incapable of bearing any public office; and every person col lecting such tools or utensils, in order to export the same, shall, on conviction at the assizes, forfeit such tools and also 2001. By Stat. 21 Geo. III. c. 3. if any person shall put on board any ship, not bound to any place in Great Britain or Ireland, or shall have in his custody with intent to export any engine, tool, or implement, used in the woollen, cotton, linen, or silk manufactures, he shall forfeit the same, and also the sum of 2001. and shall be imprisoned twelve months, and till the forfeiture be paid. And every captain and custom-house officer who shall knowingly receive such an article, or take any entry of it, shall forfeit 2001. By 22 Geo. III. c. 60. if any person shall entice or encourage any artificer employed in printing callicoes, cottons, muslins, or linens, to leave the kingdom, he shall forfeit 5001. and be imprisoned one year. And persons who export, or attempt to export, any engines or implements used in that manufacture, shall forfeit 5001. Captains of ships and custom-house officers conniving at these offences forfeit 1001. and become incapable of holding any office under the crown. By 25 Geo. III. c. 67, any person who entices or encourages any artificer in the iron and steel manufactures to leave the kingdom, shall forfeit 5001. and be imprisoned a year. And persons who attempt to export any instrument specified by name in 26 Geo. III. c. 89. shall forfeit 2001. and be imprisoned one year. And captains and custom-house officers conniving at the offence,

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