THE OLD LOCAL COURTS 



151 



from the service of the plaintiff; ^ in 13 18, in the bishop of 

 Ely's court at Littleport, actions for breach of contract 

 against a seamstress," and against a carrier of sedge," both 

 result in damages for the plaintiffs. The evidence from 

 boroughs is equally conclusive; custumals of the twelfth 

 and the thirteenth centuries discuss breach of covenant on 

 the part of a nurse, also of a weaver,* and forbid the hiring 

 of servants who are in the service of another.'^ It is clear 

 that these conuenciones were not in writing or under seal : 

 in fact, in one of the above instances witnesses to the en- 

 gaging of the servant are advised in order that there should 

 be no difficulty in proving the contract.'' The London 

 regulations as to wages usually include the prohibition of 



^ Ruthi7i Court Rolls, edited for the Cymmrodorion society, 47. I am 

 indebted to Mr. Turner for this reference. 



' Court Baron, 115. '''Ibid., 125. 



*• Borough Customs, ed. M. Bateson, i, 215. ''Ibid., i, 215-217. 



^Ibid., i, 217. Cf. also ibid., ii, introduction, Ixxx: "The special 

 characteristic of the borough law of agreement, as contrasted with the 

 common law of the fourteenth century, was its acceptance of the valid- 

 ity of the ' fides facta ' as sufficient to bind a bargain and give an action 

 for breach of covenant in the borough court. The contract was forma!, 

 though a once elaborate ceremonial had been gradually reduced to the 

 simplest of forms, a mere grasp of hands. The burgess who could 

 ' affy,' if he could not find a gage or pledge, who gave his faith on the 

 bailiff's rod, who in Lent offered affidation in lieu of the oath, could 

 pledge himself by the hand-clasp, an act visible, audible, that could be 

 witnessed of sight and hearing; and if a party to the agreement sought 

 remedy, the borough court, and perhaps some other of the local courts, 

 gave the action for breach of covenant. . . . All this was contrary to 

 the doctrines which the royal courts were laying down at the end of the 

 thirteenth century, when they limited the sphere of the action of cov- 

 enant to the case in which a deed could be produced." 



It is to be observed that this " formal contract " is somewhat difter- 

 ent from the " formless agreements" described by Maitland; cf. supia. 

 p. 158, note 2. Miss Bateson, while her introduction was still in pro- 

 cess of writing, expressed her own belief that the enforcement of 

 unwritten contracts had originated in the borough courts and that the 

 practice had spread thence to the other local courts. 



