Common Law and Equity
The procedure of the common law courts had developed along highly technical and stylised lines. For example, to bring an action in the common law courts a litigant had to file a "writ" chosen from a set of standard forms. The court would only recognise certain "forms of action", and this led to the widespread use of legal fictions, with litigants disguising their claims when they did not fit into a standard recognised "form". The emphasis on rigid adherence to established forms led to substantial injustice.
On the other hand, the Court of Chancery (a court of equity) ran separately and parallel to the common law courts, and emphasised the need to "do justice" on the basis of the Lord Chancellor's conscience, softening the blunt instrument of the common law. However, by the nineteenth century proceedings before the Court of Chancery often dragged on and on, with cases not being decided for years at a time (a problem that was parodied by Charles Dickens in the fictional case of Jarndyce and Jarndyce in Bleak House). Also, the practice of the court departed from the original principle of the Lord Chancellor's conscience, with rules of equity restricting the manner in which the courts of equity would intervene.
The existence of these two separate systems led to each party "forum shopping", selecting whichever of the two systems would most likely give judgment in his or her favour, and resulting in litigation being tried across both.
The solution adopted by the Judicature Acts of 1873 and 1875 was to fuse the administration of the two. Pleadings became more relaxed, with the emphasis shifting from the 'form' of action to the 'cause' (or a set of causes) of action. Writs for action were filled out for a litigant stating facts, without any necessity of pigeonholing them into specific forms. The same court was now able to apply rules of the common law and the rules of equity, depending on what the substantial justice of a case required, and depending on what specific area of law the pleadings involved. The result was that, when the issues arising from the causes of action were decided in favour of one party, that party got relief.
Read more about this topic: Judicature Acts
Famous quotes containing the words common, law and/or equity:
“A country is strong which consists of wealthy families, every member of whom is interested in defending a common treasure; it is weak when composed of scattered individuals, to whom it matters little whether they obey seven or one, a Russian or a Corsican, so long as each keeps his own plot of land, blind in their wretched egotism, to the fact that the day is coming when this too will be torn from them.”
—Honoré De Balzac (1799–1850)
“The shallow consider liberty a release from all law, from every constraint. The wise man sees in it, on the contrary, the potent Law of Laws.”
—Walt Whitman (1819–1892)
“If equity and human natural reason were allowed there would be no law, there would be no lawyers.”
—Christina Stead (1902–1983)