Common Law And Equity Prior To The Judicature Act 1873
Common Law and Equity Prior to the Judicature Act 1873-75 on Fusion Fallacy
The early development of equity categorized it as a separate system from the then existing common law. However, Lord Chancellor’s intervention gradually developed a distinct body of law called ‘equity’ which was well established by the fifteenth century. From then on, the Chancellor’s jurisdiction was exercised via what later becomes ‘court of Chancery.’ The existence of these two systems at times conflicted because of the way the two courts operated. By virtue of section 79 of the Common Law Procedure Act of 1854, Common law courts possessed a limited power of issuing injunctions while the Chancery Amendment Act of 1858 gave the court of Chancery power to issue or award damages as opposed to specific performance and injunctions. The two systems had a lot of conflicts to the extent that by the 19th century a number of Parliamentary reports resulted in the Judicature Acts of 1873 and 1875.These two Acts were responsible for joining the existing superior courts into a single Supreme Court of Judicature. This Supreme Court replaced the courts of Queen’s Bench, Court of Exchequer chamber, Exchequer and Common Pleas as well as the court of Chancery, and the court of appeal in Chancery. The Supreme Court comprised of both the Court of Appeal and the High Court .It administered both equity and rules of common law thus bringing the question as to whether this was an amalgamation of administration or fusion of the rules?
Various controversies has arise as to whether the Acts has fused the rules of equity and common law, or whether it is just an amalgamation of the two rules within the same court. Some academicians has agreed that the two courts had indeed been fused into one entity while other believes that the Judicature Acts are simply procedurals. In Salt v Cooper 1,Sir George Jessel MR, stated to the effect that, the intent of the Judicature Act was not to fuse the two rules , but rather
The early development of equity categorized it as a separate system from the then existing common law. However, Lord Chancellor’s intervention gradually developed a distinct body of law called ‘equity’ which was well established by the fifteenth century. From then on, the Chancellor’s jurisdiction was exercised via what later becomes ‘court of Chancery.’ The existence of these two systems at times conflicted because of the way the two courts operated. By virtue of section 79 of the Common Law Procedure Act of 1854, Common law courts possessed a limited power of issuing injunctions while the Chancery Amendment Act of 1858 gave the court of Chancery power to issue or award damages as opposed to specific performance and injunctions. The two systems had a lot of conflicts to the extent that by the 19th century a number of Parliamentary reports resulted in the Judicature Acts of 1873 and 1875.These two Acts were responsible for joining the existing superior courts into a single Supreme Court of Judicature. This Supreme Court replaced the courts of Queen’s Bench, Court of Exchequer chamber, Exchequer and Common Pleas as well as the court of Chancery, and the court of appeal in Chancery. The Supreme Court comprised of both the Court of Appeal and the High Court .It administered both equity and rules of common law thus bringing the question as to whether this was an amalgamation of administration or fusion of the rules?
Various controversies has arise as to whether the Acts has fused the rules of equity and common law, or whether it is just an amalgamation of the two rules within the same court. Some academicians has agreed that the two courts had indeed been fused into one entity while other believes that the Judicature Acts are simply procedurals. In Salt v Cooper 1,Sir George Jessel MR, stated to the effect that, the intent of the Judicature Act was not to fuse the two rules , but rather