Date Posted: 10/17/2011 7:39:19 AM
Posted By: Raychelle Membership Level: Silver Total Points: 184
Equity is a branch of law which,prior to the fusion of administration of law and equity effected by the Supreme court of judicature Acts of 1873 and 1875 was applied and administered by the court of chancery to mitigate the harshness of the common law.Before the conquest of England by the Normans in 1066 the country was loosely ruled with local areas being governed by customary law through the local units'' court systems.Decisions of disputes was left to God,courts only gave their opinions on matters.However after the Norman conquest William I insisted that Edwards law be used throughout England.With the coming in of King Henry II, he introduced the jury system and elevated customary laws to national status.He sent out his judges throughout England to oversee the function of local courts and report back to London where they would discuss decisions.The king''s counsel oversaw legislative,judicial and executive functions.The king''s counsel dealt with matters that the king was directly interested in.The courts were split into three:The king''s bench which dealt in matters that the king had an interest in.The court of common pleas dealt with matters between an individual and another.The court of exchequer dealt with matters involving royal revenue such as taxes.As the work of common courts increased,the judges started using previous decisions by judges in similar situations.This led to the development of the doctrine of precedent.With time judges developed the writ system.A writ was a document setting out the details of a claim.It was issued to create new rights that were before then not recognized by local courts.It was basically meant to attract business.With the passing of time however the writ became very formal with technicalities that allowed claims if only they could fit into an existing writ.Writs were issued by clerks of the chancellor.The rule of ''no writ no remedy ''made common law even more rigid.If a claim did not fit into the specifications for a certain writ it became invalid.Judges spent more time examining writs than solving disputes.The chancellor would amend existing writs or issue new ones.This power was taken away by the Oxford provision of 1258 that required the king''s permission to issue a new writ or amend an existing one.The Westminster Statute of 1288 gave clerks the power to issue new writs but only if their contents were similar to those previously issued.This did nothing to make common law more flexible.Instead it made it even more rigid.Other defects of common law included corruption of judges by litigants through bribery,the fact that common law offered only damages as remedy and failure to consider writs with minor defects.The king and his council also had wide discretion to exercise extra judicial powers if a plaintiff petitioned him regarding a decision of the common law court.With time matters petitioned to the king would be handed over to the chancellor who was the second most powerful person after the king.He also acted as the king''s conscience.This is because most of the time the king was abroad in wars or too young to make sound decisions.By the 15th century the chancellor was making judgements in his name without necessarily consulting the king or his council. This led to development of the court of chancery.The chancellor who was ecclesiastic and would be guided by the canon laws in making decisions.He would listen to matters and decide them according to what he perceived to be right or wrong.Due to the personal nature of the chancellor''s, job he required the defendant to be present during trial.He issued an order called the subpoena which if the defendant did not honor he would have to forfeit some amount of money.The chancellor issued remedies such a injunctions and specific performance.One time to another he would meddle with substantive common law through his remedies in the interest of justice.This led to a clash between the common law courts and chancery.It led to disagreements with notable opposers of the chancery being Justice Coke.This was during the 16th Century in the case of Heath V Riley.The climax was in the Earl Of Oxford case where judgement in a common law court was obtained by fraud.The defendant petitioned the chancery to prevent enforcement of the judgement.Lord Ellesmere issued an injunction to restrain the plaintiff from enforcing the judgement.Once again chancery and common law courts clashed.The famous quote ''Mr.Chancellor,go and fly your own kite'' was by Justice Coke during this clash.King James I stepped in and asked the Attorney General Bacon to make a decision alongside other persons learned in the law.It was with the recommendation of those appointed that the king decided in favor of the chancery.Thereafter the decision of the chancery was rarely challenged.Equity was finally established.Note that Equity was adopted to Kenya through the judicature Act Chapter 8 of the laws of Kenya.
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