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|What is Equity TM?|| Rate Topic
|Posted: Fri Jun 28th, 2019 08:26 pm||
"court of equity
n. originally in English common law and in several states there were separate courts (often called chancery courts) which handled lawsuits and petitions requesting remedies other than damages, such as writs, injunctions and specific performance. Gradually the courts of equity have merged with courts of law. Federal bankruptcy courts are the one example of courts which operate as courts of equity."
Definition from Nolo’s Plain-English Law Dictionary
A court of equity, in which a judge can order acts performed, such as that a contract be modified or an activity stopped. The chancery court's functions are distinct from those of common law courts, which can order money damages to be paid, and where jury trials are available. The division between chancery and equity courts is partly based on the old English legal system. However, the original reason for the division between courts, which was so that law courts could follow statutory rules and equity courts could rule on issues of fairness, has been mostly lost. Chancery courts still exist in a few U.S. states today (check with the individual court for an exact list of what types of cases it hears). In other states, chancery court functions have been merged into the regular law courts' activities.
|Posted: Tue Jul 23rd, 2019 04:57 pm||
|Perspectives in American History
Editors: Donald Fleming and Bernard Bailyn
Volume V 1971
Law in American History
The court of chancery was never quite so “equitable” as theory claimed, and under the Tudors it had already acquired a fairly well-defined area of jurisdiction. The difficulty of defining the scope of its power is best illustrated by Maitland’s formulation:
For suppose that we ask the question - What is Equity? We can only answer it by giving some short account of certain courts of justice which were abolished over thirty years ago. In the year 1875 we might have said “Equity is that body of rules which is administered only by those Courts which are known as Courts of Equity.”4
4 Fredric W. Maitland, Equity: A Course of Lectures (, rev. Ed., Cambridge, 1969). p. I.
Nevertheless several descriptive categories can be listed.
(1) Equity remedies defects in the common law. It takes notice of fraud, accident, mistake, and forgery. It administers relief according to the true intentions of the parties. It gives specific relief in actions for contract and tort, and it gives relief against the penalties assessed by other courts. It has unique powers of examining witnesses, and joining parties to a suit.
(2) Equity supplies omissions in the jurisdiction of the common law. It deals with uses and trusts, and especially, with mortgages and equities of redemption. It disposes of the guardianship of minors and lunatics. It has competence in mercantile law, family settlement, female property, and divorce.
(3) Courts of equity afford procedures not available at law: the writ of subpoena, interrogatory process, discovery of evidence, written pleadings, judgment without jury trial, leeway for errors in pleading, specific performance, injunction, imprisonment for contempt, ability to act in personam rather than ad rem, powers of account, and administration of estates.
Note: Important information here concerning the move from Voluntary Mutual Defense (common law) to Slavery Under the Color of Law. Injunction, for example, appears to be a top down exclusive warrant taken by agents of the state to order people to perform or else, and there is no trial by the country to prevent such abuse by agents of the government, according to agents of the government: arbitrary power in the hand of the few over everyone.
Was "discovery" not used by Grand Jurors according to common law? Is "discovery" one of those counterfeit words used to bring into power an exclusive monopoly commanded by a few over everyone else: only those with the license can "discover," and thereby set in motion due process of law?
How about subpoena?
Why would people suddenly stop actions in defense of threats (probable cause) made by malicious aggressors upon innocent victims because they had no piece of paper giving them authority to question reluctant witnesses?
Again (from Englishman’s Right):
“Your tenderness not to be accessary to any man's being wronged or ruined, is (as I said) much to be commended. But may you not incur it unawares, by seeking this to avoid it? Pilate was not innocent because he washed his hands, and said, He would have nothing to do with the blood of that just one. There are faults of omission as well as commission. When you are legally called to try such a cause, if you shall shuffle out yourself, and thereby persons perhaps less conscientious happen to be made use of, and so a villain escapes justice, or an innocent man is ruined, by a prepossessed or negligent verdict; can you think yourself in such a case wholly blameless? Qui non prohibet cum potest, jubet: That man abets an evil, who prevents it not, when it is in his power. Nec caret scrupulo sosietatis occultae qui evidenter facinori definit obviare: nor can he escape the suspicion of being a secret accomplice, who evidently declines the prevention of an atrocious crime.”
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