Evolution of Common Law and Equity in English Legal System

 
THE DEVELOPMENT OF THE
COMMON LAW AND EQUITY IN
ENGLISH LAW
 
 
JONATHAN RAYNER JAMES QC
 
PART I
THE DEVELOPMENT OF THE
COMMON LAW
 
 
AIM OF THESE LECTURES
 
To demonstrate that a legal system which does not continuously
adapt to meet the changing needs of its society will fail to meet the
fundamental requirements of an effective administration of justice
To demonstrate that those concerned with the administration of
justice must be alert to ensure that self interest of individuals is not
allowed to distort or undermine the administration of justice
 
FRANCIS BACON 1561-1625
LORD CHANCELLOR 1618-1621
 
“He that will not apply new remedies must expect new evils; for time is
the great innovator”
 
Essay ‘Of Innovations’ written in 1625
 
INTRODUCTION:
THE CONSTITUENT ELEMENTS OF A LEGAL SYSTEM
 
SUBSTANTIVE PROVISIONS
Body of law determining rights and obligations of individuals belonging to or
operating within the society
PROCEDURAL PROVISIONS
Procedural rules for regulating the bringing and determination of legal
disputes
ADMINISTRATIVE SYSTEM
System of courts and judges and the processing of their decision through
appeal and by enforcement
 
INTRODUCTION:
WHAT SHOULD A MODERN SYSTEM FOR THE
ADMINISTRATION OF CIVIL JUSTICE PROVIDE?
 
Resolution of dispute by application of settled principles of law
applicable to the facts of the dispute
In a dispute there is a right and a wrong position (or part right and part
wrong) which can only be identified by reference to a settled body of law, not
some arbitrary set of rules which can be invoked and applied according to the
whim of the tribunal
Resolution of dispute should be fair as between the disputing parties
Innate sense of fairness 
 “that’s not fair!”
Not just fair to the winning party but especially to the losing party
 
WHAT MAKES A FAIR RESOLUTION OF A
DISPUTE?
 
Open procedure applicable to all
Judge who is even-handed in conducting the proceedings, listening and
understanding the parties’ respective positions and unaffected in his decision
by prejudice, bias or corruption
Resolution that is final (subject to appeal) and enforceable
 
DO WE HAVE SUCH A SYSTEM TODAY?
 
By looking back at the origins of our system we can see how far we
have progressed towards providing such a system
We may feel that we can answer the question affirmatively
But history will show that there is always much that can be improved
History will also show that there is a need for constant vigilance and
that there is no room for complacency
 
WAS IT ALWAYS SO?
 
History shows that the development of an effective system for the
administration of justice is a long and difficult process
What today might seem a straightforward dispute to resolve has not
always been so
Consider the possibilities for resolving such a dispute in much earlier
times
 
THE DISPUTE
 
An ordinary commercial transaction between a trader and his customer for
the sale of goods
Oldest form of contract
A dispute arises as to the quality of the goods being sold and the customer
wants his money back
If the dispute is not resolved it will continue to fester and will affect others
in the community who may take sides with one or other party
The disgruntled customer may threaten reprisals in order to get his money
back
This is simple enough to resolve today by applying common law principles
which have since been codified by Statute but how did these principles
evolve?
 
THE DEVELOPMENT OF THE COMMON LAW
OF ENGLAND
 
Consider 3 snapshots in time:
9
th
 century
890: the 19
th
 year in the reign of Alfred the Great, King of Wessex
 
10
th
 century
920: the 21
st
 year in the reign of Edward the Elder, King of England
 
11
th
 century
1070: the 5
th
 year in the reign of William 1 (the Conqueror), King of England
 
FIRST SNAPSHOT: 890
 
19
th
 year in the reign of Alfred the Great, King of Wessex
 
No common law
Such law as existed was communal, being the customs of the local community
Communities were jealous of their customs, which varied from community to
community
 
No single kingdom of England
4 separate kingdoms: Wessex, Mercia, East Anglia, and Northumbria
Alfred, King of the Anglo-Saxon kingdom of Wessex, the wealthiest and most
powerful of the kingdoms
 
Dispute resolution
 
Primary remedy: self-help
Retake your claimed possession or take reparation for your alleged wrong by
use of force
Might is right: the strongest party will prevail in its dispute
General anarchy with little overreaching authority to keep the peace
 
 
 
 
 
 
Only alternative: seek communal justice
Go to local public assembly and raise your complaint
If the assembly considered your complaint serious, it would require you to
produce your witnesses on oath before the assembly
As many as possible
Not witnesses of fact
Witnesses of character, attesting to your uprightness as a member of the community
If the assembly considered you had established a case it would summon the
defendant to attend the public discussion
The assembly would then try to persuade the parties to resolve their dispute
amicably (quaintly known as “to make a love-day”)
 
In the absence of an amicable settlement
 
Next step was to require the parties to proceed by way of proof by
oath
The assembly would decide whether the defendant should swear a holy oath
as to the truth of his case and whether his 
neighbours
 should take oath in
support of his case (“wager of law”)
No examination of the witnesses
No attempt to determine which party was in the right
Closer to mediation without imposition of a decision
 
If this form of mediation failed to resolve the
dispute:
 
The only further step was for the assembly to require the parties to
proceed by way of proof by ordeal
This was an appeal to God to reveal the truth in human disputes
Process organised by the clergy
Usual ordeal was either by fire or by water
The role of the assembly was to decide which party would be subject to the
ordeal
 
PROOF BY WAY OF ORDEAL
 
By fire:
Place a burning hot lump of iron in the hand of the selected party
After removing the iron the hand was bandaged
If after a few days the hand had healed healthily, the case was proved
By water:
Tie up the selected party (hands and feet) and lower them on a rope into a
deep pond
If the party sank, God was willing to receive the party who was therefore in
the right
If the party floated, God was rejecting the party who was therefore in the
wrong
 
 
 
DEFECTS OF PROCEDURE
 
Serious risk of being maimed for life or even death
No real decision on the merits
Only decision of assembly preceded the ordeal 
 which party was to
be subjected to the process
No finality (unless one party died as a result)
No enforcement of the decision (other than communal pressure)
The result was that self-help remained the preferred remedy to any
party who could assemble a sufficient force of men to establish his
case
 
SECOND SNAPSHOT: 920
 
21
st
 year in the reign of Edward the Elder, King of England
 
England now one kingdom under one crown
More elaborate system of local government developed throughout the
kingdom:
Division into 
shires
 (counties)
Division of shires into 
hundreds
Division of hundreds into 
tithes
 (group of 10 families)
Each tithe held a monthly assembly
Principal motive for such organisation was to make the collection of taxes
easier for the crown
The assembly also helped keep the peace between the king’s subjects by
hearing disputes
 
FEUDAL JUSTICE
 
A hierarchy in the nature of a pyramid, with the crown at the very top
and the serfs and freemen at the bottom with the various lords and
nobles in between
Based on the principle of allegiance
Each person owed an obligation of allegiance to his immediate superior
In return the immediate superior owed an obligation of protection to those
who swore allegiance to him
In this system each lord or noble held court in his own right and could
determine disputes between those who owed him allegiance
 
THE BARONS’ COURTS
 
The Baron would decide the dispute
Hearing the parties
Applying the local customs
Giving his decision
This was the beginning of a process that arrived a decision between
the disputing parties
 
THE KING’S JUSTICE
 
Shire Reeve (“sheriff”)
An officer appointed by the king for each shire to travel round the shire and to
visit each hundred twice a year
Principal purpose was the collection of taxes
Secondary purpose was the maintenance of order by hearing criminal charges
and resolving disputes between citizens
The Shire Reeve collected the taxes and reported to the king in
writing
In resolving disputes the Reeve applied the same body of customs
throughout the shire
 
WHICH CHOICE?
 
Trial by oath or ordeal
Not a resolution as primarily depended on arriving at an amicable settlement
In the final resort, the appeal to God could produce unwanted consequences
Trial in the Baron’s court
Depended on the integrity of the Baron (or his steward) and his ability to be fair and
unbiased
Decisions could be arbitrary and lacked finality and enforcement
Trial before the Shire Reeve
An officer who was answerable to the king for his actions
The beginning of the application of uniform principles to resolve disputes
The decision reported to the king in writing
The authority of the king to enforce the decision
 
THIRD SNAPSHOT: 1070
 
5
th
 year in the reign of William 1 (the Conqueror), King of England
 
England had been conquered by William the Conqueror
King Harold (6 January 1066 to 14 October 1066) killed at the Battle of
Hastings
What was the position before the invasion?
Unified kingdom under one crown
A well administered kingdom governed centrally by the king with the assistance of
two departments of state:
The Exchequer: concerned with raising taxes for the crown
The Chancery: concerned with keeping the records of land and title grants and successions
and other important matters
A system of justice which offered the alternatives of:
The king’s justice administered on behalf of the king by the Shire Reeve on his travels through
the Shire
The local courts of the Barons and Lords applying local customs
The local assembly hearing disputes between citizens of the local community
 
 
 
 
AFTER THE CONQUEST
 
What did the Normans do for the Anglo-Saxons?
Invaders, warlike, uncultured and illiterate
Militarily brave and well organised
Their main concern was to enjoy the fruits of William’s victory
William’s main concern was to maintain peace and control in his new kingdom
Sensibly William adopted the existing system of government and continued it
The Normans made little change to the laws of the kingdom except to
enshrine their right to hunt (their favourite pastime) and to add trial by
combat (their second favourite pastime) as an alternative to trial by ordeal as
a means of settling disputes
 
 
BIRTH OF THE COMMON LAW
 
Under William I no overriding common law
Under his successor, Henry I, (crowned 1100) there was a period of
stability and consolidation of the central power of the crown
During this period Henry developed the feudal practice of hearing
disputes in his “court” both in London and on his travels throughout
his kingdom
Access to his court was controlled by a fee and depended not just on
money but also on status and on the gravity of the matter in dispute
This practice was continued by Henry II (1154 following the unsettled
intervening reign of Stephen)
 
THE KING’S JUSTICE
 
This was perceived as having 3 advantages:
The same body of law (customs) would be applied uniformly throughout the
realm
The decision was final as the king’s authority overrode all other courts
The decision carried the desired enforceability as the king’s authority was
supreme
The problem was one of access:
The level of fee required
The restrictions placed on access by virtue of the choice of matters
entertained
 
HENRY II’S INNOVATIONS
 
Henry was concerned to increase his personal authority throughout
his realm
Breach or threatened breach of the king’s peace became a matter of concern
to the king and such an allegation would render the matter sufficiently
important for his attention
Henry created itinerant royal justices from among members of his court to
travel the realm and dispense his justice in his name
Now the scene was set for the common law to develop and become
the preferred method of resolution of disputes between his subjects
 
DEVELOPMENT OF THE COMMON LAW
 
From this early beginning in the 12
th
 century the Common Law
developed from strength to strength
Magna Carta (1215) was the first of a series of statutes that enacted
that no subject would be deprived of life, liberty or property except
by due process of law
Due process of law came to be interpreted as meaning the Common
Law of England
 
WHY IS THAT NOT THE END OF THE STORY?
 
In all fairy tales, the ending is that they lived happily ever after
In this story that is not the ending
What happened so that the Common Law began to be seen as having
serious defects and as not being fit for the purpose of providing a just
solution to all disputes?
 
PETRIFICATION OF THE COMMON LAW
 
Over the two following centuries (1200 to 1400) two of the elements
which had been responsible for the successful development of the
Common Law came to represent serious defects in its function of
providing a just system of dispute resolution:
 
The system of pleading came to be regarded as determinative
The system of precedent came to be too rigidly applied thus stifling the ability
of the Common Law to adapt to changing conditions
 
PLEADING
 
The Common Law had been helped to develop by the king as part of
his policy of increasing his control over all parts of his kingdom
This development had been assisted by those learned in the law who
had showed great ingenuity in getting their clients’ disputes heard
before the king’s justice
 
PLEADING TO GROUND JURISDICTION
 
Lawyers soon realised that if their clients’ matters were to be heard
by the king’s justice, then the pleading had to emphasise the
importance to the king of the matter being resolved
One aspect of this ingenuity was in the development of the system of
pleading to show this importance:
allegation that the defendant threatened to breach the king’s peace (vi et
armis)
allegation that the defendant would leave the country in order to avoid
payment of his debt (ne exeat regno)
allegation that plaintiff would be unable to pay his taxes to the king unless the
defendant paid his debt
 
 
PLEADING AS A BAR TO RELIEF
 
Lawyers became adept at the art of pleading
Pleading came to govern the relief that the court could give
Failure to plead correctly could lead to the action failing to achieve
the just remedy the facts merited
Form came to prevail over substance
 
PRECEDENT
 
Precedent had played an essential role in the development of the
Common Law
It was what brought uniformity to the body of law throughout the
kingdom
Applied too rigidly it could be used to stifle the ability of the Common
Law to respond to changing conditions thus resulting in a decision
which failed to provide a just resolution of the dispute
 
EXAMPLES OF INJUSTICE AT COMMON LAW
 
Debtor would give his creditor a sealed bond
Bond was absolute evidence of the debt
If debt repaid without debtor getting back his bond, debtor could be sued on
the bond and would have to pay again
Oral contract
In some cases the law did not recognise the enforceability of an oral contract
In that case neither party would have a remedy under the oral contract
Grant in trust
A grant of land in trust was in law a grant of the land with absolute ownership
The grantee could deal with the land as he pleased without being obliged to
observe the terms of the trust
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Explore the development of common law and equity in English law, emphasizing the importance of adapting to societal changes for effective justice administration. Insights are drawn from historical figures like Francis Bacon and fundamental legal system elements. The lectures highlight the need for fair dispute resolution based on established legal principles, ensuring justice for all parties involved.

  • Common Law
  • Equity
  • Legal System
  • Dispute Resolution
  • Justice Administration

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  1. THE DEVELOPMENT OF THE COMMON LAW AND EQUITY IN ENGLISH LAW JONATHAN RAYNER JAMES QC

  2. PART I THE DEVELOPMENT OF THE COMMON LAW

  3. AIM OF THESE LECTURES To demonstrate that a legal system which does not continuously adapt to meet the changing needs of its society will fail to meet the fundamental requirements of an effective administration of justice To demonstrate that those concerned with the administration of justice must be alert to ensure that self interest of individuals is not allowed to distort or undermine the administration of justice

  4. FRANCIS BACON 1561-1625 LORD CHANCELLOR 1618-1621 He that will not apply new remedies must expect new evils; for time is the great innovator Essay Of Innovations written in 1625

  5. INTRODUCTION: THE CONSTITUENT ELEMENTS OF A LEGAL SYSTEM SUBSTANTIVE PROVISIONS Body of law determining rights and obligations of individuals belonging to or operating within the society PROCEDURAL PROVISIONS Procedural rules for regulating the bringing and determination of legal disputes ADMINISTRATIVE SYSTEM System of courts and judges and the processing of their decision through appeal and by enforcement

  6. INTRODUCTION: WHAT SHOULD A MODERN SYSTEM FOR THE ADMINISTRATION OF CIVIL JUSTICE PROVIDE? Resolution of dispute by application of settled principles of law applicable to the facts of the dispute In a dispute there is a right and a wrong position (or part right and part wrong) which can only be identified by reference to a settled body of law, not some arbitrary set of rules which can be invoked and applied according to the whim of the tribunal Resolution of dispute should be fair as between the disputing parties Innate sense of fairness that s not fair! Not just fair to the winning party but especially to the losing party

  7. WHAT MAKES A FAIR RESOLUTION OF A DISPUTE? Open procedure applicable to all Judge who is even-handed in conducting the proceedings, listening and understanding the parties respective positions and unaffected in his decision by prejudice, bias or corruption Resolution that is final (subject to appeal) and enforceable

  8. DO WE HAVE SUCH A SYSTEM TODAY? By looking back at the origins of our system we can see how far we have progressed towards providing such a system We may feel that we can answer the question affirmatively But history will show that there is always much that can be improved History will also show that there is a need for constant vigilance and that there is no room for complacency

  9. WAS IT ALWAYS SO? History shows that the development of an effective system for the administration of justice is a long and difficult process What today might seem a straightforward dispute to resolve has not always been so Consider the possibilities for resolving such a dispute in much earlier times

  10. THE DISPUTE An ordinary commercial transaction between a trader and his customer for the sale of goods Oldest form of contract A dispute arises as to the quality of the goods being sold and the customer wants his money back If the dispute is not resolved it will continue to fester and will affect others in the community who may take sides with one or other party The disgruntled customer may threaten reprisals in order to get his money back This is simple enough to resolve today by applying common law principles which have since been codified by Statute but how did these principles evolve?

  11. THE DEVELOPMENT OF THE COMMON LAW OF ENGLAND Consider 3 snapshots in time: 9thcentury 890: the 19thyear in the reign of Alfred the Great, King of Wessex 10thcentury 920: the 21styear in the reign of Edward the Elder, King of England 11thcentury 1070: the 5thyear in the reign of William 1 (the Conqueror), King of England

  12. FIRST SNAPSHOT: 890 19thyear in the reign of Alfred the Great, King of Wessex No common law Such law as existed was communal, being the customs of the local community Communities were jealous of their customs, which varied from community to community No single kingdom of England 4 separate kingdoms: Wessex, Mercia, East Anglia, and Northumbria Alfred, King of the Anglo-Saxon kingdom of Wessex, the wealthiest and most powerful of the kingdoms

  13. Dispute resolution Primary remedy: self-help Retake your claimed possession or take reparation for your alleged wrong by use of force Might is right: the strongest party will prevail in its dispute General anarchy with little overreaching authority to keep the peace

  14. Only alternative: seek communal justice Go to local public assembly and raise your complaint If the assembly considered your complaint serious, it would require you to produce your witnesses on oath before the assembly As many as possible Not witnesses of fact Witnesses of character, attesting to your uprightness as a member of the community If the assembly considered you had established a case it would summon the defendant to attend the public discussion The assembly would then try to persuade the parties to resolve their dispute amicably (quaintly known as to make a love-day )

  15. In the absence of an amicable settlement Next step was to require the parties to proceed by way of proof by oath The assembly would decide whether the defendant should swear a holy oath as to the truth of his case and whether his neighbours should take oath in support of his case ( wager of law ) No examination of the witnesses No attempt to determine which party was in the right Closer to mediation without imposition of a decision

  16. If this form of mediation failed to resolve the dispute: The only further step was for the assembly to require the parties to proceed by way of proof by ordeal This was an appeal to God to reveal the truth in human disputes Process organised by the clergy Usual ordeal was either by fire or by water The role of the assembly was to decide which party would be subject to the ordeal

  17. PROOF BY WAY OF ORDEAL By fire: Place a burning hot lump of iron in the hand of the selected party After removing the iron the hand was bandaged If after a few days the hand had healed healthily, the case was proved By water: Tie up the selected party (hands and feet) and lower them on a rope into a deep pond If the party sank, God was willing to receive the party who was therefore in the right If the party floated, God was rejecting the party who was therefore in the wrong

  18. DEFECTS OF PROCEDURE Serious risk of being maimed for life or even death No real decision on the merits Only decision of assembly preceded the ordeal which party was to be subjected to the process No finality (unless one party died as a result) No enforcement of the decision (other than communal pressure) The result was that self-help remained the preferred remedy to any party who could assemble a sufficient force of men to establish his case

  19. SECOND SNAPSHOT: 920 21styear in the reign of Edward the Elder, King of England England now one kingdom under one crown More elaborate system of local government developed throughout the kingdom: Division into shires (counties) Division of shires into hundreds Division of hundreds into tithes (group of 10 families) Each tithe held a monthly assembly Principal motive for such organisation was to make the collection of taxes easier for the crown The assembly also helped keep the peace between the king s subjects by hearing disputes

  20. FEUDAL JUSTICE A hierarchy in the nature of a pyramid, with the crown at the very top and the serfs and freemen at the bottom with the various lords and nobles in between Based on the principle of allegiance Each person owed an obligation of allegiance to his immediate superior In return the immediate superior owed an obligation of protection to those who swore allegiance to him In this system each lord or noble held court in his own right and could determine disputes between those who owed him allegiance

  21. THE BARONS COURTS The Baron would decide the dispute Hearing the parties Applying the local customs Giving his decision This was the beginning of a process that arrived a decision between the disputing parties

  22. THE KINGS JUSTICE Shire Reeve ( sheriff ) An officer appointed by the king for each shire to travel round the shire and to visit each hundred twice a year Principal purpose was the collection of taxes Secondary purpose was the maintenance of order by hearing criminal charges and resolving disputes between citizens The Shire Reeve collected the taxes and reported to the king in writing In resolving disputes the Reeve applied the same body of customs throughout the shire

  23. WHICH CHOICE? Trial by oath or ordeal Not a resolution as primarily depended on arriving at an amicable settlement In the final resort, the appeal to God could produce unwanted consequences Trial in the Baron s court Depended on the integrity of the Baron (or his steward) and his ability to be fair and unbiased Decisions could be arbitrary and lacked finality and enforcement Trial before the Shire Reeve An officer who was answerable to the king for his actions The beginning of the application of uniform principles to resolve disputes The decision reported to the king in writing The authority of the king to enforce the decision

  24. THIRD SNAPSHOT: 1070 5thyear in the reign of William 1 (the Conqueror), King of England England had been conquered by William the Conqueror King Harold (6 January 1066 to 14 October 1066) killed at the Battle of Hastings What was the position before the invasion? Unified kingdom under one crown A well administered kingdom governed centrally by the king with the assistance of two departments of state: The Exchequer: concerned with raising taxes for the crown The Chancery: concerned with keeping the records of land and title grants and successions and other important matters A system of justice which offered the alternatives of: The king s justice administered on behalf of the king by the Shire Reeve on his travels through the Shire The local courts of the Barons and Lords applying local customs The local assembly hearing disputes between citizens of the local community

  25. AFTER THE CONQUEST What did the Normans do for the Anglo-Saxons? Invaders, warlike, uncultured and illiterate Militarily brave and well organised Their main concern was to enjoy the fruits of William s victory William s main concern was to maintain peace and control in his new kingdom Sensibly William adopted the existing system of government and continued it The Normans made little change to the laws of the kingdom except to enshrine their right to hunt (their favourite pastime) and to add trial by combat (their second favourite pastime) as an alternative to trial by ordeal as a means of settling disputes

  26. BIRTH OF THE COMMON LAW Under William I no overriding common law Under his successor, Henry I, (crowned 1100) there was a period of stability and consolidation of the central power of the crown During this period Henry developed the feudal practice of hearing disputes in his court both in London and on his travels throughout his kingdom Access to his court was controlled by a fee and depended not just on money but also on status and on the gravity of the matter in dispute This practice was continued by Henry II (1154 following the unsettled intervening reign of Stephen)

  27. THE KINGS JUSTICE This was perceived as having 3 advantages: The same body of law (customs) would be applied uniformly throughout the realm The decision was final as the king s authority overrode all other courts The decision carried the desired enforceability as the king s authority was supreme The problem was one of access: The level of fee required The restrictions placed on access by virtue of the choice of matters entertained

  28. HENRY IIS INNOVATIONS Henry was concerned to increase his personal authority throughout his realm Breach or threatened breach of the king s peace became a matter of concern to the king and such an allegation would render the matter sufficiently important for his attention Henry created itinerant royal justices from among members of his court to travel the realm and dispense his justice in his name Now the scene was set for the common law to develop and become the preferred method of resolution of disputes between his subjects

  29. DEVELOPMENT OF THE COMMON LAW From this early beginning in the 12th century the Common Law developed from strength to strength Magna Carta (1215) was the first of a series of statutes that enacted that no subject would be deprived of life, liberty or property except by due process of law Due process of law came to be interpreted as meaning the Common Law of England

  30. WHY IS THAT NOT THE END OF THE STORY? In all fairy tales, the ending is that they lived happily ever after In this story that is not the ending What happened so that the Common Law began to be seen as having serious defects and as not being fit for the purpose of providing a just solution to all disputes?

  31. PETRIFICATION OF THE COMMON LAW Over the two following centuries (1200 to 1400) two of the elements which had been responsible for the successful development of the Common Law came to represent serious defects in its function of providing a just system of dispute resolution: The system of pleading came to be regarded as determinative The system of precedent came to be too rigidly applied thus stifling the ability of the Common Law to adapt to changing conditions

  32. PLEADING The Common Law had been helped to develop by the king as part of his policy of increasing his control over all parts of his kingdom This development had been assisted by those learned in the law who had showed great ingenuity in getting their clients disputes heard before the king s justice

  33. PLEADING TO GROUND JURISDICTION Lawyers soon realised that if their clients matters were to be heard by the king s justice, then the pleading had to emphasise the importance to the king of the matter being resolved One aspect of this ingenuity was in the development of the system of pleading to show this importance: allegation that the defendant threatened to breach the king s peace (vi et armis) allegation that the defendant would leave the country in order to avoid payment of his debt (ne exeat regno) allegation that plaintiff would be unable to pay his taxes to the king unless the defendant paid his debt

  34. PLEADING AS A BAR TO RELIEF Lawyers became adept at the art of pleading Pleading came to govern the relief that the court could give Failure to plead correctly could lead to the action failing to achieve the just remedy the facts merited Form came to prevail over substance

  35. PRECEDENT Precedent had played an essential role in the development of the Common Law It was what brought uniformity to the body of law throughout the kingdom Applied too rigidly it could be used to stifle the ability of the Common Law to respond to changing conditions thus resulting in a decision which failed to provide a just resolution of the dispute

  36. EXAMPLES OF INJUSTICE AT COMMON LAW Debtor would give his creditor a sealed bond Bond was absolute evidence of the debt If debt repaid without debtor getting back his bond, debtor could be sued on the bond and would have to pay again Oral contract In some cases the law did not recognise the enforceability of an oral contract In that case neither party would have a remedy under the oral contract Grant in trust A grant of land in trust was in law a grant of the land with absolute ownership The grantee could deal with the land as he pleased without being obliged to observe the terms of the trust

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