Equity / Common Law

[FlunkyNoMo]

"How Equity conquered Common Law"


http://carver.law.cuny.edu/materials/subrin.html


Check the footnotes, 18 pages out of 33.


I guess what he's saying is you're welcome to do your own research, here's where to look.
<P align=center>FNM

[FlunkyNoMo]

"How Equity conquered Common Law"


http://carver.law.cuny.edu/materials/subrin.html


Check the footnotes, 18 pages out of 33.


I guess what he's saying is you're welcome to do your own research, here's where to look.
<P align=center>FNM

[weishaupt1776]

Well, I'd thought I'd knock the dust off this relic.
Please heed this suggestion before you get all psyched up about something & impulsively click the start a new thread button:

Go to search, scroll to the forum topic you think your possible new thread would be in.

Then click the option search by thread title

type in the keyword which your general title would be

Consider the fact that there are researches who type in general keyword headings, so think about titling it relevant to what you want to post in order to help other reaearchers out. Ask yourself the question,"what keyword would I punch in on google in order to find this.

Okay, so I got this killer doc from Florida's own, Mr. John Sims, about the importance of learning to operate in equity, so I followed the procedure above, and the lovely FlunkyNoMo had started this thread.
Big up, Mad props go out to ma Lady, FNM

So here it is in the next postcount.

I ASSUME that this is one of the many things that we are jurally malnourished in due to the fact that there have been very few replies & very few topics concerning this topic at hand

[weishaupt1776]

To the under-educated attorneys
To those of you that have followed my posts for a long time know that I pull no punches to those that have the law wrong, and I admit my errors. It seems that I have assumed something that is not true which is an error. I have assumed that attorneys have had at least a basic understanding of the law and that is not true, at least* as it pertains to "EQUITY"; WHICH IS ALSO THE LAW . So to those of you that are attorneys and / or at least think you are as good as one I am sorry for being so hard on you, but you now have no more excuses, as I will now expect you to get yourselves up to speed. Now it seems that at least in Florida and I am reasonably sure of this in the rest of the States is that those attorneys are grossly under educated in the rules of "EQUITY". This change took place in 1954, and I say it is not a coincidence that the year is the same as the 1954 IRC took effect. Below you will find the real starting place to justice is in "EQUITY" and those that have cried; "I want my "common law rights"; erroneously, should really have been crying out; "I want my rights in "EQUITY"; and have been in error. What you want is "EQUITY", not "LAW". No wonder I tick off so many people, I* assumed attorneys knew everything about the law, didn't you?

[weishaupt1776]

Attorneys now admitted to practice in Florida have had little or no experience with the system of common law and equity pleading formerly in force. Florida followed the system of pleading used in England on July 4, 1776 as modified by statute. It is not possible to practice intelligently in Florida without an understanding of the basic principles of common law and equity pleading. Older decisions used the early terminology. If the reader does not understand the procedure, he cannot understand what happened. This chapter contains a brief discussion of those principles and the nomenclature employed. References have been made throughout this book to the common law or equity equivalents of the procedure discussed. Since this chapter is an explanation of pleading systems that have been abandoned, no citations are given. The description follows the Florida variations when Florida practice varied from common law or classical equity pleading. Decisions before 1950 were often controlled by former procedure.
*
*
541 So. 2d 618, 13 Fla. Law W. 986* HUTCHENS v. MAXICENTERS* ***
********(Dist. Ct. App. 5th Dist. 1989)
COWART, J., dissenting.
This case involves a most important and fundamental practice and procedural issue as to the present status in Florida of the difference between law and equity and the difference between remedies and causes of action which should be openly addressed en banc by this court and the Florida Supreme Court. The essential issue is whether the 1954 merger of law procedure and equity procedure has resulted in an amalgamation of the theory and substance of those two bodies of law to the extent that a strictly law remedy, such as replevin, can now be used to directly enforce a strictly equitable cause of action, such as an action to establish a constructive trust.
*
AND:
“Equity jurisdiction“ as distinguished on the one hand from the general power to decide matters at all, and on the other hand, from the jurisdiction “at law“ or “common-law jurisdiction,“ is the power to hear certain kinds and classes of civil causes according to the principles of the method and procedure adopted by the courts of chancery, and to decide them in accordance with the doctrines and rules of equity jurisprudence, which decision may involve either

(1) the determination of the equitable rights, estates and interests of the parties to such causes, or

(2) the granting of equitable remedies. In order that a cause may come within the scope of equity jurisdiction, one of two alternatives is essential:

(1) either the primary right, estate or interest to be maintained, or the violation of which furnishes the cause of action, must be equitable rather than legal; or

(2) (a) the remedy granted must be in its nature purely equitable, or

(2) (b) if it be a remedy which may also be given by a court of law, it must be one which, under the facts and circumstances of the case, can only be made complete and adequate through the application of equitable doctrines, principles or remedies.4*

It is customary to distinguish equitable jurisdiction as exclusive and concurrent, which distinction relates wholly to the nature and form of the remedies and properly belongs, therefore, only to that part of the jurisdiction which* is based upon these remedies, i.e., (2)(a) or (2)(b) above.

Equity jurisdiction embraces both cases for the maintenance or protection of primary rights, estates and interests purely equitable, and cases for the maintenance or protection of primary rights, estates and interests purely legal; and in the latter class of cases the remedies granted may be of a kind which are peculiar to equity courts, such as, reformation, cancellation, injunction, etc., or remedies of a kind which are administered by courts of law, as the recovery of money, or of the possession of specific real and personal property. The distinction between the exclusive and concurrent jurisdiction of equity represents the fact that the two kinds of remedies, equitable and legal, may, under proper circumstances, be obtained in the class of cases that involve the recovery of money or of the possession of specific things.5*

The exclusive jurisdiction of equity extends to and embraces,
(1) all civil cases in which the primary right violated or to be declared, maintained or enforced is purely equitable and not legal, and
(2) all civil cases in which the adjudication sought involves a right, estate, title, or interest created by equity, and not by law.6* This class of cases, of course, includes the equitable concepts of unjust enrichment and constructive trust and the interest in property created by a court of equity by application of the doctrine of constructive trusts. This class of cases falls under equitable jurisdiction alone, because of the nature of the primary or substantive right to be established, redressed, maintained, or enforced and not because of the nature of the remedies to be granted. Although in most such instances, the remedy is also equitable, it need not be necessarily so, such as, where, as in this case, the right to possession of a specific automobile is involved. Pomeroy7* states the proposition controlling this case, as* follows:
It is a proposition of universal application that courts of law never take cognizance of cases in which the primary right, estate, or interest to be maintained, or the violation of which is sought to be redressed, is purely equitable, unless such power has been expressly conferred by statute; and if the statutes have interfered and made the right or the violation of it cognizable by courts of law, such right thereby becomes to that extent legal.

This “proposition of universal application“ is no “hyper-technical view.“
The exclusive jurisdiction of equity includes all civil cases based upon or relating to equitable estates, interests, and rights in property as the subject-matter of the action. Chief among these are cases involving the recognition of trusts arising by operation of law from the conduct of parties. Constructive trusts are one such species and are raised by equity for the purpose of working out right and justice, where there was no intention of the party to create a trust relationship.
All instances of constructive trusts may be referred to what equity denotes as fraud, either actual or constructive, including acts or omissions in violation of fiduciary obligations. If one party obtains the legal title to property by fraud or by violation of confidence or of fiduciary relations or in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it and who is considered in equity as thebeneficial owner. Whenever a person in a fiduciary capacity breaches his trust and purchases property with trust funds and takes the title thereto in his own name, without any declaration of trust, a trust arises with respect to such property in favor of the cestui que trust or beneficiary. [ that includes your wages!!!!!!!!!! ] Equity regards such a purchase as made in trust for the person beneficially interested, independent of any imputation of fraud and without requiring any proof of an intention to violate the fiduciary obligation because it is assumed that the purchaser intended to act in pursuance of his fiduciary duty and not in violation of it.
*
AND NOTE THIS FOOTNOTE VERY CAREFULLY:
NO WONDER NO ONE KNOWS HOW TO FIGHT THE FEDS.
9 At the University of Florida College of Law, Equity Jurisprudence was taught as a 5 credit course in 1947-48, a 3 credit course in 1948-49, and a 2 credit course from 1949 through 1960.
10 In the preface to the first edition of his text book on Equity Jurisprudence in May, 1881, Professor John Norton Pomeroy was greatly concerned about the disastrous consequences of the then tendency to abolish the external distinctions between actions at law and actions in equity, the union of legal and equitable rights and remedies in one proceeding and the substitution of legal and equitable methods. Perhaps history will note that the rise and decline of Equity as a separate and distinct body of substantive law in Florida as paralleling the frequency with which reported Florida cases referred to Pomeroy’s Equity Jurisprudence over the decades, which is illustrated as follows: 1890‘s - 1; 1900’s - 3; 1910‘s - 5; 1920’s - 11; 1930‘s - 40; 1940’s - 28; 1950‘s - 24; 1960’s - 23; 1970‘s - 9; 1980’s - 4 to date, with this opinion being the fifth. Similarly, cases citing Story, Commentaries on Equity Jurisprudence (1884) are as follows: 1900‘s - 1; 1910’s - 0; 1920‘s - 1; 1930’s - 5; 1940‘s - 2; 1950’s - 2; 1960‘s - 0; 1970’s - 2; 1980‘s - 1 to date with this opinion being the second.

[weishaupt1776]

In law, the term equity refers to a particular set of remedies and associated procedures. These equitable doctrines and procedures are distinquished from "legal" ones. Equitable relief is generally available only when a legal remedy is insufficient or inadequate in some way. This could be when a claim involves a particular piece of real estate, or if specific performance is the relief requested by the plaintiff.
The distinction arose in England where there were separate courts of law and of equity. Following this pattern in America some states created "chancery courts" dealing with equitable relief only. In other states, the courts of common law were empowered to exercise equity jurisdiction. Separate courts of chancery have largely been abolished and the same court that may fashion a legal remedy has the power to prescribe an equitable one.
Law and equity have long been merged. Thus, dealing with available remedies under a new statute and pinpointing precise legal recourse makes good sense and sound law here.
Again, some history, albeit quite antiquated, may help. The doctrine of continuing wrongs originated in the English Equity Courts. The obscurity of the origin of equity jurisdiction in the Court of Chancery, from which American equity jurisdiction emanates, highlights the troubled history of the continuing wrongs theory (Story, Commentaries on Equity Jurisdiction as Administered in England and America §§ 38, 39, 41, 44, 45, at 42, 45-46, 49-50 [Lyon, 14th ed., 1918]). History and origin aside, however, we have been well taught that equity jurisdiction was the judicial response to the "rigidity of the Common Law and its defective state" (Potter, History of Equity and Its Courts at 40 [1931]). Thus, the "injunctive remedy is justified upon the ground that the remedy at law is inadequate" (V Fiero, Particular Action and Proceedings: Equitable Actions, at 168 [1929]). The long lesson of history thus reaches and serves the modern dilemma of this case, where causes of action for damages at law are placed in repose under CPLR 214-c[2] after three years from discovery, but appropriate injunction relief is preserved in the traditional equity form.
It is well settled that "[i]f the trespass is of a continuous or constantly recurring nature, a proper case for the granting of an injunction is shown" (Fiero, supra, at 168). Furthermore, it has long been recognized that:
The most fertile field in tort for the injunction is nuisance. It is first necessary to remind ourselves that this jurisdiction is concurrent, not exclusive; equity comes to the help of the law in cases where the law would ultimately have to award damages, but that remedy would be inadequate. It does not, however, call an act a nuisance which would not receive this appellation from law; there is, as Kindersley, V.C., put it in Soltau v DeHeld, "no such thing as an equitable nuisance (Hanbury, Modern Equity at 604 (4th ed 1946)[emphasis in original]).

All,

Thanks for having me on the forum. I can't wait to help some folks out. Remember, knowledge IS power...

John

“Equitable” is generally defined as “just; conformable to the principles of justice and right. “ With the “blending” of law and equity it seems that our state and federal judges refuse to protect us from ourselves, contrary to the rules of equity. As part of the inherent power of equity, the inherent ability of a judge to rule on his conscience, a court of equity has full and complete jurisdiction over the persons of those who labor under any legal disability (i.e., not being a licensed attorney), and over their property. There is no question but that equity has a right to step in and prevent the enforcement of a legal right whenever such enforcement would be inequitable.

Equity, having assumed jurisdiction over the subject matter and the parties of a lawsuit, will retain exclusive jurisdiction for all purposes. Equity has been said to be the name of the principle or set of principles under which substantial justice may be attained in particular cases where the prescribed or customary forms of ordinary law seem to be inadequate. The term "equity" has a variety of meanings, however. The word describes a system of jurisprudence, and it is employed to designate the principles or standards of that legal system. Such a use of the word is illustrated by the legal maxim, "Equity regards as done that which ought to be done." "Equitable" and "inequitable" also signify just and unjust, and the term equitable, with reference to ownership, connotes also the right to property where title is held for that person's benefit by another person. With respect to the term "equitable relief," it remains a question of interpretation in each case as to which meaning is intended, where the term can mean whatever relief a court of equity is empowered to give, under common law, to provide in the particular case at issue, or to those categories of relief typically available in equity jurisprudence.

The purpose of equity is to do “complete justice” in a case where a court of law is unable to do so, because of the inflexibility of the rules by which it is bound, to adapt its judgment to the special circumstances of the case. Although equity is a complex system of established law and is not merely a reflection of the judge's sense of what is just or appropriate, equity moderates the unjust results that would follow from the unbending application of common-law rules and statutes. It is sometimes said, in this connection, that an equity court is not hampered by the restrictive and inflexible rules which govern common-law courts. Although the rules of pleading in equity are ordinarily the same in form now as those in actions at law, considerably more latitude is permitted a pleader in an equity case than in an action at law, although not to the extent of permitting obviously irrelevant or evidentiary matter to remain in a pleading.

The essence of a court's equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action; equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. Yet, a court of equity cannot create rights; rather, it is limited to determining what rights the parties have, and whether, or in what manner, it is just and proper to enforce them. Bingo!

Equitable jurisdiction must be determined by the conditions existing at the time a suit is filed and not by conditions which come into existence after the commencement of the suit. The fact that a legal remedy becomes available or that legal proceedings are filed does not cause a loss of jurisdiction of the court. Yet, the fact that equitable jurisdiction is generally determined as of the time of filing the action does not mean that the relief to be awarded depends entirely on the situation as it existed then. Having jurisdiction at the commencement of the action, equity has the power to award relief as the right to it exists at the end of the trial, thus putting an end to the litigation.

Make sure you are in Equity jurisdiction!

John

[sadie]

So, does this mean there is no such thing as the court not having subject matter jurisdiction?

Subject matter jurisdiction is a long touchy and tricky subject. How can you be subject to the jurisdiction of the court if they adjudicate you under non-laws? Statutes, codes and ordinances are not law. They are merely prima fascia evidence of the law. The Florida Statutes are an index, or a table of contents of the law. How can you be charged with a violation of a statute? (i.e., a table of contents, or index of the law)???? The only laws (at least in Florida) are the "General Laws of Florida", not statutes. The Legislature also cannot grant lawmaking "authority" to anyone else, such as cities, countires, etc. The "authority" of law rests only on the state legislators.

[sfergnel]

If you can not be charged with violation of a statute, then what exactly is the "Law"?

If you encounter a government official, and they violate the statutes as currently written, are they breaking the "Law" :?: