In 1873, the british parliament passed the supreme court of judicature act (“judicature act”) the act was designed to vest one body with jurisdiction over common law (“cl”) and equity to ensure their concurrent administration. Kirby (2008) 446 ii equity’s isolationism a judicature acts and fusion the effect of the enactment in england of the judicature acts 1873 – 1875,10 which combined the administration of the common law and equity, has been the subject of a remarkably heated debate in australia for many years. Judicature act 1873 judicature acts 1873-1875 (uk) the relationship between law and equity – the fusion fallacy or is any conflict or variance between the rules of equity and the rules of common law relating to the same matter, the rules of equity shall prevail.
Thus to contend that the judicature act imposed a fusion of equity and common law doctrines would be invalid upon analysing the judicature legislation 22 a w b simpson 20 3 25 under this presumption it would be unacceptable for a fusion of equity and law to occur as it would function to sever equity’s historical foundation holding that. Equity and trusts notes 70517 autumn 2012 introduction to equity, history and nature of equity equity and cl before the judicature act 1873 before judicature act= equity administered only by court of chancery two general rules: 1 substantive fusion equitable and common law doctrines were merged seager v copydex . 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.
That the decision was possible in the high trees case was due to the ‘conflict or variance’ clause (section 25 of the judicature act of 1873) which deemed that where the rules of common law and equity contradicted rather than complement, the rules of equity would prevail. Lord denning it is a complete misconception to posit that it was a purpose of the judicature acts to do away with the dichotomy between rules of equity and rules of common law but to perpetuate a dichotomy between rules of equity and rules of common law which it was a major purpose of the supreme court of judicature act 1873 to do away with. Supreme court of judicature act 1873 (uk) ss 24–5 01_bri_etg2_94027_txt_siindd 1 9/04/15 3:58 pm the common law equity might be described as softening or correcting the common law prior to the judicature system, the relationship between law and equity had the. Common law and equity prior to the judicature act 1873 on fusion fallacy essay sample the early development of equity categorized it as a separate system from the so bing common jurisprudence however. Common law and equity prior to the judicature act 1873 on fusion fallacy essay sample.
The judicature act 1873 has recognized the importance of equity and permits common law courts to administer equity, which make it no longer necessary to go to separate courts in one matter implications on modern relationship between equity and common by reference to the historical development, it is known that equity had become complex rules. 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. • judicature act 1873: fused the administration of the common law and equity in single courts gave rise gave rise to a question about whether the bodies of law had fused as well. Prior to the procedural fusion of the law and equity in the late nineteenth century, equitable ownership arose only from the creation of express trusts 2 judicature act 1873 (uk) and supreme court of judicature (commencement) act 1874 (uk) 3 supreme court of judicature act 1873 (uk) s 2 provided an effective date of 2 november 1874. Advanced equity and trusts law the fusion of common law and equity judicature act 1873 4) the structure of english private law reading: hudson, section 12 common law and equity were always distinct: the courts of common law were in westminster.
The innate conservatism of english lawyers may have made them slow to recognise that by the judicature act 1873 the two systems of substantive and adjectival law formerly administered by courts of law and courts of chancery (as well as those administered by courts of admiralty, probate and matrimonial causes), were fused. This rule was re-enacted in judicature act 1873 (ca and hc of justice) # common law and equity administered in separate courts only way to resolve conflict between two was common these acts unified the administration of law and equity but, the bodies of law remain separate o “fusion fallacy” = that jas united the common law and. The history of equity and the court of chancery in the 19th century has been subject to 2 judicature act 1873 (uk) for a helpful discussion about the judicature system see martin je, harzlury and 5 there has been much debate about what has been labelled 'fusion fallacy': see for example martin, n 2 at 20- 25 mcghee n 4 at para 1-25. 2 history of equity prior to the enactment of the judicature act 1873, the administration of common law and equity was completely separated the principles of equity developed in the court of the chancery where a ‘petitioner could seek relief from the harsh or unjust operation of the law’[3.
Equity, common law, fusion fallacy and equitable damages with reference to the fusion debate prior to the enactment of the judicature act 1873’ law and equity were administered by two separate courts the disadvantages of such a system were substanual for example, courts of law refused to recograse eqtfitable. By virtue of s24 of the judicature act 1873, each division exercised both legal and equitable jurisdiction lord cairns stated in pugh v heath that the court “is not now a court of law or a court of equity, it is a court of complete jurisdiction. The influence of lord diplock on the development of equity the fusion of equity and the common law the debate over the fusion of equitable and common law principles originates from the early development of equity as a separate system from the common law.