April 2009 edition

By:  James M. Bright. Attorney at Law

 The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

            Common law is a system of law which prevails in England and in countries that were originally colonized by England.  The distinguishing factor of common law is that it relies upon past judicial decisions for its authority.

            As derived in its early stages from the medieval laws which existed, it sought to make the English King’s court be more uniform in its judgments.  The goal was to have an offense in North Cumberland be treated and carry the same remedy as the same offense in Sussex County.  This doctrine of gaining uniformity in judgments by looking to past decisions to decide current controversies is derived from the doctrine of stare decisis (a Latin term which translates as “let the matter stand”).

            Although this early attempt to make justice uniform in different parts of England was a vast improvement over earlier reliance upon whims of the judge, the lack of flexibility in the writs which were used to gain admission to the court still did not permit true justice.Unless the matter which needed to come before the court fit within the exact framework of the prescribed writ for that cause, the court lacked the ability to adjudicate differences.They were limited to preconceived ideas of what constitutes an offense and were not permitted the luxury of applying common sense and compassion to “do what was right.”

            In courts of law before the application of equity, uniformity could occasionally end up yielding an unintended result.  For example, consider the following fact situation:  Man One was charged with taking home an extra loaf of bread from his job at the baker’s to feed his starving child.  This taking was brought about in part by Man One’s understanding that he was allowed to take home all of the bread that his family might need, and the Baker knew that he had that understanding and accepted his labor without clarification of the unilateral mistake.  Man One would suffer the same fate as Man Two who stole the crown jewels from the tower of London and then took his girlfriend on a holiday to Scotland.  A strictly literal following of an inflexible writ would treat both men with equal punishment even though most persons would make allowances for motivation, mistake and the magnitude of the offense.  After all, they each took something that did not belong to them.

           Late in the 15th century and early into the 16thcentury, the King’s Chaplain (the chancellor) through the church started receiving requests for adjudication directly from the chancellor as the keeper of the King’s conscience.”

            Early in the 16th century, these church courts had found their place in English jurisprudence sometimes in conflict with the existing common law courts.These courts became what are now known as courts of equity which embraced as one of its primary tenants that “for every wrong there is a remedy.”  This certainly was not true prior to the evolution of equity.

            Black’s Law Dictionary defines equity in part as, “Justice administered according to fairness as contrasted with the strictly formulated rules of common law.”

            Not only did the common law make great strides forward in following uniform precedents, it also brought trial by jury and the doctrine of supremacy of the law.  Supremacy of the law was originally intended to say that not anyone is above the law, not even the King.  This doctrine has since been expanded to mean that even governmental agencies are subject to the law.

            It should also be noted that remedies in common law are defined by monetary damage while remedies in equity may be further expanded to injunctive relief that can order someone to do something or refrain from doing something.  Failure to follow the court’s order to do or not do this thing can then be enforced by a contempt of court order resulting in fine or imprisonment or both.

            In most states of the United States, the English system of law has been adopted.Since 1848 in the United States most of the states have combined courts of law and courts of equity in the same courts but maintained the flexibility of different remedies.

            An example of when both law and equity might come into play might arise as follows:

            John Sodbuster has planted 10 acres of wheat, but just as the seeds are sprouting Sam Cattleman decides to drive his cattle over John’s field.

            A civil court of law could determine the value of the damage caused by Cattleman to Sodbuster’s crop and order payment, but that does not solve the whole problem.If Sodbuster gets reimbursed for his lost crop and Cattleman continues to drive cattle across Sodbuster’s land, then Sodbuster is suffering additional damage which cannot easily be ascertained or which may not be compensable with money.At this point, equity can step in and the court can order Cattleman not to drive cattle across Sodbuster’s land.If he continues to do so, the court could not only access additional charges, the court could lock Cattleman in jail for failure to heed the court’s order.

            There is a fine balance in the courts between law and equity which should make us all proud of our system of justice.

James Bright is admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas.  He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery.  Contact may be made by telephone (936) 449-4455 or (281) 586-8277.  For more information about wills or probate in Texas,  please see-