“I have always thought it highly injurious to the public that different rules should prevail in the different Courts on the same mercantile case. My opinion has been uniform on that subject. It sometimes indeed happens that in questions of real property Courts of law find themselves fettered with rules, from which they cannot depart, because they are fixed and established rules1; though equity may interpose, not to contradict, but to correct, the strict and rigid rules of law. But in mercantile questions no distinction ought to prevail. The mercantile law of this country is founded on principles of equity; and when once a rule is established in that Court as a rule of property, it ought to be adopted in a Court of law. For this reason Courts of law of late years have said that, even where the action is founded on a tort, they would discover some mode of defeating the plaintiff, unless his action were also founded on equity; and that though the property might on legal grounds be with the plaintiff, if there were any claim or charge by the defendant, they would not consider the retaining of the goods as a conversion.”

— Sir Francis Buller, 1st Baronet

Tooke v. Hollingworth (1793), 5 T. R. 229.

Adopted from Wikiquote. Last update June 3, 2021. History

Help us to complete the source, original and additional information

Do you have more details about the quote "I have always thought it highly injurious to the public that different rules should prevail in the different Courts on …" by Sir Francis Buller, 1st Baronet?

Sir Francis Buller, 1st Baronet 24

British judge 1746–1800

Related quotes

“It was said by a very learned Judge, Lord Macclesfield, towards the beginning of this century that the most effectual way of removing land marks would be by innovating on the rules of evidence; and so I say. I have been in this profession more than forty years, and have practised both in Courts of law and equity; and if it had fallen to my lot to form a system of jurisprudence, whether or not I should have thought it advisable to establish two different Courts with different jurisdictions, and governed by different rules, it is not necessary to say. But, influenced as I am by certain prejudices that have become inveterate with those who comply with the systems they found established, I find that in these Courts proceeding by different rules a certain combined system of jurisprudence has been framed most beneficial to the people of this country, and which I hope I may be indulged in supposing has never yet been equalled in any other country on earth. Our Courts of law only consider legal rights: our Courts of equity have other rules, by which they sometimes supersede those legal rules, and in so doing they act most beneficially for the subject. We all know that, if the Courts of law were to take into their consideration all the jurisdiction belonging to Courts of equity, many bad consequences would ensue. To mention only the single instance of legacies being left to women who may have married inadvertently: if a Court of law could entertain an action for a legacy, the husband would recover it, and the wife might be left destitute: but if it be necessary in such a case to go into equity, that Court will not suffer the husband alone to reap the fruits of the legacy given to the wife; for one of its rules is that he who asks equity must do equity, and in such a case they will compel the husband to make a provision for the wife before they will suffer him to get the money. I exemplify the propriety of keeping the jurisdictions and rules of the different Courts distinct by one out of a multitude of cases that might be adduced.... One of the rules of a Court of equity is that they cannot decree against the oath of the party himself on the evidence of one witness alone without other circumstances: but when the point is doubtful, they send it to be tried at law, directing that the answer of the party shall be read on the trial; so they may order that a party shall not set up a legal term on the trial, or that the plaintiff himself shall be examined; and when the issue comes from a Court of equity with any of these directions the Courts of law comply with the terms on which it is so directed to be tried. By these means the ends of justice are attained, without making any of the stubborn rules of law stoop to what is supposed to be the substantial justice of each particular case; and it is wiser so to act than to leave it to the Judges of the law to relax from those certain and established rules by which they are sworn to decide.”

Lloyd Kenyon, 1st Baron Kenyon (1732–1802) British Baron

Bauerman v. Eadenius (1798), 7 T. R. 667.

“A Court of equity can mould interests differently from a Court of law; and can give relief in cases where a Court of law cannot.”

Lloyd Kenyon, 1st Baron Kenyon (1732–1802) British Baron

Clayton v. Adams (1796), 6 T. R. 605.

“Courts of equity make their decrees so as to arrive at the justice of the case without violating the rules of law.”

Lloyd Kenyon, 1st Baron Kenyon (1732–1802) British Baron

Clayton v. Adams (1796), 6 T. R. 605.

“It must not be forgotten that the rules of Courts of equity are not, like the rules of the common law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time — altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them.”

George Jessel (jurist) (1824–1883) British politician

In re Hallett's Estate (1880) 13 Ch.D. 696, 710.

“I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. … That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society.”

Benjamin N. Cardozo (1870–1938) United States federal judge

Pages 150-51
Other writings, The Nature of the Judicial Process (1921)

“I have always thought that formerly there was too confined a way of thinking in the Judges of the common law Courts, and that Courts of equity have risen by the Judges not properly applying the principles of the common law, being too narrowly governed by old cases and maxims, which have too much prevented the public from having the benefit of the common law.”

John Eardley Wilmot (1709–1792) English judge

2 Wils. 341.
Collins v. Blantern (1767)

“What all this amounts to, then, is that the Rule of Law requires that administrative discretion in coercive action (i. e., in interfering with the person and property of the private citizen) must always be subject to review by an independent court which is not an instrument of, or even privy to, the aims of current governmental policy; that its review must in all such instances extend to the substance of the administrative act and not merely to the question whether it was infra or ultra vires; and that, if such a court finds that the rights of private citizens have been infringed, it will assess damages just as if the right of this person had been violated by another private citizen. This, in addition to the familiar requirements of generality, equality, and certainty of the law is really the crux of the matter, the decisive point on which it depends whether the Rule of Law prevails or not.”

Friedrich Hayek (1899–1992) Austrian and British economist and Nobel Prize for Economics laureate

Lecture III. The Safeguards of Individual Liberty - 19. Fundamental Rights and the Protected Private Sphere
1940s–1950s, The Political Ideal of the Rule of Law (1955)

“The Court must not depart from those rules which have been considered necessary for the due administration of justice.”

Henry Bickersteth, 1st Baron Langdale (1783–1851) British lawyer

Symonds v. The Gas Light and Coke Co. (1848), 11 Beav. 285.
Quote

“I should be extremely sorry to find that in a fictitious proceeding, instituted for the more easy attaining of justice, different rules were to obtain in the different Courts.”

Lloyd Kenyon, 1st Baron Kenyon (1732–1802) British Baron

Goodright v. Rich (1797), 7 T. R. 334.

“The freedom of peoples depends fundamentally on the rule of law, a fair legal system. The place to have trials or accusations is a court of law, the Common Law that has come right up from Magna Carta, which has come right up through the British courts – a court of law is the place where you deal with these matters. If you ever get trial by television or guilt by accusation, that day freedom dies because you have not had it done with all of the careful rules that have developed in a court of law. Press and television rely on freedom. Those who rely on freedom must uphold the rule of law and have a duty and a responsibility to do so and not try to substitute their own system for it.”

Margaret Thatcher (1925–2013) British stateswoman and politician

Criticising the Thames Television programme "Death on the Rock", in an interview with Hatsuhisa Takashima of NHK Japanese television (29 April 1988) http://www.margaretthatcher.org/speeches/displaydocument.asp?docid=107058
Third term as Prime Minister

Help us to complete the source, original and additional information

Sir Francis Buller, 1st Baronet 24

Related quotes

Related topics