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Thread: Writ of Quominus

  1. #1

    Writ of Quominus

    Writ of Quominus
    The writ of quominus, or writ of quo minus, was a writ and legal fiction which allowed the Court of Exchequer to obtain a jurisdiction over cases normally brought in the Court of Common Pleas. The Exchequer was tasked with collecting the King's revenue, and the legal fiction worked by having the plaintiff in a debt case claim that he was a debtor to the king, and that the defendant's debt prevented him paying the King. As such, the defendant would be arrested, and the case heard by the Exchequer. The writ's predecessors were in use from at least 1230, and it was in common (albeit strict) use during the 16th century. The use continued into the 19th century, until all original writs were abolished in 1883. (Source: wikipedia)

    The Court of Exchequer's main task was collecting royal revenues and taxes, partially through ensuring that debts to The Crown were paid.[1] It soon developed the ability to hear "common" cases, usually heard by the Court of Common Pleas, and did so through the writ of quominus. The origins of the writ are unknown, although some academics link it to a process through which a claimant could bring a claim jointly with the King or in part payment towards his debt to the King, in cases where the King had an interest.[2] The earliest record of a similar writ is 1230, although not with the quo minus wording.[3] The use was similar to that of the Bill of Middlesex, a similar legal fiction used by the Court of King's Bench; where a plaintiff claims money from a defendant for payment of a debt, the plaintiff would claim to be a debtor to the King, unable to pay his money to the King because of the defendant's debt.
    [This is mainly to illustrate an olde ancient bridge between courts of common law and courts of equity--that a court of equity could --even in 1500s England--hear common law cases.]

    Last edited by allodial; 05-06-15 at 09:19 AM.
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  2. #2

    A bridge between courts of common law and courts of equity

    Quote Originally Posted by allodial View Post
    [This is mainly to illustrate an olde ancient bridge between courts of common law and courts of equity--that a court of equity could --even in 1500s England--hear common law cases.]
    The question (or fact) remains: could they then apply common law remedies as in a court of law. For anyone who has studied law as it is applied in the real world of corporations and legal fictions, the answer to this is obvious.

    Courts of equity apply equitable remedies in favor of expediency and what they call "in the interest of justice." But this does not imply that such a remedy is either moral or ethical if the remedy is compelled. There is a sentence in a Wikipedia entry about merchant law which explains this in succinct detail: “It [lex mercatoria or merchant law] emphasized contractual freedom and alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono.” If you understand the significance of this sentence, then you understand the difference between courts of equity and courts of law.

    One of the maxims of equity law is: “Equity will not suffer a wrong to be without a remedy.” When seeking equitable relief in a matter, the one who has been wronged has the stronger hand. The stronger hand is the one who has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of either specific performance or an injunction (injunctive relief). These are considered superior remedies to those administered at common law, such as damages.

    In parsing out the meaning of that Wikipedia entry, first we need to find out what cases ex aequo et bono means? This is, of course, a Latin term which means “from equity and conscience,” or “according to what is right and good,” and is used as a legal term of art. In the context of arbitration through a court of equity, it refers to the power of the arbitrator (the judge, in this case) to dispense with the normal consideration of the law (ethical and moral law, i.e., “legal technicalities”) and consider the matter solely in a way that they consider, in their discretion, to be fair and equitable to the parties in the case at hand. In other words, according to private law written by men (lex scripta) rather than the common law as it arises according to natural law (lex non scripta or unwritten law which retains its ethical and moral boundaries).

    Yet, as we all know, what may be seen as “right and good” in a given circumstance may not always be fair and honorable, taking into consideration such lawful technicalities as the moral and ethical issues involved in a matter. Think about the example of a piece of real property (someone's home) being lien against, the owner being evicted until he pays the back property tax allegedly due.
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  3. #3
    "Think about the example of a piece of real property (someone's home) being lien against, the owner being evicted until he pays the back property tax allegedly due."

    Equity deals with trust law. Trusts consists of fiduciaries and beneficiaries. Property is put into the name of the trust and is used for the benefit of the beneficiaries. Government officers and employees are the fiduciaries and the people are the beneficiaries (actually the settlor / beneficiaries). The land and property controlled by the trust (government) is not the land and property owned by the people. The people have retained their right to own property outside of the trust. The trust has no interest in the private land and property of the people, and as fiduciaries, government officers act against the interest of the people by placing a lien on the private property of the people. Equity does involve judicial discretion, but that discretion cannot be abused. The inalienable rights of the people cannot be encumbered by government. Fiduciaries owe the duty of obedience to the people, and that obedience is to follow the express trust document, the constitution of the state.

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