Publisher's Synopsis
Excerpt from A Treatise on the Law of Partnership and Joint-Stock Companies, According to the Law of Scotland, Vol. 2: Including Private Copartneries, Common Law Companies, Registered Companies, Chartered Companies, Railway Companies, and Others, Formed Under the Consolidation Acts
In the Scottish and some other systems of jurisprudence, the same tribunals administer both law and equity. In theory, this arrangement appears to have many advantages but it is doubtful whether these are not counterbalanced by difficulties of a practical kind. The advantages which a separation of the courts is calculated to give are much obscured, where, as in England, matters originally equitable have long since by force of precedent attained the fixity of law, but still continue to be dealt with by the equitable tribunals.
But whether the legal and the equitable jurisdictions be entrusted to the same or to different courts, a broad distinction must always be drawn between the principles of pleading applicable to the two classes of cases. Where the function of the Court is simply to ascertain the fact and to apply the law, nothing more should be stated on record than is necessary to make the action relevant, and to give the opposite party due notice of what is intended to be proved. When, again, an equitable remedy is sought, it is obviously necessary that the statement be much more full and minute, other wise the Court will not be put in possession of the requisite materials to determine satisfactorily how far and in what manner its functions should be exercised. This distinction is to a certain extent recog nised by the existing system of pleading in the Scottish courts, inasmuch as proper jury causes generally originate by summons, and those which more properly fall under the equitable jurisdiction are in many cases brought into Court by petition. It would be a great improvement if this distinction were made applicable to all cases. It would also be very desirable, if, while the short procedure of closing on a single revisal were rigorously enforced in jury causes, greater facilities for written pleadings were conceded in equitable suits. The old forms of procedure, ill adapted as they were for the former class of cases, were certainly more suitable than the modern forms for the requirements of the latter.
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