Kalinga University

Department of Law
LAW OF EQUITY AND TRUST
Paper Code -LLB3.3
Class – LL.B 3RD SEM
Development of equity:

• Hudson describes the administrative of law prior to 1066 as a ‘’patchwork of tribal customs’’

• Normans sought to make a system of law common to the nation and not dependant on local customs

o Normans conqueror sought to centralize the law by utilizing the best methods and applying it equally
throughout the nation

o The remedy was sought to be the same regardless of your geographical location

o By the 12th century most cases were still heard in local shire courts by local lords, meaning the king and
his court had to travel across the realm distributing the justice; chancellor was the keeper of the king’s
conscience and therefore gave him great power to issue royal writs on behalf of the crown.

• In a time when monarchy was everything the King was in charge and so to be the best friend of the
monarch implied that you had a great degree of power

• As the law grew and the common law system began to take effect, the king delegated many of his powers
to his lord chancellor to act on his behalf; it was his discretion that became the foundation of equity as a
concept

o The Lord Chancellor as the keeper of the King’s conscience and keeper of the King’s seal

o In the Earl of Oxford case it was said how equity ‘’mitigates the rigour of the common law’’.

• Royal writs were issued to deal with matters falling within the kings special concern or prerogative power

o Certain issues which the king has a personal interest in ensuring the smooth transmission are below

▪ Treason

▪ Murder

▪ Unjust judgments

▪ Default of justice

o Such concern and prerogatives were delegated to the lord chancellor to deal with

o The last two matters were the ‘’seed of equity’’

o Ultimate check on the power of the courts by the monarch; mirrors the concept of judicial review which
is a more modern and evolved concept

o Courts of common law kept the power of the lord chancellor in check

• Problem however in that if your complaint didn’t fall within the ambit of the common law it could leave
you without a remedy

o As the system grew it wasn’t sufficient to write out an individual cause of action moulded uniquely to
the needs of the individual

o The cause of action became more rigid and less personal having the effect that people would be turned
away; arguably a failure of justice for which the lord chancellor would be invoked
o If you have a problem which doesn’t fit into the common law system of justice then you could utilise the
equitable doctrine

• The Courts of Chancery provided a platform from which the Lord Chancellor could exercise his discretion

o Asked questions of fairness and equitableness when determining an outcome

▪ Ideas of conscionability. Arguably very subjective in nature?

o His solutions would be based on fairness equity and conscience

o Depended on particular facts of the case and the lord chancellor presiding over the appeal

o John Seldon essentially made the point that because of the personal nature of appeal in an equitable
court, you cannot be certain as to the remedy available; measure of justice has often been equated to the
length of the chancellor’s foot

▪ “Equity is a roguish thing - for law, we have a measure, equity is according to the conscience of him who
is Chancellor and as that, is longer or narrower, so is equity. Tis al one, as if they should make the standard
for the measure – a Chancellor’s foot.”

o Equity plays a balancing act between individual injustice and the otherwise consistent application of
common and statutory law o The German philosopher Hegel was of the opinion that the court, in cases
of equity, is more concerned with the merits of the case between the claimant and defendant, not wholly
considering the wider reach and context of the law

o Petitions from the common law to the chancellor grew over the 14th and 15th century establishing a
court of chancery whose decisions were recorded and reported in the same manner as the common law
courts.

▪ Growth of a separate body of law; one legal and one equity

▪ Such a growth meant a greater degree of rivalry between the two courts due to the nature in which
remedies were provided and enforced

▪ Although rare nowadays, in Jaggard v Sawyer it was illustrated how equity provided a degree of general
discretion to set aside statutory and common law rules in good conscience

• Jill Martin provides an example in a dispute of ownership of land whereby A has the legal title to the
land (meaning legally he owns the land and in a common law court she would be awarded the land) but
C was going to the crusades and has a wife and two daughters whom he cannot give the land to (due to
prevailing laws of inheritance and ownership) and so C gives the land to A on the basis that the title to the
land is held (in the event of his death) for the benefit of B (wife and kids). In conscience the wife and kids
would own the land (upheld in court of chancery/equity).

o Equity can provide an often just conclusion

o Remedies in such cases work in persona and doesn’t change ownership and the law but merely on an
individual basis; common law remains unscathed but A’s conscience is bound

o Equity examines the conscience of the individual defendant

• Equity has a somewhat moral basis in that it can be seen as a way in which unfairness is prevented
through ensuring a statutory rule doesn’t have an unjust outcome; form of natural justice as picked up on
in Lord Dudley v Lady Dudley

o Prevents defendant taking advantage of a situation which would result in an unconscionable result

o Nevertheless there is a great degree of substantive evolution in regard to equity as a concept and
therefore a great development in fairness as it broadens the scope.

• Hudson suggests that the flexibility offered through the law of equity in individual cases ensures the law
and courts are able to cope and adjudicate, with social matters and progression borne in mind Equity
never meant there had to be a change or variation in the law; the remedy doesn’t change the common
law but is aimed at the conscience of the individual to whom it is addressed

• There were means by which the equitable order was enforced. The power to back up his resolution laid
in the fact it was a contempt of court to not carry out the prescribed course of conduct

• In the Earl of Oxford’s Case a defeated defendant applied for an injunction (equitable remedy) alleging
a loss of his previous trial on the basis of injustice; such a remedy was to protect against common law
remedy

o Defendant was indicted for not complying with common law prescription however Lord Ellesmere was
of the opinion that this remedy was affected solely In Persona and so didn’t affect the common law or
undermine it; merely justice being given and handed down in an individual case

o Held by Lord Ellesmere that “the office of the Chancellor is to correct men’s consciences for frauds,
breaches of trusts, wrongs and oppressions of what nature so ever they be, and to soften and mollify the
extremity of the law.”

• Shalson v Russo showed that where an equitable remedy is breached this can nevertheless result in
some sort of punishment most often in the form of a prison sentence Where equity and law conflict,
equity shall prevail and most commentators agree that the focus in equity reflects the politics of the time

• “where equity and law conflict, equity prevails”

• Sir Edward Cope favoured supremacy of the law over the monarch (who’s will was enforced via equity)
and clearly this was met with disdain as not soon after he lost his job Problems nevertheless remained in
the equitable jurisdiction:

• Some of these were addressed in the form of the two Judicature acts of 1873 and 1875

• The acts established a concurrent jurisdiction which could put into practice both common law and
equitable considerations

• Now all judges played a role in both common law and equity

• Equitable remedies will always remain at the discretion of the court; need to ask the court to exercise
its jurisdiction who will consider whether or not it would be unconscionable to allow a person’s legal rights
to be enforced

• Both common law and equity are now administered in any and all courts
• Statute sets into stone the concept that equity will always prevail if it conflicts with the common

• Since this act, both equity and common law have been administered in the same courts • Despite the
intertwining of the two courts as one, the intellectual separation of the principles of the courts remains;
result of the 1873 and 1875 acts was that a practical distinction between the courts ceased to exist

• In the 1882 case of Walsh v Lonsdale there was a lease agreement for 7 years which provided the rent
was payable in advance if so demanded:

o Neither of the parties got round to executing the deed needed to make the lease legally binding, yet the
tenant Walsh moved onto the land

o When the tenant fell into arrears, the landlord demanded rent in advance as per the agreement.
However when it wasn’t paid the landlord distrained (legal remedy which allowed landlord to seize the
tenants goods and sell them in lue of the rent)

o Tenant then proceeded to pursue an injunction so as to prevent the landlord from carrying out his
particular course of conduct; felt it to be illegal due to the lack of formal agreement of the lease. Trying
to rely on the absence of a fully legal lease

o Essentially asking for an equitable remedy but this failed as it would not be equitable and in
consideration of conscionable factors to allow for such a claim to succeed

o Even though there was absence of the legal formalities, equity will not allow such a factor to be utilized
in such an unconscionable manner; obliged to carry out his part of the agreement

o Oral agreement was as good in equity as an actual written lease

o Two equitable maxims:

▪ 1) equity sees as done that which is ought to be done

▪ 2)those who come to equity must come with clean hands

o Case demonstrates distinction between legal and equitable doctrines and how equity will always prevai