MEANING OF EQUITY

The concept behind 'Equity for the layman as well as to international students studying English Law is essentially 'fair dealing'. Ashburner has said that "Equity is a word which has been borrowed by law from morality and which has acquired in law a strictly technical meaning." C. W. Keeton is of the opinion that "Equity in modern English Law is a collection of rules, ascertainable with a certainty comparable with the certainty of Common Law rules, applied by a judge as a system distinct from the Common Law". Pottor has stated: "Historically Equity came into being to supplement a legal system which by reason of its own peculiar form and growth was incapable of meeting the needs of a developing civilisation and of giving effect to the sense of justice to the community." Mr. Justice Story, writing prior to that time under the Judicature Acts, defined it as "that portion of remedial justice which is exclusively administered by a Court of Equity as contra-distinguished from that portion of remedial justice which is exclusively administered by a Court of Common Law". This is not a perfect definition as it requires the definition of the term Court of Equity in order to make it understandable. Maitland has altered the definition of Story and has proposed a rough explanation of Equity as "that body of rules administered by our English Courts of Justice which, were it not for the operation of the Judicature Acts, would be administered only by those courts which would be known as Courts of Equity". The word "Equity" can mean two things: the broad meaning refers to the ideal or right justice. in the more specific and technical sense, Equity is, according to those who follow the English Legal system it is the set of principles and rules that were established by the Courts of Chancery. With and the Judicature Acts which were passed sixty years ago this definition for Maitland is clearly not sufficient. Additionally, it is evident that the Property Legislation of 1925 has stripped it of its significance, as that law has created a brand-new kind of Statutory Equity that is often in no relationship to the rules that were governed through the Court of Chancery prior to 1875.

EQUITY IN THE COURTS OF COMMON LAW

According to Holdsworth: "The Common Law was arisen from and around the Royal writs. They Royal writs have replaced older types of actions and earlier methods of procedure that were common prior to the triumph that was Royal justice." Following the Conquest, it was easy to buy the writ, and also to present the case before Curia Regis. Over time, these writs became a given and the procedures, both of substantive law and procedure developed into a rigidity. In addition to these writs, there were also writs known as ‘Brevia Magistralia’ which were dependent on the supreme power of judicial decision-making the King. In order to obtain it, the fee had to be paid. It is evident that the justices of the king believed in themselves as being able to make their decisions to abide by the moral code of the time. In the period of the mediaeval the Chancellor was considered to be the highest-ranking personage within the county, right next to the king. Maitland refers to the mediaeval Chancellor as The Secretary of State for all departments at the helm of the Chancery which was the prestigious Secretarial department. Henry II gave a very significant task to the Chancery that included the issue of warrants that would allow a person for an instance before the law. This meant that the power of the Chancellor was greatly increased. The expansion of the Parliamentary system during the time of Henry III gave a setback to his power. In 1250, the initial period of innovation in the Common Law was ending and judges were approaching the new kinds of writs with a cautious approach. They were cautious. Provisions that were adopted in Oxford, 1258 stated for the chancellor to not seal any new writs without the approval by the King and Council. This was a temporary annoyance to the law and was quickly recognized that the infamous Statute of Westminster II, 1285, relaxed the law somewhat, giving clerks of Chancery to grant the writs " in Consimili Casu". This freedom could be said to have restored the authority of the Chancery in the sense that Professor Jenks has noted that "the validity of the older writs when once they had been issued by the Chancery was decided upon not by the Chancellor but by the judge who tried the case". H. G. Hanbury is well known for saying: "The river of law whereof the Chancery was the source, flowed into a lock of which the Common Law Judges were the Keepers, and only a thin trickle came out on the other side." Although the writ system was a great method for Henry II's needs however, it was not without imperfections that can be summarized into one word: 'unadaptability'. Under the reign of Edward I, it was held that the writ could not be invalidated due to the absence of precedent, even if the matter was similar to one. A new writ known as ‘Audia Querela’ was made available during the period of Edward III. This writ allowed defendants could be relieved from the burden of a matter which arises following a judgement. This writ was issued more by Equity rather than an act of the Common Law. Modern research has brought it to attention that Itinerant Common Law Justices in Eyre considered an equitable jurisdiction during the 13th and 14th centuries. As with other Bills that were drafted, the financial hardship of the petitioner was the most frequent motive for the demand (in the shape of the form of a Bill that was filed in Eyre) in the hands of the Justices. The normal procedure of the Common Law was allowed, in the event that a Bill was pursued. In the normal course, an issue was sent to Jury. The equity in the Eyre was the Equity of the Star Chamber rather than of the Chancery. Pottor declares: "Such a form of equity was born barren and was not a fertile mother of legal principles destined to pay a high part in the evolution of English Law." Plaintiffs sought the King's approval to settle their claims. It appears that when the petition was sent to the King alone and he then referred the matter to the Council to be tried, but eventually, the Council gave this power to the Chancellor only. The Court of Chancery was a prerogative Court, it was an offshoot of Council However, its activities were considered to be suspect in those in the Common Law Courts.

EQUITY IN THE COURT OF CHANCERY

The development of a set of principles of Equity was based on petitions addressed to the King, and later, directing the Chancellor to ensure justice in cases where The Common Law gave no remedy or an adequate remedy. It was also necessary to maintain public peace and order and this is the purpose that Chancery was able to serve. H. G. Hanbury says about the Chancellor's position, while thoroughly recognising the authority of the Common Law Courts, he interfered in order to protect litigants in hard cases, which were unjustifiable by the Common Law courts owing to the rigid and circumscribed nature of the writs, even those ' in Consimili Casu' which issued out of the Chancery as the first step in a Common Law action, and in other hard cases which, even though a judgment at Common Law had been delivered upon them, nevertheless remained hard owing to the melancholy fact that the machinery of the Common Law Courts was inadequate to enable them to enforce that judgment by the effective method of personal constraint. The Chancellor's power was based on conscience because all the early Chancellors up to the 16th century were clergymen, and were influenced by the church, which emphasized on the morality of sin not merely an illegal wrong. Thus, Equity did not pursue the goods but rather the character and morals of the person being accused. Maitland notes that during the 13th and 14th century, the Chancellor didn't see himself as a person who was able to administer new law. In the majority of cases, we find his working in close collaboration with Common Law judges. The goal and purpose in Common Law were smooth and effortless, while the Chancellors would grant or defer relief without regard to any precedent, but in relation to the impact that was induced on his personal psychology by the merits of the particular case, based on notions of honesty, morality conscience or knowing the difference between good and evil. These abstract qualities come Equity. Equity in the early years emerged because of these three elements:

1. Common Law was rigid as and in its faulty state, partly due to the lack of remedies, and a large part due to the way in the remedy was obtained.
2. Equity emerged outside the scope that was the Common Law. It led to an entirely new system of law that was based on the conscience.
3. The Chancellor ratified the divine laws that govern the human race.

It served as a foundation of morality to the system, which included a wide range of cases. The Equity Act Equity offered relief in cases where Common Law was inadequate:

(a) Substantive law, e.g.

1. In its Substantive Law, e.g., lack that was a part of Common Law to recognise the beneficial interest of X in the event that A had granted the property of B to C in exchange for X's benefit and resulted in the development through Equity of the Law of Trusts.
2. In its Adjective Law, i.e., the remedies available to enforce the right. Equity provided for specific performance, injunctions as well as discovery of documents and interrogatories.

"By the end of fifteenth century, the Chancellor had assumed," stated Holdsworth, "an independent jurisdiction as the head of an independent Court of Chancery, which had grown out of the King's Council." From the very starting, procedure for the English side of the Court of Chancery was different. The most powerful tools of Chancery procedure included the writs of 'Subpoena', and Quibusdam certis de causis, which allowed the Chancellor was able to summon a defendant in front of him to face unspecified charges. The defendant initially was present in person and gave an oral response to the accusation made by the plaintiff however, the procedure progressively became more rigid. The Chancellor's occasional inferences would surely provoke the suspicion of Common Law judges. In the course of time, Common Law judges made complaints about the Chancellor's authority, that eventually led to an ad hoc removal of the Chancellor's authority from the realm that was Common Law. However, the authority of the Chancellor was never challenged in specific circumstances. Sir Julius Caeser M. R. stated: "It was the province of equity to remedy frauds, breach of trust, and extremity of Common Law or undue practices." In the phrases in an old rhyme " These three-give place in the court of conscience Fraud, accident and breach of confidence."

EQUITY OF GENERAL EYRE AND CHANCELLOR'S EQUITY

In the Common Law judges in the thirteenth and fourteenth centuries provided relief through an Equity of the General Eyre. It was a result of that system known as Bills in the General Eyre. Justices of the King who sat within the General Eyre believed themselves to be more directly representing the King than his justices who were at the Common Law courts. Dr. Bolland's investigation revealed that the oldest Bills were in the General Eyre that was held in Shropshire in the time that was Edward I. In relation to the origins for Bills the Dr. Bolland expressed the view that the word "Bill" originated from the Latin ' libellus which could refer to an unassuming book, writing on parchment or an official complaint. These were small pieces of paper on which the complainant could make an imperceptible request for resolution to Justices on Eyre. While the original Bills differed greatly in terms of design, these were distributed to Justices of the King. To bring a Bill normal procedure of the Common Law was followed and typically, an issue was given to jurors. However, juries were usually poor and had the greater chance of them favoring the wealthy and powerful, so the impartiality of their verdict was not expected. This was the biggest flaw of the entire system. It was the most glaring weakness of all. Equity from the General Eyre was not at any time a precursor to the Equity of the Chancellor. The procedure used in both these cases, in front of the court, differed significantly, due to the fact that one was based on the Common Law and the other offered a more effective way of trial for cases that required more than knowledge of the things common to the neighbors of the petitioner. Although the procedure of both trials was initiated with a petition, and that the legal its form was not taken into consideration as a matter of law, the Chancellor was able to shift the foundation of accountability for external actions in favor of a moral duty on an individual's conscience when using this new system of trial. It was the Justices in Eyre never dealt specifically with the kinds of wrongs where they could not find a remedy under the Common Law had provided no remedy and they did not develop any specific remedies. In reality, they did not even have any special remedies. Equity of the Eyre was the Equity of the Star Chamber rather than of the Chancery. It was more of an escape from it being "too great might on the one side and too great unmight on the other". Pottor declared: "Such a form of equity was born barren and was not a fertile mother of legal principles destined to play a high part in the evolution of English Law." The Eyre was in fact more than the term "Court of Criminal Equity" however it was way earlier in the legal history of our country to have any lasting impressions on our legal system because it was practically dead in the reign of Edward VI. Pottor has pointed out that If the Eyre survived there is a possibility that more fluidity could be added to the law in Common Law. It is also possible that the procedures of the system might be altered, but this is unlikely. These effects on the total nature of English Law are not measurable, but the structure of the English legal system could be different.

ROLE OF CHANCELLORS AND DEVELOPMENT OF EQUITY

EARLY CHANCELLORS

In the Medieval period, the Chancellor was by far the most important figure in the country after the King Edward I allowed Chancellorship to take on a new importance when he appointed Robert Burnell. Burnell was considered to be the greatest of the medieval Chancellors. The responsibility of advising the King was a responsibility for the Chancellor, as did Judges, in numerous political crisis. Since during the time of Henry VI, the jurisdiction of equity in the Court of Chancery constantly grew in importance. During the period of Henry VIII, it grew into an extensive and nearly unlimited authority under the nurturing diligence and bold wisdom and admiration for authority of the Cardinal Wolsey. Cardinal Wolsey (1515-1529) gained fame as a Statesman and Chancellor. He was a fervent believer in equity jurisdiction and believed that Chancery was an institution of the Court of Conscience. Wolsey was the final of the famous ecclesiastical Court Chancellors.

SIR THOMAS MORE (1529-1532)

Sir William Holdsworth has well said: "The appointment of Sir Thomas More (1529-1532) to succeed Wolsey was dictated by the necessity of conciliating the Common Lawyers in Parliament." Sir Thomas More was a Common Lawyer, and his father was a Common Law judge. His morally upright character made perfectly for the position of Chancellor currently since equity was practically an issue of conscience for the Chancellor. To avoid the unconscientious misuse of rights under the law, more argued that the Chancery issued injunctions. R. W. Chambers declares: "More made every endeavour to live at peace with the Common Law Courts." There's a fascinating story about Sir Thomas More, given by Mr Cooper: "More invited the judges to dine with him, and after dinner, showed them the number and nature of the causes in which he had granted injunctions to judgments of the Court of Common Law, and the judges, upon full debate of the matters, confessed that they could have done not otherwise themselves." Before the appointment of Egerton as Chancellor, who was more successful than the succeeding Chancellors, they were men of less importance.

LORD ELLESMERE'S CHANCELLORSHIP (1603-1618)

Sir Thomas Egerton, Lord Ellesmere, was appointed into the Bar in 1572. Lord Ellesmere was named Queen Elizabeth's Solicitor General and later the Master of Rolls. In 1596, he became Lord Keeper. He was appointed Lord Keeper in 1603. was made Lord Chancellor of James I. His influence in politics was immense, particularly with Queen Elizabeth, who had a lot of faith in him. In Chancery, the judge issued numerous instructions concerning the procedure and the organization of the courts, primarily in the interest of reducing pleas and checking the length of time. These orders were accompanied by the qualities of strict discipline for the people who appeared before him. Based on his two decisions, that of

1. Calvin's case and
2. Earl of Oxford's case,

It is evident that his judgements were based on profound understanding. Ellesmere believed that the principles laid out in the case of ' the case of Doctor and Students as the basis of the court's authority. But he is careful to affirm that equity is law, not just discretionary, and insists that Chancery was a court with "usages and customs" to determine its procedures, similar to other courts. Lord Ellesmere stated in the case of Earl Oxford in 1616: "When a judgment is obtained by oppression, wrong and hard conscience, the Chancellor will frustrate and set it aside not for any error or defect in the judgment, but the hard conscience of the party." Even during the late Sir Thomas More, there were complaints from those opposed to equity, particularly to the power to issue injunctions against judgements and other proceedings to stop irreparable injustice. The dispute was revived with more ferocity and violence during the period of James I. On the issue of how a Court of Equity could give relief against or in the event of order at Common Law (in the Earl of Oxford's case), it was mostly handled through Lord Coke in opposition to, as well as Lord Ellesmere for the Chancery the jurisdiction. The matter was finally brought directly before the King. Following the advice and advice of the most knowledgeable lawyers, His Majesty rendered a verdict for an equitable court in these instances. In Lord Ellesmere's term in office, the Chancery's authority was fully defended.

BACON'S CHANCELLORSHIP (1618-1620)

As a writer, historian, statesman, historian, philosopher, and lawyer Bacon has many titles. Philosophically speaking, he wrote about the highest standards of conduct and set the obligations of a fair judge. Bacon was aware of the flaws of law. Once, he stated: "Our laws as they now stand are subject to great uncertainties and variety of opinions, delays and evasions." Bacon was an advocate of the legitimacy of the law of the case. As an attorney, he gained an impressive distinction. Bacon, as Chancellor, followed in the footsteps that were set by Sir Thomas More and summoned the judges to dinner, and there he heard complaints from the judges about the procedure of Chancery that seemed to be excessive. This way, Bacon attempted to restore the harmony with Common Law judges and the Court of Chancery. He also tried to end the abuses in the court he was in. First, Bacon aimed to deliver the justice he deserved quickly and efficiently. Bacon was a man of the utmost devotion to eliminating the arrears of work. Second, he drafted the code or consolidated a set of rules that governed the conduct of the court.

On the day of the fall of Bacon, James I appointed Bishop William as the Chancellor (1621-1625). In 1658 Lord Clarendon was named Chancellor. Sir Orlando Bridgman replaced the Chancellor as Lord Keeper (1667-1672). Bridgman's legal work in equity was not a thing of the past. He was a prominent conveyancer who is acknowledged as contributing to the creation of trustees to protect contingent remainders and regulate perpetuities. However, as Lord Keeper, his reputation was tarnished for not being able to have been able to comprehend the concept of equity. According to North, "In his time, the Court of Chancery ran out of order into delays and endless motions in causes." He was replaced by Earl Shaftesbury (1672-1673).

LORD NOTTINGHAM (1673-1682)

Nottingham was appointed Chancellor in 1673. In 1673, he began the change of equity. He was an Equity Common Lawyer, and from his period, only lawyers were able to hold this position. He brought Equity as Equity, the concept of a set of principles built on case law precedent. It was the ideal moment to allow equity to be a well-established system. Nottingham was a major force in bringing together, strengthening and stiffening the entire system. The author wrote his treatise about equity. Certain of his rulings are significant contributions to the growth of equity. For instance, in Cook v. Fountain, He analyzed the classification of trusts logically with Salsbury in v. Bagot; the judge analyzed the nature and the equitability of the doctrine of notice. The most renowned decision was made in the Duke of Norfolk's court case (1682), where he established the current law against perpetuities. In Thorn borough v. Baker, the judge ruled that executors, and not the heirs of a mortgagee, are entitled to the loan secured by the mortgage. In this manner, he was well aware that he was creating new laws that render the precedents of the past obsolete. Holdsworth started, "Nottingham began work organizing the rules on which the court made its decisions. In the course of this, equity took on its present shape. He was successful partly because of his determination and wit and due because the right time was at hand to begin the process of negotiating such a settlement. Both the man and the possibility were in perfect harmony. When we think about his influence on the foundations of equity or the character of equity, we must recognize that he deserves the tradition of being called the Father of Modern Equity. After Nottingham, numerous other Chancellors were also appointed. They cannot all be described as such. We will concentrate on Hardwicke as well as Eldon only. They were two of the most influential Chancellors before the Judicature Act of 1873.

LORD HARDWICKE (1736-1756)

Sir Philip Yorke, first Earl of Hardwicke, established the basic concepts of equity. According to Plucknett: "As Chancellor, he had the great advantage of twenty years' uninterrupted tenure which enabled him to carry out a systematic policy." Hardwicke established the rule of thumb that established principles must be adhered to by judges in equity. His mission was to aid and protect the Common Law against its abuses. He was never adamant about reversing his rulings on the Common Law. In the case of Casborne v. Scarfe (1737), the judge allowed a husband to enjoy the right to courtesy in an Equity of Redeem. In the case of Penn v. Baltimore, Hardwicke outlined the effects of the main aspect of equity which was that there was a Court of Chancery that had jurisdiction in a personam manner on behalf of the person of the judge to compel an individual to perform justice. In addition to the judge's responsibilities and a reformer, he also served as a reformer. Hardwicke controlled the fees paid to the court and issued the list of fees that could be allowed. Even with all his excellent qualities, his conduct was quite androgynous. Pottor has stated, "This dilatoriness became such a reproach to the court that it was said that no suitor could hope to live to see his case settled".

LORD ELDON (1801-1827)

John Scott, Lord Eldon was a man with extensive knowledge, excellent practice, an excellent professional reputation and a stoic temper. When Eldon was an attorney, his opinions on the case of Ackroyd V. Smithson were admirable. In 1801, Eldon was elected Lord Loughborough in the post of Chancellor. Throughout his time in the office, Eldon was determined to bring about every possible change. The work he performed as Chancellor had significant merits. Eldon's Chancellorship indirectly led to modifications to the mechanism of Chancery. While Chancellor, the principle of the binding precedent in equity was made an established law. Thanks to his thorough understanding, Eldon was habitually delayed in his work. The process accelerated the already-accumulated arrears of the causes. This led to a call for change. Overall, it is possible to say that his virtues surpass his flaws. As stated by Kent: "Eldon earned title to the reverence of his countrymen by resisting the temptation, so often pressed upon him, to make principles and precedents bend to the hardship of a particular case."

The growth of equity from 1529 until 1827 The 16th and 17th century were a time of immense economic and social development. It was an excellent chance for equity to develop into an established legal system. At the beginning of this period, the writings of St. Germain in the ' Doctor and Student" gave force to the Chancellor's authority. The first one was the increased prominence of the Court of Star Chamber and Council.

Furthermore, Common Law was the first law of its kind. Common Law remedied some of the flaws that existed in the previous period. In addition, The Common Law Courts extended their authority by using fiction in certain cases that were previously confined to the Chancery, e.g., disputes concerning trade transactions. A new procedure for writing pleadings and evidence changed the procedural complexities of the pleading. This led to equity being progressively confined and defined in its scope and more systematically arranged. Equity naturally developed within its established state, with rules based on the rigidity of Common Law and its own more flexible machinery. The mechanism of Chancery allowed relief from the penalty.

Furthermore, for cases of mistakes, accidents, or fraud and mistakes, Chancery was the only court that could provide relief for mistakes, fraud and accidents. Chancery was the only court where relief could be provided. In third place, insofar as dealing with the management of the estate of a deceased was concerned, the Chancery set up several legal rules. The most significant characteristics of the period (1529-1673) included passing the Statute of Uses in 1535. Alongside Trust, it was also the case that there existed three significant branches of equitable rights in the property that received recognition:

1. the legal right of married women to force her husband in certain situations to retain his legal interest in her property to their benefit and to do so at choice. This is referred to as separate property of a married woman;
2. the second relief is provided to the borrower as part of mortgages
3. thirdly, when the person was a personal entity, but the ownership was not tied to actual possession of any type.

Therefore, equity was an institution of conscience, and relief granted was at the judges' discretion. This justified Seldon's remark "that Equity was a roguish thing because it might vary as the Chancellor's foot". The criticism did not go without any basis. It is evident that even though the Chancellor himself reserved an expansive discretion, however, two factors contributed to making equity a more stable system: first and foremost, the restriction of authority and, secondly, greater certainty of its application and the gradually introducing of reports.

The second half of the 17th and 18th centuries constitute the golden period of the equity system in England. It was a time of stagnation in the legislative system. Between 1673 and 1827, equity shifted its position within the English legal system. It became the partner of the rival to the Common Law. Equity also evolved into a case law system that made judicial precedent legally binding. Equity was also restricted and defined legal system that has lost the flexibility of pure legal legislation on a massive scale. In addition to this, the practice and procedure did not undergo any fundamental changes in the realm of substantive equity. They were becoming more complicated. The result was a public protest in the early 19th century. The contributions of the eighteenth century in this area were negative yet significant. Trusts, along with equity of redemption of mortgages and other rights of varying significance, were not recognized as such by Common Lawyers, and they thus were a sole domain of equity.