BEFORE 1615

The 14th century was when the Chancellors believed they had to manage any with substantive rules that were different from the common laws of the nation. As we've already mentioned in the previous chapter, Equity was able to act in two different ways i.e.

1. In addition, extending the Common Law and
2. Through the correction of by resolving Common Law.

Common-Law courts Common Law courts gradually resented the second kind of interference since they were superior courts. Then it became evident that the Chancellor performed practical and beneficial work that would be impossible for the Courts of Common Law could not perform. So, one important area in substantive law (to make sure that trusts and uses are enforced or confident) was entrusted to him because, during the fifteenth century, the dispute between the courts in the area of Common Law and Equity commenced. In 1482, Hussey G. J. and Fairfax, J., both agreed that if the Chancellor sentenced plaintiffs to prison in the event of their refusal to comply with an order to stop their proceedings under Common Law, then the judges could release them upon an application through the writ of habeas corpus. It was in the Tudor and early Stuart period when the Court of Chancery was finally established and its organization established. Under the Chancellorship of Wolsey, the jurisdiction that was the responsibility of Chancery was expanded to the point of being a tyranny. In More's time, there was less conflict. It was a matter of the issue of Common Lawyers and Chancery practitioners engaged in a dispute not just in court but also in pamphlets. St. Germain discussed it in his pamphlet, 'Dialogues between an ordained doctor and a student in the Laws of England', released in 1523 to benefit Chancery.

A PERIOD STARTING IN 1615 UNTIL 1873

In 1606, Coke was named Chief Justice, Coke immediately began to challenge the authority of these prerogative courts, which he believed to be the most detrimental to the common public. His dispute with the Court of Chancery broke out in Neath v. Ridley, where it was ruled that Common Law courts could not interfere with Chancery's jurisdiction. Common-Law courts could prohibit the Chancery from interfering in any issue that could be properly argued in Common Law courts. The dispute reached its peak in the case of the Earl of Oxford (1615), where Lord Ellesmere, who was then Chancellor, was a follower of the rules laid out by the "Little Treatise of Subpoena'. The Chief Justice and Chancellor were willing to compromise on the request, and the case was then referred to James I for settlement. James, I took the opinion of Bacon (then-Attorney General) and several other lawyers. Finally, James I, concluded to declare that the Court of Chancery was to take precedence over other Courts of Common Law. With the arrival of Lord Cottingham began the transformation of Equity. In 1690, a Bill was introduced in Parliament to grant Common Law Courts the Common Law Courts power to issue written orders of Prohibition to stop any interference in their jurisdiction and to also stop any equity court from hearing lawsuits with a legal remedy in Common Law was provided. The acts also permitted courts of the Common Law Courts to allow the defendant to make equitable defences and pleas in the course of a Common Law action. In 1862, the Chancery Regulation Act (Rolt's Act) of 1862 imposed on the Court of Chancery the duty to decide every matter of law or fact in which the title to the remedy or relief was dependent. The difficulties were gradually eliminated to improve the relationships between law and equity through various statutes. 

JUDICATURE ACT, 1873 - ITS OBJECTS AND IMPACTS 

The biggest flaw in the English Legal system before the present consisted of the two separate legal systems, which caused severe hardships, even though the conflict was never between equity and law like there was in the previous. To address these shortcomings, Graveson has highlighted that the Judicature Act 1873 was approved with three major goals:

1. to fuse law administration and equity. However, the rules of law and equity were not integrated. The fusion simply refers to their use by all courts
2. to develop an entirely new set of Rules of Court;
3. to create a single Supreme Court. In the Judicature and Amending Acts, the High Court of Chancery, the Courts of Common Law, Admiralty, Probate, Divorce and Bankruptcy were joined into the Supreme Court of Judicature, comprising two divisions: that of the High Court of Justice and the Court of Appeal.

In 1881, the High Court of Justice was divided into five divisions:

1. Chancery,
2. The King's Bench,
3. Common Pleas,
4. Exchequer,
5. Probate, Divorce and Admiralty.

In 1881, the King's Bench, Common Pleas and Exchequer were combined into one Division known as it was known as the King's Bench, so that the High Court now has only three divisions:

1. Queen's Bench Division,
2. Chancery Division,
3. Probate Divorce, Probate as well as Admiralty Division.

The Court of Appeal was vested the entire jurisdiction and power by the Lord Chancellor and in the Court of Appeal in Chancery to exercise its appellate and judicial jurisdictions and that of other courts. It is also the case that certain other courts are using it. Judicature Act contains several provisions. Section 25 in the Act states that "in any matter ... that there any difference or disagreement with the rules in the Court of Equity as well as the regulations of Common Law concerning the same issue Equity's rules will prevail. Equity prevails". Hood Philips has stated: "The effect of the Judicature Acts then was to transform the exclusive legal jurisdiction of equity to concurrent jurisdiction and remove its auxiliary jurisdiction.

Equity was not created to abolish the law but to fulfil it. Maitland stated: "We ought not to consider Common Law and 'Equity as of two different systems'. Equity was not an independent system. In every instance, it was predicated on having Common Law. Equity is the absence of Common Law could be a castle in the sky and a flimsy possibility." Hood Philips is of the view "that the relationship to Common Law, as well as Equity, did not have been one of rivalry or conflict over the last 200 years, but one of collaboration." In discussing the function of the Judicature Acts, Hood Philips has written: "The Judicature Acts provided that, excluding cases in conflict laws that were the norms of Common Law as well as Equity was to be applied following the same manner that they had been implementing by separate courts. This means that damages can still be granted to those violating legal rights in line with the law, and specific injunctions and performance are given to enforce equitable obligations according to equitable principles. The range of equity is the same as it was described in the previous paragraph, as it is the application that is the subject of Common Law and Equity that has been combined, not the actual principles." On the contrary, Prof. Hohfeld believes that "the rules of equity that fall under the exclusive and auxiliary jurisdictions are not following the lawful rules. There is a rumour that a fusion of two theories, i.e., Law and Equity, is tried by Lord Mansfield in the early eighteenth century to predate Judicature Acts. In reality, the Judicature Acts only fused with the courts that administered Law and the courts that were responsible for Equity. However, Mansfield was more interested in that which the Judicature Acts did. In reality, Mansfield disliked the separation between the laws of law and equity. If he had his way, the future relationships between equity and law would have gradually converged on each other; the Judicature Acts might have affected the fusion of adjective and substantive law. However, jurists at the time opposed Mansfield's theories. Equity and law evolved in the 18th and 19th centuries in the same way as they were evolving in the latter part of the 17th century in partnerships, each with its distinct technical basis.

The error in Mansfield's theory was his assertion that equity was not different from the Common Law merely because of its mechanism like Lord Mansfield was rumoured to believe that it was, rather because its attitude toward the subject of the dispute was different. Ashburner's conclusion is right "Law, as well as Equity, were two of the sister streams of the law, even however, they share the same channel, they run in tandem and do not mix the waters of each." 

MAXIMS OF EQUITY 

In this section, we can observe certain of these maxims and general axioms of equity often used when discussing Equity.

EQUITY ACTS PERSONAM 

Maitland's central theory is that these equitable rights aren't an iura in rem right and should never be as such because each equity has to give way to the supreme rights of a genuine purchaser in the estate of law. Ames has claimed that this principle is the fundamental principle behind an equitable court. The doctrine behind the use of trust funds held by beneficiaries indicates how equitable rights can be much higher than the iura in personam. Today the trend of judges is to diminish the historical foundations that underlie law of Trusts and to make the right of the beneficiary to certain situations as close to the right in the rem. Contemporary critics have cited the decisions of Sinclair v. Brougham (1914) to propose an equitable right, and interest resulting from a hybrid positioned somewhere between 'iura in personal as well as 'iura the rem'. For instance, in the most prominent decision, Penn v. Lord Baltimore, the principle was that "the property was not subject to the court's jurisdiction. However, that of the defendant... as well as the judge was in its discretion to block the defendant from ever being able to his property if he did not fulfil the terms of his agreement". The principle is mainly applied to cases involving land. In terms of Hanbury, the law may be summarized as follows: "The court will decree the performance of a specific contract that deals with land outside of the jurisdiction if the defendant is within court's jurisdiction and no more than the confinement of the defendant is necessary for the decree to be legal." Hanbury has said, "Equity acts in personam and is still a key to understanding Equity; however, it's an instrument with a little dust in it". 

EQUITY IS IN LINE WITH THE LAW

This principle can be read in a variety of ways. On the one hand, it's valid, but there are different interpretations on other occasions. In the literal sense, the maxim is valid. It is as Maitland stated: "Equity was not a self-sufficient system. Every time it assumes its existence as a result in Common Law". Thus, in many instances, Equity acted by analogy to the laws. The Trust estate is placed in a parallel fashion to the legal estate and presupposes the existence of the legal estate. Equity accepted various Common Law rules, such as those enacted in Shelly's Case (1582) and the prohibition against perpetuities. In cases where it was apparent that the laws of Common Law seemed harsh, equity was not willing to follow these rules of law. However, this does mean equity had the right to disobey the rules of an act. But equity won't allow a statute to be used as a tool of fraud, and it will interpret the law to stop it from being used in this way. Keeton has identified three major principles of Equity as a way to illustrate the previous maxim:

1. The Doctrine of Concealed Fraud
2. The Doctrine of Past-Performance
3. The doctrine of secret Trusts

Overall, one could say in the simplest terms that "Equity follows the law is a rule that is subject to several exceptions, but it is impossible to say that in the absence of a legal remedy, there is nothing in equity where Equity is not opposed to the laws of Law. 

WHEN EQUITIES ARE EQUAL, THE LAW PREVAILS

This principle is applicable when there are two competing interests in property that are a legal interest, and the other is an equity interest. Before 1926, the lawful estate had priority over equal equity. Equities weren't equal if the buyer of the legal estate did so without notice. However, the amendments of 1925 have influenced this principle. The 1925 Acts have introduced the vital concept of registration of many kinds of interest in the land, many of which are equitable. Therefore, registration regulates the priority of mortgages. This contrasts with the "Qui prior est tempore portion is iure" principle. In this case, the law was formulated by the court in Dearle V. Holl. It can be stated as follows: "As between two encumbrances of an interest in a trust fund that is pure personality to the person that was first issue notice to the trustee or debtor and it does not matter who was the first to notice to do so in the time." This rule will apply only if the equity is not in any other way identical.

WHOEVER SEEKS EQUITY MUST CONDUCT HIMSELF IN A MANNER THAT IS IN CONSONANCE WITH EQUITY

This principle contemplates the future actions of the person who is seeking equity. The past has seen several significant branches of Equity emerge from this. Hanbury has provided two significant instances of this principle. First, the principle was established in the case of 'Cherry v. Bonetbee'. The basis of this rule was articulated in Serjeant, J.: "Where the person who is entitled to join an account is also required to contribute to the support of the fund, he will not be permitted to participate in the fund as long as he has not satisfied his obligation in monetary contributions." The second rule in Ramsden V. Dyson is on 'equitable estoppel'. This is the basis of the principle of fairness of marshalling and the concept of consolidation. Therefore, this maxim is vitally important. 

ANYONE WHO ENTERS EQUITY MUST BE ABLE TO DO SO WITH CLEAN HANDS

This principle is a remark made in the decision handed down by Eyre, C. B. on Dering V. Earl of Winchelsea (1787). This rule protects a potential suitor in court with a preconceived idea of fraud in mind and who is subsequently accused of fraud from having to prove it. In the area of trust law, there are various examples of this principle. 

EQUITY LOOKS AT THE INTENTION RATHER THAN THE FORMULA.

Sir John Romilly, M. R. in Parkin v. Thorold, expressed the principle behind this maxim: "Courts of Equity have made a distinction in all cases between what is a matter of substance and the issue of form. Furthermore, when it is found that by insisting on a shape, the substance is going to be defeated, it considers it is inequitable to permit the person to insist upon this form, and overturn any substance". Keeton has stated: "The same principle was the foundation of equity's authority about mortgages, and led to the famous equitable sub-maxim Once a mortgage is will always be a mortgage. This same principle governs equity's power to grant relief from penalties and relief against forfeitures. We've seen the attitudes of equity and the Statute of Frauds before. It aids the statute in accomplishing its goal of deterring fraud. Hanbury is well-known for his comment: "The Statute's operation is like the attempt to sharpen the pencil using a revolving saw. This could produce a quick and precise point, but the pencil is more likely to be split in two. Equity has a more secure pocket knife."