In the field of jurisprudence, equity is the particular body of law, developed in the English Court of Chancery , with the general purpose of providing legal remedies for cases wherein the common law is inflexible and cannot fairly resolve the disputed legal matter. Conceptually, equity was part of the historical origins of the system of common law of England, yet is a field of law separate from common law, because equity has its own unique rules and principles, and was administered by courts of equity .
169-613: [REDACTED] Look up chancery in Wiktionary, the free dictionary. Chancery may refer to: Offices and administration [ edit ] Court of Chancery , the chief court of equity in England and Wales until 1873 Equity (law) , also called chancery, the body of jurisprudence originating in the Court of Chancery Courts of equity , also called chancery courts Chancery (diplomacy) ,
338-637: A royal commission to look at fusion, they refused to do so. After the Chancery Regulation Act 1862 had gone some way toward procedural reform, in February 1867, Roundell Palmer again brought the problem of having two separate court systems to Parliament's attention, and in March 1870 Lord Hatherley introduced a bill to create a single, unified High Court of Justice. The bill was a weak one, not containing any provision addressing which court would deal with
507-531: A statutory power , but can deal with situations where the law is silent, or where there is an omission in statute. Such an omission is sometimes termed a casus improvisus . In India the common law doctrine of equity had traditionally been followed even after it became independent in 1947. However, in 1963 the Specific Relief Act was passed by the Parliament of India following the recommendation of
676-417: A Parliamentary Committee. The Committee reported that fees and costs had increased significantly since the last review under Charles I , a number of expensive honorary positions had been created, and on many occasions court officers had not known what the correct fees were. At the same time, proceedings had grown to several thousand pages in length, necessitating additional expense. The Committee concluded "that
845-403: A bill for damages, on a breach of contract, it is clearly not the ordinary jurisdiction of the court". Equity (law) Equity exists in domestic law, both in civil law and in common law systems, and in international law . The tradition of equity begins in antiquity with the writings of Aristotle ( epieikeia ) and with Roman law ( aequitas ). Later, in civil law systems, equity
1014-533: A bill or petition, which had to show that the common law did not provide a remedy for the problem. The Chancery writs were in French, and later English, rather than the Latin used for common law bills. In the reign of Edward III , the court found a fixed home at Westminster Hall , where it sat almost continually until its dissolution. Before this, justice was difficult to dispose because the lord chancellor had to travel with
1183-519: A clergyman, as charity had been originally enforced by the Church and the ecclesiastical courts . Essentially, an owner of land could dispose of it by granting the right to use it and collect fees to another, not just by selling it. This was not valid at the common law courts but was in the Court of Chancery; the lord chancellor is reported as having said, in 1492, "where there is no remedy at common law there may be good remedy in conscience, as, for example, by
1352-579: A common law remedy, and judges would normally only award damages where no other remedy was appropriate. Damages were sometimes given as an ancillary remedy, such as in Browne v Dom Bridges in 1588, where the defendant had disposed of waste inside the plaintiffs woods. As well as an injunction to prevent the defendant dumping waste in the woods, damages were also awarded to pay for the harm to the woods." This convention (that damages could only be awarded as an ancillary remedy, or where no others were available) remained
1521-410: A disproportionate number of multi-state corporations) are decided; Mississippi ; and Tennessee . However, merger in some states is less than complete; some other states (such as Illinois and New Jersey ) have separate divisions for legal and equitable matters in a single court. Virginia had separate law and equity dockets (in the same court) until 2006. Besides corporate law , which developed out of
1690-420: A distinct part of the law of England and Wales . The main challenge to it has come from academic writers working within the law of unjust enrichment . Scholars such as Peter Birks and Andrew Burrows argue that in many cases the inclusion of the label "legal" or "equitable" before a substantive rule is often unnecessary. Many English universities, such as Oxford and Cambridge , continue to teach Equity as
1859-478: A feoffment upon confidence, the feoffor has no remedy by common law, and yet by conscience he has; and so, if the feoffee transfers to another who knows of this confidence, the feoffor, by means of a subpoena, will have his rights in this Court". After the reign of Edward IV , if the charitable land were to be sold (or land were to be sold to create the charity) the Court of Chancery was the only place this could be done, as ecclesiastical and probate courts did not have
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#17328375205202028-527: A husband; and where the deceased's debts had to be paid before the legacies were valid. The Chancery's jurisdiction over "lunatics" came from two sources: first, the king's prerogative to look after them, which was exercised regularly by the lord chancellor, and second, the Lands of Lunaticks Act 1324 (Ruffhead: 17 Edw. 2 . c. 10), which gave the King (and therefore the chancellor) custodianship of lunatics and their land;
2197-515: A legal remedy, the plaintiff's only option would be to petition the King. Litigants began to seek relief against unfair judgments of the common law courts by petitioning the King. Such petitions were initially processed by the King's Council, which itself was quite overworked, and the Council began to delegate the hearing of such petitions to the Lord Chancellor. This delegation is often justified by
2366-514: A list of permissible fees was published, and to cut down on paperwork, no party was required to obtain office copies of proceedings. The permissible fees list contained over 1,000 items, which Kerly describes as "an appalling example of the abuses which the unrestrained farming of the Offices of the Court, and the payment of all officials by fees had developed". Despite these small reforms, the 18th century ended with continuous and unrestrained attacks on
2535-442: A matter of course) which later became known as writs ex debito justitiae (as a matter of right). Each of these writs was associated with particular circumstances and led to a particular kind of judgment. Procedure in the common law courts became tightly focused on the form of action (the particular procedure authorized by a particular writ to enforce a particular substantive right), rather than what modern lawyers would now call
2704-550: A measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's conscience. After 1660, Chancery cases were regularly reported, several equitable doctrines developed, and equity started to evolve into
2873-456: A reduction in the "old corruption" that had long plagued the court, first through the Lord Chancellor's Pension Act 1832 ( 2 & 3 Will. 4 . c. 111) (which abolished a number of sinecure offices within the court and provided a pension and pay rise for the lord chancellor, in the hope that it would reduce the need for the chancellor to make money by selling court offices) and then through
3042-435: A request to administer an estate as soon as a flaw in the will was discovered, rather leaving it to the ecclesiastical courts, but from 1588 onwards the Court did deal with such requests, in four situations: where it was alleged that there were insufficient assets; where it was appropriate to force a legatee to give a bond to creditors (which could not be done in the ecclesiastical courts); to secure femme covert assets from
3211-624: A single body of law known as the law of unjust enrichment . After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts: the Court of King's Bench , the Court of Common Pleas , and the Exchequer . The common law developed in these royal courts, which were created by the authority of the King of England , and whose jurisdiction over disputes between
3380-522: A special system of courts". For much of its history, the English common law was principally developed and administered in the central royal courts: the Court of King's Bench , the Court of Common Pleas , and the Exchequer . Equity was the name given to the law which was administered in the Court of Chancery . The Judicature Acts of the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not fuse
3549-520: A standalone subject. Leading practitioner texts include Snell's Equity , Lewin on Trusts , and Hayton & Underhill's Law of Trusts and Trustees . Limits on the power of equity in English law were clarified by the House of Lords in The Scaptrade case ( Scandinavian Trading Tanker Co. A.B. v Flota Petrolera Ecuatoriana [1983] 2 AC 694, 700), where the notion that the court's jurisdiction to grant relief
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#17328375205203718-499: A system of precedents like its common law cousin. Over time, equity jurisprudence would gradually become a "body of equitable law, as complex, doctrinal, and rule-haunted as the common law ever was". One indicator of equity's evolution into a coherent body of law was Lord Eldon 's response to Selden in an 1818 chancery case: "I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than
3887-439: A valid jurisdiction. The Court of Chancery could grant three possible remedies – specific performance , injunctions and damages . The remedy of specific performance is, in contractual matters, an order by the court which requires the party in breach of contract to perform his obligations. The validity of the contract as a whole was not normally considered, only whether there was adequate consideration and if expecting
4056-458: Is considered legal, and a jury is available as the fact-finder. On the other hand, if the plaintiff requests an injunction , declaratory judgment , specific performance , modification of contract, or some other non-monetary relief, the claim would usually be one in equity. Thomas Jefferson explained in 1785 that there are three main limitations on the power of a court of equity : "If the legislature means to enact an injustice, however palpable,
4225-469: Is different from Wikidata All article disambiguation pages All disambiguation pages Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the common law . The Chancery had jurisdiction over all matters of equity , including trusts , land law ,
4394-518: Is from 1280, when Edward I of England , annoyed with the number of cases coming to him which could have been dealt with by other elements of his administration, passed a statute saying that: all petitions which touch the Seal shall come first to the chancellor; and those which touch the Exchequer, to the exchequer, and those which touch the justices, or the law of the land, to the justices; and those which touch
4563-514: Is guaranteed by the Seventh Amendment in Suits at common law , cases that traditionally would have been handled by the law courts. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy
4732-447: Is in practical terms more valuable to a litigant; for example, a plaintiff whose neighbor will not return his only milk cow, which had wandered onto the neighbor's property, may want that particular cow back, not just its monetary value. However, in general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"; that is, a court will not grant an injunction unless monetary damages are an insufficient remedy for
4901-486: Is more surprising considering that their duties were normally such that could be easily performed by solicitor's clerks, and that they were usually performed by underclerks, not by the officials. In 1649, during the English Civil War, Parliament published a series of orders to reform the Court. Most were from the doctrines set out by Francis Bacon as lord chancellor, but there were some more modern reforms: counsels to
5070-431: Is normally assumed by academics, it was not just the common law courts that could grant damages under these statutes; the Exchequer of Pleas and Court of Chancery both had the right to do so. In Cardinal Beaufort's case in 1453, for example, it is stated that "I shall have a subpoena against my feoffee and recover damages for the value of the land". A statute passed during the reign of Richard II specifically gave
5239-542: Is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case." Willard v. Tayloe was for many years the leading case in contract law regarding intent and enforcement. as well as equity. In the United States, the federal courts and most state courts have merged law and equity into courts of general jurisdiction, such as county courts. However,
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5408-477: Is said. This did not extend to every case, but merely to those which had been dismissed because one party's "suggestions [are] proved untrue", and was normally awarded to pay for the innocent party's costs in responding to the party that had lied. Lord Hardwicke , however, claimed that the Chancery's jurisdiction to award damages was not derived "from any authority, but from conscience", and rather than being statutory
5577-512: The Chancery Regulation Act 1833 ( 3 & 4 Will. 4 . c. 94). (which changed the appointments system so that masters in Chancery would henceforth be appointed by the Crown , not by the lord chancellor, and that they would be paid wages. ) Through the abolition of sinecures, taking into account the wages and pension, this saved the court £21,670 a year. The government had initially intended
5746-403: The nobile officium . The nobile officium enables the Court to provide a legal remedy where statute or the common law are silent, and prevent mistakes in procedure or practice that would lead to injustice . The exercise of this power is limited by adherence to precedent , and when legislation or the common law already specify the relevant remedy. Thus, the Court cannot set aside
5915-479: The Attorney General , Sir Francis Bacon . Sir Francis, by authority of King James I , upheld the use of the equitable injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Chancery continued to be the subject of extensive criticism, the most famous of which was 17th-century jurist John Selden 's aphorism: Equity is a roguish thing: for law we have
6084-457: The Code Napoleon and the writings of Jeremy Bentham are seen by academic Duncan Kerly to have had much to do with the criticism, and the growing wealth of the country and increasing international trade meant it was crucial that there be a functioning court system for matters of equity. While the upper classes had been struggling with the Court for centuries, and regarded it as a necessary evil,
6253-754: The Code of Civil Procedure, 1908 , which applies to all civil courts in India. There is no such inherent powers with the criminal courts in India except with the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which confers wide powers on
6422-428: The Court of Appeal in Chancery . These are described by Lobban as "hasty reactions to mounting arrears" rather than the result of long-term planning. As a result of the new appointments, the court backlog was significantly reduced – the court processed 1,700 cases in 1846–49 compared to 959 in 1819–24 – but it rose again after the death of Shadwell VC and retirement of Wigram VC . Shadwell, appointed under
6591-533: The Crusades of the 12th century, when noblemen travelled abroad to fight in the Holy Land. As they would be away for years at a time it was vital that somebody could look after their land with the authority of the original owner. As a result, the idea of joint ownership of land arose. The common law courts did not recognise such trusts, and so it fell to equity and to the Court of Chancery to deal with them, as befitting
6760-574: The Employee Retirement Income Security Act specifically authorize only equitable relief, which forces American courts to analyze in lengthy detail whether the relief demanded in particular cases brought under those statutes would have been available in equity. Equity courts were widely distrusted in the northeastern United States following the American Revolution. A serious movement for merger of law and equity began in
6929-546: The House of Lords from the Chancery. Before this there had been no records of appeals to the Lords, and a committee had concluded that there was no precedent to give the Lords jurisdiction over equity matters, except when problems and cases were sent directly to Parliament (as occasionally had been the case). In 1660 the Convention Parliament claimed for itself the right of appellate jurisdiction over equity matters, and also
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7098-577: The Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under: With this codification, the nature and tenure of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to
7267-539: The New Zealand Court of Appeal . For most purposes, the U.S. federal system and most states have merged the two courts. The latter part of the twentieth century saw increased debate over the utility of treating equity as a separate body of law. These debates were labelled the "fusion wars". A particular flashpoint in this debate centred on the concept of unjust enrichment and whether areas of law traditionally regarded as equitable could be rationalised as part of
7436-432: The cause of action (the underlying substantive right to be enforced). Because the writ system was limited to enumerated writs for enumerated rights and wrongs, it sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them. Lacking
7605-694: The law of trusts , areas traditionally handled by chancery courts included wills and probate , adoptions and guardianships , and marriage and divorce . Bankruptcy was also historically considered an equitable matter; although bankruptcy in the United States is today a purely federal matter, reserved entirely to the United States Bankruptcy Courts by the enactment of the United States Bankruptcy Code in 1978, bankruptcy courts are still officially considered "courts of equity" and exercise equitable powers under Section 105 of
7774-427: The 15th century, particularly under the House of York ( r. 1461–1485 ); academics attribute this to its becoming an almost entirely judicial body. From the time of Queen Elizabeth I ( r. 1558–1603 ) onwards the Court was severely criticised for its slow pace, large backlogs, and high costs. Those problems persisted until its dissolution, despite being mitigated somewhat by reforms, particularly during
7943-425: The 15th century; Margaret Avery reports a massive increase in cases during the 1440s, while Nicholas Pronay suggests that the real expansion came during Yorkist rule (1461–85), when the number of cases submitted each year quadrupled. He gives complaints about the perversion of justice in the common law courts, along with growing mercantile and commercial interests, as the main reason for the growth, arguing that this
8112-409: The 16th century the Court was vastly overworked; Francis Bacon wrote of 2,000 orders being made a year, while Sir Edward Coke estimated the backlog to be around 16,000 cases. This was partly due to the incompetence of the judges, and partially due to the procedure used; evidence was re-heard up to three times and orders were issued and then over-ruled, only to be issued again: "what was ordered one day
8281-461: The 1831 act of Parliament, could be replaced, but a principal in the Court of Chancery Act 1841 ( 5 Vict. c. 5) (under which Wigram had been appointed) meant that it provided for two life appointments to the court, not two open positions; after the retirement or death of the judges, no more could be appointed. Again, the backlog became a problem, particularly since the lord chancellor was distracted with
8450-704: The 1832 bill to go further and abolish the Six Clerks , but the Clerks successfully lobbied to prevent this. This did not save them, however; in 1842 the "nettle" of the Six Clerks Office was grasped by Thomas Pemberton , who attacked them in the House of Commons for doing effectively sinecure work for high fees that massively increased the expense involved in cases. As a result, the Court of Chancery Act 1842 ( 5 & 6 Vict. c. 103)
8619-565: The 19th century. Attempts at fusing the Chancery with the common law courts began in the 1850s, and finally succeeded with the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 , which dissolved the Chancery and created a new unified High Court of Justice , with the Chancery Division – one of three divisions of the High Court – succeeding the Court of Chancery as an equitable body. For much of its existence
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#17328375205208788-470: The Bankruptcy Code. After US courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as joinder , counterclaim , cross-claim and interpleader originated in the courts of equity. For a history of equity in England, including
8957-499: The Bar would elect two supervising Chief Clerks to advise on points of practice. A far-reaching and heavily criticised draft, this was eventually replaced by an even more thorough-going bill. The judges would be six Masters, who would sit in groups of three and be appointed by Parliament, assisted by a Chief Clerk. All justices of the peace would be allowed to submit cases to the court, with cases to be heard within 60 days. The party that lost
9126-485: The Chancery as they could to the other courts, while by the 15th century the number of private cases had increased to the point where there were many complaints in Parliament. Marsh writes that another reason for the Chancery's growing influence was the remedies available; through orders of specific performance and injunctions , the court could not only rectify previous wrongs but prevent future wrongs from occurring, while
9295-431: The Chancery became the only national equitable body in the English legal system. Scholars estimate that the Court of Chancery formally split from and became independent of the curia regis in the mid-14th century, at which time it consisted of the lord chancellor and his personal staff, the Chancery. Initially an administrative body with some judicial duties, the Chancery experienced an explosive growth in its work during
9464-408: The Chancery for much of its history, raising large amounts of money. Many of the clerks and other officials held sinecures ; the holders, in lieu of wages, charged increasingly exorbitant fees to process cases – one of the main reasons for the high cost of bringing a case to the Court of Chancery. The 19th century saw the abolition of many sinecure offices and the institution of a wage and pension for
9633-513: The Chancery the right to award damages, stating: For as much as People be compelled to come before the King's Council, or in the Chancery by Writs grounded upon untrue Suggestions; that the Chancellor for the Time being, presently after that such Suggestions be duly found and proved untrue, shall have Power to ordain and award Damages according to his Discretion, to him which is so troubled unduly, as afore
9802-522: The Chancery. In August 1653 another debate took place in Parliament, lasting two days, in which a paper titled "Observations concerning the Court of Chancery" was circulated; this concerned the costs, workings, and officers of the Court. A second paper was given out, "for the regulation or taking away of the Court of Chancery, and settling the business of Equity according to the original and primitive constitution of it; and for taking away all unnecessary fees, offices and officers and formalities now used, and for
9971-504: The Commons came from lawyers of the common law, aggrieved at the Chancery's extended jurisdiction that overlapped with that of the common law. These complaints from the Commons did not prevent the court from successfully functioning; in 1393, for example, it was considered prominent enough that the House of Lords sent two cases there to be dealt with. According to many academics, the Court of Chancery really began to expand its caseload during
10140-477: The Court of Chancery , written in 1701, listed 25 different procedures, areas and situations which contributed to the problems of high fees and slow processes. Lord Somers , following his dismissal as lord chancellor, introduced the Administration of Justice Act 1705 ( 4 & 5 Ann. c. 3) in 1706 which "became the most important act of law reform which the 18th century produced". The act significantly amended
10309-418: The Court of Chancery assumed a vital role was the enforcement of uses , a role that the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between legal and equitable interests . In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called the "use" that enabled one person (who was not required to pay tax) to hold
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#173283752052010478-504: The Court of Chancery ceased to exist. The Master of the Rolls was transferred to the new Court of Appeal , the lord chancellor retained his other judicial and political roles, and the position of vice-chancellor ceased to exist, replaced by ordinary judges. The Chancery Division remains to this day part of the High Court of Justice of England and Wales. The idea of a trust originated during
10647-464: The Court of Chancery could administer estates, due to its jurisdiction over trusts. While the main burden in the 16th century fell on the ecclesiastical courts , their powers over administrators and executors was limited, regularly necessitating the Court of Chancery's involvement. Before the Statute of Wills , many people used feoffees to dispose of their land, something that fell under the jurisdiction of
10816-465: The Court of Chancery was to be transferred to the Chancery Division; Section 25 of the act provided that, where there was conflict between the common law and equity, the latter would prevail. An appeal from each division went to the appellate level, the Court of Appeal of England and Wales . These provisions were brought into effect after amendment with the Supreme Court of Judicature Act 1875 , and
10985-414: The Court, which the political opposition maintained was simply to protect it; the membership included the lord chancellor, the master of the rolls and all senior Chancery judges. Some significant reforms were proposed; in 1829, for example, Lord Lyndhurst proposed unsuccessfully that the equity jurisdiction of the Court of Exchequer be merged with the Chancery, and that a fourth judge be appointed to hear
11154-431: The Court. Although complaints had been common since the time of Elizabeth I, the problems had become more unrestrained, at the same time as politically neutral law reformers first arose in any great number. Many critics were barristers of the common law, ignorant of the court's workings, but some, such as Sir Samuel Romilly , had trained as a Chancery advocate and were well aware of the Chancery's procedure. The success of
11323-408: The Crown and anyone else the monarch allowed to attend. Its jurisdiction was virtually unlimited, with executive, judicial and legislative functions. This large body contained lawyers, peers, and members of the church, many of whom lived far from London. It soon became apparent that it was too unwieldy to deal with the nation's day-to-day business. As a result, a smaller curia was formed to deal with
11492-477: The Jews, to the justices of the Jews . And if the affairs are so great, or if they are of grace, that the chancellor and the others cannot do it without the king, then they shall bring them with their own hands to the king to know his pleasure; so that no petitions shall come before the king, and his Council, but by the hands of his said chancellor, and the other chief ministers; so that the king and his Council may, without
11661-452: The King wherever he went. By 1345 the lord chancellor began to be seen as the leader of the Court of Chancery, rather than as a representative of the king, and writs and bills were addressed directly to him. Under Richard II it became practice to consider the Chancery separate from the curia ; academic William Carne considers this a key moment in confirming the independence of the Court of Chancery. The chancellor and his clerks often heard
11830-411: The King's conscience was right before God". This concern for the King's conscience was then extended to the conscience of the defendant in Chancery, in that the Chancellor would intervene to prevent "unconscionable" conduct on the part of the defendant, in order to protect the conscience of the King. By the 14th century, it appears that Chancery was operating as a court, affording remedies for which
11999-457: The King's subjects was based upon the King's writ. Initially, a writ was probably a vague order to do right by the plaintiff, and it was usually a writ of grace, issued at the pleasure of the King. During the 12th and 13th centuries, writ procedure gradually evolved into something much more rigid. All writs to commence actions had to be purchased by litigants from the Chancery , the head of which
12168-549: The Lord chancellor exercised the first right directly and the second in his role as head of the Court of Chancery. This jurisdiction applied to any "idiots" or "lunatics", regardless of whether or not they were British, or whether their land was within England and Wales . They were divided into two categories – idiots, "who have no glimmering of reason from their birth and are, therefore, by law, presumed never likely to attain any", and lunatics, "who have had understanding but have lost
12337-614: The NSW Supreme Court, Roddy Meagher , William Gummow and John Lehane produced Equity: Doctrines & Remedies . It remains one of the most highly regarded practitioner texts in Australia and England. The work is now in its 5th edition and edited by Dyson Heydon , former Justice of the High Court, Justice Mark Leeming of the New South Wales Court of Appeal , and Dr Peter Turner of Cambridge University . Equity remains
12506-491: The Norman conquest. Consequently, the written English that developed at the Court of Chancery eventually became a standard, both in its style of handwriting (' Chancery hand ') and in its grammar and vocabulary. By the 1440s and 1450s comparative regularisation of spelling had begun to emerge. The early Elizabethan period featured a dispute between the Court of Chancery and common-law courts over who held pre-eminence. It had been
12675-635: The Orders of Knighthood , British office that deals with administration of Orders of Chivalry Court of Chancery (disambiguation) , several uses Topics referred to by the same term [REDACTED] This disambiguation page lists articles associated with the title Chancery . If an internal link led you here, you may wish to change the link to point directly to the intended article. Retrieved from " https://en.wikipedia.org/w/index.php?title=Chancery&oldid=1229896469 " Category : Disambiguation pages Hidden categories: Short description
12844-677: The Roman Curia Writing and printing [ edit ] Chancery Standard , of Late Middle English writing Chancery hand , either of two distinct styles of historical handwriting ITC Zapf Chancery , a family of typefaces Other uses [ edit ] Chancery, Ceredigion , a village in Wales the name of several professional wrestling holds See also [ edit ] All pages with titles beginning with Chancery All pages with titles containing Chancery Chancellery (disambiguation) Central Chancery of
13013-503: The Supreme Court to pass orders "as is necessary for doing complete justice in any cause of matter pending before it". In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often, this form of relief
13182-456: The actual bodies of law however. As an example, this lack of fusion meant it was still not possible to receive an equitable remedy for a purely common law wrong. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy". Jurisdictions which have inherited the common law system differ in their treatment of equity. Over the course of the twentieth century some common law systems began to place less emphasis on
13351-413: The additional cases. A year later, when the common law courts were each gaining a judge, he repeated his proposal, but the bill was strongly opposed by judges who maintained that the court backlog did not justify the additional expense of a fourth judge. Eventually, two more vice-chancellors were appointed in 1841, and a decade later two lord justices were tasked with hearing appeals from the Court through
13520-458: The aequitas and the judicial powers of the Roman magistrates." By the 15th century, the judicial power of Chancery was clearly recognised. Early Chancery pleadings vaguely invoked some sort of higher justice, such as with the formula "for the love of God and in way of charity ". During the 15th century, Chancery pleadings began to expressly invoke "conscience", to the point that English lawyers in
13689-402: The appellate cases through the Court of Appeal in Chancery and the House of Lords , leaving a maximum of three Chancery judges who were available to hear cases. Further structural reforms were proposed; Richard Bethell suggested three more vice-chancellors and "an Appellate Tribunal in Chancery formed of two of the vice chancellors taken in rotation", but this came to nothing. The 1830s saw
13858-486: The appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. There is a difference of opinion in Commonwealth countries as to whether equity and common law have been fused or are merely administered by the same court, with the orthodox view that they have not (expressed as rejecting the "fusion fallacy") prevailing in Australia, while support for fusion has been expressed by
14027-423: The backlog decreased; in the 1860s an average of 3,207 cases were submitted each year, while the Court heard and dismissed 3,833, many of them from the previous backlog. Much of this work was carried out by the growing number of clerks, however, and members of the legal profession became concerned about the "famine" of equity judges. Despite these reforms, it was still possible for Charles Dickens, writing in 1853 in
14196-403: The beginning of Chancery's transformation from a court of conscience to a court of equity. Before that point in time, the word "equity" was used in the common law to refer to a principle of statutory interpretation derived from aequitas : the idea that written laws ought to be interpreted " according to the intention rather than the letter" of the law. What was new was the application of
14365-453: The case of Courtney v. Glanvil , dictating that Glanvil should be imprisoned for deceit; this was over-ruled by Sir Edward Coke in the Court of King's Bench , who demanded that Glanvil be released and issued a writ of habeas corpus . Two years later, the Earl of Oxford's Case came before Ellesmere, who issued a judgment that directly contradicted English law based on the "Law of God". Coke and
14534-619: The case was to pay full fees to the other side; the fees would be set ludicrously low. This bill was never put into effect, as Parliament was dissolved. Oliver Cromwell did appoint a Commission to institute similar provisions in 1654, but the Commission refused to perform its duties. After the English Restoration , those judges and officials sacked under Cromwell were reinstated, with little modern progression; as Kerly puts it, "unjust judges presided again, and rank maladministration invaded
14703-411: The cases directly, rather than having them referred to the council itself; occasionally a committee of lay and church members disposed of them, assisted by the judges of the common law courts. John Baker argues that it was the late 14th century that saw Chancery procedure become fixed, citing the work done by John Waltham as master of the rolls between 1381 and 1386, and notes that this period also saw
14872-461: The cause until the 18th and early 19th centuries, when the attitude of the Court towards awarding damages became more liberal; in Lannoy v Werry , for example, it was held that where there was sufficient evidence of harm, the Court could award damages in addition to specific performance and other remedies. This changed with Todd v Gee in 1810, where Lord Eldon held that "except in very special cases, it
15041-399: The chancellorship of Thomas Wolsey (1515–1529), who "had no legal training, and delighted in putting down lawyers". In 1546, Chancellor Thomas Wriothesley , a nonlawyer, was accused of trying to inject the civil law into Chancery. This was a "wild exaggeration", but as a result, the Crown began to transition away from clergy and nonlawyers and instead appointed only lawyers trained in
15210-400: The common law and which with equity, and was also silent on the structure of the court, as Hatherley believed the difference between the common law and equity was one of procedure, not substance. As a result, the bill was heavily opposed from two sides: those who opposed fusion, and those who supported fusion but felt the provisions were too weak and vague to be of any use. As a result, the bill
15379-401: The common law courts regularly appointed guardians, the Chancery had the right to remove them, replace them or create them in the first place. Similarly, while there were actions against guardians which the child could undertake in the common law courts, these were regularly undertaken in the Court of Chancery. This jurisdiction was first regularly recognised from 1696 onwards, and its main focus
15548-478: The common law courts were limited to awarding damages . Chancery English, used in official documents, can be seen as the beginnings of Standard English – a national standard of spelling and grammar. By the 15th century, the City of Westminster had been the seat of government administration for about three centuries. After about 1430, the use of English in administrative documents replaced French which had been used since
15717-418: The common law courts, which were mainly concerned with the remedy and retribution of problems. This was further enforced by the Statute of Frauds , which confirmed Chancery principles across the board, allowing people to receive the same treatment in the common law courts as they did in the Chancery. A major reform to the Court happened soon after the restoration, with the introduction of a right of appeal to
15886-405: The common law tradition to the position of Lord Chancellor (although there were six more nonlawyer chancellors in the decades after Wriothesley). The last person without training in the common law before 2016 to serve as Lord Chancellor was Anthony Ashley Cooper, 1st Earl of Shaftesbury , who served briefly from 1672 to 1673. ( Liz Truss was appointed as Lord Chancellor in 2016, but this was after
16055-445: The common principle that the Chancery's jurisdiction was for matters where the common law courts could neither enforce a right nor administer it. The use of trusts and uses became common during the 16th century, although the Statute of Uses "[dealt] a severe blow to these forms of conveyancing" and made the law in this area far more complex. The court's sole jurisdiction over trusts lasted until its dissolution. From its foundation,
16224-409: The common-law courts were limited to granting damages , and the Chancery was limited to granting specific performance or injunctions . The County Courts (Equity Jurisdiction) Act 1865 gave the county courts the authority to use equitable remedies, although it was rarely used. The lord chancellors during this period were more cautious, and despite a request by the lawyers' associations to establish
16393-404: The continuing vitality of traditional equitable doctrines. In 2009 the High Court affirmed the importance of equity and dismissed the suggestion that unjust enrichment has explanatory power in relation to traditional equitable doctrines such as subrogation . The state of New South Wales is particularly well known for the strength of its Equity jurisprudence. However, it was only in 1972 with
16562-512: The court of Chancery is not the body with whom a correcting power is lodged. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule." The US Supreme Court, however, has concluded that courts have wide discretion to fashion relief in cases of equity. The first major statement of this power came in Willard v. Tayloe , 75 U.S. 557 (1869). The Court concluded that "relief
16731-408: The court was formally led by the lord chancellor, assisted by the judges of the common-law courts. The staff of the court included a large number of clerks, led by the master of the rolls , who regularly heard cases on his own. In 1813 a vice-chancellor was appointed to deal with the Chancery's increasing backlogs, and two more vice-chancellors were appointed in 1841. Lord chancellors sold offices of
16900-401: The decline of the Exchequer, dealing with the law of equity , something more fluid and adaptable than the common law . The early Court of Chancery dealt with verbal contracts, matters of land law and matters of trusts, and had a very liberal view when setting aside complaints; poverty, for example, was an acceptable reason to cancel a contract or obligation. Complaints were normally brought via
17069-441: The defendants could deliver pleas, rather than defendants in person, thus saving the cost of a Commissioner of Oaths, and cases were to be heard in the order they were accepted by the court. Parliament also fixed the fees that officers could charge, in an attempt to reduce the expense of a case. The following year, Parliament appointed a commission to look at court reform; this made many recommendations, but none that directly affected
17238-519: The enforcement of a common law court order. The penalty for disobeying an equitable injunction and enforcing an unconscionable common law judgment was imprisonment. The 1615 conflict between common law and equity came about because of a "clash of strong personalities" between Lord Chancellor Ellesmere and the Chief Justice of the King's Bench , Sir Edward Coke . Chief Justice Coke began the practice of issuing writs of habeas corpus that required
17407-428: The estates of lunatics and the guardianship of infants. Its initial role differed somewhat: as an extension of the lord chancellor 's role as Keeper of the King's Conscience , the court was an administrative body primarily concerned with conscientious law . Thus the Court of Chancery had a far greater remit than the common-law courts (whose decisions it had the jurisdiction to overrule for much of its existence) and
17576-451: The existing law and court procedure, and while most of it was aimed at the common-law courts, it did affect the Chancery. For equity, the act provided that a party trying to have his case dismissed could not do so until he had paid the full costs, rather than the nominal costs that were previously required; at the same time, the reforms the act made to common-law procedure (such as allowing claims to be brought against executors of wills) reduced
17745-429: The extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of
17914-471: The fact that the Lord Chancellor was literally the Keeper of the King's Conscience , although Francis Palgrave argued that the delegation was initially driven by practical concerns and the moral justification came later. The moral justification went as follows: as Keeper of the King's Conscience, the Chancellor "would act in particular cases to admit 'merciful exceptions' to the King's general laws to ensure that
18083-518: The fees charged by the court and the amount of time they could take on a case. An effect of the Civil War and resulting Commonwealth of England , particularly the "liberal" values and feelings it stirred up, was the continuous modernisation and improvement of the common law courts, something that reduced the interference of the lord chancellor in common law matters, except in areas where they had wildly divergent principles and law. Under Charles II , for
18252-463: The first complaints about the Chancery. The Chancery and its growing powers soon came to be resented by Parliament and the nobility; Carne says that it is possible to trace a general "trend of opposition" during the Plantagenet period, particularly from members of the clergy, who were more used to Roman law than equity. From the reign of Richard II, the House of Commons regularly complained about
18421-403: The first time, there was a type of common law appeal where the nature of the evidence in the initial trial was taken into account, which reduced the need to go to the Court of Chancery. As a result, the nature of the Court of Chancery changed; rather than being a major corrective system for the common law, it became primarily concerned with the administration and protection of rights, as opposed to
18590-465: The growing middle and merchant classes were more demanding. With increasing court backlogs, it was clear to many law reformers and politicians that serious reform was needed. The first major reforms were the appointment of a vice-chancellor in 1813 to hear cases, and the extension of the Master of the Rolls' jurisdiction in 1833 to hear any and all cases. In 1824 a Chancery Commission was appointed to oversee
18759-425: The guardianship of children is said to have come from the king's prerogative of parens patriae . The Chancery had administered this area of law from an early period, since it primarily concerned the holding of land – a form of trust. Since these were mainly dealt with orally there are few early records; the first reference comes from 1582, when a curator was appointed to deal with the property of an infant. While
18928-461: The historical or institutional origin of substantive legal rules. In England and Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern equity includes, among other things: Black's Law Dictionary , 10th ed., definition 4, differentiates "common law" (or just "law") from " equity ". Before 1873, England had two complementary court systems: courts of "law" which could only award money damages and recognized only
19097-466: The idea of trusts , he decided to fuse the courts and the procedure. The final draft provided that all of the existing superior courts would be fused into one court consisting of two levels; one of first instance, one appellate. The court of first instance, to be known as the High Court of Justice, would be subdivided into several divisions based on the old superior courts, one of which, the Chancery Division, would deal with equity cases. All jurisdiction of
19266-470: The injury in question. Law courts can also enter certain types of immediately enforceable orders, called " writs " (such as a writ of habeas corpus ), but they are less flexible and less easily obtained than an injunction . Another distinction is the unavailability of a jury in equity: the judge is the trier of fact . In the American legal system, the right of jury trial in civil cases tried in federal court
19435-481: The interest which a great number of officers and clerks have in the proceedings of the Court of Chancery, has been a principal cause of extending bills, answers, pleadings, examinations and other forms and copies of them, to an unnecessary length, to the great delay of justice and the oppression of the subject". They recommended that a list of permissible fees be published and circulated to the court officials. The recommendations were not immediately acted on, but in 1743
19604-624: The introduction of reform to the Supreme Court Act 1970 (NSW) that empowered both the Equity and Common Law Division of the Supreme Court of NSW to grant relief in either equity or common law. In 1972 NSW also adopted one of the essential sections of the Judicature reforms, which emphasised that where there was a conflict between the common law and equity, equity would always prevail. Nevertheless, in 1975 three alumni of Sydney Law School and judges of
19773-482: The jurisdiction of the Court over charity matters came from its jurisdiction over trusts, as well as from the Charitable Uses Act 1601 . Carne suggests that, as the Court had long been able to deal with such situations, the 1601 act was actually just the declaration of pre-existing custom. This is illustrated by the chancellor's original jurisdiction over feoffments to uses , which came from his original status as
19942-417: The land the legal owner and therefore liable for feudal dues. The response of the lawyers to this Statute was to create the "use upon a use". The Statute recognized only the first use, and so land owners were again able to separate the legal and beneficial interests in their land. Equity remains a cornerstone of Australian private law. A string of cases in the 1980s saw the High Court of Australia re-affirm
20111-401: The late 15th century thought of Chancery as a court of "conscience", not a court of "equity". However, the "reasoning of the medieval chancellors has not been preserved" as to what they actually meant by the word "conscience", and modern scholars can only indirectly guess at what the word probably meant. The publication of the treatise The Doctor and Student in the early 16th century marked
20280-475: The legal owner of property, and courts of "equity" ( courts of chancery ) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey,
20449-418: The legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity. Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of
20618-431: The load of other business, attend to the great business of his realm, and of other foreign countries. Records show dozens of early cases being sent to the lord chancellor and master of the rolls , but at the time the chancellor had no specific jurisdiction to deal with them; the cases were referred to him only as a matter of convenience. Under Edward II the chancellor dedicated set days to hearing pleas, as documented in
20787-435: The lord chancellor anyway. In addition, in relation to the discovery and accounting of assets, the process used by the Court of Chancery was far superior to the ecclesiastical one; as a result, the Court of Chancery was regularly used by beneficiaries. The common law courts also had jurisdiction over some estates matters, but their remedies for problems were far more limited. Initially, the Court of Chancery would not entertain
20956-471: The lord chancellor to curb the sale of offices; and later the right to appoint officials was transferred from the chancellor to the Crown . The Court of Chancery originated, as did the other high courts before 1875, in the Norman curia regis or King's Council, maintained by most early rulers of England after 1066. Under the feudal system , the council was made up of the monarch, the Great Officers of
21125-409: The monarch) allowed a claim to proceed despite the lord chancellor's implied jurisdiction. At the same time, the common-law judges ruled that the Chancery had no jurisdiction over matters of freehold . The lord chancellor of the time, Lord Ellesmere , was not dissuaded, and maintained that he had the jurisdiction to oversee decisions of the common-law courts and matters of freehold. In 1614, he heard
21294-408: The need for parties to go to equity for a remedy. Legal historian Wilfrid Prest writes that despite these legislative enactments, the tally of which "begins to look quite impressive", the old problems continued, albeit less frequently; one barrister of the time claimed that going to the Court with a case worth anything less than £500 was a waste of time. Under Lord Hardwicke , Chancery procedure
21463-479: The need to pay them fees and made it illegal for them to receive gratuities; it also removed more sinecure positions. The Master in Chancery Abolition Act 1852 ( 15 & 16 Vict. c. 80) abolished the masters in Chancery, allowing all cases to be heard directly by judges instead of bounced back-and-forth between judges and masters. As a result of these reforms the court became far more efficient, and
21632-587: The offices". The situation was much improved, nonetheless, because many of the faults were down to the machinery of the court rather than the spirit, which Lord Clarendon soon rectified. Upon appointment as lord chancellor he immediately published a new issue of the Orders for the Regulation of the Practice of the Court of Chancery. This was based on the code set by the Cromwellian Commissioners, and limited
21801-549: The other judges over-ruled this judgment while Ellesmere was ill, taking the case as an opportunity to completely overthrow the lord chancellor's jurisdiction. Ellesmere appealed to the Monarch, who referred the matter to the attorney general for the prince of Wales and Francis Bacon , the Attorney General for England and Wales . Both recommended a judgment in Ellesmere's favour, which the Monarch made, saying: as mercy and justice be
21970-585: The other party to a case. It is commonly believed that the Court of Chancery could not grant damages until the Chancery Amendment Act 1858 ( 21 & 22 Vict. c. 27), which gave it that right, but in some special cases it had been able to provide damages for over 600 years. The idea of damages was first conceived in English law during the 13th century, when the Statutes of Merton and Gloucester provided for damages in certain circumstances. Despite what
22139-505: The party that breached the contract to carry out his obligations was viable. Injunctions, on the other hand, are remedies which prevent a party from doing something (unlike specific performance, which requires them to do something). Until the Common Law Procedure Act 1854 , the Court of Chancery was the only body qualified to grant injunctions and specific performance. Damages is money claimed in compensation for some failure by
22308-594: The position had been stripped of its judicial powers by the Constitutional Reform Act 2005 , leaving the Chancellor of the High Court as the highest judge sitting in equity in England and Wales.) The development of a court of equity as a remedy for the rigid procedure of the common law courts meant it was inevitable that the two systems would come into conflict. Litigants would go " jurisdiction shopping " and often would seek an equitable injunction prohibiting
22477-670: The practice of our Court of Chancery. Coke's challenge to the Chancery is seen by academic Duncan Kerly as helping him lose his position as a judge, and until its dissolution the Court of Chancery could overrule judgments issued in the common-law courts. This was not the end of the dispute, however; in his Institutes of the Lawes of England , Coke suggested that the Monarch's decree was unlawful, and his contemporary David Jenkins wrote in Eight Centuries of Reports that "the excess of Jurisdiction in Chancery, in examining Judgments at Common Law"
22646-408: The practice under Henry VI that plaintiffs in the common-law courts could not execute judgments given by the common-law judges if the lord chancellor felt their claim was "against conscience". This had been vehemently opposed by the common-law judges, who felt that if the lord chancellor had the power to override their decisions, parties to a case would flock to the Court of Chancery. The dispute over
22815-434: The pre-eminence of the lord chancellor continued into Elizabeth I 's reign, with the judges increasing in strength; the lord chancellor was no longer a clergyman whom it was risky to offend, while the judges had grown in stature. Sir Edward Coke cites in his Reports a case at the end of Elizabeth I's reign which seems to indicate that the chancellor's prerogative had been overturned, when the judges (without opposition from
22984-404: The preface to his novel Bleak House , to bemoan the inefficiencies of the Court of Chancery. His novel revolves around a fictional long-running Chancery case, Jarndyce and Jarndyce . He observed that at the time he was writing there was a case before the Chancery court "which was commenced nearly twenty years ago ... and which is (I am assured) no nearer to its termination now than when it
23153-461: The principal office that houses a diplomatic mission or an embassy Chancery (medieval office) , responsible for the production of official documents Chancery (Scotland) , the keeper of the Quarter Seal, a senior position in the legal system of Scotland Diocesan chancery , administration branch in the official government of a Catholic or Anglican diocese Apostolic Chancery , an office of
23322-462: The recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot." Equity's primacy over common law in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system. One area in which
23491-451: The records of the Parliament of Lincoln in 1315, which also show that some cases were heard by his personal staff, the Chancery, and not by the chancellor. By 1320 requests were regularly sent there, and heard by the judges of the common law courts, with the rules used to settle cases being those of "law or reason", sometimes simply "reason", a far more liberal and adjustable approach than the common law. The Chancery came to prominence after
23660-429: The regular business of the country, and this soon split into various courts: first the exchequer of pleas , to deal with finance, and then the Court of Common Pleas , to deal with "common" cases. The Chancery started as the personal staff of the lord chancellor, described as "a great secretarial bureau, a home office, a foreign office, and a ministry of justice". The earliest reference to legal issues being sent to him
23829-452: The release of people imprisoned for contempt of chancery orders. This tension reached a climax in the Earl of Oxford's case (1615) where a judgment of Chief Justice Coke was allegedly obtained by fraud. Chancellor Ellesmere issued an injunction from the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to
23998-478: The requests, and made no decision. The Commons did succeed in making some changes to the court's procedure, however; in 1394 the King assented to their request that victorious defendants in the court have their costs recompensed from the other side, and in 1341 the king, on their application, allowed the lord chancellor to send cases directly to the common law courts, to avoid the common law judges having to waste time travelling. Kerly suggests that many complaints from
24167-488: The right of original jurisdiction to hear equity cases at first instance . After disputes which lasted into the next Parliament, this second measure was dropped, but the right to hear equity appeals was confirmed. Horowitz writes that despite these changes, one of the academic certainties is that the problems which had dogged the court for the last two centuries persisted; Observations on the Dilatory and Expensive Proceedings in
24336-418: The speedy dispatch of business". Parliament eventually proposed dissolving the court as it then stood and replacing it with "some of the most able and honest men", who would be tasked with hearing equity cases. Rather than the mass of clerks on the staff, a sufficient number of "godly, able, honest and experienced clerks, which be working attorneys and clerks and not overseeing officers" would be appointed, and
24505-563: The states in the mid-19th century, when David Dudley Field II convinced New York State to adopt what became known as the Field Code of 1848. The federal courts did not abandon the old law/equity separation until the promulgation of the Federal Rules of Civil Procedure in 1938. Three states still have separate courts for law and equity: Delaware , whose Court of Chancery is where most cases involving Delaware corporations (which includes
24674-507: The strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors often had theological and clerical training and were well versed in Roman law and canon law . During this era, the Roman concept of aequitas influenced the development of the distinctly different but related English concept of equity: "The equity administered by the early English chancellors ... [was] confessedly borrowed from
24843-457: The substantive distinction between law and equity has retained its old vitality. This difference is not a mere technicality, because the successful handling of certain law cases is difficult or impossible unless a temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for instance. Furthermore, certain statutes like
25012-436: The true supports of our Royal Throne; and it properly belongeth to our princely office to take care and provide that our subjects have equal and indifferent justice ministered to them; and that when their case deserveth to be relieved in course of equity by suit in our Court of Chancery, they should not be abandoned and exposed to perish under the rigor and extremity of our laws, we ... do approve, ratifie and confirm, as well
25181-461: The use of it". Lunatics and idiots were administered separately by the lord chancellor under his two prerogatives; the appeal under the king's prerogative went directly to the king, and under the Lands of Lunaticks Act 1324 to the House of Lords . Idiots and lunatics had their land looked after by a court-appointed administrator, and any profits went into a trust fund to support the insane person. Due to
25350-537: The vested interest of the king (who would hold the lands) the actual lunacy or idiocy was determined by a jury, not by an individual judge. Under the Lunacy Act 1845 the lord chancellor had a right to appoint a commission to investigate the insanity of an individual; as part of his role as Keeper of the king's conscience, however, he would only do this when it was beneficial to the lunatic, not simply because somebody had been found insane. The law courts' jurisdiction over
25519-412: The word "equity" to "the extraordinary form of justice administered by the chancellor", as a convenient way to distinguish Chancery jurisprudence from the common law. A common criticism of Chancery practice as it developed in the early medieval period was that it lacked fixed rules, varied greatly from Chancellor to Chancellor, and the Chancellor was exercising an unbounded discretion. The counterargument
25688-409: The work of the court, and in 1390 it petitioned the king to pronounce that the court could not act contrary to the common law, nor annul a judgment without due process. At the same time, it asked that no writ could be issued that would compel a man to appear before the court; if it was, the clerk who issued it would lose his job and the lord chancellor would be fined £100. The king gave evasive answers to
25857-409: Was "almost unanimity" of opinion that the existence of two separate systems was "the parent of most of the defects in the administration of our law". Much of the impetus for fusion came from pressure groups and lawyers' associations. They partially succeeded with the Common Law Procedure Act 1854 and Chancery Amendment Act 1858 , which gave both courts access to the full range of remedies. Until then,
26026-466: Was "unlimited and unfettered" (per Lord Simon of Glaisdale in Shiloh Spinners Ltd v. Harding [1973] A.C. 691, 726) was rejected as a "beguiling heresy". The courts of Scotland have never recognised a division between the normal common law and equity, and as such the Court of Session (the supreme civil court of Scotland ) has exercised an equitable and inherent jurisdiction and called
26195-515: Was begun". He concluded that "If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages, to the shame of a parsimonious public". The idea of fusing the common-law and equity courts first came to prominence in the 1850s; although the Law Times dismissed it as "suicide" in 1852, the idea gained mainstream credibility, and by the end of the year the Times was writing that there
26364-484: Was contradicted the next, so as in some cases there had been five hundred orders and faire more as some affirmed". The Court spent a long time on each case, which, combined with the backlog, made the pursuit of a case extremely expensive. This was exacerbated by the appointment to the Court of useless, highly paid officials by the lord chancellor or master of the rolls, many of whom were their friends. The chancellor and master both openly sold these roles, whose exorbitant pay
26533-423: Was eventually withdrawn. In 1873, the idea was resurrected – again by Palmer, who was now Lord Selborne and the new lord chancellor – as the Supreme Court of Judicature bill . While still cautious, Selborne's bill was far more structured than Hatherley's, and contained more detail on what was to be done. Rather than fusing the common law and equity, which he saw as impracticable since it would destroy
26702-406: Was far more flexible. Until the 19th century, the Court of Chancery could apply a far wider range of remedies than common law courts, such as specific performance and injunctions , and had some power to grant damages in special circumstances. With the shift of the Exchequer of Pleas towards a common law court and loss of its equitable jurisdiction by the Administration of Justice Act 1841 ,
26871-403: Was further reformed with a pair of orders published in 1741 and 1747, which mandated that a claimant who brought his case to court and had it dismissed immediately should pay full costs to the other side, rather than the 40 shillings previously paid, and that parties filing bills of review should pay £50 for the privilege. At the same time, a review of the Court's costs and fees was undertaken by
27040-403: Was instead due to the lord chancellor's inherent authority. As a result, General Orders were regularly issued awarding the innocent party additional costs, such as the cost of a solicitor on top of the costs of responding to the other party's false statements. The Court became more cautious about awarding damages during the 16th and 17th centuries; lord chancellors and legal writers considered it
27209-592: Was integrated in the legal rules, while in common law systems it became an independent body of law. In jurisdictions following the English common law system , equity is the body of law which was developed in the English Court of Chancery and which is now administered concurrently with the common law . In common law jurisdictions, the word "equity" "is not a synonym for 'general fairness' or 'natural justice ' ", but refers to "a particular body of rules that originated in
27378-495: Was not just limited to Bacon, and that "after the dramatic confrontations between Lord Chief Justice Coke and Lord Chancellor Ellesmere, chancellors took care to circumscribe the Court's corrective jurisdiction and to focus more narrowly on territories they had staked out as peculiarly their own". By the time of the English Civil War , the Court of Chancery was being criticised extensively for its procedure and practice. During
27547-417: Was not the course of proceeding in Equity to file a Bill for specific performance of an agreement; praying in the alternative, if it cannot be performed, an issue, or an inquiry before the Master, with a view to damages. The plaintiff must take that remedy, if he chooses it, at Law." This was followed by Hatch v Cobb , in which Chancellor Kent held that "though equity, in very special cases, may possibly sustain
27716-511: Was one of the largest abuses of the law. In the late 17th century Robert Atkyns attempted to renew this controversy in his book An Enquiry into the Jurisdiction of the Chancery in Causes of Equity , but without any tangible result. Even so, future lord chancellors were more cautious; when Francis Bacon succeeded Ellesmere, he made sure to prevent the misuse of injunctions. Horowitz writes that this
27885-629: Was passed in the same year that abolished the office of the Six Clerks completely. Some further procedural reforms were undertaken in the 1850s. In 1850, a new set of Chancery orders were produced by the lord chancellor, allowing masters to speed up cases in whatever way they chose and allowing plaintiffs to file a claim, rather than the more expensive and long-winded bill of complaint. The Suitors in Chancery Relief Act 1852 ( 15 & 16 Vict. c. 87) gave all court officials salaries, abolished
28054-542: Was that equity mitigated the rigour of the common law by looking to substance rather than to form. The early chancellors were influenced by their training in theology and canon law, but the law of equity they applied was not canon law, but a new kind of law purportedly driven by conscience. Whatever it meant in the medieval era, the word "conscience" clearly carried a subjective connotation (as it still does today). Complaints about equity as an arbitrary exercise of conscience by nonlawyer Chancellors became quite frequent under
28223-530: Was the Lord Chancellor . After writs began to become more specific and creative (in terms of the relief sought), Parliament responded in 1258 by providing in the Provisions of Oxford that the Chancellor could no longer create new writs without permission from the King and the King's Council (the curia regis ). Pursuant to this authorization, litigants could purchase certain enumerated writs de cursu (as
28392-402: Was the period when the Chancery changed from being an administrative body with some judicial functions to "one of the four central courts of the realm ... the growth in the number of [cases] is a primary indicator of the changing position of Chancery". This increasing role was assisted by the changing function of the court: until the late 14th century, private parties could not bring cases to
28561-475: Was the welfare of the child. As such, wards of the court had certain principles: their estates had to be administered under the supervision of the Court, they had to be educated under the same supervision, and any marriage had to be sanctioned by the Court. The lord chancellor had, since the 15th century, been tasked with administering estates where the estate was to be used for charitable purposes. In Bailiff of Burford v Lenthall , Lord Hardwicke suggested that
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