the english court of chancery or equity

8/2/2019 The English Court of Chancery or Equity

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The English Court of Chancery or Equity.

The English King was in theory and fact the foundation of justice. If the justice could not be

procured in the commonlaw courts, the disappointed party might be able to get justice by

appealing directly to the King, and The King usually was not skilled in law, and he would

naturally turn to some one of his advisers who was. The advisor to whom were entrusted theseappeals for justice outside the common-law courts was the Kings, Secretary or Chancellor.

These early Chancellors were clergymen, not learned in the common-law, but in the Roman and

CANON or church law. I was quite natural, therefore, that when the King through his Chancellor

gave relief it would be done on ETHICAL GROUNDS. Gradually the business of relieving

from the inadequacies of the common-law system became so great that chancellor came to have

a separate court, which became known as the court of Chancery or Equity.

The defects in the common law.

As already stated, it was the formalism and conservatism of the common law which led to theestablishment of the court of chancery. These defects may be more particularly classified as

follows:

1. The rigidity of the common law. For example, the common law judges failed to give any

remedy against a trustee except in certain simple cases, and trusts thus became an almost

exclusively equity subject. Another example of rigidity was that the judgment of a common law

court was absolute, either for the plaintiff or for the defendant; the decree of a court of equity on

the other hand, may be conditional.

2. The negative nature of the law. The common law courts could not, or at least would not

command the parties, except in the extraordinary remedy of mandamus. The only commandgiven was that to the sheriff, either to turn over to the plaintiff some specific property hitherto in

the possession of the defendant, or to take and sell enough of the property of either party to

satisfy the money judgment of the court. The power to command the defendant is one of the

distinguishing features of a court of equity.

3. The common law can deal only with a two- sided case; equity can deal with any number of

sides, settling the rights of all the parties against each other. A good illustration is- the power of a

court' of equity in winding up a partnership determining in one suit the rights of the individual

creditors and the partnership creditors against the firm and the rights of the members of the firm

against each other. It is one of the aims of equity to prevent, where feasible, a multiplicity of

suits.

4. The exclusively contentions nature of the law. A law court will only deal with the case of an

infringed right ; it waits till the harm is done and then redresses the wrong. A court of equity

exercises a preventive jurisdiction and will enjoin the threatened injury. A good illustration of

this is an injunction given to a landlord against a tenant 's cutting down valuable trees ; the

common law court would be compelled to wait till they were cut down and give merely a money

judgment by way of redress.


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Administration of equity.

In England the court of Chancery existed as a separate court down to the Judicature Act of 1873,

when all the courts of England were consolidated into one court and each division of it was

clothed with both law and equity powers.^ In this country there are now, roughly speaking, three

ways of administering equity.^ The first method is by having a separate court of equity; this is, ofcourse, similar to the English method before 1873. This method exists in Alabama, Delaware,

Mississippi, New Jersey, Tennessee, and Vermont. By the second method of administration

equity and law are administered by the same courts, but the procedure is kept distinct. This

method is followed in Florida, Illinois, Maine, Maryland, Massachusetts, Michigan, New

Hampshire, Pennsylvania, Rhode Island, Texas, Virginia, West Virginia, and in the Federal

courts. In all other jurisdictions, following the lead of New York, codes of procedure have been

adopted, which purport to abolish the distinction between law and equity .procedure; under these

codes, however, it has been generally held that essential distinctions between legal and equitable

rights and remedies still exist.

In Personam

adj. (in purr-soh-nam) from Latin for "directed toward a particular person." In a lawsuit in which

the case is against a specific individual, that person must be served with a summons and

complaint to give the court jurisdiction to try the case, and the judgment applies to that person

and is called an "in personam judgment." In personam is distinguished from in rem, which

applies to property or "all the world" instead of a specific person. This technical distinction is

important to determine where to file a lawsuit and how to serve a defendant. In personam means

that a judgment can be enforceable against the person wherever he/she is. On the other hand, if

the lawsuit is to determine title to property (in rem) then the action must be filed where the

property exists and is only enforceable there.

Equity acts in personam, not in rem.

The jurisdiction of a common law court may be based either upon its control over property or

upon the fact that the defendant has been served with process or has voluntarily submitted

himself to the court's jurisdiction.^ The jurisdiction of an equity court is based, in the absence of

a statute, upon the second ground alone, viz., getting control of the person. Procedure in a

common law court may be either in personam, ending in a personal judgment for damages, or it

may be in rem; proceedings in rem are brought to recover the possession of property or to have a

judicial declaration of a property right. Proceedings in rem are usually brought against a specific

person or persons ; in such a case the judgment is decisive only as to such person or persons. Forexample, if A sues B in replevin for a horse and gets judgment against B, this binds B but it does

not prevent a stranger, X, from suing A in replevin for the horse and getting a judgment against

A. But proceedings in rem may be brought against all the world; outside of admiralty* these are

modern and statutory and are practically limited to the settling of title to land. In such a

proceeding any one who has a claim may come in and assert it and hence every one is bound by

the judgment. Proceedings and judgments may thus be said to be either (1) in personam, (2) in

rem, binding only


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Commanding an act within the jurisdiction which affects property outside.

If the defendant has been properly served with process or has submitted to the jurisdiction of the

equity court, it is not necessarily an objection to giving a decree that the act commanded to be

performed would affect property outside the jurisdiction. In Gardner v. Ogden^ suit was brought

in New York to avoid as fraudulent a deed to land in Illinois, and to compel the defendant toreconvey the land to the plaintiff. The court gave the decree asked for. It is to be noted that the

act of conveyance could take place in New York; it was not necessary for the defendant to

go to Illinois to do it. If the conveyance is executed in New York according to the formalities

prescribed by Illinois law as to deeds of conveyance of land, it will be recognized and given

effect to in Illinois; it will be no more an objection that the defendant acted under the compulsion

of a New York court than if he had acted under the compulsion of an Illinois court. This is so

because of the provision in the United States Constitution requiring that full faith and credit be

given to the judgments and decrees of sister states. There seems to be no insuperable objection to

an equity court of one of our states decreeing the conveyance of land in Canada or England, both

of which countries, have the same legal system as our own, but it is believed that no case of that

sort has arisen; it is not likely to arise in the future because of the large number of statutes givingequity courts jurisdiction in rem and giving their decrees operation in rem.

Maxims of Equity

Nature and value of maxims.

In addition to the jurisdiction rule already discussed that equity acts in personam, there are rules

or' principles rather, because they are not exact enough to be properly called rules whichhave been expressed in the form of maxims, or short, pithy statements. There is no general

agreement as to the number or identity of these maxims and the fact that a principle is or is not

stated in the form of a maxim is no certain clue to its importance. Some equitable principles

which have never been expressed in that form are of much greater scope and value than some of

those that are. But since it is so common to cite the maxims, it has been thought desirable to

discuss them briefly.

Maxims are of little or no value^ to the student in fact, they may be worse than useless unless he gets a fairly clear idea as to their meaning and applicability. The following sections

will, therefore, be devoted to showing what idea the maxim is meant to express and the field of

equity in which it is fairly safe to apply it


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Where there is a right there is a remedy.

If right be taken in the narrow sense of legal or juridical right, as opposed to a mere moral right

or interest, this maxim expresses only a truism. While it is true that we do have some legal rights

without remedies to enforce them such instances are exceptional. The most common illustration

is that of a right still existing after the remedy has been taken away by a statute such as the usualStatute of Frauds or Statute of Limitations; even here, however, it is only the direct remedy by

action that is taken away ; the indirect, defensive remedy still exists.

If right be taken in the broader sense of moral right or interest, the maxim represents the goal of

every system of civilized law toward which it is constantly working but which, in the nature of

things, is unattainable. It is thus a maxim of the Roman Law and also of the common law as well

as of equity; but equity put new life into it and made it the basis of its growth. The equitable

rights of the cestui que trust and of the mortgagor are among the most striking effects of equity's

expansion under the influence of this principle. With the gradual crystallization of equity,

already spoken of, the vitality of this maxim has become lower and lower, but has never beenentirely extinguished. While it seems impossible for equity now to add large fields to its

jurisdiction, it seems still to be true that if a statute creates a new right which cannot adequately

be enforced at law, equity will contrive in some way to enforce it.

Equity regards substance rather than form.

The meaning of this maxim is obvious and it is such a salutary principle that it deserves to be

applied throughout the whole field of equity. The over crystallization of equity during the past

century to which allusion has already been made has considerably lowered the present day

vitality of the maxim and we are compelled to fall back upon the past achievement of equity for

illustrations of the influence of this principle. Perhaps the most striking example is the relief

given to a mortgagor who has failed to pay his debt on the day. By the terms of the old common

law mortgage' such a default forfeited the entire interest in the property to the mortgagee; equity,

however, insisted that the substance of the transaction was that the mortgagee should be paid his

debt with interest, and hence he could not properly complain if the payment were not made

exactly on the day set for payment. Equity dealt in a similar way with all forfeitures* and

penalties. 'The whole jurisdiction of equity over trusts is frequently considered as in some degree

a product of this principle of regarding the interest of the cestui que trust as the real substantial

ownership, the corresponding legal estate of the trustee being treated as a mere form and

shadow." A more specific application in the subject of trusts is the equitable doctrine that equity

will not allow a trust to fail for want of a trustee. The doctrine of equity that a defectively

executed mortgage or contract to give a mortgage will be treated as a mortgage'' in equity is

properly referred to this and the following maxim that equity regards that has done which oughtto be done.


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Equity imputes intent to fulfill an obligation.

This maxim seems to be a specialization of the one just discussed. It is rarely quoted and its

scope and application are quite limited. Perhaps the most important field in which the principle

can be said to have had much influence is in that of constructive trusts. Through these equitable

obligations to restore specific property which the defendant unjustly detains from the plaintiff arenow recognized to exist independently of the intentions of the parties, and are therefore not really

trusts at all, yet they were at first imposed under a fiction of an implied intent. Thus if the

express trustee should convey the trust property to X who had notice of the trust, equity held that

X was bound by the trust on the ground that the court would presume that X meant to carry out

the trust; likewise, if a trustee invested trust money in property, it was presumed that he intended

to carry out his obligation as trustee and not to commit a fraud. Still a third illustration is the rule

of equity that if a trustee mingles trust money with his own private bank account, and later

checks out sums for his private use, he is presumed to have intended to draw upon his own

money and not upon the trust money. Though these rules came about by the use of the fiction of

intendments or presumptions, they are now treated as well settled rules of substantive equity.

the english court of chancery or equity

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