Q. Discuss the origin and development of equity in England.

Ans. Origin and development of Equity in England - Professor Hanbury divides the history of

Equity in England into following three periods:
(a) The Medieval period lasting until 1672;
(b) The Period of Transformation
(c) The Modern Period.

(a) The Medieval Period - In England, the history of Equity can be traced from the time of
Norman Conquest. After the Norman Conquest a royal court known as Curia Regis came into
existence. It was the group of skilled administrators. In its early time the Curia Regis was
concerned with the matters of King's own interest such as collection of revenue. But in due
course of time this Curia Regis became the court of law also in which the suits of private parties
could be decided and the Common Law of England took place of the various Customary rules. In
thirteenth century, in the reign of Edward I the so-called Common Law took a definite shape. By
the end of thirteenth century there were the following three great Courts of England :
(i) The King's Bench;
(ii) The Common Bench or the Court of Common Pleas; and
(iii) The Exchequer.

The law formulated, developed and administered by these three courts was the Common Law
based on the State Law and the customary Law. Out of these there courts, the Exchequer was not
only a Court of Law but it was also an administrative Department of the Government. Its
Secretariat Department was known as chancery. The head of chancery was called Chancellor
who was the King's Secretary for all department and kept the King's Seal and all writing work in
King's name were done under his supervision.
The common law was deficient in the following three respects: (1) Remedy was not available in
all cases for many wrongs as remained underdressed for want of proper writs. The number of
writs was very small and many claims could not be brought under any them. (2) The relief
granted by the common law courts was not always adequate. They gave relief only in damages,
for breach of a contract but did not provide for specific performance. Reliefs such as injunction,
accounting, appointment of receiver were outside the jurisdiction of the common law courts. (3)
And lastly, being a reminiscence of the feudal period the procedure in the common law courts
was defective and unsatisfactory; it was very cumbrous and formal.
In 1285, the Parliament of England made an attempt to remove the deficiency of the Common
Law through the Statute of West-minster. It was commonly known as Consimili Casu. This
Statute empowered the Chancery to invent new writs for certain cases which were similar to
those for which there were appropriate writs in vogue. But in cases where the Chancellor wanted
to issue new writs, he had to seek the consent of the King-in-Council. As this Statute gave only a
limited power and was confined to writs in Consimili Casu, the deficiencies in Common Law
could not be removed. With the result there was enhancement in the number of petitions to the
King "for the love of God and in the way of charity." These petitions were made to redress the
wrongs, for which no remedy was available. The King was regarded as the Fountain of justice.
The King discharged this judicial function by delegating them sometimes to his council and
sometimes to his chancellor. This practice continued and in due course of time it resulted in the
formation of the appellate jurisdiction of the House of Lords and the equitable jurisdiction of the
Lord Chancellor.
But even in this period the equity was not considered as a rival system to Common Law. The
Chancellor consulted frequently the judges of Common Law court not only on points of pure
Common Law but also on the principles on which he should give equitable relief.
In Sixteenth Century the rules of equity and good conscience which were administered by
Chancellor in the field of equity were developed. The equitable principles were discussed and
published in report. In Sixteenth century, equity was so popular that even other courts besides the
Chancery began to claim an equitable jurisdiction.
In Seventeenth Century the dispute between the Common Law Courts and the Chancery
regarding the issue of injunction was set at rest by King James-I. The dispute arose in the end of
Oxford's case. The complaint of the Chief Justice Coke was that the issue of injunctions by
Chancellor it should be ensured that the principle would always prevail, in case of conflict, over
the rules of Common Law. The king James-I decided that the court of Chancery could issue an
injunction restraining parties from suing in a Common Law court or from seeking enforcement
of a judgment obtained in that court.
(b) The Period of Transformation - The Seventeenth Century was the century of
transformation of Equity. Chancellor Ellesmere was succeeded by Bacon who earned the
reputation of being a most learned man of his time. He settled down the procedure of the court
which helped his successors. Lord Nottingham became the Chancellor in 1673. He was a
member of a great legal family. He is known as the father of modern equity because he saw that
the time had come for equity to be systematised. He classified its rules and laid down broad
principles which could be developed by his successors. He turned equity from matter of chance
into matter of Principle. For example, he introduced the doctrine of "Clogs" on the equity of
redemption and the modern rule against perpetuities.
This work of systematisation of equity was continued by his successors Lord Hardwick (from
1736 of 1756) and Lord Eldon (1801 to 1806 and from 1807 to 1827) are notable for this work of
systematisation of equity. They examined and formulated nearly all the rules of equity
transforming it from a haphazard collection of rules into some well developed, true and definite
system of juris prudence.
Notwithstanding the development of equity as an important part of the English Law, there were
two distinct systems of justice administered by the English Courts. The Courts of Queen's Bench,
Common Pleas and Exchequer administered the Common Law whereas the Court of Chancery
was governed by the Principles of Equity.
In 1854 the Common Law Procedure Act was passed which enabled the Common Law Courts to
grant equitable relief in certain cases. Similarly the Chancery Amendment Acts 1858 empowered
the Court of Chancery to award damages in addition to or in lieu of injunction. But this double
system of administration of justice led to the passing of the Judicature Acts of 1873 and 1875. By
these Acts the old courts of Common Law and chancery were abolished and in their place High-
court of Justice with a Court of Appeal over it were established. The High-Court of Justice was
divided into the following five divisions -
(i) The Chancery
(ii) The Queen’s Bench
(iii) The Common Pleas
(iv) The Exchequer
(v) Probate, Divorce and Admiralty.

All these five divisions of the High-Court of Justice administered both law and equity together.
The procedure of the Court was governed by the Code of Civil Procedure which was the
combination of the best features of the Common Law and Equity. It was clearly provided in the
Act that in the matter of any conflict or variance between rules of equity and rules of Common
Law with reference to the same matter, the rules of equity shall prevail.
(c) Modern Period. The modern period was inaugurated by the Property Legislation of 1925.
The property legislation of 1925 repealed the "Statute of Uses 1535" as it had clearly become
futile legislation. Its abolition therefore simplified convincing. By Law of Property Act 1925, the
only legal estates capable of subsisting are (i) an estate in fee simple absolute possession, (ii) a
term of years absolute, (iii) certain legal interests or charges. All other estates, interests and
charges are to take effect as equitable interests. The Law of Property (Amendment) Act 1926
removed trust for sale from the ambit of Settled Land Act. So settled principles of equity has
taken the shape of legislative enactment