University of Rajshahi

Department of Law
Assignment on: law of Equity, Trust and
Specific Relief
Course title: law of Equity, Trust and
Specific Relief
Course code: 202

Submitted to: Submitted by:

Md. Taskir Hossain
KMS Tareq
Associate Professor Student Id: 1911116158

Department of Law Session: 2018-19

University of Rajshahi Department of Law

University of Rajshahi
 Assignment on the following questions:
Men`s actions are so diverse and infinite that it is impossible to make any general
law which will aptly meet with every particular and not fail in some circumstances.
The equity is to correct men`s consciences for fraud, breaches of trust, wrongs and
oppressions of what nature so ever they be, and so soften and mollify the extremity
of the law; Lord Ellesmere, Earl of Oxford Case (1615).
Critically analyze the statement assessing the significance of equity in the modern
judiciary and also the recognition of equity in Bangladeshi Laws.

Introduction
The word “equity” has been derived from the latin word “acquitas”. The word
“acquitas” means “equal”. The literal meaning of the word equity is principle,
system, justice, truth etc. Equity means to do unto all men as we would the should
do unto us. According to Snell, “equity is that part of natural justice through of such
a nature as to do admit of being judicially enforced- was omitted to be enforced by
the common law courts- an omission which was supplied by the court of chancery”.

The principles which gave effect to the rights of litigants and which were not
recognized by the common law courts were known as equity. There were two types
of court in the thirteenth century. Such as follows:-
i. Common law courts
ii. Chancery court
The incompetency of common law courts to administer justice gave rise to chancery
court. Equity, unlike the common law, was not an independent system of legal rules.
It did not stand alone. It presupposed the existence of common law, which it
supplemented and modified. The rules of equity were originally based on conscience
and principles of natural justice.
In modern times, the significance of equity is unavoidable. That`s why all the legal
system as well as Bangladesh adopted the theory of equity. Almost all the judiciary
recognized equity as a fundamental requirement for the legal rules.

Critical Discussion
There were two types of court in 13th century.
1. Local courts
2. Kings court
In the local courts, justice was administered by the feudal lords and in the kings
court, the cases were referred to the chancellor. Chancellor administered justice in
the kings court on behalf of the kings.
The common law courts or local courts which were administered by the feudal lords,
administered justice only on identical matters. In the 13th century, the available writs
covered a narrow umbrella of claims. To remove this misery, the equity court or
chancery court came into existence.

In spite of having common law courts, the equity came into existence for the
following reasons:-
1. Inadequacy of remedy
2. Incomplete and defective procedure
3. Rigidity and formalism
4. No relief in certain cases
5. Indifference to natural justice
6. Limited jurisdiction of common law
7. Lack of exhaustivity of common law
To remove all those limitations of common law, the origin of equity was inevitable.

The equity court had the jurisdiction in the following fields:-

1. Exclusive Jurisdiction: common law was inadequate to ensure justice all the
time. In this case, the relief was given by the chancery court. For example,
trust, mortgages, bankruptcy etc.
 2. Concurrent Jurisdiction: specific performance, injunction, ratification,
rescission, cancellation are the examples of such.
3. Auxiliary Jurisdiction: discovery of documents, testimony on oath, subpoena
of witness are the examples of such.

As mentioned earlier, local court administered common remedy and kings court
administered equity. A royal writ consisted of a sealed authorization to commence
proceedings in the royal courts. The office of issuing writs was given to the
chancellor who had at his disposal a number of established writs, but also had a
limited power to issue new ones. The power to invent new writs presented a real
threat to the feudal lords. Because all the people who didn`t get any remedy started
to go to the king`s court. In recognition of this problem faced by the feudal lords and
barons, the provisions of oxford 1258 disallowed the issuing of new writs without
the permission of the king`s council. Where the lord chancellor was unable to issue
a writ because of the lack of the precedent, he could demand that the defendant
appear before him and answer the charges made against him. In order to compel the
defendant to appear before the chancellor, the chancellor issued a writ, called a
subpoena, ordering the defendant to appear upon pain of forfeiting a sum of money.
If there is one word that describes how the chancellor exercise power to relieve
aggrieved parties, that word is conscience. Eventually, the chancellor and staff
formed a court called the court of chancery to deal with the overwhelming number
of petitions for equitable assistance.
Gradually, this leads to the conflicts between the common law courts and the court
of chancery. In this regard, a historic case “EARL OF OXFORD (1615)” is worth to
mention here.
FACTS:
A statute, the Ecclesiastical Leases Act 1571, provided that conveyances of estates
by the masters, fellows, or any college dean to anyone for anything other than a term
of 21 years, or three lives, ‘shall be utterly void’.
But not mindful of this, Roger Kelke, Master and the Fellows of Magdalene College,
Cambridge sold some of its land to Queen Elizabeth I. The queen then granted the
land to Benedict Spinola, a Genoese merchant. It was generally thought among those
preparing and signing these conveyancing deeds that the transfer to the Queen or
transfer from the Queen would amount to an unwritten exception, allowing for new
unimpeachable title. Spinola thought this, and so did Edward de Vere, the Earl of
Oxford, who bought the land in 1580 and built 130 houses. John Warren leased a
house through intermediaries.
Then, Barnabas Gooch, Master (1604-1624) considered that, in the light of the 1571
Act, he was able to lease the land to John Smith and allowed him into occupation as
such. Warren brought an action of ejection against Smith, but his lease expired
before it was heard by court. Warren asked the question to be decided anyway.
Judgement of Jury
The Jury held that Smith took possession unlawfully the long-term Elizabethan sale
in apparent defiance of the Act was good, and in the jury's view was as good a title
as almost any. The first instance verdict was therefore sitting tenant Warren was
entitled to eject Smith.
Kings Bench Decision
King's Bench Chief Justice Coke overturned the jury and held the earlier land
transfer was void, caught by the statute. The monarch was ‘the fountain of justice
and common right’ and could not be exempted from a statute aimed to maintain the
advancement of learning. Therefore, Gooch, acting for the College had validly
leased the property to Smith. This caught sub-tenants too. Warren could not eject
Smith under his fresh lease from the College.
However, in 1604, the alleged owner of the large parcels of land in question Edward
de Vere, 17th Earl of Oxford had died, succeeded by his son and heir Henry who
was a minor. He and another tenant, Thomas Wood, brought the case in the Court of
Chancery. Gooch and Smith refused to answer the bill and refused to appear,
asserting that it was void. The Chancery Court committed them to Fleet Prison for
contempt of court.
Chancery
Lord Ellesmere LC, issued a common injunction out of the Court of Chancery
prohibiting the enforcement of the common law order, and granting the Earl of
Oxford and his tenants quiet enjoyment of the land, in other words meaning that the
statute did not void the initial transaction of the land. It stayed all common lawsuits
against the Earl. He began his judgment by referencing the Bible, Deuteronomy
28:30, saying he "that builds a House ought to dwell in it; and he that plants a
Vineyard ought to gather the Grapes thereof." He remarked that common law judges
themselves ‘play the Chancellors Parts’ in taking the equitable construction of
statutes to be law properly speaking. The Chancery, however, was not like a Court
of Appeal. Instead, the Chancery had a unique position.
The Office of the Chancellor is to correct Men’s consciences for Frauds, Breach of
Trusts, Wrongs and oppressions, of what Nature soever they be, and to soften and
mollify the Extremity of the Law, which is called summum jus. And for the
judgment, &c., law and equity are distinct, both in their courts, their judges, and the
rules of justice; and yet they both aim at one and the same end, which is to do right;
as Justice and Mercy differ in their effects and operations, yet both join in the
manifestation of God's glory. … when a Judgment is obtained by Oppression, Wrong
and a hard Conscience, the Chancellor will frustrate and set it aside, not for any error
or Defect in the Judgment, but for the hard Conscience of the Party. In this Case
there is no Opposition to the Judgment; neither will the Truth or justice of the
Judgment be examined in this Court, not any Circumstance depending thereupon.
The Cause why there is Chancery is, for that Men[']s Actions are so diverse and
infinite, That it is impossible to make any general Law which may aptly meet with
every particular Act, and not fail in some circumstances.

For this vast significance and prestige of the equity, Bangladesh also recognized
equity through various laws.
I. The specific relief act, 1877
II. The trust act, 1882
III. The contract act, 1872
IV. The transfer of property act, 1882
V. The code of civil procedure, 1908
The specific relief act contains in a major way the following rules:
a) Rules regarding mandatory injunction in section 55
b) Rules regarding permanent injunction in section 54
c) Rules relating to specific performance in section 12 to 30
d) Rescission of contract in sections 35 to 38
In the trust act, 1882, there is the largest contribution of equity. This act holly came
out from equity.
The contract act, 1872 contains quite a large number of equitable principles in its
different sections. There are equitable doctrines, which have been imported in the
contract act. Doctrine of penalties, forfeiture, equitable relief on the ground of
misrepresentation are the examples of such.
The transfer of property act, 1882 has included many doctrines of equity originated
in the court of chancery in England. Some of them are as follows:
i. Rules relating to clog on redemption in section 60
ii. Doctrine of election in section 35
iii. Doctrine of part performance 53(A)
Conclusion
There was a reform in 19th century to eradicate conflict between common law
court and the court of equity. Before the parliament intervened, the court of
chancery was capable of granting equitable remedies. Common law could grant
only the legal remedy of damages. The inconvenience was overcomed by the
enactment of two statutory provisions.
1. The common law procedure act, 1854
2. The chancery amendment act, 1858
The common law procedure act, 1854 permitted the common law courts to grant
equitable remedies. The Chancery Amendment Act 1858, gave the Court of
Chancery power to award damages in addition to, or in substitution for, an
injunction or specific performance.

Before passing The Judicature Act, 1873 and 1875, common law courts and
chancery court exercised their jurisdiction on a separate footing. But Judicature
act repealed this system and established a supreme court of judicature. The
Supreme Court was divided into two division, namely, High Court of Justice and
Court of Appeal. High Court of Justice was divided into three divisions, namely,
Chancery Division, Kings Bench Division, Probate, Divorce and Admiralty
Division.