English Legal History
4/13/2009
Outline

 

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE ORIGINS AND DEVELOPMENT OF EQUITY

 

1.

Central royal courts at the end of the 13th century:

K.B.(coram rege)

Common Pleas (bancum commune)

Exchequer of Pleas (placita in scacario)

The High Court of Parliament

2.

Memoranda de Parliamento of 1305 (Mats. p. V–40):

“To our lord the king, Adam Kereseye and Joan his wife show that when they impleaded Sir John de Ferrers and Avis his wife of a certain piece of land before the justices of CB on the ground that the land is Joan’s inheritance from her cousin who died seised of it, John and Avis pleaded that the king gave the land to a man whose heir Avis is, and they showed a charter of our lord the king about it and said that they could not reply without him, for which reason the justices dismissed the case. Wherefore Adam and Joan pray the lord our king, if it pleases him, that the justices proceed in the plea according to the law and usage of the realm notwithstanding the aforesaid charter such that their right not be further delayed nor the said Joan disinherited.”

3.

Structure of the medieval Chancery

 

a.

Twelve clerici ad robas. Chief is the Master of the Rolls.

 

b.

Twelve bougiers (crown grants clerks and petty bag on the Latin [IPM] side)

 

c.

Twenty-four cursitors

 

d.

6 clerks to help the MR with the equity business (10 clerks for each)

4.

Meanings of the word “equity”

 

a.

Latin aequitas < aequus, flat, plain, like or similar, equal

 

 

i.

reasonable, similar in ordinary language, in legal writing:

 

 

ii.

like cases to be judged alike—rule of law

 

 

iii.

body of principle that lay beyond the law—natural equity

 

 

iv.

a principle of interpretation = epieíkeia

 

b.

Medieval meanings

 

 

i.

Natural equity = Christian morality

 

 

ii.

All three Classical technical usages

 

 

iii.

Equity of the statute

 5.

 The Chancery c.1700:

 

a.

Substantive jurisdiction:

 

 

 

i.

trusts

 

 

 

ii.

equitable interests in land (family settlements)

 

 

 

iii.

mortgages, the equity of redemption, equitable mortgages, liens

 

 

 

iv.

infants, guardianship

 

 

 

v.

supervision of accounts and administration of decedents’ estates

 

 

 

vi.

equitable relief (rescission, reformation) for fraud, mistake, accident, undue influence

 

 

b.

Equitable remedies

 

 

 

i.

injunction/specific performance

 

 

 

ii.

quia timet —> quiet title —> declaratory judgment

 

 

 

iii.

rescission, restitution and reformation

 

 

 

iv.

accounting

 

 

 

v.

receivership

 

 

c.

Equitable defenses

 

 

 

i.

set-off

 

 

 

ii.

release and waiver

 

 

 

iii.

acquiescence and laches

 

 

 

iv.

equitable estoppel :: estoppel in pais

 

 

d.

Equitable concepts

 

 

 

i.

fraud, mistake and accident in contracts

 

 

 

ii.

relief against penalties and forfeitures

 

 

 

iii.

equity in property, whereby an obligation may attach to a piece of property

 

 

e.

Maxims

 

 

 

 

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