197-462: 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 , the estates of lunatics and the guardianship of infants. Its initial role differed somewhat: as an extension of
394-655: 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
591-418: A Court of Chancery who held the power to grant relief, and not by the common law. Equating to new rights, exclusive jurisdiction provided relief against breaches of legal privileges which were not preserved by equity within the concurrent jurisdiction. Such intervention was sanctioned as it ensured irreversible injury was effectively compensated by damages, and it prevented the multiplicity of claims regarding
788-417: 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
985-634: A bill for damages, on a breach of contract, it is clearly not the ordinary jurisdiction of the court". Court of equity A court of equity , also known as an equity court or chancery court , is a court authorized to apply principles of equity rather than principles of law to cases brought before it. These courts originated from petitions to the Lord Chancellor of England and primarily heard claims for relief other than damages, such as specific performance and extraordinary writs . Over time, most equity courts merged with courts of law, and
1182-512: A case against a third party who owed them money if it was that lack of money which prevented them paying the king and the new regime, the Exchequer actively transformed from a "tax court" dealing with civil cases to a dedicated court of equity and common law. The Civil War caused four equitable courts to be dissolved. The Court of Star Chamber was formally dissolved in 1641, the Council of
1379-574: 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
1576-777: A clerk would bring the Red Book of the Exchequer to the King's Bench and assert that the case's claimant was an officer of the Exchequer, necessitating his trial there rather than in the King's Bench. The Exchequer maintained a clear rule with the other equity court, the Court of Chancery ; a case heard in one could not be re-heard in the other. Apart from that, cases of equity could be heard by either court. The Exchequer had superior status over inferior courts of equity, able to take cases from them and countermand their decisions. The jurisdiction of ecclesiastical courts also overlapped with that of
1773-582: 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
1970-546: A court of equity to exercise its jurisdiction to prevent the publication of false declarations determined to cause harm to an individual's trade. A limitation to a court of equity's jurisdiction in this area is its inability to prohibit the publication of false or derogatory statements detrimental to a plaintiff's profession or title to property – whereby such assertions are not attendant to threats, coercion, intimidation, or any direct attack. The judicature system has been implemented across Australia , with South Australia being
2167-489: A dedicated Treasurer of the Exchequer (although earlier writs show that the Lord High Treasurer had been independently given this title), who was ceremoniously presented with a white staff by the monarch. The Treasurer, while active in the revenue side of the Exchequer , played little or no active role in the Exchequer of Pleas. The Chancellor of the Exchequer , independently head of the Court of Chancery ,
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#17327723785672364-575: A dual approach, whereby equity in the court existed for the purpose of creating "new equitable rules which gradually hardened into common law by virtue of their usage across time". The period after the American Revolution saw the abolition of chancery courts (or their merger with courts of law) in American states such as Massachusetts , New York, and Virginia . That was the result of equity being disfavoured and rejected until, late in
2561-477: 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
2758-483: 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;
2955-518: 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
3152-400: 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 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
3349-430: A more systematized role in resolving petitions. As it developed into a substantive judicial court with increased power, other common law courts became wary and defensive towards their jurisdiction. The court was one of specific jurisdiction with distinct procedures compared to common law courts, such as the Court of Chancery issuing a common injunction rather than common law injunctive relief . The systemisation of equity
3546-494: A procedure, distinct from that of common law, that allowed the chancellor to decide the most equitable course to take in each individual case. The passing of the English Judicature Act 1873 established the new High Court of Justice and Court of Appeal division to substitute the old Chancery, Common Pleas , Queen's Bench and Exchequer Courts . Subsequently, changes in the court's administration included
3743-463: 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
3940-416: A reduction in the inferior Exchequer's influence. Despite these warning signs, the Exchequer continued to flourish, maintaining a large amount of business, and by 1810 was almost entirely an equity court, having little common law work. The court's equity side became deeply unpopular during the 1830s because many cases were heard by a single judge with no real prospect of appeal; while cases could be taken to
4137-435: 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
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#17327723785674334-472: A result of the post-judicature systems and Earl of Oxford's case (1615) allowing an overlapping of claims brought before the merged modern courts, equity would prevail over the common law (common injunctions will be upheld) in situations of conflict or discrepancy between the opposing principles. Prior to the introduction of the Judicature systems, the enforcement of equitable claims could only occur in
4531-637: A single Supreme Court of New South Wales with complete jurisdiction within both common law and equity prior to the adoption of the Judicature Act in NSW, they remained being treated as separate courts. Unlike most countries, the equity jurisdiction always operated and was administered in conjunction with the law in India, through the courts, and not in resistance to it. Following the British codification of
4728-435: 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 the practice under Henry VI that plaintiffs in the common-law courts could not execute judgments given by
4925-413: A table for the purposes of counting money. In the 1190s the Exchequer began separating from the curia regis , a process which continued until the beginning of the 13th century. Academics have suggested that this was due to an increasing demand on the revenue side of the court, which led to part of the common law element being split off to form the Court of Common Pleas . Although the Exchequer of Pleas
5122-428: A tool for discovery procedures . The court is required to maintain the present state of affairs, without any direct relief, until the parties’ rights are dictated at common law. It also has the authority after settlement to aid in relief by deliberating a more effective remedy on the litigant, who previously attained common law relief. The courts of equity in England are recognised for operating in personam , while
5319-437: 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
5516-510: 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 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 ,
5713-486: 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
5910-439: Is not an independent body of law; rather, it is synonymous with corrective justice and complements common law to counterbalance its inflexible rules. The historical emergence of equity occurred during three significant periods: the medieval period (13th–15th centuries), the formative period (16th–17th centuries), and the period of systematization (17th–19th centuries). Throughout these periods, equity developed progressively from
6107-650: Is often credited to Lord Eldon and the introduction of the Judicature Acts in 1873. He rationalized the rules and principles found in modern equity today, to provide enhanced consistency and certainty. As a result, equity existed in conjunction with the common law. Prior to this, the Courts of Chancery experienced shortcomings and a "period of decline and stagnation" during the early 18th century. Such defects included jurisdictional delays, administrative complications, costly proceedings and burdensome processes. By
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6304-481: 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
6501-545: Is upheld between the civil and general equity divisions of the New Jersey Superior Court . The unique nature of courts of equity is a result of their historical evolution. This history has been crucial in shaping their application in case law , reflecting the values that have developed the equitable jurisdiction. The transformation of these courts demonstrates the evolution of equity's doctrines and remedies, changes in its dominant nature and traits, and
6698-524: 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
6895-464: 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,
7092-426: 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
7289-616: The Court of Common Pleas . Under the Tudors , the Exchequer's political, judicial and fiscal importance all increased. This was partially thanks to the Lord High Treasurer . Although the Lord Chancellor was more traditionally important, the Lord High Treasurers from 1547 to 1612 were politically influential figures, including Robert Cecil , Thomas Sackville and William Paulet . Since the Lord High Treasurer
7486-547: The Court of King's Bench , the different positions did not equate to different degrees of power; each Baron had an equal vote in decisions. Barons were appointed by letters patent and sworn in by the Lord Chancellor , head of the judiciary. During the 16th century they held their offices quamdiu se bene gesserint , or "during good behaviour". A Baron could leave the Exchequer in one of three situations; resignation, death, or appointment to another court, which automatically made their office void. The letters patent expired after
7683-541: 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
7880-593: The Delaware Court of Chancery . Exchequer of pleas The Exchequer of Pleas , or Court of Exchequer , was a court that dealt with matters of equity , a set of legal principles based on natural law and common law in England and Wales . Originally part of the curia regis , or King's Council, the Exchequer of Pleas split from the curia in the 1190s to sit as an independent central court. The Court of Chancery 's reputation for tardiness and expense resulted in much of its business transferring to
8077-609: 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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8274-528: The King's Remembrancer , who appointed all other officials and kept the Exchequer's records, and the sworn and side clerks, who acted as attorneys to parties to a case. It was originally claimed that the Exchequer was based on a similar Norman court. While there are many records of the Exchequer's work in England, there is no evidence of a similar body in pre- conquest Normandy. The first reliable records come from
8471-496: 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 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
8668-563: The Statute of Rhuddlan , was as a court where only the king could bring cases. The Exchequer became the first "tax court", where the king was the plaintiff and the debtor the defendant. The king was represented by the Attorney General , allowing him to avoid much of the legal costs associated with a court case. The "next logical step" was to allow debtors to collect on their own debts in the Exchequer, so that they could better pay
8865-498: The US Congress did for federal courts . United States bankruptcy courts serve as an example of a US federal court that operates as a court of equity. A few common law jurisdictions, such as the U.S. states of Delaware , Mississippi , New Jersey , South Carolina , and Tennessee , continue to preserve the distinctions between law and equity as well as between courts of law and courts of equity. In New Jersey, this distinction
9062-567: 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 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
9259-585: The writ of quominus , which allowed the Exchequer to look at "common" cases between subject and subject, this discretionary area was significantly expanded, and it soon regained its standing in common law matters. Cases were formally taken by the Chancellor of the Exchequer , but in practice were heard by the Barons of the Exchequer , judicial officials led by the Chief Baron . Other court officials included
9456-464: 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
9653-729: 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)
9850-684: The 19th century, federal judges revived the equitable injunction. The early amendments of the United States Constitution explicitly acknowledged common law and equity as being clear divisions of jurisprudence. However, Rule 2 of the Federal Rules of Civil Procedure came into effect in 1938 to unite common law with equitable claims. Other states maintained their courts of equity, although many have more recently merged them with their courts of law. Only Delaware, Mississippi and Tennessee still have separate equity courts, such as
10047-668: The Barons were the chief auditors of the accounts of England, a role passed to dedicated auditors during the reign of Edward II . With the Exchequer's expansion during the Tudor era, the Barons became more important; where previously only the Chief Baron had been appointed from the Serjeants-at-Law , with the other Barons mere barristers , it became practice for all Barons of the Exchequer to be Serjeants. This further increased
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#173277237856710244-552: The Chancellor providing equitable relief based on personal conscience to an established and organized body of law governed by courts. The Chancery Division was established in the 13th century by the King after the separation of the Supreme Court of Judicature . Under the Chancellor's authority, the "King's law" prevailed in local courts. The division did not handle actual cases but performed functions associated with
10441-456: The Chancellor's position as head of the Treasury made it an important appointment again. The main judicial officers were the Barons of the Exchequer , or barones scaccari , who were originally the same judges as those of the Court of King's Bench , only becoming independent positions after the Exchequer's separation from the curia regis . In the early years of the Exchequer's existence,
10638-526: 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 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
10835-466: 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 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
11032-411: 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 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
11229-464: 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
11426-561: The Common Pleas and became Lord Chief Justice of England, by an Order in Council of 16 December 1880. At this point, the Exchequer of Pleas formally ceased to exist. The Exchequer's position as a court originally came from an informal process of argument between the king and his debtors as to how much money was owed; by the 13th century, this had evolved into formal court proceedings. Therefore, its initial jurisdiction, as defined by
11623-466: 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 the 15th century; Margaret Avery reports a massive increase in cases during the 1440s, while Nicholas Pronay suggests that
11820-483: 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
12017-513: 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
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#173277237856712214-415: 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
12411-473: 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
12608-430: 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 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
12805-509: 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 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
13002-413: 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
13199-430: 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
13396-545: The Exchequer ; if the Chancellor and Treasurer were unavailable, he was the head of the court. When he was also absent the Second Baron took charge, and so on; in one case in 1659, the Fourth Baron was the only judge available. The Second, Third and Fourth Barons were known as puisne Barons; initially treated as individual offices, after the time of James I the order was determined by the judges' seniority. Unlike in
13593-470: The Exchequer was deliberately weakened. When William Paulet was appointed Treasurer in 1546 the Exchequer again increased in power, absorbing the Court of Augmentations and Court of First Fruits and Tenths by 1554. The Exchequer was assisted in this period by Thomas Fanshawe , the Queen's Remembrancer. A capable man, Fanshawe was often consulted by the Barons of the Exchequer as to the best way to administer
13790-435: The Exchequer's standing, since for the first time it put the Exchequer at the same level as the Court of Common Pleas and Court of King's Bench , where all judges were already required to be Serjeants. At least one Baron sat to hear a case, with convention insisting on a maximum of four Barons after the rule of Edward IV ; as a mere convention, it was occasionally broken. When one Baron was ill or otherwise unable to sit it
13987-481: The Exchequer, particularly in relation to the collection of tithes, and there are many records of disputes between the two. As well as appeals to the Exchequer Chamber , the court also allowed appeals to the House of Lords , which was first used in 1660 for the case of Fanshawe v Impey and confirmed in 1677. The formal head of the Exchequer for much of its existence was the Lord High Treasurer , who
14184-454: The Exchequer. The Exchequer and Chancery, with similar jurisdictions, drew closer together over the years until an argument was made during the 19th century that having two seemingly identical courts was unnecessary. As a result, the Exchequer lost its equity jurisdiction. With the Judicature Acts , the Exchequer was formally dissolved as a judicial body by an Order in Council on 16 December 1880. The Exchequer's jurisdiction at various times
14381-482: The House of Lords, it was highly expensive and time-consuming to do so. The Court of Chancery, however, had long had an established method of appealing to the Lords, and later introduced an intermediary appellate court – the Court of Appeal in Chancery . At the same time, many elements of the Exchequer's equity business had dried up, with the Tithe Commutation Act 1836 ending their tithe cases and
14578-552: The Insolvent Debtors Act 1820 establishing the Court of Bankruptcy , removing cases of insolvency from the Exchequer. The Exchequer's fees were also higher than those of the Court of Chancery, and with both courts now using almost identical precedent it was seen as unnecessary to maintain two equitable courts. As a result, the Administration of Justice Act 1841 formally dissolved the equitable jurisdiction of
14775-476: The Judicature Acts, equity courts occupied a discrete jurisdiction to the common law. It was prohibited to transfer an action, and if proceedings were initiated in the incorrect court, the entire case must be brought again from the beginning. The administrative inefficiency created by the operation of separate courts became excessively onerous, that it demanded a comprehensive overhaul of the system. As
14972-399: The King's secretarial department. Although the Chancery Division did not function as a court, judicial activity was still present. Limited discretionary power was provided, determining the validity of writs issued in courts and permitting only those in consimili casu . These were enforced temporarily and could be overridden by the courts of law if deemed to conflict with the actual law of
15169-637: 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" 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
15366-551: 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
15563-515: 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 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
15760-686: The North and Council of Wales and the Marches had their equity jurisdiction stripped by the same Act of Parliament, and the Court of Requests became invalid after the Privy Seal was invalidated by the outcome of the English Civil War , as it was dependent on the Seal for its authority. After the War ended there were only two equity courts remaining, the Exchequer and Court of Chancery . The Court of Chancery
15957-519: The Remembrancer and then by the sworn clerks themselves. The examiners were tasked with supervising depositions of witnesses, bringing the witness to a Baron, administering the oath and keeping the files of the depositions. In 1624 it was decided these examiners should be sworn officers of the court, and from then on each Baron had an examiner, who acted in the Baron's name. The office of examiner
16154-436: The Remembrancer had held complete discretion as to what to do with the money. Other offices included the sworn clerks, the examiners, the clerk to the barons, and the clerk to the King's Remembrancer . There were eight sworn clerks, so called because they were sworn officers of the court, who held their offices for life and worked under the Remembrancer. Each clerk acted as an attorney for the parties in court, and every party
16351-418: The Rolls , in that he headed up the clerical side of the court. As well as his duties to the judicial body, the King's Remembrancer also handled the revenue side of the Exchequer, a jurisdiction established in the 14th century. He was originally able to appoint all the sworn clerks, but by the 16th century this jurisdiction had been limited to appointing one of the 24 side clerks, with the sworn clerks appointing
16548-465: 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 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
16745-575: The Supreme Court, as this would have violated the constitutional principle that senior justices were irremovable. By sheer chance Fitzroy Kelly and Alexander Cockburn , Lord Chief Baron of the Exchequer and Lord Chief Justice of England , respectively, both died in 1880, allowing the merger of the common law divisions of the Supreme Court into a single division, the Queen's Bench Division , under John Coleridge , who had been Lord Chief Justice of
16942-568: The Treasurer's duties when he was unavailable. The Chancellor was appointed by letters patent , and until 1672 it was a life appointment, then changed to an office "to hold only during the pleasures of the crown". Until the English Civil War the Chancellor of the Exchequer was a judicial office with little political standing; after the War, however, it became seen as a "stepping stone" to higher political appointments. After 1672 it again became an administrative and judicial office, until 1714, when
17139-400: The ability for separate divisions to obtain coexisting jurisdiction in relation to common law and equitable principles. As Lord Watson stated, the main purpose of this Act was to provide parties to a litigation "all remedies to which they are entitled". This prevents the need to recourse to another court and reduces the unnecessary profusion of legal proceedings . Prior to the enactments of
17336-412: 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
17533-561: The adoption of various Acts granted courts combined jurisdiction to administer common law and equity concurrently. Courts of equity are now recognized for complementing the common law by addressing its shortcomings and promoting justice . In the early years of the United States, some states followed the English tradition of maintaining separate courts for law and equity. Others combined both types of jurisdiction in their courts, as
17730-401: 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
17927-492: The areas of environmental degradation, tort law, strict liability doctrines and human rights. As there is no separate court in Scotland which exclusively operates an equity jurisdiction, the country's legal system is classified as mixed. The Court of Session controls both jurisdictions, by differentiating between common law and equity throughout cases brought before it. This provides greater certainty to parties, given that
18124-421: 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
18321-486: 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 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
18518-473: 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 the Norman conquest. Consequently, the written English that developed at the Court of Chancery eventually became
18715-422: The breach and remedy. Associated with new remedies, this jurisdiction empowers an applicant to pursue equitable relief where it can be established that the appropriate relief under common law is insufficient to do justice. There is no rivalry between the two jurisdictions; given that they can freely undertake proceedings as though the other didn't exist, and no grievances or restraints are made between them regarding
18912-464: 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
19109-400: The central courts, and the outcome were the Judicature Acts , under which all the central courts were made part of a single Supreme Court of Judicature , with the three central common law courts becoming three of the five divisions of the Supreme Court; this was not designed to be permanent, but rather to avoid having to retire or demote two of the three Chief Justices to allow a single head of
19306-423: 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 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
19503-399: 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
19700-562: The common law courts act in rem . This means that the court of equity's jurisdiction constitutes acts only against the conscience of a person or a number of persons, rather than a claim against an item of property. Yet, there are several exceptions to this. Given that equity does not pertain definitive or formal rules, the courts are required to assess explicit conduct through its flexible nature and discretionary powers. The courts address fundamental principles of good faith , generosity, morality , honesty and integrity, while also evaluating
19897-400: 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
20094-416: 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
20291-491: The common law, the latter initially curtailed after the Magna Carta and reserved for the Court of King's Bench and Court of Common Pleas , although it later grew back. This process of common law and equity was reversed; during the 16th century the Exchequer was solely a common law body, with the equity jurisdiction only again becoming relevant near the end of the Tudor period. W. H. Bryson argues that this happened during
20488-443: 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,
20685-409: 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
20882-417: 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 the pre-eminence of the lord chancellor continued into Elizabeth I 's reign, with the judges increasing in strength;
21079-520: 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 the Bar would elect two supervising Chief Clerks to advise on points of practice. A far-reaching and heavily criticised draft, this
21276-460: 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 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
21473-464: The court has the power to provide relief in either equity or common law where the party is not entitled to one or the other. As the two jurisdictions became indistinguishable, "what in effect was a rule in equity became in practice considered as common law". Scottish lawyers have raised concern that this system would create unjust decisions where cases are approached in terms of combining equity and common law reasoning. Others followed Lord Kames's view of
21670-441: The court of Chancery, in granting relief was said to exercise its exclusive jurisdiction. Concurrent jurisdiction recognises situations where the facts in a pleading brought by a party produces both common law and equity actions, with the same relief issued at either. The requirement post-Judicature system allowed a claimant to attend only one court, rather than two, to enforce both the common law and equitable principles regarding
21867-496: The court, and helped standardise pleadings, allowing the Exchequer to cope during a period of increased business. Fanshawe's administrative reforms were considered excellent, and his work continued to be used as the standard until the 1830s. Exchequer business increased under James and Charles I , before the English Civil War disrupted the courts. With the increasing use of the Writ of Quominus , which allowed royal debtors to bring
22064-518: The court. With the loss of its equitable jurisdiction, the Exchequer became a dedicated common law court, and thus fell prey to the same fate as the other two common law courts (the Court of Queen's Bench and the Court of Common Pleas ) during the late 19th century. There had long been calls for the merger of the courts, and in 1828 Henry Brougham , a Member of Parliament, complained in Parliament that as long as there were three courts unevenness
22261-419: 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 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"
22458-441: The courts for the purpose of enhancing just outcomes and to adequately judge the requirements of specific circumstances. As the jurisdiction of the equity courts evolved, it was no longer limited to the protection of prescribed rights and eventually took cognizance of cases not generally conforming with its jurisdiction – such as criminal cases. Given that defamation highly concerns personal rights, post-Judicature Act has allowed
22655-400: The death of each monarch; when the new one was crowned, a Baron would have to receive a new patent or leave his office. This was mostly a routine event; from 1550 to 1714 all but nine continued in office after the crowning of a new monarch. The King's Remembrancer was the chief clerk of the Exchequer, handling all bills of equity. He was the equivalent of the Court of Chancery 's Master of
22852-408: The early 1500s, a vast proportion of the court's workload was attributed to cases concerning equity. W.S. Holdsworth believed that the principles of equity were developed by and through the Chancery, and recognised three factors that influenced the evolution of such jurisdiction: antagonism to the rigidity of the common law; ideas about the function of conscience in determining equitable rules; and
23049-451: 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
23246-521: 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
23443-402: 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
23640-432: The first to enact it in 1853. Corresponding Acts to the Supreme Court of Judicature Act 1873 (UK) include Supreme Court Act 1935 (SA) ss 17-28, Civil Proceedings Act 2011 ( Qld ) s 7, Supreme Court Act 1935 ( WA ) ss 24–25, Supreme Court Act 1986 ( Vic ) s 29, Supreme Court Civil Procedure Act 1932 ( Tas ) ss 10–11, Supreme Court Act 1970 ( NSW ) ss 57–62 and Law Reform (Law and Equity) Act 1972 (NSW). Despite there being
23837-405: 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 the Chancery as they could to the other courts, while by the 15th century the number of private cases had increased to
24034-468: 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
24231-425: 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
24428-465: 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
24625-497: The improvement of the deficiencies of the universal concept. He concludes that equity's role within the courts "is to prevent the law from adhering too rigidly to its own rules and principles when those rules and principles produce injustice". Given that equitable principles are not absolute in nature, it is acceptable for the courts to depart from any rules when they conflict with justice. Unlike legal justice, equitable justice develops on an individualised and case-by-case basis within
24822-534: The influence of social and political environments on its operation and underlying issues in jurisprudence . Equity is currently recognized as a distinct body of law, administered by various modern courts. The evolution of procedures within courts of equity has guided the application of equitable principles. Originating from the diverse rules of the early Courts of Chancery , today's courts can exercise equitable jurisdiction while maintaining their inherent discretionary abilities to address new forms of injustice. Equity
25019-480: 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
25216-465: 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 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
25413-490: 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
25610-481: The justice's authorization for initiating claims in the King's courts . In the 16th century, the modern system of equity and the Chancellor evolved into a body with recognized judicial features. Consequently, the jurisdiction within the courts experienced greater autonomy. This involved the Court of Chancery issuing decrees independently of the King's Council , the Chancellors becoming proficient in law, and
25807-402: 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 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
26004-518: The king; this was done through the Writ of Quominus . The Exchequer also had sole jurisdiction to try cases against their own officials and other figures engaged in collecting the royal revenue. The court was also used to prosecute clerics who, while innocent, had come close to committing an infraction; as the plaintiff was represented by the Attorney General, the costs were reduced, and as the Attorney General had no incentive to compromise it
26201-495: The land . As the administrative operations of the division expanded through its implicit control of the King's residual influence, the Chancellor became responsible for addressing "prayers" and "petitions", including letters of remedy, relief, and grants on behalf of the King. During the 14th and 15th centuries, the Chancery developed into an independent and extensive bureaucracy . Its formalized role involved issuing writs regarding inheritance or property transfers, which served as
26398-401: The law in India, equitable principles were embedded in the judicial frameworks of the courts. The courts have relied on equity "as a source of law to devise a new principle in a situation where the statute or codified law had no answer to a given situation". The Supreme Court of India recognised this fusion of the law by further expanding the application of its equitable and remedial powers in
26595-411: 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 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
26792-434: 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
26989-410: 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 the monarch) allowed a claim to proceed despite the lord chancellor's implied jurisdiction. At
27186-724: 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 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
27383-410: 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 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
27580-406: 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
27777-487: 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
27974-661: 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
28171-492: 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 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
28368-467: The one body of government in England to do so. By the 1170s it was possible to distinguish the Exchequer's work from that of the other parts of the curia regis , although the king of the time considered the Exchequer to simply be an element of the curia . It was referred to as the Curia Regis ad Scaccarium , or King's Court at Exchequer. The word "Exchequer" derives from the chequered cloth laid on
28565-406: The other Westminster courts (the Court of Common Pleas , Court of King's Bench and Court of Chancery ), with cases transferred easily from one to another, although there were problems in the case of the Court of King's Bench . The traditional method for moving a case was the writ of supersedeas , but the King's Bench represented the monarch, who could not have writs placed against him. Instead,
28762-654: 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
28959-407: 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 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
29156-512: 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
29353-522: The person to obedience. Although the Chancellor has the authority to compel a person to punishment until they obey, the decree can also serve as a defence to future cases (regarding the same claim) in the Court of Chancery to provide a satisfactory reason why the Chancellor should not consider it again. As equity is perceived in an ethical context, the courts often encapsulate this as fair, moral, ethical and just conduct. As Aristotle highlighted, equitable conduct can be said to be just as it promotes
29550-423: 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 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
29747-433: 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 the common law courts were limited to awarding damages . Chancery English, used in official documents, can be seen as
29944-404: 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
30141-415: 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 was the period when the Chancery changed from being an administrative body with some judicial functions to "one of
30338-470: The reign of Edward I . By 1590 the Exchequer's jurisdiction over equity cases was confirmed, and it was handling a significant number a year, including disputes over trusts , mortgages, tithes and copyholds ; since taxation was ever-present, it was not difficult to show that the dispute prevented the payment of a debt to the monarch, allowing the Writ of Quominus. The Exchequer stood on an equal footing with
30535-405: The relative fairness between the parties. Provided the latitude of the Chancellor's discretion and scope of equitable remedies, it has allowed the courts to consider the interests of the public at large when providing or refusing relief to the plaintiff. In contrast to the rulings in the King's or Common Bench where the judgements are binding upon the rights of a party, equitable decrees only bind
30732-424: The rest. In a similar way, while he was originally in charge of the court's records and the enrolment of writs, by the 17th century he no longer possessed the keys to the record office, and the sworn clerks had the exclusive right to search the records. His main job was instead quasi-judicial, examining certain witnesses, taking minutes in court and settling disputes over "scandal and impertinence". The Remembrancer
30929-492: 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
31126-415: The rigor and extremity of our laws, we ... do approve, ratifie and confirm, as well 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
31323-455: 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 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
31520-449: 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 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
31717-421: The same issue. The body of law/court acts without right where it interferes with the other who has exclusive jurisdiction; allowing for the relevant sovereign to be curtailed. The nature of the exclusive jurisdiction was defined by Ashburner as: The claim of the plaintiff was one which before the Judicature Act would have given him no right whatever against the defendant in any court but the Court of Chancery, and
31914-409: 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 the case of Courtney v. Glanvil , dictating that Glanvil should be imprisoned for deceit; this
32111-400: 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 , 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
32308-452: The time of Henry I , when the sole surviving Pipe roll from his reign shows the Exchequer working out of the king's palace as part of the curia regis . The curia regis followed the king as he travelled, rather than sitting at any one fixed location, and was held in York , London and Northampton at various times. By the late 12th century it had taken to sitting in a fixed location,
32505-539: The time were clergymen with little interest in judicial or fiscal matters; as a result, the clerk became more independent from the Chancellor and, by the 1230s, became a royal appointment holding the seal independently of the Lord Chancellor, known as the Chancellor of the Exchequer. After 1567 the Chancellor was additionally confirmed as the Under-Treasurer of the Exchequer, allowing him to carry out
32702-463: 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
32899-466: The validity of their operations. The objective of this jurisdiction is to provide "a more perfect remedy or to apply a more perfect procedure than the other court could give or apply". Associated with new procedure, auxiliary jurisdiction recognises situations of equity assisting in proceedings through the enforcement of legal rights where it did not have concurrent jurisdiction over the matter. The Court of Chancery did not arbitrate where adequate relief
33096-541: 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
33293-408: 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,
33490-415: Was accessible at common law and the adjudication of the legality of the litigant's claim was left to the responsibility of common law courts. This meant that the common law was binding on equity. Auxiliary jurisdiction merely acted "as ancillary to the administration of justice in other courts". Related to pre-trial, the court of equity has the power to produce documents which common law courts could not as
33687-527: Was also involved in the Exchequer of Pleas as a check on the Lord High Treasurer . He evolved out of the Lord Chancellor 's clerk, or clericus cancellari , who sat in the Exchequer and was responsible for correcting and sealing writs of summons , also holding the Exchequer's copy of the Great Seal. The earliest appearances of such a clerk in the records come from 1220, when a document was signed by Robert de Neville, cancellarius . The Lord Chancellors of
33884-494: Was appointed for life, and qualified to appoint a deputy, the first of whom, John West, was appointed by Sir Christopher Hatton in 1616. From 1565 until 1716, the office was kept in the Fanshawe family, starting with Henry Fanshawe and ending with Simon Fanshawe . After 1820, the Remembrancer's broad duties were split up by the Court of Exchequer (England) etc. Act 1820 . To replace him, two masters were appointed, one of whom
34081-523: 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
34278-440: 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 the speedy dispatch of business". Parliament eventually proposed dissolving
34475-416: Was common law, equity or both. Initially a court of both common law and equity, it lost much of its common law jurisdiction after the formation of the Court of Common Pleas . From then on, it concerned itself with equitable matters and those common law matters that it had discretion to try, such as actions brought against Exchequer officials and actions brought by the monarch against non-paying debtors. With
34672-425: Was dissolved in 1841, when the equity jurisdiction of the Exchequer came to an end. In addition to an examiner, each Baron had at least one clerk, who acted as their private secretary; although not paid, they were authorised to take fees for their work. The Chief Baron had two clerks, while the puisne Barons had one each. The King's Remembrancer also employed a clerk, who was also a secretary. He received no salary and
34869-417: 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 the case was to pay full fees to the other side; the fees would be set ludicrously low. This bill
35066-422: 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
35263-473: Was felt appropriate to appoint a fifth, as in 1604 when Baron Sotherton was ill, and in 1708, when Baron Smith was called to Edinburgh to be a temporary Chief Baron of the Scottish Exchequer . In 1830 a fifth Baron was permanently added to relieve court congestion; at the same time, a fifth judge was added to the Court of Common Pleas and King's Bench. The First Baron was the Chief Baron of
35460-467: Was firmly cemented, and it was considered a viable alternative to the Court of Chancery . As a result, each court cited the other's cases as precedent, and drew closely together. In addition, 18th-century Acts of Parliament treated them in the same way, merely referring to "courts of equity" rather than mentioning them individually. At the same time, the Treasury became more and more important, leading to
35657-402: 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
35854-442: Was head of the Exchequer, with the Treasurer's increased influence came increased importance for the Exchequer. The appointment of the second and third Dukes of Norfolk as Lord High Treasurers from 1501 to 1546 led to a gradual reduction in the Exchequer's power. The Dukes were seen by the government as too independent to be trusted with any real power, but too useful to be removed. As a result, to indirectly reduce their power,
36051-420: Was inevitable, saying that "It is not in the power of the courts, even if all were monopolies and other restrictions done away, to distribute business equally, as long as suitors are left free to choose their own tribunal", and that there would always be a favourite court, which would therefore attract the best lawyers and judges and entrench its position. In 1867 a commission was created to look into issues with
36248-402: 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
36445-431: Was more threatening to the cleric. In 1649 the Exchequer formally extended its common law and equity jurisdiction, becoming a fully fledged court of law able to hear any civil case. The main focus of the Exchequer was the collection of royal revenue as part of the greater Exchequer, which was officially undertaken by the Lord High Treasurer . The Exchequer was unique in having jurisdiction in matters of both equity and
36642-535: 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
36839-470: 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
37036-484: 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 the other judges over-ruled this judgment while Ellesmere was ill, taking the case as an opportunity to completely overthrow
37233-404: 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 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
37430-642: 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
37627-498: Was publicly reviled for its slow pace and because it was led by the Lord Chancellor John Finch , a political figure who had been intimately involved in the conflict. As a result, the Exchequer increased in importance as a court, although it is not known whether its active transformation was a judicial or political decision. By the beginning of the 18th century, the equity jurisdiction of the Exchequer of Pleas
37824-498: Was required to employ one. The first clerk was known as the First Secondary, and administered oaths out of the Red Book of the Exchequer . The sworn clerks were assisted by 24 side clerks, of whom each sworn clerk appointed three. Each side clerk studied under a sworn clerk for five years before practising himself, although under the sworn clerk's name. A side clerk had the chance of being promoted to sworn clerk, first by
38021-480: Was tasked with collecting royal revenues. Originally a clerk, he was supervised by the Chief Justiciar , and only became head of the court after this position was abolished during the reign of Henry III . During the reign of Elizabeth I the Treasurer's other duties began to increase, and he played less of a role in the Exchequer's affairs. By the 17th century, the Lord High Treasurer had been replaced by
38218-415: Was the first common law court, it was the last to separate from the curia regis . There are few records known to date from before 1580, as bills were not dated before then. Until the 16th century, the Exchequer carried out its duties with little variation in its function or practice. A small court, the Exchequer handled around 250 cases a year, compared to 2,500 in the Court of King's Bench and 10,000 in
38415-403: 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 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
38612-473: 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
38809-480: Was to be the accountant general. These officials were to be appointed by the Chief Baron of the Exchequer from barristers of five years standing, holding offices during good behaviour and unable to appoint a deputy. The masters handled the taking of minutes previously undertaken by the Remembrancer, with the accountant general overseeing all money paid into the court, which was deposited in the Bank of England ; previously
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