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119-576: 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

238-546: A statutory power , but can deal with situations where the law is silent, or where there is an omission in statute. Such an omission is sometimes termed a casus improvisus . In India the common law doctrine of equity had traditionally been followed even after it became independent in 1947. However, in 1963 the Specific Relief Act was passed by the Parliament of India following the recommendation of

357-454: 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

476-775: 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

595-487: 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 ,

714-410: A disproportionate number of multi-state corporations) are decided; Mississippi ; and Tennessee . However, merger in some states is less than complete; some other states (such as Illinois and New Jersey ) have separate divisions for legal and equitable matters in a single court. Virginia had separate law and equity dockets (in the same court) until 2006. Besides corporate law , which developed out of

833-420: A distinct part of the law of England and Wales . The main challenge to it has come from academic writers working within the law of unjust enrichment . Scholars such as Peter Birks and Andrew Burrows argue that in many cases the inclusion of the label "legal" or "equitable" before a substantive rule is often unnecessary. Many English universities, such as Oxford and Cambridge , continue to teach Equity as

952-527: A legal remedy, the plaintiff's only option would be to petition the King. Litigants began to seek relief against unfair judgments of the common law courts by petitioning the King. Such petitions were initially processed by the King's Council, which itself was quite overworked, and the Council began to delegate the hearing of such petitions to the Lord Chancellor. This delegation is often justified by

1071-442: A matter of course) which later became known as writs ex debito justitiae (as a matter of right). Each of these writs was associated with particular circumstances and led to a particular kind of judgment. Procedure in the common law courts became tightly focused on the form of action (the particular procedure authorized by a particular writ to enforce a particular substantive right), rather than what modern lawyers would now call

1190-550: A measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's conscience. After 1660, Chancery cases were regularly reported, several equitable doctrines developed, and equity started to evolve into

1309-415: 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

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1428-593: A single body of law known as the law of unjust enrichment . After the Norman Conquest of England in the 11th century, royal justice came to be administered in three central courts: the Court of King's Bench , the Court of Common Pleas , and the Exchequer . The common law developed in these royal courts, which were created by the authority of the King of England , and whose jurisdiction over disputes between

1547-527: A special system of courts". For much of its history, the English common law was principally developed and administered in the central royal courts: the Court of King's Bench , the Court of Common Pleas , and the Exchequer . Equity was the name given to the law which was administered in the Court of Chancery . The Judicature Acts of the 1870s effected a procedural fusion of the two bodies of law, ending their institutional separation. The reforms did not fuse

1666-531: A standalone subject. Leading practitioner texts include Snell's Equity , Lewin on Trusts , and Hayton & Underhill's Law of Trusts and Trustees . Limits on the power of equity in English law were clarified by the House of Lords in The Scaptrade case ( Scandinavian Trading Tanker Co. A.B. v Flota Petrolera Ecuatoriana [1983] 2 AC 694, 700), where the notion that the court's jurisdiction to grant relief

1785-499: A system of precedents like its common law cousin. Over time, equity jurisprudence would gradually become a "body of equitable law, as complex, doctrinal, and rule-haunted as the common law ever was". One indicator of equity's evolution into a coherent body of law was Lord Eldon 's response to Selden in an 1818 chancery case: "I cannot agree that the doctrines of this court are to be changed with every succeeding judge. Nothing would inflict on me greater pain, in quitting this place, than

1904-411: 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

2023-458: Is considered legal, and a jury is available as the fact-finder. On the other hand, if the plaintiff requests an injunction , declaratory judgment , specific performance , modification of contract, or some other non-monetary relief, the claim would usually be one in equity. Thomas Jefferson explained in 1785 that there are three main limitations on the power of a court of equity : "If the legislature means to enact an injustice, however palpable,

2142-526: Is guaranteed by the Seventh Amendment in Suits at common law , cases that traditionally would have been handled by the law courts. The question of whether a case should be determined by a jury depends largely on the type of relief the plaintiff requests. If a plaintiff requests damages in the form of money or certain other forms of relief, such as the return of a specific item of property, the remedy

2261-447: Is in practical terms more valuable to a litigant; for example, a plaintiff whose neighbor will not return his only milk cow, which had wandered onto the neighbor's property, may want that particular cow back, not just its monetary value. However, in general, a litigant cannot obtain equitable relief unless there is "no adequate remedy at law"; that is, a court will not grant an injunction unless monetary damages are an insufficient remedy for

2380-549: Is not a matter of absolute right to either party; it is a matter resting in the discretion of the court, to be exercised upon a consideration of all the circumstances of each particular case." Willard v. Tayloe was for many years the leading case in contract law regarding intent and enforcement. as well as equity. In the United States, the federal courts and most state courts have merged law and equity into courts of general jurisdiction, such as county courts. However,

2499-455: The nobile officium . The nobile officium enables the Court to provide a legal remedy where statute or the common law are silent, and prevent mistakes in procedure or practice that would lead to injustice . The exercise of this power is limited by adherence to precedent , and when legislation or the common law already specify the relevant remedy. Thus, the Court cannot set aside

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2618-487: The Attorney General , Sir Francis Bacon . Sir Francis, by authority of King James I , upheld the use of the equitable injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Chancery continued to be the subject of extensive criticism, the most famous of which was 17th-century jurist John Selden 's aphorism: Equity is a roguish thing: for law we have

2737-789: The Code of Civil Procedure, 1908 , which applies to all civil courts in India. There is no such inherent powers with the criminal courts in India except with the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. Further, such inherent powers are vested in the Supreme Court of India in terms of Article 142 of the Constitution of India which confers wide powers on

2856-679: 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

2975-544: 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

3094-598: The Employee Retirement Income Security Act specifically authorize only equitable relief, which forces American courts to analyze in lengthy detail whether the relief demanded in particular cases brought under those statutes would have been available in equity. Equity courts were widely distrusted in the northeastern United States following the American Revolution. A serious movement for merger of law and equity began in

3213-478: 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

3332-584: The Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under: With this codification, the nature and tenure of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to

3451-694: The Lord Chancellor and above the Master of the Horse . Under the Treason Act 1351 it is treason to kill him. The office of Lord High Treasurer is distinct from that of Treasurer of the Exchequer. The Lord High Treasurer was appointed by the delivery of a white staff to the appointee, and the Treasurer of the Exchequer was appointed at His Majesty's pleasure by letters patent under the Great Seal of

3570-794: The Lord High Steward and the Lord High Chancellor of Great Britain . The Lord High Treasurer functions as the head of His Majesty's Treasury . The office has, since the resignation of Charles Talbot, 1st Duke of Shrewsbury in 1714, been vacant. Although the United Kingdom of Great Britain and Ireland was created in 1801, it was not until the Consolidated Fund Act 1816 that the separate offices of Lord High Treasurer of Great Britain and Lord High Treasurer of Ireland were united into one office as

3689-547: The New Zealand Court of Appeal . For most purposes, the U.S. federal system and most states have merged the two courts. The latter part of the twentieth century saw increased debate over the utility of treating equity as a separate body of law. These debates were labelled the "fusion wars". A particular flashpoint in this debate centred on the concept of unjust enrichment and whether areas of law traditionally regarded as equitable could be rationalised as part of

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3808-495: 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

3927-432: The cause of action (the underlying substantive right to be enforced). Because the writ system was limited to enumerated writs for enumerated rights and wrongs, it sometimes produced unjust results. Thus, even though the King's Bench might have jurisdiction over a case and might have the power to issue the perfect writ, the plaintiff might still not have a case if there was not a single form of action combining them. Lacking

4046-719: The law of trusts , areas traditionally handled by chancery courts included wills and probate , adoptions and guardianships , and marriage and divorce . Bankruptcy was also historically considered an equitable matter; although bankruptcy in the United States is today a purely federal matter, reserved entirely to the United States Bankruptcy Courts by the enactment of the United States Bankruptcy Code in 1978, bankruptcy courts are still officially considered "courts of equity" and exercise equitable powers under Section 105 of

4165-585: 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

4284-548: The "Lord High Treasurer of the United Kingdom of Great Britain and Ireland" on 5 January 1817. Section 2 of the Consolidated Fund Act 1816 also provides that "whenever there shall not be [a Lord High Treasurer of the United Kingdom of Great Britain and Ireland], it shall ... be lawful for His Majesty, by letters patent under the Great Seal of Great Britain , to appoint Commissioners for executing

4403-477: The Bankruptcy Code. After US courts merged law and equity, American law courts adopted many of the procedures of equity courts. The procedures in a court of equity were much more flexible than the courts at common law. In American practice, certain devices such as joinder , counterclaim , cross-claim and interpleader originated in the courts of equity. For a history of equity in England, including

4522-582: 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, the Barons were

4641-505: 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

4760-418: The Court of Chancery assumed a vital role was the enforcement of uses , a role that the rigid framework of land law could not accommodate. This role gave rise to the basic distinction between legal and equitable interests . In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called the "use" that enabled one person (who was not required to pay tax) to hold

4879-545: 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

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4998-469: 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

5117-434: 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

5236-479: 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

5355-518: 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

5474-639: 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

5593-551: 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

5712-411: The King's conscience was right before God". This concern for the King's conscience was then extended to the conscience of the defendant in Chancery, in that the Chancellor would intervene to prevent "unconscionable" conduct on the part of the defendant, in order to protect the conscience of the King. By the 14th century, it appears that Chancery was operating as a court, affording remedies for which

5831-525: The King's money. In 1216, a Treasurer was appointed to take control of the Treasury in Winchester . The Treasurer was also an officer of the Exchequer , and supervised the royal accounts. It was in the 16th century, the office's title of King's Treasurer developed into Lord High Treasurer . By Tudor times, the Lord High Treasurer had achieved a place among the Great Officers of State, behind

5950-462: The King's subjects was based upon the King's writ. Initially, a writ was probably a vague order to do right by the plaintiff, and it was usually a writ of grace, issued at the pleasure of the King. During the 12th and 13th centuries, writ procedure gradually evolved into something much more rigid. All writs to commence actions had to be purchased by litigants from the Chancery , the head of which

6069-695: The NSW Supreme Court, Roddy Meagher , William Gummow and John Lehane produced Equity: Doctrines & Remedies . It remains one of the most highly regarded practitioner texts in Australia and England. The work is now in its 5th edition and edited by Dyson Heydon , former Justice of the High Court, Justice Mark Leeming of the New South Wales Court of Appeal , and Dr Peter Turner of Cambridge University . Equity remains

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6188-752: 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

6307-806: The Offices of Treasurer of the Exchequer of Great Britain and Lord High Treasurer of Ireland". These are the Lords Commissioners of the Treasury . In modern times, by convention, the Lords Commissioners of the Treasury include the Prime Minister of the United Kingdom , usually serving as the First Lord of the Treasury , and the Chancellor of the Exchequer , serving as the Second Lord of the Treasury . Other members of

6426-466: The Realm . However, when the Treasury was held by an individual, he was appointed to both offices. It is the office of Treasurer of the Exchequer that is put into commission, not the office of Lord High Treasurer. When the office of Treasurer of the Exchequer is put into commission, the office of Lord High Treasurer is left vacant. During the sixteenth century, the Lord High Treasurer was often considered

6545-517: 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

6664-434: 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

6783-469: 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

6902-560: The Statute of Uses 1535: For a general treatise on Equity, including a historical analysis: For a brief outline of the maxims, doctrines and remedies developed under equity: Lord High Treasurer The Lord High Treasurer was an English government position and has been a British government position since the Acts of Union of 1707 . A holder of the post would be the third-highest-ranked Great Officer of State in England , below

7021-510: The Supreme Court to pass orders "as is necessary for doing complete justice in any cause of matter pending before it". In modern practice, perhaps the most important distinction between law and equity is the set of remedies each offers. The most common civil remedy a court of law can award is monetary damages. Equity, however, enters injunctions or decrees directing someone either to act or to forbear from acting. Often, this form of relief

7140-512: 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

7259-509: 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

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7378-456: The actual bodies of law however. As an example, this lack of fusion meant it was still not possible to receive an equitable remedy for a purely common law wrong. Judicial or academic reasoning which assumes the contrary has been described as a "fusion fallacy". Jurisdictions which have inherited the common law system differ in their treatment of equity. Over the course of the twentieth century some common law systems began to place less emphasis on

7497-462: The aequitas and the judicial powers of the Roman magistrates." By the 15th century, the judicial power of Chancery was clearly recognised. Early Chancery pleadings vaguely invoked some sort of higher justice, such as with the formula "for the love of God and in way of charity ". During the 15th century, Chancery pleadings began to expressly invoke "conscience", to the point that English lawyers in

7616-492: The appellate courts are unified, but the trial courts are organized into a Chancery Division and a Law Division. There is a difference of opinion in Commonwealth countries as to whether equity and common law have been fused or are merely administered by the same court, with the orthodox view that they have not (expressed as rejecting the "fusion fallacy") prevailing in Australia, while support for fusion has been expressed by

7735-403: The beginning of Chancery's transformation from a court of conscience to a court of equity. Before that point in time, the word "equity" was used in the common law to refer to a principle of statutory interpretation derived from aequitas : the idea that written laws ought to be interpreted " according to the intention rather than the letter" of the law. What was new was the application of

7854-400: 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

7973-399: The chancellorship of Thomas Wolsey (1515–1529), who "had no legal training, and delighted in putting down lawyers". In 1546, Chancellor Thomas Wriothesley , a nonlawyer, was accused of trying to inject the civil law into Chancery. This was a "wild exaggeration", but as a result, the Crown began to transition away from clergy and nonlawyers and instead appointed only lawyers trained in

8092-420: 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

8211-405: The common law tradition to the position of Lord Chancellor (although there were six more nonlawyer chancellors in the decades after Wriothesley). The last person without training in the common law before 2016 to serve as Lord Chancellor was Anthony Ashley Cooper, 1st Earl of Shaftesbury , who served briefly from 1672 to 1673. ( Liz Truss was appointed as Lord Chancellor in 2016, but this was after

8330-431: 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

8449-404: The continuing vitality of traditional equitable doctrines. In 2009 the High Court affirmed the importance of equity and dismissed the suggestion that unjust enrichment has explanatory power in relation to traditional equitable doctrines such as subrogation . The state of New South Wales is particularly well known for the strength of its Equity jurisprudence. However, it was only in 1972 with

8568-517: The court of Chancery is not the body with whom a correcting power is lodged. That it shall not interpose in any case which does not come within a general description and admit of redress by a general and practicable rule." The US Supreme Court, however, has concluded that courts have wide discretion to fashion relief in cases of equity. The first major statement of this power came in Willard v. Tayloe , 75 U.S. 557 (1869). The Court concluded that "relief

8687-495: 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

8806-517: 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

8925-399: 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

9044-526: The enforcement of a common law court order. The penalty for disobeying an equitable injunction and enforcing an unconscionable common law judgment was imprisonment. The 1615 conflict between common law and equity came about because of a "clash of strong personalities" between Lord Chancellor Ellesmere and the Chief Justice of the King's Bench , Sir Edward Coke . Chief Justice Coke began the practice of issuing writs of habeas corpus that required

9163-429: The extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it, "Chancellor's foot" but instead are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of

9282-475: The fact that the Lord Chancellor was literally the Keeper of the King's Conscience , although Francis Palgrave argued that the delegation was initially driven by practical concerns and the moral justification came later. The moral justification went as follows: as Keeper of the King's Conscience, the Chancellor "would act in particular cases to admit 'merciful exceptions' to the King's general laws to ensure that

9401-574: The government, usually whips in the House of Commons , are appointed to serve as the Junior Lords Commissioners of the Treasury. The English Treasury seems to have come into existence around 1126, during the reign of Henry I , as the financial responsibilities were separated from the rest of the job that evolved into Lord Great Chamberlain . The Treasury was originally a section of the Royal Household with custody of

9520-461: The historical or institutional origin of substantive legal rules. In England and Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern equity includes, among other things: Black's Law Dictionary , 10th ed., definition 4, differentiates "common law" (or just "law") from " equity ". Before 1873, England had two complementary court systems: courts of "law" which could only award money damages and recognized only

9639-475: The injury in question. Law courts can also enter certain types of immediately enforceable orders, called " writs " (such as a writ of habeas corpus ), but they are less flexible and less easily obtained than an injunction . Another distinction is the unavailability of a jury in equity: the judge is the trier of fact . In the American legal system, the right of jury trial in civil cases tried in federal court

9758-642: The introduction of reform to the Supreme Court Act 1970 (NSW) that empowered both the Equity and Common Law Division of the Supreme Court of NSW to grant relief in either equity or common law. In 1972 NSW also adopted one of the essential sections of the Judicature reforms, which emphasised that where there was a conflict between the common law and equity, equity would always prevail. Nevertheless, in 1975 three alumni of Sydney Law School and judges of

9877-517: 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

9996-475: The land the legal owner and therefore liable for feudal dues. The response of the lawyers to this Statute was to create the "use upon a use". The Statute recognized only the first use, and so land owners were again able to separate the legal and beneficial interests in their land. Equity remains a cornerstone of Australian private law. A string of cases in the 1980s saw the High Court of Australia re-affirm

10115-401: The late 15th century thought of Chancery as a court of "conscience", not a court of "equity". However, the "reasoning of the medieval chancellors has not been preserved" as to what they actually meant by the word "conscience", and modern scholars can only indirectly guess at what the word probably meant. The publication of the treatise The Doctor and Student in the early 16th century marked

10234-475: The legal owner of property, and courts of "equity" ( courts of chancery ) that could issue injunctive relief (that is, a court order to a party to do something, give something to someone, or stop doing something) and recognized trusts of property. This split propagated to many of the colonies, including the United States. The states of Delaware, Mississippi, South Carolina, and Tennessee continue to have divided Courts of Law and Courts of Chancery. In New Jersey,

10353-418: The legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity. Henry VIII enacted the Statute of Uses in 1535 (which became effective in 1536) in an attempt to outlaw this practice and recover lost revenue. The Act effectively made the beneficial owner of

10472-464: 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

10591-406: 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,

10710-553: The position had been stripped of its judicial powers by the Constitutional Reform Act 2005 , leaving the Chancellor of the High Court as the highest judge sitting in equity in England and Wales.) The development of a court of equity as a remedy for the rigid procedure of the common law courts meant it was inevitable that the two systems would come into conflict. Litigants would go " jurisdiction shopping " and often would seek an equitable injunction prohibiting

10829-469: The recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor's foot." Equity's primacy over common law in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system. One area in which

10948-468: 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

11067-456: The release of people imprisoned for contempt of chancery orders. This tension reached a climax in the Earl of Oxford's case (1615) where a judgment of Chief Justice Coke was allegedly obtained by fraud. Chancellor Ellesmere issued an injunction from the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to

11186-422: 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

11305-576: The states in the mid-19th century, when David Dudley Field II convinced New York State to adopt what became known as the Field Code of 1848. The federal courts did not abandon the old law/equity separation until the promulgation of the Federal Rules of Civil Procedure in 1938. Three states still have separate courts for law and equity: Delaware , whose Court of Chancery is where most cases involving Delaware corporations (which includes

11424-511: The strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors often had theological and clerical training and were well versed in Roman law and canon law . During this era, the Roman concept of aequitas influenced the development of the distinctly different but related English concept of equity: "The equity administered by the early English chancellors ... [was] confessedly borrowed from

11543-457: The substantive distinction between law and equity has retained its old vitality. This difference is not a mere technicality, because the successful handling of certain law cases is difficult or impossible unless a temporary restraining order (TRO) or preliminary injunction is issued at the outset, to restrain someone from fleeing the jurisdiction taking the only property available to satisfy a judgment, for instance. Furthermore, certain statutes like

11662-450: 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,

11781-473: 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

11900-412: The word "equity" to "the extraordinary form of justice administered by the chancellor", as a convenient way to distinguish Chancery jurisprudence from the common law. A common criticism of Chancery practice as it developed in the early medieval period was that it lacked fixed rules, varied greatly from Chancellor to Chancellor, and the Chancellor was exercising an unbounded discretion. The counterargument

12019-475: Was "unlimited and unfettered" (per Lord Simon of Glaisdale in Shiloh Spinners Ltd v. Harding [1973] A.C. 691, 726) was rejected as a "beguiling heresy". The courts of Scotland have never recognised a division between the normal common law and equity, and as such the Court of Session (the supreme civil court of Scotland ) has exercised an equitable and inherent jurisdiction and called

12138-524: 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

12257-493: 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

12376-416: 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

12495-423: 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

12614-472: 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

12733-467: 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

12852-441: 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,

12971-419: 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

13090-604: Was integrated in the legal rules, while in common law systems it became an independent body of law. In jurisdictions following the English common law system , equity is the body of law which was developed in the English Court of Chancery and which is now administered concurrently with the common law . In common law jurisdictions, the word "equity" "is not a synonym for 'general fairness' or 'natural justice ' ", but refers to "a particular body of rules that originated in

13209-428: 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

13328-399: Was not a sworn officer of the court, meaning the Remembrancer could have him replaced at any time. Equity (law) Equity exists in domestic law, both in civil law and in common law systems, and in international law . The tradition of equity begins in antiquity with the writings of Aristotle ( epieikeia ) and with Roman law ( aequitas ). Later, in civil law systems, equity

13447-496: 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

13566-498: 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

13685-476: 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

13804-542: Was that equity mitigated the rigour of the common law by looking to substance rather than to form. The early chancellors were influenced by their training in theology and canon law, but the law of equity they applied was not canon law, but a new kind of law purportedly driven by conscience. Whatever it meant in the medieval era, the word "conscience" clearly carried a subjective connotation (as it still does today). Complaints about equity as an arbitrary exercise of conscience by nonlawyer Chancellors became quite frequent under

13923-479: Was the Lord Chancellor . After writs began to become more specific and creative (in terms of the relief sought), Parliament responded in 1258 by providing in the Provisions of Oxford that the Chancellor could no longer create new writs without permission from the King and the King's Council (the curia regis ). Pursuant to this authorization, litigants could purchase certain enumerated writs de cursu (as

14042-413: 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

14161-480: 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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