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Equity & Trusts - Intro (Petitions (Initially, to bring an action, the…
Equity & Trusts - Intro
Petitions
Initially, to bring an action, the plaintiff had to obtain a writ issued in the king's name and sealed by the Great Seal, which was under the control of the Lord Chancelor and Lord Keeper. The case would the be decided by a jury having been advised about the relevant law by the judge
The Chanceller was head of the king's secretariat and deputised for the king if the king did not preside ofver the council
If there was no appropriate write to cover the remedy claimed for a particular wrong suffered, there was no relief available at common law.
A 1285 statute prohibited novel writs from being issued by the Chancellor, only Parliament being able to make provision for novel writs. The blocked the abiLIty of the common law to meet new causes of action
The only recourse was to petition the king as the 'font of justice. As the number of these petitions grew, the king increasingly referred these to the Chancellor who began to issue decrees in his own name and would establish the Chancery court. Therefore, there was 2 separate chancery courts
Conscience
Since early Chancellors were always members of the clergy, a plaintiff's case would be decided on the basis of concience but this was entirely subjective and caused a lack of certainty and unpredicability
System of Equity
From the 17th Century, Chancellors such as lord Nottingham and Lord Eldon began to decide cases brought before them accoridng to precedent. Although this provided certainty, it loss flexibility
Without the common law, equity could not exist. INstead equity supplemented the common law, providing solutions to its inherent rigidity
New procedures developed, e.g. subpoenas forcing people to appear before the court or the formal administration of specifici interrogatories to be answered
New remedies developed such as injunctions restraining defendants from certain activities or occasionally ordering them to perform certain acts
New rights, e.g. equity of redemption to protect borrowers against lenders and to protect beneficiaries
History of Trusts
modern trust gradually evolved from a more ancient legal concept, 'uses'.
In common law courts, the feoffee would be treated as the legal owner whie the cestuis que use would have no rights at all. Equity also recognised the feoffee as the legal owner, Equity differented in its recognition of the cestuis que use as equitable owners of the property
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Maxims
Equity will not suffer a wrong to be suffered without a remedy; equity follows the law; where the equitities are equal, the law prevails; where the equities are equal, the first in time prevails; he who seeks equity must do equity; he who comes to equity must come with clean hands; delay defeats equity; equality is equity; equity looks to intent rather than form; equity looks on that as done which ought to be done; equity imputes an intention to fulfil an obligation; equity acts in personam; equity will not assist a volunteer (unless a beneficiary under a trust); equity will not perfect an imprfect gift; equity wil not construe a valid power out of an invalid trust; equity will not permit a statute to be used as an instrument for fraud; equity wil not permit a trst to fail for want of a trustee
Real property (realty) relates to freehold land and comes from 'action in rem' or 'real' action
Personal property (personalty) includes all property other than freehold land. It should be ntoed that for historical reasons, leasehold land is technically personalty. This is because originally, only personal remedies were available to leaseholders. Eventually real actions became available to leaseholders byt by then, leases were established as personalty
Pure Personalty - chattels personal 1)Choses in possession (tangible) 2) choses in action (intangible)
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