This article is written by Jishnutosh Majumdar. In this article, the author aims to highlight the concept of the chancellor’s foot.
This phrase was first used by John Selden, famous lawyer, politician, historian & Francis Bacon’s contemporary. In his table-talk he was quoted as saying:
“Equity is a roguish thing; for law, we have a measure to know what to trust to. Equity is according to the conscience of him who is Chancellor: as it is larger or narrower so is equity. It’s all one as if they should make the standard for the measure, we call afoot to be the Chancellor’s foot.” [i]
To simplify, it refers to equity administered by the Lord Chancellor at his discretion. There was no standard estimation of equity in Henry VIII’s England, it vacillated from one Chancellor to his successor. This system inspired by ideas of natural justice was adopted to mitigate the rigours of the old common law.
Renowned Exponents of Equity
Lord Chancellor Thomas Wolsey- an exceptionally able and intelligent jurist who profoundly applied principles of equity to allay the grievances of complainants eager to obtain justice. He didn’t pay heed to the vehement opposition to his deviation from a strict interpretation of the law from the old orthodox common lawyers. He was influenced by Christopher St Germain’s classic ‘The Doctor and Student’ (1518) in which the principles of equity are stated in a manner which is relevant even to this day:
“And so it appeareth, that equity taketh not away from the very right, but only that that seemeth to be right by the general words of the law. Nor it is not ordained against the cruelness of the law, for the law in such cases generally taken is good in himself; but equity followeth the law in all particular cases where right and justice requireth, notwithstanding the general rule of the law, be to the contrary.” [ii]
Equity, therefore, provided remedy where the Common Law provided none or provided a more suitable remedy than the common law. Equity also intervened to ensure that the available remedy was enforceable. [iii] Moreover, Equity worked alongside Common Law and provided different solutions to problems. Wolsey proceeded with his bold reforms & his verdicts (though not reported) are acknowledged to have been equitable and just.
Sir Thomas More, an accomplished lawyer and a distinguished judge, succeeded Thomas Wolsey as Lord Chancellor under King Henry VIII’s reign. His tenure in the Court of Chancery though short was nothing less than remarkable. Sir More was of the opinion that law and equity might be beneficially administered by the same tribunal and he tried to convince the common law judges to relax the rigour of the law by doing equity themselves with a view to meet the justice of particular cases. He continued to grant injunctions and stayed trials and executions wherever it seemed to him that wrong would be done from their refusal to remedy the effects of the accident, to enforce the performance of trusts, or to prevent secret frauds from being profitable to the parties concerned in them which resulted in equity striding forward in his administration. [iv]
Common law had failed to keep pace with changing needs of English Society. It became rigid, it had only one remedy i.e., damages, which was often an inadequate redress for the injured party and it failed to recognize the existence of trusts. [v] It is then that these Chancellors – Wolsey & More intervened using injunctions with great effect to deliver justice undoing the fallacies of the common law.
Two centuries since John Selden criticised the system of Chancellor’s Foot, equity had undergone a vast transformation and lost its flexibility. The early Lord Chancellor’s were churchmen who had little respect for common law and precedents possessing undefined jurisdiction and exercising their powers on the ground of conscience. The custom of appointing qualified litigants emerged towards the end of the 18th century leading to the development of Equity as a distinct yet parallel branch of English Law. However, its rigidity is attributed to John Scott, later Lord Eldon who remained Lord Chancellor for over two decades. He was cynical of the variable nature of equity which reflected in his judgment in Gee v. Pritchard [vi] where he scorned the phrase: “……Nothing would inflict on me greater pain, in quitting this place, than the recollection that I had done anything to justify the reproach that the equity of this court varies like the Chancellor’s foot.”
Equity and Common law have innate differences, equity is akin to a commentary on Law but Lord Eldon endeavoured to make it a full body of legal principles and it had its own set of fixed rules and formalities and was no more arbitrary. The purpose of this approach had been defeated, and all cases on equity were to be decided by the court of chancery comprising two judges- The Lord Chancellor & The Master of the Rolls leading to unprecedented delays thus causing great injustice. There is a well-known maxim vigilantibus, non dormientibus, jura subveniunt or Delay defeats equities [vii] pertaining to laches (a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed). Thus, delay in granting equitable remedies renders it as toothless as delay in approaching the court (lapse of reasonable time). The strange case of Jennens v Jennens fictionalized by Dickens as Jarndyce v Jarndyce in his novel Bleak House, [viii] which began in 1798, and was abandoned in 1915, when legal fees had exhausted the disputed estate of funds is strong evidence of such delay.
Equity & Law
England had two distinct kinds of law over many centuries – Common Law & Equity. The Court of Chancery never claimed to override the courts of the common law. It is only when some important circumstance is disregarded by the common law rules that equity interferes. [ix] “Equity follows the law, but not slavishly nor always.” [x] However, with the passage of time, there evolved stark disparities between the two. They had different forms & different remedies & were administered by different courts. This uncertainty was palliated to a certain extent when Attorney General Sir Francis Bacon acting on the authority of King James I upheld the use of the common injunction issued by the Lord Chancellor and concluded that in the event of any conflict between the two jurisdictions of common law and equity, equity would prevail (The Earl of Oxford’s case of 1615). [xi] Yet the disparity, inconvenience and conflicts existed and any merger seemed improbable.
A Commission appointed in 1850 reported that extensive and deep-rooted mischiefs arose from this system of separate courts proceeding on diverse & sometimes antagonistic principles. Often in the course of the same litigation parties were driven to & fro between common law and courts of equity as no court had full power to grant complete relief. The common law courts had no power to order specific performance and only a very limited power of granting injunctions, while the Court of Chancery usually could not award damages. [xii] Let’s imagine a case where a plaintiff sought damages for non-performance of a contract & an injunction of specific performance in future, he/she had to begin actions in each court separately and fight these simultaneously, it was possible to win or lose in either or a victory in both could come years later. Equity thus worked behind the scenes of the common law action, the common law principles were theoretically left intact but by means of this intricate mechanism, they were superseded by equitable rules in all cases of conflict or variance. [xiii]
This system went on until the enactment of Judicature Acts 1873 & 1875 which ushered in a radical change in the administration of law and equity. The main purpose of the Acts was to consolidate the superior courts into one Supreme Court of Judicature. By the Act of 1873 (ss. 3, 4), the Court of Chancery, the Court of Queen’s Bench (known as the King’s Bench when there is a male Sovereign), the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, and the Court of Divorce and Matrimonial Causes were replaced by the Supreme Court, subdivided into two courts: the “High Court of Justice” (“High Court”), with original jurisdiction, and the “Court of Appeal” & the Supreme Court was directed to administer both law & equity. [xiv] The common law injunctions (equity acts in personam) were abolished & it was provided that in cases of conflict or variance between the law of equity & rules of common law, the rules of equity should prevail. [xv] The Courts must first consider if so pleaded, the question of common law mistake. [xvi] If the contract is pronounced void, no equitable relief will arise. If, on the other hand, the contract is valid, the Court may then proceed to consider the possibility of any further relief in equity which may have been asked for by the parties. [xvii]
Since then common law and equity follow the same procedure despite retaining their different approaches. As Ashburner in Principles of Equity puts it: “the two streams have met & now run in the same channel but their waters do not mingle.”
Equity cannot be construed as an intrusion to normal courts of law but as an integral part of English law. It can be understood generally as justice and fairness. Arguably this can only be achieved if there is certainty within the law, as without the strict rules of the law there would not be universal justice and fairness. However, it was and still is evitable that the law will in some cases give ‘unfair’ outcomes and this is where the concept of conscience would be enforced. [xviii]
The disparities between law and equity were not always stark. Not all common law declarations were incisive, and common law pleading did not always isolate tidy issues; sometimes there was a joinder of parties or issues. Conversely, equity often developed its own formal rules of both substance and process. Nevertheless, certain rules of equity contradicted the rules of law and in such circumstances as per the provisions of The Judicature Act, 1873 (section 25), the equity should prevail. The following are special cases of possible conflict:
- The order of priority of payment of debts of a person dying insolvent.
- The period of limitation applicable to claims against express trustees.
- The extent of the liability for waste, committed by the owners of limited interests in the land. [xix]
- The rule that the merger of estates depends on intent & is not automatic.
- The right of a mortgagor to bring an action for possession against a third person without joining the mortgagee.
- The refusal of the common law but not of equity to recognize the assignments of debts & chooses in action.
- The indulgence with which equity regarded the unpunctual compliance with stipulations not of the essence of contracts.
- The power of granting injunctions and appointing receivers.
- The rules relating to custody & education of infants.
At law, the judgment in personam creates de novo obligation, performance of which, however, apart from what are now comparatively rare cases of arrest or execution against the person, is not coerced by duress of impending or actual imprisonment.
In the process of equity, the decree creates a new obligation, performance of which by the obligee is usually coerced by duress of impending or actual imprisonment for contempt of court in case of disobedience. [xx]
Equity can deal with controversies to which there are multiple parties, the law cannot. For example, Suretyship-creditor, principal obligor and surety obligor.
Equity may be advisory or contentious, legal proceedings are merely contentious. For example, A trustees bill of advice from a court of equity.
It has not often been necessary to resort to the provision on Concurrent administration of law and equity (s. 49 of Senior Courts Act, 1981 [xxi]) barring certain vital instances:
- Equitable lease– The Court of Appeal in Walsh v. Lonsdale [xxii] decided that Walsh held on the same terms as if a lease had been granted since the agreement was one of which the court would order specific performance. “They are not two estates as there were formerly, one estate at common law by reason of the payment of rent from year to year, & an estate in equity under the agreement. There is only one court & the equity prevails in it.”
- Variation of Deeds.
- Executor’s Liability for Assets.
- Contribution between Sureties.
It is only on matters of principle in which equity prevails, not on matters of practice. A legal estate remains a legal estate & an equitable interest is still an equitable interest. [xxiii] “Judicature Act was not any fusion or anything of the kind; it was the vesting in one tribunal the administration of law & equity in every cause, action, or dispute which should come before that tribunal”. [xxiv] It is a fusion of administration rather than principles.
Equity in Modern Times
The main functions of Equity today are to provide new remedies in a society that continues to change, and also to infuse the law in general with a certain humanity. The British Courts evolved two ex parte remedies known as Mareva injunction & Anton Piller orders.
The Mareva Injunction
This remedy was evolved to safeguard the interests of the plaintiff, where the defendant was out of the jurisdiction, but happened to have his assets in the country. The injunction got its baptism in Mareva Compania Naviera SA v. International Bulkcarriers SA [xxv] when the case came up in a Court of Appeal. The purpose of Mareva injunction is not in any way to improve the position of claimants in insolvency, but simply to prevent the injustice of a foreign defendant removing his assets from the jurisdiction which otherwise might have been available to satisfy a judgment. [xxvi]
The Anton Piller Injunction
The order takes its name after Anton Piller KG v. Manufacturing Process Ltd. [xxvii] The object of seeking & the grant of an Anton Piller order is the preservation of evidence, documentary & in other material forms, so that it may be preserved to be available to the court at the trial, so that justice may be done.
Legal Position in India
The provisions of the Indian Code of Civil Procedure are wide enough to enable the court to pass any such order. In India the common law doctrine of equity had traditionally been followed even after it became independent in 1947, however, under the Specific Relief Act 1963, most equitable concepts were codified and made statutory rights.
The scope of this article is to trace the history & development of equity. It seeks to specifically determine the reasons, if any, for the failure of the common law courts in bringing about social change and suggests certain important methods of overcoming the impediments. Equity focuses on what is morally right from wrong within the eyes of the law, whereas the law states what is legally right from wrong. The eyes of the law are human eyes, therefore, making conscience the defining principle of equity. [xxviii]
[i] Rt Hon LORD DENNING, LANDMARKS IN LAW 57 (1st Ed., Butterworths 1984).
[ii] Christopher St. Germain, The Doctor and Student (1518)-Dialogue 1, Chapter 16 (Apr., 1,2020, 21:46 PM), https://lonang.com/library/reference/stgermain-doctor-and-student/sgm-116/.
[iii] Sean Gabb, “Equity is as Long as the Chancellor’s Foot. Critically Discuss This Statement” (Apr., 2,2020, 16:57 PM), https://www.seangabb.co.uk/equity-is-as-long-as-the-chancellors-foot-critically-discuss-this-statement-2017-by-sean-gabb/#_ftn5.
[iv] Garrard Glenn, St. Thomas More As Judge and Lawyer, 10 Fordham L. Rev. 187,189-190 (1941).
[v] Sean Gabb, “Equity is as Long as the Chancellor’s Foot. Critically Discuss This Statement” (Apr., 2,2020, 23:30 PM), https://www.seangabb.co.uk/equity-is-as-long-as-the-chancellors-foot-critically-discuss-this-statement-2017-by-sean-gabb/#_ftn5.
[vi] Ann Paxton Gee v William Pritchard and William Anderson (1818) 36 ER 670.
[vii] P.V. Baker & P. St. J. Langan, SNELL’S PRINCIPLES OF EQUITY, 34 (28th Ed., Sweet & Maxwell Ltd., London, 1982).
[viii] Patrick Polden, Stranger than Fiction? The Jennens Inheritance in Fact and Fiction Part Two: The Business of Fortune Hunting, COMMON LAW WORLD REVIEW, at 338,339, http://www.moonzstuff.com/jennings/poldenarticle.pdf (last visited on 3rd Apr. 2020, 11:09 AM).
[ix] P.V. Baker & P. St. J. Langan, SNELL’S PRINCIPLES OF EQUITY, 30 (28th Ed., Sweet & Maxwell Ltd., London, 1982).
[x] Graf v. Hope Building Corporation, 254 N.Y. 1 at 9 (1930), per Cardozo C.J.
[xi] (Apr., 3, 2020, 21:17 PM) https://www.lawteacher.net/free-law-essays/equity-law/conflict-between-common-law-and-equity-equity-law-essay.php#ftn7.
[xii] P.V. Baker & P. St. J. Langan, SNELL’S PRINCIPLES OF EQUITY 11-12 (28th Ed., Sweet & Maxwell Ltd., London, 1982).
[xiii] Glanville Williams, Learning the Law 23 (10th Ed., Stevens & Sons, London, 1978).
[xiv] P.V. Baker & P. St. J. Langan, SNELL’S PRINCIPLES OF EQUITY 12 (28th Ed., Sweet & Maxwell Ltd., London, 1982).
[xv] Glanville Williams, Learning the Law 24 (10th Ed., Stevens & Sons, London, 1978).
[xvi] A.G. Guest, Anson’s Law of Contract 290 (26th Ed., Clarendon Press Oxford, 1984).
[xvii] Munro (Robert A.) & Co. Ltd. v. Meyer,  2 K.B. 312, at pp. 333-335.
[xviii] (Apr., 4, 2020, 00:53 AM) https://thestudentlawyer.com/2014/03/11/what-is-equity/.
[xix] Law of Property Act, 1925, s.135, post, p.655.
[xx] Wesley Newcomb Hohfeld, The Relations between Equity and Law, Vol. 11, No. 8, Michigan Law Review, (Jun. 1913), at 551.
[xxi] Senior Courts Act, 1981, c.54, Act of Parliament of United Kingdom, s. 49.
[xxii] Walsh v. Lonsdale, (1882) 21 Ch.D.9.
[xxiii] P.V. Baker & P. St. J. Langan, SNELL’S PRINCIPLES OF EQUITY 17 (28th Ed., Sweet & Maxwell Ltd., London, 1982).
[xxiv] Salt v. Cooper (1880) 16 Ch.D. 544 at 549, per Jessel M.R.
[xxv] Mareva Compania Naviera SA v. International Bulkcarriers SA  1 All ER 213 CA.
[xxvi] L.C. Goyle, Law of Injunctions 4-5 (1st Ed., Eastern Law House, Calcutta, 1987).
[xxvii] Anton Piller KG v. Manufacturing Process Ltd.  1 All ER 779 CA.
[xxviii] (Apr., 4, 2020, 19:25 PM), https://thestudentlawyer.com/2014/03/11/what-is-equity/.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: