The differences between common law and equitable
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Equity, according to Maitland, “is now that body of rules administered by our … courts of justice which,
were it not for the operation of the Judicature Acts, would be administered only by those courts which
would now be known as Courts of Equity.” Therefore, birth of equity came about when the strictures of
the writ system through the twelfth and the thirteenth centuries failed to develop further remedies.
Disappointed litigants began petitioning the King to do justice in their particular case, as he was “the
fountain of all justice”. As the petitions increased, the King delegated the duty to the Chancellor, his
most senior official, as the “keeper of the King’s conscience”. On receiving the petitions, the Chancellor
would adjudicate them, according to principles of fairness and justice, thus developed equity.
By the fifteen century, equity became well established and was seen as the rival system of common
law. The Chancellor’s jurisdiction was exercised through the Court of Chancery. He was not bound by
precedent or strict legal rules as the common law courts and consequently, was able to use discretion
to administer justice to a particular case. They developed well established principles which govern the
exercise of the discretion of the court, which was flexible and adaptable to achieve justice and fairness,
which is, as Lord Selborne LC in Wilson v Northampton and Banbury Junction railway Co. remarked,
to “do more perfect and complete justice than would be the result of leaving the parties to their
remedies at common law”.
The increasing popularity of the Court of Chancery soon led to conflict with the common law courts.
When there was a conflict between the two, equity would use a remedy which had the effect of
preventing common law action from proceeding or prevent the common...