Useful Notes on “Equity” – As a Source of Law

It is, however, neither possible nor convenient for equity to cover the whole field of natural justice. A large proportion of natural justice cannot be judicially enforced.

Then again it does not include nearly the whole of that portion of natural justice which is capable of being enforced by legal sanctions and administered by legal tribunals, for the greater part of that portion is embodied in the rules of Common Law and in the statute law.

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Equity may then be defined, in the words of Small, as a portion of natural justice which, although of a nature suitable for judicial enforcement, was for historical reasons not en­forced by the Common Law Court an omission which was supplied by Court of Chancery.

During the 17th and 18th centuries, Equity fast became a system of 1 aw in the true sense, supplementing the ordinary Common Law in certain matters. This development was completed by Lord Eldon at the beginning of the 19th century. By the Judicature Act of 1873, however, the Courts of Common Law and Chancery were merged into one Supreme Court of Judicature where the same judges began to admin­ister both Law and Equity.

Though in cases of conflict it has been provided that the rules of Equity shall prevail over rules of Common Law, nevertheless the two systems are still distinct. As Ashburn puts it: “The two streams of jurisdiction, though they run in the same channel, do not mingle their waters.

This distinction between legal and equitable claims, between legal and equitable remedies, has not been broken down in any respect by legislation.”

Equity in England, there­fore, played the role of an addendum to the Common Law. It was a sort of appendix added on to the Code or a sort of gloss written round the Code.

It will thus appear from the above that both the Roman Aquila’s and Equity supplemented the ordinary law of the land and operated to moderate and reform the hardness of the law by assisting it where it was defective and weak.