Chancery in Protecting against the Cestui Que Trust One Who Purchases from aTrustee for Value and without Notice

https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=3963&context=californialawreview

July 1924

Theory of Chancery in Protecting against the Cestui Que Trust One Who Purchases from aTrustee for Value and without Notice

George P. Costigan Jr.

file:///C:/Users/A%20User/Downloads/53-106-1-SM.pdf

The prospect of any principled development of equitable principles seems remote short of a revolution on the Court of Appeal. The blame is largely attributable to Lord Cooke's misguided endeavours. That one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems and the need for vigilant exposure and rooting out of error.

From a historical perspective one of the outstanding characteristics of equity has been its capacity to develop new rights and remedies for the benefit of plaintiffs. The need for such creativity within English law was the very reason for equity's genesis.53

It must not be forgotten that the rules of Courts of Equity are not, like the rules of the Common Law, supposed to have been established from time immemorial. It is perfectly well known that they have been established from time to time - altered, improved, and refined from time to time. In many cases we know the names of the Chancellors who invented them.

. Equitable remedies need to be fashioned to meet new and changing circumstances. Contribution is one such remedy. Our admiration of equity's past is best expressed by being alert to assure its present operation and future relevance

Equity Legal Definition:

A branch of English law which developed hundreds of years ago when litigants would go to the King and complain of harsh or inflexible rules of common law which prevented "justice" from prevailing.

https://courts.delaware.gov/chancery/history.stm

 Unlike its extinct English ancestor, the High Court of Chancery of Great Britain, Delaware's Court of Chancery has never become so bound by procedural technicalities and restrictive legal doctrines that it has failed the fundamental purpose of an equity court--to provide relief suited to the circumstances when no adequate remedy is available at law.

usage

 an equitable lien on an inheritance; a bill to equitably redeem land subject to a mortgage; bills for specific performance; a bill for liberty by an indentured servant; a bill to enjoin enforcement of a note given in contract for an unhealthy slave; cases relating to an estate settlement; petitions to sell property of a ward; trustees' accountings; breaches of trust petition in a land sale; a petition to stay waste by a life tenant; and, a petition to cancel a bond. 

Equity is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law. For centuries, the common law was referred to as the law, in contrast with equity. As to the most common criticism of equity, these words of the English jurist, John Selden (1584-1654):

"Equity is a roguish thing, for Law we have a measure know what to trust too. Equity is according to ye conscience of him ye is Chancellor, and as ye is larger or narrower soe is equity. Tis all one as if they should make ye standard for ye measure wee call a foot, to be ye Chancellors foot; what an uncertain measure would this be; One Chancellor has a long foot - another a short foot - a third an indifferent foot; tis ye same thing in ye Chancellors conscience."

A recent decision by Mr Justice Collins in the English High Court160 has also led another commentator to suggest that a 'momentum is building towards strict liability in equity'.161 Notions of 'rationalising the law' or 'recasting the law' upon these sacred subjects sends shivers down the spines of some Australian equity purists. Despair over English adherence to basic equitable categories is never far from the Antipodean critics' minds. Darkly, defenders of doctrinal purity  are heard to mutter that things equitable have gone downhill in England ever since  the United Kingdom joined the European Community (now Union) and came under the  baleful influence of the Europeans' endless quest for conceptual thinking in the place of the established historical categories and decisional taxonomies of the English legal tradition.

file:///C:/Users/A%20User/Downloads/53-106-1-SM.pdf

"Few legal niceties bind a court of equity in its attempt to do right and justice. It functions through flexibility rather than rigidity, in framing its decrees, and it recognizes there is no limit to the various forms and kinds of specific remedy which it may grant, adapted to novel conditions of right and obligation, which are constantly arising from the movements of society.

"The Supreme Court has recently repeated2 that District Courts, in the framing of equitable decrees, are clothed with large discretion to model their judgments to fit the exigencies of the particular case."

"If there is an adequate legal remedy to the Plaintiff, then in my view I need not deal extensively with the equitable remedies claimed by the Plaintiff. This flows from the first equitable maxim, which indicates equity will not suffer a wrong without a remedy.

"It also flows from the second equitable maxim. The second equitable maxim is that equity follows the law. Where a rule, either of common or statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it. Consequently, if there is an adequate legal remedy available to the Plaintiff I need not slavishly examine equitable remedies that might also be available to him."

"If, in 1815, the common law halted outside the banker's door, by 1879equity had had the courage to lift the latch, walk in and examine the books."

https://www.jgray.org/codes/cceo90eng.html

https://en.wikipedia.org/wiki/Ecclesiastical_court

Canon 23 - No one is permitted to damage unlawfully the good reputation which another person enjoys nor to violate the right of any person to protect his or her own privacy.Canon 24 - §1. The Christian faithful can legitimately vindicate and defend the rights which they enjoy in the Church before a competent ecclesiastical court in accordance with the norm of law.§2. The Christian faithful also have the right, if they are summoned to judgment by competent authority, to be judged in accordance with the prescriptions of the law to be applied with equity.