Ultimately the house of commons itself took over the

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Commons representatives). Ultimately the House of Commons itself took over the task of presenting most of these petitions, and this became the basis for the present legislative procedures of our parliaments. Other types of petitions, complaining about the inadequacy of common law causes of action, were considered by the Royal Council, which referred most of them to the Lord Chancellor. Here we need a new heading, for it was the work of the Lord Chancellor that gave rise to the body of law known as ‘equity 48
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY Equity The Lord Chancellor was one of the Crown's leading ministers. He presided over a department called the Chancery, which had begun as the Secretariat of the Council. It was the Chancery that issued the writs for common law actions, so that the Chancellor was already involved in legal work. How did the Chancellor deal with the petitions referred to him? He could not decide them on the basis of the law, since, as we have seen, petitions were sent to him because the law was inadequate to cover the plaintiff’s grievance. He decided them, instead, on the basis of ‘equity and good conscience’, that is, on the basis of what appeared to be the merits and justice of the case. This exercise of what we would now call ‘discretionary’ power was probably regarded as acceptable partly because the Chancellor was, until Tudor times, a leading churchman. From these beginnings there grew up a body of rules called equity, rules which were distinct from the rules of the common law, but supplementary to them. Here is an example. A might own a farm, and he might want his young son C to have the benefit of it. He could, of course, simply transfer the land into the ownership of his son. But he might be worried that C would not be able to manage it properly, or might even be prevailed upon to sell it or give it away. So A might choose to transfer the farm to a friend, B, to hold it ‘in trust’ for C. The land now belonged to B, as far as the common law courts were concerned, and the possible perils or problems of C owning it were avoided. As long as B applied the land for C's benefit, everyone was happy. Generally speaking, throughout the fifteenth century, this sort of procedure worked well. But what if B abused his trust? What if he tried to keep the profits from the farm for himself, or sell the farm and keep the proceeds? The common law courts had what now seems a rigid and simplistic view of the situation. B was the legal owner of the land and could do what he liked with it. The common law refused to recognize that C had suffered any actionable wrong. The common law was based on categories of wrong represented by the writs. What B did in abusing the trust placed in him, did not fall within any recognised category, and so the common law courts saw no wrong, and provided no remedy. What did C do? Well, sometimes, no doubt C would give up or gnash his teeth, or send someone around to make B an offer he could not refuse. But sometimes, C would take his complaint higher up. He
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