Vol. 12 · pages 231–235

COMMON LAW The Relation of Common Law to Equity 1. In the English system, Equity has acquired a technical connotation and we are accustomed to think of it as a whole jurisdiction distinct from Common Law principles. 2. For better or for worse, the stream of English Law divided into two channels, not without considerable disturbance of the soil and morbidity of the waters. 3. But the interdependence of Law and Equity has never wholly disappeared. 4. We ought not to think of Common Law and Equity as rival systems. Equity was not a self-contained system, at every point it presupposed the existance of Common Law. The principle on which the Court of Equity granted relief 1. If we look for one general principle which more than any other influenced the Equity developed by the Chancery, we find it in a philosophical and theological conception of conscience. 2. The English Equity begins to be systematized under the guidance of a governing moral principle of conscience. 3. Not that we can suppose that all the Chancellors were assidious and consistent in the pursuit of that principle. Under the Tudors, some Of them behaved with complete arbitrariness. These occasional aberrations may have inspired Seldon’s oft quoted, but probably only half serious quip about the length of the Chancellor’s foot. But they were not typical, the ‘conscience’ which the Chancellor set before him was normally something more constant and imperishable than the mere caprice of his own whim. A ‘hardening’ process sets in. By 1676 we find Lord Nottingham expressly repudiating the notion that the conscience of the Chancellor is merely naturalis et interna, and in 1818, Lord Seldon summarily repudiates any notion of mere

212 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES individual discretion being open to an Equity Judge. Equity is a settled system of conscience. The limits of the Chancellor’s authority 1. This prerogative to grant relief had certain limits :— (i) It could be exercised only where law gave no rights but where conscience required that certain rights should be given—This was known as the Exclusive jurisdiction of Equity. (ii) It could be exercised only where law gave rights required by conscience but the remedies which it gave were insufficient to satisfy justice—This was known as the concurrent jurisdiction of Equity. (iii) It could be exercised in matters in which the law gave rights required by conscience and remedies sufficient to satisfy the ends of justice but as to which its process was too defective to secure the remedies without the assistance of Equity—This was known as the auxiliary jurisdiction of Equity. The nature of an equitable right 1. The nature of an equitable right will be better understood if it was studied in contrast with a moral right and a legal right. A mere definition would be very little use. 2. By way of introduction we may begin by seeking to have a precise conception of a right. What do we mean when we say that any given individual has a right : (i) If a man by his own force or persuasion can carry out his wishes, either by his own accord or by influencing the acts of others, he has the ‘might’ so to carry out his wishes. (ii) If, irrespectively of having or not having this night, public opinion would view with approval or at least with acquiescence, his so carrying out his wishes, and with disapproval any resistence made to his so doing then he has a ‘ moral right’ so to carry out his wishes. (iii) If, irrespectively of the approval or disapproval, acquiescence or non-acquiescence of public opinion, the State would support him in carrying out his wishes then he has a legal right so to carry out his wishes. 3. Whether it is a question of might, depends upon a man’s own powers of force or persuation. Whether it is a question of moral right depends on the readiness of public opinion to express itself on his side. Whether it is a question of legal right, depends upon the readiness of the State to exert its force on his

213COMMON LAW behalf. A legal right exists where one course of action is enforced, and the other prohibited by that organized society which is called the State. A legal right is, therefore, an interest which is recognized and protected by the State. Right is any interest, respect for which is a duty and the disregard for which is a wrong. The Characteristics of a legal right 1. A legal right is a right which unlike moral right is enforced by the State. 2. A legal right is founded in a title which must be shown to have been acquired in any one of the modes of acquiring title recognized by law—e.g. possession, prescription, agreement and inheritance, etc. 3. A vestitive fact which creates a title to a right in one person destroys the title of another to the same right. 4. A legal right creates an obligation which is either an obligation in rem or an obligation in personam. In what respects does an equitable right resemble, in what respects does it differ, from a legal right 1. Equitable right is not like a moral right which is not enforced by the State. Equitable right is like a legal right in that it is enforced by the State. 2. A title to an Equitable right need not be created by any one of the recognized modes by which a title to a legal right is created. This is the most important distinction. Illustration : (i) A legal mortgage of land must be created by a deed. But an equitable mortgage may be created otherwise than by deed :— (a) The statute of trade required that no action shall be brought upon any contract or sale of lands or any interest therein unless agreement was in writing and signed by the party or his agent.

214 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES But if the title-deeds of an estate are, without even verbal communication, deposited by a debtor in the hands of the creditor, the mere fact of such deposit is enough to constitute the creditor a mortgage of the estate. (b) An agreement that a creditor shall hold land at a fair rent to be retained in satisfaction of the debt, is a mortgage in equity but not in law. (ii) Assignment—Legal and Equitable. Legal. : (1) Assignment must be in writing under the hand of the assignor—signature of the agent not sufficient. (2) The writing must contain a direction or order to the debtor by the creditor to pay the assignee. (3) There must be express notice of assignment to the debtor. Equitable: (1) The mode or form of assignment is immaterial provided the intention of the parties is clear. Assignment may be verbal. (iii) Charge—Legal and Equitable, (iv) Lease—Equitable and Legal, (v) Servitude—Equitable and Legal. Married Women’s Property This illustrates how an equitable right can arise without the legal formalities of conveyance required for the creation of a legal right. (1) At Common Law, husband and wife were one person, and the status of the wife merged in that of the husband. The result of this merger was that the husband became the absolute owner of her personal property and acquired the sole right of controlling and managing her real estate. On her death he became absolutely entitled to any of her personal property that had not already been sold and to a life estate by courtsey in her fee provided a child had been born. (2) Secondly, a husband could not make a grant to his wife directly or enter into a covenant with her, for to allow either of these things would have been to suppose her separate existence. (3) The effect of marriage at Common Law was to make a man complete master of his wife’s property and to deprive her of contractual capacity.