Ashburner’s Principles of Equity

Table of Contents

Introduction

In the study of equity, one name that always comes up is Walter Ashburner, the author of the classic book “Principles of Equity” (1902, 2nd ed. 1933). His famous metaphor has shaped how we understand the relationship between common law and equity:

“The two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters.”
— Ashburner, Principles of Equity (1902)

This means that law and equity are administered by the same courts after the Judicature Acts 1873–75, but they remain doctrinally separate. The remedies, principles, and reasoning in equity are different from common law even though they are delivered by the same judges.

What Does the Metaphor Mean?

Imagine a single river (modern courts) with two separate streams flowing side by side:

Common law → follows strict legal rules and procedures, mainly awarding monetary damages.
Equity → focuses on fairness and provides special remedies like injunctions, specific performance, trusts, and rescission.

⚖️ Law gives you the right; equity gives you justice.

Illustration

Suppose A agrees to sell his ancestral house to B but later refuses to complete the sale.

Under common law, B can only claim damages.
Under equity, B can seek specific performance — a court order forcing A to transfer the property, because money alone would not give justice.

**Historical Importance — Earl of Oxford’s Case (1615)**

This is the foundation of equity’s superiority over strict legal rules.

In this case, there was a direct conflict between a common law court and the Court of Chancery.
King James I decided in favour of equity, declaring:

“When there is conflict between common law and equity, equity shall prevail.”

This principle was later codified under the Judicature Acts — even though courts were merged, equity’s doctrines remain distinct.

Fusion vs. Separation — Modern Judicial Views

After the Judicature Acts, courts administer both law and equity together. But do they blend or stay separate? Courts have debated this:

Ashburner’s View → Law and equity are distinct; they “do not mingle.”
Lord Denning MR in Molena Alpha Inc v Federal Commerce & Navigation Ltd [1979] QB 927: “The streams of law and equity have flown together and combined so as to be indistinguishable.”
Lord Diplock in United Scientific Holdings Ltd v Burnley BC [1978] AC 904: Keeping them separate leads to “erroneous conclusions” — equity and law should be seen as integrated.

Practical Position Today:

Remedies are administered together, but equity’s principles and maxims are still distinct and applied separately wherever fairness demands.

Equitable Maxims — Core Principles

Ashburner explained equity through its maxims — guiding rules applied by courts.

(a) Equity Will Not Suffer a Wrong Without a Remedy

Ubi jus ibi remedium — if the law provides no relief, equity steps in.
Case: Ashby v White (1703)
Denial of the right to vote → equity provided damages to uphold justice.

(b) He Who Comes Into Equity Must Come With Clean Hands

If you seek equity, your own conduct must be fair.
Case: D & C Builders Ltd v Rees [1966]
Mrs. Rees tried to exploit a financially struggling builder to pay less than agreed. Equity denied her relief because she acted unfairly.

(c) Delay Defeats Equity (Doctrine of Laches)

If you sleep on your rights, you lose them.
Case: Lindsay Petroleum Co v Hurd (1874)
Plaintiff’s unreasonable delay barred them from equitable relief.

(d) Equity Follows the Law

Equity respects legal rights and intervenes only when necessary.
Illustration: If a property transfer violates statutory requirements, equity cannot validate it.

Practical Legal Applications

A. Specific Performance

Equity forces parties to fulfil contractual promises when monetary damages are inadequate.
Case: Kanhaiyalal v D.R. Banaji (AIR 1958 SC 725)
SC ordered specific performance because land was unique and irreplaceable.

B. Injunctions

Courts can stop an unlawful act before harm occurs.
Case: American Cyanamid Co v Ethicon Ltd [1975]
Laid down guidelines for granting interim injunctions.

C. Fiduciary Duties & Trusts

Equity strictly enforces duties of loyalty and care.
Case: Boardman v Phipps [1967] 2 AC 46
Trustees who profited secretly were compelled to return gains under equitable principles.

D. Promissory Estoppel

Equity protects promises even when contracts are absent.
Case: Central London Property Trust Ltd v High Trees House Ltd [1947]
Landlord couldn’t claim full rent during wartime after promising a reduction — equity stopped him.

Why Ashburner Still Matters Today

Ashburner’s framework helps us understand:

Why equity is necessary → Law can be rigid; equity brings fairness.
Why remedies differ → Equity gives tailored relief unavailable at common law.
Why courts balance both → Law and equity now operate together, but judges still invoke Ashburner’s metaphor to differentiate doctrines.

Conclusion

Ashburner’s “two streams” metaphor is still alive in modern jurisprudence.

Courts today administer both law and equity, but principles of equity remain unique and powerful tools for achieving justice.
Whether it’s specific performance, injunctions, fiduciary remedies, or promissory estoppel, equity fills the gaps where law fails.