Published: Wed, 07 Mar 2018
Pawlett v Attorney General (1667) Hardres 465
Plaintiff entitled to sue the Crown in equity
The plaintiff (P) mortgaged his property to a man named Ludlow. P failed to make payments in terms of the mortgage due, he claimed, due to the plague. Upon Ludlow’s death, his interest in the mortgage passed to his son and heir. His heir was attained of high treason. As a result, the mortgaged property was forfeited to the King.
The question before the Court of Exchequer was whether or not P could have any remedy against the King. It was argued for the King that there was no such remedy. P argued that the King cannot deny common equity and that common equity is due against the King as natural justice is. Furthermore, it would be very inconvenient if the passing of property to the King discharged the equity of redemption in circumstances where there is no wilful default by the debtor, such was the case for P.
The Court held that citizens were indeed entitled to sue the Crown in equity. The Court observed that P ought to be relieved against the King because the King is the fountain and head of justice and equity. It should therefore not be presumed that he will be found lacking in either. Furthermore, it would derogate from the King’s honour if the equity could not be applied as against him as it would be applied against a common person. In reaching its conclusion, the Court drew a distinction between a trust and a power of redemption. A trust is created by contract but a power of redemption is an equitable right inherent in the land or property.
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