Equity Acts in Personam PDF

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Notes for Equity Law on 'Equity Acts in Personam'....

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EQUITY ACTS IN PERSONAM 1. Introduction: The court of equity always enforced its decree in personam. the court orders the decree of the court of equity do not directly operate to transfer legal right from the defendant to the plaintiff, but is of nature of personal command on the defendant and it is effected through his personal obedience. if he fails to obey the order of court of equity he is arrested and imprisoned. 2. Meaning: Equity binds the conscience of a person do which is required by the court. the court of chancery always enforced its decree in personam. it entertain certain suits respecting immoveable property, though the property might be situated abroad if the relief sought could be obtained through the personal obedience can only be secured. if he resides within the local limit of the jurisdiction of the court or carried on business with in those limits. 3. 3. Purpose: Its purpose is to avoid the direct clash with the court of law. 4. Importance: This maxim has a vital importance. it describe the procedure in equity the judgments of the court of equity operate in personem upon defendant. specially in cases of land falling out side the jurisdiction of the court. The maxim explainedThe maxim means that equity Equity enforces at its best by acting on the conscience of a person who is charged therewith ie..the court looks to the person of the defendant for the fulfilment of its decree. The maxim is the widest and the most important of equitable maxims, because it comprises the whole jurisdiction of equity. This maxim explains the peculiar procedure of enforcement of the decrees of the court of chancery. It had its origin in the principle that equity is enforceable by a process of contempt. While the judgement of the court of the common law was enforced by the wrists of execution by which the plaintiff was forcibly put in possession of the property to which he was entitled, the courts of chancery or equity did not interfere with the defendants property, but merely made an order against the defendant ‘personally’ and if the defendand fail to comply with the order it punished him for his disobedience by imprisinment or commital for contempt. The decree could be executed in person and not against the land and property of the defendant. The reason is that court of equity operates genrally in personam and not in rem. Dr. hanbury observed that:

“This is the widest of all the maxims. In a sense it comprises the whole jurisdiction of equity; it cannot be too often emphasised that on this maxim is based the whole theory of trusts and of their equitable intrests analogous to trust.” The maxim, “Equity acts in personam” means that the court of equity has jurisdiction to entertain suits respecting immovable property, though the propperty may be situated abroad, if the relief sought can be obtained through the personal obedience of the defendant. Thus, for example, the english court may order: 1. Specific performance of contract relating to land outside its jurisdiction; 2. administration of the foreign estate, if the executor or trustee is within its jurisdiction; 3. redemption or foeclosure of land situated in its jurisdiction. Penn v lord baltimore.* – In this case, penn and lord baltimore who lived in england enterd into an agreement to settle boundaries of two provinces into an agreement to settle boundaries of two provinces in america—Pennsylvania and marryland, the former of which belonged to the plaintiff and the latter to the defendant, under the various grants which were recited in agreements. Theplaintiff sued the defendant in the court of chancery in england to have the agreement specifically performed, and one of the objections taken by the defendant was to the jurisdiction of the court, but this objection was overruled by lord harwicke on the ground that “the conscience of the party was bound by the agreement and being within the jurisdiction of the court, which acts in personam, the court may properly decree it as an agreement. ‘ the principle was- the land was not within the jurisdiction, but the defendant was- and the court had in its power to prevent him from ever returning to enjoy his land unless he would fulfill his agreement. It may be remembered that the court of equity never assumed to determine questions of title in the land which was situated of the England or abroad thus the equity courts had longer arms than that of the common law courts,particularly in case of land situated in foreign country Ewing v. orr. Ewing*-in this case a person domiciled in Scotland died leaving personal estate in Scotland. He made a will in scoth form, and appointed scotchman to be his executors and trustees. An infant legatee,resident in England, brought an action for the administration of the estate against the executors, trustees who entered appearance without protest. The questions were wether the English courts had jurisdiction to order administration as to the whole state. It was held that the English court had jurisdiction as to the whole estate. The court of equity exercised similar jurisdiction in actions for redemption and foreclosure of a mortgage on land outside England or for specific performance of an agreement to create a mortgage on such land or for an account of the rents and profits, or if necessary, for the appointment a receiver of such land. ………………………………………………………………………………….. (1750)1 ves.sen.444 l.r.(1883)9 a.c.34,40

While explaining the doctrine and delivering the judgement, Lord Selborne, L.C., observed ; “ the courts of equity in England are, and always have been the courts of conscience, operating in personam and not in rem and in the exercise of this personal jurisdiction, they have always been accustomed to compel the performance of the contracts and trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction. They have done so as to land in Scotland in Ireland, in colonies and in foreign countries.” Hanbury says “the court of equity will decree specific performance of a contract relating to land out of the jurisdiction if the defendant is within the jurisdiction and nothing more than his imprisonment is required to render the decree effective but it will never decide the title to the land, nor will it given specific performance of a contract relating to the land outside the jurisdiction; unless that land is in a country subject to the crown. It is notable that assumption of jurisdiction has been generally criticized. Lord esher, for example, observed in Companhia Maocambic v. British South Africa Co. that the decision in penn v. Baltimore, which has been acted by other great judges in equity seems to be open to the strong objection to the court is doing indirectly what it does not do directly. Application of the maxim - the courts of equity in England are courts of conscience. In the exercise of this jurisdiction, they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not either locally or ratione domicilli within their jurisdiction. They have done so as to lands of Scotland, in Ireland, in the colonies and in foreign countries. 1. Cases of fraud- as regards where lands, abroad have been acquired by the fraud of a party residing within the jurisdiction. 2. Cases of trusts- as regards where a suit is filed against a person residing within jurisdiction to enforce an express trust affecting land outside jurisdiction. 3. Cases of contracts- such as suits for specific performance of contracts for sale of land or foreclosure or redemption of mortgage. Conditions: Following are the conditions for application of the maxim: (i) The remedy sought must be equitable remedy. (ii) There should not litigation in the appropriate foreign court. (iii) The dispute must be one of the conscience. (iv) Dispute must not be in which involves a breach of foreign law. 9. Exceptions: (i) It will not apply to an action for local transfer of land abroad. (ii) It has no application where there is no contract and the dispute between the parties is only a question of title foreign land.

Limitation.- The doctrine is, however, subject to the following limitations : a. the defendant himself must be within the jurisdiction, or should be capable of being served with process outside the jurisdiction. b. The remedy sought in such cases must be an equitable remedy. c. The defendant should be subjected to some obligation arising from his own act; or as Strahan puts it, “when the dispute is one of the conscience.” It follows from this rule that there must be some personal element in the case and the court will not interfere on the basis of this maxim if the case involves nothing more than a naked question of title to foreign land. In india the jurisdiction of courts is governed and must be ascertained on the same principles as are applicable to English courts of equity, except so far as they may be at variance with the legislative in enactments. Infact a number of enacted provisions incorporate this magazine in the indian law. Rights in Rem 1. A right in rem is available against the world at large. (Rem = world). 2. Example: I have a house. The people of the world have a duty not to interfere with my possession. Nobody has right to disturb my possession and enjoyment. 3. I have money in my pocket. I can use my money as like. The world at large has no right to interfere with my possession. 4. It is called “real right”. Converse this right; there is a duty upon every person of the world not to interfere with other’s rights. 5. This right protects interest against the world at large. 6. Patent right, copy right, etc. are the best examples for the rights in rem. 7. All rights in rem are negative. 8. It is available against an open or indefinite class of persons. 9. The freedoms given in article 19 of the Indian constitution with its restrictions are the rights in rem. 10. All “general offers” are “rights in rem”. Rights in Personam 1. A right in personam is available only against a particular person. 2. Example: I let my house to Z-tenant. I have a right to receive rent from my tenant. This right to receive rent from my tenant. This right to receive rent is a right in personam. The rest of the world is not concerned with this right. 3. y-debtor has to give me Rs. 5,000/-, who had taken from me as a hand-loan. I have the right in personam to receive back the sum of Rs. 5,000/- from X. 4. It is also called as “personal right”. Converse this right, there is a duty imposed upon determinate individuals.

5. This right protects an interest solely against determinate individuals. 6. Purchase of good-will of business is the best example for the right in personam. 7. All rights in personam are positive. 8. It is available only against a specific person or persons. 9. All easements are the rights in personam. 10. All “specific offers” are “rights in personam”. It is in the nature of equitable remedies that they generally operate against the person of the defendant, being enforceable by imprisonment for contempt. It is in this way that, as discussed above, equity could claim not to be interfering with the common law. The judgment at law in effect was binding on the whole world and equity intervened only against the individual defendant, who was prevented from enforcing his legal rights. Another feature of this principle is that equitable rights were not enforceable against everybody but could be defeated by the interest of the bona fidepurchaser. The in personam nature of the operation of equity also has specific relevance in relation to property and interests abroad. As a general rule, English courts will not entertain actions concerning title to foreign land. As Lord Campbell LC stated in Norris v Chambres (1861) 3 De GF & J 583 An English Court ought not to pronounce a decree, even in personam, which can have no specific operation without the intervention of a foreign Court, and which in the country where the lands to be charged by it lie would probably be treated as brutum fulmen[an empty threat]. The position is otherwise if the intended decree acts in personam , as equitable ones do, and also the defendant is within the reach of the English courts. As Lord Cottenham observed in ex parte Pollard (1840) Mont & Ch 239: contracts respecting lands in countries not within the jurisdiction of these courts . . . can only be enforced by proceedings in personamwhich courts of equity here are constantly in the habit of doing: not thereby in any respect interfering with the lex loci rei sitae If indeed the law of the country where the land is situated should not permit or not enable the defendant to do what the court might otherwise think it right to decree, it would be useless and unjust to direct him to do the act; but when there is no such impediment the courts of this country, in the exercise of their jurisdiction over contracts made here, or in admin-istering equities between parties residing here, act upon their own rules, and are not influ-enced by any consideration of what the effect of such contracts might be in the country where the lands are situate. The core of the equitable jurisdiction is the principle that it acts in personam

That means that a Court of Equity is concerned to prevent any given individual from acting unconscionably. The Court of Equity is therefore making an order, based on the facts of an individual case, to prevent that particular defendant from continuing to act unconscionably. If that person does not refrain, she will be in contempt of court. The order, though, is addressed to that person in respect of the particular issue complained of. It is best thought of as a form of judicial control of that particular person’s conscience. The study of equity is concerned with the isolation of the principles upon which judges in particular cases seek to exercise their discretion. It is a complex task to find common threads between different cases in which judges are reaching decisions on the basis of the particular facts before them. Therefore, it is always important forthe student to readthe leading cases and the anomalous cases in the law reports tounderstand the reasons why judges have reached particular conclusions The courts of Equity in England are, and always have been, courts of conscience, operating in personamand not in rem; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not . . . within their jurisdiction. The focus of a Court of Equity in making a judgment is to act on the conscience of the particular defendant involved in the particular case before it. Therefore, equity is acting against that particular person and not seeking, in theory, to set down general rules as to the manner in which the common law should deal with similar cases in the future. Of course, over the centuries, the courts have come to adopt specific practices and rules of precedent as to the manner in which equitable principles will be imposed, just as common law rules have developed by means of the application of the doctrine of precedent. Dr.Banerjee while dealing with the appointments of receivers on the strength of section 16 and section 16-A (now section 19) of civil procedure code provides that, the court in india have but limited power of making a decree in personam. He further says that “apparently equity may act in personam in india too .” the provision to section 16, has been stated by mulla, to be an application, though in a highly qualified form, of a maximequity acts in personam. Conclusion: To conclude I can say that, the equity acts in personam was adopted by the early chancellors, in order to avoid a direct collision with the court of law. the own judgment of court of equity operate in personam upon the defendant. the court of equity has jurisdiction to entertain suits respecting immovable property, though the property may be situated abroad....