equity act in personam

7/22/2019 Equity Act in Personam

http://slidepdf.com/reader/full/equity-act-in-personam 1/19

Starring : Muhammad Syafiq, Andre Ashrawi, Muhammad Izuan,Muhammad Syaqeel, Hasniza

“EQUITY ACTS INPERSONAM

”



DEFINITION

Equity acts in personam is defined as make personal

orders against individuals. To act in personam means it acts upon a person's

conscience.

This doctrine's relevance can be seen in the

discretionary power of courts of equity. It binds the conscience of a person doing which is

required by the court.

It is to prevent that particular defendant from continuingto act unconscionably.



It comes in handy with regard to properties held

abroad. It only entertains certain suits respecting immoveable

property, even when the property might be situatedabroad.

It is to render the location of the property immaterial,where the court can acquire jurisdiction over theperson of the defendant.

For example, as long as the defendant is physically inthe jurisdiction of the court, the court can make

equitable decrees with respect to the defendant'sproperty anywhere.



It opposed to acting in rem which is a characteristic ofcommon law, where it acts upon the property that issubject to the suit.

For in rem, it is directed to no specific person butconsequently against to all whom it might concern.

Such as assertion of a right of property, easement or

status.



CASE OF EWING V ORR (1883) 9 APP CAS 34



FACT OF THE CASE

Testator domiciled in Scotland, and possessed of a large

personal and some heritable property in Scotland and of a

comparatively small personal property in England, by will made

in Scotch form appointed several persons to be executors and

trustees, some of whom resided in England and some in

Scotland. The trustees obtained a confirmation of the will in

Scotland, and the confirmation was sealed by English Court of

Probate under Confirmation of Executors (Scotland) Act 1858.

An infant legatee resident in England brought by his next friend

an action here to administer the estate, and the writ was served

upon some of the trustees in England, and (under an order)upon the Scotch trustees in Scotland.



The trustees appeared without protest and took no steps to

discharge the order, but obtained an order of reference to

inquire whether the further prosecution of the action would be

for the benefit of infant plaintiff; upon which an order (not

appealed from) was made for the further prosecution of the

action. The trustees removed all the English personalty into

Scotland before the action came on for trial: Held the English

court had jurisdiction to administer the trusts of the will as to the

whole estate, both Scotch and English; and as no proceedings

were pending in a Scotch court (if such were possible) by which

the interests of infant plaintiff could have been equallyprotected, the jurisdiction was not discretionary, but the decree

was a matter of course.



JUDGEMENT

It is been held that by Lord Selbourne; “The

courts of equity in England are and always

have been courts of conscience, operating in personam and not in rem and in the exercise

of the personal jurisdiction they have always

been accustomed to compel the performance

of trust and contracts which were not locallydomiciled within the jurisdiction.



CONT.

In other words, the court of equity may compel the performance

of contract and fulfilling the condition of a trust not situated

within its jurisdiction.

But this maxim is only applicable to certain limitation :

I. The defendant has to be within the jurisdiction of the court.

II. The order must not violate the legal rules of another country.

III. The order given must be capable of being executed without

intervention of a foreign court.

IV. Legal proceedings must not have been started in the

appropriate court.



PENN V. LORD BALTIMORE (1750)



[F] : Parties had dispute over agreement about territorialboundaries of land in North America. Penn sued for

specific performance in England b/c Lord Baltimore

would not abide by their agreement to submit any

dispute to arbitration.

: The land was in Maryland, in the USA. The parties

to the dispute were English and both lived in England

[I] : Can English court order specific performance, even

though property in question is outside the jurisdiction?



[H] : YES. Decree of specific performance was made

against Lord Baltimore.

: The court cannot enforce their own decree in rem … but that is not an objection to making the decree

… for the strict primary decree in this

court as a court of equity is in personam



SIGNIFICANT OF THE CASE

Although land was in US, Court could make an

Equitable Order for specific performance against Lord

Baltimore

As long as the party is within the physical boundaries

of the Court's jurisdiction, the Court may make the

Order. The decree can be enforced against the

defendant's property, regardless of its worldwidelocation.



CHELLARAM V CHELLARAM [1985] 1 ALL ER

1043



Trust created inIndia

Held in andadministered from

London

Trustees lived indifferent parts of

the world.



CONT.

Beneficiariesstated no capital

or incomereceived.

Commenced

actionagainsttrustees

Trustees livedin different

parts in world

English courthandled this

matter

Trustees stated that

English court had no jurisdiction toremove foreign trust



COURT’S DECISION

Court followed the decision made in Ewing v Orr

saying that they have jurisdiction as the operate in

personam not in rem.

Meaning that the court had look beyond theirperspectives and jurisdiction in order to solved the

matter.



CONCLUSION

Grounds for applying this maxim include:

The defendant must be within the jurisdiction.

The maxim cannot be relied on to grant an order in person

when such will violate legal rules of another country.

The maxim will not be relied upon to grant an order whichwould not be enforceable since equity does not act in vain.



THE MAXIM HOWEVER HAS ITS LIMITATIONS

The order given must be capable of being executed

without intervention of a foreign court.

Legal proceedings must not have been started in theappropriate court.

equity act in personam

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