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EQUITY ACTS IN PERSONAM

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

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 continuing to 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 situated abroad. It is to render the location of the property immaterial, where the court can acquire jurisdiction over the person of the defendant. For example, as long as the defendant is physically in the jurisdiction of the court, the court can make equitable decrees with respect to the defendant's property anywhere.

It opposed to acting in rem which is a characteristic of common law, where it acts upon the property that is subject to the suit. For in rem, it is directed to no specific person but consequently 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 equally protected, 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 locally domiciled 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 territorial boundaries 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 worldwide location.

CHELLARAM V CHELLARAM [1985] 1 ALL ER 1043

Held in and administered from London

Trust created in India

Trustees lived in different parts of the world.

CONT.
Beneficiaries stated no capital or income received.

Trustees stated that English court had no jurisdiction to remove foreign trust

Commenced action against trustees

English court handled this matter

Trustees lived in different parts in world

COURTS 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 their perspectives 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 which would 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 the appropriate court.

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