Equity acts in personam

  

Date Posted: 11/21/2011 6:36:57 AM

Posted By: Raychelle  Membership Level: Silver  Total Points: 184

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This is a maxim that governs how equity is administered in law.To act in personam means it acts upon a person''s conscience.This is as opposed to acting in rem which is a characteristic of common law where it acts upon the property that is subject to the suit.As stated in the Earl of Oxford case,in case of a conflict between equity and common law,equity shall prevail.Lord Ellesmere insisted that Equity was not in competition with common law,rather,it acted upon the conscience of the parties to a suit.King James I held the same view.

This maxim comes in handy with regard to properties held abroad.The subjects most contested under this maxim include trusts and mortgages.It is also required regarding receivership.

Grounds for applying this maxim include:
1. The defendant must be within the jurisdiction.
2.The maxim cannot be relied on to grant an order in person when such will violate legal rules of another country.
3.The maxim will not be relied upon to grant an order which would not be enforceable since equity does not act in vain.

Several cases bring this maxim to clarity.In Norris v Chambres,Lord Campbell stated that a court ought not give an order which is not applicable without the intervention of a foreign court as it would be considered brutum fulmen(an empty threat).Similarly,a court should not giue an order if it will be seen to violate the legal rules of another country.

The case of Penn V Baltimore regards an order of specific performance granted to the plaintiff who brought a boundary dispute case to an English court yet the land was in Baltimore,Maryland in the USA.The parties to the dispute were English and both lived in England.

In Ewing V Orr Ewing,a man died while domiciled in Scotland.The executors of his estate as well as his personalty and realty were in England.It

was held that administration of his estate could begin in England as equity acts in personam.

The maxim was also applied to grant specific performance in the case of Richard West and Partners(Inverness) V Dick.Here,an English man undertook to buy property from the plaintiffs in Scotland.He paid the deposit and asked the plaintiff''s solicitors to represent him.After a while he realised that the building plan was going to cost him more than he anticipated.He tried to withdraw but the plaintiffs refused and sued him from specific performance.The judge said he had jurisdiction to grant the equitable remedy.

The maxim however has its limitations:
1.The defendant has to be within the jurisdiction of the court.

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

3.The order given must be capable of being executed without intervention of a foreign court.

4.Legal proceedings must not have been started in the appropriate court.

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