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Starring : Muhammad Syafiq, Andre Ashrawi, Muhammad Izuan,Muhammad Syaqeel, Hasniza
“EQUITY ACTS INPERSONAM
”
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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.
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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.
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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.
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CASE OF EWING V ORR (1883) 9 APP CAS 34
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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.
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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.
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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.
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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.
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PENN V. LORD BALTIMORE (1750)
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[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?
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[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
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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.
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CHELLARAM V CHELLARAM [1985] 1 ALL ER
1043
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Trust created inIndia
Held in andadministered from
London
Trustees lived indifferent parts of
the world.
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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
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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.
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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.
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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.
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