EQUITY ACTS IN PERSONAM 1. Introduction: The court of equity always enforce its ecree in !

ersona"# the court or ers the ecree of the court of equity o not irectly o!erate to transfer le$al ri$ht fro" the efen ant to the !laintiff% &ut is of nature of !ersonal co""an on the efen ant an it is effecte throu$h his !ersonal o&e ience# if he fails to o&ey the or er of court of equity he is arreste an i"!risone # 2. Meaning: Equity &in s the conscience of a !erson o which is require &y the court# the court of chancery always enforce its ecree in !ersona"# it entertain certain suits res!ectin$ i""o'ea&le !ro!erty% thou$h the !ro!erty "i$ht &e situate a&roa if the relief sou$ht coul &e o&taine throu$h the !ersonal o&e ience can only &e secure # if he resi es within the local li"it of the (uris iction of the court or carrie on &usiness with in those li"its# 3. 3. Purpose: Its !ur!ose is to a'oi the irect clash with the court of law# 4. Importance: This "a)i" has a 'ital i"!ortance# it escri&e the !roce ure in equity the (u $"ents of the court of equity o!erate in !ersone" u!on efen ant# s!ecially in cases of lan fallin$ out si e the (uris iction of the court# The "a)i" e)!laine * The "a)i" "eans that equity Equity enforces at its &est &y actin$ on the conscience of a !erson who is char$e therewith ie##the court loo+s to the !erson of the efen ant for the fulfil"ent of its ecree# The "a)i" is the wi est an the "ost i"!ortant of equita&le "a)i"s% &ecause it co"!rises the whole (uris iction of equity# This "a)i" e)!lains the !eculiar !roce ure of enforce"ent of the ecrees of the court of chancery# It ha its ori$in in the !rinci!le that equity is enforcea&le &y a !rocess of conte"!t# ,hile the (u $e"ent of the court of the co""on law was enforce &y the wrists of e)ecution &y which the !laintiff was forci&ly !ut in !ossession of the !ro!erty to which he was entitle % the courts of chancery or equity i not interfere with the efen ants !ro!erty% &ut "erely "a e an or er a$ainst the efen ant -!ersonally. an if the efen an fail to co"!ly with the or er it !unishe hi" for his iso&e ience &y i"!risin"ent or co""ital for conte"!t# The ecree coul &e e)ecute in !erson an not a$ainst the lan an !ro!erty of the efen ant# The reason is that court of equity o!erates $enrally in !ersona" an not in re"# /r# han&ury o&ser'e that0

1This is the wi est of all the "a)i"s# In a sense it co"!rises the whole (uris iction of equity2 it cannot &e too often e"!hasise that on this "a)i" is &ase the whole theory of trusts an of their equita&le intrests analo$ous to trust#3 The "a)i"% 1Equity acts in !ersona"3 "eans that the court of equity has (uris iction to entertain suits res!ectin$ i""o'a&le !ro!erty% thou$h the !ro!!erty "ay &e situate a&roa % if the relief sou$ht can &e o&taine throu$h the !ersonal o&e ience of the efen ant# Thus% for e)a"!le% the en$lish court "ay or er0 4# S!ecific !erfor"ance of contract relatin$ to lan outsi e its (uris iction2 5# a "inistration of the forei$n estate% if the e)ecutor or trustee is within its (uris iction2 6# re e"!tion or foeclosure of lan situate in its (uris iction# Penn ' lor &alti"ore#7 8 In this case% !enn an lor &alti"ore who li'e in en$lan enter into an a$ree"ent to settle &oun aries of two !ro'inces into an a$ree"ent to settle &oun aries of two !ro'inces in a"erica9Pennsyl'ania an "arrylan % the for"er of which &elon$e to the !laintiff an the latter to the efen ant% un er the 'arious $rants which were recite in a$ree"ents# The!laintiff sue the efen ant in the court of chancery in en$lan to ha'e the a$ree"ent s!ecifically !erfor"e % an one of the o&(ections ta+en &y the efen ant was to the (uris iction of the court% &ut this o&(ection was o'errule &y lor harwic+e on the $roun that 1the conscience of the !arty was &oun &y the a$ree"ent an &ein$ within the (uris iction of the court% which acts in !ersona"% the court "ay !ro!erly ecree it as an a$ree"ent# - the !rinci!le was* the lan was not within the (uris iction% &ut the efen ant was* an the court ha in its !ower to !re'ent hi" fro" e'er returnin$ to en(oy his lan unless he woul fulfill his a$ree"ent# It "ay &e re"e"&ere that the court of equity ne'er assu"e to eter"ine questions of title in the lan which was situate of the En$lan or a&roa thus the equity courts ha lon$er ar"s than that of the co""on law courts%!articularly in case of lan situate in forei$n country Ewin$ '# orr# Ewin$7*in this case a !erson o"icile in Scotlan ie lea'in$ !ersonal estate in Scotlan # :e "a e a will in scoth for"% an a!!ointe scotch"an to &e his e)ecutors an trustees# An infant le$atee%resi ent in En$lan % &rou$ht an action for the a "inistration of the estate a$ainst the e)ecutors% trustees who entere a!!earance without !rotest# The questions were wether the En$lish courts ha (uris iction to or er a "inistration as to the whole state# It was hel that the En$lish court ha (uris iction as to the whole estate# The court of equity e)ercise si"ilar (uris iction in actions for re e"!tion an foreclosure of a "ort$a$e on lan outsi e En$lan or for s!ecific !erfor"ance of an a$ree"ent to create a "ort$a$e on such lan or for an account of the rents an !rofits% or if necessary% for the a!!oint"ent a recei'er of such lan # ;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;## <4=>?@4 'es#sen#AAA l#r#<4BB6@C a#c#6A%A?

,hile e)!lainin$ the octrine an eli'erin$ the (u $e"ent% Dor Sel&orne% D#C#% o&ser'e 2 1 the courts of equity in En$lan are% an always ha'e &een the courts of conscience% o!eratin$ in !ersona" an not in re" an in the e)ercise of this !ersonal (uris iction% they ha'e always &een accusto"e to co"!el the !erfor"ance of the contracts an trusts as to su&(ects which were not either locally or ratione o"icilli within their (uris iction# They ha'e one so as to lan in Scotlan in Irelan % in colonies an in forei$n countries#3 :an&ury says 1the court of equity will ecree s!ecific !erfor"ance of a contract relatin$ to lan out of the (uris iction if the efen ant is within the (uris iction an nothin$ "ore than his i"!rison"ent is require to ren er the ecree effecti'e &ut it will ne'er eci e the title to the lan % nor will it $i'en s!ecific !erfor"ance of a contract relatin$ to the lan outsi e the (uris iction2 unless that lan is in a country su&(ect to the crown# It is nota&le that assu"!tion of (uris iction has &een $enerally criticiEe # Dor esher% for e)a"!le% o&ser'e in Co"!anhia Maoca"&ic '# Fritish South Africa Co# that the ecision in !enn '# Falti"ore% which has &een acte &y other $reat (u $es in equity see"s to &e o!en to the stron$ o&(ection to the court is oin$ in irectly what it oes not o irectly# Application of the maxim - the courts of equity in En$lan are courts of conscience# In the e)ercise of this (uris iction% they ha'e always &een accusto"e to co"!el the !erfor"ance of contracts an trusts as to su&(ects which were not either locally or ratione o"icilli within their (uris iction# They ha'e one so as to lan s of Scotlan % in Irelan % in the colonies an in forei$n countries# 4# Cases of fraud* as re$ar s where lan s% a&roa ha'e &een acquire &y the frau of a !arty resi in$ within the (uris iction# 5# Cases of trusts- as re$ar s where a suit is file a$ainst a !erson resi in$ within (uris iction to enforce an e)!ress trust affectin$ lan outsi e (uris iction# 6# Cases of contracts- such as suits for s!ecific !erfor"ance of contracts for sale of lan or foreclosure or re e"!tion of "ort$a$e# Conditions: Gollowin$ are the con itions for a!!lication of the "a)i"0 <i@ The re"e y sou$ht "ust &e equita&le re"e y# <ii@ There shoul not liti$ation in the a!!ro!riate forei$n court# <iii@ The is!ute "ust &e one of the conscience# <i'@ /is!ute "ust not &e in which in'ol'es a &reach of forei$n law# . !xceptions: <i@ It will not a!!ly to an action for local transfer of lan a&roa # <ii@ It has no a!!lication where there is no contract an the is!ute &etween the !arties is only a question of title forei$n lan #

"imitation#* The octrine is% howe'er% su&(ect to the followin$ li"itations 0 a# the efen ant hi"self "ust &e within the (uris iction% or shoul &e ca!a&le of &ein$ ser'e with !rocess outsi e the (uris iction# &# The re"e y sou$ht in such cases "ust &e an equita&le re"e y# c# The efen ant shoul &e su&(ecte to so"e o&li$ation arisin$ fro" his own act2 or as Strahan !uts it% 1when the is!ute is one of the conscience#3 It follows fro" this rule that there "ust &e so"e !ersonal ele"ent in the case an the court will not interfere on the &asis of this "a)i" if the case in'ol'es nothin$ "ore than a na+e question of title to forei$n lan # In in ia the (uris iction of courts is $o'erne an "ust &e ascertaine on the sa"e !rinci!les as are a!!lica&le to En$lish courts of equity% e)ce!t so far as they "ay &e at 'ariance with the le$islati'e in enact"ents# Infact a nu"&er of enacte !ro'isions incor!orate this "a$aEine in the in ian law# Rights in Rem 1. A right in rem is available against the world at large. (Rem = world). 2. Example: I have a house. he people o! the world have a dut" not to inter!ere with m" possession. #obod" has right to disturb m" possession and en$o"ment. %. I have mone" in m" po&'et. I &an use m" mone" as li'e. he world at large has no right to inter!ere with m" possession. (. It is &alled )real right*. +onverse this right, there is a dut" upon ever" person o! the world not to inter!ere with other-s rights. .. his right prote&ts interest against the world at large. /. 0atent right1 &op" right1 et&. are the best examples !or the rights in rem. 2. All rights in rem are negative. 3. It is available against an open or inde!inite &lass o! persons. 4. he !reedoms given in arti&le 14 o! the Indian &onstitution with its restri&tions are the rights in rem. 15. All )general o!!ers* are )rights in rem*. Rights in Personam 1. A right in personam is available onl" against a parti&ular person. 2. Example: I let m" house to 67tenant. I have a right to re&eive rent !rom m" tenant. his right to re&eive rent !rom m" tenant. his right to re&eive rent is a right in personam. he rest o! the world is not &on&erned with this right. %. "7debtor has to give me Rs. .1555871 who had ta'en !rom me as a hand7loan. I have the right in personam to re&eive ba&' the sum o! Rs. .155587 !rom 9. (. It is also &alled as )personal right*. +onverse this right1 there is a dut" imposed upon determinate individuals.

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his right prote&ts an interest solel" against determinate individuals. /. 0ur&hase o! good7will o! business is the best example !or the right in personam. 2. All rights in personam are positive. 3. It is available onl" against a spe&i!i& person or persons. 4. All easements are the rights in personam. 15. All )spe&i!i& o!!ers* are )rights in personam*. It is in the nature of equita&le re"e ies that they $enerally o!erate a$ainst the !erson of the efen ant% &ein$ enforcea&le &y i"!rison"ent for conte"!t# It is in this way that% as iscusse a&o'e% equity coul clai" not to &e interferin$ with the co""on law# The (u $"ent at law in effect was &in in$ on the whole worl an equity inter'ene only a$ainst the in i'i ual efen ant% who was !re'ente fro" enforcin$ his le$al ri$hts# Another feature of this !rinci!le is that equita&le ri$hts were not enforcea&le a$ainst e'ery&o y &ut coul &e efeate &y the interest of the &ona fi e!urchaser# The in !ersona" nature of the o!eration of equity also has s!ecific rele'ance in relation to !ro!erty an interests a&roa # As a $eneral rule% En$lish courts will not entertain actions concernin$ title to forei$n lan # As Dor Ca"!&ell DC state in Norris ' Cha"&res <4BH4@ 6 /e IG J K >B6 An En$lish Court ou$ht not to !ronounce a ecree% e'en in !ersona"% which can ha'e no s!ecific o!eration without the inter'ention of a forei$n Court% an which in the country where the lan s to &e char$e &y it lie woul !ro&a&ly &e treate as &rutu" ful"enLan e"!ty threatM# The !osition is otherwise if the inten e ecree acts in !ersona" % as equita&le ones o% an also the efen ant is within the reach of the En$lish courts# As Dor Cottenha" o&ser'e in e) !arte Pollar <4BA?@ Mont J Ch 56C0 contracts res!ectin$ lan s in countries not within the (uris iction of these courts # # # can only &e enforce &y !rocee in$s in !ersona"which courts of equity here are constantly in the ha&it of oin$0 not there&y in any res!ect interferin$ with the le) loci rei sitae If in ee the law of the country where the lan is situate shoul not !er"it or not ena&le the efen ant to o what the court "i$ht otherwise thin+ it ri$ht to ecree% it woul &e useless an un(ust to irect hi" to o the act2 &ut when there is no such i"!e i"ent the courts of this country% in the e)ercise of their (uris iction o'er contracts "a e here% or in a "in*isterin$ equities &etween !arties resi in$ here% act u!on their own rules% an are not influ*ence &y any consi eration of what the effect of such contracts "i$ht &e in the country where the lan s are situate# The core of the equita&le (uris iction is the !rinci!le that it acts in !ersona"

That "eans that a Court of Equity is concerne to !re'ent any $i'en in i'i ual fro" actin$ unconsciona&ly# The Court of Equity is therefore "a+in$ an or er% &ase on the facts of an in i'i ual case% to !re'ent that !articular efen ant fro" continuin$ to act unconsciona&ly# If that !erson oes not refrain% she will &e in conte"!t of court# The or er% thou$h% is a resse to that !erson in res!ect of the !articular issue co"!laine of# It is &est thou$ht of as a for" of (u icial control of that !articular !erson.s conscience# The stu y of equity is concerne with the isolation of the !rinci!les u!on which (u $es in !articular cases see+ to e)ercise their iscretion# It is a co"!le) tas+ to fin co""on threa s &etween ifferent cases in which (u $es are reachin$ ecisions on the &asis of the !articular facts &efore the"# Therefore% it is always i"!ortant forthe stu ent to rea the lea in$ cases an the ano"alous cases in the law re!orts toun erstan the reasons why (u $es ha'e reache !articular conclusions The courts of Equity in En$lan are% an always ha'e &een% courts of conscience% o!eratin$ in !ersona"an not in re"2 an in the e)ercise of this !ersonal (uris ic* tion they ha'e always &een accusto"e to co"!el the !erfor"ance of contracts an trusts as to su&(ects which were not # # # within their (uris iction# The focus of a Court of Equity in "a+in$ a (u $"ent is to act on the conscience of the !articular efen ant in'ol'e in the !articular case &efore it# Therefore% equity is actin$ a$ainst that !articular !erson an not see+in$% in theory% to set own $eneral rules as to the "anner in which the co""on law shoul eal with si"ilar cases in the future# Of course% o'er the centuries% the courts ha'e co"e to a o!t s!ecific !ractices an rules of !rece ent as to the "anner in which equita&le !rinci!les will &e i"!ose % (ust as co""on law rules ha'e e'elo!e &y "eans of the a!!lication of the octrine of !rece ent# /r#Faner(ee while ealin$ with the a!!oint"ents of recei'ers on the stren$th of section 4H an section 4H*A <now section 4C@ of ci'il !roce ure co e !ro'i es that% the court in in ia ha'e &ut li"ite !ower of "a+in$ a ecree in !ersona"# :e further says that 1a!!arently equity "ay act in !ersona" in in ia too #3 the !ro'ision to section 4H% has &een state &y "ulla% to &e an a!!lication% thou$h in a hi$hly qualifie for"% of a "a)i"* equity acts in !ersona"# Conclusion: To conclu e I can say that% the equity acts in !ersona" was a o!te &y the early chancellors% in or er to a'oi a irect collision with the court of law# the own (u $"ent of court of equity o!erate in !ersona" u!on the efen ant# the court of equity has (uris iction to entertain suits res!ectin$ i""o'a&le !ro!erty% thou$h the !ro!erty "ay &e situate a&roa #