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.
Meaning – Courts of equity, described as courts of conscience, operate primarily in personam binding the conscience of a person and thus bringing an individual’s conscience under its sway. Its decrees were regarded not merely as decisions concerning the rights and properties in dispute but as decrees, decisions, and directions, positive or negative, addressed to the individual party or parties. Thus on one side an individual’s conscience was sought to be bound and on the other, the Chancellor exercised his jurisdiction guided according to his own conscience. This maxim being descriptive of the Equity Courts’ procedure covers a large portion of its procedural and remedial action.
- Recognition in Indian subcontinent – According to opinions of many learned text writers22no such jurisdiction is recognized by Indian courts while according to some, the courts in India have but limited powers of making a decree in personam. The opinions are thus divided. The Civil Procedure Code, Section 16 does not deal with this problem; it explains the division of jurisdiction of the municipal courts only. Till now we have no such decisions bearing directly on this issue. Though courts in India have limited powers of making a decree in personam. Equity may act in personam in India too. The proviso to Section 16 of the Civil Procedure Code is thus an application, though in a highly modified form, of the maxim “equity acts in personam”.
Application of English equity to the laws of Indian Sub continent
- Cases wherein it was successfully applied – On the basis of the principles of Justice, Equity and Good Conscience the Courts successfully applied the principles of English law in the following cases.
In the first case a Muslim created a charge on his property by deposit of title deeds in favour of an Armenian. After some time the Muslim transferred the property in favour of a Hindu who in turn transferred it to a British subject. The Armenian filed a suit against all in the S.D.A. of Madras but the court dismissed it holding that the doctrine of constructive notice was not applicable in India. However the Privy Council, in appeal, held that direction to act according to Justice, Equity and Good Conscience required that the principles of English law so that right created by deposit of title deeds could be deprived only by a subsequent bonafide purchaser for value without notice should be applied. The decision of the S.DA. was therefore reversed.24The Bombay High Court followed this decision and applied the principle in Dada Honaji v. Babaji25. In Waghela Rajsanji v. Shekh Masluddin26 a question was raised whether a guardian was competent to make covenants on behalf of the ward so as to create a personal liability on the ward. Applying the principles of English law on grounds of Justice, Equity and Good Conscience the Privy Council held that it would be improper to uphold the validity of such a covenant. In one case27 the land was washed away by Ganges and later it was formed again. Applying the principles it was held that the land regained belonged to the owner. In the famous case of Ram Coomar v. Macqueen28 the Privy Council applied the principle of estoppel by holding out. The principle is-that where a person who is the real owner of property allows another to hold himself as the owner and that when a third person purchases the property believing that the apparent owner is the real owner, the latter was debarred to assert his undisclosed or secret title, in the absence of the knowledge on the part of the purchaser about the title of the real owner. In yet another important decision the Privy Council recognized the right of the Crown to escheat the property of a deceased Brahmin.29 According to Hindu law this could not be done but that principle was excluded. Besides the principle of the clog on-the equity of redemption66 and restriction on alienation of property to strangers, and that transfer should be only to any one of the relatives were held valid and applied.30
- Statutes or Acts wherein it was successfully applied – Statutory recognition of the principles Of equity is found in the The Specific Relief Act, 1877, The Transfer of Property Act, 1882, The Law of Contract, 1872 , Guardian and Wards Act, 1890, The Trust Act, 1882, The Code of Civil Procedure, 1908, The Code of Criminal Procedure, 1898. In these Acts which principles of equity are applied is discussing bellow –
The Specific Relief Act, 1877 – The provisions of the Act regarding Sections 12-44, 52 -57, recognize, the principles of equity to a large extent, such as, which contract can be specifically enforced (section 12 – 20), which contract cannot be specifically enforced (section 21 – 30), Rectification of Instrument (section 31 – 34), Rescission of contract (section 35 -38), Cancellation of instrument (section 39-41), Declaratory suit (section 42), Result of Declaratory suit (section 43), Appointment of receiver (section 44), Preventive relief (section 52 – 57).
The Transfer of Property Act, 1882 – This Act has also included many doctrines of equity. Apart from such doctrines Sections 48 – 51 of the present Act is based on the principles of equity. The English equitable doctrine of part performance has also been drawn in section 53A of the Act. Doctrine of Election (section 35), Feeding the grant by estoppel (section 43), Fraudulent transfer (section 53) also accepted from equity.
The Law of Contract, 1872 – There are certain equitable doctrines which have been imported in the Act and some of the important doctrines relating generally to the law of contract are the doctrine of penalties and forfeitures, stipulation as to time in a contract, equitable relief on ground of misrepresentation, fraud and undue influence. Section 64 and 65 of this Act is nothing but the codified form of the maxim, He who seeks equity must do equity.
Guardian and Wards Act, 1890 – hi some sections of this Act import principles of equity.
The Trust Act, 1882 – This Act mainly the creation of equity. The rules contained in this Act are substantially the same which were administered at the time by English courts of equity under the name of justice, equity and good conscience.