Maxims: In Personam

September 16, 2013 § Leave a comment

“Equity acts upon the person, or, equity acts in personam.”

The common law courts had no process to enforce the specific performance of a contract. The only remedy available was to award damages for the breach, and to issue execution and possessory writs. As the jurisprudence of equity developed, the chancellors sought not only to improve upon the means available in the law courts, but also to avoid the use of common-law writs that might create a conflict with those courts. The result was that the party in chancery was ordered personally to comply with the court’s order, or, failing to do so, to be subjected to jail or other sanctions for disobedience.

Much of chancery court’s power and authority today rests on this important keystone: that it may compel a person or entity to do any act or thing necessary and incidental to effect relief ordered by the court.

Judge Griffith says it this way:

Although in this state, modern statutes provide that a decree in chancery shall have all the force and effect of a judgment at law, and that when a conveyance, release, acquittance or other writing, it shall have all the force and effect as if the writing had been executed in accordance therewith, and although execution and all other process or similar process as known to law may now be issued out of chancery, nevertheless the decrees in chancery are still drawn largely in the form of orders in personam, and in addition to the statutory methods of enforcement, decrees in chancery are today as fully enforceable by personally compelling the party as they ever were, — except that now there may be no improsonment for debt. Griffith, § 37, pp. 39-40.

In the pre-rules days, all procedural rules and proceedings were statutory. The MRCP supplanted that system. Judge Griffith’s references to statute, of course, are subject today to the provisions of the rules.

It seems elementary to point out that the chancery courts act in personam, but this concept was a profound development in the law, and, as I said before, is a keystone of chancery practice.

MRCP 70 extends the reach of the in personam principle. It allows the court to enforce its in personam orders in several ways that were unknown to pre-rules practice, except through writs of assistance, seizure, and possession. R70(a) provides that, when a party fails to execute a conveyance or do some other act ordered by the court, the court may appoint some other person to do it, at the expense of the dafaulting party, and the act when so done is as effective and legally binding as if done by the person originally ordered to do it. R70(b) allows the court to divest title and vest it in another, rather than having to wait for a party to execute title. R70(c) permits the sheriff with a certified copy of an order for delivery of possession to seize property and deliver it to the person entitled to its possession, without further process of the court. R70(d) makes it clear that all of R70’s remedies are in addition to the court’s contempt power.

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