This section is from the book "Popular Law Library Vol7 Equity Jurisprudence, Trusts, Equity Pleading", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
"This maxim embodies the principle distinguishing the process and decrees of the court of chancery and originally limiting their sanctions. It was originally the pride of the chancellors and the terror of the law judges that chancery acted directly upon the person or, as the phrase went, upon his conscience. It dealt with property but indirectly, by compelling the parties to act with relation to it." 13
One effect of this maxim, in many cases, is to render the location of the property immaterial, where the court can acquire jurisdiction over the person of the defendant. Equity has the power to decree the conveyance of land outside of the territorial jurisdiction of the court.14
Extracts are here inserted from two of the most important of the decisions relative to this question:
"First, the point of jurisdiction ought in order to be considered; and though it comes late, I am not unwilling to consider it. To be sure a plea to the jurisdiction must be offered in the first instance, and put in primo die; and answering submits to the jurisdiction much more when there is a proceeding to hearing on the merits, which would be conclusive at common law; yet a court of equity, which can exercise a more liberal discretion than common-law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree, than where a plain want of equity appears. It is certain that the original jurisdiction in cases of this kind relating to boundaries between the provinces, the dominion, and proprietary government, is in the King and council; and it is rightly compared to the cases of the ancient Commotes and Lordships' Marches in Wales; in which if a dispute is between private parties it must be tried in the Commotes or Lordships; but in those disputes, where neither had jurisdiction over the other it must be tried by the King and council, and the King is to judge, though he might be a party, this question often arising between the crown and one Lord-Proprietor of a province in America; so in the case of the Marches it must be determined in the King's court, who is never considered as partial in these cases; it being the judgment of his judges in B. R. and Chancery. So, where before the King and council the King is to judge, and is no more to be presumed partial in one case than the other. This court, therefore, has no original jurisdiction on the direct question of the original right of the boundaries; and this bill does not stand in need of that. It is founded on articles executed in England under seal for mutual consideration, which gives jurisdiction to the King's court, both in law and in equity; whatever be the subject matter. An action of covenant could be brought in B. R. or C. B., if either side committed a breach; so might there be for the £5,000 penalty without going to council. There are several cases, wherein collaterally, and by reason of the contract of the parties, matter out of the jurisdiction of the court originally will be brought within it. Suppose an order by the King and council in a cause, wherein the King and council had original jurisdiction, and the parties enter into an agreement under hand and seal for performance thereof. A bill must be in court for a specific performance, and perhaps, it will appear, this is almost literally that case. The reason is, because none but a court of equity can decree that. The King in council is the proper judge of the original right; and if the agreement was fairly entered into and signed, the King in council might look on that, and allow it as evidence of the original right; but if that agreement is disputed, it is impossible for the King in council to decree it as an agreement. That court cannot decree in personam in England, unless in certain criminal matters, being restrained therefrom by Stat. 16, Car., and therefore the Lords of council have remitted this matter very properly to be determined in another place on the foot of the contract. The conscience of the party was bound by this agreement; and being within the jurisdiction of this court, which acts in 'personam, the court may properly decree it as an agreement, if a foundation for it. To go a step farther, as this court collaterally and in consequence of the agreement judges concerning matters not originally in its jurisdiction, it would decree a performance of articles of agreement to perform a sentence in the Ecclesiastical court, just as a court of law would maintain an action for damages in breach of covenant." 15
13 16 Cyc, 134.
14 Vaughan vs. Barclay, 6 Whart.
(Pa.), 392; Gardner vs. Ogden, 22 N. Y., 335.
15 Penn vs. Lord Baltimore, 1 Vesey Sr., 444.
"I have directed a search to be made for precedents in case the jurisdiction had been exercised in any instances which have not been reported; and one has been found directly in point. It is the case of Campbell vs. Houlditch, in 1820, where Lord Eldon ordered an injunction to restrain the defendant from further proceeding in an action which he had commenced before the court of session in Scotland. From the note which his Lordship himself wrote upon the petition, requiring a further affidavit, and from his refusing the injunction to the extent prayed, it is clear that he paid particular attention to it. This precedent, therefore is of very high authority.
"In truth, nothing can be more unfounded than the doubts of the jurisdiction. That is grounded, like all other jurisdiction of the court, not upon any pretension to the exercise of judicial and administrative rights abroad, but on the circumstance of the person of the party on whom this order is made being within the power of the court. If the court can command him to bring home goods from abroad, or to assign chattel interests, or to convey real property locally situate abroad; if, for instance, as in Penn vs. Lord Baltimore, it can decree the performance of an agreement touching the boundary of a province in North America; or as in the case of Toller vs. Carteret, can forclose a mortgage in the Isle of Sark, one of the channel islands; in precisely the like manner it can restrain the party being within the limits of its jurisdiction from doing anything abroad, whether the thing forbidden be a conveyance or other act in pais, or the instituting or prosecution of an action in a foreign court.
"It is upon these grounds, I must add, and these precedents, that I choose to rest the jurisdiction, and not upon certain others of a very doubtful nature, such as the power assumed in the year 1682, in Arglasse vs. Muschamp, and against Lord Macclesfield, in the year 1724, in Fryer vs. Bernard, of granting a sequestration against the estate of a defendant situated in Ireland. The reasons given by that great Judge in the latter case plainly show that he went upon a ground which would now be untenable, viz., what he terms the superintendent power of the courts in this country over those in Ireland; and indeed he supports his order by expressly referring to the right then claimed by the King's Bench in England, to reverse the judgments of the King's Bench in Ireland. This pretension, however, has long ago been abandoned, and has indeed been discontinued by parliamentary interposition; and the power of enforcing in Ireland, judgments pronounced here, and vice versa, is at the present time the subject of legislative consideration.
"As to the argument that the Courts of Equity in Ireland can, if applied to, restrain the action, the same consideration would prevent an injunction from ever issuing to stay proceedings in this country; for it might be said that the court of Exchequer has the power of restraining, and therefore there needs no interposition of the Court of Chancery. It suffices to say that the court in which the action is brought is a court of common law, and has no jurisdiction as such to stop the proceeding upon the ground now set forth.
"I am, therefore, of opinion that this injunction was well issued and that it must be continued, and that this motion must be refused with costs." 16
16 Lord Partarlington vs. Soulby, 3 Mylne and Kern, 104. The decisions in these two cases may be found in full in Keener'a Cases of Equity Jurisdiction, Vol. I, pp. 12-18.
Equity jurisdiction has now been extended so as to allow an equity court, in some cases, to act strictly in rem. This happens when a mortgage is foreclosed and sold in a proceeding before this court and a master's deed given to the purchaser.
The right of equity to act in personam, however, has been in no way abridged.