Page:Harvard Law Review Volume 9.djvu/478

450 HARVARD LAW REVIEW. compel action, activity, in personam. Such cases are Spurr v, Scoville,^ Moody v. Gay ,^ etc. We discuss only a vendor's bill, and no action or signature of defendant is wanted. It is true that no decree in personam can be made when there is such jurisdiction as the Vendome attachment gives? Is it not more scientific to say that no decree compelling activity of the foreigner can be made? Is there not in this regard a vital dis- tinction between decreeing against a defendant who is to be passive and one who is to be active? In Spurr v, Scoville he would have to be active, i. e. execute and acknowledge a deed, and Judge Fletcher there says the court will, if there are other parties in same cases proceed against those other parties, and if the absent parties are merely passive objects of the judgment, a complete determina- tion may be obtained." Sir Thomas Plummer ^ says : ** Not having them before the court, though their rights may be bound, there is a difficulty in making them act. The plaintiff requires specific per- formance of the agreement, supposing it proper for a few to execute the lease in behalf of the rest. In a conveyance of the interest, all must join. But that difficulty presents no objection to bifiditig the rights of the parties not before the court. That is authorized in every one of the cases referred to. If the court cannot proceed to compel the defendants to do the act required, it must go as far as it can." This is the doctrine of Judge Story ^: " The absent party cannot be compelled to do any act. But if the disposition of the property in controversy is in the power of the parties, the court may act upon them and through them upon that property." And in Fell v. Brown ^ the Chancellor says: "I admit the distinction has been taken as to proceeding in the absence of parties abroad, between their being active or passive parties." Well, our vendor is content to have the Briton passive, — under the court's approval puts his deed of the Brunswick on file for defendant's acceptance, — asks no decree which shall make the defendant act, sign, or do, only a determination by the court that vendor has done his duty, and its permission, not order, to defendant to take the deed from the clerk; and all this not as a record to have extra-territorial force, but as a determination of preliminaries to the end that a cash execution against attached Massachusetts property may issue. By English practice this can be done, the hotel being within 1 3 Cush. 578. * Eq. PI., sec. 81-87. 2 15 Gray, 457. ' ^ 2 Bro. Ch. 276. 8 Meux V. Maltby, 2 Swanst. 277.