Page images

of the common object of the association, is the act of all. 1 Pet. R. 371; 5 B. & Aid. 267. And the acts of an agent, in pursuance of his authority, will be binding on his principal. Greenl. Ev. § 113.

ACT, legislation, is a statute or law made by a legislative body; as, an act of congress is a law by the Congress of the United States; an act of assembly, is a law made by a legislative assembly. Acts are general or special; public or private. A general or public act is a universal rule which binds the whole community; of which the courts are bound to take notice ex officio. Private or special acts are rather exceptions than rules, being those which operate only upon particular persons and private concerns; of these the courts are not bound to take notice, unless they are pleaded. 1 Bl. Com. 85, 6.

ACT OF BANKRUPTCY, is an act which subjects a person to be proceeded against as a bankrupt. The acts of bankruptcy enumerated in the act of congress of August 19th, 1841, s. 1, are the following:

1. Departure from the state, district, or territory of which a person, subject to the operation of the bankrupt laws, is an inhabitant, with intent to defraud his creditors. See as to what will be considered a departure, 1 Campb. R. 279; Dea. & Chit. 451; 1 Rose, R. 3S7; 9 Moore, R. 217; 2 V. & B. 177; 5 T. R. 512; 1 C. & P. 77; 2 Bing. R. 99; 2 Taunt. 176; Holt, R. 175.

2. Concealment to avoid being arrested. 1 M. & S. 676; 2 Rose, R. 137; 15Ves.447; 6 Taunt. R. 540; 14 Ves. 86; 9 Taunt. 176; 1 Rose, R. 362; 5 T. R. 512; 1 Esp. 334.

3. Willingly or fraudulently procuring himself to be arrested, or his goods and chattels, lands, or tenements to be attached, distrained, sequestered, or taken in execution.

4. Removal of his goods, chattels and effects, or concealment of them, to prevent their being levied upon, or taken in execution, or by other pro

5. Making any fraudulent conveyance, assignment, sale, gill, or other transfer of his lands, tenements, goods or chattels, credits, or evidences of debt. 15 Wend. R. 588; 5 Cowen, R. 67; 1 Burr. 467, 471, 481; 4 C. & P. 315; 18 Wend. R. 375; 19 Wend. R. 414; 1 Dougl. 295; 7 East, R. 137; 16 Ves. 149; 17 Ves. 193; 1 Smith, R. 33; Rose, R. 213.

ACT OF GOD, in contracts. This phrase denotes those accidents which arise from physical causes, and which cannot be prevented.

Where the law casts a duty on a party, the performance shall be excused, if it be rendered impossible by the act of God; but where the party, by his own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby provide against contingencies, and exempt himself from responsibilities in certain events; and in such case, therefore, that is, in the instance of an absolute general contract, the performance is not excused by an inevitable accident, or other contingency, although not foreseen by, nor within the control of the party. Chitty on Contr. 272, 3; Aleyn, 27, cited by Lawrence, J. in 8 T. R. 267; Com. Dig. Action upon the Case upon Assumpsit, G; 6 T. R. 650; 8 T. R. 259; 3 M. & S. 267; 7 Mass. 325; 13 Mass. 94; Co. Litt. 206; Com. Dig. Condition, D 1; L 13; 2 Black. Com. 340; 1 T. R. 33; Jones on Bailm. 104, 5.

Special bail are discharged when the defendant dies, Tidd, 243; but if the defendant die after the return of the co. sa., and before it is filed, the bail are fixed, 6 T. R. 284; 5 Binn. 332, 338. It is, however, no ground for an exoneratur, that the

defendant has become deranged since suit was brought, and is confined in a hospital. 2 Wash. C. C. R. 464; 6 T. R. 133; 2 Bos. & Pull. 362; Tidd, 184. Vide 8 Mass. Rep. 264; 3 Yeates, 37; 2 Dall. 317; 16 Mass. Rep. 218; Stra. 128; I, Leigh's N. P. 508; 11 Pick. R. 41; 2 Verm. R. 92; 2 Watts's Rep. 443.

See generally, Fortuitous Event; Perils of the Sea.

ACT OF GRACE, in the Scotch law, is the name by which the statute which provides for the aliment of prisoners, confined for civil debts, is usually known. This statute provides that where a prisoner for debt declares upon oath, before the magistrate of the jurisdiction, that he has not wherewith to maintain himself, the magistrate may set him at liberty, if the creditor, in consequence of whose diligence he was imprisoned, does not aliment him within ten days after intimation for that purpose, 1696, c. 32; Ersk. Pr. L. Scot. 4, 3, 14. This is somewhat similar to a provision in the insolvent act of Pennsylvania.

ACT OF LAW, those events which occur in consequence of some principle of law. If, for example, land out of which a rent charge has been granted, be recovered by an elder title, and thereby the rent charge becomes avoided; yet the grantee shall have a writ of annuity, because the rent charge is made void by due course or act of law, it being a maxim actus legis nemini est damnosus. 2 Inst. 287.

ACT OF MAN. Every man of sound mind and discretion is bound by his own acts, and the law does not permit him to do any thing against it; and all acts are construed most strongly against him who does them. Plowd. 140. A man is not only bound by his own acts, but by those of others who act or are presumed to act by his authority, and is responsible

civilly in all such cases; and, in some cases, even when there is but a presumption of authority, he may be made responsible criminally; for example, a bookseller may be indicted for publishing a libel which has been sold in his store, by his regular salesman, although he may possibly have had no knowledge of it.

ACTIO COMMODATI CONTRARIA. The name of an action in the, civil law, by the borrower against the lender, to compel the execution of the contract. Poth. Pret a Usage, n. 75.

ACTIO COMMODATI DIRECTA. In the civil law, is the name of an action, by a borrower against a lender, the principal object of which is to obtain restitution of the thing lent. Poth. Pret a Usage, n. 65, 68.

ACTIO CONDICTIO INDEBITI. The name of an action in the civil law, by which the plaintiff recovers the amount of a sum of money or other thing he paid by mistake. Poth. Promutuum, n. 140. See Assumpsit.

ACTIO EX CONDUCTIO, civ. law. The name of an action which the hirer of a thing might bring in order to compel the letter to deliver to him the thing hired. Poth. Du Contr. de Louage, n. 59.

ACTIO DEPOSITI CONTRARIA. The name of an action in the I civil law which the depositary has against the depositor to compel him to fulfil his engagement towards him. Poth. Du Depot, n. 69.

ACTIO DEPOSITI DIRECTA. In the civil law, this is the name of an action which is brought by the depositor against the depositary, in order to get back the thing deposited. Poth. Du Depot, n. 60.

ACTIO NON, pleading. After stating the appearance and defence, special pleas begin with this allegation, "that the said plaintiff ought not to have or maintain his aforesaid action thereof against him," actio non

debere habet. This is technically termed the actio nan. 1 Ch. Plead. 531; 2 Ch. Plead. 421; Steph. Plead. 394.

ACTIO PERSONALIS MORITUR CUM PERSONA. That a personal action dies with the person, is an ancient and uncontested maxim. But the term personal action, requires explanation. In a large sense all actions except those for the recovery of real property may be called personal. This definition would include contracts for the payment of money, which never were supposed to die with the person. The maxim must therefore be taken in a more restricted meaning. It extends to all wrongs attended with actual force, whether they affect the person or property; and to all injuries to the person only, though without actual force. Thus stood originally the common law, in which an alteration was made by the statute 4 Ed. 3, c. 7, which gave an action to an executor for an injury done to the personal property of his testator in his lifetime, which was extended to the executor of an executor, by statute of 25 Ed. 3, c. 5. And by statute 31 Ed. 3, c. 11, administrators have the same remedy as executors. These statutes received a liberal construction from the judges, but they do not extend to injuries to the person of the deceased, nor to his freehold. So that no action lies by an executor or administrator for an assault and battery of the deceased, or trespass vi et armis on his land, or for slander, because it is merely a personal injury. Neither do they extend to actions against executors or administrators for wrongs committed by the deceased. ISIS. & R. 134; Cowp. 376; 1 Saund. 216, 217, n. 1 Com. Dig. 241, B 13; 1 Salk. 252; 6 S. & R. 272; W. Jones, 215. Assumpsit may be

Vol. I.—7.

maintained by executors or administrators, in those cases where an injury has been done to the personal property of the deceased, and he might in his lifetime have waived the tort, and sued in assumpsit. 1 Bay's R. 61; Cowp. 374; 3 Mass. 321; 4 Mass. 480; 13 Mass. 272; 1 Root, 216. An action for a breach of promise of marriage cannot be maintained by an executor, 2 M. & S. 408; nor against him, 13 S. & R. 183; 1 Picker. 71; unless, perhaps, in cases where the plaintiff's testator sustained special damages. 13 S. & R. 185. See further, 12 S. & R. 76; 1 Day's Cas. 180; Bac. Abr. Ejectment, H; 11 Vin. Abr. 123; 1 Salk. 314; 2 Ld. Raym. 971; 1 Salk. 12; Id. 295; Cro. Eliz. 377, 8; 1 Str. 60; Went. Ex. 65; 1 Vent. 176; Id. 30; 7 Serg. & R. 183; 7 East, 134-6; 1 Saund. 216, a, n. 1; 6 Mass. 394; 2 Johns. 227; 1 Bos. & Pull. 330, n. a.; 1 Chit. PI. 86; this Dictionary, tit. Death; Parties to Actions; Survivor; Actions

ACTIO PRO SOCIO. In the civil law, is the name by which either partner could compel his co-partners to perform their social contract. Poth. Contr. de Societe, n. 134.

ACTION OF A WRIT This phrase is used when one pleads some matter by which he shows that the plaintiff had no cause to have the writ which he brought, and yet he may have a writ or action for the same matter. Such plea is called a plea to the action of the writ, whereas if by the plea it should appear that the plaintiff has no cause to have an action for the thing demanded, then it is called a plea to the action. Termes de la ley.

ACTION, in practice. Actions are divided into criminal and civil. Bac. Abr. Actions, A.

[ 1 ] § 1. A criminal action is a prosecution in a competent court of justice, in the name of the government, against one or more individuals who are accused of having committed a crime. See 1 Chitty's Cr. Law.

[ 2 ] § 2. A civil action is a legal demand of one's right, or it is the form of a suit given by law for the recovery of that which is due. Co. Litt. 285; 3 Bl. Com. 116; Domat, Supp. des Lois Civiles, liv. 4, tit. 1, No. 1; Poth. Introd. generale aux Coutumes, 109; 1 Sell. Pr. Introd. a. 4, p. 73. Ersk. Princ. of Scot. Law, B. 4, t. 1, § 1. Till judgment the writ is properly called an action, but not after, and therefore, a release of all actions is regularly no bar of an execution. Co. Litt. 289 a; Roll. Ab. 291. They are real personal and mixed.

[ 3 ] 1. Real actions are those brought for the specific recovery of lands, tenements, or hereditaments. Steph. PI. 3. They are either droitural, when the demandant seeks to recover the property; or possessory, when he endeavours to obtain the possession. Finch's Law, 257, 8. See Bac. Abr. Actions, A, contra. Real actions are, 1st, Writs of right; 2dly, Writs of entry, which lie in the per, the per et cut, or the post, upon desseisin, intrusion, or alienation; 3dly, Writs auncestrel possessory, as Mort d"ancester, aiel, besaiel cosinage, or Nuper obiit. Com. Dig. Actions, D 2. By these actions formerly all disputes concerning real estate, were decided; but now they are pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process; a much more expeditious method of trying titles being since introduced by other actions personal and mixed. 3 Bl. Com. 118. See Booth on Real Actions.

[ 4 ] 2. Personal actions are those

brought for the specific recovery of goods and chattels; or for damages or other redress for breach of contract, or other injuries, of whatever description; the specific recovery of lands, tenements, and hereditaments only excepted. Steph. PI. 3; Com. Dig. Actions, D 3. Personal actions arise either upon contracts, or for wrongs independently of contracts. The former are account, assumpsit, covenant, debt, and detinue; see these several words. In Connecticut and Vermont there is an action used which is peculiar to those states, called the action of book debt, 2 Swift's Syst. Ch. 15. The actions arising for wrongs, injuries, or torts, are case, replevin, trespass, trover. See these several words, and see Actio personalis moritur cum persona.

[ 3 ] 5. Mixed actions are such as appertain, in some degree, to both the former classes, and, therefore, are properly reducible to neither of them, being brought for the specific recovery of lands, tenements, or hereditaments, and for damages for injury sustained in respect of such property. Steph. PI. 3; Co. Litt. 284, 6 ; Com. Dig. Actions, D 4. Of this kind are ejectment and partition.

Actions are also divided into those which are local, and such as are transitory.

[ 6 ] 1. A local action is one in which the venue must still be laid in the county, in which the cause of action actually arose. The present locality of actions is founded in some cases, on common law principles, and in others on positive enactments of statute law. Of those which continue local, by the common law, are, 1st, all actions in which the subject or thing to be recovered is in its nature local. Of this class are real actions, actions of waste, when brought on the statute of Gloucester, (6 Edw. 1,) to recover with the damages, the locus in quo, or place wasted; and actions of ejectment. Bac. Abr. Actions Local, &c, A, (a); Com. Dig. Actions, N 1 ; 7 Co. 2 b; 2 Bl. Rep. 1070. All these are local, because they are brought to recover the seisin or possession of lands or tenements, which are local subjects. 2dly. Various actions which do not seek the direct recovery of lands or tenements, are also local, by the common law; because they arise out of some local subject, or the violation of some local right or interest. For example the action of quart impedit is local, inasmuch as the benefice, in the right of presentation to which the plaintiff complains of being obstructed, is so. 7 Co. 3 a; 1 Chit. PI. 271 ; Com. Dig. Actions, N 4. Within this class of cases are also many actions in which only pecuniary damages are recoverable. Such are the common law action of waste, and trespass quart claurum frtgit; as likewise trespass on the case for injuries affecting things real, as for nuisances to houses or lands; disturbance of rights of way or of common; obstruction or diversion of ancient water courses, &c, 1 Chit. PI. 271 ; Gould on Pl. ch. 3, § 105, 106, 107. The action of replevin also, though it lies for damages only, and does not arise out of the violation of any local right, is nevertheless local. 1 Saund. 347, (n. 1.) The reason of its locality appears to be the necessity of giving a local description of the taking complained of. Gould on Pl. ch. 3, § 111.

[ 7 ] 2. Personal actions which seek nothing more than the recovery of money or personal chattels, of any kind, are in most cases transitory, whether they sound in tort or in contract; Com. Dig. Actions, N 12; 1 Chit. PI. 273; because actions of this class are, in most instances, founded on the violation of rights which, in contemplation of law, have no locality. And it will be found

true, as a general position, that actions ex delicto, in which a mere personality is recoverable, are, by the common law, transitory; except when founded upon, or arising out of some local subject. Gould on PI. ch. 3, § 112. The venue in a transitory action may be laid in any county which the plaintiff may prefer. Bac. Abr. Actions Local, &c. A. (a).

[ 8 ] In the civil law actions are divided into real, personal, and mixed.

A real action, according to the civil law, is that which he who is the owner of a thing, or has a right in it, has against him who is in possession of it, to compel him to give up such thing to the plaintiff, or to permit him to enjoy the right he has in it. It is a right which a person has in a thing, follows the thing, and may be instituted against him who possesses it; and this whether the thing be movable or immovable, and, in the sense of the common law, whether the thing be real or personal. See Domat, Supp. des Lois Civiles, Liv. 4, tit. I, No. 5; Pothier, Introd. Generale aux Coutumes, 110; Ersk. Pr. Scot. Law, B. 4, t- 1,§2.

[ 9 ] A personal action is that a creditor has against his debtor, to compel him to fulfil his engagement. Pothier, lb. Personal actions are divided into civil actions and criminal actions. The former are those which are instituted to compel the payment or to do some other thing purely civil; the latter are those by which the plaintiff asks the reparation of a tort or injury which he or those who belong to him have sustained. Sometimes these two kinds of actions are united, when they assume the name of mixed personal actions. Domat, Supp. des Lois Civiles, Liv. 4, tit. No. 4; 1 Brown's Civ. Law, 440.

f 10 ] Mixed actions participate both of personal and real actions.

« PreviousContinue »