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ACTIO PERSONALIS

menced the action and subsequently died, or, being entitled to bring it, to have died before exercising the right; 9 Cush. 108. But the accruing of the right of action does not depend upon intelligence, consciousness, or mental capacity of any kind on the part of the person injured; 9 Cush. 478. For the law in New York, see 16 Barb. 54; 15 N. Y. 432; in Missouri, 18 Mo. 162; in Connecticut, 24 Conn. 575; in Maine, 45 Me. 209; in Pennsylvania, 44 Penn. 175.

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But this rule, that the wrong-doer must have acquired a gain by his act in order that the cause of action may survive against his representatives, is not universal. Thus, though formerly in New York an action would not lie for a fraud of deceased which did not benefit the assets, yet it was otherwise for his fraudulent performance of a contract; 20 Johns. 43; and now the statute of that state gives an action against the executor for every injury done by the testator, whether by force or negligence, to the property of another; Hill & D. 116; as for fraudulent representations by the deceased in the sale of land; 19 N. Y. 464; or wasting, destroying, taking, or carrying away personal property; 2 Johns. 227. In Massachusetts, by statute, a sheriff's executors are liable for his official misconduct; 7 Mass. 317; 13 id. 454, but not the executors of a deputy sheriff; Ibid. So in Kentucky; 9 B. Monr. 135. And in Missouri, for false return of execution; 10 Mo. 234. Under the statute of Ohio, case for injury to property survives; 4 McLean, C. C. 599; under statute in Missouri, trespass; 15 Mo. 619; and a suit against an owner for the criminal act of his slave; 23 Mo. 401; in North Carolina, deceit in sale of chattels; 1 Car. Law Rep. 529; and the remedy by petition for damages caused by overflowing lands; 1 Ired. 24; in Pennsylvania, by statute, an action against an attorney for neglect; 24 Penn. St. 114; and such action has been maintained in England; 3 Stark. 154; 1 Dowl. & R. 30.

Actions against the executors or administrators of the wrong-doer. The common law principle was that if an injury was done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person by whom the wrong was committed; i Saund. 216 a, note (1); 1 Harr. & M'H. 224. And where the cause of action is founded upon any malfeasance or misfeasance, is a tort, or arises ex delicto, such as trespass for taking goods, etc., trover, false imprisonment, assault and battery, slander, deceit, diverting a watercourse, obstructing lights, and many other cases of the like kind, where the declaration imputes a tort done either to the person or the property of another, and the plea must be not guilty, the rule of the common law is actio personalis moritur cum persona; and if the person by whom the injury was committed dies, no action of that kind can be brought against his executor or administrator. But now in England the stat. 3 & 4 W. IV. c. 42, § 2, authorizes an action of trespass, or trespass on the case, for an injury committed by But in Texas the rule that the right of acdeceased in respect to property real or per- tion for torts unconnected with contract does sonal of another. And similar provisions are not survive the death of the wrong-doer, has in force in most of the states of this country. not been changed by statute; 12 Tex. 11. Thus, in Alabama, by statute, trover may be And in California trespass does not lie against maintained against an executor for a conver- the representatives of the wrong-doer; 3 Cal. sion by his testator; 11 Ala. N. s. 859. So in 370; nor in Alabama does it survive against New Jersey, 1 Harr. (N. J.) 54; Georgia, 17 the representatives of defendant; 19 Ala. Ga. 495; and North Carolina, 10 Ired. 169. 181; and an action for malicious prosecution In Virginia, by statute, detinue already does not survive defendant's death; 121 Mass. commenced against the wrong-doer survives 550. Detinue does not survive in Tennessee, against his executor, if the chattel actually whether brought in the lifetime of the wrongcame into the executor's possession; other- doer or not; 3 Yerg. 133; nor in Missouri, wise not; 6 Leigh, 42, 344. So in Kentucky, | under the stat. of 1835; 17 Mo. 362. Tres5 Dana, 34. Replevin in Missouri does not pass for mesne profits does not lie against abate on the death of defendant; 21 Mo. 115; personal representatives in Pennsylvania; nor does an action on a replevin bond in Dela-5 Watts, 474; 3 Penn. 93; nor in New ware, 5 Harr. (Del.) 381. It has, indeed, Hampshire; 20 Vt. 326; nor in New York; been said that where the wrong-doer has se- 2 Bradf. N. Y. 80; but the representatives cured no benefit to himself at the expense of may be sued on contract; Ibid. But this the sufferer, the cause of action does not sur、 action lies in North Carolina, 3 Hawks, 390, vive, but that where, by means of the offence, and Vermont, by statute; 20 Vt. 326. Tresproperty is acquired which benefits the testa-pass for crim. con., where defendant dies tor, then an action for the value of the prop-pending the suit, does not survive against his erty survives against the executor; 6 How. 11; 3 Mass. 321; 4 id. 480; 5 Pick. 285; 20 Johns. 43; 1 Root, Conn. 216; 4 Halst. 173; 1 Bay, 58; and that where the wrongdoer has acquired gain by his wrong, the injured party may waive the tort and bring an action ex contractu against the representatives to recover compensation; 5 Pick. 285; 4 Halst. 173.

personal representatives; 9 Penn. 128.

Where the intestate had falsely pretended that he was divorced from his wife, whereby another was induced to marry him, the latter cannot maintain an action against his personal representatives; 31 Penn. 533. Case for nuisance does not lie against executors of wrongdoer; 1 Bibb, 246; 73 Ill. 214; nor for fraud in the exchange of horses; 5 Ala. N. s. 369;

ACTIO IN PERSONAM

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ACTION

him closely, administered such relief only as that warranted, and admitted such claims as were distinctly set forth by the pleadings of the parties; 1 Spence, Eq. Jur. 218.

ACTIO UTILIS. An action for the benefit of those who had the beneficial use of property, but not the legal title; an equitable action; 1 Spence, Eq. Jur. 214.

other instances where a party was equitably entiIt was subsequently extended to include many tled to relief, although he did not come within the strict letter of the law and the formulæ ap

nor, under the statute of Virignia, for fraudulently recommending a person as worthy of credit; 17 How. 212; nor for negligence of a constable, whereby he failed to make the money on an execution; 3 Ala. N. s. 366; nor for misfeasance of constable; 29 Me. 462; nor against the personal representatives of a sheriff for an escape, or for taking insufficient bail bond; Harr. 42; nor against the administrators of the marshal for a false return of execution, or imperfect and insufficient entries thereon; 6 How. 11; nor does debt for an escape survive against the sheriff''s execu-propriate thereto. tors; Caines, 124; aliter in Georgia, by statute; 1 Ga. 514. An action against the sheriff to recover penalties for his failure to return process does not survive against his executors; 13 Ired. 483; nor does an action lie against the representatives of a deceased postmaster for money feloniously taken out of letters by his clerk; 1 Johns. 396. See ABATEMENT. ACTIO IN PERSONAM. (Lat. an ac- insisted on in a court of justice. In a quite tion against the person). A personal action.

This is the term in use in the civil law to denote the actions which in the common law are called personal. In modern usage it is applied in Engfish and American law to those suits in admiralty which are directed against the person of the defendant, as distinguished from those in rem which are directed against the specific thing from which (or rather the proceeds of the sale of which) the complainant expects and claims a right to derive satisfaction for the injury done to him; 2 Parsons, Mar. Law, 663.

ACTIO PRÆSCRIPTIS VERBIS. In Civil Law. A form of action which derived its force from continued usage or the responsa prudentium, and was founded on the unwritten law; 1 Spence, Eq. Jur. 212.

The distinction between this action and an actio in factum is said to be, that the latter was founded not on usage or the unwritten law, but by analogy to or on the equity of some subsisting law; 1 Spence, Eq. Jur. 212.

ACTIO REALIS (Lat.). A real action. The proper term in the civil law was Rei Vindicatio; Inst. 4. 6. 3.

ACTIO IN REM. An action against the thing. See ACTIO IN PERSONAM.

ACTIO REDHIBITORIA. In Civil Law. An action to compel a vendor to take back the thing sold and return the price paid. ACTIO RESCISSORIA. In Civil Law. An action for rescinding a title acquired by prescription in a case where the party bringing the action was entitled to exemption from the operation of the prescription.

ACTIO PRO SOCIO. In Civil Law. An action by which either partner could compel his co-partners to perform the partnership contract; Story, Partn., Bennett ed. § 352; Pothier, Contr. de Société, n. 34.

ACTIO STRICTI JURIS (Lat. an action of strict right). An action in which the judge followed the formula that was sent to

ACTIO VULGARIS. In Civil Law. A legal action; a common action. Sometimes used for actio directa; 1 Mackeldey, Civ. L. 189.

ACTION (Lat. agere, to do; to lead; to conduct). A doing of something; something done.

In Practice. The formal demand of one's right from another person or party, made and

common sense, action includes all the formal proceedings in a court of justice attendant upon the demand of a right made by one person or party of another in such court, including an adjudication upon the right and its enforcement or denial by the court.

In the Institutes of Justinian an action is de

fined as jus persequendi in judicio quod sibi debetur (the right of pursuing in a judicial tribunal what is due one's self); Inst. 4. 6. In the Digest, however, where the signification of the word is expressly treated of, it is said, Actio generaliter sumitur; vel pro ipso jure quod quis habet persequendi in judicio quod suum est sibi ve debetur; vel pro hac ipsa persecutione seu juris exercitio (Action in general is taken either as that right which each one has of pursuing in a judicial tribunal his own or what is due him; or as the pursuit itself or exercise of the right); Dig. 50. 16. 16. Action was also said continere formam agendi (to include the form of proceeding); Dig. 1. 2. 10.

This definition of action has been adopted by Mr. Taylor (Civ. Law, p. 50). These forms were prescribed by the prætors originally, and were to be very strictly followed. The actions to and the slightest variation from the form prewhich they applied were said to be stricti juris, scribed was fatal. They were first reduced to a system by Appius Claudius, and were surreptitiously published by his clerk, Cncius Flavius. The publication was so pleasing to the people that Flavius was made a tribune of the people, a senator, and a curule edile (a somewhat more magnificent return than is apt to await the labors of the editor of a modern book of forms); Dig. 1. 2.5.

These forms were very minute, and included the form for pronouncing the decision.

In modern law the signification of the right of pursuing, etc., has been generally dropped, though it is recognized by Bracton, 98 b; Coke, 2d Inst. 40; 3 Bla. Com. 116; while the two latter senses of the exercise of the right and the

means or method of its exercise are still found.

The vital idea of an action is, a proceeding on the part of one person as actor against another, for the infringement of some right of the first, before a court of justice, in the manner prescribed by the court or the law.

Subordinate to this is now connected in a quite

common use, the idea of the answer of the de

ACTION

fendant or person proceeded against; the adducing evidence by each party to sustain his position; the adjudication of the court upon the right of

the plaintiff; and the means taken to enforce the right or recompense the wrong done, in case the right is established and shown to have been injuriously affected.

Actions are to be distinguished from those proceedings, such as writ of error, scire facias, mandamus, and the like, where, under the form of proceedings, the court and not the plaintiff appears to be the actor; 6 Binn. 9. And it is not regularly applied, it would seem, to proceedings in a court of equity; 3 S. C. 417; 71 Penn. 170.

In the Civil Law.

Civil Actions. Those personal actions which are instituted to compel payments or do some other thing purely civil; Pothier, Introd. Gen. aux Coutumes, 110.

Criminal Actions.-Those personal actions in which the plaintiff asks reparation for the commission of some tort or injury which he or those who belong to him have sustained. Mixed Actions are those which partake of the nature of both real and personal actions; as, actions of partition, actions to recover property and damages; Just. Inst. 4, 6, 18-20; Domat, Supp. des Lois Civiles, liv. 4, tit. 1,

n. 4.

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Transitory Actions.-Those civil actions the cause of which might well have arisen in one place or county as well as another. See

TRANSITORY ACTION.

In French Law. Stock in a company; shares in a corporation.

ACTION OF BOOK DEBT. A form of action resorted to in the states of Connecticut and Vermont for the recovery of claims, such as usually evidenced by a book account; 1 Day, 105; 4 id. 105; 2 Vt. 366. See 1 Conn. 75; 11 id. 205.

ACTION REDHIBITORY. See REDHIBITORY ACTION.

ACTION RESCISSORY. See RESCIS

SORY ACTION.

ACTIONS ORDINARY. In Scotch Law. All actions which are not rescissory; Ersk. Inst. 4, 1, 18. See ORDINARY ACTIONS.

ACTIONABLE. For which an action will lie; 3 Bla. Com. 23.

Where words in themselves are actionable, malicious intent in publishing them is an inference of law; 2 Greenl. Ev. § 418. See LIBEL; SLANDER.

ACTIONARY. A commercial term used

Mixed Personal Actions are those which in Europe to denote a proprietor of shares or partake of both a civil and a criminal char-actions in a joint stock company.

acter.

Personal Actions are those in which one person (actor) sues another as defendant (reus) in respect of some obligation which he is under to the actor, either ex contractu or ex delicto, to perform some act or make some compensation.

Real Actions.-Those by which a person seeks to recover his property which is in the possession of another.

In the Common Law. The action properly is said to terminate at judgment; Coke, Litt. 289 a; Rolle, Abr. 291; 3 Bla. Com. 116; 3 Bouvier, Inst. n. 2639. Civil Actions.-Those actions which have for their object the recovery of private or civil rights, or of compensation for their infraction.

Criminal Actions.-Those actions prosecuted in a court of justice, in the name of the government, against one or more individuals accused of a crime. See 1 Chitty, Crim. Law. Local Actions.-Those civil actions the

cause of which could have arisen in some particular place or county only. See LOCAL ACTIONS.

Mixed Actions.-Those which partake of the nature of both real and personal actions. See MIXED ACTION.

Personal Actions.-Those civil actions which are brought for the recovery of personal property, for the enforcement of some contract, or to recover damages for the commission of an injury to the person or property. See PERSONAL ACTION.

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ACTON BURNELL. An ancient English statute, so called because enacted by a parliament held at the village of Acton Burnell; 11 Edw. 1.

It is otherwise known as statutum mercatorum

or de mercatoribus, the statute of the merchants.

It was a statute for the collection of debts, the earliest of its class, being enacted in 1283.

A further statute for the same object, and known as De Mercatoribus, was enacted 13 Edw. I. (c. 3.).

See STATUTE MERCHANT.

A patron, pleader, or advocate; Du Cange; ACTOR (Lat. agere). In Civil Law. Cowel; Spelman.

Actor ecclesiæ.-An advocate for a church; one Actor villa was the steward or head-bailiff of a who protects the temporal interests of a church. town or village; Cowel.

One who takes care of his lord's lands; Du Cange.

A guardian or tutor. One who transacts the business of his lord or principal; nearly synonymous with agent, which comes from the same word.

The word has a variety of closely-related meanReal Actions.-Those brought for the spe-ings, very nearly corresponding with manager. cific recovery of lands, tenements, or heredi- Thus, actor dominee, manager of his master's taments; Stephen, Pl. 3. See REAL ACTION. | farm; actor ecclesiæ, manager of church prop

ACTRIX

erty; actores provinciarum, tax-gatherers, treasurers, and managers of the public debt.

A plaintiff; contrasted with reus the defendant. Actores regis, those who claimed money of the king; Du Cange, Actor; Spelman, Gloss.; Cowel.

ACTRIX (Lat.). A female actor; a female plaintiff; Calvinus, Lex.

ACTS OF COURT. Legal memoranda made in the admiralty courts in England, in the nature of pleas.

For example, the English court of admiralty disregards all tenders except those formally made by acts of court; Abbott, Shipp. 403; Dunlop, Adm. Pr. 104, 105; 4 C. Rob. Adm. 103; 1 Hagg. Adm. 157.

ACTS OF SEDERUNT. In Scotch Law. Ordinances for regulating the forms of proceeding, before the court of session, in the administration of justice, made by the judges, who have the power by virtue of a Scotch Act of Parliament passed in 1540; Erskine, Pract. book 1, tit. 1, § 14.

ACTUAL DAMAGES. The damages awarded for a loss or injury actually sustained; in contradistinction from damages implied by law, and from those awarded by way of punishment. See DAMAGES.

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ACTUARIUS (Lat.). One who drew

the acts or statutes.

One who wrote in brief the public acts. An officer who had charge of the public baths; an officer who received the money for the soldiers, and distributed it among them; a notary.

An actor, which see; Du Cange. ACTUARY. The manager of a joint stock company, particularly an insurance company; Penny Cyc.

A clerk, in some corporations vested with various powers.

In Ecclesiastical Law. A clerk who registers the acts and constitutions of the convocation.

ACTUM (Lat. agere). A deed; something done.

Datum relates to the time of the delivery of the instrument; actum, the time of making it; factum, the thing made. Gestum, denotes a thing done without writing; actum, a thing done in writing.

Du Cange. ACTUS.

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LAM (Lat.). For greater caution.
AD ALIUD EXAMEN (Lat.). To an-
other tribunal; Calvinus, Lex.

AD CUSTAGIA.
lier; Cowel; Whishaw.

At the costs; Toul

AD CUSTUM. At the cost; 1 Sharsw. Bla. Com. 314.

AD DAMNUM (Lat. damnæ). To the damage.

In Pleading. The technical name of that part of the writ which contains a statement of the amount of the plaintiff's injury.

The plaintiff cannot recover greater damages than he has laid in the ad damnum; 2 Greenl. Ev. § 260.

AD EXCAMBIUM (Lat.). For exchange; for compensation; Bracton, fol. 12 b, 37 b.

AD EXHÆREDITATIONEM. To the

disherison, or disinheriting.

The writ of waste calls upon the tenant to appear and show cause why he hath committed waste and destruction in the place named ad exhæreditationem, etc.; 3 Bla. Com. 228; Fitzherbert, Nat. Brev. 55.

In

AD FACTUM PRÆSTANDUM. Scotch Law. The name given to a class of obligations of great strictness.

A debtor ad fac. præs. is denied the benefit of the act of grace, the privilege of sanctuary, and the cessio bonorum; Erskine, Inst. lib. 3, tit. 3, § 62; Kames, Eq. 216.

AD FIDEM. In allegiance; 2 Kent, 56. Subjects born in allegiance are said to be born ad fidem.

AD FILUM AQUÆ. To the thread of the stream; to the middle of the stream; 2 Cush. 207; 869; 2 Washb. R. P. 632, 633; 3 Kent, 428 Hill (N. Y.), 369; 2 N. H.

et seq.

A former meaning seems to have been, to a stream of water; Cowel; Blount. Ad medium filum aquæ would be etymologically more exact; 2 Eden, Inj. 260, and is often used; but the common use of ad filum aquæ is undoubtedly to the thread of the stream; 3 Sumn. C. C. 170; 1 M'Cord, 580; 3 Kent, 431; 20 Wend. 149; 4 Pick. 272.

AD FILUM VIÆ (Lat.). To the middle of the way; 8 Metc. Mass. 260.

AD FIRMAM. To farm.

Derived from an old Saxon word denoting rent, according to Blackstone, occurring in the given, granted, and to farm let): 2 Bla. Com. phrase, dedi concessi et ad firmam tradidi (I have 317. Ad firmam noctis was a fine or penalty equal in amount to the estimated cost of entertaining the king for one night; Cowel. Ad feodi firmam, to fee farm; Spelman, Gloss.; Cowel.

AD INQUIRENDUM (Lat. for inquiry). In Practice. A judicial writ, commanding inquiry to be made of any thing relating to a cause depending in court.

AD INTERIM

AD INTERIM (Lat.). In the mean time. An officer is sometimes appointed ad interim, when the principal officer is absent, or for some cause incapable of acting for the time.

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ejectment, or, under local regulations, by summary proceedings.

AD TUNC ET IBIDEM. In Pleading. The technical name of that part of an indictAD LARGUM. At large: as, title at ment containing the statement of the sublarge; assize at large; see Dane, Abr. c.ject-matter "then and there being found;" 144, art. 16, § 7.

Bacon, Abr. Indictment, G, 4; 1 No. C. 93. In an indictment, the allegation of time and place must be repeated in the averment of every

AD LITEM (Lat. lites). For the suit. Every court has the power to appoint a guar-distinct material fact; but after the day, year, dian ad litem; 2 Kent, 229; 2 Bla. Com. 427. AD LUCRANDUM VEL PERDENDUM. For gain or loss.

AD MAJORAM CAUTELAM (Lat.). For greater caution.

AD NOCUMENTUM (Lat.). To the hurt or injury.

In an assize of nuisance, it must be alleged by the plaintiff that a particular thing has been done, ad nocumentum liberi tenementiari (to the injury of his freehold); 3 Bla. Com.

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A writ issuing out of and returnable into chancery, directed to the sheriff, commanding him to inquire by a jury what damage it will be to the king, or any other, to grant a liberty, fair, market, highway, or the like.

The name is derived from the characteristic words denoting the nature of the writ, to inquire how great an injury it will be to the king to grant the favor asked; Whishaw, Fitzherbert, Nat. Brev. 221; Termes de la Ley.

and place have once been stated with certainty, it is afterwards, in subsequent allegations, sufficient to refer to them by the words et ad tunc et to an actual repetition of the time and place. ibidem, and the effect of these words is equivalent

The ad tunc et ibidem must be added to every material fact in an indictment; Saund. 95. Thus, an indictment which alleged that J. S. at N., et eum cum gladio felonicè percussit, was held a certain time and place made an assault upon J. bad, because it was not said, ad tunc et bidem percussit; Dy. 68, 69. And where, in an indictment for murder, it was stated that J. S. at a certain time and place, having a sword in his right hand, percussit J. N., without saying ad tunc et ibidem percussit, it was held insufficient; for the time and place laid related to the having the sword, and consequently it was not said when or where the stroke was given; Cro. Eliz. 738; 2 Hale, Pl. Cr. 178. And where the indictment charged that A. B. at N., in the county aforesaid, made an assault upon C. D. of F. in the county aforesaid, and him ad tunc et ibidem quodam gladio percussit, this indictment was held to be bad, ferred to both, it was impossible; if only to one, because two places being named before, if it reit must be to the last, and then it was insensible; 2 Hale, Pl. Cr. § 180.

AD VALOREM (Lat.). the valuation.

According to

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AD RATIONEM PONERE. To cite a deceased debtor to one who assumes his liabiliperson to appear.

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Addictio denotes a transfer of the goods of a ties; Calvinus, Lex. Also used of an assignment of the person of the debtor to the successful party in a suit.

ADDITION (Lat. additio, an adding to), Whatever is added to a man's name by way of title or description, as additions of mystery, place, or degree; Cowel; Termes de la Ley; 10 Wentworth, Plead. 371; Salk. 5; 3 Ld. Raym. 988; 1 Wils. 244.

Additions of estate are esquire, gentleman, and the like.

These titles can, however, be claimed by none,

and may be assumed by any one. In Nash v. Battersby (2 Ld. Raym. 986; 6 Mod. 80), the plaintiff declared with the addition of gentleman. The defendant pleaded in abatement that the murred, and it was held ill; for, said the court, The plaintiff deplaintiff was no gentleman.

it amounts to a confession that the plaintiff is no gentleman, and then not the person named in the

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