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which is protected by copyrights; 1 Bouvier, Inst. n. 508.

Derivative acquisitions are those which are procured from others, either by act of law or by act of the parties. Goods and chattels may change owners by act of law in the cases of forfeiture, succession, marriage, judgment, insolvency, and intestacy; or by act of the parties, as by gift or sale.

An acquisition may result from the act of the party himself, or those who are in his power acting for him, as his children while minors; 1 N. H. 28; 1 U. S. Law Journ. 513. See Dig. 41. 1. 53; Inst. 2. 9. 3.

ACQUITTAL. In Contracts. A release or discharge from an obligation or engage

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When a prisoner has been acquitted, he becomes competent to testify either for the government or for his former co-defendants; 7 Cox, Cr. Cas. 341, 342, per Monahan, C. J. And it is clear, that where a married defend ant is entirely removed from the record by verdict pronounced in his favor, his wife may testify either for or against any other persons who may be parties to the record; 12 Mees. & W. 49, 50, per Alderson, B.; 8 Carr. & P. 284; 2 Taylor, Ev. 3d ed. § 1230.

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ACQUITTANCE. In Contracts. agreement in writing to discharge a party from an engagement to pay a sum of money. It is evidence of payment, and differs from a release in this, that the latter must be under seal, while an acquittance need not be under seal; Pothier, Oblig. n. 781. See 3 Salk. 298; Coke, Litt. 212 a, 273 a; 1 Rawle, 391.

ACRE (Germ. Aker, perhaps Lat. Ager, a field). A quantity of land containing one hundred and sixty square rods of land, in whatever shape; Sergeant, Land Laws of Penn. 185; Cro. Eliz. 476, 665; 6 Coke, 67; Poph. 55; Coke, Litt. 5 b. The word formerly signified an open field; whence acrefight, a contest in an open field; Jacob, Dict. The measure seems to have been variable in amount in its earliest use, but was fixed by statute at a remote period. As originally

used, it was applicable especially to meadowlands; Cowel.

ACT (Lat. agere, to do; actus, done). Something done or established.

In its general legal sense, the word may denote something done by an individual, as a private citizen, or as an officer; or by a body of men, as a legislature, a council, or a court of justice; including not merely physical acts, but also decrees, edicts, laws, judgments, resolves, awards, by the Congress of the United States are styled and determinations. Some general laws made joint resolutions, and these have the same force and effect as those styled acts.

An instrument in writing to verify facts; Webster, Dict.

It is used in this sense of the published acts of assembly, congress, etc. In a sense approaching this, it has been held in trials for treason that 1 Fost. Cr. Cas. 198; 2 Stark. 116. letters and other written documents were acts;

In Civil Law. A writing which states in legal form that a thing has been done, said, or agreed; Merlin, Répert.

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Private acts are those made by private perand expenditures, schedules, acquittances, sons as registers in relation to their receipts and the like; Nov. 73, c. 2; Code, 7. 32. 6; 4. 21; Dig. 22. 4; La. Civ. Code, art. 2231 to 2254; 8 Toullier, Droit Civ. Français, 94. which have been made by private individuals, Acts under private signature are those

under their hands. An act of this kind does

not acquire the force of an authentic act by being registered in the office of a notary; 11 Mart. La. 243; 5 Mart. N. s. La. 693; 8 id. 568; 3 id. 396; 3 La. Ann. 419; unless it has been properly acknowledged before the officer by the parties to it; 5 Mart. N. s. La.

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ACT OF BANKRUPTCY

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ACT OF GRACE

Bla. 451; 3 Burr. 1456; 6 Cranch, 208; 9 Strob. 119. See 28 Barb. 403; 12 Md. 9; 4 Stew. S. & R. 283. & P. 382; 28 Mo. 323.

ACT OF BANKRUPTCY. An act which subjects a person to be proceeded against as a bankrupt.

In a late and well-considered English case, 1 C. P. D. 34, 423; 34 L. T. R. N. s. 827; s. c. 18 Am. R. 618; 14 Alb. L. J. 164; Cockburn, C. J., held, in an action for the loss of a horse on shipboard, that if a carrier "uses all the known means to have recourse, he does all that can be reasonably which prudent and experienced carriers usually required of him, and if under such circumstances he is overpowered by storm or other natural agency, he is within the rule which gives immu

of God." The accident, to come within the rule,
must be due entirely to natural causes without
Murphy, 173; 2 Bailey, 157, 421.
human intervention; ibid., also 2 Zab. 373; 1

In England, the bankruptcy act of 1869 enumerates the following acts of bankruptcy By traders and non-traders alike, convey ance of property to trustees for the benefit of creditors generally; fraudulent conveyance, gift, delivery, or transfer of property; depar-nity from the effects of such vis major as the act ture out of England; remaining out of England; declaration of inability to pay debts; debtor's summons requiring payment of not less than £50, and that the debtor has not paid or compounded for the same within the time limited by traders only; departure from his dwelling house; otherwise absenting himself; beginning to keep house; suffering himself to be outlawed; that execution issued for not less than £50 has been levied by seizure and sale.

The term is sometimes defined as equivalent to inevitable accident (2 Sm. & M. 572; 2 Ga. 349), but incorrectly, as there is a distinction between the two; although Sir William Jones proposed the use of inevitable accident instead of Act of 25; 2 Bla. Com. 122; 2 Crabb, R. P. § 2176; God; Jones, Bailm. 104. See Story, Bailm. § Dougl. 287; 21 Wend. 190; 10 Miss. 572; 5 Blackf. 222.

As to conveyance of property to trustees Where the law casts a duty on a party, the for benefit of creditors generally, see Williams performance shall be excused if it be rendered on Bank. 3. As to fraudulent conveyance, impossible by the act of God; lex neminem gift, delivery, or transfer of property; 1 Sm. L. C. 1; 36 L. J. Q. B. 289; 1 Ad. & E. his own contract, engages to do an act, it is cogit ad impossibilia; but where the party by 456; 1 Esp. 67; 1 Burr. 407; 1 Ld. Ray-deemed to be his own fault that he did not mond, 724. As to departure out of England; 1 Taunt. 270; Q. B. 51; 3 Camp. 349. See generally Williams, Roche, Hazlitt. In the United States see, as to the Act of 1867 (now repealed), Bump, Bankruptcy.

ACT OF GOD. Any accident due to natural causes directly and exclusively without human intervention, such as could not have been prevented by any amount of foresight, and pains, and care reasonably to have been expected; L. R. 1 C. P. D. 423. See also L. R. 10 Ex. 255. The civil law employs, as a corresponding term, vis major.

The term generally applies, broadly, to natural accidents, such as those caused by lightning, earthquakes, and tempests; Story, Bailm. § 511; 2 Ga. 349. A severe snow-storm, which blocked up railroads, held within the rule; 40 Mo. 491. So where fruit-trees were frozen, in transit, it was held to be by the act of God, unless there had been improper delay on the part of the carrier; 63 Mo. 230. The freezing of a canal or river held within the rule; 14 Wend. 213; 23 Id. 306; 4 N. H. 259. A frost of extraordinary severity (11 Ex. 781; s. c. 25 L. J. Ex. 212) and an extraordinary fall of snow (28 L. J. Ex. 51) have been held to be the act of God. A sudden failure of wind has been held to be an act of God; 6 Johns. 160 (but this case has been doubted; 1 Sm. L. C. Am. ed. 417; and Kent, Ch. J., substantially dissented; see also 21 Wend. 190). Losses by fire have not generally been held to fall under the act of God; 1 T. R. 33; 6 Seld. 431; 69 Ill. 285; s. c. 18 Am. R. 613; 76 Ill. 542 (the Chicago fire); (though otherwise when the fire is caused by lightning, 26 Me. 181); but where a distant forest fire was driven by a tornado, to where a carrier's cars were on the track awaiting a locomotive, their destruction was held to be by the act of God; 87 Pa. 234; but see 2 Tex. 115, contra. When a flood had risen higher than ever before, destruction of goods thereby was held to be by act of God; 30 N. Y. 630. The bursting of a boiler does not come within the act of God; 51

thereby provide against contingencies, and exempt himself from responsibilities in certain events; and in such case (that is, in the instance of an absolute general contract) the non-performance is not excused by an inevitable accident, or other contingency, although not foreseen by, nor within the control of, the party; Aleyn, 26; Chitty, Contr. 272, 3; 1 Bouvier, Inst. n. 1024; 6 Term, 650; 8 id. 267; 3 Maule & S. 267; 7 Mass. 325; 13 id. 94; L. R. 5 C. P. 586; id. 4 Q. B. 134; Leake, Contr. 683.

Certain contracts are construed as containing an implied exception of impossible events, and even general words in the contract will not be held to apply to the possibility of the particular contingency which afterwards happened; Leake, Contr. 702; L. R. 4 Q. B. 185. So if a bail bond to render a debt is discharged by the debtor's death before default; W. Jones, 29. Contracts for strictly personal services, marriage, etc., are discharged by death or incapacity; 3 B. & S. 835; Cro. Eliz. 532; 2 M. & S. 408; L. R. 6 Ex. 269; as where a singer could not sing by reason of ill-health. So, when one employed a bailiff for six months, and died, the contract was held dissolved; L. R. 4 C. P. 744. So of contracts of partnership.

See BAILMENT; COMMON CARRIER; PERIL OF THE SEA; SPECIFIC PERFORMANCE.

ACT OF GRACE. In Scotch Law. A statute by which the incarcerating creditor is bound to aliment his debtor in prison, if such debtor has no means of support, under penalty of a liberation of his debtor if such aliment be not provided; Paterson, Comp.

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; Stat. 1696, c. 32; Erskine, Pract. 4.

ACT OF HONOR. An instrument drawn up by a notary public, after protest of a bill of exchange, when a third party is desirous of paying or accepting the bill for the honor of any or all of the parties to it.

The instrument describes the bill, recites its protest, and the fact of a third person coming forward to accept, and the person or persons for whose honor the acceptance is made. The right to pay the debt of another, and still hold him, is allowed by the law merchant in this instance, and is an exception to the general rule of law; and the right can only be gained by proceeding in the form and manner sanctioned by the law; 3 Dan. Ky. 554; Bayley, Bills; Sewell, Banking.

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The first sense here given is the older one. Justinian, following Celsus, gives the well-known definition: Actio nihil aliud est, quam jus persequendi in judicio, quod sibi debetur, which may be thus rendered: An action is simply the right to enforce one's demands in a court of law. See Inst. Jus. 4. 6, de Actionibus.

In the sense of a specific form of remedy, there are various divisions of actiones.

Actiones civiles are those forms of remedies which were established under the rigid and inflexible system of the civil law, the jus civilis. Actiones honoraria are those which were gradually introduced by the prætors and ædiles, by virtue of their equitable powers, in order to prevent the failure of justice which too often resulted from the employment of the

ACT IN PAIS. An act performed out of court, and which is not a matter of record. A deed or an assurance transacted between two or more private persons in the country, that is, according to the old common law, upon the very spot to be transferred, is mat-actiones civiles. These were found so beneter in pais; 2 Bla. Com. 294.

ACT ON PETITION. A form of summary proceeding formerly in use in the High Court of Admiralty, in England, in which the parties stated their respective cases briefly, and supported their statements by affidavit; 2 Dods. Adm. 174, 184; 1 Hagg. Adm. 1, note. The suitors of the English Admiralty were, under the former practice, ordinarily entitled to elect to proceed either by act on petition, or by the ancient and more formal mode of "plea and proof;" that is, by libel and answer, and the examination of witnesses; W. Rob. Adm. 169, 171, 172. But, by the new rules which took effect Jan. 1, 1860, the modes of pleading theretofore used, as well in causes by act on petition as by plea and proof, were abolished, and a uniform mode of pleading substituted: the first pleading to be called the petition; the second, the answer; the third, the reply; the fourth, the rejoinder, etc. etc. Rules 65 and 66. Morris, Lectures on the Jurisdiction and Practice of the High Court of Admiralty, p. 28. See as to proof under these rules, Rules 78, 79.

ACT OF SETTLEMENT. In English Law. The statute of 12 & 13 Will. III. c. 2, by which the crown of England was limited to the present royal family; 1 Bla. Com. 128; 2 Steph. Com. 290.

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ficial in practice that they eventually supplanted the old remedies, of which in the time of Justinian hardly a trace remained; Mackeldey, Civ. L. § 194; 5 Savigny, System.

Directæ actiones, as a class, were forms of remedies for cases clearly defined and recogUtiles acnized as actionable by the law. tiones were remedies granted by the magistrate in cases to which no actio directa was applicable. They were framed for the special occasion, by analogy to the existing forms, and were generally fictitious; that is, they proceeded upon the assumption that a state of things existed which would have entitled the party to an actio directa, and the cause was tried upon this assumption, which the other party was not allowed to dispute; 5 Savigny, System, § 215.

Again, there are actiones in personam and actiones in rem. The former class includes all remedies for the breach of an obligation, and are considered to be directed against the person of the wrong-doer. The second class comprehends all remedies devised for the recovery of property, or the enforcement of a right not founded upon a contract between the parties, and are therefore considered as rather aimed at the thing in dispute, than at the son of the defendant; Mackeldey, Civ. L. § tolan, Inst. §§ 1952 et seq. 195; 5 Savigny, System, §§ 206-209; 3 Or

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actiones rei persequendæ causa comparata, to In respect to their object, actions are either which class belong all in rem actiones, and those of the actiones in personam, which were directed merely to the recovery of the value of a thing, or compensation for an injury; or they are actiones pœnales, called also actiones ex delicto, in which a penalty was recovered of the delinquent, or actiones mixtæ, in which

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were recovered both the actual damages and the parties were allowed, instead of an actual

a penalty in addition. These classes, actiones panales and actiones mixta, comprehended cases of injuries, for which the civil law permitted redress by private action, but which modern civilization universally regards as crimes; that is, offences against society at large, and punished by proceedings in the name of the state alone. Thus, theft, receiving stolen goods, robbery, malicious mischief, and the murder or negligent homicide of a slave (in which case an injury to property was involved), gave rise to private actions for damages against the delinquent; Inst. 4. 1. De obligationibus quæ ex delicto nascuntur; id. 2. De bonis vi raptis; id. 3. De lege Aquilia. And see Mackeldey, Civ. L. 196; 5 Savigny, System, §§ 210–212.

deposit, to give security in the amount required. slight, being derived from fragments of the earOur knowledge of all these actions is exceedingly lier jurisprudence preserved in literary works, laboriously pieced together by commentators, and the numerous gaps filled out by aid of ingenious and most copious conjectures. They bear all those marks which might have been expected of their origin in a barbarous or semi-barbarous age, among a people little skilled in the science of jurisprudence, and having no acquaintance with the refined distinctions and complex business transactions of civilized life. They were all of that highly symbolical character found among men of rude habits but lively imaginations. They abounded in sacramental words and signifirigid in their application, they possessed a charcant gestures, and, while they were inflexibly §acter almost sacred, so that the mistake of a word or the omission of a gesture might cause the loss of a suit. In the nature of things, such a system could not maintain itself against the advance of civilization, bringing with it increased complications in all the relations of man to man; and accordingly we find that it gradually, but sensibly, declined, and that at the time of Justinian not a trace of it existed in practice. See 3 Ortolan, Justinian, 467 et seq.

In respect to the mode of procedure; actiones in personam are divided into stricti juris, and bonæ fidei actiones. In the former the court was confined to the strict letter of the law; in the latter something was left to the discretion of the judge, who was governed in his decision by considerations of what ought to be expected from an honest man under circumstances similar to those of the plaintiff or defendant. Mackeldey, Civ. L. § 197 a.

It would not only be foreign to the purpose of this work to enter more minutely into a discussion of the Roman actio, but it would require more space than can here be afforded, since in Savigny's System there are more than a hundred different species of actio mentioned, and even in the succinct treatise of Mackeldey nearly eighty are enumerated. In addition to the works cited in passing may be added the Introduction to Sandars Justinian, which may be profitably consulted by the student.

To this brief explanation of the most important classes of actiones we subjoin an outline of the Roman system of procedure. From the time of the twelve tables (and probably from a much earlier period) down to about the middle of the sixth century of Rome, the system of procedure was that known as the actiones legis. Of these but five have come down to us by name: the actio sacramenti, the actio per judicis postulationem, the actio per condictionem, the actio per manus injectionem, and the actio per pignoris capionem. The first three of these were actions in the usual sense of the term; the last two were modes of execution. The actio sacramenti is the best known of all, because, from the nature of the questions decided by means of it, which included those of status, of property ex jure Quiritium, and of successions; and from the great popularity of the tribunal, the centumviri, which had cognizance of these questions, it was retained in practice long after the other actions had succumbed to a more liberal system of procedure. As the actio sacramenti was the longest-lived, so it was also the earliest, of the actiones leges; and it is not only in many particulars a type of the whole class, but the other species are conceived to have been formed by successive encroachments upon its field. The characteristic feature of this action was the sacramentum, a pecuniary deposit made in court by each party, which was to be forfeited by the loser. Subsequently, however,

About the year of Rome 507 began the introduction of the system known as the procedure per formulam or ordinaria judicia. An important part of the population of Rome consisted of foreigners, whose disputes with each other or with Roman citizens could not be adjusted by means of the actiones leges, these being entirely confined to questions of the strict Roman law, which could only arise between Roman citizens. To supply the want of a forum for foreign residents, a magistrate, the prætor peregrinus, was constituted with jurisdiction over this class of suits, and from the procedure established by this new court sprang the formulary system, which proved so convenient in practice that it was soon adopted in suits where both parties were Roman citizens, and gradually withdrew case after case from the domain of the legis actiones, until few questions were left in which that cumbrous procedure continued to be employed.

The

An important feature of the formulary system, though not peculiar to that system, was the distinction between the jus and the judicium, between the magistrate and the judge. magistrate was vested with the civil authority, imperium, and that jurisdiction over law-suits which in every state is inherent in the supreme power; he received the parties, heard their conflicting statements, and referred the case to a special tribunal of one or more persons, judex, arbiter, recuperatores. The function of this tribunal was to ascertain the facts and pronounce judgment thereon, in conformity with a special authorization to that effect conferred by the magistrate. Here the authority of the judge ended; if the defeated party refused to comply with the sentence, the victor must again resort to the magistrate to enforce the judgment. From this it would appear that the functions of the judge or judges under the Roman system corresponded in many respects with those of the jury at common law. They decided the question of fact submitted to them by the magistrate, as the jury decides the issue eliminated by the pleadings; and the decision made their functions ceased, like those of the jury.

As to the amount at stake, the magistrate, in cases admitting it, had the power to fix the sum in dispute, and then the judge's duties were con

fined to the simple question whether the sum specified was due the plaintiff or not; and if he increased or diminished this amount he subjected himself to an action for damages. In other cases, instead of a precise sum, the magistrate fixed a maximum sum, beyond which the judge could not go in ascertaining the amount due; but in most cases the magistrate left the amount entirely to the discretion of the judge.

like the common-law pleadings, affirmatively. Thus: "Si paret Numerium Negidium Aulo Agerio X millia dare oportere (intentio); si in ea re nihil dolo malo Auli Agerii factum sit neque flat (exceptio); Si non, etc. (replicatio)."

In preparing the formula the plaintiff presented to the magistrate his demonstratio, intentio, etc., which was probably drawn in due form under the advice of a jurisconsult; the defendant then presented his adjectiones, the plaintiff responded with his replications, and so on. The magistrate might modify these, or insert new adjectiones, at his discretion. After this discussion in jure, pro tribunali, the magistrate reduced the results to form, and sent the formula to the judge, before whom the parties were confined to the case thus settled. See 3 Ortolan, Justinian, §§ 1909 et seq.

The directions of the magistrate to the judge were made up in a brief statement called the formula, which gives its name to this system of procedure. The composition of the formula was governed by well-established rules. When complete, it consisted of four parts, though some of these were frequently omitted, as they were unnecessary in certain classes of actions. The first part of the formula, called the demonstratio, re- The procedure per formulam was supplanted cited the subject submitted to the judge, and in course of time by a third system, extraordiconsequently the facts of which he was to take naria judicia, which in the days of Justinian had cognizance. It varied, of course, with the sub- become universal. The essence of this system ject-matter of the suit, though each class of consisted in dispensing with the judge altogether, cases had a fixed and appropriate form. This so that the magistrate decided the case himself, form, in an action by a vendor against his vendee, and the distinction between the jus and the judiwas as follows: "Quod Aulus Agerius Numerio cium was practically abolished. This new system Negidio hominem vendidit;" or, in case of a bail- commenced with usurpation by the magistrates, ment, "Quod Aulus Agerius apud Numerium in the extension of an exceptional jurisdiction, Negidium hominem deposuit." The second part which had existed from the time of the leges of the formula was the intentio: in this was stated actiones, to cases not originally within its scope. the claim of the plaintiff, as founded upon the Its progress may be traced by successive enactfacts set out in the demonstratio. This, in a ques-ments of the emperors, and was so gradual that, tion of contracts, was in these words: "Si paret even when it had completely undermined its preNumerium Negidium Aulo Agerio sestertium X decessor, the magistrate continued to reduce to milia dare oportere," when the magistrate fixed writing a sort of formula representing the result the amount; or, “Quidquid paret Numerium Negi- of the pleadings. In time, however, this last dium Aulo Agerio dare facere oportere," when he relic of the former practice was abolished by an left the amount to the discretion of the judge. imperial constitution. Thus the formulary sysIn a claim of property the form was, "Si paret tem, the creation of the great Roman jurisconhominem ex jure Quiritium Auli Agerii esse." sults, was swept away, and carried with it in its The third part of the complete formula was the fall all those refinements of litigation in which adjudicatio, which contained the authority to the they had so much delighted. Thenceforth the judge to award to one party a right of property distinctions between the forms of actions were no belonging to the other. It was in these words: longer regarded, and the word actio, losing its "Quantum adjudicari oportet, judex Titio adjudi- signification of a form, came to mean a right, cato." The last part of the formula was the con- jus persequendi in judicio quod sibi debetur. demnatio, which gave the judge authority to pronounce his decision for or against the defendant. It was as follows: "Judex, Numerium Negidium Aulo Agerio sestertium X milia condemna: si non paret, absolve," when the amount was fixed; or, Judex, Numerium Negidium Aulo Agerio dumtaxat X milia condemna: si non paret, absolvito," when the magistrate fixed a maximum; or, Quanti ea res erit, tantam pecuniam, judex, Numerium Negidium Aulo Agerio condemna: si non paret, absolvito," when it was left to the discretion of the judge.

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Of these parts, the intentio and the condemnatio were always employed: the demonstratio was (sometimes found unnecessary, and the adjudicatio only occurred in three species of actions-familia erciscundæ, communi dividundo, and finium regundorum-which were actions for division of an inheritance, actions of partition, and suits for the rectification of boundaries.

The above are the essential parts of the formula in their simplest form; but they are often enlarged by the insertion of clauses in the demonstratio, the intentio, or the condemnatio, which were useful or necessary in certain cases: these clauses are called adjectiones. When such a clause was inserted for the benefit of the defendant, containing a statement of his defence to the claim set out in the intentio, it was called an exceptio. To this the plaintiff might have an answer, which, when inserted, constituted the replicatio, and so on to the duplicatio and triplicatio. These clauses, like the intentio in which they were inserted, were all framed conditionally, and not,

See Ortolan, Hist. no. 392 et seq.; id. Instit. nos. 1833-2067; 5 Savigny, System, § 6; Sandars, Justinian, Introduction; Gaius, by Abdy & Walker.

ACTIO BONÆ FIDEI (Lat. an action of good faith). In Civil Law. A class of actions in which the judge might at the trial, ex officio, take into account any equitable circumstances that were presented to him affecting either of the parties to the action; 1 Spence, Eq. Jur. 218.

ACTIO COMMODATI CONTRARIA. In Civil Law. An action by the borrower against the lender, to compel the execution of the contract; Pothier, Prêt à Usage, n. 75.

ACTIO COMMODATI DIRECTA. In Civil Law. An action by a lender against a borrower, the principal object of which is to obtain a restitution of the thing lent; Pothier, Prêt à Usage, nn. 65, 68.

ACTIO COMMUNI DIVIDUNDO. In Civil Law. An action for a division of the property held in common; Story, Partn., Bennett, ed. § 352.

ACTIO CONDICTIO INDEBITATI. In Civil Law. An action by which the plaintiff recovers the amount of a sum of money or other thing he paid by mistake; Pothier, Promutuum, n. 140; Merlin, Rép.

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