ACQUETS, estates in the civil law. Property which has been acquired by
purchase, gift or otherwise than by succession. Merlin Rep. h. t., confines
acquets to immovable property.
2. In Louisiana they embrace the profits of all the effects, of which the
hushand has the administration and enjoyment, either of right or in fact, of the
produce of the reciprocal industry and labor of both hushand and wife, and of
the estates which they may acquire during the marriage, either by donations,
made jointly to them both, or by purchase, or in any other similar way, even
although the purchase be only in the name of one of the two, and not of both,
because in that case the period of time when the purchase is made is alone
attended to, and not the person who made the purchase. Civ. Code, art. 2371.
3. This applies to all marriages contracted in that state, or out of it, when
the parties afterward go there to live, as to acquets afterward made there.Ib.
4. The acquets are divided into two equal portions between the hushand and
wife, or between their heirs at the dissolution of their marriage. Ib. art.
5. "The Parties may, however, lawfully stipulate there shall be no community
of profits or gains. Ib. art. 2369.
6. But the parties have no right to agree that they shall be governed by the
laws of another country.' 3 Martin's Rep. 581. Vide 17 Martin's Rep. 571 2
Kent's Com. 153, note.
ACQUIESCENCE, contracts. The consent which is impliedly given by one
or both parties, to a proposition, a clause, a condition, a judgment, or to any
2. When a party is bound to elect between a paramount right and a
testamentary disposition, his acquiescence in a state of things which indicates
an election, when he was aware of his rights will be prima facie evidence of
such election. Vide 2 Ves. Jr. 371; 12 Ves. 136 1 Ves. Jr. 335; 3 P. Wms. 315. 2
Rop. Leg. 439.
3. The acts of acquiescence which constitute an implied election, must be
decided rather by the circumstances of each case than by any general principle.
1 Swanst. R. 382, note, and the numerous cases there cited.
4. Acquiescence in the acts of an agent, or one who has assumed that
character, will, be equivalent to an express authority. 2 Bouv. Inst. n. 1309;
Kent, Com. 478; Story on Eq. 255; 4 W. C. C. R. 559; 6 Miss. R. 193; 1 John.
Cas. 110; 2 John. Cas. 424 Liv. on Ag. 45; Paley on, Ag. by Lloyd, 41 Pet. R.
69, 81; 12 John. R. 300; 3 Cowen's R. 281; 3 Pick. R. 495, 505; 4 Mason's R.
296. Acquiescence differs from assent. (q. v.)
ACQUIETANDIS PLEGIIS, obsolete. A writ of justices, lying, for the
surety against a creditor, who refuses to acquit him after the debt has been
satisfied. Reg. of Writs, 158; Cowell; Blount.
TO ACQUIRE, descents, contracts. To make property one's own.
2. Title to property is acquired in two ways, by descent, (q. v.) and by
purchase, (q. v.) Acquisition by purchase, is either by, 1. Escheat. 2.
Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation, which is either by
deed or by matter of record. Things which cannot be sold, cannot be
ACQUISITION, property, contracts, descent. The act by which the person
procures the property of a thing.
2. An acquisition, may be temporary or Perpetual, and be procured either for
a valuable consideration, for example, by buying the same; or without
consideration, as by gift or descent.
3. Acquisition may be divided into original and derivative. Original
acquisition is procured by occupancy, 1 Bouv. Inst. n. 490; 2 Kent. Com. 289;
Menstr. Leg. du Dr. Civ. Rom. 344 ; by accession, 1 Bouv. Inst. n. 499; 2 Kent.,
Com. 293; by intellectual labor, namely, for inventions, which are secured by
patent rights and for the authorship of books, maps, and charts, which is
protected by copyrights. 1. Bouv. Inst. n. 508.
4. 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. And by act of the parties, by gift or sale. Property
may be acquired by a man himself, or by those who are in his power, for him; as
by his children while minors; 1 N. Hamps. R. 28; 1 United States Law Journ. 513
; by his apprentices or his slaves. Vide Ruth. Inst. ch. 6 & 7; Dig. 41, 1,
53; Inst. 2,9; Ib. 2,9,3.
ACQUITTAL, contracts. A release or discharge from an obligation or eng
agement. According to Lord Coke there are three kinds of acquittal, namely; 1,
By deed, when the party releases the obligation; 2, By prescription; 3, By
tenure.Co. Lit. 100, a.
ACQUITTAL, crim. law practice. The absolution of a party charged with
a crime or misdemeanor.
2. Technically speaking, acquittal is – the absolution of a party accused on
a trial before a traverse jury. 1 N. & M. 36; 3 M'Cord, 461.
3. Acquittals are of two kinds, in fact and in law. The former takes place
when the jury upon trial finds a verdict of not guilty; the latter when a man is
charged merely as an accessary, and the principal has been acquitted. 2 Inst.
384. An acquittal is a bar to any future prosecution for the offence alleged in
the first indictment.
ACQUITTANCE, contracts. An agreement in writing to discharge a party
from an engagement to pay a sum of money. it is evidence of payment. It differs
from a release in this, that the latter must be under seal, while an acquittance
need not be under seal. Poth. Oblig. n. 781. In Pennsylvania, a receipt, (q. v.)
though not under seal, has nearly the same effect as a release. 1 Rawle, R. 391.
Vide 3 Salk. 298, pl. 2; Off. of Ex. 217 ; Co. Litt. 212 a, 273 a.
ACRE, measures. A quantity of land containing in length forty perches,
and four in breadth, or one hundred and sixty square perches, of whatever shape
may be the land. Serg. Land Laws of Penn., 185. See Cro. Eliz. 476, 665; 6 Co.
67; Poph. 55; Co. Litt. 5, b, and note 22.
ACREDULITARE, obsolete. To purge one's self of an offence by oath. It
frequently happens that when a person has been arrested for a contempt, he comes
into court and purges himself, on oath, of having intended any contempt. Blount,
Leges. Inac. c. 36.
ACT, civil law, contracts. A writing which states in a legal form that
a thing has been said, done, or agreed. In Latin, Instrumentum. Merl. Rep.
ACT. In the legal sense, this word may be used to signify the result
of a public deliberation, the decision of a prince, of a legislative body, of a
council, court of justice, or a magistrate. Also, a decree, edict, law,
judgment, resolve, award, determination. Also, an instrument in writing to
verify facts, as act of assembly, act of congress, act of parliament, act and
deed. See Webster's Dict. Acts are civil or criminal, lawful or unlawful, public
2. Public acts, usually denominated authentic, are those which have a public
authority, and which have been made before public officers, are authorized by a
public seal, have been made public by the authority of a magistrate, or which
have been extracted and been properly authenticated from public records.
3. Acts under private signature are those which have been made by private
individuals, 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. 5 N. S. 693;
8 N. S. 568 ; 3 L. R. 419 ; 8 N. S. 396 ; 11 M. R. 243; unless it hasheen
properly acknowledged before the officer, bythe parties to it. 5 N. S. 196.
4. Private acts are those made by private persons, as registers in relation
to their receipts and expenditures, schedules, acquittances, and the like. Nov.
73, c. 2 ; Code, lib. 7, tit. 32, 1. 6; lib. 4, t. 21; Dig. lib. 22, tit.. 4;
Civ. Code of Louis. art. 2231 to 2254; Toull. Dr. Civ. Francais, tom. 8, p.
ACT, evidence. The act of one of several conspirators, performed in
pursuance of the common design, is evidence against all of them. An overt act of
treason must be proved by two witnesses. See Overt.
2. The terra. acts, includes written correspondence, and other papers
relative to the design of the parties, but whether it includes unpublished
writings upon abstract questions, though of a kindred nature, has been doubted,
Foster's Rep. 198 ; 2 Stark. R. 116, 141.
3. In cases of partnership it is a rule that the act or declaration of either
partner, in furtherance of the common object of the association, is the act of
all. 1 Pet. R. 371 5 B. & Ald. 267.
4. And the acts. of an agent, in pursuance of his authority, will be binding
on his principal. Greenl. Ev. 113. ACT, legislation. 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. If an act of
assembly expire or be repealed while a proceeding under it is in fieri or
pending, the proceeding becomes abortive; as a prosecution for an offence, 7
Wheat. 552; or a proceeding under insolvent laws. 1 Bl. R. 451; Burr. 1456 ; 6
Cranch, 208 ; 9 Serg. & Rawle, 283.
2. 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.
3. Explanatory acts should not be enlarged by equity Blood's case, Comb. 410;
although such acts may be allowed to have a retrospective operation. Dupin,
Notions de Droit, 145. 9.
4. 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. Com. 85, 6; 1
Bouv. Inst. n. 105.
ACT IN PAIS. An act performed out of court, and not a matter of
record. Pais, in law French, signifies country. A deed or an assurance
transacted between two or more private persons in the country is matter in pais.
2 Bl. Com. 294.
ACT OF BANKRUPTCY. An act which subjects a person to be proceeded
against as a bankrupt. The acts of bankruptcy enumerated in the late act of
congress, of 19th Aug. 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. 4511
Rose, R. 387 9 Moore, R. 217 2 V. & B. 177; 5 T. R. 512; 1 C. & P. 77; 2
Bini,. R. 99; 2 Taunt. 176; Holt, R. 175.
2. Concealment to avoid being arrested. 1 M. & S. 676 ; 2 Rose, R. 137;
15 Ves. 4476 Taunt. R. 540; 14 Ves. 86 Taunt. 176;1 Rose, R. 362; 5 T. R. 512; 1
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 process.
5. Making any fraudulent conveyance, assignment, sale, gift, 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, 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.
2. 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, byhis 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, (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, 8; 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 Bl. Com. 340; 1 T. R. 33; Jones on Bailm 104, 5 ; 1
Bouv. Inst. n. 1024.
3. Special bail are discharged when the defendant dies, Tidd, 243 ; actus Dei
nemini facit injuriam being a maxim of law, applicable in such case; but if the
defendant die after the return of the case and before it is filed, the bail are
fixed. 6 T. R. 284; 6 Binn. 332, 338. It is, however, no ground for an
exoneratur, that the defendant has become deranged since the suit was brought,
and is confined in a hospital. 2 Wash. C. C. R. 464, 6 T. It. 133 Bos. &
Pull. 362 Tidd, 184. Vide 8 Mass. Rep. 264; 3 Yeates, 37; 2 Dall. 317; 16 Mass.
Rep. 218; Stra. 128; 1 Leigh's N, P. 508; 11 Pick. R. 41; 2 Verm. R. 92; 2
Watt's Rep. 443. See generally, Fortuitous Event; Perils of the Sea.
ACT OF GRACE, Scotch law. The name by which the statute which provides
for the aliment of prisoners confined for civil debts, is usually known.
2. This statute provides that where a prisoner for debt declares upon oath,
before the magis trate of the jurisdiction, that he has not wherewith to
maintain himself, the magistrate may set him it liberty, if the creditor, in
consequence of whose diligence he was imprisoned, does not aliment him within
ten days after intimation for that purpose. 1695, c. 32; Ersk. Pr. L. Scot. 4,
3, 14. This is somewhat similar to a provision in the insolvent act of
ACT 0F LAW. An event which occurs 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 actus legis nemini est damnosus. 2
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.
2. 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
salesmen, although he may possibly have had no knowledge of it.
ACTIO BONAE FIDEI, civil law. An action of good faith.
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 Usage, n. 75.
ACTIO COMMODATI DIRECTA. In the civil law, is the name of an action,
by a lender against a borrower, the principal object of which is to obtain
restitution of the thing lent. Poth. Pret. 5, 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 be paid
by mistake. Poth. Promutuum, n. 140. See Assumpsit.
ACTIO EXCONDUCTIO, civil law. The name of an action which the bailor
of a thing for hiremay bring against the bailee, in order to compel him to
redeliver the thing hired. Poth. du Contr. de Louage, n. 59.
ACTIO DEPOSITI CONTRARIA. The name, of an action in the civil law
which the depositary has against the depositor to compel him to fulfil his
engagement towards him. Poth. Du Depot, la. 69.
ACTIO DEPOSITI DIRECTA. 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 JUDICATI, civil law. Was an action instituted, after four months
had elapsed after the rendition of judgment, in which the judge issued his
warrant to seize, first, the movables, which were sold within eight days
afterwards; and then the immovables, which were delivered in pledge to the
creditors, or put under the care of a curator, and, if at the end of two mouths,
the debt was not paid, the land was sold. Dig. 42, t. 1. – Code, 8, 34.
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 habere debet. This
is technically termed the actio non. 1 Ch. Plead. 531 2 Ch. Plead. 421 ; Steph.
ACTIO NON ACCREVIT INFRA SEX ANNOS. The name of a plea to the statute
of limitations when the defendant insists that the plaintiff's action has not
accrued within six years. It differs from non assumpsit in this: non assumpsit
is the proper plea to an action on a simple contract, when the action accrues on
the promise but when it does not accrue on the promise but subsequently to it,
the proper plea is actio non accrevit, &c. Lawes, Pl. in Ass. 733; 5 Binn.
200, 203; 2 Salk. 422; 1 Saund. Rep. 83 n. 2; 2 Saund, 63, b; 1 Sell. N.P.
ACTIO PERSONALIS MIORITUR 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. See 1 Saund. Rep. 217, note 1.
2. The maxim must therefore be taken in a more restricted meaning. It extends
to all wrongs attended with actual force, whether the 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. III. 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. III. c. 5. And by statute 31
Ed. III. c. 11, administrators have the same remedy as executors.
3. 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. 13 S. 184;
Cowp. 376; 1 Saund. 216, 217, n. 1; Com. Dig 241, B 13; 1 Salk. 252; 6 S. &
R. 272; W. Jones, 215.
4. Assumpsit may be 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, 2165. An action for a
breach of a promise of marriage cannot be maintained by an executor, 2 M. &
S. 408; nor against 13 S. & R. 183; 1 Picker. 71; unless, perhaps, 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, H11 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. so; 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;
3 Bouv. Inst. n. 2750; this Dictionary, tit. actions; Death; Parties to actions;
ACTIO PRO SOCIO. In the civil law, is the name of an action by which
either partner could compel his co-partners to perform their social contract.
Poth. Contr. de Societe, n. 134.
ACTION. Conduct, behaviour, something done. Nomen actionis latissime
patere vulgo notum est ac comprehenders omnem omnino viventis operationem quae
passioni opponitur. Vinnius, Com. lib. 4, tit. 6. De actionibus.
2. Human actions have been divided into necessary actions, or those over
which man has no control; and into free actions, or such as he can control at
his pleasure. As man is responsible only when he exerts his will, it is clear
lie can be punished only for the Iatter.
3. Actions are also divided into positives and negative the former is called
an act of commision the latter is the omission of something which ought to be
done, and is called an act of omission. A man may be responsible as well for
acts of omission, as for acts of commission.
4. Actions are voluntary and involuntary. The former are performed freely and
without constraint – the latter are performed not by choice, against one's will
or in a manner independent of the will. In general a man is not responsible for
his involuntary actions. Yet it has been ruled that if a lunatic hurt a man, he
shall be answerable in trespass, although, if he kill a man, it is not felony.
See Hob. Rep. 134; Popham, 162; Pam. N. P. 68. See also Duress; Will.
ACTION, French com. law. Stock in a coompany, shares in a
ACTION, in practice. Actio nihil aliud est, quam jus persequendi in
judicio quod sibi debetur. Just. Inst. Lib. 4, tit. 6; Vinnius, Com. Actions are
divided into criminal and civil. Bac. Abr. Actions, A. 2. – 1. A criminal action
is a prosecution in a court of justice in the name of the government, against
one or more individuals accused of a crime. See 1 Chitly's Cr. Law.
1. – 2. A civil action is a legal demand of one's right, or it is the form
given by law for the recovery of that which is due. Co. Litt. 285; 3 Bl. Com.
116; 9 Bouv. Inst. n. 2639; Domat. Supp. des Lois Civiles, liv. 4, tit. 1, No.
1; Poth. Introd. generale aux Coutumes, 109; 1 Sell. Pr. Introd. s. 4, p. 73.
Ersk. Princ. of Scot. Law, B. 41 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 all execution. Co. Litt. 289 a; Roll. Ab. 291. They are
real, personal and mixed. An action is real or personal, according as realty or
personalty is recovered; not according to the nature of the defence. Willes'
4. – 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 endeavors 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 cui, or the post, upon disseisin, intrusion. or alienation.
3dly. Writs ancestral possessory, as Mort d' ancester, aid, 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.
5. – 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; 3 Bouv.
Inst. n. 2641. Personal actions arise either upon contracts, or for wrongs
independently of contracts. The former are account, assumpsit, covenant, debt,
and detinue; see these 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 for wrongs, injuries, or torts, are trespass
on the case, replevin, trespass, trover. See these words, and see Actio
personalis moritur cum persona.
6. – 3. 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. Pl. 3; Co.
Litt. 284, b; Com. Dig. Actions, D 4. Every mixed action, properly so called, is
also a real action. The action of ejectment is a personal action, and formerly,
a count for an assault and battery might be joined with a count for the recovery
of a term of Years in land.
7. Actions are also divided into those which are local and such as are
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 locality of actions is founded
in some cases, on common law principles, in others on the statute law.
8. Of those which continue local, by the common law, are, lst, 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. I.) 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
9. – 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 quare impedit is local, inasmuch as the benefice, in the right of
presentationto 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 quare clausum fregit; 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. Pl. 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
PI. ch. 3, 111. A scire facias upon a record, (which is an action, 2 Term Rep.
46,) although to some intents, a continuation of the original suit, 1 Term Rep.
388, is also local.
10. – 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. 1 Saund. 241, b, note 6. And
it will be found true, as a general position, that actions ex delicto, in which
a mere personalty is recoverable, are, by the common law, transitory;except when
founded upon, or arising out of some local subject. Gould on Pl. 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.)
11. 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 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. 1, n. 5;
Pothier, Introd. Generales aux Coutumes 110; Ersk. Pr. Scot. Law, B. 4, t. 1,
12. A personal action is that which 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. 1, n. 4; 1 Brown's Civ. Law, 440.
13. Mixed actions participate both of personal and real actions. Such are the
actions of partition, and to compel the parties to put down landmarks or
boundaries. Domat, ubi supra.
ACTION AD EXHIBENDUM, civil law. This was an action instituted for the
purpose of compelling the defendant to exhibit a thing or title, in his power.
It was preparatory to another action, which was always a real action in the
sense of the Roman law, that is, for the recovery of a thing, whether it was
movable or immovable. Merl. Quest. de Dr. tome i. 84. This is not unlike a bill
of discovery. (q. v.)
ACTION OF ADHERENCE, Scotch law. An action competent to a hushand or
Wife to compel either party to adhere in case of desertion.
ACTION OF BOOK DEBT. The name of an action in Connecticutand Vermont,
resorted to for the purpose of recovering payment for articles usually charged
on book. 1 Day, 105; 4 Day, 105; 2 Verm, 66. See 1 Root, 59; 1 Conn. 75; Kirby,
89; 2 Robt, 130; 11 Conn. 205.
ACTION. REDHIBITORY, civil law. An action instituted to avoid a sale
on account of some Vice or defect in the thing sold which readers it either
absolutely useless, or its use so inconvenient and, imperfect, that it must be,
supposed the buyer would not have purchased it, had he known of the vice. Civ.
Code of Louis. art. 2496.
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 a plea
is called: a plea to the action of the writ, whereas if it should appear by the
plea that the plaintiff has no cause to have action for the thing demanded, then
it is called a plea to the action. Termes de la ley.
ACTIONS ORDINARY. Scotch law. By this term is understood all actions
not recissory. Ersk. Pr. L. Scot. 4, 1, 5.
ACTIONS RESCISSORY, Scotch law. Are divided into, 1, Actions of proper
improbation; 2, Actions of reduction-improbation; 3, Actions of simple
reduction. Ersk. Pr. L. Scot. 4 1, 5,
2. – 1. Proper improbation is an action brought for declaring writing false
3. – 2. Reduction-improbation is an action whereby a person who may be hurt,
or affected by a writing, insists for producing or exhibiting it in court, in
order to have it set aside or its effects ascertained, under the certification,
that the writing if not produced, shall be declared false and forged.
4. – 3. In an action of simple reduction, the certification is only
temporary, declaring the writings called for, null, until they be produced; so
that they recover their full force after their production. Ib. 4, 1, 8.
ACTIONARY. A commercial term used among foreigners, to signify
ACTIONES NOMINATAE. Formerly the English courts of chancery would make
no writs when there was no precedent, and the cases for which there were
precedents were called actiones nominatoe. The statute of Westm. 2, c. 24, gave
chancery authority to form new writs in consimili casu. Hence arose the action
on the case. Bac. Ab. Court of Chancery, A; 17, Serg. R. 195.
ACTIVE. The opposite, of passive. We say active debts, or debts due to
us; passive debts are those we owe.
ACTON BURNELL. Statute of Vide de Mercatoribus. Cruise, Dig. tit. 14,