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Such are the actions of partition and to compel the parties to put down landmarks or boundaries. Domat, ubi supra.
Actions at common law may be considered with regard to,
1. Their several kinds: these are,
1. Criminal, 1.
2. Civil, 2. Civil actions are divided
1. Seal actions, 3, which are
1. Droitural, 3, as
1. Writs of right, 3.
2. Writs of entry, 3.
2. Possessory, as writs ancestral, 3.
2. Personal, 4, which arise
1. Ex contractu, 4. In this claaa
may be placed actions of
1. Account, 4.
2. Assumpsit, 4.
3. Covenant, 4.
4. Debt, 4.
5. Detinue, 4.
6. Book debt, 4.
2. Ex delicto, 4. In this class are
included actions of
1. Replevin, 4.
2. Trespass, 4.
3. Trover, 4.
4. Case, 4.
3. Mixed, 5, as,
1. Ejectment, 5.
2. Partition, 5.
2. The place where they are to be
brought. In this respect they are
1. Local, 6.
1. Because the thing to be recovered
is local, as ejectment, 6.
2. Because the action arises out of
a local subject, as, waste, 6.
3. Replevin, 6.
2. Transitory, 7.
Actions by the civil law are divided into
1. Real, which are to recover a thing,
whether it be movable or immovable, 8.
2. Personal, 9, which are
1. Civil, 9.
2. Criminal, 9.
3. Mixed, 10, aa
1. Partition, 10.
2. Actions to fix boundaries, 10.
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 prepara
tory 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 moveable or immoveable. Merl. Quest. de Dr. tome i. 84. This is not unlike a bill of discovery, (q. v.)
ACTION OF BOOK DEBT.— The name of an action in Connecticut and Vermont, resorted to for the purpose of recovering payment for articles usually charged on book. l'Day, 105; 4 Day, 105; 2 Verm. 366; see
1 Root, 59; 1 Conn. 75; Kirby, 289;
2 Root, 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 renders 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.
ACTIONS, ORDINARY, in the Scotch law; by this term is understood all actions not rescissory. Ersk. Pr. L. Scot. 4, 1, 5.
ACTIONS RESCISSORY, in the 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.
1. Proper improbation is an action brought for declaring writing false or forged.
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.
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.
ACTON BURNELL, statute of, vide de Mcrcatoribus; Cruise, Dig. tit. 14, s. 6.
ACTOR, practice, 1. A plaintiff or complainant. 2. He on whom the burden of proof lies. In actions of replevin both parties are said to be actors. The proctor or advocate in the courts of the civil law, was called actor.
ACTS OF COURT. In courts of admiralty, by this phrase is understood legal memoranda of the nature of pleas. For example, the English court of admiralty disregards all tenders, except those formally made by acts of court. Abbott on Ship, pt. 3, c 10, § 2, p. 403; 4 Rob. R. 103; 1 Hagg. R. 157; Dunl. A dm. Pr. 104,5.
ACTS OF SEDERUNT, in the laws of Scotland, are ordinances for regulating the forms of proceeding, before the court of session, in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Ersk. Pr. L. Scot. B. 1, t. 1, s. 14.
ACTUARY, is a clerk in some corporations vested with various powers. In the ecclesiastical law he is a clerk who registers the acts and constitutions of the convocation.
ACTUARIUS. An ancient name or appellation of a notary.
ACTUS. A foot way and horse way. Vide Way.
AD DAMNUM, pleading, to the damages. In all personal and mixed actions, with the exception of actions of debt qui tam, where the plaintiff has sustained no damages, the declaration concludes ad damnum. A re Jib. Civ. PI. 169.
AD LARGUM, at large, as title at large, assize at large. See Dane's Abr. ch. 144, a, 16, § 7.
AD VITAM AUT CULPAM, an office to be so held as to determine only by the death or delinquency of the possessor; in other words it is held quam diu se bene gesserit.
AD INQUIRENDUM, practice, a judicial writ commanding inquiry to be made of any thing relating to a cause depending in court.
AD QUOD DAMNUM, Eng. law. The name of 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.
AD TERMINUM QUI PRETERIIT. The name of a writ of entry which lay for the lessor or his heirs, when a lease had been made up of lands or tenements, for term of life or years, and, after the term had expired, the lands were withheld from the lessor by the tenant, or other person possessing the same. F. N. B. 201. The remedy now applied for holding over (q. v.) is by ejectment, or under local regulations, by summary proceedings.
ADDITION, whatever is added to a man's name by way of title, as additions of estate, mystery, or place. Additions of an estate or quality are esquire, gentleman, and the like; these titles can however be claimed by none, and may be assumed by any one. Additions of mystery are such as scrivener, painter, printer, manufacturer, &c. Additions of places are of Philadelphia, New York, Cincinnati and the like. See Bac. Ab. h. t.; Doct. PI. 71 ; 2 Vin. Abr. 77; 1 Lilly's Reg. 39; 1 Mete. R. 151.
ADDITIONALES, in contracts, additional terms or propositions to be added to a former agreement.
ADDRESS, legislation. In Pennsylvania it is a resolution of both branches of the legislature, twothirds of each house concurring, requesting the governor to remove a judge from office. The constitution of that state, art. 5, s. 2, directs that "for any reasonable cause, which shall not be sufficient ground for impeachment, the governor may remove any of them [the judges], on the address of two-thirds of each branch of the legislature." The mode of removal by address is unknown to the constitution of the United States, but it is recognized in those of thirteen of the respective states. In some of these constitutions the language is imperative; the governor when thus addressed shall remove; in others it is left to his discretion, he may remove. The relative proportion of each house that must join in the address, varies also in different states. In some a bare majority is sufficient; in others, two-thirds are requisite; and in others three-fourths. 1 Journ. of Law, 154.
ADEMPTION, wills, is a taking away or revocation of a legacy by the testator. It is either express or implied. It is the former when revoked in express terms by a later will; it is implied when by the acts of the testator it is manifestly his intention to revoke it; for example, when a specific legacy of a chattel is made, and afterwards the testator sells it; or if a father makes provision for a child by his will and afterwards gives to such child, if a daughter, a portion in marriage; or, if a son, a sum of money to establish him in life, provided such portion or sum of money be equal to or greater than the legacy. 2 Fonbl. 368 et seq.; Toll. Ex. 320; 1 Vern. R. by Raithby, 85 n. and the cases there cited. 1 Roper Leg. 237, 256, for the distinction between specific and general legacies.
ADHERENCE, action of, in the Scotch law, is an action competent to
a husband or wife to compel either party to adhere in case of desertion.
ADJOURNMENT, is the dismissal by some court, legislativeassembly, or properly authorised officer, of the business before them, either finally, which is called an adjournment sine die, without day; or, to meet again at another time which is appointed and ascertained, which is called a temporary adjournment. The constitution of the United States, art. 1, s. 5, n. 4, directs that" neither house, during the session of congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place, than that in which the two houses shall be sitting." Vide Com. Dig. h. t.; Vin. Ab. h. t.; Dietde Jur. h. t.
ADJOURNMENT-DAY, in English practice, is a day so called from its being a further day appointed by the judges at the regular sittings, to try causes at nisi prius.
ADJOURNMENT-DAY IN ERROR, in practice in the English courts, is a day appointed some days before the end of the term, at which matters left undone on the affirmance day are finished. 2 Tidd, 1224.
ADJUDICATIONS, in the Scotch law, arc certain proceedings against debtors, by way of actions, before the court of session; and are of two kinds; special and general.
1. By statute 1672, c. 19, such part only of the debtor's lands is to be adjudged as is adjudged to the principal sum and interest of the debt, with the compositions due to the superior, and expenses of infeoffment, and a fifth-part more, in respect the creditor is obliged to take lands for his money; but without penalties or sheriff-fees. The debtor must deliver to the creditor a valid right to the lands to be adjudged, or transumpts thereof, renounce the possession in his favour, and ratify the decree of adjudication: and the law considers the rent of the lands as precisely commensurate to the interest of the debt. In this, which is called a special adjudication, the time allowed the debtor to redeem the lands adjudged, (called the legal reversion or the legal,) is declared to be five years.
Where the debtor does not produce a sufficient right to the lands, or is not willing to renounce the possession and ratify the decree, the statute makes it lawful for the creditor to adjudge all right belonging to the debtor, in the same manner, and under the same reversion of ten years. In this kind, which is called a general adjudication, the creditor must limit his claim to the principal sum, interest and penalty without demanding a fifth part more. See Act 26 Feb. 1684; Ersk. Pr. L. Scot. B. 2,1.12, s. 15, 16. See Diligences.
ADJUDICATION,TM practice, is the giving or pronouncing a judgment in a cause; a judgment.
ADJUNCTION, in the civil law, takes place when the thing belonging to one person is attached or united to that which belongs to another, whether this union is caused by inclusion, as if one man's diamond be enchassed in another's ring; by soldering, as if one's guard be soldered on another's sword ; by sewing, as by employing the silk of one to make the coat of another; by construction, as by building on another's land; by writing, as when one writes on another's parchment; or by painting, when one paints a picture on another's canvass. In these cases, as a general rule, the accessory follows the principal; hence those things which are attached to the things of another become the property of the latter. The only exception which the civilians made was in the case of a picture, which although an accession, drew to itself the canvass, on account of the importance which was attached to it. Inst. lib. 2, t 1, § 34; Dig. lib. 41, t. 1,
1. 0, § 2. See Accession, and 2 Bl. Com. 404; Bro. Ab. Propertie; Com. Dig. Pleader, M 28; Bac. Abr. Trespass, E 2.
ADJUSTMENT, in maritime law; the adjustment of a loss is the settling and ascertaining the amount of the indemnity which the insured, after all proper allowances and deductions have been made, is entitled to receive, and the proportion of this, which each underwriter is liable to pay, under the policy. Marsh. Ins. B. 1, c. 14, p. 617; or it is a written admission of the amounts of the loss as settled between the parties to a policy of insurance. 3 Stark. Ev. 1167, 8.
In adjusting a loss, the first thing to be considered is, how the quantity of damages for which the underwriters are liable, shall be ascertained. When a loss is a total loss, and the insured decides to abandon, he must give notice of this to the underwriters in a reasonable time, otherwise he will waive his right to abandon, and must be content to claim only for a partial loss. Marsh. Ins. B. 1, c 13, s. 2; 15 East, 559; 1 T. R. 608; 9 East, 283; 13 East, 304; 6 Taunt. 383. When the loss is admitted to be total, and the policy is a valued one, the insured is entitled to receive the whole sum insured, subject to such deductions as may have been agreed by the policy to be made in case of loss.
The quantity of damages being known, the next point to be settled is by what rule this shall be appreciated. The price of a thing does not always afford a just criterion to ascertain its true value. It may have been bought very dear or very cheap. The circumstance of time and place cause a continual variation in the price of things. For this reason, in cases of general average, the things saved contribute not according to prime cost, but according to the price for which they may be sold at the time of settling the average. Marsh. Ins. B. 1, c. 14, s. 2, p. 621 ; Laws of Wisbuy, art. 20; Laws of Oleron, art. 8; this Diet. tit. Price. And see 4 Dall. 430; 1 Caines's R. 80; 2 S. & R. 229; 2 S. & R. 257,258.
An adjustment being endorsed on the policy, and signed by the underwriters, with the promise to pay in a given time, is prima facie evidence against them, and amounts to an admission of all the facts necessary to be proved by the insured to entitle him to recover in an action on the policy. It is like a note of hand, and being proved the insured has no occasion to go into proof of any other circumstances. Marsh. Ins. B. 1, c. 14, s. 3, p. 632; 3 Stark. Ev. 1167, 8; Park. ch. 4; Wesk. Ins. 8; Beaw. Lex. Mer. 310; Com. Dig. Merchant, E 9; Abbott on Shipp. 346 to 348. See Damages
ADMEASUREMENT OF DOWER, remedies. This remedy is now nearly obsolete, even in England; the' following account of it is given by Chief Baron Gilbert. "The writ of admeasurement of dower lieth where the heir, when he is within age, and endoweth the wife of more than she ought to have dower of, or if the guardian (in chivalry, for the guardian in socage cannot assign dower,] endoweth the wife of more than one-third part of the land of which she ought to have dower, then the heir, at full age, may sue out this writ against the wife; and thereby shall be admeasured, and the surplusage she hath in dower shall be restored to the heir; but in such case there shall not be assigned anew any lands to hold to dower, but to take from her so much of the lands as surpasscth the third part whereof she ought to be endowed; and he need not set forth of whose assignment she
holds." Gilb. on Uses, 379; and see F. N. B. 148; Bac. Ab. Dower, K; F. N. B. 148; Co. Litt. 39 a; 2 Inst. 367; Dower; Estate in Dower.
ADMINICLE. 1. A term, in the Scotch and French law, for any writing or deed referred to by a party, in an action at law for proving his allegations. 2. An ancient term for aid or support. 3. A term in the civil law for imperfect proof. Tech. Diet. h. t.; Merl. Repert. mot Adminicule.
TO ADMINISTER, ADMINISTERING. The stat. 9 G. 4, c. 31, s. 11, enacts "that if any person unlawfully and maliciously shall administer, or attempt to administer to any person, or shall cause to be taken by any person any poison or other destructive thing," &c, every such offender, &c. In a case which arose under this statute, it was decided that to constitute the act of administering the poison, it was not absolutely necessary there should have been a delivery to the party poisoned, but that if she took it from a place where it had been put for her by the defendant, and any part of it went into her stomach, it was an administering. 4 Carr. & Payne, 369; S. C. 19 E. C. L. R. 423; 1 Moody's C. C. 114; Carr. Crim. L. 237. Vide Attempt; To Per. made.
ADMINISTRATION, trusts, is the management of the estate of an intestate, a minor, a lunatic, a habitual drunkard, or other person who is incapable of managing his own affairs, entrusted to an administrator or other trustee by authority of law. In a more confined sense, and in which it will be used in this article, administration is the management of an intestate's estate, or of the estate of a testator who at the time administration was granted had no executor. Administration is