property, and are evidence of an intention to deprive his creditors of their remedy against his estate; these are of two kinds: (1) Dispositions of the whole or part of the debtor's property (not being bonâ fide assignments for value), by which the property is removed from the reach of his creditors, and the debtor is rendered insolvent. (2) Acts of fraudulent preference, that is, acts done with a view of giving one creditor a preference over the others (such as conveyances, mortgages, payments, contracts, judgments, &c., voluntarily entered into or suffered in con templation of bankruptcy), provided the debtor becomes bankrupt within a certain time after the fraudulent act. 4. Relating to circumstances.Those which relate to the state of the debtor's circumstances and are evidence of his insolvency, but not necessarily of an intention to defeat or delay his creditors, such as a declaration by the debtor of inability to pay his debts, an execution levied against him, &c. 5. Traders and non-traders.-Acts of bankruptcy may also be divided, with reference to the status of the person committing them, into-those confined to traders and those applying to all debtors, whether traders or non-traders. Bankr. Act, 1869, § 6. Eng. 6. An act of bankruptcy forms the foundation of an involuntary petition for adjudication. What were acts of bankruptcy under the recent United States bankrupt law, see 18 U. S. Stat. at L. 178. See BANKRUPTCY. ? 2. Private, personal and local acts.-Private acts (formerly called special, Co. Litt. 126 a) are those which relate either to particular persons (personal acts) or to particular places (local acts). Personal acts chiefly relate to the naturalization, names, estates or divorces of particular persons; local acts relate principally to railways, bridges, docks, boroughs, cities, towns and villages. ACT OF GOD. 1. In general.-An act of God is an event which could not happen by the intervention of man; such as a death, storm, earthquake, extraordinary flood, &c. (1 T. R. 27; 11 Exch. 618.) At the present day, the phrase is chiefly used in the following branches of law: 22. Insurance.-In the law of insurance, an insurer is not liable to indemnify the assured against loss occasioned by an act of God; and a common carrier, being an insurer, is similarly privileged. Maud. & P. Mer. Sh. 259; 1 C. P. D. 435. 3. Contract.-In the law of contracts, where the performance of a contract becomes impossible through an act of God, the promisor is in many cases discharged from liablity; thus, if a lessee of land covenants to leave a wood in as good a plight at the end of the lease as it was at the beginning, and afterwards the trees are blown down by a tempest, he is discharged of his covenant. (1 Rep. 98 a; L. R. 4 Q. B. 185). Whether an event is an act of God for the purposes of a particular contract depends on the nature of the contract and the event, especially on the question whether it can be foreseen and provided against for the purposes of the contract. See Poll. Cont. 335. ACT OF CONGRESS, OF THE LEGISLATURE, OR OF PARLIAMENT.-An enactment of the legislative branch of government; a formal declara- 8 4. Torts.-In the law of torts, a pertion of provisions having the force of law. son is frequently discharged from the con(Co. Litt. 126 a; 1 Bl. Com. 85.) Some- sequences of an event which has taken times an act begins with a preamble stat-place indirectly through his agency, if it ing its occasion or purpose. H. Cox. Instit. has been directly caused by an act of God. 19. Thus, where a person made a reservoir by damming up a stream, and an extraordinary rainfall caused the water to burst the embankment and flood the adjoining land, the owner of which brought an action for damages against the owner of the reservoir, it was held that the action was not maintainable, because the injury was 1. Public acts.-Acts are either public or private. Public acts (also called statutes, or general statutes, or statutes at large) are those which relate to the community generally, or to sections of the community; all public acts are judicially noticed by the judges. See NOTICE. caused by the act of God. L. R., 10 Ex. 955; 2 Ex. D. 1. Compare L. R., 3 H. L. 330; Underh. Torts, 13; 9 Ch. D. 503. ACT OF GOD, (defined). 1 Conn. 487; 69 Ill. 285; 76 Ill. 542; 4 Zab. (N. J.) 700; 8 Wend. (N. Y.) 473. (what is not). 1 Moo. & P. 561. (in law of carriers). 4 Bing. 607; 1 T. R. 33; 3 Esp. 131; 2 Ld. Raym. 909, 917; 4 Campb. 203; 1 Wils. 281; 6 Johns. (N. Y.) 160; 10 Id. 11; 1 Cai. (N. Y.) 43; 7 Cow. (N. Y.) 499; 14 Wend. (N. Y.) 218; 21 Id. 190; 23 Id. 310; 31 Barb. (N. Y.) 45; 10 Id. 612; 44 Id. 54; 10 N. Y. 431; 29 Id. 115; 30 Id. 564; 71 Id. 180, 187; 1 Sweeny (N. Y.) 89; 6 Abb. (N. Y.) Pr. N. S. 128; Hilt. (N. Y.) 235; 37 How. (N. Y.) Pr. 29; 30 Ala. 120; 69 Ill. 285; 76 Ill. 542; 5 Blackf. (Ind.) 222; R. M. Charlt. (Ga.) 19; 2 Watts (Pa.) 116; 2 Spears (S. C.) 197. (when tempest is). 1 Stra. 128. (to render performance of condition mpossible). 6 Halst. (N. J.) 257. (to excuse non-performance of covenant). 1 Cranch. (U. S.) 345. ACT OF GRACE.-An act passed in Scotland in 1696, providing for the maintenance of debtors imprisoned by their creditors. In England, the phrase is usually applied to insolvent acts, and to general pardons or amnesties granted at the beginning of a new reign, or on other great occasions. ACT OF HONOR.-An instrument prepared by the notary after a bill has been protested, at the request of a third party who desires to accept or pay the bill for the honor of one or all of the parties thereto. ACT OF INDEMNITY.—A statute by which those who have committed illegal acts which subject them to penalties, are protected from the consequences of such acts. which are too important to be brought before the court on motion merely, and yet not so important as to necessitate the pleadings and other steps involved in a regular action or suit. Thus, in divorce suits, the question whether the court has jurisdiction in the matter is generally determined by an act on petition. (Browne Div. 238; Divorce Rules (1866), 56 et seq.; Phillim. Ecc. L. 1259.) In probate matters, questions of propriety of conduct, personal qualifications, jurisdiction, &c., are generally brought before 294; Prob. Rules (1862), C. B. 64 et seq.) The the court by act on petition. (Browne Prob. Pr. proceedings commence with the petition, setting to which the defendant files his answer. (In ecforth the facts relied on, and the relief prayed, clesiastical practice this is called "writing to the act." Phillim. Ecc. L. 1259.) And the plaintiff, necessary, replies, and so on until the parties are at issue, when the petition is set down for hearing as a cause. if ACT OR INTENTION, (in policy of life insurance). 6 Biss. (U. S.) 238. ACT TO BE PASSED, (in statute, include act passed). Wilberf. Stat. L. 156. See also 14 Last 510. Acta exteriora indicant interiora secreta: External acts indicate undisclosed thoughts. 2 Ld. Raym. 1233; 10 Pet. (U.S.) 472; 13 Serg. ACTA OMNIA RITE, &c., (defined, and applied). & R. (Pa.) 384; 14 Id. 175. ACTED WITH, (the estate to be, in a will). 6 Watts (Pa.) 89. ACTING AS BANKER, (who is one). 1 Atk. 218; 2 Bos. & P. 383. ACTING TRUSTEE, (defined). Will. Trust. 121. ACTIO.-In civil law, means both the proceeding to enforce a right in a court, and the right itself which is sought to be enforced. The principal phrases in which ACT OF LAW.-The operation of legal the word is used, either in the civil or comprinciples upon ascertained facts. ACT OF SETTLEMENT.-The 12 and 13 Wm. III. c. 2, limiting the crown to the Princess Sophia of Hanover, and to the heirs of her body being Protestants. ACT OF STATE.-An act done by the Sovereign power of a country, or by its delegate, within the limits of the power vested in him. An act of state cannot be questioned or made the subject of legal proceedings in a court of law. Thus, where a foreign sovereign contracted certain debts, and his territory was afterwards annexed by the British government, it was held that the annexation having been an act of state, the creditors could not make any claim in respect of the revenue of the annexed territory. L. R. 19 Eq. 509; 1 Smith Lead. Cas. 658; L. R. 6 Q. B. Í; 5 App. Cas. 102. ACT ON PETITION.—A convenient and summary mode of proceeding in divorce, probate and ecclesiastical matters in England, often resorted to for the adjudication of questions mon law, are Actio ad exhibendum: An action insti tuted for the purpose of compelling a defendant to exhibit a thing or title in his power. Actio æstimatoria - Actio quanti. minoris Actions brought by a buyer for the purpose of reducing the contract price. Actio arbitraria: An action which depended on the judge's discretion, and in which the defendant was liable to be condemned unless he would make such amends to the plaintiff as the judge dictated. Actio bonæ fidei: An action which the judge decided according to equity, the judex thus acting as arbiter with a wide discretion. Actio calumniæ: This action lay to prevent the defendant from prosecuting a false claim against the plaintiff. Actio civilis-Actio directa: Actions proceeding directly in accordance with the written law. Actio commodati contraria: An action by a borrower against a lender, to enforce the execution of a contract. Actio commodati directa: An action by a lender against his debtor to recover back the subject of the loan. Actio communi dividundo: An action to procure a division of property held in com mon. Actio contra defunctum cæpta continuitur in hæredes: An action begun against a person who dies is continued against his heirs. Actio damni injuria: An action brought for losses occasioned by wrongful acts. Actio de dolo-Actio de dolo malo: Actions brought in cases of fraud. Actio de pecunia constituta: An action against one who has promised to pay money, either for himself or another, where there is no stipulation. Actio depositi contraria: An action which a depositary has against a depositor, to compel him to fulfil his engagement towards him. Actio depositi directa: An action which is brought by a depositor against a depositary, in order to get back the thing deposited. Actio emptio: An action brought by a buyer for the purpose of compelling the performance of the seller's obligations, or to recover compensation. Actio ex contractu: Action arising out of contract. Actio ex delicto: Action arising out of tort. Actio ex stipulatu: An action brought to enforce a stipulation. Actio furti: A phrase used to denote the various civil actions for theft. Actio familiæ erciscundæ: An action to obtain the division of an inheritance. Actio in factum: An action adapted to the particular matter in controversy, as distinguished from actio in jus, which was an action founded on some existing law. Actio in personam: An action, the effect of which is upon the defendant personally. Actio in rem: An action, the effect of which is upon certain property. Actio injuriam: This phrase denoted the class of actions for injuries to the person, either of the plaintiff, or of those in whose security he had an interest. Actio judicati: An action to enforce a judgment, by the sale of the debtor's property. Actio mandati: An action founded upon a contract of mandate. Actio negotiorum gestorum: A phrase denoting the actions between parties to a contract of agency. Actio non: The statement in a special plea that "the said defendant ought not to have or maintain his aforesaid action," &c., against the defendant. Actio non accrevit infra sex annos: The name of the plea of the statute of limita tions. Actio non datur non damnificato: An action is not given to him who is not injured. Actio personalis: A personal action. An action in personam. out of torts, are destroyed by the death of either the injured or the injuring person. This was the universal rule at common law, and is still the rule in many cases. Thus, an action for slander, battery, or the like, cannot be brought after the death of either party. But an action may be maintained by the executors or administrators of a deceased person, in respect of an injury committed to his real or personal property during his lifetime, and, conversely, an action lies against the executors or administrators of a deceased person for any wrong committed by him in respect of his real or personal property-provided that in each case the action is brought within a certain time. Further, a remedy is given to the near relatives of a person who has been killed by the wrongful act, neglect, or default of another. The result, therefore, generally is that (1) in the event of the death of the injured person, the maxim only applies in cases of torts to the reputation and torts to the person not resulting in death, and that in all other cases the right of action survives to the representatives of the injured person; (2) in the event of the death of the tortfeasor, the maxim applies in all cases of injury to the person or reputation, so that the right of action only survives against the representatives of a tortfeasor in cases of injury to property. See ABATEMENT; PERSONAL. Actio pœnalis in hæredem non datur, nisi forte ex damno locupletior hæres factus sit: A penal action is not given against an heir, unless, indeed, such heir is benefited by the wrong. Actio pro socio: An action by which either partner could compel his co-partners to perform their social contract. Actio quælibet it sua via: Every action proceeds in its own way. Actio redhibitoria: An action to compel the seller to take back the thing sold, and te restore the price paid, with interest. Actio stricti juris: An action in which the decision was regulated by the strict terms of the contract. Actio tutelae: An action based upon obligations growing out of such a relation as that of guardian and ward. Actio venditi: An action brought by a seller to compel the performance on the part of the buyer of a contract of sale. Latin, actio. Britt. 128 a. 1. An action is a civil proceeding taken in a court of law to enforce a right. (See CAUSE OF ACTION.) This is the technical legal meaning; the vernacular signification-anything done or performed-is also frequent in jurisprudence. 2. In practice, an action is a proceeding commenced by a writ or summons, as opposed to "special proceedings" and "applications" in which the court and not Actio personalis moritur cum persona: "A personal action dies with a person "the plaintiff, appears to be the actor, and -a maxim meaning that rights of action arising which are commenced by motion, petition. that, if the plaintiff in that action fails, the other plaintiffs shall abandon their claims. W. N. (1878) 75. See CONSOLIDATION. or some similar mode-and the ordinary steps in it are as follows:-The first thing is to bring the parties before the court. For this purpose the writ or summons is 6. Civil and criminal.—An action is prepared, issued and served by the plain-"civil" when it lies to enforce a private tiff on the defendant, and the defendant right or redress a private wrong; it is appears. The next thing is to ascertain criminal" when instituted on behalf of what is the question or dispute between the sovereign or commonwealth in order the parties: this is done (unless the parties to vindicate the law by the punishment of agree to state a special case) by the plead- a public offence; but in this latter sense, ings: the plaintiff prepares and files, or prosecution is the more appropriate term. serves his declaration or complaint, the 7. Common law and statutory, as defendant his answer, demurrer, or plea, applied to actions, mean respectively those and if necessary his counter-claim or notice to third parties, as the case may and those which are based upon statutes which may be brought at common law, be; the plaintiff files or serves his reply creating them. or demurrer, and so on. This is called the joining of issue. 8. On contract, or in tort.-Actions are on contract or in tort according as the cause of action is founded on a contract, or arises out of a tort. 3. As soon as the parties are at issue, the next thing is to ascertain which of them is in the right; if the question is one of law raised by demurrer, it is argued be9. Popular actions-Qui tam acfore the court, and judgment given for the tions.-Popular actions are such as may party in the right; if it is a question of be brought by any person, as in the case of fact, it has to be tried or referred, and a penal statute, which forbids some act or when the facts of the case have been ascer- omission on pain of forfeiting a penalty to tained from the evidence adduced on the any such person as will sue for it. Sometrial or reference (see VERDICT; REPORT), times part of the penalty is given to the *he judgment of the court is obtained, de- crown or the public, and the rest to the ciding what are the rights and liabilities informer, and then the suit is called a qui of the parties on the facts as found; the tam action, because it is brought by a percosts are taxed, and the judgment is enson "qui tam pro domino rege, &c., quam pro forced if necessary by execution. Accord- se ipso in hac parte sequitur." 3 Bl. Com. ing to the old writers, an action comes to 161. See INFORMER. an end when judgment is given. Litt. ? 504; Co. Litt. 289 a. § 4. In addition to these usual steps, almost every action involves a number of miscellaneous proceedings, such as mo tions, injunctions, discovery and inspection, accounts and inquires, commissions, new trials, appeals, &c.; while many actions come to an end before trial by dis. continuance or dismissal, or by the default of one of the parties, resulting in a judgment for the other. 5. Test action.-Where a number of actions are brought by different plaintiffs whose claims arise out of the same facts (as where several shareholders in a company bring separate actions against the promoters for misrepresentation, &c.), the court generally allows one of them to be eelected as a test action, on the condition 10. Chancery actions.-Actions in Chancery are equally various; the principal kinds are injunction suits, actions to remove clouds upon title, actions for specific performance, partnership actions. actions for accounts, redemption, foreclosure, execution of trusts, administration actions, &c. Suit (q. v.) is the more common word to distinguish an equitable action from one at law, 11. Probate actions.-In England, probate actions, or actions relating to wills and letters of administration, include the action for propounding a will in solemn form; the interest action, where the plaintiff claims the grant of letters of administration as one of the next-of kin of a deceased person; and the revocation action, for revoking a probate or letters of administration. Smith Act. 32. 12. Admiralty actions: in rem.An admiralty action may be either in rem or in personam. By proceedings in rem, the property in relation to which the claim has arisen, or the proceeds of the property when in court, can be proceeded against and made available to answer the claim. (Wms. & Br. Adm. 186.) Thus, a claim for damage caused by collision, or for salvage or necessaries, is generally enforced by an action in rem. Id. 64, 187. 13. Admiralty actions: in personam.-An action in personam is an action against a particular person or persons, as in an ordinary action in a court of law. Of course, if the ship or other property in relation to which a claim arises is out of the jurisdiction, the action must be in per sonam. 14. In English law, before the Judicature Acts, (and in those of the States where the common law practice prevails,) "action," or "action at law," generally means a proceeding in one of the common law courts as opposed to a suit in equity. In early times actions were divided into criminal and civil, criminal actions being appeals and other proceedings in the name of the crown. (Co. Litt. 284 b., 287 b.) In modern times, however, "action" always meant a civil action. 15. Real, personal, mixed. In this sense, actions are divided into real, personal and mixed, real actions being those brought for the specific recovery of lands or other realty; personal actions, those for the recovery of a debt, personal chattel or damages; and mixed actions, those for the recovery of real property, together with damages for a wrong connected with it. Litt. 494; 3 Bl. Com. 117. As to real actions, see Wms. Seis. 156; Rosc. Real Act. Action of abstracted multures: An thirled to a mill, i. e. bound to grind their corn action for multures or tolls against those who are at a certain mill and fail to do so. Action of adherence: An action competent to a husband or wife to compel either party to adhere in case of desertion. Actions ordinary: All actions not rescissory. See infra. Ancestral action: One brought for the on the seizin or possession of his ancestor. recovery of land, in which the plaintiff relies Droitural action: One founded on the right, to determine the title to land, as distinguished from a possessory action. Formed action: One for which a set form of words is prescribed. Petitory action: Same as Droitural, supra. Possessory action: One instituted to recover the possession, without of necessity determining the right. This action, and the preceding one (Petitory) are in common use in Louisiana, owing to the adoption of the civil law practice there. Rescissory action: One brought for the purpose of avoiding a deed or other writing. ACTION, (defined). 3 Bl. Com. 117; Co. Lit. 285, 285 a; 41 Ga. 223; 23 Me. 420, 425; 71 Me. 404; 11 Abb. (N. Y.) Pr. 245; 1 Barb. (N. Y.) 11; 2 Edw. (N. Y.) 572; 3 How. Pr. 56; 10 Id. 1, 9; 19 Id. 419; 20 Id. 380; 72 Pa. St. 480. (what proceedings are included). 47 Barb. (N. Y.) 452; 1 Code R. (N. Y.) 70; 3 Id. 246; 41 Conn. 329; 3 How. (N. Y.) Pr. 318; 4 Id. 83; 10 Id. 1; 13 Id. 398; 2 Sandf. (N. Ý.) 231; 71 Pa. St. 170; 11 Mich. 199; 3 So. Car. 417. (what are not included). 2 Abb. (N. Y.) Pr. 432; 1 Barb. (N. Y.) 11; 2 Hill (N.Y.) 412; 2 How. (N. Y.) Pr. 35; 3 Id. 56; 63 Me. 27; 20 Pick. (Mass.) 201; 2 Thomp. & C. (N.Y.) (writ of error is). 71 Pa. St. 170. (distinguished from "cause of action"). 41 Ga. 224. (distinguished from "suit"). 1 Barn. & 16. Local and transitory.-Actions 431; 3 Code R. (N. Y.) 148; 1 Duer (N. Y.) 701. are also divided into local and transitory, according as they are founded on such 12. causes of action as necessarily refer to some particular locality (as in the case of trespasses to land) or not. 3 Bl. Com. 294. 17. "Faint" and "false."-Another now obsolete distinction is between a feint, faint or feigned action-that is, one in which the words of the writ were true, yet, for certain causes not appearing on the writ, the plaintiff had no right to recover what he claimed-and a false action, or one in which the words were false or untrue. If a person recovered land against a tenant in tail by a feint or false action, after the death of the tenant in tail his issue could recover the land back again. Litt. 8 688, 689. 18. Various other actions. The following are the names of various particular actions now mostly obsolete Action of a writ: A phrase used when a defendant pleads some matter by which he shows that the plaintiff had no cause to have the writ sued upon, although it may be that he is entitled to ancther writ or action for the same matter. Ad. 200; (Mass.) 242. Ohio St. 86. 2 H. L. 391. ACTION FOUNDED ON CONTRACT OR TORT, (in a statute). 3 Q. B. D. 23; L. R., 8 C. P. 345. ACTION IN REM, (foreclosure suit is). 5 Neb. 460. ACTION TO RECOVER A CHATTEL, (what is not). 23 Hun. (N. Y.) 356, 361. ACTION FOR THE RECOVERY OF REAL PROPERTY, (in a statute). 25 Minn. 183. |