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§4. In the law of torts, a person is frequently discharged from the Torts. consequences of an event which has taken place indirectly through hist agency, if it has been directly caused by an act of God. 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 caused by the act of God.'

§ 5"Act of God" is a classical expression: "vis major, quam Græci BEO Biav appellant." (See Vis Major.) θεοῦ βίαν

ACT OF PARLIAMENT is an enactment of the legislature, or a formal declaration of provisions having the force of law, made by the sovereign with the advice and consent of the lords and commons in parliament. Sometimes an act begins with a preamble stating its occasion or purpose. § 2. Acts are either public or private. Public acts (also Public. 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, § 1). Some public acts (such as the Mutiny [Army Discipline] and Appropriation Acts) are enacted every year, and are hence called annual acts. Others are passed to be in force for a limited time (temporary acts), and are frequently kept in force from time to time by continuance acts. Other varieties of acts are referred to under the title " Statute." § 3. Private Private. (formerly called special") acts are those which relate either to particular persons (personal acts) or to particular places (local acts). Personal acts Personal; chiefly relate to the naturalization, names, estates or divorces of particular persons; local acts relate principally to railways, bridges, docks, boroughs, local. &c., and are contained partly in special acts and partly in consolidation or clauses acts (infra, § 5). § 4. Private acts are also divisible into (a) those which enact that they are to be judicially noticed; (b) those of which copies printed by the Queen's printers may be given in evidence; (c) those not so printed. A private act not judicially noticed does not form part of the law of England, and therefore must be pleaded in any proceeding in which it is relied on as founding a claim or defence. (See Bill, 2.)

§ 5. There is also a class of acts which may be placed midway between Special and public and private acts, namely, those which contain clauses required to be general acts. inserted in private acts of frequent occurrence. For the sake of uniformity, and to avoid the necessity of repeating such clauses in each private act, the clauses are set out in a general act, so that when a private or special act relating to the matter in question is passed, the general act is incor

1 Nichols v. Marsland, L. R., 10 Ex. 255; 2 Ex. D. 1. Compare Rylands v. Fletcher, L. R., 3 H. L. 330; Underhill on Torts, 13; Nitrophosphate, &c. Co. v. L. & St. C. Docks Co., 9 Ch. D. 503.

2 Pollock, 335, n.; Dig. xix. 2, 25, fr. 6. 3 Co. Litt. 126a; Bl. Comm. i. 85.

4 H. Cox, Instit. 19.

5 H. Cox, 21.

6 Co. Litt. 126 a.

7 H. Cox, 19; see stat. 13 & 14 Vict. c. 21, containing provisions as to the form and construction of acts of parliament.

Lands Clauses porated with it. Thus the Lands Clauses Consolidation Acts, 1845, 1860 Acts. and 1869, contain the "provisions usually inserted in acts authorizing the taking of lands for undertakings of a public nature," such as provisions. for ascertaining the value of land purchased under compulsory powers, for payment of the purchase-money into Court where the parties entitled to it are under disability, &c. Other acts of a similar nature are the Companies Clauses Acts, 1845 and 1863, the Railways Clauses Acts, 1845 and 1863, the Commissioners Clauses Act, 1845, the Harbours, Docks and Piers Clauses Act, 1847.1



ACT OF STATE is 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.2

ACT ON PETITION is a convenient and summary mode of proceeding in divorce, probate and ecclesiastical matters, often resorted to for the adjudication of questions 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. § 2. Thus in divorce suits, the question whether the Court has jurisdiction in the matter is generally determined by an act on petition.3 In probate matters, questions of propriety of conduct, personal qualifications, jurisdiction, &c., are generally brought before the Court by act on petition.*

§ 3. The proceedings commence with the petition, setting forth the facts relied on, and the relief prayed, to which the defendant files his answer, and the plaintiff if necessary replies, and so on until the parties are at issue, when the petition is set down for hearing as a cause.

ACTIO PERSONALIS MORITUR CUM PERSONA—“ A personal action dies with the person"-a maxim meaning that rights of action arising 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

1 Hodges on Railways, 24; Steph. Comm. iii. 9.

2 Doss v. Secretary of State for India, L. R., 19 Eq. 509; Mostyn v. Fabrigas, Smith's L. C. 658; Phillips v. Eyre, L. R., 6 Q. B. 1; Musgrave v. Pulido, 5 App. Ca. 102,

3 Browne on Divorce, 238; Divorce Rules (1866), 56 et seq.; Phillimore, Eccl. Law, 1259.

Browne's Probate Pr. 294; Probate Rules (1862), C. B., 64 et seq.

5 In ecclesiastical practice this is called "writing to the act;" Phill. 1259.

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 (see Campbell's Act). The result, therefore, is that (a) 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; (b) 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, § 5; Personal.)

ACTION. § 1. An action is a civil proceeding taken in a Court of law to enforce a right. (See Cause of Action.)

I. § 2. In the High Court of Justice, an action is a proceeding com- Actions in the menced by writ of summons, as opposed to "matters," which are High Court. commenced by motion, petition, summons, 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 of summons is prepared, issued and served by the plaintiff on the defendant, and the defendant appears. The next thing is to ascertain what is the question or dispute between the parties: this is done (unless the parties agree to state a special case) by the pleadings: the plaintiff prepares and delivers his statement of claim, the defendant his demurrer or statement of defence, and if necessary his counter-claim or notice to third parties, as the case may be the plaintiff delivers his reply or demurrer, and so on.

§ 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 before the Court, and judgment given for the party in the right: if it is a question of fact, it has to be tried or referred, and when the facts of the case have been ascertained from the evidence adduced on the trial or reference (see Verdict; Report), the judgment of the Court is obtained, deciding what are the rights and liabilities of the parties on the facts as found; the costs are taxed, and the judgment is enforced if necessary by execution.3

§ 4. In addition to these usual steps, almost every action involves a number of miscellaneous proceedings, such as summonses, motions, injunctions, discovery and inspection, accounts and inquiries, commissions, new trials, appeals, &c.; while many actions come to an end before trial by discontinuance or dismissal, or by the default of one of the parties, resulting in a judgment for the other.

§ 5. Where a number of actions are brought by different plaintiffs

1 Steph. Comm. iii. 370; stat. 4 Edw. 3, c. 7; 3 & 4 Will. 4, c. 42.

2 Ibid.; stat. 9 & 10 Vict. c. 93; 27 & 28 Vict. c. 95.

3 According to the old writers, an action comes to an end when judgment is given; Litt. § 504; Co. Litt. 289 a.

Test action.


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 selected as a test action, on the condition that, if the plaintiff in that action fails, the other plaintiffs shall abandon their claims.1 (See Consolidation.)

§ 6. Actions are distinguished partly by the Division of the High Court in which they are brought, partly by the object for which they are brought, as shown by the right which is sought to be enforced.

§ 7. Actions in the Queen's Bench, Common Pleas, and Exchequer law" actions. Divisions are of great variety, the principal ones being actions for the recovery of property and debts, and for damages for a tort or breach of contract (as to which see Tort; Contract; Debt); there are also a few special actions, such as quare impedit, replevin, &c.2 (q. v.).

Popular actions.

Qui tam actions.

Chancery actions.

Probate actions.


actions in rem.

§ 8. Popular actions are such as may be brought by any person, as in the case of a penal statute, which forbids some act or omission on pain of forfeiting a penalty to any such person as will sue for it. Sometimes part of the penalty is given to the crown or the public, and the rest to the informer, and then the suit is called a qui tam action, because it is brought by a person “qui tam pro domino rege, &c., quam pro se ipso in hac parte sequitur."3 (See Informer.)

§ 9. Actions in the Chancery Division are equally various; the principal kinds are actions for specific performance, partnership actions, actions for accounts, redemption, foreclosure, execution of trusts, administration actions, &c. Administration actions are actions for the administration of the estates of deceased persons; that is, for having the assets collected and managed, and the debts and legacies paid under the direction of the Court, or for having the infant children of the testator or intestate made wards of Court and educated under its directions, &c. When such an action is instituted by a creditor of the deceased to enforce payment of a debt due by him, it is called a creditor's administration action; if by a legatee to enforce payment of his legacy, a legatee's action, &c. (See Administration; Account, §§ 5, 6; Inquiry; Certificate ; Classification.)

§ 10. Probate actions, or actions relating to wills and letters of administration, include the action for propounding a will in solemn form (7. v.); 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."

§ 11. 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. Thus, a claim for damage caused by collision, or for salvage or necessaries, is generally enforced by

1 Amos v. Chadwick, 4 Ch. 869; Robin-
son v. Chadwick, W. N. (1878), 75.

2 See Rules of Court, App. A, pt. ii.
3 Bl. Comm. iii. 161.

4 Jud. Act, 1873, s. 34.

5 Haynes' Eq. 107.

6 Smith's Action, 32.

7 Williams & Bruce's Admiralty, 186.

an action in rem.1 § 12. An action in rem is commenced by a writ of summons, resembling an ordinary writ except that it is addressed, not to any person by name, but to the owners of and persons interested in the particular res (vessel or cargo); and the action is known by the name of the res, e. g. "The Star of India," "The Cargo ex Schiller," &c. The writ is served on the ship or cargo (see Service, § 10),3 and then the plaintiff issues a warrant of arrest, which commands the marshal to arrest the ship or cargo. On the warrant being served by the marshal, the ship or cargo is thereby arrested," and remains so until it is released on bail, or sold. (See Bail, § 3; Appraisement, § 2.) § 13. An action in personam is an action Admiralty against a particular person or persons, as in an ordinary action in the actions: in High Court. 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 personam. §14. The pleadings and subsequent steps in an admiralty action are similar to those in ordinary actions in the High Court, except that in collision actions "preliminary acts" (q. v.) have to be filed. (See Commission, SS 5, 8; Registrar and Merchants; Monition.)

The following are the principal varieties of admiralty actions :


§ 15. An action of damage lies where damage is caused by one ship to Action of another, or to a cargo, or to a person, or a wharf or pier, &c. (e. g. by damage; collision); or where a cargo in a ship is injured by the negligence of the

master or crew. (See Limitation of Liability.)

§ 16. An action of possession is one in which a person claims pos- of possession; session of a ship, either against a person wrongfully in possession or against a co-owner. § 17. Where the owners who represent the of restraint; majority of interest in a ship are about to send her on a voyage against

This is called an

the wishes of the minority, the minority may arrest the ship and have it
detained until security is given for its safe return.
action of restraint."

§18. The nature of actions for salvage, towage, pilotage, wages and for salvage, necessaries is explained under their appropriate titles.


of actions.

§ 19. Hitherto only those actions which are governed by the provi- Proceedings sions of the Judicature Acts have been considered; but "every writ in the nature whereunto the defendant may plead . . . . . is in law an action,” 1o and therefore proceedings by scire facias, prohibition, quo warranto, &c., are actions, though not often so called; see the various titles: also Information; Relation.

II. § 20. In the County Courts, actions are proceedings commenced by County Court plaint (7. v.); there are no pleadings, except that the plaintiff must, in actions. certain cases, file particulars of demand (7. v.), and that the defendant cannot at the trial set up certain defences unless he has given notice of his intention to do so. (See Special Defences.) A defendant may also

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