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 Depot1, 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 judgment2, 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 creditors3, 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 technically4 termed the actio non. 1 Ch. Plead. 531 2 Ch. Plead. 421 ; Steph. Plead. 394.
ACTIO NON ACCREVIT INFRA SEX ANNOS. The name of a plea to the statute5 of limitations when the defendant6 insists that the plaintiff's action has not accrued8 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 accrues10 on the promise but when it does not accrue7 on the promise but subsequently to it, the proper plea is actio non accrevit, c. Lawes, Pl. in Ass9. 733; 5 Binn. 200, 203; 2 Salk. 422; 1 Saund. Rep. 83 n. 2; 2 Saund, 63, b; 1 Sell. N.P. 121.
ACTIO PERSonALIS MIORITUR CUM PERSONA. That a personal action dies with the person, is an ancient and uncontested maxim11. 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 alteration12 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, administrators14 have the same remedy as executors.
3. These statutes15 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 administrator13 for an assault and battery of the deceased, or trespass16, vi et armis on his land, or for slander17, 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 waived18 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 breach19 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 Vent20. 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; Survivor21.
