ACTION

A term which, in its broadest sense, includes every lawful proceeding in a court of justice for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Formerly the term was confined, in English law, to an ordinary proceeding in a common law court, while the word suit was applied to a proceeding in equity. By the reformed procedure in many of our States, all distinction between actions at common law and suits in equity, as well as between the different forms of common law actions, have been abolished, and only a single civil action is recognized.

If the prosecution is not instituted and carried on by one party against another, it is denominated by some statutes a special proceeding. The earliest classification of common law actions was: (1) real actions, or those based on the plaintiff's right of property in specified lands, so called because the res, or property itself, was sought to be recovered; (2) mixed actions, such as those for partition of lands for ejectment or for waste; (3) personal actions, or those against a particular person for a money judgment. The distinction between real and personal actions is the foundation of the classification of property as real and personal. This third class was subdivided into actions ex contractu, such as debt and covenant and actions ex delicto, such as trespass and detinue. Again, actions are divided into local and transitory, according as they must be brought in a certain county or state, or as they may be brought wherever the defendant is found. An action for trespass to land is local, and it must be brought in the State where the land is situated; while an action for slander of title to that land is transitory. The action of account at common law was used much earlier than, and is distinct from, the action upon an account stated, which came into the law as a common count. The action of account would lie at common law, and by early English statute against one acting in a fiduciary capacity other than a trustee, or against one whose duty it was to render an account to the plaintiff, to compel the defendant to render an account and to pay the amount due on such accounting.

ADMIRALTY LAW

The system of law and procedure relating to maritime transactions. It owes its name to the fact that originally it was administered in England by the lord high admiral. Not only its rules of substantive law but its procedure were adopted from the civil law, and from such sea codes as those of Rhodes and Oleron. This fact, and its adaptability to new causes of action, which led suitors to resort to the admiralty rather than to the common law courts, aroused the hostility of the common law bench and bar. The contest between the partisans of the two systems which followed resulted in contracting the jurisdiction of English admiralty courts to very narrow limits. Modern statutes have extended it, and have also made the Court of Admiralty a part of the Supreme Court of Judicature, forming it, with the courts of probate and divorce, into the probate, divorce, and admiralty divisions. AT present the ordinary jurisdiction of English admiralty courts embraces actions to recover possession of a ship, to recover damages for injuries to shipping, to recover seamen's wages, for salvage, for necessaries supplied to a ship, for bottomry, respondentia and mortgage, for pilotage and towage, for restoration of goods taken by pirates, and for assaults or batteries on the high seas.

By the United States constitution (Article III., 2), the cognizance of "all cases of admiralty and maritime jurisdiction" is granted to the Federal judiciary. The limits of this grant of judicial authority were in doubt for many years. On the one hand it was insisted that the admiralty jurisdiction of the Federal courts was confined to the cases cognizable by the English admiralty when our States separated from the mother country. On the other hand, it was argued that the broad language of the constitution extended this jurisdiction to all cases of maritime law. The latter view has prevailed, and today the Federal courts of admiralty have cognizance of all maritime cases arising, not only on the high seas and great lakes, but on almost all navigable rivers and canals within the United States. While the United States have no court whose duties and jurisdiction are confined to admiralty cases, the district courts possess exclusive original jurisdiction over all admiralty and maritime cases. From their final decisions appeals may be taken to the Circuit Court of Appeals and to the Supreme Court. The Federal courts sitting in admiralty have criminal as well as civil jurisdiction; but their practice in criminal cases is similar to that of common law courts, including trial by jury. The State courts of this country have no admiralty jurisdiction. Consult: Benedict, The American Admiralty, Its Jurisdiction and Practice (Albany, 1900); and Roscoe, Treatise on the Jurisdiction and Practice of the Admiralty Division of the High Court of Justice (London, 1882).

ADMISSION

In the law of evidence, a confession or acknowledgment of a party to an action, made at any time, as to the existence of a fact. They are admissible in evidence against him at the trial of the action, but never in his favor in any case when the existence of the fact is relevant to the issue at the trial. The competency of this class of evidence constitutes a well settled exception to the so-called "hearsay evidence" rule, that statements not made under oath and not subjected to the test of cross-examination at the trial shall not be permitted to given in evidence. While admissions admissible in evidence are most frequently made by a party to the action, they may be made by one acting by his authority or by one identical in interest with him. Thus, admissions made by an agent, or servant, or by the husband or wife of a party, will be received in evidence against him if actually or impliedly authorized by him. Admissions made by one claiming under the same title or interest as the party are also admissible in evidence against him. For example, admissions made by a deceased person during his lifetime are admissible against his executor or administrator, and admissions made by the owner of real estate with reference to his title are competent evidence against his grantee, when the grantee is a party to an action in which his title is in issue. In England the doctrine of admissions made with reference to title to real property has been extended to apply to cases of admissions made with reference to title of personal property and negotiable paper indorsed before due; but in the United States the tendency has been to limit the application of the rule to admissions made with reference to real property.

In criminal law admissions of guilt by one accused of a crime are technically known as confessions. At common law confessions were held not to be competent evidence against the prisoner when obtained by threats or promise of favor, and modern statutes have generally still further limited the admissibility of confessions in evidence.

Admission should be distinguished from admission against interest, a term which embraces a distinct class of evidence. Admissions against interest are written statements or book entries made by one against his financial or proprietary made by one against his financial or proprietary interest, and are admissible in evidence in any action in which the truth of the matter stated in the admissions is in issue, provided the person making the admission be dead at the time it is offered in evidence. The person making the statement need not represent or be in privities with a party to the action or have acted by his authority.

AFFIDAVIT

A written declaration, or statement of fact, made before a magistrate or other person legally authorized to administer an oath, the truth of which is confirmed either by an oath sworn or a solemn affirmation. The name and designation of the party making the affidavit are written at length, and he usually signs it at the foot. When the paper is shown to him, he is required to swear or affirm that its contents are true, and that the name and hand writing are his, and it is thereupon attested by the officer before whom it is made. Affidavits in all the English courts must be taken and expressed in the first person of the deponent. In the United States, all judges, justices of the peace, notaries, commissioners, and some special officers, have authority of law to take affidavits. All the States appoint commissioners, residing in other States, to exercise the power. Generally the authority of foreign officials to take affidavits must be certified or verified in court. When a judge takes an affidavit in court, his signature must be authenticated. American ministers and consuls abroad have power to take affidavits, and so have British consuls and nearly all similar officers. No particular form of affidavit is prescribed. An affidavit of merits is one made by a defendant, which sets forth that he has stated his case to counsel and is by him advised that he has a good defense to the pending action on its merits. This is required by statute, or a rule of court, to protect plaintiff's from delay by frivolous shows of defense, but does not always effect the purpose.

AMBIGUITY

In law, the duplicity or uncertainty of meaning of a word, clause, or other part of a written instrument. The rule of evidence forbidding the admission of parol evidence to contradict, vary, or explain a written document is subject to the important exception that parol evidence may be introduced for the purpose of explaining an ambiguity in a written instrument. Ambiguities are "patent" and "latent." A patent ambiguity is one which appears on the face of an instrument without referring to any intrinsic fact or circumstance. Thus, if a testator after referring in his will to two persons named John, made a bequest to John, the term of the bequest would constitute a patent ambiguity. A latent ambiguity is one which is disclosed only the proof of extrinsic facts. Thus, if a testator made a bequest to a person, naming or otherwise describing him, and it appeared extrinsically that there were two persons answering the description, the terms of the bequest would constitute a latent ambiguity. It is sometimes said that parol evidence cannot be introduced to explain a latent ambiguity. While the judicial decisions are not altogether harmonious, the weight of authority does not favor such a rule. See the authorities named under the titles CONTRACT, WILL,  and EVIDENCE.

ANSWER

In law, technically the pleading interposed by the defendant to the plaintiff's bill in an action brought in a Court of Chancery.  In his answer the defendant may set up any matter of defense to the plaintiff's claim, but in addition he is required to state fully under oath his knowledge or, if he has no knowledge, his information and belief as to all relevant matters alleged or inquired of in the plaintiff's bill. The method of pleading is technically known as giving discovery, and the information thus obtained may be used as evidence in the plaintiff's favor at the trial. it is subject, however, to the rule of chancery practice, that if unfavorable to the plaintiff it is conclusive unless overcome by two witnesses or by one witness and corroborative circumstances. The plaintiff, however, may avoid this consequence by expressly waiving an answer under oath in his bill. At law, as distinguished from Equity, the defendant's pleading is technically known as the plea; but under the modern statutory system of pleading, the term answer is applied indiscriminately to the defendant's plea in either law or equity. See PLEA; PLEADING, and the authorities there referred to.

APPEAL

In English legal procedure, a term that has two distinct meanings.

(1) It denotes an accusation by a private person against another for some heinous crime, demanding punishment on account of the injury to the appellor, rather than for the public offense. This method of prosecution remained in force until abolished by act of Parliament in 1819 (59 Geo. III., c. 46), although it had been used but rarely for a century prior thereto. The last appeal of murder brought in England (which led to the enactment of the statute above referred to) was that of Ashford vs. Thornton, instituted in 1818 and reported in 1 Barnwell and Alderson, 405. See Blackstone, Commentaries.

(2) The other signification, attached to the term by Blackstone, is that of a complaint to a superior court of an injustice done by an inferior one. The object of such an appeal is to secure the reversal or modification of the decision of the inferior court through the intervention of a superior tribunal. Originally, the word was confined to a proceeding for the review of a decision in an equity, an admiralty, or an ecclesiastical cause. Common-law judgments were reviewed by a writ of error. The chief distinction between a wreit of error and an appeal was that the former brought before the higher court only errors of law in the court below, while the latter brought up questions of fact as well as of law. The tendency of modern legislation is toward the abolition of forms of action and the substitution of an appeal for a writ of error. The grounds of appeal, the courts to which an appeal may be taken, and the methods of prosecuting appeals, are regulated in the various jurisdictions by statutes and court rules. These are so diverse that no attempt will be made, here, to state their provisions. See COURT; PLEADING.

ARGUMENT

In law, the address by counsel to the court or jury, in which he argues upon the merits of his client's case in order to affect the decision or verdict to be rendered. Arguments to the jury are based upon the facts established or disputed in evidence at the trial of a cause, and upon matter of common knowledge of which the court may take judicial cognizance. Arguments addressed to the court may be based either upon the facts before it or upon the law. The time to be devoted to the argument, its scope, and order, are subject to the discretionary control of the court. It is the usual practice to permit the attorney for a plaintiff or appellant both to open and close the argument. If in the argument the attorney goes beyond proper comment upon the evidence, or indulges in abuse of a party or attorney in the case, or comments upon failure of a privileged witness to testify, or otherwise so conducts himself as to unwarrantably inflame or prejudice the minds of the jury, it may be ground for setting aside the verdict. See JURY and the authorities referred to under PRACTICE.

ARREST

The apprehension or detention of a person by authority of law. If the seizure or restraint is unlawful, it amounts to false imprisonment. At present arrest takes place more frequently in criminal than in civil proceedings. Not so formerly.

 (1) Civil arrest.

By a fiction of the common law a person who did not pay a judgment against him was deemed guilty of a breach of the peace, "subjecting his body to imprisonment," says Blackstone, "by the writ of capias ad respondendum." The judges, who established this fiction had no bowels of compassion for the insolvent debtor. Said Justice Hyde, in 1663: "If a man is taken in execution and lies in prison for debt, neither the plaintiff, at whose suit he is arrested, nor the sheriff who took him is bound to find him meat, drink, or clothes. He must live on his own, or on the charity of others, and if no man will relieve him, let him die in the name of God, says the law, and so say I." This inhuman policy worked badly, as inhuman policies generally do; and a few years after Justice Hyde's heartless declaration, Parliament felt compelled to enter upon a course of mitigating legislation, which terminated during the last century in the abolition of imprisonment for debt, both in Britain and in this country. In some civil actions a party is still subject to arrest, either during its progress or upon its termination. As a rule these actions  are of a quasi-criminal nature, e.g. to recover a fine or a penalty; or they are brought to redress wrongs to person or property done by the one arrestable. Ordinarily, a warrant of arrest in a civil suit will not justify the officer in breaking into a house to take the party; nor can it be lawfully executed on Sunday; nor are certain privileged persons, such as foreign representatives, members of Congress and Legislature in attendance upon their duties, and others liable to arrest in civil proceedings.

(2) Criminal arrest.

Not only public officers, but private persons as well, may arrest an actual or suspected criminal. For a crime committed in his presence, or for a felony committed, although not in his presence, either a peace officer or a private person may arrest the offender without  a warrant, and a peace officer is authorized to arrest without a warrant, on reasonable suspicion that the arrested party has committed a felony. This subject is regulated by statutes in each jurisdiction, as is the mode of obtaining a warrant; and the statutes should be examined. A criminal arrest may be made on any day; a peace officer may break into a building  to execute a criminal warrant, as well as call upon any person to assist him; and, as a rule, only foreign representatives, with their families and trains, are privileged from criminal arrest. Consult: Hawley, Law of Arrest on Criminal Charges (2d ed., Chicago, 1891); Freeman, A Treatise on the Law of Executions in Civil Cases (3d ed., San Francisco, 1900); and the works mentioned under the articles referred to above.

ATTACHMENT

The legal process under which a sheriff or like officer takes a person or property into custody; or the proceeding under the process. An attachment against the person was used most frequently, either to compel the appearance of a defendant in an action, or to secure the attendance of a delinquent witness or juror, or to bring before a court one guilty of contempt. It was, and still is, employed in England as a process for the enforcement of decrees or orders in equity. It was rarely so used in common-law actions, because a judgment creditor who resorted to it forfeited his right to go against  the debtor's property. In this country the seizure of the person of a debtor in a civil action is made generally under an order of arrest, or an execution against the person . Attachment of the person for contempt of court is common, however, in this country.

The attachment of property is regulated by statute. It is not accorded to the creditor in an ordinary action for the recovery of a debt. To entitle him to this process he must show, generally that the debtor is a non-resident of the State in which he asks for the process, or has left it with intent to defraud his creditor or conceals himself or his property with like intent, or that he has removed, or is about to remove, from the State in order to defraud his creditors. In such cases the property is to be attached and taken into the custody of the law, so that it may be applied to the plaintiff's claim, if that is subsequently reduced to a judgment. An attachment is looked upon by our courts as a harsh and extraordinary remedy, one not known to the common law, and as a rule they are disposed to put a strict construction upon the statutes which authorize it. In admiralty, a vessel or other property against which a suit in rem has been instituted may be attached when the circumstances would not warrant an attachment in a State court. An attachment is spoken of as domestic, when it is employed against the property of a resident of the State in which it issues; as foreign, when the owner of the property seized is a non-resident, who evades the personal service of a summons in the action.  Consult: Drake, Treatise on the Law of Suits by Attachment in the United States (Boston, 1891), and the works referred to under the titles ARREST; EXECUTION.