ACTION , in
See also:law, a
See also:term used by jurists in three different senses: (1) a right to institute proceedings in a
See also:court of
See also:justice to obtain redress for a wrong (actio nihil aliud est quam
See also:jus prosegnndi in judicio quod alicui debelur,
See also:Bracton, de Legibus Angliae, bk. iii. ch. i., f . 98 b); (2) the proceeding itself (action ?z'est auter
See also:chose que loyall demande de son droit, Co . Litt . 285 (a)); (3) the particular
See also:form of the proceeding . The term is derived from the
See also:Roman law (actio), in which it is used in all three senses . In the
See also:history of Roman law, actions passed through three stages . The first
See also:period (terminated about 270 B.C. by the Lex Aebutia) is known as the
See also:system of legis actiones, and was based on the precepts of the XII. tables and used before the praetor urbanus . These actiones were five in nuniber—sacramenti, per judicis postulationem, per condictionem, per
See also:manes injectionem, per pignoris captionem . The first was the
See also:primitive and characteristic action of the Roman law, and the others were little more than modes of applying it to cases not contemplated in the
See also:original form, or of carrying the result of it into execution when the action had been decided . The legis actiones were superseded by the formulae,originated by the praetor peregrines for the determination of controversies between foreigners, but found more flexible than the earlier system and made available for citizens by the Lex Aebutia . Under both these systems the praetor referred the
See also:matter in dispute to an arbiter (judex), but in the later he settled the
See also:formula (i.e. the issues to be referred and the appropriate form of
See also:relief) before making the
See also:order of reference . In the third stage, the formulary stage fell into disuse, and after A.D .
See also:magistrate himself or his
See also:deputy decided the controversy after the defending party had been duly summoned by a libellus . The classifications of actiones in Roman law were very numerous . The division which is still most universally recognized is that of actions in rem and actions in personam (Sohm, Roman Law, tr. by Ledlie, 2nd ed . 277) . An action in rem asserts a right to a particular thing against all the
See also:world . An action in personam asserts a right only against a particular
See also:person . Perhaps the best
See also:modern example of the distinction is that made in maritime cases between an action against a
See also:ship after a collision at
See also:sea, and an action against the owners of the ship . In
See also:English law the term " action " at a very early date became associated with
See also:civil proceedings in the Court of
See also:Common Pleas, which were distinguished from pleas of the
See also:crown, such as indictments or informations and for suits in the Court of
See also:Chancery or in the
See also:Admiralty or ecclesiastical courts . The English action was a proceeding commenced by writ original at the common law . The remedy was of right and not of
See also:grace . The history of actions is the history of civil procedure in the courts of common law . As a result of the reform of civil procedure by the Judicature Acts the term " action " in English law now means at the High Court of Justice " a civil proceeding commenced by writ of summons or in such other manner as may be prescribed by rules of court " (e.g. by originating summons) .
The proceeding thus commenced ends by
See also:judgment and execution . This definition includes proceedings under the Chancery, Admiralty and
See also:Probate jurisdiction of the High Court, but excludes proceedings commenced by petition, such as
See also:divorce suits and bankruptcy and winding-up matters, as well as criminal proceedings in the High Court or applications for the issue of the writs of
See also:mandamus, prohibition, habeas corpus or certiorari . The Judicature Acts and Rules have had the effect of abolishing all the forms of " action " used at the common law and of creating one common form of legal proceeding for all ordinary controversies between subjects in whatever division of the High Court . The stages in an English action are the writ, by which the persons against whom relief is claimed are summoned before the court; the pleadings and interlocutory steps, by which the issues between the parties are adjusted; the trial, at which the issues of fact and law involved are brought before the tribunal; the judgment, by which the relief sought is granted or refused; and execution, by which the law gives to the successful party the fruits of the judgment . The procedure varies according as the action is in the High Court, a
See also:county court or one of the other
See also:local courts of record which still survive; but there is no substantial difference in the incidents of trial, judgment and execution in any of these courts . The initial difference between actions in the High Court and the county court is that the latter are commenced by plaint lodged in the court, on which a summons is prepared by the court and served by its
See also:bailiff, whereas in the High Court the party pre-pares the writ and lodges it in court for sealing, and when it is sealed, himself effects the service . An action is said to " lie " when the law provides a remedy for some particular
See also:act or omission by a subject which infringes the legal rights of another subject . An act of such a character is said to give a " cause of action." In the action the person who alleges himself aggrieved claims a judgment of the court in his favour giving an adequate and appropriate remedy for the injury or damage which he has sustained by the infraction of his rights . As to the
See also:time within which an action must be brought, see
See also:LIMITATION, STATUTES OF . When the rights of a subject are in-fringed by the illegal action of the state, an action lies in England against the
See also:officers who have done the wrong, unless the claim be one arising out of
See also:breach of a contract with the state, or out of an " Act of State." For a breach by the state of a contract made between the state and a subject the remedy of the subject is, as a general
See also:rule, not by action against the agents of the state who acted for the state with reference to the making or breach of the contract, but against the Crown itself by the proceeding called Petition of Right (see PETITION) . While as a generic term " action " in its proper legal sense includes suits by the Crown and " criminal actions " (see Co . Litt .
284b; Bracton, de Legibus Angliae, bk. iii. ch. v. f . Io46; Brad-laugh v .
See also:Clarke, 1883, 8 App . Cas . 354, 361, 374), in popular language it is taken to mean a proceeding by a subject and is now rarely applied in England even by lawyers to criminal proceedings . What are now known as " penal actions," i.e. proceedings in which an individual who has not suffered personally by a breach of the law sues as a common informer for the statutory
See also:penalty either on his own benefit or on behalf also of the Crown (qui
See also:pro rege quam pro se ipso), bear some
See also:analogy to the actio popularis of Roman law, from which they are derived (see the
See also:statute 4
See also:Hen . VII . 1488); but they are now treated for most purposes as civil and not as criminal proceedings . The law of Scotland follows the lines of the civil law, and the expression " criminal action " is in use to distinguish proceedings to punish offences against the public as distinguished from civil action, brought to enforce a private right . In the
See also:United States, and the
See also:British colonies in which English law runs by settlement,
See also:charter, proclamation or statute, the nature of an action is substantially the same as in England . The differences between one state of the Union and another, and one colony and another, depend mainly on the extent to which the old procedure of the common law has been abolished, simplified or reformed by local legislation .
ACTIUM (mod. Punta)
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