1911 Encyclopædia Britannica/Action

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ACTION, in law, a term used by jurists in three different senses: (1) a right to institute proceedings in a court of justice to obtain redress for a wrong (actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur, Bracton, de Legibus Angliae, bk. iii. ch. i., f. 98 b); (2) the proceeding itself (action n’est auter chose que loyall demande de son droit, Co. Litt. 285 (a)); (3) the particular form of the proceeding. The term is derived from the Roman law (actio), in which it is used in all three senses. In the history of Roman law, actions passed through three stages. The first period (terminated about 170 B.C. by the Lex Aebutia) is known as the 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 number—sacramenti, per judicis postulationem, per condictionem, per manus injectionem, per pignoris captionem. The first was the 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 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 The legis actiones were superseded by the formulae, originated by the praetor peregrinus for the determination of controversies between foreigners, but found more flexible than the earlier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 matter in dispute to an arbiter (judex), but in the later he settled the formula (i.e. the issues to be referred and the appropriate form of relief) before making the order of reference. In the third stage, the formulary stage fell into disuse, and after A.D. 342 the magistrate himself or his 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 world. An action in personam asserts a right only against a particular person. Perhaps the best modern example of the distinction is that made in maritime cases between an action against a ship after a collision at sea, and an action against the owners of the ship.

In English law the term “action” at a very early date became associated with civil proceedings in the Court of Common Pleas, which were distinguished from pleas of the crown, such as indictments or informations and for suits in the Court of Chancery or in the 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 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 judgment and execution. This definition includes proceedings under the Chancery, Admiralty and Probate jurisdiction of the High Court, but excludes proceedings commenced by petition, such as 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 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 county court or one of the other 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 bailiff, whereas in the High Court the party prepares 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 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 time within which an action must be brought, see Limitation, Statutes of. When the rights of a subject are infringed by the illegal action of the state, an action lies in England against the officers who have done the wrong, unless the claim be one arising out of 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 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. 1046; Bradlaugh v. 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 penalty either on his own benefit or on behalf also of the Crown (qui tam pro rege quam pro se ipso), bear some analogy to the actio popularis of Roman law, from which they are derived (see the statute 4 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 United States, and the British colonies in which English law runs by settlement, 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.

Authorities.—Roman Law: Sohm, Institutes of Roman Law, W. G. Ledlie (2nd ed., 1901). English Law: Pollock and Maitland, English Law; Holmes, The Common Law; Bullen and Leake, Prec. Pleadings (3rd ed.; 6th ed. 1905).