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Encyclopedia Britannica - Main :: A10-ADA |
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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 prosegnndi in judicio quod alicui debelur, Bracton, de Legibus Angliae, bk. iii. ch. i., f. 98 b); (2) the proceeding itself (action ?z'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 270 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 nunibersacramenti, per judicis postulationem, per condictionem, per manes 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
formula
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
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 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 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 in-fringed 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 outof 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
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. 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
In the United States, and the British colonies in which English law runs by settlement, charter, proclamation or statute
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