ACTION - Conduct, behaviour, something
done. Nomen actionis latissime patere vulgo notum
est ac comprehenders omnem omnino viventis operationem
quae passioni opponitur.
Human actions have been divided into necessary actions,
or those over which man has no control; and into free
actions, or such as he can control at his pleasure.
As man is responsible only when he exerts his will,
it is clear lie can be punished only for the latter.
Actions are also divided into positives and negative
the former is called an act of commision the latter
is the omission of something which ought to be done,
and is called an act of omission. A man may be responsible
as well for acts of omission, as for acts of commission.
Actions are voluntary and involuntary. The former
are performed freely and without constraint - the
latter are performed not by choice, against one's
will or in a manner independent of the will. In general
a man is not responsible for his involuntary actions.
Yet it has been ruled that if a lunatic hurt a man,
he shall be answerable in trespass, although, if he
kill a man, it is not felony.
French Com.Law. Stock in a company, shares in a corporation.
Practice. Actions are divided into criminal and civil.
A criminal action is a prosecution in a court of
justice in the name of the government, against one
or more individuals accused of a crime.
A civil action is a legal demand of one's right,
or it is the form given by law for the recovery of
that which is due. Till judgment the writ is properly
called an action, but not after, and therefore, a
release of all actions is regularly no bar of all
execution. They are real, personal and mixed. An action
is real or personal, according as realty or personalty
is recovered; not according to the nature of the defence.
Real actions are those brought for the specific recovery
of lands, tenements, or hereditaments. They are either
droitural, when the demandant seeks to recover the
property; or possessory when he endeavors to obtain
the possession. Real Actions are, 1st. Writs of right;
2dly, Writs of entry, which lie in the per, the per
et cui, or the post, upon disseisin, intrusion. or
alienation. 3dly. Writs ancestral possessory, as Mort
d' ancester, aid, besaiel, cosinage, or Nuper obiit.
By these actions formerly all disputes concerning
real estate, were decided; but now they are pretty
generally laid aside in practice, upon account of
the great nicety required in their management, and
the inconvenient length of their process; a much more
expeditious, method of trying titles being since introduced
by other actions, personal and mixed.
Personal actions are those brought for the specific
recovery of goods and chattels; or for damages or
other redress for breach of contract, or other injuries,
of whatever description; the specific recovery of
lands, tenements, and hereditaments only excepted.
Personal actions arise either upon contracts, or for
wrongs independently of contracts. The former are
account, assumpsit, covenant, debt, and detinue; see
these words. In Connecticut and Vermont there is,
an action used which is peculiar to those states,
called the action of book debt. The actions for wrongs,
injuries, or torts, are trespass on the case, replevin,
trespass, trover.
Mixed actions are such as appertain, in some degree,
to both the former classes, and, therefore, are properly
reducible to neither of them, being brought for the
specific recovery of lands, tenements, or hereditaments,
and for damages for injury sustained in respect of
such property. Every mixed action, properly so called,
is also a real action. The action of ejectment is
a personal action, and formerly, a count for an assault
and battery might be joined with a count for the recovery
of a term of Years in land.
Actions are also divided into those which are local
and such as are transitory.
A local action is one in which the venue must still
be laid in the county, in which the cause of action
actually arose. The locality of actions is founded
in some cases, on common law principles, in others
on the statute law.
Of those which continue local, by the common law,
are, lst, all actions in which the subject or thing
to be recovered is in its nature local. Of this class
are real actions, actions of waste, when brought on
the statute of Gloucester to recover with the damages,
the locus in quo or place wasted; and actions of ejectment.
All these are local, because they are brought to recover
the seisin or possession of lands or tenements, which
are local subjects.
Various actions which do not seek the direct recovery
of lands or tenements, are also local, by the common
law; because they arise out of some local subject,
or the violation of some local right or interest.
For example, the action of quare impedit is local,
inasmuch as the benefice, in the right of presentationto
which the plaintiff complains of being obstructed,
is so. Within this class of cases are also many actions
in which only pecuniary damages are recoverable. Such
are the common law action of waste, and trespass quare
clausum fregit; as likewise trespass on the case for
injuries affecting things real, as for nuisances to
houses or lands; disturbance of rights of way or of
common; obstruction or diversion of ancient water
courses. The action of replevin, also, though it lies
for damages only, and does not arise out of the violation
of any local right, is nevertheless local. The reason
of its locality appears to be the necessity of giving
a local description of the taking complained of. A
scire facias upon a record, (which is an action) although
to some intents, a continuation of the original suit,
is also local.
Personal actions which seek nothing more than the
recovery of money or personal chattels of any kind,
are in most cases transitory, whether they sound in
tort or in contract; because actions of this class
are, in most instances, founded on the violation of
rights which, in contemplation of law, have no locality.
And it will be found true, as a general position,
that actions ex delicto, in which a mere personalty
is recoverable, are, by the common law, transitory;
except when founded upon, or arising out of some local
subject. The venue in a transitory action may be laid
in any county which the plaintiff may prefer.
In the civil law actions are divided into real, personal,
and mixed. A real action, according to the civil law,
is that which he who is the owner of a thing, or,
has a right in it, has against him who is in possession
of it, to compel him to give up the plaintiff, or
to permit him to enjoy the right he has in it. It
is a right which a person has in a thing, follows
the thing, and may be instituted against him who possesses
it; and this whether the thing be movable or immovable
and, in the sense of the common law, whether the thing
be real or personal.
A personal action is that which a creditor has against
his debtor, to compel him to fulfil his engagement.
Pothier, lb. Personal actions are divided into civil
actions and criminal actions. The former are those
which are instituted to compel the payment or to do
some other thing purely civil the latter are those
by which the plaintiff asks the reparation of a tort
or injury which he or those who belong to him have
sustained. Sometimes these two kinds of actions are
united when they assume the name of mixed personal
actions.
Mixed actions participate both of personal and real
actions. Such are the actions of partition, and to
compel the parties to put down landmarks or boundaries.
ACTION AD EXHIBENDUM, Civil Law.
This was an action instituted for the purpose of compelling
the defendant to exhibit a thing or title, in his
power. It was preparatory to another action, which
was always a real action in the sense of the Roman
law, that is, for the recovery of a thing, whether
it was movable or immovable. This is not unlike a
bill of discovery.
ACTION OF ADHERENCE, Scotch Law.
An action competent to a hushand or Wife to compel
either party to adhere in case of desertion.
ACTION OF BOOK DEBT. The name of
an action in Connecticut and Vermont, resorted to
for the purpose of recovering payment for articles
usually charged on book.
ACTION. REDHIBITORY, Civil Law.
An action instituted to avoid a sale on account of
some Vice or defect in the thing sold which readers
it either absolutely useless, or its use so inconvenient
and, imperfect, that it must be, supposed the buyer
would not have purchased it, had he known of the vice.
ACTION OF A WRIT. This phrase is
used when one pleads some matter by which he shows
that the plaintiff had no cause to have the writ which
he brought, and yet he may have a writ or action for
the same matter. Such a plea is called: a plea to
the action of the writ, whereas if it should appear
by the plea that the plaintiff has no cause to have
action for the thing demanded, then it is called a
plea to the action.
ACTIONS ORDINARY. Scotch Law. By
this term is understood all actions not recissory.
ACTIONS RESCISSORY, Scotch Law.
Are divided into, 1, Actions of proper improbation;
2, Actions of reduction-improbation; 3, Actions of
simple reduction.
Proper improbation is an action brought for declaring
writing false or forged.
Reduction-improbation is an action whereby a person
who may be hurt, or affected by a writing, insists
for producing or exhibiting it in court, in order
to have it set aside or its effects ascertained, under
the certification, that the writing if not produced,
shall be declared false and forged.
In an action of simple reduction, the certification
is only temporary, declaring the writings called for,
null, until they be produced; so that they recover
their full force after their production.
