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ACTION

C

onduct, 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.

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