Definition of ACTION


ACTION

in practice.
Actio nihil aliud est, quam jus persequendi in
judicio quod sibi debetur.
Just. Inst. Lib. 4, tit. 6, Vinnius, Com.
Actions are divided into criminal
and civil. Bac. Abr. Actions, A. 2. -
1. 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.
See 1 Chitly"s Cr. Law.


1. - 2. 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. Co. Litt. 285,
3 Bl. Com. 116, 9
Bouv. Inst. n. 2639, Domat. Supp. des Lois Civiles, liv. 4,
tit. 1, No. 1,
Poth. Introd. generale aux Coutumes, 109, 1 Sell. Pr. Introd.
s. 4, p. 73.
Ersk. Princ. of Scot. Law, B. 41 t. 1. 1. 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. Co. Litt. 289 a,
Roll. Ab.
291. 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. Willes" Rep. 134.


4. - 1. Real actions are those
brought for the specific recovery of lands,
tenements, or hereditaments.
Steph. PI. 3. They are either droitural, when
the demandant seeks to
recover the property, or possessory when he endeavors
to obtain the
possession. Finch"s Law, 257, 8. See Bac. Abr. Actions, A,
contra. 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. Com. Dig. Actions, D 2. 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. 3 Bl. Com. 118. See Booth on Real Actions.



5. - 2. 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. Steph. PI. 3, Com.
Dig. Actions,
D 3, 3 Bouv. Inst. n. 2641. 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. 2 Swift"s Syst. Ch. 15. The actions
for wrongs, injuries, or
torts, are trespass on the case, replevin,
trespass, trover. See these words,
and see Actio personalis moritur cum
persona.


6. - 3. 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. Steph. Pl. 3, Co. Litt. 284, b, Com. Dig.
Actions, D 4. 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.


7. Actions are also divided into those
which are local and such as are
transitory.


1. 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.


8. 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,
(6 Edw. I.) to recover with the damages, the locus in quo or
place wasted,
and actions of ejectment. Bac. Abr. Actions Local, &c. A, a,
Com. Dig.
Actions, N 1, 7 Co. 2 b, 2 Bl. Rep. 1070. All these are local,
because they
are brought to recover the seisin or possession of lands or
tenements,
which are local subjects.


9. - 2dly. 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.
7 Co. 3 a, 1 Chit. PI.
271, Com. Dig. Actions, N 4. 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, &c. 1 Chit. Pl. 271, Gould
on Pl.
ch. 3, 105, 106, 107. 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. 1 Saund. 347, n. 1. The reason of its
locality
appears to be the necessity of giving a local description of the
taking
complained of. Gould on PI. ch. 3, 111. A scire facias upon a
record,
(which is an action, 2 Term Rep. 46,) although to some intents,
a
continuation of the original suit, 1 Term Rep. 388, is also local.



10. - 2. 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, Com. Dig. Actions, N
12, 1 Chit.
PI. 273, because actions of this class are, in most instances,
founded on the
violation of rights which, in contemplation of law, have no
locality. 1
Saund. 241, b, note 6. 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. Gould on Pl. ch. 3, 112. The venue in
a
transitory action may be laid in any county which the plaintiff may
prefer.
Bac. Abr. Actions Local, &c. A. (a.)


11. 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. See Domat, Supp. des Lois Civiles,
Liv. 4,
tit. 1, n. 5, Pothier, Introd. Generales aux Coutumes 110, Ersk. Pr.
Scot.
Law, B. 4, t. 1, 2.


12. 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. Domat, Supp. des Lois Civiles,
Liv. 4, tit. 1, n. 4, 1
Brown"s Civ. Law, 440.


13. 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.
Domat, ubi supra.


Source: Bouviers Law Dictionary 1856 Edition

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