ACTIO PRO1 SOCIO. In the civil law, is the name of an action by which either partner could compel his co-partners to perform their social contract. Poth. Contr. de Societe, n. 134.
ACTION. Conduct, behaviour, something done. Nomen actionis latissime patere vulgo notum est ac comprehenders omnem omnino viventis operationem quae passioni opponitur. Vinnius, Com. lib. 4, tit. 6. De actionibus.
2. 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 Iatter.
3. Actions are also divided into positives and negative the former is called an act of commision the latter is the omission2 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.
4. Actions are voluntary and involuntary. The former are performed freely and without constraint3 – 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 trespass4, although, if he kill a man, it is not felony. See Hob. Rep. 134; Popham, 162; Pam. N. P. 68. See also Duress5; Will.
ACTION, French com. law. Stock in a coompany, shares in a corporation.
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 prosecution6 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 judgment7 the writ8 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, tenements9, 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. Writs10 of right; 2dly, Writs of entry, which lie in the per, the per et cui, or the post, upon disseisin, intrusion. or alienation11. 3dly. Writs ancestral possessory, as Mort d' ancester, aid, besaiel, cosinage, or Nuper obiit. Com. Dig. Actions, D 2. By these actions formerly12 all disputes concerning real estate, were decided13; but now they are pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient14 length of their process; a much more expeditious15, 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 chattels16; or for damages or other redress17 for breach18 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, covenant19, debt, and detinue; see these words. In Connecticut and Vermont there is, an action used which is peculiar20 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 venue21 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 statute22 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 locus23 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 violation24 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 obstructed25, 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 pecuniary26 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; disturbance27 of rights of way or of common; obstruction28 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 mere29 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 creditor30 has against his debtor31, 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 purely32 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 landmarks33 or boundaries. Domat, ubi supra.
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