Actio

In civil law. A specific mode of enforcing a right before the courts of law, e. g., legis actio; actio sacramenti. In this sense we speak of actions in our law, e. g., the action of debt. The right to a remedy, thus: Ex nudo pacto non oritur actio, no right of action can arise upon a naked pact. In this sense we rarely use the word "action." 3 Ortolan, Inst. § 1830; 5 Savigny, System, 10; Mackeld. Civ. Law (13th Ed.) § 193. The first sense here given is the older one. Justinian, following Celsus, gives the well-known definition: Actio nihil aliud est, quam jus persequendi in judicio, quod sibi debetur, which may be thus rendered: An action is simply the right to enforce one's demand in a court of law. Inst. 4. 6, "De Actionibus." See "Action." Divisions: According to Nature. In the sense of a specific form of remedy, there are various divisions of actiones. Actiones civiles are those forms of remedies which were established under the rigid and inflexible system of the civil law, the jus civile. Actiones honorariae are those which were gradually introduced by the praetors and aediles, by virtue of their equitable powers, in order to prevent the failure of justice which too often resulted from the employment of the actiones civiles. These were found so beneficial in practice that they eventually supplanted the old remedies, of which, in the time of Justinian, hardly a trace remained. Mackeld. Civ. Law, § 194; 5 Savigny, System. Directae actiones, as a class, were forms of remedies for cases clearly defined and recognized as actionable by the law. Utiles actiones were remedies granted by the magistrate in cases to which no actio directa was applicable. They were framed for the special occasion, by analogy to the existing form, and were generally fictitious; that is, they proceeded upon the assumption that a state of things existed which would have entitled the party to an actio directa, and the cause was tried upon this assumption, which the other party was not allowed to dispute. 5 Savigny, System, § 215. According to Subject-Matter. Again there are actiones in personam and actiones in rem. The former class includes all remedies for the breach of an obligation, and are considered to be directed against the person of the wrongdoer. The second class comprehends all remedies devised for the recovery of property, or to settle questions of right between the parties, and are therefore considered as rather aimed at the thing in dispute than at the person of the defendant. Mackeld. Civ. Law, § 195; 5 Savigny, System, §§ 206-209; 3 Ortolan, Inst. § 1952 et seq. According to Object. In respect to their object, actions are either (a) actiones rei persequendae causa comparatae, for the recovery of property or damages, to which class belong all actiones in rem, and those of the actiones in personam, which were directed merely to the recovery of the value of a thing, or compensation for an injury; or (b) actiones poenales (called, also, actiones ex delicto), in which a penalty was recovered of the delinquent; or (c) actiones mixtae, in which were recovered both the actual damages and a penalty in addition. Actiones poenales and actiones mixtae comprehended cases of injuries for which the civil law permitted redress by private action, but which modern civilization universally regards as crimes; that is, offenses against society at large, and punished by proceedings in the name of the state alone. Thus, theft, receiving stolen goods, robbery, malicious mischief, and the murder or negligent homicide of a slave (in which case an injury to property was involved), gave rise to private actions for damages against the delinquent. Inst. 4. 1. De obligationibus quae ex delicto nascuntur. Id. 2. De bonis vi raptis. Id. 3, De lege aquilia. And see Mackeld. Civ. Law, § 196, 5 Savigny, System, §§ 210-212. According to Procedure. In respect to the mode of procedure, actiones in personam are divided into stricti juris, and bonae fidei actiones. In the former, the court was confined to the strict letter of the law, in the latter, something was left to the discretion of the judge, who was governed in his decision by considerations of what ought to be expected from an honest man under circumstances similar to those of the plaintiff or defendant. Mackeld. Civ. Law, § 197a. Besides this classification, the different actions had specific names, the principal of which follow.

Lat In the civil law. An action or suit; a right or cause of action. It should be noted that this term means both the proceeding to enforce a right in a court and the right itself which is sought to be enforced.

— Actio ad exhibendum. An action for the purpose of compelling a 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. Merl. Quest, tome i. 84.

— Actio aestimatoria; actio quanti miuoris. Two names of an action which lay in behalf of a buyer to reduce the contract price, not to cancel the sale; the judex had power, however, to cancel the sale. Hunter, Rom Law, 332.

— Actio arbitraria. Action depending on the discretion of the judge. In this, unless the defendant would make amends to the plaintiff as dictated by the judge in his discretion, he was liable to be condemned. Id. 825.

— Actio bonæ fidei. A class of actions in which the judge might at the trini, ex officio, take into account any equitable circumstances that were presented to him affecting either of the parlies to the action. 1 Spence, Eq. Jur. 218

— Actio calumniæ. An action to restrain the defendant from prosecuting a groundless proceeding or trumped-up charge agninst the plaintiff. Hunter, Rom. Law, 859.

— Actio commodati. Included several actions appropriate to enforce the obligations of a borrower or a lender. Id. 305.

— Actio commodati contraria. An action by the borrower against the lender, to compel the execution of the contract. Poth. Pret d Usage, □. 75.

— Actio commodati directa. An action by a lender against a borrower, the principal obj'ect of which is to obtain a restitution of the thing lent. Poth. Pret & Usage, nn. 65, 68.

— Actio communi dividundo. An action to procure a judicial division of joint property. Hunter, Rom. Law, 194. It was analogous in its object to proceedings for partition in modem law.

— Actio condictio indebitati. An action by which the plnintiff recovers the amount of a sum of money or other thing he paid by mistake. Poth. Promutuum, n. 140; Merl. Repert.

— Actio confessoria. An affirmative petitory action for the recognition and enforcement of a servitude. So called because based on the plaintiff's affirmative nilegation. of a right in defendant's land. Distinguished from an actio negatoria, which was brought to repel a claim of the defendant to a servitude in the plaintiff's land. Mackeld. Rom. Law, § 324.

— Actio damni injuria. The name of a general class of actions for damages, including many species of suite for losses caused by wrongful or negligent acts. The term is about equivalent to our "action for damages."

— Actio de dolo malo. An action of fraud ; an action which lay for a defrauded person against the defrauder and his heirs, who had been enriched by the fraud, to obtain the restitution of the thing of which he had been fraudulently deprived, with all its accessions (cum omnt causa;) or, where this was not practicable, for compensation in damages. Mackeld. Rom. .Law, § 227.

— Actio de pecnlio. An action concerning or against the peculium, or separate property of a party.

— Actio de pecnnia constituta. An action for money engaged to be paid ; an action which lay against any person who had engaged to pay money for himself, or for another, without any formal stipulation. Inst. 4, 6, 9; Dig. 13, 5 ; Cod. 4, 18.

— Actio depositi contraria. An action which the depositary has against the depositor, to compel him to fulfil his engagement towards him. Poth. Du DSp6t, n. 69.

— Actio depositi directa. An action which is brought by the depositor against the depositary, in order to get back the thing deposited. Poth. Du D6p6t, n. 60,

— Actio directa. A direct action ; an action founded on strict law, and conducted according to fixed forms; an action founded on certnin legal obligations which from their origin were accurately defined and recognized as actionable.

— Actio empti. An action employed in behalf of a buyer to compel a seller to perform his obligations or pay compensation ; niso to enforce any special agreements by him, embodied in a contract of sale. Hunter, Rom. Law. 332,

— Actio ex condncto. An action which the bailor of a thing for hire may bring against the bailee, in order to compel him to redeliver the thing hired.

— Actio ex locato. An action upon letting; an action which the person who let a thing for hire to another might have against the hirer. Dig. 19, 2; Cod. 4, 65,

— Actio ex stipnlatu. An action, brought to enforce a stipulation.

— Actio exercitoria. Am action against the exercitor or employer of a vessel.
—-Actio families erciscnndæ. An action for the partition of an inheritance. Inst. 4, 6, 20; Id. 4, 17, 4. Called, by Bracton and Fleta, a mixed action, and classed among actions arising ex quasi contractu. Bract, fol. 100b; Id. fols. 448b, 444; Fleta, lib. 2, c. 60, § 1.

— Actio furti. An action of theft; arr action founded upon theft. Inst. 4, 1, 13-17; Bract fol. 444. This could only be brought for the penalty attached to the offense, and not to recover the thing stolen itself, for which other actions were provided. Inst. 4, 1, 19.

— Actio honoraria. An honorary, or prætonan action. Dig. 44, 7, 25, 35.

— Actio in factum. An action adapted to the particular case, having an analogy to some actio in jus, the latter being founded on some subsisting acknowledged law. Spence, Eq. Jur. 212. The origin of these actions is similar to that of actions on the case at common law.

— Actio judicati. An action instituted, after four months had elapsed after the rendition of judgment, in which the judge issued his warrant to seize, first, the movables, which were sold within eight days afterwards; and then the immovables, which were delivered in pledge to the creditors, or put under the care of a curator, and if, at the end of two months, the debt was not paid, the land was sold. Dig. 42, 1; Code, 8, 34,

— Actio legis Aquiliae. An action under the Aquilian law; an action to recover damages for maliciously or injuriously killing or wounding the slave or beast of another, or injuring in any way a thing belonging to another. Otherwise called damni injuries actio.

— Actio mandati. Included actions to enforce contracts of mandate. or obligations arising out of them. Hunter, Rom. Law, 316.

— Actio mixta. A mixed action; an action brought for the recovery of a thing, or compensation for" damages, and also for the payment of a penalty; partaking of the nature both of an actio in rem and tn personam. Inst. 4, 6, 16, 18, 19, 20; Mackeld. Rom. Law, § 209

— Actio negatoria. An action brought to repel a clnim of the defendant to a servitude in the plaintiff's land. Mackeld. Rom. Law, § 324.

— Actio negotiornm gestorum. Included actions between principal and agent and other parties to an engagement, whereby one person undertook the transacti9n of business for another.
—Actio noxalis.' A noxal action ; an action which lay against a master for a crime Committed or injury done by his slave; and in which the master had the alternative either to pay for the damage done or to deliver up the slave to the complnining party. Inst. 4, 8, pr.; Heinecc. Elem. lib. 4, lit. 8. So called from noxa, the offense or injury committed . Inst. 4, 8, 1,

— Actio pignoratitia. An action of pledge; an action founded on the contract of pledge, (pignus.) Dig. 13, 7; Cod. 4, 24.

— Actio praejudicialis. A preliminary or preparatory action. An action instituted for the determination of some preliminary matter on which other litigated matters depend, or for the determination of some point or question arising in another or principal action; and so called from its being determined before, (prius, or prœ judicari.)

— Actio praescriptis verbis. A form of action which derived its force from continued usage or the responsa prudentium, and was founded on the unwritten law. 1 Spence, Eq. Jur. 212.

— Actio praetoria. A praetorian action; one introduced by the prætor, as distinguished from the more ancient actio civilis, (q. v.) Inst. 4, 6, 3; Mackeld. Rom. Law, § 207.

— Actio pro socio. An action of partnership. An action brought by one partner against his associates to compel them to carry out the terms of the partnership agreement

— Actio puhliciana. An action which lay for one who had lost a thing of which he had bona fide obtained possession. before he had gnined a property in it, in older to have it restored, under color that he had obtained a property in it by prescription. Inst 4, 6k 4; Heinecc. Elem. lib. 4, tit. 6, § 1131; Hallifax, Anal. b. 3, c. 1, n. 9. It was an honorary action, and derived its name from the prætor Publicius, by whose edict it was first given. Inst. 4, 6, 4.

— Actio quod jnssn. An action given against a master, founded on some business done by his slave, acting under his order, (jussu.) Inst. 4, 7, 1; Dig. 15, 4; Cod. 4, 26.

— Actio quod metns cansa. An action granted to one who had been compelled by unlawful force, or fear (metUs causa) that was not groundless, (metus probabilis or justus,) to deliver, sell, or promise a thing to another. Bract, fol. 103b; Mackeld. Rom. Law, § 226.

— Actio realis. A real action. The proper term in the civil law was rei vindicatio. Inst. 4, 6, 3.

— Actio redhibitoria. An action to cancel a sale in consequence of defects in the thing sold It was prosecuted to compel complete restifution to the seller of the thing sold, with its produce and accessories, and to give the buyer back the price, with interest, as an equivalent for the restitution of the produce. Hunter, Rom. Law, 332.

— Actio rerum amotarum. An action for things removed; an action which, in cases of divorce, lay for a husband against a wife, to recover things carried away by the latter, in contemplation of such divorce. Dig. 25, 2 ; Id. 25, 2, 25, 30. It also lay for the wife against the husband in such cases. Id. 25, 2, 7, 11; Cod. 5, 21.

— Actio reseissoria. An action for restoring the plaintiff to a right or title which he has lost by prescription, in a case where the equities are such that he should be relieved from the operation of the prescription. Mackeld. Rom. Law, § 226,

— Actio, serviana. An action which lay for the lessor of a farm, or rural estate, to recover the goods of the lessee or farmer, which were pledged or bound for the rent. Inst. 4, 6, 7.

— Actio stricti juris. An action of strict right. The class of civil law personal actions, which were adjudged only by the strict law, and in which the judge was limited to the precise language of the formula, and had no discretionary power to regard the bona fides of the transaction. See Inst. 4, 6, 28; Gaius, iii. 137; Mackeld. Rom. Law, § 210.

— Actio tutelæ. Action founded on the duties or obligations arising on the relation analogous to that of guardian and ward.

— Actio utilis. A beneficial action or equitable action. An action founded on equity instead of strict law, and available for those who had equitable rights or the beneficial ownership of property. Actions are divided into directed or utiles actions. The former are founded on certain legal obligations which from their origin were accurately defined and recognized as actionable. The latter were formed analogically in imitation of the former. They were permitted in legal obligations for which the actiones directœ were not originally intended, but which resembled the legal obligations which formed the basis of the direct action. Mackeld. Rom. Law, § 207,

— Actio venditi. An action employed in behalf of a seller, to compel a buyer to pay the price, or perform any special obligations embodied in a contract of sale. Hunter, Rom. Law, 332,

— Actio vi bonorum raptorum. An action for goods taken by force; a species of mixed action, which lay for a party whose goods or movables (bona) had been taken from him by force, (vt,) to recover the things so taken, together with a penalty of triple the value. Inst. 4, 2; Id. 4, 6. 19. Bracton describas it as lying de rebus mobilibus vi ablatis sive robbatis, (for movable things taken away by force, or robbed.) Bract, fol. 103b.

— Actio vulgaris. A legal action ; a common action. Sometimes used for actio dvrecta. Mackeld. Rom. Law, § 207.

Z. An action. Actio civilis: a civil action. Actio communis: a common action. Actio crimlnalis: a criminal action. Actio ex contractn: an action of contract Actio ex delicto: an £ ction of tort Actio in personam: an action against the person. Actio in rem: an action for a thing. Actio indirecta: an indirect action: Actio nominata: a named action; an action for which there was a writ of course prior to the statute of Westm. IL Actio non accrevit infra, etc.: the action did not accrue within, etc. Acto non datnr non damnilicato: an action is not given to one who is not injured. Actio personalis: a personal action; — moritur cum persona: a personal action dies with the person. Actio propria: an action for the recovery of a thing held in severalty. Actio qnselibet in sna via: every action proceeds in its own course. Actionnm genera maximc sunt servenda: the kinds or varieties of actions are especially to be preserved. In the civil law. An action; a cause of action; a right to pursue or sue for what is due, before a judeos or in judicio. or later, in any court Actio ad exiiibendum: an action to compel the production of a thing, together with what was called rei causa. Actio arbitraria: an arbitrary action; an action depending on the discretion of the judge. Actio bouse lldei: an action of good faith; an equitable action ex contractu, in which the judex determined acaction of loan. Actio commnni dlvidnndo: an action for dividing property lield in common. Actio confessoria: an affirmative action; an action founded on an affirmative allegation of a right in land of another. Actio contraria: a contrary or cross action. Actio dc dolo malo: an action of fraud; an action against a defrauder and his heirs for restitution with increase, or for damages. Actio de in rein verso: an action concerning a thing converted to the profit of another. Actio de pecnlio: an action concerning or against the separate property of a person. Actio de pecania constitnta: an action for money engaged to be paid,.\ctio dcpositi: an action of deposit; an action upon or for a deposit, or for a thing deposited. Actio directa: a direct action; an action founded on strict lavy, and conducted according to fixed forms; an action on a contract made by an agent, and between the immediate parties — the agent and the other party; an action for an injury directly committed by hand or body, or for an act immediately injurious; an action brought to enforce an obligation essential to a contract Actio ex couductn: an action upon hiring. Actio ex contractu: an action on contract Actio ex delicto: an action of tort Actio ex exempto: an action of purchase, or upon purchase; an action by the buyer against the seller-to compel delivery. Actio ex facto: an action of fact or upon fact Actio ex locato: an action upon letting. Actio ex vendito: an action upon sale; an action by the seller for the price. Actio ex exercitoria: an action against an employer of a vessel. Actio fainiliffi erciscnnda;: an action for the partition of an inheritanca Actio flninm regnndoram: an action to determine a boundary. Actio fnrti: an action for theft Actio lionoraria: an honorai7, or praetorian action. Actio in duplnm: an action for double the value of a thing. Actio in factnni: an action upon the fact, or adapted to the fact; an action not confined to a particular formula, but founded on the peculiar circumstances of the case. Actio in personam, or personalis: an action against the person; an action founded on some personal liability. Actio in qnadrnplnm: an action for quadruple the value of a thing. Actio in rem: an action for a thing, for the recovery of the possession of a thing. Actio in simplnm: an action for the single value of a thing. Actio in trip- Inm: an action for triple the value of a thing. Actio injuriariim: an action for injuries done by beating, wounding, defaming, etc. Actio Icgis Aqniliee: an action under the Aquilian law; an action for damages for maliciously injuring a person or thing belonging to an-' other. Actio locati: an action by the letter of a thing against the hirer for breach of the contract Actio mandati: an action of mandate; an action on a contract of mandate. Actio mixta, or mista: a mixed action; an action to recover a thing or compensaaction in which each tory or negative action; an action founded other's right Actio negotiornm gestornni: of business done; an action where one has another, in his absence, or without authority. noxal action; an action against the master for crime committed by a slave. Actio perpetua: an action not limited in respect to time of noralicia: an action of pledge; an action Actio pcense persecutoria: an action for a specific thing. Actio penalis: a penal action; vate penalty. Actio prsejudicialis: a preliminary to determine a question arising in another, Actio prsetoria: a praetorian action; an action prsetor. Actio pro socio: an action for a a partner against copartner. Actio publiciana: thing lost by one who had bona fide obtained had gained a propei-ty in it. Actio qnanti a purchaser to recover what he had paid above jnssn: an action against a master founded on slave on his order. Actio qnod metus causa: had been compelled by fear not groundless or promise, sell or deliver a thing to another. qnod vi aut clam: an action for forcibly or or demolishing a building to the injury of ft real action..Actio redhibitoria: an action to take back the thing sold, and return the price. cntoria: an action to recover a specific thing rerum amotarnm: an action for things husband or wife against the other for things templation of divorce. Actio rescissoria: an title by prescription in certain cases. Actio action for violating a grave. Actio sei'viana: lessor of a farm to recover of the lessee goods Actio specialis: a special action; an action several things. Actio stricti juris: an action species of action ex contractu in which the Judex precise words of the agreement, as expressed instructions. Actio temporalis: a temporary limited in the bringing to a certain time. action for distribution; an action by a creditor bad traded on his peculiuvi, with the knowledge master, for a distributive share of the goods tutel%: an action of tutelage. Actio or action or interdict for possession of an immovable on the denial of anan action on account transacted business for Actio noxalis: a an injury done or a a perpetual action; bringing. Actio pigfounded on a pledge. penalty only; not for a an action for a priaction; an action the principal action. introduced by the copartner; an action by an action for a possession before he minoris: an action by value. Actio qnod business done by his an action to one who by unlawful force to Actio, or interdictam clandestinely erecting another. Actio realis: to compel a vendor Actio rei perseor damages. Actio removed; an action by carried away in conaction for rescinding sepulchri vestati: an an action by the pledged for the rent for delivery of one or of strict right; a was limited to the in the formula of his action; an action Actio tribntoria: an of a son or slave who of the father or traded in. Actio interdictum unde Ti: an of which one had agent; an action eon delicto where the injury was not immediate but indirect or consequential. Actio t1 bonoruin raptoruin: an action for goods taken by force; a mixed action for the things talien, with a penalty of triple their value. Actio Tulgaris: a common action; the actio directa. v. Actio; Action.

Lat, In the civil law. An action or suit; nright or canse of action. Itshould be noted that this term means both the proceeding to enforcea right in a court and the right itself which is sought to be enforced.

A doing, performing: an action, or right of action. Actio non accrevit infra sex annos. The action has not accrued within six yeai-s: the right of action has not arisen, etc. The Latin form of the plea of the statute of limitations. In strictness, appropriate only when the action has accrued subsequently to the promise. To an action on the promise, the plea is non assumpsit infra sex annosJ See Accrue, 2. Actio personalis moritur cum persona. A personal action dies with the person. Applies to actions merely personal, arising ex delicto^ for wrongs actually done by the defendant, such 1 People V. Tiphaine, 13 How. Pr. 76-77 (1856). « Chumasero v. Potts, 2 Monta. 284-86 (1876). s 1 Bl. Com. 86; Unity Township v. Burrage, 103 V. S. 454 (1880). ■"Lapeyre v. United States, 17 Wall. 198 (1872), Swayn'e, J. See also 7 Wheat. 211; 1 Gall. 62; 20 Vt. 653; 21 id. 619; 1 Kent, 457. 'Smith V. Shaw, 21 E. C. L. 126 (1829). ag trespass, battery, slander i in which the action cannot be revived by or against any representative. But actions arising ex contractu, by breach of promise, in which the right descends to the representative, may be revived: being actions against the property rather than against the person.' Expresses the rule at common law with regard to the surviving of personal actions arising ex delicto, for injuries to the person, personalty, or realty. By 4 Edw. m (1331), c. 7, the rule was so modified as to give an action in favor of a personal representative for injuries to personalty; by 3 and 4 Will. IV (1833), o. 43, an action was given against personal representatives for injuries to personalty or realty; ^ and by 9 and 10 Vict. (1846), c. 23, known as Lord Campbell's Act, a right of action for damages for the death of the person injured by the wrongful act, neglect, or default of another, is given to near relatives — husband, wife, parent, child. These statutes have been followed in this country. At common law actions on penal statutes do not survive. Congress has not changed the rule with respect to actions on the penal statutes of the United States. 3 See further Damages. Non oritur actio. A right of action does not arise — ex dolo malo, out of a fraud; — ex nudo pacto, out of an engagement without a consideration; — ecc pacto illioito, upon an unlawful agreement; — ex turpi causa or contractu, out of an immoral cause or contract; Whenever illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. Consent carinot neutralize its effect.* Whatever the contamination reaches it destroys. See further Delictum, In pari, etc.

I. An action; cause. based on contract; ex delicto, against the person; in rem, by natural causes. without authority. coram Deo, /. No one is bound God. tempus non est audiendus, nisi excusaverit, I. An accuser should time, unless he has satisfactorily or bargain.

Lat. [from aere. q. v.] In the civil law. An action; the right of pursuing, or suing for what is due to one, in the peculiar mode or form termed in judicio, i. e. before a judex; (q. v.) or, in the later civil law, the right of pursuing one's due by process of law, or before a judicial tribunal. Actio nihil aliud est quam jus persequendi in judicio quod sibi debetur: an acn is nothing else than the right of pursuing, in a court of justice, that which is due to one. Inst. 4. 6. pt. This definition of the Institutes is copied, with a slight change in the order of the words, from the older definition of Celsus in the Digests: Nihil aliud est actio quam jus quod sibi deheatur, judicio persequendi; which may be translated in precisely the same language, with the exception of the "word judtcio, which has the sense of a proceeding before a judex, already noticed. Biff. 44. 7. 61. Bracton adopts it,.with a change in two words only, actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur,) accompanying it with a commentary intended to adapt it to the English law of his time. Bract, fol. 98 b. Later writers have endeavored to accommodate it still more closely to 'the English system, as will be explained under anotner head. See Action. The precise nature of the Roman actio cannot well be understood from the very general definition of the civil law, (which, it will be seen, describes it not as a proceeding, but as a right,) without some explanation. And first, as to the peculiar meaning of the expression in judicio, it will be necessary to observe that the proceedings in civil causes, under the old Roman system, were always conducted before two dififerent judicial ofi Scers; the pro Btor, or magistrate, before whom the partiesactor and reus) appeared, and stated the case and defence; and the judex, a private person appointed by the praetor, to investigate the facts and decide the cause, according to a written formula of instructions. See Judex. Hence arose the division of the proceedings into two stages; those before the praetor, which were said to be in jure, and those before thetfea?, which were said tO be in judicio. Oaius, iv. § 119. 1 Kaufm. Mackeld. Civ. Law 187, note. The actio itself, under the earliest system of what were termed actiones legis, (q. V.) was a formula for which the actor or plaintifif applied to the praetor, at the commencement of the proceedings, and which the latter, in his discretion, allowed, actionem dabat.) In its general objects it resembled, or at least corresponded with the original writ of the Enfflish system, and from the manner in which it is always contrasted with the exceptio, (a formula on the part of the defendant answering nearly to the modem plea,) seems to have partaken also of the nature of the English count, or declaration. Actionis verbo non continetur exceptio,t(under the word actio, an exceptio is not included,) is a maxim of the Dests. Bi Sf' 50. 16. 8. Lace the original writy Hie actio lay at the foundation of the proceedings, Tfras essential to their due institution, and gave the right to proceed in the particular case; and from this last circumstance may itself, not unaptly have been termed the right of pursuing, or jus persequmdi, &c. It should not be overlooked, however, that notwithstanding the express wordsnihil alivd) of the definitions already given, the cxtio was practically regarded as something else than a mere jus, or right; it was not only a jus persequendi, but the per- Mcu/to itself. Actionis verbo etiam persecutio continetur. Dig. 50. 16. 34. The epithet ytseems more appropriately to belong to the proceeding by formulawhich took the place of the actianes legis, whei\ the latter were abolished. This formula, which, like the technical actio, was obtained from the praetor by the plaintiff, appears- to have combined the qualities, or something like the qualities of the writ, pleadings, and nisi prius record of the English practice; concluding with the appointment of d judex, to try the cause, and an express direction to him how to decide it, as the facts might appear. Gains, iv. § 40—47. 1 Spence's Chancery, 210, 2 16, 251. It evidently constituted the plaintifl Ts warrant for proceeding before the judex, or in judicio, and therefore may well have been defined jus persequendi in judicio. Before the time of Justinian, the practice of appointing a judex had been laid aside; the investigation of the facts and decision of the cause being given to the same officer before whom the proceedings were originally commenced. 1 Kaufm. Mack. Civ. Law, 188, note. There had ceased therefore to be any proceeding in judicio, in the proper technical sense of the term. And yet the ancient definition, framed doubtless with reference to that proceeding, was adopted by Justinian almost in hc Bc verba. This may be explained by the supposition that the word judicium had, by that time, acquired the larger sense of judicial investigation, procedure, or process m genera], just as judex had exchanged its technical meaning, (a private person appomted by the praetor to investigate the facte of the case, and decide it according to certain instructions,) for that of a public judge, having undivided control of the cause from beginning to end. See Judicium, Judex. Bracton, as has been observed, adopts the definition of Justinian almost literally, giving to the word jus the full meaning of right, and to judicium the general sense of a judicial procedure, or process of law. Bract, fol. 98 b. The same author, however, xvse& judicium in numerons other passages, in the sense of a court, and aa the synonyme of ctiria. See Judicium. In judicio, therefore, in his definition, if not in that of the Institutes, may not improperly* be translated "in a court of justice, " before a judicial tribunal."