Actio

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."