ACTION, in its large and general sense, means a judicial proceeding before a compe tent tribunal for the attainment of justice; and in this sense it is applied to procedure, whether criminal or civil. In.its more limited acceptation, it is used to signify ings in the civil courts, where it means the form prescribed by law for the recovery of a right, or what is one's due. In the law of England, the term A. used to be applied to proceedings in the courts of common law, as distinguished from those of equity, where the word suit was used. What, in the courts of queen's bench, common pleas, and exchequer, before the judicature act of 1873, was called action-at-law, was in the courts of equity called a suit in equity. Sec COMMON LAW, COURTS OF, and EQUITY.
In the Scotch lay, which recognizes no distinction in legal administration between law and equity, the word A. is defined comprehensively as a demand regularly made and insisted on before the judge competent for the recovery of a right. Accordingly, while in Scotland there is, as in England, a remedy for every wrong, the law recognizes and gives effect to the right of a party to claim and to have declared a particular interest or right, even although that interest or right may not be withheld, or called in question. It is sufficient that it is doubtful, and that the ascertainment of it is necessary for the position and purposes of the plaintiff, or pursuer, as the Scotch law calls the active party. This procedure is known by the name of an A. of declarator, which has been
described as a suit in which something is prayed to be decreed in favor of the plaintiff, but nothing sought to be paid, performed, or done by the defendant. Lord Stair, in his Institutes of the Lam of Scotland, says, "such actions may be pursued for instructing or clearing any kind of right relating to liberty, dominion, or obligation;" and he further observes, "there is no right but is capable of declarator." Various attempts have been made to introduce this mode of proceeding into the practice of the law in England, but as yet without success. The idea of the declarator has been said to have been derived by the Scotch lawyers from the French legal system, according to whose forms the existing administration of the Scotch law was originally molded. In the institutes of Justinian there are, however, indications of the partial use of this form of A. by the Roman lawyers.
We may acid that the word A. is derived from the Latin actio (agere), and that tho i plaintiff in a snit or action was originally said to be the actor, which, in the recorded pleadings of the Scotch courts, his counsel or advocate still is called.