17. Actions ordinary or rescissory. All actions are, in the sense of this division, ordinary, which arc n,ot re cissory. Recissory actions are divided, 1. Into actions of proper improbation. 2. Actions of reduction improbation, 3. Actions of simple reductions. Proper improbations which are brought for declaring writings false or forged,' are treated of in Book IV.
Reduction improbation is an action, whereby a person who may be hurt or affected by a writing, insists for producing or exhibiting it in court, in order to have it set aside, or its effect ascertained, under the certification that the writing, if not produced, shall be declared false and forged. This certification is a fiction of law, introduced that the produc tion of writings may be the more effectually forced, and therefore it operates only in favour of the pursuer ; so that the writing, though declared false, continues in full strength in all questions with third parties. In an action of simple reduction, the certification is only temporary, declaring the writings called for null until they be produced ; so that they recover their full force after production, even against the pursuer himself.
1 S. A ciions are also, both by the Roman law and ou rs, divi rei persecutoric and papules. By the ti st,the pursuer insists barely to recover what patrimonio ejusabest, the sub ject that is his, or the debt that is due to him and this in cludes the damage sustained by the put suer, damnum et interesse ; for one is as truly a sufferer in his patrimonial interest by that damage, as by the loss of the subject itself. In penal actions, which always arise ex delicto, something is also demanded by way of penalty.
19 Actions of spuilzie, ejection, and intrusion, are penal. An action of spuiizie is competent to one dispossessed of a moveable subject violently, or without order of law, against the person dispossessing, not only for being restor ed to the possession of the subject if extant, or for the value Tf it be destroyed, but also for the violent profits. Ejec tion and intrusion are, in heritable subjects, what spuilzie is in moveables.
20. The most celebrated division of actions in our law, is into peatory, possessory, and declaratory. Petitory actions are those where something is demanded from the defender, in consequence of a right of property or of credit in the pursuer. Thus actions for restitution of moveables, actions of poinding, of forthcoming, and indeed all personal actions, upon contracts or quasi-contracts, are petitory. Possessory
actions are those which are founded either upon possession alone, as spuilzies, or upon possession joined with another title, as rcmovings ; and they are competent either for get ting into possession, for holding it, or for recovering it ; analagous to the interdicts of the Roman law, quorum bono rum, uti possideas, and uncle vi. A declaratory action is that in which some right is craved to be declared in favour of the pursuer, but nothing sought to be paid or performed by the defender ; such as declarators of marriage, of irri tancy, of expiry of the legal reversion, actions competent to superiors, or their donatorics, for declaring casualties incurred by vassals, &c. Under this class may be also com prehended rescissory actions, which, without any personal conclusion against the defender, tends simply to set aside the rights or writings libelled ; in consequence of which a contrary right or immunity arises to the pursuer. An ac tion for proving the tenor, whereby a writing which is de stroyed or missing is endeavoured to be revived, is in effect declaratory. The action of double or multiple poinding may be also reckoned declaratory. It is competent to a debtor who is distressed, or threatened with distress, by two or more persons claiming right to the debt, and who therefore brings the several claimants into the field, in or der to the debating and settling their several preferences, that so he may pay securely to hint whose right shall be found preferable.
22. Actions proceeded anciently upon brieves issuing from the chancery, directed to the justiciary or judge-ordi nary, who tried the matter by a jury, upon whose verdict judgment was pronounced. And to this day we retain cer tain brieves, as of inquest, tcrce, idiotry, tutory, perambula tion, and perhaps two or three others. But summonses were, immediately upon the institution of the college of justice, introduced into our law in the place of brieves. A summons, when applied to actions pursued before the ses sion, is a writ in the king's name, issuing from his signet upon the pursuer's complaint, authorizing messengers to cite the defender to appear before the court and make his defences. The libel or declaration setting forth the ground of action, must be filled up in the summons before execution.