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 nude pacto non oritur actio ; no right of action can arise upon a naked pact. In this sense we rarely use the word action. Ortolan, Inst. vol. 3, sec. 1830 ; 5 Savigny, System, 10 ; Mackeldey (13th ed.), sec. 193.
Thg first sense here given is the older one. Jus. tinian, following Celsus, gives the well-known defi nition: Actio nilil aliud eel, pant jue pereequendi in judicio, quad eibi debetur, which may be thus rendered : An action is simply the right to enforce one's demand in a court of law. See Inst. Tue. 4.6, de Actionibue.
2. In the sense of a specific form of re medy, 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 vilis. Actiones honorarice are those which were gradually introduced by the praetors and mdiles, 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 bene ficial in practice that they eventually sup planted the old remedies, of which in the time of Justinian hardly a trace remained. Mackeldey, Civ. Law, 194 ; Savigny, Sys tem, vol. 5.
Directce actiones, as a class, were forms of remedies for cases clearly defined and recog nized as actionable by the law. Utiles ac tiones were remedies granted by the magis trate in cases to which no actio directa was applicable. They were framed for the special occasion, by analogy to the existing forms, 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.
3. Again, there are actiones in personam and actiones in rem. The former class in cludes all remedies for the breach of an obli gation, and are considered to be directed against the person of the wrong-doer. The
second class comprehends all remedies de vised for the recovery of property, or the en forcement of a right not founded upon a con tract between the parties, and are therefore considered as rather aimed at the thing in dispute, than at the person of the defendant. Mackeldey, 195; 5 Savigny, System, 206— 209 ; 3 Ortolan, Inst. N 1952 et seq.
In respect to their object, actions are either actiones rei persequendce causa comparatce, to which class belong all in rem actiones, 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 they are actiones pcenales, called also actions ex delicto, in which a penalty was recovered of the delinquent, or actions mixtm, in which were recovered both the actual damages and a penalty in addition. These classes, actiones pconalat and actiones mixtce, comprehended cases of injuries, for which the civil law per mitted redress by private action, but which modern civilization universally regards as crimes ; that is, offences against society at large, and punished by proceedings in the name of the state alone. Thus, theft, receiv ing 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 ex delicto nascuntur ; id. 2. De bonis vi raptis ; id. 3. De leqe Aqui no. And see Mackeldey, ,1 196 ; 5 Savigny, System, 210-212.
4. In respect to the mode of procedure : actiones in personam are divided into stricti juris, and actions. 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. Mackeldey, 197 a.