KFLCC Kingdom Law 2nd Ed.

ACTION

ACTIO EX CONTRACTU

25

nance of the action, introduced in plact of the plea puis darrein continuance; the aver ment being that the plaintiff ought not fur ther (ulterius) to have or maintain his action. Steph. PI. 64, 65, 401. ACTIO PERSONALIS. In the civil and common law. A personal action. The ordi nary term for this kind of action in the civil law is actio in personam, (q. v.,) the word personalis being of only occasional occur rence. Inst. 4, 6, 8, in tit.; Id. 4, 11, pr. 1. Bracton, however, uses It freely, and hence the personal action of the common law. Bract fols. 102a, 1596. See PERSONAL AC TION. Actio personalis moritur cum persona. A personal right of action dies with the per son. Noy, Max. 14. Actio poenalis in hseredem non datur, nisi forte ex damno locupletior naeres factus sit. A penal action is not given against an heir, unless, indeed, such heir is benefited by the wrong. Actio quselibet it sua via. Every ac tion proceeds in its own way. Jenk. Cent. 77. ACTION. Conduct; behavior; something done; the condition of acting; an act or series of acts. In practice. The legal and formal de mand of one's right from another person or party made and insisted on in a court of justice. Valentine v. Boston, 20 Pick. (Mass.) 201; Hibernia Nat Bank v. Lacombe, 84 N. Y. 376; Appeal of McBride, 72 Pa. 480; Wilt v. Stickney, 30 Fed. Cas. 256; White v. Rio Grande Western R. Co., 25 Utah, 346, 71 Pac. 593; B'ridgton v. Bennett 23 Me. 420; Harger v. Thomas, 44 Pa. 128, 84 Am. Dec. 422; Peeler v» Norris, 4 Yerg. (Tenn.) 339. An action is an ordinary proceeding in a court of justice by which one party prose cutes another for the enforcement or protec tion of a right, the redress or prevention of a wrong, or the punishment of a public of fense. Code Civ. Proc. Cal. § 22; Code N. Y. § 2; Code N. C. 1883, § 126; Rev. Code N. D. 1899, § 5156; Code Civ. Proc. S. D. 1903, § 12; Missionary Soc. v. Ely, 56 Ohio St. 405, 47 N. E. 537; In re Welch, 108 Wis. 387, 84 N. W. 550; Smith v. Westerfield, 88 Cal. 374, 26 Pac. 207; Losey v. Stanley, 83 Hun, 420, 31 N. Y. Supp. 950; Lawrence v. Thomas, 84 Iowa, 362, 51 N. W. 11. An action is merely the judicial means of enforcing a right Code Ga. 1882, § 3151. Action is the form of a suit given by law for the recovery of that which is one's due; the lawful demand of one's right Co. Litt 2846, 285a. An action Is a legal proceeding by a party complainant against a party defendant to obtain the judgment of the court in relation to some right claimed to be secured, or some

Into criminalia et civilia, according as they grow out of crimes or contracts. Bract, fol. 1016. ACTIO EX CONTRACTU. In the civil and common law. An action of contract; an action arising out of, or founded on, con tract. Inst 4, 6, 1; Bract fol. 102; 3 Bl. Comm. 117. ACTIO EX DELICTO. In the civil and common law. An action of tort; an action arising out of fault, misconduct, or malfeas ance. Inst 4, 6, 15; 3 Bl. Comm. 117. Ex maleficio is the more common expression of the civil law; which is adopted by Bracton. Inst. 4, 6, 1; Bract fols. 102, 103. ACTIO IN PERSONAM. In the civil law. An action against the person, founded on a personal liability; an action seeking re dress for the violation of a jus in personam or right available against a- particular indi vidual. In admiralty law. An action directed against the particular person who is to be charged with the liability. It is distinguish ed from an actio in rem, which is a suit di rected against a specific thing (as a vessel) irrespective of the ownership of it, to enforce a claim or lien upon it, or to obtain, out of the thing or out of the proceeds of its sale, satisfaction for an injury alleged by the claimant. ACTIO IN REM. In the civil and com mon law. An action for a thing; an action for the recovery of a thing possessed by an other. Inst. 4, 6, 1. An action for the en forcement of a right (or for redress for its invasion) which was originally available against all the world, and not in any special sense against the individual sued, until he violated it. See IN REM. ACTIO NON. In pleading. The Latin name of that part of a special plea which fol lows next after the statement of appearance and defense, and declares that the plaintiff "ought not to have or maintain his aforesaid action," etc. ACTIO NON ACCREVIT INFRA, SEX ANNOS. The name of the plea of the stat ute of limitations, when the defendant al leges that the plaintiff's action has not ac crued within six years. Actio non datnr non damnincato. An action is not given to one who is not injured. Jenk. Cent 69. Actio non facit renm, nisi mens sit rea. An action does not make one guilty, unless the intention be bad. Lofft 37. ACTIO NON TJLTERIUS. In English pleading. A name given to the distinctive clause in the plea to the further mainte