The epithet jus seems more appropriately to belong to the proceeding by formula, which took the place of the actiones legis, when the latter were abolished. This formula, which, like the technical actio, was obtained from the prætor 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 a judex, to try the cause, and an express direction to him how to decide it, as the facts might appear. Gaius, Inst. iv. § 40-47. 1 Spence's Chancery, 210, 216, 251. It evidently constituted the plaintiff's 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 hæc 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 in general, just as judex had exchanged its technical meaning, (a private person appointed by the prætor to investigate the facts 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, how

ACTIO. Lat. In ancient English law. An action; otherwise termed, placitum, and sometimes loquela. Placitum sive actio. Bract. fol. 102 b. See Action. Actio non datur non damnificato. An action is not given to one who is not injured. Jenk. Cent. 69. Actio quælibet it sua via. Every action proceeds in its own course. Id. 77. Actionum genera maxime sunt servanda. The kinds or varieties of actions are especially to be preserved. Lofft, Appendix, 460.

ACTIO. L. Lat. In mediæval law. An office. Actio comitatus; the office of count. Marculf. Form. lib. 1. Spelman.

ACTIO NON ACCREVIT INFRA SEX ANNOS. L. Lat. The action did not accrue within six years. The emphatic words of the old plea of the statute of limitations, literally translated in the modern forms, and retained as the distinctive name of the plea. 3 Chitt. Pl. 941. See Non assumpsit infra sex annos.

ACTIO. NON. L. Lat. In pleading., An abbreviation of actionem non, the emphatic words anciently used at the commencement of a special plea in bar; the defendant first averring generally that the plaintiff "ought not to have or maintain his action," (actionem non habere,) and then proceeding to state the reason—“ because he says that," &c. Hence this whole preliminary formula, (literally translated in the modern forms,) has been technically termed the actio. non, or actionem non. Steph. Plead. 394, (Am. ed. 1824.) 3 Chitt. Pl. 906. As orally delivered by the pleader, it ran thus: Action ne deves aver, car nous disons que, &c.; you ought not to have your action, for we say that, &c. Yearb. M. 4 Hen. VI. 1. P. 4 Hen. VI. 13. By the rules of the English courts, (Hil. T. 4 Will. IV. 1, s. 10,) this clause was dispensed with.

ACTIO. NON ULTERIUS. L. Lat. In English pleading. A name given to the distinctive clause in the new plea to the further maintenance of the action, introduced in place of the plea puis darrein continuance; the averment being that the plaintiff ought not further (ulterius,) to

have or maintain his action. 64, 65, 401.

ACTIO AD EXHIBENDUM. Lat. In the civil law. An action to compel the exhibition or production of a thing, together with what was called rei causa; under which was comprehended all that the claimant of the thing could demand in addition thereto, and especially what he could have had if the thing had not been withheld from him. Inst. 4. 17. 3. Id. 4. 6. 31. Dig. 10. 4. Cod. 3. 42. 1 Mackeld. Civ. Law, 155, § 153.

ACTIO ARBITRARIA. In the civil law. An arbitrary action; one depending upon the discretion of the judge, (ex arbitrio judicis pendens;) or in which the judge was allowed to determine according to equity and the circumstances of the particular case, how satisfaction should be made to the plaintiff; (permittitur judici ex bono et æquo, secundum cujusque rei de quâ actum est naturam, æstimare quemadmodum actori satisfieri oporteat.) If the defendant refused to conform to the decision of the judge, he might be condemned at discretion; (nisi arbitrio judicis actori satisfaciat, -condemnari debeat.) Inst. 4. 6. 31.

ACTIO BONÆ FIDEI. In the civil law. An action of good faith; a species of equitable action ex contractu, in which the judex was allowed a discretionary power of determining upon principles of justice and equity, (ex bono et æquo,) how much should be paid to the plaintiff, (quantum actori restitui debeat;) of allowing a set off (compensatio,) on the part of the defendant; and generally, of taking into consideration the circumstances of the case, the intentions of the parties, and whatever was understood ex fide bonâ.* Inst. 4. 6. 28. 30. Heinecc. Elem. Jur. Civ. lib. 4, tit. 6, §§ 1183, 1185. 1 Mackeld. Civ. Law, 194, $197. These actions were also called arbitria, and the judex, arbiter; they were always brought for an incertum, (something indefinite or not ascertained,) and were distinguished from the actiones stricti juris, which were governed by strict rules, and were always directed to a certum. Id. ibid. See Actio stricti juris.

*

ACTIO CIVILIS. In the common law. A civil action, as distinguished from a criminal action. Bracton divides personal actions into criminalia et civilia, according as they grow out of crimes or contracts, (secundum quod descendunt ex maleficiis vel contractibus.) Bract. fol. 101 b.

ACTIO COMMODATI. In the civil law. An action of loan. See Commodati actio.

ACTIO COMMUNIS. A common action. A term applied by Bracton to an action where the thing demanded was common, and not several. Bract. fol. 103.

ACTIO COMMUNI DIVIDUNDO. In the civil law. An action for dividing a common property, or thing held in common. Inst. 4. 6. 20. Id. 4. 17. 5. Dig. 10. 3. See Communi dividundo. Enumerated by Bracton and Fleta, among actions arising quasi ex contractu. Bract. fol. 100 b. Fleta, lib. 2, c. 60, § 1.

ACTIO CONFESSORIA. In the civil law. An affirmative action; an action founded upon the affirmative allegation of some right in the plaintiff in another's land, as a right of way, &c.; and not upon the denial of the right of another in his land.* Inst. 4. 6. 2. Confessoria dicitur, quia constituta est verbis affirmativis. Bract. fol. 103. See Actio negatoria.

ACTIO CONTRARIA. In the civil law. A contrary or cross action, as distinguished from actio directa, (q. v.) Heinecc. Elem. Jur. Civ. lib. 3, tit. 15, §§ 805, 816, 826. Bract. fol. 103.

In the comBract. fol.

ACTIO CRIMINALIS. mon law. A criminal action. 102 b. See Actio civilis. ACTIO DE DOLO MALO. In the civil law. An action of fraud; an action which lay for a defrauded person against the defrauder and his heirs, who had been enriched by the fraud, to obtain the restitution of the thing of which he had been fraudulently deprived, with all its accessions, (cum omni causâ ;) or, where this was not practicable, for compensation in damages. 1 Mackeld. Civ. Law, 221, § 217. Heinecc. Elem. Jur. Civ. lib. 4, tit. 6, § 1152. Dig. 4. 3. Cod. 2. 21. Bract. fol. 103 b.

ACTIO DE IN REM VERSO. In the An action concerning a thing

ACTIO FURTI. In the civil law. An action of theft; an action founded upon theft. Inst. 4. 1. 13-17. Bract. fol. 444. This could only be brought for the penalty attached to the offence, (tantum ad pœnæ persecutionem pertinet,) and not to recover the thing stolen itself, for which other actions were provided. Inst. 4. 1. 19.

ACTIO HONORARIA. In the civil law. An honorary, or prætorian action. Dig. 44. 7. 25. 35. See Actio civilis.

ACTIO IN DUPLUM. In the civil law. An action for the double value of a thing. Inst. 4. 6. 21, 23. Bract. fol. 103 a. ACTIO IN FACTUM. In the civil law. An action upon the fact, or adapted to the fact; an action not confined to any particular formula, but founded on the peculiar circumstances of the case; and intended to meet cases to which other forms of action were not applicable.* Dig. 19. 5. 1. pr. Id. 19. 5. 11. Id. 44. 7. 25. 1. It resembled the action on the case of the common law. 1 Kames' Equity, 147.

ACTIO IN PERSONAM. In the civil and common law. An action against the person; a personal action; an action founded on some personal liability, arising either out of contract, (ex contractu,) or malfeasance, (ex delicto,) as distinguished from an actio in rem, or one brought for the recovery of a thing, independently of any personal obligation. Inst. 4. 6. 1. In personam actio est, qua cum eo agimus qui obligatus est nobis ad faciendum aliquid, vel dandum; an action in personam is one which we may bring against him who is bound to us, to do or to give some thing. Dig. 44. 7. 25. It was otherwise called condictio, actio personalis, and judicium personale, (qq. v.) Id. ibid. Inst. 4. 6. 8. in tit. Id. 4. 6. 15. Id. 4. 11. pr. and 1. The great leading division of actions into those in rem and in personam, was established by the civil law, and introduced into the law of England chiefly through Bracton, who adopts it in terms. Bract. fol. 101 b.

ACTIO IN QUADRUPLUM. In the civil law. An action for the quadruple value of a thing. Inst. 4. 6. 21. Bract. fol. 103 a.

ACTIO IN REM. In the civil and common law. An action for a thing; an action for the recovery of a thing possessed by another. Inst. 4. 6. 1. In rem actio est per quam rem nostram quæ ab alio possidetur petimus, et semper adversus eum est qui rem possidet; an action in rem is one by which we demand a thing belonging to us which is possessed by another, and it is always brought against him who has the thing in possession. Dig. 44. 7. 25. Otherwise called vindicatio. Id. ibid. Inst. 4. 6. 15. Bracton confines this description of actions to those brought for the recovery of some immovable, corporeal thing, (res corporalis immobilis,) as land, (fundum aliquem vel terram,) or some right therein, (jus quod rei adhæreat.) Bract. fol. 102. Hence the meaning of the term real action (actio realis, q. v.) in the common law.

An action directed against a thing, out of which the party bringing it seeks to obtain satisfaction, instead of proceeding against the person." * Thus, in the courts of admiralty, where a vessel is libelled for the purpose of obtaining satisfaction of some claim, or on the ground of forfeiture, it is said to be a proceeding in rem, not touching the person. 3 Dallas' R. 297. 1 Kent's Com. 373. Id. 367, note. 3 Id. 196.

ACTIO IN SIMPLUM. In the civil law. An action for the single value of a thing. Inst. 4. 6. 21, 22. Bract. fol. 103 a. ACTIO IN TRIPLUM. In the civil An action for the thing. Inst. 4. 6. 21, 24.

law.

triple value of a Bract. fol. 103 a.

ACTIO INDIRECTA. An indirect ac

tion. A species of action mentioned by Bracton, probably the reverse of the actio directa, (q. v.) Bract. fol. 103 a.

ACTIO INJURIARUM. In the civil law. An action for injuries done by beating, wounding, slanderous language, libel, and the like. Inst. 4. 4. pr. 1, 12. Bract. fol. 103 b. See Injuria. ACTIO INSTITORIA.

actio.

See Institoria ACTIO LEGIS AQUILIÆ. In the civil law. An action under the Aquilian law; an action to recover damages for maliciously or injuriously killing or wounding the slave or beast of another, or injuring in any way a thing belonging to another.