ACTION
action. 1. The process of doing something; conduct or behavior. 2. A thing done;
ACT(2).3.Patents. OFFICE ACTION.
advisory action.Patents. See advisory office action under OFFICE ACTION.
4. A civil or criminal judicial proceeding. — Also termed action at law. [Cases: Action 1.
C.J.S. Actions §§ 2–9, 11, 17, 21, 32–33, 36.]“An action has been defined to be an ordinary
proceeding in a court of justice, by which one party prosecutes another party for the enforcement
or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.
But in some sense this definition is equally applicable to special proceedings. More accurately, it
is defined to be any judicial proceeding, which, if conducted to a determination, will result in a
judgment or decree. The action is said to terminate at judgment.” 1 Morris M. Estee, Estee’s
Pleadings, Practice, and Forms§ 3, at 1 (Carter P. Pomeroy ed., 3d ed. 1885).
“The terms ‘action’ and ‘suit’ are nearly if not quite synonymous. But lawyers usually speak
of proceedings in courts of law as ‘actions,’ and of those in courts of equity as ‘suits.’ In olden
time there was a more marked distinction, for an action was considered as terminating when
judgment was rendered, the execution forming no part of it. A suit, on the other hand, included the
execution. The word ‘suit,’ as used in the Judiciary Act of 1784 and later Federal statutes, applies
to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy
which the law affords him.” Edwin E. Bryant, The Law of Pleading Under the Codes of Civil
Procedure 3 (2d ed. 1899).
“ ‘Action,’ in the sense of a judicial proceeding, includes recoupment, counterclaim, set-off,
suit in equity, and any other proceeding in which rights are determined.” UCC § 1-201(b)(1).
action at law.A civil suit stating a legal cause of action and seeking only a legal remedy. See
suit at law and suit in equity under SUIT.
action de die in diem (dee dI-ee in dI-em). [Law Latin “from day to day”] Hist. 1.An action
occurring from day to day; a continuing right of action. 2. An action for trespass for each day that
an injury continues.
“That trespass by way of personal entry is a continuing injury, lasting as long as the personal
presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is
sufficiently obvious.” R.F.V. Heuston, Salmond on the Law of Torts 42 (17th ed. 1977).
action de in rem verso (dee in rem v<<schwa>>r-soh). [Latin “action for money applied to
(the defendant’s) advantage”] 1.Roman & civil law. An action for unjust enrichment, in which the
plaintiff must show that an enrichment was bestowed, that the enrichment caused an
impoverishment, that there is no justification for the enrichment and impoverishment, and that the
plaintiff has no other adequate remedy at law, including no remedy under an express or implied
contract. 2.Roman law. An action brought against a paterfamilias or a slaveowner who benefited
from the transaction of a child or slave. — Also termed (in both senses) actio de in rem verso.
action en declaration de simulation.Louisiana law. An action to void a contract. See simulated
contract under CONTRACT.
action ex contractu (eks k<<schwa>>n-trak-t[y]oo). A personal action arising out of a
contract. [Cases: Action 27. C.J.S. Actions § 85.]
“Actions ex contractu were somewhat illogically classified thus: covenant, debt, assumpsit,
detinue, and account. The action of covenant lay where the party claimed damages for a breach of
contract or promise under seal. The writ of debt lay for the recovery of a debt; that is, a liquidated
or certain sum of money alleged to be due from defendant to plaintiff. The writ of detinue was the
ancient remedy where the plaintiff claimed the specific recovery of goods, chattels, deeds, or
writings detained from him. This remedy fell into disuse by reason of the unsatisfactory mode of
trial of ‘wager of law,’ which the defendant could claim; and recourse was had to the action of
replevin. In the American States an action of replevin founded upon statute provisions is almost
universally the remedy for the recovery of specific personal property.” Edwin E. Bryant, The Law
of Pleading Under the Codes of Civil Procedure 5 (2d ed. 1899).
action ex delicto (eks d<<schwa>>-lik-toh). A personal action arising out of a tort. [Cases:
Action 27. C.J.S. Actions § 85.]
“The actions ex delicto were originally the action of trespass and the action of replevin.”
Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 5 (2d ed. 1899).
action for money had and received.At common law, an action by which the plaintiff could
recover money paid to the defendant, the money usu. being recoverable because (1) the money
had been paid by mistake or under compulsion, or (2) the consideration was insufficient. [Cases:
Implied and Constructive Contracts 10–25. C.J.S. Implied and Constructive Contracts §§
11–23.]
“The action for money had and received lay to recover money which the plaintiff had paid to
the defendant, on the ground that it had been paid under a mistake or compulsion, or for a
consideration which had wholly failed. By this action the plaintiff could also recover money
which the defendant had received from a third party, as when he was accountable or had attorned
to the plaintiff in respect of the money, or the money formed part of the fruits of an office of the
plaintiff which the defendant had usurped.” Robert Goff & Gareth Jones, The Law of Restitution 3
(3d ed. 1986).
action for money paid.At common law, an action by which the plaintiff could recover money
paid to a third party — not to the defendant — in circumstances in which the defendant had
benefited. [Cases: Implied and Con-structive Contracts 6. C.J.S. Implied and Constructive
Contracts § 8.]
“The action for money paid was the appropriate action when the plaintiff’s claim was in
respect of money paid, not to the defendant, but to a third party, from which the defendant had
derived a benefit. Historically, the plaintiff had to show that the payment was made at the
defendant’s request; but we shall see that the law was prepared to ‘imply’ such a request on certain
occasions, in particular where the payment was made under compulsion of law or, in limited
circumstances, in the course of intervention in an emergency on the defendant’s behalf, which in
this book we shall call necessitous intervention.” Robert Goff & Gareth Jones, The Law of
Restitution 3 (3d ed. 1986).
action for poinding.Hist. A creditor’s action to obtain sequestration of the land rents and
goods of the debtor to satisfy the debt or enforce a distress.
action for the loss of services.Hist. A husband’s lawsuit against one who has taken away,
imprisoned, or physically harmed his wife in circumstances in which (1) the act is wrongful to the
wife, and (2) the husband is deprived of her society or services. [Cases: Husband and Wife
209(3).]
action for the recovery of land.See EJECTMENT.
action in equity.An action that seeks equitable relief, such as an injunction or specific
performance, as opposed to damages. See suit in equity under SUIT. [Cases: Action 21. C.J.S.
Actions § 124.]
action in personam (in p<<schwa>>r-soh-n<<schwa>>m).1. An action brought against a
person rather than property. • An in personam judgment is binding on the judgment debtor and can
be enforced against all the property of the judgment debtor. 2. An action in which the named
defendant is a natural or legal person. — Also termed personal action; (in Roman and civil law)
actio in personam; actio personalis. Pl. actiones in personam; actiones personales.See IN
PERSONAM. [Cases: Action 16. C.J.S. Actions §§ 10–12, 66, 69, 71–72, 74–77.]
action in rem (in rem).1. An action determining the title to property and the rights of the
parties, not merely among themselves, but also against all persons at any time claiming an interest
in that property; a real action. [Cases: Action 16. C.J.S. Actions §§ 10–12, 66, 69, 71–72, 74–77.]
2.Louisiana law. An action brought for the protection of possession, ownership, or other real rights
in immovable property.La. Civ. Code arts. 3651 et seq. 3.Louisiana law. An action for the recovery
of possession of immovable property. La. Civ. Code art. 526. — Also termed (in Roman law) actio
in rem; actio realis; real action. Pl. actiones in rem.See IN REM. 4. An action in which the named
defendant is real or personal property.
action of account.See ACCOUNTING(3).
action of assize.Hist. A real action by which the plaintiff proves title to land merely by
showing an ancestor’s possession. See ASSIZE.
action of book debt.See ACCOUNTING(4).
action of declarator.Scots law. An action brought in the Court of Session for the purpose of
establishing a legal status or right. — Also termed declarator; action for declaratory.
action of ejectment.See EJECTMENT(3).
action of reprobator.See REPROBATOR.
action on account.See ACCOUNTING(4).
action on expenditure.An action for payment of the principal debt by a personal surety.
action on the case.See trespass on the case under TRESPASS.
action per quod servitium amisit (p<<schwa>>r kwod s<<schwa>>r-vish-ee-<< schwa>>m
<<schwa>>-mI-sit). [Latin] Hist. An action for the loss of a servant’s services.
action quasi in rem (kway-sI in remorkway-zI). An action brought against the defendant
personally, with ju-risdiction based on an interest in property, the objective being to deal with the
particular property or to subject the property to the discharge of the claims asserted. See quasi in
rem under IN REM. [Cases: Action 16. C.J.S. Actions §§ 10–12, 66, 69, 71–72, 74–77.]
action to quiet title.A proceeding to establish a plaintiff’s title to land by compelling the
adverse claimant to establish a claim or be forever estopped from asserting it. — Also termed
quiet-title action. [Cases: Quieting Title 1. C.J.S. Quieting Title §§ 1, 3, 6.]
action to review judgment.Rare. 1.MOTION FOR NEW TRIAL. 2. A request for judicial
review of a nonjudicial body’s decision, such as an administrative ruling on a
workers’-compensation claim. • The grounds for review are usu. similar to those for a new trial, A
esp. patent errors of law and new evidence.
amicable action.See test case (1) under CASE.
civil action.An action brought to enforce, redress, or protect a private or civil right; a
noncriminal litigation. — Also termed (if brought by a private person) private action; (if brought
by a government) public action. [Cases: Action 1. C.J.S. Actions §§ 2–9, 11, 17, 21, 32–33, 36.]
“The code of New York, as originally adopted, declared, ‘the distinctions between actions at
law and suits in equity, and the forms of all such actions and heretofore existing, are abolished;
and there shall be in this State hereafter but one form of action for the enforcement or protection
of private rights and the redress of private wrongs, which shall be denominated a civil action.’
With slight verbal changes the above provision has been enacted in most of the States and
Territories which have adopted the reformed procedure.” Edwin E. Bryant, The Law of Pleading
Under the Codes of Civil Procedure 106 (2d ed. 1899).
class action.See CLASS ACTION.
collusive action.An action between two parties who have no actual controversy, being merely
for the purpose of determining a legal question or receiving a precedent that might prove favorable
in related litigation. — Also termed fictional action. [Cases: Action 8. C.J.S. Actions §§ 34–35,
37.]
common-law action.An action governed by common law, rather than statutory, equitable, or
civil law. [Cases: Action 21. C.J.S. Actions § 124.]
criminal action.An action instituted by the government to punish offenses against the public.
[Cases: Action 18. C.J.S. Actions § 68.]
cross-action. An action brought by the defendant against the plaintiff based on the same
subject matter as the plaintiff’s action. See CROSS-CLAIM.
derivative action.See DERIVATIVE ACTION.
direct action.See DIRECT ACTION.
fictional action.See collusive action.
fictitious action.An action, usu. unethical, brought solely to obtain a judicial opinion on an
issue of fact or law, rather than for the disposition of a controversy. [Cases: Action 8. C.J.S.
Actions §§ 34–35, 37.]
hypothecary action (hI-poth-<<schwa>>-ker-ee).Roman & civil law. An action for the
enforcement of a mortgage (hypotheca); a lawsuit to enforce a creditor’s claims under a hypothec
or hypothecation. — Also termed actio hypothecaria.
innominate action (i-nom-i-n<<schwa>>t). An action that has no special name by which it is
known. Cf. nominate action.
joint action. 1. An action brought by two or more plaintiffs. 2. An action brought against two A
or more defendants. [Cases: Action 50(4.1).]
local action.An action that can be brought only in the jurisdiction where the cause of action
arose, as when the action’s subject matter is a piece of real property. [Cases: Courts 7. C.J.S.
Courts §§ 20–22, 37.]
matrimonial action.An action relating to the state of marriage, such as an action for
separation, annulment, or divorce. [Cases: Divorce 1; Marriage 57. C.J.S. Divorce §§ 2, 5,
97–98; Marriage § 64.]
mixed action.An action that has some characteristics of both a real action and a personal
action. [Cases: Action 30. C.J.S. Actions §§ 78–83.]
“In early times the only mixed actions were those for the partition of lands, for which a writ
was provided in the common-law courts. The remedy was further enlarged by the statute of 31
Hen. VII c. 1, and 32 Hen. VIII c. 32, which gave compulsory partition, by writ at common law.
These statutes formed the basis of partition in the American States; but in England and here courts
of Chancery have been found most convenient, and their pro-cedure most favorable for the
division of estates in land. The statutes at the present time, in most of the States, prescribe a
procedure which is quite similar to that in equity practice.” Edwin E. Bryant, The Law of Pleading
Under the Codes of Civil Procedure 10–11 (2d ed. 1899).
nominate action (nom-i-n<<schwa>>t). An action that is known by a name, such as a
confessory action, a petitory action, or a possessory action. Cf. innominate action.
nonpersonal action.An action that proceeds within some category of territorial jurisdiction
other than in personam — that is, jurisdiction in rem, quasi in rem, or over status.
penal action. 1. A criminal prosecution. [Cases: Action 18. C.J.S. Actions § 68.] 2. A civil
proceeding in which either the state or a common informer sues to recover a penalty from a
defendant who has violated a statute. • Although civil in nature, a penal action resembles a
criminal proceeding because the result of a successful action is a monetary penalty intended, like a
fine, to punish the defendant. See COMMON INFORMER. [Cases: Action 19. C.J.S. Actions §
70.]
“At one time it was a frequent practice, when it was desired to repress some type of conduct
thought to be harmful, to do so by the machinery of the civil rather than of the criminal law. The
means so chosen was called a penal action, as being brought for the recovery of a penalty; and it
might be brought, according to the wording of the particular statute creating the penal action,
either by the Attorney-General on behalf of the state, or by a common informer on his own
account. A common informer was anyone who should first sue the offender for the penalty. Penal
actions are still possible in a few cases, and their existence renders invalid several suggested
distinctions between civil wrongs and crimes.” John Salmond, Jurisprudence 107 (Glanville L.
Williams ed., 10th ed. 1947).
“For in ‘penal actions,’ unless the statute expressly authorizes private persons to act as
informers, the State alone can sue and recover the penalty; and yet there is full authority for A
ranking such suits by it as merely civil pro-ceedings.” J.W. Cecil Turner, Kenny’s Outlines of
Criminal Law 538 (16th ed. 1952).
3. A civil lawsuit by an aggrieved party seeking recovery of a statutory fine or a penalty, such
as punitive damages. [Cases: Action 19. C.J.S. Actions § 70.]
“[T]here exists a well-known class of proceedings called ‘penal actions,’ by which pecuniary
penalties can be recovered — in some cases by any person who will sue for them — from the
doers of various prohibited acts; these acts being thus prohibited, and visited with penalties, solely
on account of their tendency to cause evil to the community at large, ‘considered as a community.’
For example, a person who, in advertising a reward for the return of lost property, adds that ‘no
questions will be asked’ incurs by the Larceny Act, 1861, a penalty of £50 recoverable by anyone
who will sue for it.” J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 533–34 (16th ed. 1952).
personal action. 1. An action brought for the recovery of debts, personal property, or damages
arising from any cause. — Also termed remedial action. [Cases: Action 30. C.J.S. Actions §§
78–83.]
“Personal actions are subdivided into those brought for the recovery of a debt or of damages
for the breach of a contract, or for tort, for some injury to the person or to relative rights or to
personal or real property. The most common of these actions are debt, covenant, assumpsit,
detinue, trespass, trespass on the case, trover, and replevin.” Benjamin J. Shipman, Handbook of
Common-Law Pleading § 34, at 65 (Henry Winthrop Ballantine ed., 3d ed. 1923).
2. See action in personam.
petitory action (pet-<<schwa>>-tor-ee).1.Roman & civil law. An action to establish and
enforce title to property independently of the right to possession. 2.Civil law. An action for the
recognition of ownership or other real right in immovable (or sometimes movable) property. • In
civil-law systems, the petitory action (revendication) is a much broader and more effective remedy
than the rei-vindicatio, the Roman prototype. This action is based on, and tends to protect, real
rights, that is, ownership and its dismemberments. It is therefore a real action, distin-guishable
from personal actions based on (and tending to protect) personal rights. Generally, the petitory
action is available for the protection of the ownership of both movables and immovables. In
Louisiana, however, the petitory action is for the recognition of ownership or other real right in
immovable property, brought by a person who is not in possession of it. La. Code Civ. Proc. art.
3651. An action for the recognition of such a right in movable property is an innominate real
action, known as a revendicatory action. — Also termed petitory suit; petitorium; revendication.
[Cases: Real Actions 6.]
plenary action (plee-n<<schwa>>-ree orplen-). A full hearing or trial on the merits, as
opposed to a summary proceeding. Cf. summary proceeding under PROCEEDING.
possessory action (p<<schwa>>-zes-<<schwa>>-ree).1. An action to obtain, recover, or
maintain possession of property but not title to it, such as an action to evict a nonpaying tenant. —
Also termed possessorium. [Cases: Ejectment 17; Replevin 1. C.J.S. Ejectment § 24; Replevin
§§ 2–7.]
“The possessory action is available for the protection of the possession of corporeal
immovables as well as for the protection of the quasi-possession or real rights in immovable
property. It is distinguished from the petitory action which is available for the recognition and
enforcement of ownership or of real rights in another’s immovable, such as a usufruct, limited
personal servitudes, and predial servitudes.” A.N. Yiannopoulos, Civil Law Property § 333, at 653
(4th ed. 2001).
2.Maritime law. An action brought to recover possession of a ship under a claim of title.
[Cases: Admiralty 8. C.J.S. Admiralty §§ 59–61.]
private action.See civil action.
public action.See civil action.
real action. 1. An action brought for the recovery of land or other real property; specif., an
action to recover the possession of a freehold estate in real property, or seisin. 2.Civil law. An
action based on, and tending to protect, a real right, namely, the right of ownership and its
dismemberments. • It is distinguishable from a personal action, which is based on (and tends to
protect) a personal right. 3.Louisiana law. An action brought for the protection of possession,
ownership, or other real rights in immovable property.La. Code Civ. Proc. arts. 3651 et seq. —
Also termed action in rem; actio in rem; actio realis. See SEISIN. [Cases: Real Actions 1–6.]
“If the question be asked why it was that a large part of the really English law which Bracton
undertook to expound is found in connection with the subject of real actions, while in Blackstone’s
treatise only the personal actions are deemed worthy of attention, the answer must be that the
former were dying out. When Chitty wrote (1808) the old real actions were practically obsolete,
and in the succeeding generation such vestiges of them as remained were abolished by statute.”
Hannis Taylor, The Science of Jurisprudence 574 (1908).
“The principal real actions formerly in use were (1) the writs of right; (2) the writs of entry;
(3) the possessory assizes, such as novel disseisin and mort d’ancestor. Real actions are those in
which the demandant seeks to recover seisin from one called a tenant, because he holds the land.
They are real actions at common law because the judgment is in rem and awards the seisin or
possession.” Benjamin J. Shipman, Handbook of Common-Law Pleading § 32, at 63 (Henry
Winthrop Ballantine ed., 3d ed. 1923).
redhibitory action.Civil law. An action brought to void a sale of a thing having a defect that
renders it either useless or so flawed that the buyer would not have bought it in the first place. See
REDHIBITION. [Cases: Sales 113; Vendor and Purchaser 123. C.J.S. Sales §§ 123, 128–129,
199; Vendor and Purchaser §§ 300–305.]
remedial action.1.REMEDIAL ACTION. 2. See personal action (1).
representative action.1.CLASS ACTION; 2.DERIVATIVE ACTION(1).
rescissory action.Scots law. An action to set aside a deed.
revendicatory action (ree-ven-di-k<<schwa>>-tor-ee). See petitory action.
separate action. 1. An action brought alone by each of several complainants who are all
involved in the same transaction but either cannot legally join the suit or, not being required to
join, choose not to join it. 2. One of several distinct actions brought by a single plaintiff against
each of two or more parties who are all liable to a plaintiff with respect to the same subject matter.
— Also termed several action.
several action.See separate action.
sham action.An objectively baseless lawsuit the primary purpose of which is to hinder or
interfere with a com-petitor’s business relationships. See Professional Real Estate Investors, Inc. v.
Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920 (1993). — Also termed sham lawsuit;
sham suit. See SHAM EXCEPTION.
statutory action.An action governed by statutory law rather than equitable, civil, or common
law. [Cases: Action 3. C.J.S. Actions §§ 22–25, 28.]
test action.See test case (2) under CASE.
third-party action.An action brought as part of a lawsuit already pending but distinct from the
main claim, whereby a defendant sues an entity not sued by the plaintiff when that entity may be
liable to the defendant for all or part of the plaintiff’s claim. • A common example is an action for
indemnity or contribution. [Cases: Parties 50. C.J.S. Parties §§ 128–131, 142, 151.]
transitory action.An action that can be brought in any venue where the defendant can be
personally served with process. [Cases: Venue 4. C.J.S. Venue §§ 8–9.]
“Transitory actions are universally founded on the supposed violation of rights which, in
contemplation of law, have no locality. They are personal actions, that is, they are brought for the
enforcement of purely personal rights or obligations. If the transaction on which the action is
founded could have taken place anywhere, the action is generally regarded as transitory; but if the
transaction could only have happened in a particular place … the action is local. Some authorities,
considering the effect of the distinction, define transitory actions as actions which may be tried
wherever defendant may be found and served.” 92 C.J.S. Venue § 8, at 678–79 (1955).
Action. A former independent federal agency that administered various volunteer-services
programs including Foster Grandparents, Retired Senior Volunteers, Senior Companions,
Volunteers in Service to America, and Student Community Service Projects. • Its functions were
transferred to the Corporation for National and Community Service in 1995. See CORPORATION[Blacks Law 8th]
FOR NATIONAL AND COMMUNITY SERVICE .