Action

Action, in its large sense, means a judicial proceeding before a competent tribunal for the attainment of justice; and in this sense it is applied to procedure, whether criminal or civil. In its more limited acceptance it is used to signify proceedings in the civil courts, where it means the form prescribed by law for the enforcement of a right. In the law of England, the term action used to be applied to proceedings in the courts of common law, as distinguished from those of equity, where the word suit was used. Although the word suit is now abolished, certain actions (such as for debt, damages, and recovery of property) are competent only in the Common Law Division of the High Court, while others (such as for specific performance of contracts, partnership accounts, execution of trusts, administration of the estates of deceased persons) are competent only in the Chancery Division. In Scotland, the formal distinction between law and equity never obtained, so that all actions are competent in the Court of Session, although certain applications (such as those for custody of children, interim appointment of public officers, regulation of charitable trusts, determination of matters omitted in deeds and statutes) are competent only in the Inner House. The leading actions in the law of Scotland are declarators, reductions, petitory and possessory actions; these, however, are generally found in certain combinations. Declarator is for a decree defining and declaring the right of the pursuer, and is, of course, of no practical value, unless the action is opposed by some one alleging a competing right. Reduction is to set aside a formal document as granted in error or obtained by fraud. Petitory action is for money, whether debt or damages; while possessory is to maintain the status quo. Actions in Scotland were never confined to the same rigid formula in original writ and subsequent pleading as in England. Now, however, there is no very substantial difference between the course of an action in England and in Scotland. The first step is to bring the defending party into court by service of a summons; the next to ascertain by a record or adjusted pleadings what is the question at issue; the next to ascertain by argument, evidence, or both, which party is in the right; a judgment on a question of law being generally subject to appeal, while the verdict of a jury on a matter of fact is generally final. In England, owing to recent reforms, the defending party has a much larger power of bringing forward a counter-claim than in Scotland, and can even obtain decree in his favour if the counter-claim exceeds the original claim. Every action includes many incidental matters, such as motions to recover documents, to sist new parties, to amend, &c. The expenses of an action are generally ordered to be paid by the losing party, subject, however, to audit or taxation by an officer of court. See COMMON LAW (COURTS OF), and EQUITY.