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ACTIO.

there was a celebrated temple of Apollo at Actium, which is mentioned by Thucydides (i. 29), and Strabo (vii. p. 325), and which was enlarged by Augustus. The games instituted by Augustus were celebrated every four years (irevTaervipi's, ludi quinquennales) ; they received the title of a sacred Agon, and were also called Olympia. (Strab. L c.; Dion Cass. li. 1. ; Suet. Aug. 18; Bockh, Corp. Inscr. No. 1720, p. 845; Krause, Olympia, p. 221.)

ACTIO is denned by Celsus (Dig. 44. tit. 7. s. 51) to be the right of pursuing by judicial means (judicio) what is a man's due.

With respect to its subject-matter, the actio was divided into two great divisions, the in personam actio, and the in rem actio. The in personam actio was against a person who was bound to the plaintiff by contract or delict, that is, when the claim against such person was ' dare, facere, praes-tare oportere ;' the in rem actio applied to those cases where a man claimed a corporal thing (cor-poralis res') as his property, or claimed a right, as for instance the use and enjoyment of a thing, or the right to a road over a piece of ground (actus). The in rem actio was called vindicatio ; the in per­sonam actio was called in the later law condictio, because originally the plaintiff gave the defendant notice to appear on a given day for the purpose of choosing a judex. (Gaius, iv. 5.)

The old actions of the Roman law were called legis actiones, or legitimae, either because they were expressly provided for by laws (leges), or because they were strictly adapted to the words of the laws, and therefore could not be varied. In like manner, the old writs in England contained the matter or claim of the plaintiff expressed according to the legal rule.*

The five modes of proceeding by legal action as named and described by Gaius (iv. 12), were, Sacramento, Per judicis postulationem, Per con-dictionem, Per manus injectionem, Per pignoris capionem.

But these forms of action gradually fell into dis­use, in consequence of the excessive nicety required, and the failure consequent on the slightest error in the pleadings ; of which there is a notable ex­ample given by Gaius himself (iv. 11), in the case of a plaintiff who complained of his vines (vites) being cut down, and was told that his action was bad, inasmuch as he ought to have used the term trees (arbores) and not vines ; because the law of the Twelve Tables, which gave him the action for damage to his vines, contained only the general expression " trees" (arbores). The Lex Aebutia and two Leges Juliae abolished the old legitimae actiones, except in the case of damnum infectum [damnum infectum], and in matters which fell under the cognizance of the Centumviri. [centumvirl]

In the old Roman constitution, the knowledge of the law was closely connected with the insti­tutes and ceremonial of religion, and was accord­ingly in the hands of the patricians alone, whose aid their clients were obliged to ask in all their legal disputes. Appius Claudius Caecus, perhaps one of the earliest writers on law, drew up the

* " Breve quidem cum sit formatum ad simili-tudinem regulae juris, quia breviter et paucis verbis intentionem proferentis exponit et explanat, sicut regula juris, rem quae estbreviter enarrat." (Bracton,

ACTIO. 9

various forms of actions, probably for his own use and that of his friends : the manuscript was stolen or copied by his scribe Cn. Flavins, who made it public: and thus, according to the story, the ple­beians became acquainted with those legal forms which hitherto had been the exclusive property of the patricians. (Cic. De Orat. i. 41, pro Murena, c. 11 ; Dig. 1. tit. 2. s. 2. §7.)

Upon the old legal actions being abolished, it became the practice to prosecute suits according to certain prescribed forms or formulae, as they were called, which will be explained after we have noticed various divisions of actions, as they are made by the Roman writers.

The division of actiones in the Roman law is somewhat complicated, and some of the divisions must be considered rather as emanating from the schools of the rhetoricians than from any other source. But this division, though complicated, may be somewhat simplified, or at least rendered more intelligible, if we consider that an action is a claim or demand made by one person against another, and that in order to be a valid legal claim it must be founded on a legal right. The main division of actions must therefore have a reference or analogy to the main division of rights; for in every system of law the form of the action must be the expression of the legal right. Now the general division of rights in the Roman law is into rights of dominion or ownership, which are rights against the whole world, and into rights arising from contract, and quasi contract, and delict- The actio in rem implies a complainant, who claims a certain right against every person who may dis­pute it, and the object and end of the action are to compel an acknowledgment of the right by the particular person who disputes it. By this action the plaintiff maintains his property in or to a thing, or his rights to a benefit from a thing (servitutes). Thus the actio in rem is not so called on account of the subject-matter of the action, but the term is a technical phrase to express an action which is in no way founded on contract, and therefore has no de­terminate individual as the other necessary party to the action ; but every individual who disputes the right becomes, by such act of disputing, a party liable to such action. The actio in rem does not ascertain the complainant's right, and from the nature of the action the complainant's right cannot be ascertained by it, for it is a right against all the world ; but the action determines that the defendant has or has not a claim which is valid against the plaintiff's claim. The actio in personam implies a determinate person or persons against whom the action lies, the right of the plaintiff being founded on the acts of the defendant or defendants: it is, therefore, in respect of something which has been agreed to be done, or in respect of some injury for which the plaintiff claims compensation. The actio miocta of Justinian's legislation (Inst. iv. tit. 6, s. 20) was so called from its being supposed to partake of the nature of the actio in rem and the actio in per­sonam. Such was the action among co-heirs as to the division of the inheritance, and the action for the purpose of settling boundaries which were confused.

Rights, and the modes of enforcing them, may also be viewed with reference to the sources from which they flow. Thus, the rights of Roman citizens flowed in part from the sovereign power, in part from those to whom power was delegated.

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