ACTĬO

is defined by a Roman jurist to be the right of pursuing by judicial means what is a man’s due. The old actions of the Roman law were called leg is actiones or legitimae , either because they were expre ly provided for by the laws of the Twelve Tables, or because they were strictly adapted to the words of the laws, and therefore could not be varied. But these forms of action gradually fell into disuse, in consequence of the exce ive nicety required, and the failure consequent on the slightest error in the pleadings, and they were eventually abolished by the Lex Aebutia, and two Leges Juliae, except in a few cases. In the old Roman constitution, the knowledge of the law was most 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. App. Claudius Caecus, perhaps one of the earliest writers on law, drew up the various forms of actions, probably for his own use and that of his friends: the manuscript was stolen or copied by his scribe Cn. Flavius, 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. After the abolition of the old legal actions, a suit was prosecuted in the following manner:—An action was commenced by the plaintiff summoning the defendant to appear before the praetor or other magistrate who had jurisdictio ; this proce was called in jus vocatio ; and, according to the laws of the Twelve Tables, was in effect a dragging of the defendant before the praetor, if he refused to go quietly; and although this rude proceeding was somewhat modified in later times, we find in the time of Horace that if the defendant would not go quietly, the plaintiff called on any bystander to witne , and dragged the defendant into court. The parties might settle their dispute on their way to the court, or the defendant might be bailed by a vindex. The vindex must not be confounded with the vades. This settlement of disputes on the way was called transactio in via , and serves to explain a pa age in St. Matthew, v. 25. When before the praetor, the parties were said jure agere . The plaintiff then prayed for an action, and if the praetor allowed it ( dab at actionem ), he then declared what action he intended to bring against the defendant, which he called edere actionem . This might be done in writing, or orally, or by the plaintiff taking the defendant to the album [ Album ], and showing him which action he intended to rely on. As the formulae on the album comprehended, or were supposed to comprehend, every po ible form of action that could be required by a plaintiff, it was presumed that he could find among all the formulae some one which was adapted to his case; and he was, accordingly, supposed to be without excuse if he did not take pains to select the proper formula. If he took the wrong one, or if he claimed more than his due, he lost his cause ( causa cadebat ); but the praetor sometimes gave him leave to amend his claim or intentio . It will be observed, that as the formulae were so numerous and comprehensive, the plaintiff had only to select the formula which he supposed to be suitable to his case, and it would require no further variation than the insertion of the names of the parties and of the thing claimed, or the subject-matter of the suit, with the amount of damages, ., as the case might be. When the praetor had granted an action, the plaintiff required the defendant to give security for his appearance before the praetor ( in jure ) on a day named, commonly the day but one after the in jus vocatio , unle the matter in dispute was settled at once. The defendant, on finding a surety, was said vades dare , vadimonium promittere , or facere ; the surety, vas , was said spondere ; the plaintiff, when satisfied with the surety, was said vadari reum , to let him go on his sureties, or to have sureties from him. When the defendant promised to appear in jure on the day named, without giving any surety, this was called vadimonium purum . In some cases, rec up era to res [ Judex ] were named, who, in case of the defendant making default, condemned him in the sum of money named in the vadimonium . If the defendant appeared on the day appointed, he was said vadimonium sistere ; if he did not appear, he was said vadimonium deserui e ; and the praetor gave to the plaintiff the bonorum po e io . Both parties, on the day appointed, were summoned by a crier ( praeco ), when the plaintiff made his claim or demand, which was very briefly expre ed, and may be considered as corresponding to our declaration at law. The defendant might either deny the plaintiff’s claim, or he might reply to it by a plea, exceptio . If he simply denied the plaintiff’s claim, the cause was at i ue, and a judex might be demanded. The forms of the exceptio , also, were contained in the praetor’s edict, or, upon hearing the facts, the praetor adapted the plea to the case. The plaintiff might reply to the defendant’s exceptio . The plaintiff’s answer was called replicatio . If the defendant answered the replicatio , his answer was called duplicatio ; and the parties might go on to the triplicatio and quadruplicatio , and even further, if the matters in question were such that they could not otherwise be brought to an i ue. A person might maintain or defend an action by his cognitor or procurator , or, as we should say, by his attorney. The plaintiff and defendant used a certain form of words in appointing a cognitor, and it would appear that the appointment was made in the presence of both parties. The cognitor needed not to be present, and his appointment was complete when by his acts he had signified his a ent. When the cause was brought to an i ue, a judex or judices might be demanded of the praetor, who named or appointed a judex, and delivered to him the formula, which contained his instructions. The judices were said dari or addici . So far the proceedings were said to be in jure : the prosecution of the actio before the judex requires a separate discu ion. [ Judex . ]