Action, the formal demand of one's right from another in a court. In the Roman law action is defined to be either the right which one has of seeking in a judicial tribunal that which is his due, or the pursuit itself, or the exercise of the right. In our law the pursuit of the remedy is properly the action, and the right on which it rests is the cause of action. In its usual sense the word describes all the proceedings incident to the demand of the right, including the adjudication of the court upon it. - As actions are appeals to the supreme power of the state, to decide upon the matters in controversy between the parties, they are, except where recent reforms in procedure have changed the practice, commenced by writs issued out of courts, in the name of the sovereign, or of the judges as his representatives, calling upon the defendant to come into court and answer. Such writs still remain in many of the states and in most of the courts of the United States. But in New York, and other states which have imitated its procedure, the action is commenced by a simple notice or summons signed by the plaintiff or his attorneys; though it is not to be understood that the theory of the action, as invoking or setting in motion the sovereign power of the state, is in any respect changed. - The New York code defines an action as 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 offence.
This definition suggests the chief division of actions, namely, into civil and criminal actions. A civil action may be brought by a private person; but in criminal actions in the proper sense, namely, proceedings for the punishment of crimes, the state or the people, that is, the sovereign power, is the plaintiff or prosecutor. An individual can sustain an action which relates to a criminal offence only when he has suffered from it some injury peculiar to himself. Thus no private person, but only the people, can bring an action for a public nuisance; but if the public wrong inflicts a special injury on the individual, he may have his private action for that. In respect to the higher grades of criminal offences, it is the general principle at least of the law, though no very certain rule about the matter can be given, especially with reference to the American law, that the private remedy for the especial injury must be postponed until after the individual has done his duty to the public by setting afoot a public prosecution of the crime. - It is said, in general terms, that for every wrong the law provides a remedy by action; and, rightly understood, this is true. But there is not a remedy or action for every injury.
It is only for those acts which are injuries in the estimation of the law, or, in other words, which are wrongs in a legal sense, that the law gives redress by actions. As the Latin phrase is, there may be damnum absque injuria, that is to say, damage or injury, but yet no legal wrong. So where the harmful act is done by one in the exercise of a function or authority conferred by the sovereign power, and within its limits, and without any fault on his part or for his personal benefit, no action lies against him for the injury. Thus no action will lie against a judge of a court of record for an act done by him in the exercise of his judicial of-« fice; and this is true even if he acts without jurisdiction in fact, unless he knew, or had the means of knowing and so ought to have known, the defect of jurisdiction; and it lies upon the plaintiff in any such case to prove these essential facts. This principle applies to the case of all persons intrusted with the performance of public duties or functions, and exercising them without any personal emolument, who, without malice, negligence, or other fault in the exercise of such duties, inflict injury upon individuals. - No action can be maintained by a citizen against a sovereign without its express consent; therefore, as a rule, no suit can be brought by an individual against the state or the United States. Causes of action against these must be presented by petition or some proceeding of that character.
The United States receives demands of this character in its court of claims. Nor will the courts of a state ordinarily entertain actions against foreign states or sovereigns, for anything done or omitted by them in their public character. Claims of this sort are properly the province of diplomatic negotiation. - As injuries are numerous and various, so the character and forms of actions are manifold. Many of the old-fashioned forms, which made certain technical tests essential to their maintenance, have been wisely abolished. It has been attempted in New York to get rid of all distinctive forms. There, every other than a criminal action is a civil action. There is no other or specific name for it, and the design of the code is to give by this single action every kind of remedy or relief "which can be sought in civil causes But the characteristics of the old forms of actions remain, nevertheless, and as they must, they still determine the forms of the one action; so that its characteristic shapes are almost as numerous as the old forms of which it has extinguished the names.