CIVIL

Action

An Action

An action, in the strict sense of the term, ends at the judgment.

 

1. An ” action,” according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of justice to enforce some right against, or to restrain the commission of some wrong by, another party. More concisely it may be said to be the legal demand of a right,” or ” the mode of pursuing a right to judgment “. It implies the existence of parties, of an alleged right, of an alleged infringement thereof (either actual or threatened), and of a Court having power to enforce such a right.

In its wider meaning the term includes both civil and criminal proceedings; it was frequently so used by old writers, and in a modern case the House of Lords recognised that it is “a generic term, inclusive, in its proper legal sense, of suits by the Crown, and comprehending, in legal phraseology. It is, however, generally used in a more restricted or ” popular ” sense as denoting a civil action brought by a subject and commenced by writ or plaint.

2. At the present date there are several statutory definitions.  Thus for the purposes of the Judicature Act, 1873, and the Rules of the Supreme Court, it means a civil proceeding commenced by writ, or in such other manner as may be prescribed by rules of Court, and does not include a criminal proceeding by the Crown. For the same purposes the word suit “is to include ” action,” the old technical distinction between actions at law and suits in equity being thus rendered obsolete, and both ” action ” and ” suit ” are to be included in the still wider term “cause”. For the purposes of the County Courts Act, 1888, the term ”action” is to include every proceeding in the Court which may be commenced as prescribed by plaint, the term “matter” being appropriated to proceedings commenced in any other way.

The term ” action” as used in the Rules of the Supreme Court includes a proceeding by the Attorney-General formerly known as an “information”.

A matrimonial cause or suit, commenced by petition, is not generally known as an ” action,” and an order for payment of costs, forming part of a decree therein, is not a “final judgment” in respect of which a bankruptcy notice can be served.

An Admiralty cause or suit is not an ” action ” within the meaning of the provision of the County Courts Act, 1888 , which gives to either party in an action, where the amount claimed exceeds £5, a cause. right to require a jury; nor is an Admiralty cause or suit in rem, an ” action ” against the owners of the vessel within the meaning of a statute requiring notice of action.

A counterclaim is for most purposes of the procedure, except execution, treated as if it were a cross-action to be tried together with the original action, but it is not an “action” within the meaning of the Judicature Act, or within the meaning of the provision of the County Courts Act, 1888, which deals with the remission of actions of tort to a county court. For the purposes of the Bills of Exchange Act, 1882, and of the Sale of Goods Act, 1893, a counterclaim is specifically included in the word ” action.”

 A “set-off” is treated as an “action” for the purposes of the Limitation Act, 1623, but not for those of the Solicitors Act, 1843.

 An interpleader issue ordered in an action is technically a ” proceeding” in that action, and not itself an “action”. It is, however, sufficiently distinct from the original action to be regarded for many purposes as a separate litigation.

A proceeding commenced by originating summons falls within the definition of an “action ” in the Judicature Act, 1873; but, as it is not an action in which a defence is put in, the rules as to third party procedure do not apply to it. Further, it is not an ” action ” within the meaning of the provision of the Conveyancing and Law of Property Act, 1881, which enables a lessee under certain circumstances to apply for relief against forfeiture in the lessor’s “action,” if any, or in any “action” brought by himself.

A garnishee order, made in collateral proceedings between a plaintiff and a third party, was held not to be ” a decision in the action ” for the purposes of an appeal under the earlier County Court Acts.

A petition is a “pleading” for the purposes of the Judicature Act and Rules of the Supreme Court. It has been said that for such purposes the word “action” does not (though “suit” does) include proceedings upon petition, but a petition for payment out of Court of funds lodged there is clearly not in all cases an ” action or suit ” within the meaning of sect. 42 of the Real Property Limitation Act, 1833. It is doubtful, indeed, whether it is so in any case.

A motion by a trustee in bankruptcy for delivery up of goods taken in execution by a high bailiff was held not to be an ” action ” within the meaning of the provisions of the County Courts Act, 1888, which require notice of action to be given in certain cases.

For the purposes of the Public Authorities Protection Act, 1893 (o), the term ” action ” includes actions in the Chancery Division and actions for injunctions and declarations as well as actions in the King’s Bench Division, or actions for damages, but not an action in rem.

The term “proceeding” is frequently used to denote a step in an action, and obviously, it has that meaning in such phrases as “proceeding in any cause or matter.” When used alone, however, it is in certain statutes to be construed as synonymous with, or including, “action”.

An action, in the strict sense of the term, ends at the judgment. Thus a provision as to the costs of an ” action ” does not affect the costs of an appeal against the judgment therein; so it was ruled that a release of ” all actions ” would not bar execution upon a judgment already obtained.


Halsbury’s Laws of England-Index of the First Edition-1907 to 1917. Vol-1

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