Page:The American Cyclopædia (1879) Volume I.djvu/97

ACTION United States. But in New York, and other states which have imitated its procedure, the action is commenced by a simple notice or sum- mons 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 re- spect 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 def- inition suggests the chief division of actions, namely, into civil and criminal actions. A civil action may be brought by a private per- son; 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 re- lates to a criminal offence only when he has suffered from it some injury peculiar to him- self. Thus no private person, but only the people, can bring an action for a public nui- sance ; but if the public wrong inflicts a special injury on the individual, he may have his pri- vate 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, es- pecially 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 un- derstood, 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 es- timation 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 es- sential 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 ACTON 77 a citizen against a sovereign without its ex- press 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 charac- ter 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 nu- merous 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 remedj or relief which can be sought in civil causes- But the characteristics of the old forms of ac- tions remain, nevertheless, and as they must, they still determine the forms of the one ac- tion ; so that its characteristic shapes are almost as numerous as the old forms of which it has extinguished the names. ACTIUM (now La Punta), a promontory and village in Acarnania, at the entrance of the Ambracian gulf, near which Octavius, afterward Augustus, vanquished Mark Antony, Sept. 2, 31 B. C., in a great naval engagement which decided the question of universal dominion, and made the victor emperor. The generals had nearly equal armies on opposite sides of the bay, but these took no part in the combat. Octavius had 260 ships, Antony 220. Cleo- patra reinforced Antony with 60 ships, and he imprudently offered a naval battle to Octavius. Agrippa, the admiral of Octavius, by a rapid manoevre, soon put to flight Cleopatra with her galleys. The voluptuous Antony followed her with a few ships. His fleet, deserted by its leader, surrendered, and his army did the like after waiting seven days for his return. ACTON, Sir John Francis Edward, Neapolitan prime minister, born in 1736, died in Palermo, Aug. 12, 1811. He has been often erroneously called Joseph, the name of his brother. His immediate ancestors were London merchants, descendants of an English country gentleman, Edward Acton, who was created a baronet on account of his fidelity to Charles I. Sir John, who inherited the title in 1791, was in the naval service successively of France, Tuscany, and Naples, where he became a favorite of Queer Caroline, and rose rapidly to the post of pre- mier of King Ferdinand. He had intimate relations with the English ambassador and his wife, Sir William and Lady Hamilton, and was an inveterate enemy of the French revolution. His administration was despotic and cruel. In 1798 he accompanied King Ferdinand in