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Of actions and what an action is.

[003] 1We have spoken above of persons and things. Now we must turn to actions and
[004] see what an action is2 and whence it arises, into what divisison actions fall, how an
[005] action is brought and formulated, and how, after being brought, it is supported,
[006] and having been supported, proved. 3What is an action? It is nothing other than
[007] the right of pursuing in a judicial proceeding what is due to one. The word ‘right’
[008] is used to distinguish it from cases where there is no right,4 or those where, though
[009] one has right and an action it may be avoided by the interposition of a valid exception.
[010] 5Or ‘right’ is used to differentiate an action from matters dealt with by the
[011] judge ex officio (his powers in this respect being very wide)6 rather than by action,7
[012] for many matters are dealt with by a judge acting ex officio which do not proceed
[013] by right of action. 8A judge's ex officio act is not a matter of jus but rather a matter
[014] of fact. If it should be asked why one is said to pursue by action when he brings
[015] an actio iniuriarum, since there the sum due in damages is fixed by the judge ex
[016] officio, I answer, ‘When suit is brought on an injuria the proceeding may well be
[017] termed an action, the reason being because the plaintiff has a right to complain
[018] and claim and something is due to him.’ If you ask ‘what?’ I reply, ‘The amount
[019] at which he assesses the wrong.’ For before the plaintiff may claim in a judicial
[020] proceeding he may estimate the wrong done him,9 that is, what damage he has
[021] sustained, taking into account the character of the act and the extent of the wrong,
[022] which estimate, if it is inaccurate or exorbitant, 10the judge, acting ex officio, is permitted
[023] to moderate and reduce,11 but not to increase, unless the defendant
[024] freely throws himself on the plaintiff's mercy. The estimate and the taxation of
[025] damages will then be at the plaintiff's discretion and the judge's duty and power to
[026] tax them is taken away. 12The word ‘pursuing’ is used to distinguish an action from
[027] an exception, by which we do not pursue another but rather, when pursued by
[028] another, defend ourselves, though in putting forward an exception we assume the
[029] role of plaintiff. The words ‘in a judicial proceeding’ are used to distinguish an
[030] action from matters we pursue not in a court but outside it, as when we pursue a
[031] thief who steals


1. Br. and Azo, 134-40

1-2. Azo, Summa Inst. 4.6. pr.

3-4. Ibid., no. 1; ‘ius,’ as Azo

5-7. Ibid., no 2.

6. D. 2.1.1.; Tancred, 94, Drogheda, 36

8-9. Azo, Summa Inst. 4.6, no. 3; infra 326

10-11. Ibid.; infra 296, 438; iv, 363

12-13. Azo, Summa Inst. 4.6, no. 3; infra 438

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