ACTIO PERSONALIS - The Law Mind Legal Dictionary

ACTIO PERSONALISAuthored

The Law Mind • 861 words

Definition

A Latin phrase meaning "personal action." In both civil law and common law traditions, actio personalis denotes an action brought against a specific person to enforce a personal right or obligation — as distinguished from actions directed against property or things (actiones in rem). The term is most closely associated with its companion maxim, actio personalis moritur cum persona ("a personal action dies with the person"), which historically barred the survival of tort claims after the death of either the plaintiff or the defendant.

Common Confusion

Actio personalis is not identical to the civil law term actio in personam, though the two overlap substantially. Actio in personam is the standard civil law formulation for a personal action; actio personalis is a variant form that appears infrequently in classical Roman sources but was adopted freely by Bracton and subsequent common law writers. The distinction matters for historical research: encountering actio personalis in a medieval or early modern text signals common law influence or adaptation, not pure Roman civil law usage. The associated maxim, actio personalis moritur cum persona, is sometimes treated as interchangeable with actio personalis itself — it is not. The maxim is a derived rule of law; the base term is simply the category of action to which the maxim applies.

Why It Matters in Research

This term operates on two levels in the Law Mind corpus, and researchers should not conflate them.

First, as a category label, actio personalis identifies a class of civil actions. Sources from the medieval period through the early modern era use the term to organize procedural taxonomies. When Bracton deploys the phrase, he is translating Roman classificatory logic into common law framework — a translation that was imperfect and contested. Researchers working in that period should track how the term shifts in meaning as it moves from civilian to common law writers.

Second, and more practically, the phrase appears almost always in connection with the survival maxim actio personalis moritur cum persona. This maxim had enormous procedural consequence: it extinguished tort claims at death, preventing both executors from suing and plaintiffs from recovering against a deceased tortfeasor's estate. The maxim was substantially modified by statute in England beginning with the Statute of 25 Edward III, c. 5, and later by the Law Reform (Miscellaneous Provisions) Act 1934. American jurisdictions addressed the same problem through survival statutes, which vary significantly by state. Researchers encountering the phrase in a 19th-century American case or treatise should immediately ask: is this the pre-statutory common law rule, or is the author already accounting for legislative modification? Bouvier's treatment signals this complexity explicitly, noting that "the law on this point has been considerably modified by statute."

Historical sources indexed under actio personalis may therefore be relevant to research on survival of actions, wrongful death, executor and administrator powers, and the scope of personal liability — not merely to Roman law taxonomy.

Historical Dictionary Support

The four source dictionaries present a consistent account of the term's meaning but offer varying depth on its practical significance.

Black's (both editions) and Burrill treat actio personalis primarily as a classifier, noting that it is the common law writer's formulation where the civil law would say actio in personam. All three cite the Institutes (4.6.8; 4.11) and Bracton's Folio 102a and 159b as the textual lineage. This is accurate and useful for establishing provenance.

Bouvier goes further. He flags the maxim actio personalis moritur cum persona as the operationally significant outgrowth of the term, and his entry on the maxim is substantially longer than his entry on the base term — reflecting where the actual legal weight fell in practice. Bouvier also notes the equitable construction of the Edward III statute that expanded executor rights over time, and acknowledges that the strict application of the maxim required narrowing the definition of "personal actions" to remain coherent. This is a more sophisticated treatment than Black's or Burrill offer.

What the historical dictionaries collectively understate is the degree to which American survival statutes rendered the common law rule obsolete by the late 19th century. A researcher relying solely on these dictionary entries would not appreciate that actio personalis moritur cum persona was, by the time these dictionaries were published, already a rule in transition or retreat across most American jurisdictions. The dictionaries describe the rule without fully signaling its diminishing force.

Jurisdictional Note

The maxim actio personalis moritur cum persona — the most consequential legal rule associated with this term — was abrogated or modified to varying degrees by English and American legislatures beginning in the medieval period and accelerating through the 19th century. No uniform American rule exists: survival of tort actions depends entirely on each jurisdiction's survival statute. Researchers should not assume the common law rule governs without checking the applicable statute.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Personal Actions; Survival of Actions; Actio in Personam

ACTIO PERSONALISmain

Black's Law Dictionary • 1891

In the civil and common law. A personal action. The ordinary term for this kind of action in the civil law is actio in personam, (q. v.,) the word personalis being of only occasional oc- H currence. Inst. 4, 6, 8, in tit.; Id. 4, 11, pr. 1. Bracton, however, uses it freely, and hence the personal action of the common law. Bract. fols. 102a, 1596. See PERSONAL

ACTIO PERSONALISmain

Bouvier's Law Dictionary • 1928

A personal action. The proper term in the civil law is actio in personam. ACTIO PERSONÁLIS MORITUR CUM PERSONA (Lat.). A personal ac- tion dies with the person. In Practice. A maxim which formerly expressed the law in regard to the surviv- ing of personal actions. To render the maxim perfectly true, the expression "personal actions" must be re- stricted very much within its usual limits. In the most extensive sense, all actions are personal which are neither real nor mixed, and in this sense of the word personal the maxim is not true. A further distinction, moreover, is to be made between personal actions actually commenced and pending at the death of the plaintiff or defendant, and causes of action upon which suit might have been, but was not, brought by or against the deceased in his lifetime. In the case of actions actually commenced, the old rule was that the suit abated by the death of either party. But the inconven- ience of this rigor of the common law has been modified by statutory provisions in England and the states of this country, which prescribe in substance that when the cause of action survives to or against the personal representatives of the deceased, the suit shall not abate by the death of the party, but may proceed on the substitution of the personal representatives on the record by scire facias, or in some states, by simple suggestion of the facts on the record. See 6 Wheat. 260. And this brings us to the consideration of what causes of action survive..

ACTIO PERSONALISmain

Bouvier's Law Dictionary • 1928

8 M. & W. 854; 58 Ν. Η. 532; 58 Ν. Η. 517. And it has been held that for the breach of an implied promise of an attorney to inves tigate the title to a freehold estate, the ex- ecutor of the purchaser cannot sue without stating that the testator sustained some actual damage to his estate; 4 J. B. Moore 532. But the law on this point has been considerably modified by statute. On the other hand, where the breach of the implied promise has occasioned damage to the personal estate of the deceased, though it has been said that an action in form ex contractu founded upon a tort whereby damage has been occasioned to the estate of the deceased, as debt against the sheriff for an escape, does not survive at common law, 1 Ga. 514 (though in this case the rule is altered in that state by statute), yet the better opinion is that, if the execu- tor can show that damage has accrued to the personal estate of the deceased by the breach of an express or implied promise, he may well sustain an action at common law, to recover such damage, though the action is in some sort founded on a tort; Wms. Exec. 676; citing, in extenso, 2 Brod. & B. 102; 4 J. B. Moore 532. And see 8 Woodd. Lect. 78. So, by waiving the tort in a tres- pass, and going for the value of the prop- erty, the action of assumpsit lies as well for as against executors; 1 Bay 58. A claim for money paid as usury survives against the estate of the person to whom it was paid; 27 Vt. 396. In the case of an action on a contract commenced against joint defendants one of whom dies pending the suit, the rule varies. In some of the states the personal representatives of the deceased defendant may be added as parties and the judgment taken against them jointly with the sur- vivors; 27 Miss. 455; 9 Tex. 519. In others the English rule obtains which requires judgment to be taken against the survivors only; and this is conceived to be the better rule, because the judgment against the ori- ginal defendants is de bonis propriis, while that against the executors is de bonis testa- toris: 119 Mass. 361. Where action is pending against two partners, and the death of one is not suggested before judgment, the judgment is a lien on the partnership assets and binds the surviving partner per- sonally, 18 S. E. Rep. (S. C.) 268, In an action commenced against direc- tors, where one dies after the suit com- menced, his executor need not be joined; 158 Pa. 6168. TORTS.-The ancient maxim which we are discussing applies more peculiarly to cases of tort. It was a principle of the common law that, if an injury was done either to the person or property of another for which damages only could be recovered in satis- faction, where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty, -the action died with the person to whom or by whom the wrong was done. See Wms. Exec. 668; 3 Bla. Com. 302; 1 Saund. 216, 217, n. (1); 3 Woodd. Lect. 73; Viner, Abr. Executors 123; Comyn, Dig. Admin- istrator, B. 18. But if the goods, etc., of the testator taken away continue in specie in the hands of the wrong-doer, it has long been decided that replevin and detinue will lie for the executor to recover back the specific goods, etc.; W. Jones 173, 174; 1 Saund. 217, note (1); 1 Hempst. 711; 10 Ark. 504; or, in case they are sold, an action for money had and re- ceived will lie for the executor to recover the value; 1 Saund. 217, n. (1). And ac- tions ex delicto, where one has obtained the property of another and converted it, sur- vive to the representatives of the injured party, as replevin, trespass de bonis asport. But where the wrong-doer acquired no gain, though the other party has suffered loss, the death of either party destroys the right of action; 3 Mass. 351; 6 How. 11; 1 Bay 58; 4 Mass. 480; 1 Root 216. Successive innovations upon this rule of the common law have been made by various statutes with regard to actions which sur- vive to executors and administrators. The stat. 4 Ed. III. c. 7, gave a remedy to

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