Forms of Action & Writs
A form of action is historically a mode of framing a writ and pleadings, appropriate to a particular damage which the action is intended to redress. In the early Middle Ages, actions at law were commenced by purchasing a writ out of the Chancery. This does not refer to chancery actions which have a separate origin.
The persons seeking relief agreed to pay the King a fine to have justice in his court. He received a writ by which he pursued, recovered or settled the matter.
Writs were issued under the great seal. By the 12th century, they had become fixed in form. The chancery clerks did not regard themselves as having authority to issue a new writ for which they did not have a precedent and accordingly the number of forms of actions were limited.
The Statute of Westminster 1285 provided that clerks in chancery could issue a writ where there was no existing writ, where the matter fell under like law and required a like remedy as another case for which a writ existed.
Real Actions for Land
There were three principal types of action: real, personal or mixed real and personal. Personal actions such as a for a debt or claim for recovery of a chattel or damages, or for injury to property or person.
Real actions involved the recovery of lands or proprietary rights. Mixed actions had elements about about including for example wrongs associated with deprivation of property.
Real actions were used to enforce rights to recover or obtain possession of property or an interest in land. There were several such writs, the principal being actions of right proper, rights in the nature of right to entry and rights to interest in land.
An action of right proper requires the claimant to show a title to the fee simple with seizin in himself through a claim through an ancestor. The action might be between co-owners or between persons who rented the land and kept the claimant out.
An action of entry could be used where the person who had entered into possession of land without force or fraud. Actions as to interest land were to recover easements and incorporeal rights as well as profits a prendre.
By the Forcible Entry Act 1381, an action for forcible entry could be taken provided the entry was not made with strong hand or by multitude of people, but only in a peaceful and easy manner
By Forcible Entry Act 1429 the forcible detaining of lands on which entry had been peaceful was prohibited where the persons who had entered had been less than three years in possession. A right of action was given to the person dispossessed, either by assize of novel deseisin or writ of trespass.
Tort Type Actions
The action of nuisance was in Sherriff’s court Kings Bench or on assize in accordance with the nature of the action. It was later superseded by personal actions on the case for nuisance.
There were two forms of actions for ejectment. One was by which a lessee who was ejected which evolved into a method of trying title to land. Fictitious procedures were used.
Contract Type Actions
Personal actions consisted of claims of a contractual or tortious nature.
Assumpsit allowed recovery of damages for breach of promise expressively implied other than made by deed. It was a development of the action on the case. Formally consideration at the time was necessary to support assumpsit.
Eventually, mutual promises were regarded as sufficient. It was established since Slade’s case 1602 that the creation of a debt implied a promise to repay and an action for assumpit would lie.
A common assumpsit was based debt or movies due. Quantum meruit and qauantum valebat applied in the absence for a specific agreed price or contract, being due for worked on services provided.
A further form of common assumpsit involved cases of mutual promises. They inncluded promises to marry, provide necessaries for the plaintiff or a third person, employ or retain, perform, work, sue or forbear to sue on a debt, sell or exchange goods, bailment of goods, or against carriers or warehousemen, sale and assignment of lands, real and professional securities, accounts of profits of lands or moneys or goods.
Debt Type Actions
Part of the covenant is the remedy for breach of covenant other than a month’s pay money provided in a deed or the claim is for damages for breach of covenant.
An actions of debt recovered definite sums on records, judgments, recognizance, specialties, bills and bonds, agreements to pay money, leases, mortgages, simple contract work, contracts for work done or services rendered and against the sheriff for escape.
Actions on debt and simple contract, so called common counts, including in particular money lent, monry paid at the defendant’s request, money received by the defendant to the use of the plaintiff, money due on an account stated, goods sold and delivered, goods bargained and sold, interest on money due, works done and materials used.
Scire facias was used to obtain execution of a judgment recognizance. Sums recovered were acknowledged to be due.
Actions arising out of tort or ex delicto were the origin of the modern law of tort Derived from the statute of Westminster II, it allowed plaintiffs to recover damages arising out of quasi contracts / restitution or a tort
It allowed recovery for breach of duty collateral to the actual contract. In the latter case, it included most wrongs including public nuisances, keeping of dangerous animals, slander, breach of duty by public officials, conspiracy, negligence and nuisance.
Where a person had a loss or damage committed by the wrong of another, he had an action on the case for damages. This is ultimately adapted for every wrong and grievance which could be suffered by invasion of a right for which there was no other remedy. The principle was extended to cases to become more general. Writs were framed to meet particular circumstances. Two of the most common trover and assumpsit became separate forms of action.
Actions on the case were either actions of trespass on the case or general actions on the case. Trespass on the case required a direct wrong whereas actions on the case were other wrongs, unaccompanied by immediate violence. Actions for waste, deceit and nuisance grew from this category.
In actions of on the case, the wrong was referred to as tort as opposed to trespass. In modern parlance tort embraces civil wrongs generally including civil trespass.
The action on the case for nuisance protected from disturbance from enjoyment of property rights real or intangible. It superseded a real action of writ of nuisance and an action on the case for waste replaces the real action writ for waste.
Detine grew from the contractual action for debt. It was brought to recover specific goods and damages for their detention. Originally it was against the bailee but was relaxed to enable the bailor to sue third parties who had obtained goods from the original bailee. By the 14th century it was not necessary to show a bailment at all. It was extended to all cases where the defendant refused to give up goods to the plaintiff.
Replevin is an action to recover specific goods which have been wrongfully distrained or wrongfully taken from the claimant’s possession. If the sheriff to whom the writ was directed made a return that the goods were taken away or no longer existed and that no one showed them where they were, the claimant could have a order to have an equivalent number of goods delivered to him. Those goods could not be replevied as long as the original goods were not restored.
In the action if the defendant acknowledged the taking but denied the injustice of it and gave good cause, both parties became claimants one to have damage for the taking and other to have a return of the goods replevied.
Trespass was the remedy for injuries caused by immediate violence whether to real property or goods. Trespass to the person could lie for assault, battery, wounding and false imprisonment.
Actions could be tried by justices in the sheriff’s county courts. The action of trespass is one of the earliest forms of action. From it there developed actions on the case, for trover and assumpsit.
An ejectment was originally a personal action in trespass to real property. All other violent wrongs to real property could be subject of an action for trespass. It also lay for voluntary waste of a tenant at will for cutting down trees, fishing in ponds and taking resources of land.
An action for trespass to personal property arose where goods were violently taken away and detained. Action could be taken for trespass, detinue, trover, or if they were converted into money, the tort could be waived, and an action taken in assumpsit for money had and received to the use of the claimant.
Trover was an action on the case which became a separate form of action. It was sought by person who had lost personal property against the finder. By a legal fiction the action lay when the person sought to recover damages from a defendant who had converted his goods to his own use. It was based on the fiction that the defendant had found the goods.
Trover was based on property and trespass and possession of goods. To find a claim for trover the claimant must prove absolute or special title to the goods and right to possession.
Actions Against Public Officials
There was an action of account against public officers to compel them to render an account of what they received and spent in their office.The actions of error and false judgment were the medieval methods of prosecuting appeals from judgments of superior and inferior courts respectively.
19th Century Reforms
A Royal Commission was appointed in 1828 to enquire into the course of proceedings in actions and civil proceedings used in the superior courts. The first Act arising from the Commission’s work was the 1832 statute abolishing many of the fictions around writs. In personal actions there would be a common form of writ which would state the nature of the action.
Further step towards simplification was taken in the Real Property Limitations Act 1832 which abolished all sixty forms of real action leaving four forms of action for real and mixed actions.
A Royal Commission was appointed in 1850 to report on common law. It recommended abolition of all forms of actions and the Common Law Procedure Act 1852 and Common Law Procedure (Ireland) Act, 1853 in Ireland followed the Commission.
It did not abolish all forms of action. It did provide that no forms of action need to be mentioned in the writ of summons and that all forms of action except ejectment or repleven might be commenced in the single form of action. The only remaining issue relating to actions was the limitation period.
The Common Law Procedure Act 1860 abolished the remaining real action writs and substituted the writ of summons. The Judicature act ended forms of action by enacting that in the writ of summons or in its endorsement it is not necessary to the state the precise cause of complaint or precise relief claimed.
The modern form of action is commenced by a summons in the statutory format provided by the court rules. It is not necessary to have notional or stereotype facts written on the pleading in some prescribed form. Pleadings must simply show the facts.
Equitable Remedies in Common Law Courts
An action for injunction was introduced by the Common Law Procedure Act at common law. A plaintiff was allowed to claim an injunction in his writ.
An order of mandamus was permitted by the Common Law Procedure Act 1854. The claimant in an action may endorse a writ of mandamus with or without further demand.