Early Procedure

Table of Contents

Form of Action & Writs

The early common law emphasised the form of legal action. The system of forms of action and writ is a key characteristic of medieval English law. The influence of the form was so great that the actual substantive law was subordinate to it.

A form of action encompasses the writ by which proceedings are started, the events leading to final judgment or order and in some cases the judgment. Each form of action had its own procedure. The forms of action continued to be central to common law until the 19th century.

A writ is a document issued under the authority of the King. It is authenticated by a seal. The writ is in the format of an order or command. Writs were used for both juridical and administrative purposes.

A writ, for example, might state “The King to the Sheriff of Nottingham; greeting We command you to execute justice without delay against A so that he is so justify and strictly rendered to B the 15 shillings which he owes him as it has been said and A may reasonably show he ought, that we may hear no more clamour for default of justice thereof”.

The writ was obtained from an office under the control of the Chancellor. The relevant writ will determine the procedure, and this may be more important than the right and substantive justice. A default in procedure may lead to the loss of the appropriate remedy.

At one time, the legal maxim read that “where there is a remedy there is a right”. The implication is that if there is no writ, there is no legal action.

Types

Legal actions were divided into three main types. Real actions related to real property and questions concerning title or ownership of land. Personal actions related to debt and claims for damage with injury against relating to a person’s property. Mixed actions involve both.

By the 13th century an increased number of writs were available. The availability of writs determined the availability of rights and the range of matters in respect of which a remedy might be given.

The range of writs expanded in accordance with the demand to obtain justice in particular matters by the end of the thirteenth century. The new forms of writ were invented where a wrong was complained of without a remedy.

The number of writs increased from around 50 from in the time of Henry III to 500 in the time of Edward I with the corresponding extension of the King’s courts. This increase in legal power was opposed by the Barons.

Limits in New Writs

Following pressures from the Barons, the provisions of Oxford in the mid-13th century provided that no new writs were to be issued without the permission of the King and the Great Council. The Great Council was under the control of the Barons.

Writs were therefore limited to recognised writs and writs issued as of course. The issue of writs which might be varied in respect of the plaintiff’s circumstances was prohibited. The available legal actions were limited by the available forms of action.

The Statute of Westminster II 1285 provided that clerks in the chancery might vary writs where the facts were such as would have allowed the issue of a recognised writ but did not allow new rights and remedy. Accordingly, existing writs might be varied but new ones could not be created.

Older Feudal

There also existed other feudal courts forms of proof and procedures including trial by ordeal which still persisted. However, the King’s courts were more sophisticated . There were professional judges. A jury might be empanelled. Their orders might more readily be enforced. From the time of Henry II, it was established that the King’s writ was essential to the commencement of action concerning freehold land.

A summon by a feudal or communal court must be obeyed. Failure could lead to the withdrawal of the protection of law from the person summoned, so they became outlaws. The plaintiff and defendant put their case in formal terms. The defendant may be obliged to produce security. Plaintiffs and defendant’s cases were supported by witnesses who swore the genuineness of complaint.

Proof in such courts might be by testimony, wager of law or battle. Witnesses swore to the truth and the number of witnesses would be relevant to the credibility. A wager of law was an oath by one party supported by others who swore to the truth of his own. He may be obliged to produce compurgators. The oath would have to be taken formally and solemnly and correctly.

The solemnity of the oath reflected the religious fear of perjury. In due course, the wager of law lost credibility and by the early 19th century was gone in favour of testimony. The oath would taken a very formal manner.

Trial by a battle was used in Norman time. The parties could be required to do battle personally. Where an infant, disabled or older person was involved, a hired champion could be used. Each party took an oath as for the righteousness of their claim or defence and then took another oath at the place of battle.

The fight continued until nightfall in which case the plaintiff is considered lost or until the defendant submitted. The outcome of the battle was treated as divine adjudication. The procedure was abolished formally at the beginning of the 19th century but had long since become obsolescent.

Procedure in King’s Courts

The writ commanded the defendant to appear. Failure to appear might be treated as contempt of the writ and leave the summoned party liable to a penalty.

The original writ was issued under the seal of the chancellor. In the course of proceedings judicial writs might be issued, for example, the summons of witness. Such writs issued from judges and were sealed in the chancery.

The trial proceedings were formal. Case would have to be established by an established method of proof. Jury trial followed in later times. The procedure involved the use of fictions in some cases. A further characteristic was the development of oral and written pleadings.

Assizes

The Grant Assize provided that the sheriff must summon four knights who in turn chose 12 knights to decide by sworn verdict who had the greater right of the land. This was an early step in evolution towards trial by jury.

The Petty Assizes provided summary remedies to those who disposed, dispossessed or freehold land. The claimant could be put back in possession. A better title would have to be asserted by a writ of right.

Writ of Right

By the time of Henry II, it was established that a person need not answer a claim concerning land held by free tenure without unless writ of right issued. Disputes involving owners at the lower levels in the feudal pyramid involved a different procedure at a lower level or county court. The disputes between those at the upper level were heard in the King’s court. The procedures were very slow.

In the 12th century, defendants in a writ of right in the King’s court, a choice between trial by battle and decision by inquest existed. This ordinance so permitting was known as the Grand Assize.

Writs for Possession

Novel desseisin was a complaint to the King that the complainant had been unjustly deseised of his freeholds properties and request that he might be put back into seisin. A writ issued to the sheriff ordering empanelment of 12 freemen to view the land and report to the King’s judge as whether he had been unjustly deseised.

If they so found, the claimant was put back into seisin. The right did not deal property rights which is the subject of the writ of right. It had to be brought within a certain time.

The writ of mort d’ancestor was available in the case of the death of a parent, sibling, uncle or aunt. It allowed a person who had obtained seisin upon a death of a predecessor but was wrongly deseisied to be restored on seised in accordance with his claim.

Writs of entry were developed in the 13th century. They were granted in favour of those from whom possession of land was wrongly withheld. The writ alleged the defect in the defendant’s title such as to justify a hearing in the King’s court. They were abolished in 1833 by the Limitation Act.

Writs of Trespass

The writ of trespass developed into a number of different types of action. It issued where a wrong was committed with force and arms against the King’s peace.

There were a number of types of trespass action including

a trespass comprising an injury to the claimant accompanied by force and violence
A trespass involving unlawful entry or breaking into claimant’s land
Wrongful taking of chattel

A claimant might claim damages in the way of civil proceedings. The breach of the peace involved had a quasi-criminal nature leading to punishment including fine and imprisonment.

The breach of peace alleged in the writ of trespass was a plea of the crown requiring payment of a fine to the King and resultant source of revenue.

Later Development

In the 15th and 16th century, the deficiencies in the system of writs became increasingly problematic. A variant of trespass known as an action in the case emerged and was the foundation of the modern law of tort and contract.

An action on the case avoided the formulae of older writs and pleaded the plaintiff’s actual case. Special writs of trespass on the case developed which were given particular names. An action without a name was referred to as an action upon the special case.

Trover and assumpsit are two important forms of trespass action. Trover is a claim for conversion of property to the defendant’s use. The claimant alleged that he possesses goods and lost them. It is alleged that the defendant found them and converted them to his use. The defendant could not dispute the loss but could challenge the claim of having converted them.

Trover could not be maintained by interference with goods alone. It ultimately covered cases of unlawful taking and unlawful detention, becoming modern personal property trespass and detinue.

Assumpsit developed from the trespass on the case and was an early forerunner of contract law. Originally it applied to misfeasance where a person causes loss to another by the manner in which he has carried out something he had agreed to do so.

There was no trespass and so there was no interference with possession. Through the 15th and 16th century, it was widened to include malfeasance and non-feasance Ultimately every unperformed contract in itself lies in assumpsit. Assumpsit replaced the writ of debt.

Legal Fictions

Legal fictions were a feature of the early common law. Legal fictions involve a procedure a basis which was known to be untrue but was not permitted to be denied. Fictions extended the jurisdiction of courts and the remedies available. They also bypassed redundant forms of legal action.

An example of legal fiction involved an exchequer issued writ by which it is claimed that the claimant lent money to the defendant and the claimant was unable to repay a fictitious debt to the crown in the same amount because of the debt. The Exchequer’s jurisdiction was limited to Crown’s revenues and accordingly by this fiction, it extended into private debt.

Pleadings

In the early years of the common law, pleadings were verbal and proceeded on sworn statements of the matters in issue. In due course, pleadings were addressed to the court which was called upon to settle the dispute. Ultimately pleadings developed through an assertion through counsel that the facts alleged entitled the claimant to judgment demanded on the writ.

The defendant countered by putting forward alternative or countervailing facts. Pleadings took place before the judge without a jury. Judges might then accept a plea which was recorded in the plea rolls.

The above procedure was changed in the 15th and 16th century. Parties were required to make their claims and defences by way of written proceedings. Pleadings define the dispute. Technicalities peculiar to written proceedings also developed. Pleadings which were accepted were recorded in the court rolls. The person drafting the pleadings must express the laws in the terms of the relevant form of action and also to reduce issues in dispute to a terms which the jury could either accept or reject.

19th Century Reforms

The development of common law under the writ system caused it to develop the complexities and rigidities which might lead to injustice. Eventually the chancellors provided new remedies through the chancery and court of equity.

Writs were expensive and were only available in certain cases and had limited ability to embrace new circumstances. The writ system became more technical so that the rights in issue became secondary to the right writ. A small error in the writ or in pleadings could deprive the claimant of his remedy. Technical rules developed.

Legislation in the early 19th century abolished most of the pre-existing forms of action and addressed both issues of rigidity and equity in common law. The Uniformity of Process Act 1832 abolished many of the fictions in legal actions. Personal actions were commenced by a common writ stating the nature of the claim.

The Real Property Limitation Act abolished 60 forms of real action, leaving three. The Common Law Procedure Acts 1852 to 1860 abolished remaining real action.

The abolition of forms of action was completed in England 1875 and 1877 in Ireland.