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Cl. 7 N.Y. 476 (1852); Muser v. Robertson, 17 F. 500

(1883). -

•2. Bliss, A Treatise Upon the Law of Pleading Un­der the Codes of Civil Procedure, c. XIII, Rules Governing the Statement, ~ 174—215 (3d ed. by Johnson, St. Paul, 1894).

53. N.Y.Laws 1848, c. 379, effective on July 1.

Sec. 5


RELATION OF PLEADING TO OTHER SYSTEMS

23

fact, express statutory provisions aside, it may be said that if a Lawyer, in a Complaint under the Code, frames his Allegations of Fact in a manner to meet with the require­ments of Stating a Cause of Action or De­fense at Common Law, he need have no fear of being thrown out of Court on Demurrer because of some Formal or Substantive De­fect in his Pleadings.63 Indeed, the prophetic words of Professor Thomas M. Cooley seem as true today as when originaijy written, when, in referring to the relation of the New to the Older System, he declared:


“The works of Common Law Pleading have not been superseded by the New Codes which have been introduced. . . . A

-careful study of these works is the very best preparation for the Pleader, as well where a Code is in force as where the old Common-Law Forms are still adhered to. Any expec­tation which may have existed that the Code was to banish technicality, and substitute such simplicity that any man of common un­~erstanding was to be competent, without le­gal training, to present his case in due Form

-of Law, has not been realized. After a trial of the Code System for many years, its friends must confess that there is something more than Form in the Old System of Plead­ing, and that the Lawyer who has learned to state his case in a logical manner after the Rules laid down by Stephen and Gould, is better prepared to draw a Pleading that will stand the test on Demurrer than the man who, without that training, undertakes to tell his story to the Court as he might tell it to a neighbor, but who, never having accustomed himself to a strict and logical presentation of the precise Facts which constitute the Le­gal Cause of Action or the Legal Defense, is in danger of stating so much or so little, or

-of presenting the Facts so inaccurately, as to leave his rights in doubt on his own showing. Let the Common-Law Rules be mastered, and



the work under the Codes will prove easy and simple, and it will speedily be seen that no time has been lost or labor wasted, in coming to the New Practice by the Old Road.” 04
Relation to the New Federal Rules of Civil Procedure

TOWARD the close of the Nineteenth Cen­tury, the American Bar Association conclud­ed that Legislative Control of Practice was highly inefficient and that the Federal Con­formity Act had produced no Real Conformi­ty between State and Federal Practice. In this situation the Association placed its influ­ence behind a bill in Congress which provid­ed for turning the Federal Rule-Making Pow­er over to the Supreme Court of the United States. After much agitation and much backing and filling, by the Act of June 19, i934,~ Congress gave the Supreme Court power “to prescribe, by General Rules, for the District Courts of the United States and for the Courts of the District of Columbia, the Forms of Process, Writs, Pleadings, and Motions, and the Practice and Procedure in Civil Actions at Law.”°6 The Rules as formu­Jated under this Act did not modify in any way the substantive rights of litigants. The Act further provided that the Court might “unite the General Rules prescribed by it for Cases in Equity with those in Actions at Law so as to secure One Form of Civil Action and Procedure for both.” 67 The right of Trial by Jury as at Common Law and decl?.red by the Seventh Amendment to the Constitution was preserved.


From the nature and character of the pro­visions of the Act of 1934, and the Rules of Civil Procedure as promulgated thereunder by the Supreme Court in 1938, it is clear that
04. Shipman, Code Pleading: The Aid of the Earlier Systems, 7 Yale Li. 197, 200 (1898), Quoting Pro­fessor Cooley.
65. C. 851, fi 1, 2, 48 Stat. 1064, 28 U.S.C.A. fl 723b,

723e.
66. *1, 48 Stat 1064, 28 U.S.O.A. { 723b.


Il. *2, 48 Stat 1064,28 V.S.C.A. { 723e.

43. Shlpman, Code Pleading: The Aid of the Earlier

Systems, 7 Yale Li. 197, 205 (1898).

24

BASIS OF MODERN REMEDIAL LAW

Ch. 1

in scope and content they were patterned after the provisions of our various State Codes and Practice Acts, which, as previous­ly indicated, were founded on the fundamental principles of Common-Law Procedure. There are, however, two thief differences. First, under the New System in the Federal Courts and as adopted in Several States, the control of Pleading and Practice by Rule of Court gives a flexibility in the application of the Procedural Law and in its adaptation to any need for change growing out of new or un­foreseen conditions, as opposed to the Older System of Code Pleading, which more or less placed procedure in a legislative strait-jacket, leaving little room for development to meet changing social conditions. Second, under the Codes, attempts to simplify and reduce the number of provisions regulating Pleading did not meet with success. For example, the New York Civil Practice Act contained some 1578 Sections, Supplemented by 301 Rules of Civil Practice. In 1938, when a compari­son was made between the New Federal Rules of Civil Procedure and the New York Code, it appeared that it took only 86 Federal Rules to cover substantially the area occupied by 1100 of the 1578 sections of the Civil Prac­tice Act and 133 of the 301 New York Rules of Civil Practice. And finally, it may be add­ed that the spirit and tendency of the New System of Procedure as represented by the Federal Rules of Civil Procedure, and as reg­ulated by the Judges, is in the direction of the Common Law, as is evidenced, to give but a single example, by the provision that all Ac­tions must be instituted through a Clerk of a Court and by Authority of a Court, as at Common Law, as opposed to the Code Meth­od of Commencing an Action by an Individ­ual or an Attorney serving a Summons and Complaint upon the defendant.


TIlE STATUS OF COMMON-LAW PLEAD­ING UNDER TIlE CODES

Acts and Federal Rules of Civil Procedure. But even after a Century of Development un­der the Codes we still find that Common-Law Pleading survives in fact or in theory. On the basis of the degree of Common-Law Pleading which still prevails, the states fall into five groups:

The Common-Law States;

The Quasi Common-Law States;

The Code States;

The Rules of Court States;

Civil Law States,
IN the early part of the Nineteenth Cen­tury the influence of Bentham began to be felt in America. By the New York Constitu­tion of 1846, the Court of Chancery was abol­ished,~ and a New Court having General Ju­risdiction over Law and Equity was created and the Legislature was directed to provide for the appointment of Three Commissioners “to revise, reform, simplify, and abridge” the Practice and Pleadings of the Courts of Record of the State.’9 In response to this di­rection, in the following year the State Legis­lature instructed the Commissioners “to pro­vide for the abolition of the present Forms of Actions and Pleadings in cases at Com­mon Law; for a Uniform Course of Proceed­ing in all Cases whether of Legal or Equita­ble Cognizance, and for the abandonment of all Latin and other foreign tongues, so far as the same shall by them be deemed prac­ticable, and of any Form and Proceeding not necessary to ascertain or preserve the Rights of the Parties.” ~0 Under the directing genius of David Dudley Field, the Commission for­mulated and reported a Code which was passed on April 12, 1848, and became opera­tive on July 1, 1848, as the Code of Proce­dure,~1 which has served as the source of most of our Modern Procedural Reform. The greatest single achievement of the Code, ac­cording to Professor Pomeroy, was the sub-
68. Art xiv, § S.
6L Art. vi, 24.
fl- N.Y.Laws 1847, e. 50, § 5.
71. N.Y.Laws 1848, C. 370.

6. In theory at least Common-Law Pleading



was abolished by our Modern Codes, Practice

Sec. 6

STATUS UNDER THE CODES

25

stitution of One Form of Action in place of the Eleven Common-Law Forms of Ac­tion~2 In addition, Separate Courts of Law and Equity were established, in favor of what was hoped would turn out to be a Blended System of Procedure, operating under a Formless Action to be known as a Civil Ac­tion, which was in the nature of an Action on the Case. The Code also provided the Plead­ings should state the Facts in plain and con­cise language,’3 and that the more liberal provisions of Equity Procedure should gov­ern Joinder of Parties, and provided for the rendition of Judgments against one or more Parties according to the particular interest of the Parties involved.


Within a quarter of a century after the adoption of the New York Code of Procedure in 1848, the Code was adopted in twenty-four States, and, according to Clark,” some Form of Code Procedure was, in 1947, then in force in twenty-nine states, two territories, the Dis­trict of Columbia, and in the Federal Courts. So, even at this late date, it still remains true that the Movement for Reform, which took definite shape In 1848, has been only partial­ly effective. Prior to the adoption of the New Federal Rules of Civil Procedure in 1938, the States were roughly lined up in Four Groups, being classified as Common­Law, Quasi.Common-Law, Code and Civil Law States. After 1938, there may be added another Group, the Rules of Court States. Perhaps a brief word concerning each type of Jurisdiction may be helpful.
i’he Common-Law States

BY the phrase “Common-Law States,” is meant those States in which the Pleading is


19. Code Remedies, ~. i, Abolition of the Distinc­tions Between Actions at Law and Suits In Equity, and of all the Common Law Forms of Action, 10, 15 (4th ed. by Bogle, Boston, 1904).
13. Carried into New York Civil Practice Law and Rules, Rule 3014 (1968).
71- Ilandbook of the Law of code Pleading, c. I, 5 5, 25 (2d ed., St. Paul, 1947).

primarily according to the Common-Law Rules, as Unwritten Law or in the Form of Statutory Enactment of the Common Law. Characteristic of the Procedure of the States which fall into this Group is the retention of the Forms of Actions and the Rules of Com­mon-Law Pleading under a Court System that still calls for Separate Actions at Law and Suits in Equity. Even so, the Practice in these Separate Courts has from time to time been modified by Local Practice Acts.


The Quasi Common-Law States

IN these States the Formal Distinction be­tween Law and Equity has been continued at least in theory, although in practice it has been weakened by Statutes abolishing the distinctions between Trespass and Trespass on the Case, or combining the Forms of Ac­tions in the two divisions of Tort arid Con­tract. Usually in Jurisdictions of tins char­acter Equitable Defenses are permitted in Law Actions.


The Code States

IN the Code States, originally largely pat­terned ‘after the New York Code of Proce­dure, the Systems of Pleading and Practice are Statutory, but based on a combination of the better features of the Common-Law and Equity Procedural Systems. The same Rules apply to both Law and Equity Cases. But it should be remembered that there is a far greater similarity in the essential principles of Pleading at Common Law, in Equity, and under the Reformed Code of Procedure than is generally realized. The Essential Ele­ments of Causes of Action which must be Pleaded are not changed by the Codes. And the Rules as to the manner of making Alle­gations of the respective contentions of the Parties still have much in common.


Rules of Court States

THESE states are distinguished front the Code States, whose Pleading and Practice is generaily, if not entirely, Re~u1ated by the Legislature, in that their Procedure is Reg­

26

BASIS OF MODERN REMEDIAL LAW

Ch. I

ulated by Rules of Court, usually framed by or under the authority of the Court of High­est Jurisdiction-.---the Supreme Court. The advantage of Regulating Procedure by Rule of Court as opposed to Legislative Enactment is that of greater flexibility in making chang­es as the social need therefor arises, without the necessity of each time referring the mat­ter to a Legislative Body, which may be dila­tory in taking action, and is oftentimes influ­enced by political considerations. Since the promulgation of the New Federal Rules of Civil Procedure, a number of states have adopted the substance of the New Rules in revising their procedure.


Civil Law States

In this group the Systems of Pleading were originally based upon the Civil as opposed to the Common Law. Louisiana is a remaining State which began with a Civil Law back­ground, from which it has never fully es­caped.


Conclusion

ASIDE from the fact that after the lapse of over a Century, almost a third of the Several States of the United States were yet to accept the Reform represented by the adoption of a Code of Civil Procedure, how have the codes been received? The object was to blend Law and Equity into a Uniform Mode of Proce­dure. This was to be accomplished by aboli­tion of the Forms of Action and the Distinc­tion between Law and Equity. A single Form of Action in the nature of an Action on the Case was to be substituted in place of the Common-Law Forms of Actions and Suits in Equity. In some Codes there were also provisions liberalizing the law controlling Joinder of Parties and Joinder of Causes of Action, but unfortunately many of the early Codes omitted the latter type of provision.


In some States, notably New York, the Re­forms under the Code of Procedure, met with

a cold reception.75 Thus in Reubens v. Joel,’° Selden, ~., in referring to the possibility of abolishing the distinctions between Law and Equity, declared: “By what process can these two Modes of Relief be made indenti­cal? It is possible to abolish one or the oth­er, or both, but it certainly is not possible to abolish the distinction between them.

Another leading distinction between Com­mon-Law Actions and Suits in Equity con­sists in their different Modes of Trial. The former are to be tried by a Jury, the latter by the Court. Can the Legislature abolish this distinction? They might, but for the restraints of the Constitution, abolish either kind of Trial, or reclassify the classes to which they apply; but they cannot make Trial by Jury and Trial by the Court the same thing.” r~

What such an attitude has meant in practi­cal terms is that a large part of the Century following the adoption of the First Codes has been spent by the Judges in reading back into the Code, provision by provision, the Rules of the Common Law.

According to Clark,75 the objections of the Courts which have taken an unfriendly atti­Ta chief Justice Winslow of Wisconsin, said: “The

cold, not to say inhuman, treatment which the in­fant code received from the New York Judges Is matter of history. They had been bred under the Common-Law Rules of Pleading and taught to re­gard that System as the perfection of logic, and they viewed with suspicion a system which was heralded as so simple that every man would be able to draw his own Pleadings. They proceeded by construction to import into the Code Rules and dis­tinctions from the Common-Law System to such an extent that in a few years they had practically so changed it that it could hardly be recognized by its creators.” MeArthur v. Moffet, 143 Wis. 564, 567, 128 N.W. 445, 446 (1910).
to. is N.Y. 488, 493,494 (1&6).
It See, Gou]et v. Asseler, 22 N.Y. 225, 78 Am.Dec. 186 (1860); Caddell V. Allen, 99 N.C. 542, 548, 6 SE. 399, 402 (1888). CL Warren v. flail, 170 N.e. 406, 87 S. E. 126 (1915).
78- Clark, Handbook of the Law of Code Pleading, e.

2, The Code Action, 1 15, p. 88 (St. Paul 1947). -



Sec. 7

MODERN PROCEDURE UNDER CODES, ETC.

27

tude toward the Code Reforms, are five in number:


(1) The necessity of forming clear and exact issues, both for the Trial and also to support the Judgment and thus make the Plea of Res Judicata thereafter available to the Parties.

(2) Inherent differences as to Jurisdic­tion and Venue, referring to the fact that Certain Actions must be brought in Certain Courts or at Certain Places.

(3) Inherent differences as to the appli­cation of Certain Statutes, such as Statutes of Limitations which were drawn along the lines of the old Procedural Divisions.

(4) Inherent differences in Manner or Amount of Relief to be granted, referring to the Specific Relief of Equity as distinguished from the Money Damages ordinarily given at Law; or to a possible Variance in the Amount of Money Damages recoverable, de­pending on the Form of Action chosen; or to Particular Remedies granted only in Certain Forms of Actions, such as Execution on the defendant’s body.

(5) Inherent differences in Manner of ‘Trial and of Appellate Review, referring to the Constitutional Right of Trial by Jury in “Law Cases” and to the different Methods of Appellate Review in “Law” and “Equity” cases.

Ail these problems have, with a more liber­al point of view on the part of the Judges, been satisfactorily solved in other Code States, according to Judge Clark, and it was his belief that in time the Courts in New York would come around to the same view. But the very existence of the objections enu­merated by Judge Clark ninety-nine years after the adoption of the New York Code of Procedure in 1848, plus the fact that nu­merous States are still without the Circle of Reform, is some slight indication of the tenacity of the Common Law. And when you add to this the fact that the great bulk of the decisions under the Codes

have necessarily been made against the back­ground of the Common Law, it becomes clear why many distinguished Judges cling to the thesis that the inherent and fundamental dif­ference between Actions at Law and Suits in Equity cannot be ignored—a view which has found the support, at least, of one dis­tinguished teacher,79 who stated, in referring to the Abolition of the Forms, that they “are not archaic, accidental, artificial or arbitra­ry, but in the nature of things reasonable, if not indeed in their essence necessary.”
MODERN PROCEDURE UNDER CODES,

PRACTICE ACTS AND RULES OF

COURT—MERELY ANOTHER STEP IN

THE EVOLUTIONARY DEVELOPMENT

OF THE COMMON LAW
7. Viewed in its proper Historical Perspec­tive, any unbiased and well-informed Student of Legal History, Generally, and of Legal Pro­cedure, Specifically, must observe that each new advance in our System of Procedure was and is but another Evolutionary Step in the Development of the Common Law, and must acknowledge the fact that Common-Law Plead­ing, after the passage of some Seven or Eight Centuries, still survives as the basis of our Modern Legal Procedural Systems as they ex­ist in both the State and Federal Courts.
HAVE the developments which have taken place since 1848, under the various Codes of Civil Procedure, and the Practice Acts of the Several States, together with the Federal Rules of Civil Procedure, been Revolutionary in Character, wiping out the Ancient Land­marks of the Common Law and the pro­cedural experience of the Anglo-Saxon race, extending over a period of over eight hundred years, or rather, have they been merely grad­ual steps in the Evolutionary Development of Common-Law Pleading and Practice?
In the first, or Flexible Stage, of the Devel­opment of the Common Law, Original Writs
79. Keigwln. Cases In Common Law PleadIng, 259 (2d ed. Rochester, N. 1. 1934).

80. See Note, Law and Equity In New York—Still Unmerged, 55 Yale Li. 826 (1946).

28

BASIS OF MODERN REMEDIAL LAW

Ch. I

issued out of Chancery in great profusion, creating New Rights and New Law. It was during this period that the Ancient Proprie­tary and Possessory Real Actions developed in great number.


Alter the Provisions o Oxford in 1258, the power of the Clerks in Chancery was re­stricted, the Real and Mixed Actions became so highly technical, difficult to manage and

lengthy in process, that they became inflex­ible and in consequence the Common Law lost some of its inherent power of expansion. During this period of inflexibility, an effort to restore the Authority of the Clerks in Chancery was made so that they might again Create New Rights by Issuing New Writs under Chapter 24 of the Statute of Westmin­ster II (1285). But the effort was too little and came too late, so that the Residuary Power of the King’s Council, operating through Chancery, was invoked to supple­ment the Common Law, not necessarily be­cause of the Defects in the Common Law, but rather for reasons of State Policy.


As a result of the Statute perhaps, but more as a result of the growing social, eco­nomic and mercantile needs of England, the Modern Personal Common-Law Actions, which to some extent ran parallel to the An­cient Proprietary and Possessory Actions, and which were gradually emerging into greater prominence with the decline of these actions, were substituted in lieu of the old Real Actions which had predominated dur­ing the early Developmental Period of the Common Law. In the course of time, these Modem Forms of Action, latest in point of growth, in the Third State of Development, were abolished in favor of a Single, Form­less, Form of Action, under which remedies could be provided for the violation of pri­vate rights of most any character.
With this in mind, let us swiftly glance back over the territory covered, and with al­most a thousand years perspective in mind, view the Present Status of Common-Law

Pleading and Practice as it stands in the light of Modem Reforms.


From the Reign of Edward I (1272-4307) to 1848, a Period of five hundred and seven­ty-six years elapsed, during which Period, in both England and the United States, Legal Procedure was governed by the Common Law. When, in England, the Modern Com­mon-Law Actions were substituted in the place of the Old Real Actions, as is later observed,8’ it was assumed that such an oc­currence was merely a Normal Evolutionary Development of the Common Law, based up­on the change in the English social structure from One of a Feudal to One of a Commer­cial or Industrial Character. This change be­came official or was Procedurally recognized by the Real Property Limitations Act of 1833,~~ which abolished the Real and Mixed Actions.
When, therefore, in 1848, the New York Code of Procedure attempted to obliterate the distinctions between Law and Equity, to abolish the Common-Law Actions and to sub­stitute in lieu thereof the Modem Single Formless Form of Action, the World was witnessing, not a Revolutionary Reform which swept the Common-Law System from its Ancient Moorings, but merely a Third Step in the Evolutionary Development of Common-Law Procedure, like that which took place in the Roman System.

Between 1848 and 1947, according to Clark,83 only twenty-eight out of the forty-

eight States followed New York in establish­ing Code Systems of Procedure. And in those States which did follow New York’s ex­ample, the intervening one hundred years have been spent largely in reading back into
Si. No specific date on whieb this occurred may be assIgned but the process was completed by the Real Property Limitations Act of 1833. 3 & 4 Wm. iv, c. 27, * 36 (1833).
fl. 3&4Wm.IV,c.27,~S6(1833).

83. Clark, Handbook of the Law of Code Pleading, c­I, * 8, 25 (Zd ed. St. Paul, 1947).

Sec. 7 MODERN PROCEDURE UNDER CODES, ETC. 29
the various Code provisions the Appropriate inent of the Common Law, and to acknowl­Rule of the Common Law, edge the stubborn fact that Common-Law
By the Supreme Court of Judicature Act Pleading and Practice, despite the passage of of 1873,81 now largely replaced by the Su- almost Seven Centuries, still survives as the preme Court of Judicature (Consolidation) basis of our Modern Legal Procedural Sys­Act of 1925,85 England followed New York tems, both State and Federal.87

in the abolition of the Common-Law Actions



87. In Grobart v. Society For Establishing ttseflul

in favor of a Single Form of Action.86 Yet Manufactures, 2 NJ. 136, 65 A.2d 833, 839 (1949), in no one suggested that this Development in referring to the present statue of Common-Law England was anything other than an Evolu- Pleading, Chief Justice Arthur Vanderbilt declared:

“The Pleadings in the case at Bar are lengthy, but the

tionary Change in the Common Law, albeit same principles are applicable to them as to the

long overdue, simplest case. The flexibility and seeming Infor­

Finally, in 1938, came the long awaited inality of Pleadings under the New Rules should

not deceive one into believing that the essentials of

New Federal Rules of Civil Procedure, which sound Pleading at Law or in Equity have been sought to and did place the Regulation of abandoned. Quite the contrary; the objective of

Pleading and Practice in the Federal Courts reaching an issue of law or of fact in two or at the

most three simple Pleadings has been attained, hut

and in the District of Columbia in the hands not at the sacriftce of stating the elements of a of the Supreme Court of the United States, Claim or of a Defense. They remain the same as as opposed to Congress. Some States, at Common Law as a matter to Substantive Law

as well as of Good Pleading.”

in whole or partially have emulated the Fed-

And William Wirt Blume, a distinguished nuthority

eral Courts in Regulating Procedure by Rule ~ Ic,ti~ Ancient and Modern Procedure, after a

of Court as opposed to Legislative Fiat, long and thorough survey of Reform Movements in

both England and America, in an article, Theory of

So, whether we stand in the Period of the pleading: A Survey Including the Federal Rules,

Common Law when the Real Actions were 47 Micb.L.Rev. 297, 339—340 (1949), in summarizing

gradually being replaced by the Modern the Common-Law principles of Pleading still in ef­

fect, declared:

Common-Law Actions; whether we start .1 A Jud~ent of a Court of Record is a conclusion with the abolition of the Common-Law drawn from premises appearing on the face of the Forms of Action by the New York Code of Jg’~t Record.

“2. A Judgment Record contains Statements of Claim

Procedure in 1848, In favor of the Single, and Defense, Verdicts, and Findings of Fact, but


Formless Form of Action, in the nature of not Evidence introduced at Trial,

an Action of Trespass on the Case, or wheth- “8. In rendering Judgment on a Claim or Defense er we look at the situation today in the light the Court must determine the legal sufficiency of

the Claim or Defense.

of our most recent Procedural Reform under “4. In determining the legal sufficiency of a Claim

the New Federal Rules of Civil Procedure,— or Defense the Court looks only to the pleadings viewed in its proper Historical Perspective, which form a part of the Record.

“5. For the Court to be able to determine the legal

any unbiased and well-informed Student of sufficiency of a Claim or Defense it must be legally

Legal History GeneraJly, and of Legal Proce- complete.

dure, Specifically, will be forced to admit “6~ A. question of legal sufficiency may be raised be­

fore Judgment by Demurrer or Motion, or after

that Each New change in Our System of Judgment by Writ of Error.

Procedure, by Way of Reform, has been but “T, If before Trial a Claim or Defense is found to

another Evolutionary Step in the Develop- be legally Insufficient Judgment Is for opposite pafle

be legally insufficient Judgment is for opposite party

4. 36 & 37 VIe., c. 66 (1878). •~8, If before Trial & Claim or Defense is found to

be legally sufficient Judgment Is for pleader unless

l~ 15 & 16 Gee. V, c. 49(1923). opposite party Is allowed to raise an issue of fact
SI. See article by Hepburn, In the Hope of a New “9. If after trial a Claim or Defense is found to be Birth of One Form of Action. Pan II, The Statutory legally Insufficient judgment Is for opposite party One Form of ActIon, 13 Va.L.Itev. 09, 78—80 (1920). even though Verdict Is for the pleader.

30 BASIS OF MODERN REMEDIAL LAW Cit 1

“10 If after trial a Claim or Defense Is found to be “16. For the Record to be true, matters proved may legally sufficient Judgment is for pleader If the not ‘vary’ from matters pleaded.

facts pleaded are found to be true. “17. Having pleaded one material matter, a party

“11. In determining the truth of a legally sufficient may not surprise his opponent by proving a difter­claim or defense the court looks only to the plead- ent matter.

ings and Verdict or Findings.

“18. To prcvcnt surprise at the trial the plaintiff

“12. Material facts pleaded by one party and not de- must Plead Items of Special Damage.

nied by the other party are deemed to be true.

“13. Material facts pleaded by one party and denied “19. To prevent surprise at the b-Ial the plaintiff may by the other party are deemed true or false in ac- be required to furnish a Bill of Particulars. cordance with the Verdict or Findings. “20. To prevent surprise and future relltlgntion a

“14. Pleadings serve as a Record of matters admit- Claim or Defense should be identified by details ted by failure to deny, and of matters found by a such as time and place.

General Verdict. “Except to the extent that parties are permitted to “15. The Record of a Court of Record, which In- form new issues by evidence introduced at the trial,

chides the pleadings, is an indisputable Itecord of the above principles are as valid today as they were matters adjudicated, at Common Law.”

Sec.

CHAPTER 2
THE DEVELOPMENT OF THE COMMON-LAW

FORMS OF ACTION’

8. Origin of the Common-Law Forms of Action.

9. Classification of the Common-Law Actions.

10. The Ancient Real Actions First in Order of Development.

11. The Modern Real Actions.

12. The Modern Personal Actions.

13. The Effect of the Development of the Forms of Action.

MOST authorities 2 who have undertaken to discuss the Development of the Forms of


1. Ia general, on the Forms of Action, Ancient and Modern, as developed at Common Law, see:
Treatises: Booth, Real Actions (1st Am. ed., New York 1808); Palgrave, The Parliamentary Writs and Writs of Military Summons (London 1827—1834); 1 Roscoc, Law of Actions Relating to Real Property (Philadelphia 1840); Jackson, Real Actions (Boston 1828); Browne, Actions at Law (Law Library, Phil­adelphia 184-1) Chitty, On Pleading, €. II, 67—101, Of the Forms of Action (3d Am. ed., Philadelphia 1849); Bigelow, History of Procedure in England, c. IX (Boston 1880); Waite, Actions and Defences (Albany, 1877—1879); 1 Thorpe, Anglo-saxon Laws, 181—3 (London, 1840); Prentice, Actions at Law (2d ed. London 1880); 2 Polloek and Maitland, His­tory of English Law, Bk. II, C. IX, Procedure, 556— 571 (Cambridge 1895); Alderson, A Practical Trea­tise upon the Law of Judicial Writs and Process In Civil and Criminal Cases (New York 1895); Stephen, A Treatise on the Principles of Pleading in Civil Actions (3d Am. ed. by Tyler, Washington, D. C. 1892); Warren, Law Studies, Pleadings in Particular Actions, Appendix (New York 1896); 3 Street~ Foun­dations of Legal Liability (Northport 1906); Gould, A Treatise on the Priaciples of Pleading, Pt. I, Forms of Actions, 1—67 (4th ed. by Will, Albany 1909); Ames, Lectures on Legai History, cc. IV— XIV (Cambridge 1913); Barbour, The History of Contract in Early English Equity, c. II, The Com­mon Law ActIons, 13—54, In Oxford Studies in So­cial and Legal History (Oxford 1914); Scott, Funda­mental Procedure in Actions at Law (New York 1922); Shipman, Handbook on Common Law Plead­ing, ~. II, The Deve1opment of the Forms of Action, if 27—34 (3d ed. by Ballantine, St Paul 1923); 1 Holdsworth, History of English Law, c 7, Chancery, 194—263 (London, 1903); Morgan, The Study of the Law, c. V, 56—83, Forms of Action (Chicago 1926); Klnnane, Anglo-American Law, a. XX, The Common

Action as they existed at Common Law have usually begun by attempting to give some


Law Actions and Remedies, §~ 210—215 (Indianap­olis 1932); Keig~vin, Cases in Common-Law Plead­ing, Introductory, 10—32 (Rochester 1934); Benson & Fryer, Readings on the Study of Law and the Anglo-Americaa Legal System, e- VIII, § 3, The Writ Systems (Washington, 0. C. 1931); Lawler & Lawler, A Short Introduction to the Law of Real Property, e. III, The Real Actions, §~ 218—225 (Chi­cago 1940); Plueknett, A Concise History of the Common Law, The Forms of Action, Bk. II, Pt. I, c. 1, 336—357 (4th ed., London 1948); Maitland, The Forms of Action at Common Law (Cambridge 1948); Fifoot, History and Sources of the Common Law (London 1949).
Articles: Maitland, The History of the Register of

Original Writs, 3 Uarvt.Rev. 97, 167, 212 (1889);

Wilson, “Writs v, Rights”, 18 MichtRev. 255

(1920); Holland, Writ and Bills, S Cambridge L.J.

15 (1942); Schulz, Writ ‘Praecipe Quod Reddat”

and Its Continental Models, 54 Jurid.Rev~ 1 (1942):

Mclntire, The History and Use of Writs: A List of

Selected Books and PeriodIcals, 37 L.Lib.J. 14 (1944). On the early Prerogative Writs in the Common Law

see article by Jenks, The Prerogative Writs in Eng­11th Law, 32 Yale L.J. 523 (1923); Humphreys, For­medon en Remainder at Common Law, 7 Camb.L.J. 238 (1941).
Comments: The Writ in Legal History, 164 L.T. 333

(1927); Some Legal History and Its Bearing on the

Forms of Massachusetts WrIts, 20 Mass.L.Q. 37

(1935); Form of the Original Writ in West Virginia,

42 W.Ve.L,Q. 273 (1936).
2. See, for example, Maitland, The Forms of Action at Common Law, Lecture I, 1—4 (Cambridge 1948), where he begins by pointing out that the choice of a Form of Action Is a choice between the different Methods of Procedure adapted to different kinds of cases. This observation is doubtless true, but It

Kottler & Reppy Com.Law Pldp. HB—i

31

32

FORMS OF ACTION



Ch. 2

definition thereof. It has always seemed that this was to put the cart before the hone, that no understandable effort to define what is meant by the phrase “Forms of Action” could be made except as against a somewhat detailed survey of the History of the Com­mon-Law Forms of Action, both Ancient and Modern. To present a definition to the stu­dent at a time when he has no apperceptive background or conception of how the Forms of Action developed, would appear to be an almost fruitless effort. In any event, it is respectfully submitted that the viewpoint of one who is seeking an understanding of the Forms of Action should be one of realization that the “Common-Law Scheme of Actions was not framed; it grew.” ~

ORIGIN OF THE COMMON-LAW FORMS OF ACTION
& The Common-Law Forms of Action had their Origin In the Action and Inter-action which took place between the Chancellor and

the Three Royal Courts, King’s Bench, Ex­chequer and Ctmmon Pleas, whereby individual litigants applied to the Chancery for Original Writs authorizing one of the three Courts to try a Specific ActIon. The Multiplication of this Process first produced the Ancient Real, Mixed and Personal Common-Law Actions, which later were superseded by the Modern Common-Law Actions.


HOW, then, did the Formulary System of the Common Law develop the Ancient and Modem Common-Law Forms of Action? And why is a knowledge of what was meant by the phrase “Forms of Action” essential to one who seeks to understand the Law?
comes at a time when the beginning student is not qualified to fully comprehend its meaning. See, al­so, Martin, Civil Procedure at Common Law, e. 1, Introductory, ft 7, 8 (St. Paul 1905); Stephen, A Treatise on the Principles of Pleading ia Civil Ac­tions, c. x, or the Proceedings In an Action from Its Commencement to Its TerminatIon, 39 (3d Am, ed.

by Tyler, Washiniton, P. 0. 1592).


~ a Street, Poundations of Legal Liability, a. IV, Classification of Actions In the Common-Law Sys­tem, 37 (Northport, 1906).

The answer to these inquiries can only be discovered and understood against the back­ground of the Norman Conquest and the statesmanship of William the Conqueror, who operating through the King’s Council or Curia Regis, the King’s writ, the King’s Inquest and the doctrine of the King’s peace, did three things which left an indelible imprint upon English Legal History, In the first place, he organized the System of Feudal Tenure under which, in legal theory at least, land was held in some form under the King, which explained why the King’s Courts were always keenly inter­ested in any litigation, public or private, which affected land. In the second place, he issued in 1072 what is now known as the Ordinance of William the Conqueror,4 which separated the Ecclesiastical and Common-Law Courts. This development not only ex­ercised a profound influence upon the Pro­cedural and Substantive Law of Descent and Distribution, Wills and Testaments and Pro­bate and Administration, but by reason of the fact that it left Jurisdiction over Free­hold Estates in the Common-Law Courts, it was largely responsible for the subsequent necessity of classifying the Common-Law Actions as Real, Mixed and Personal. In the third place, he established Law and Order through the creation of a Centralized Sys­tem of justice, as an incident of which the Common-Law Forms of Action were devel­oped.


The agencies by or through which these things were done were, in the beginning, the King’s private property, and they were not at first National Institutions, nor were they a part of the Regular Machinery of Admin­istration. The Nation was governed by the
4. See Reppy, The Ordinance of William the Con­queror (1072)’—Its Implications in the Modem Law

of Succession (New York 1954), whIch originally ap­peared as a contribution to the Symposium on the Law of Wills and Administration of Estates In hon­or of the distInguished authority on that subject, Dean Alvin Evans of the University of Kentucky Law School, 42 Ky.IJ. 523 (1954).



Sec. 5

ORIGIN OF FORMS OF ACTION

33

Customary Local Law, which was Adminis­tered in the Local Hundred, Shire and Coun­ty Courts. There the best Brand of Justice was not always available. Perceiving this condition William, in the process of political reorganization of the whole country, began creating a System of Royal, Superior Courts, to which those not satisfied with the Local Courts, might repair. And it was through the operation of these New Courts under William the Conqueror [1066—1087], Henry I [1100—1135], Henry’s grandson, Henry It 1154—1189], and Edward I [1272—1307], that the Centralization of Justice was achievedA


The Courts in Which, the Forms of Action Developed

An action could be instituted in each of the Three Superior Royal Courts, King’s Bench, Exchequer, and Common Pleas, each presided over by four Judges. Jurisdiction was distributed as follows; The Court of King’s Bench exercised control over Crimes, Torts Akin to Crimes, and Other Business Pertaining to the Crown, Matters of Revenue Excepted; the Court of Exchequer handled cases relating to taxation and Revenue; while the Court of Common Pleas dealt with Ordinary Civil Suits between subject and subject, known as communia placita. In the Three-cornered Struggle for Jurisdiction,


6- ‘For most matters affecting the mass of the na­tion the Ancient System of Customary Law arid ~ cal Courts was continued in effect. Modification was for the most part not sudden or revolutionary, but the result of a long process of growth. Speak­ing very generally, it may be said that there was a time of political reorganization under William the Con~uoror (1006—lOST) and his son Henry I (1100— 1135), of legal Innovation and creation under Hen­ry’s able grandson Henry II (1154—11S9), of rapid legal growth during the long reign of Henry Ili (1216—1272), and of legal consolidation and eon­stt-uction under hdward I, the “English Justinian” (1272—]307J. The account which follows will be materially aided by keeping in mind the names of these kings and the dates of their reigns.” Bow­nina, Handbook of Elementary Law, c. 10, 80, 152 (St. l.’aul 1029).

King’s Bench, by resort to a Fictitious Alle­gation of Trespass wider which control of the defendant could be secured by an arrest, expanded its Jurisdiction at the expense of the other Two Courts in a manner so as to include all Personal Actions. By a similar process of usurpation the Court of Excheq­uer also came to exercise Jurisdiction over Personal actions, but the Jurisdiction of nei­ther Court extended to the cognizance of Real and Mixed Actions. In the meantime the Court of Common Pleas continued to ex­ercise its Original Jurisdiction, which includ­ed the authority to entertain All Actions be­tween the subjects of the King, Real, Mixed, or Personal, such as the Ancient Proprietary Writs of Right, the Possessory Assizes, Writs of Entry and Writs of Entry and Forcible Detainer, or such Modern Actions as Ac­count, Covenant, Debt and Detinue, then in existence, and in time, over those Personal Actions of later vintage,


In King’s Bench and Common Pleas an Action could be commenced either by an Original Writ or by Bill; in Exchequer, by Bill only. The Former Method of Commenc­ing an Action, according to Stephen, “is the regular and ancient one, and the latter is in the nature of an exception to it. The pro­ceeding by Original Writ consequently claims first notice.” ~
The Original Writ

(I) The Historical Rack graund.—When the Conqueror first took over in England, in the process of establishing Law and Order, he followed the Norman system of having his Secretary, the Chancellor, write out and dis­patch various Administrative Orders concern­ed with the execution of the business of the Crown. The King summoned his Army by Writ, instructed his Ambassadors by Writ, and it was under an order or orders of this
C. Stephen, A Treatise on the Principles of Pleading In Civil Actions, c. I, Of the Proceedings in an Ac’ tion from Its Commencement to Its Termination, 40 (3d Am. ed by Tyler, Washington, D. C. 1802).

34

FORMS OF ACTION



Ch. 2

character that the facts were gathered for the Domesday Book.7 As the Authority of the King was more frequently exercised, it gradually and naturally fell into regular Ad­ministrative Channels, and there was a dis­tinct tendency to develop standards or Com­mon Forms for handling the King’s business. When, therefore, in pursuance of the Con­queror’s announced policy of non-interfer­ence with the Local Courts, an effort was made to aid the Administration of Justice by creating a System of Royal Courts to which Litigants, who Failed to Secure Jus­tice in the Local Courts, might repair, it was only normal and natural that the exist­ing System of Administrative Controls should be applied to the conduct of the King’s business in the Courts. It is not surprising to find, therefore, that as each of the Su­perior Common Law Courts split off from the Curia Regis or King’s Council, its activi­ties were strictly limited to only those cases which were delegated to it by means of an Administrative Order, which, when applied to Judicial Affairs, became a Judicial Ad­ministrative Order, now familiarly known as an Original Writ (breve originale). Under Henry It (1154—1189), the use of such Writs, which had been occasional and extraordi­nary, perhaps a royal favor, became usual and regular.


(U) The Depends~we of Right upon Bern­edy.—In the beginning these Judicial Orders, representing the King, were issued only occa­sionally, perhaps in aid of some great tenant of the King. But later, when it became necessary or desirable to expand the activi­ties of the King’s Courts, all that needed to be done was to expand and develop New Forms of what were, in the beginning, mere­ly thought of as new routines in the Process of Judicial Administration. In Glanvill’s
‘. For a group of comprehensive essays, see Maitland, Domesday Book and Beyond: Three Essays In the Early History of England (Cambridge 1901)

time [1178—1189] ,~ the tendency of the Royal Courts, King’s Bench, Exchequer and Com­mon Pleas, to enlarge their Jurisdictions was not great. In Bracton’s day [1245—1267] however, the period of growth was definitely under way, and the Procedural Mechanism by which this was to be rcalized was to be through the Invention of New Forms of Actions, to be, as he suggested, as numerous as there were Causes of Actions, under which the King was to Administer a System of Law as broad in its scope and variety as the Roman Law. The Common-Law theory that wherever there is a wrong there is a Remedy 9 was in effect given expression even at this early date when it was declared that there ought to be a remedy for every wrong; if some new wrong be perpetrated then a New Writ may be invented to meet it.
The Forms of Action, therefore, constitute

a vivid illustration of the dependence of

right upon remedy. The question of whether

a man could bring this or that Action, such


8. During the latter part of the Reign of Henry II (1154—1189), the first systematic treatise of English Law appeared. The exact date of Its appearance is not known, but it is generally thought to have been somewhere around 1187—1180. And it has been at­tributed to Banulf de Gianviil, Henry’s great Chief Justielar. According to 1 Pollock and Maitland, flistory of English Law, Bk. I, c. v, 143 (Cambridge 1893), the author may have been his nephew, Hu­bert Walter, who may have written under Glanvill’s direction. In any event, he produced the first au­thoritative story of the Development of Procedural and Substantive Common Law, as evolved by the

Lawyers and Judges, under the reforming energy of Henry II, Maitland and Montague, A Sketch of English Legal History, c. I, 43 (New York 1915), in commenting on this book, declared: “We look back from it to a law book written in the reign of Henry I (1100—1135), [the Leges Henrici Primci, written about 1115J, and we can hardly believe that only some seventy years divide the two. The one can, at this moment, be read and understood by anyone who knows a little of Medieval Latin and a little of English Law; the other will always be dark to the most Learned Scholars. The gulf be­tween them looks like that between Logic and Ca­price. between Reason and Unreason.”


0. 1 Bacon, Abridgment of the Law, “Actions in Gen­eral”, B. 28, 29 (Dublin, 1786).

ORIGIN OF FORMS OF ACTION

Sec. 8
as Trespass, Trover, Assumpsit, and so on, was a question of Substantive Right and of Liability. In theory, as has been suggested, there ought to be a remedy for every wrong (ubi jus, ibi renwdium), yet the Right of Action at Common Law was dependent upon whether the litigants’ facts fell within the scope of a limited and arbitrary list of Writs. There were at any given moment of develop­ment—a development which stretched over Centuries—only the same number of Rights of Action as there were Forms of Action. These Forms of Action, Ancient and Modern, persisted in actual use in English Procedure for Six Centuries, from the time of Henry TI [1154—1189] and Edward I [1272—1307], un­til the Judicature Acts ‘° in the Nineteenth Century. And these Forms were issued, and from time to time, found their way into and were permanently recorded in the Chancery in a book known as the Register of Writs”


10. 36 & 37 Vict. c. 66 (ISiS); as & ~a Viet. c. 77 (1875).

35
(Regisirurn Brevium) , which was first print­ed and published in the Reign of Henry VIII [1509—1547]. This book thus became an authoritative source I or the purpose of deter­mining, at any given moment in English Legal History, what Forms of Writs were then available to litigants. A variation, how­ever, from the transcript of the Form as it appeared in the Register, was not conclusive against the propriety of the Form, if it ap­peared correct from other sufficient author­ity adduced.


Thus, the King’s Court was even then in the throes of developing a Formulary System through which it was ultimately destined to establish a Broad, General, National Juris­diction and approximate the Common-Law ideal of affording a litigant a remedy for every wrong. This type of activity applied mostly to Civil Pleas or Common Pleas, whereas Pleas to the Crown, criminal for most part, depended upon a System of Pro­cedure controlled by the Local Authorities. These Civil Pleas originally were Pleas deal­ing with the land, as under the Feudal Sys­tem the crown was concerned with main­taining strict control over the land, as a result of which the Common Law Regulating the Land was ultimately to be converted into the Common Law of the Land. While in general these disputes might also have been handled by the Local Courts, where the Feudal Court was either weak, partial or actually corrupt, a Writ might issue from the King, through the Chancellor, ordering the Feudal Lord to do immediate Justice or appear in the King’s Court on a certain day and explain why not. In the beginning such intervention was largely administrative in character, and such threats, for the purpose of setting the Local Lord’s Judicial Ma­chinery in motion, were not without both Anglo-Saxon and Anglo-Norman precedent.
were wide differences. 2 Pol)ock and Maitland, History of English Law, Bk. II, c. IX, rrocedure, § 1, 562, 568 (Cambridge 1S95).

11. In general, on the subject of Writs, see Maitland, The History of Original Writs, 3 Hat-v.L.ilev. 97 (1889), reprinted in 2 Maitland, Collected Papers, 110 (Edited by H. A. Fisher, Cambridge 1911).
The purpose of the Register of Writs was to provide the Clerics in Chancery with an authoritative col­lection of Forms for all the existing Writs. It also served as a guide to Lawyers as to what Writs were available in the Chancellor’s omce. Maitiand, in his article on The History of the Original Writs, 3 Ilarv.LRev. 97, 107 (1889), reprinted in 2 Select Essays in Anglo-American Legal History, e. 36, 549 (Boston 1908), declared that the Register grew and expanded over a period of some Three Centuries, during which time its 51cc constantly increased. Long after the period of its greatest development had passed it appeared in print for the first time in what is known as A Collection of Rastell’s Entries, first published in 1596. 4 Reel-es, History of Eng­lish Law, e. XXX, Henry VIII, 566 (Am. ed. by Fin­lasen, Philadelphia 1880). For some Two Centuries thereafter this book and others based upon it were among the commonplace books used by the Prac­ticing Lawyers. Such books took the Form of Com­mentaries by Judges and text-writers upon the character and use of the Writs available in the Begister. These Writs, if the variations in each one were noted, reached Into the hundreds; if, how­ever, we omit the variations, the number may be estimated at thirty or forty between which there

36

FORMS OF ACTION

CIt 2

(III) The Creation of the First Origina’ Writ and Its Three Purpose&—However this may be, if for a moment we retrace our steps, there must have been a time, immediately after the First Superior Common-Law Court was differentiated from the King’s Council, when the first litigant petitioned the Chan­cellor for Relief, let us say, based upon a claim that his title or possession to certain property was in jeopardy. Where title or a proprietary interest was involved, the Rem­edy required was some Form of the Writ of Right, but where a mere possessory inter­est was in question the Remedy consisted of a Possessory Writ, which later was fol­lowed by the Writ of Trespass (quare ckiuaum fregit) and the Writ of Ejeetment. Now, for the first time, the Chancellor was confronted with the problem of just how he would delegate to the then single existing Court the required Authority of the King which was essential f or the Court to function or to hear the Complaint contained in the Petition to the Chancellor. At this point the Chancellor, faced with the Concrete prob­lem of framing a Judicial Order for the first time, doubtless looked over the Forms of some of his Non-Judicial Administrative Or­ders, observed that they usually began with greetings from the King and were directed to the individual whose action was sought. Adopting such Nonjudicial Order as a pat­tern, but phrasing it in Judicial Language, and directing it to the Sheriff of the County where the Cause of Action arose, or to the defendant, he thus created the First Original



Writ, the Beginning and Foundation of the

Suit, the exact date of which is buried in the mists of history.

After the first Original Writ of Trespass quare clausum Ire git (Trespass to Land), as referred to above, had been issued several times to cover that Specific Factual Situa­tion, it gradually acquired a Fixed Form and

a Fixed Theory of Liability. If, however, the petitioner appeared in Chancery with a Complaint that his cattle had been taken

and carried away, the First Writ did not fit the Factual Situation, hence the Chancellor or his Clerks had to Frame a New Writ to cover a Trespass to personal property. Look­ing over the Form of the Writ of Trespass quare c7ausun’~ fregit, the Chancellor doubt­less discovered that by changing the descrip­tion of the property involved from realty to personally, he could accomplish the de­sired end of authorizing the proper Court to try the case. Thus was created the Writ of Trespass to Personalty (Trespass tie bonis asportatis) - And so with another slight vari­ation in the language of the Two Preceding Writs, he was able to bring forth the Writ of Trespass for Assault and Battery. Pur­suing the same thought, if the Complaint was that the defendant had failed to pay the plaintiff a sum certain due and owing, a Writ of Debt was framed; if the Complaint was that the defendant had breached the terms of a Sealed Contract, a Writ of Covenant was the plaintiff’s only remedy. And so on, until by a similar process, the whole gamut of human activity was in a manner covered, and there developed in the Common Law a great multieiplicity of Types of Actions, as almost all types of injury, whether involving Breach of a Contract, Injury to Person or Injury to Property, occurred under slightly different combinations of Facts or Events, making with each variation a New Writ, the issuance of which created a New Right.
An Original Writ, according to Blackstone, was a mandatory letter on parchment, issu­ing out of Chancery, under the Great Seal, in the King’s name, directed to the Sheriff of the County where the injury was alleged to have occurred, containing a Summary Statement of the Cause of Action, and re­quiring the defendant to satisfy the claim, or upon the defendant’s failure to do so, then to Summon him to appear in the designated Superior Common-Law Court on the day named in the Writ, It was a kind of Judicial ~xecutive Order to show cause why he had not redressed the wrong complained of. In

Sec. S


ORIGIN OF FORMS OF ACTION

37

some cases it omitted the former alternative, and required the Sheriff simply to enforce an Appearance. Examples of the Form of such a Writ, in one of the Ancient Real Actions and in one of the Modern Personal Actions, the relationship of which will be developed later, appear below:


FORM OF TIlE WRIT OF PEAECIPE IN CAPITE’5
EDWARD THE FIRST, King of England, To the Sheriff of County,

GREETING:

COMMAND William Johnson that justly and without delay he render to Arthur Brown one messuage with the appurtenances in Trumpington which he claims to be his right and inheritance, and to hold of us in chief and whereof he complains that the afore­said William Johnson unjustly deforceth him. And unless he will do this, and (if) the afore­said Arthur Brown shall give you security to prosecute his claim, then summon by good summoners the aforesaid William Johnson that he be before our justices at Westminster, on ______ to show wherefore he hath not done it. And have there the summoners and this writ.
WITNESS, ourself at Westminster,
FITZ-HERBERT, Natura Brevium, (Eng­lish ed. 1794)-
FORM OF ORIGINAL WRiT IN DEBT EDWARD THE FIRST, King of England,

To the Sheriff of County,


GREETING:
COMMAND William Johnson, late~ of County, that justly and without delay

he render là Arthur Brown the sum of £10


12. Pitz-Hcrbert, Natura Brevium (Dublin 1553)- The translation of the Writ of Praecipe In Capite as bet out above wa~ taken from the English edition.

Maitlanci, The Forms of Action at Common Law 82, it 2 (Cambridge 1945).

of good and lawful money of Great Britain, which he owes to and unjustly detains from him, as it is said; and unless he shall do so, and if the said Arthur Brown shall make you secure of prosecuting his claim, then sum­mon, by good summoners, the said William Johnson that he be before us on the _______ day of _______ wheresoever we shall be in England, (or, in Common Pleas before our Justices at Westminster, on ), to shew wherefore he bath not done it, and have there the names of the summoners, and this writ.
WITNESS, ourseif at Westminster,
TIDD’S APPENDIX, 20, as set out in Mar­tin, Civil Procedure at Common Law, Appen­dix, 365 (St. Paul 1905).
In other words, the Writs were not trans­formed into Actions until, in pursuance of the authority granted therein, the defendant Appeared in Court. At that time the plain­tiff, elaborating upon the Charge Stated in the Original Writ, filed his Declaration stat­ing for the first time his Cause of Action, in the course of which he not only repeated the Charge in the Original Writ, but expand­ed it into a full-fledged Statement of his Cause of Action. The issuance of each New Writ with each new variation in the Com­bination of Facts or Events presented amounted, thes~efore, to the creation of a New Cause or Right of Action.’3
At this point, therefore, it should be ob­served, that the Original Writ as finally
l~ It was this very practice, as we shall see, which led the Barons in 1258 to draw up what are now known as the Provisions of Oxford, which bad a restrictive effect upon the practice of the Clerks in Chancery in issuing New Writs. It was this re­striction upon the Clerks which ultimately led to the Enactment of the Statute of Westminster 11 (1285), 13 Edw. I, c. 24, 1 Pickering’s Statutes at Lar-ge 196, under which the Clerks were authorized to issue New Writs in all cases similar to but not Identical with Trespasses, provided they fell within the scope of some existing Writ; otherwise the mut­ter was to be referred to Parliament

38

FORMS OF ACTION



Ch. 2

developed, served three distinct and material purposes:


(1) It authorized a specific Superior Com­mon-Law Court to acquire control over the specific individuals involved in the controver­sy, or to put the matter in more technical phraseology, it gave the Court Jurisdiction over the Parties to the Action.
(2) it authorized the same Court to as­sume control over the controversy, or to put the matter in more technical language, it gave the court Jurisdiction over the Subject Matter of the Action and served as the Insti­tution of the Action.

(3) It determined the Character of the Action to be tried, for if the plaintiff sued out of Chancery an Original Writ in Debt, he could not declare in Account, Covenant, or any other Form of Action but Debt. The Character of the Writ definitely defined and limited the Character of the Action.


In short, except in the case of the Practice of Proceeding by Bill, no Action could be begun in any Superior Court without the express sanction of an Original Writ, the general effect of which was to confer Juris­diction on the Specific Court in which it directed the defendant to Appear. This suing out of an Original Writ, the first step in the Commencement of an Action was, as we have seen, taken by the plaintiff, to whom it was available as a matter of course, upon the payment of a fee 14 to the King, the size of the fee being in proportion to the amount demanded by way of Damages in the action. The cost of these fees, therefore, became a continuing and ever-increasing source of the King’s revenue, and constitutes one explana­tion of the Crown’s unfailing interest in the Administration of Justice. The net effect
Xl. For the fines payable on Original Writs, see Tidd, Practice of the Court of King’s Bench in Personal Actions 97 (1st Am. S., Philadelphia 1801), and for a full explanation of the subject of Pines, consult Bellon, Practice In the Courts of King’s Bench, In­troduction, xl-xliv (London 1798).

of all this was to make the King “the foun­tain of justice,” and his Writ the Foundation of the Jurisdiction of the Court.’5


(IV) The Relation of the Charge in the Original Writ to the Charge in the Declara­tion —In considering the Early Develop­mental Stages of the Writ System, it is well to keep in mind three things:
The first is the significance of the Writ Process as a device f or “making a pathway for the Jurisdiction of the King’s Court.” ‘~
The second is that the Earlier Writs of course (Writs “dc cursu”), which existed long prior to the time when the Actions of Trespass on the Case came into being and operation, ‘were not,” as Bigelow observes,’7 “created by a stroke of the pen, or imported into perfect form from Normandy,” but though of Continental origin, “they were gradually developed on English soil, out of rough and even shapeless material.” If this fact be well understood, it will clearly appear that the Common-Law Forms of Action ante­cedent to and therefore necessarily not founded upon the Statute of Westminster II (1285), did not arise out of the Writ; that originally it was “entirely foreign to any purpose of the Writ to set forth tha Formal Language of an Action.” 18
This brings us to the third thing which must be kept in mind, to wit, the relation of the Charge in the Original Writ to the Charge in the Declaration, at the Various Stages in the Development of the Writ Process. In the beginning apparently there was no connection between the Original Writ and the Declaration. According to Bigelow, as pointed out above, originally it was not the Function of the Original Writ to set
15. Philadelphia, B. & \V. It. Co. v. Ootta, 4 Boyce (Del.) 38, 85 A. 721 (1013); Parsons v. BilL, 15 App. D.C. 532 (1900).
16. Bigelow, History of Procedure in England, c. IV, The Writ Froceas, 147 (Boston 1580).

11. Ibid.

18. IbId.

Sec. 8

ORIGIN OF FORMS OF ACTION

:39

forth the Charge contained therein in the technical form or language of a full-fledged Cause of Action; it was required to include a definite statement of the subject matter or Cause of Action, as the defendant was en­titled to be apprised of the plaintiff’s demand, in order that he might prepare himself to meet it intelligently. And when the sum­mons was thus accomplished by virtue of the authority of the Writ, the actual service was made by the “good summoners” ref er­red to in the Forms of the Old Writs, and their knowledge of the Cause of Action neces­sarily must have been obtained from the Original Writ. It has been suggested that the oldest Common Law Forms of Action are a direct lineal descendent of the (3cr-manic formulae of Pre-Norman and Nor­man England; and that the Writ, which is of ancient origin, and the Count, which has a long record reaching back to the Anglo-Saxon time of Alfred, were originally two separate forces operating independently of each other, but which, nevertheless, were gradually converging, until by the time of Glanvill (1178—1189) they were approaching a point of contact, which however, was not completed until the next, or Thirteenth Cen­tury. Once this convergence was completed, it is clear that in time the Writ came to control both the Form of the Action as well as the Statement of the Cause of Action contained therein.


(V) Necessity of Selecting the Correct Form of Writ.—When the plaintiff petitioned the Chancellor for an Original Writ, he was under great pressure to select the right Writ for the facts of his case. He chose at his own persona! peril. If he selected a Form of Writ which did not fit his case, however just his grievance might be, he could not succeed. Thus, if he sued out a Writ of Debt and his Complaint was that he had been evicted from Blackacre, for which he should have sought a Writ of Ejeetment, the case would be dismissed, If he sued out a Writ

of Replevin for a wrongful taking of Per­sonal Property, he could not recover in Spe­cial Assumpsit for Breach of a Contract. In each instance where he selected the Wrong Form of Writ, his only recourse would be to retrace his steps and start over, selecting a Writ appropriate to the character of his Complaint. Referring to this characteristic of the Common-Law Forms of Action, Pal-lock and Maitland compared the System to an Armory, declaring: “It contains every spe­cies of medieval weapon from a two handed sword to the poinard. The man who has a quarrel with his neighbor comes hither to choose his weapon. The choice is large; but he must remember that he will not be able to change weapons in the middle of the combat and also that every weapon has its proper use and may be put to none other. If he selects a sword, he must observe the rules of sword-play; he must not try to use his cross-bow as a mace.””


‘9. 2 Pollock and Maitland, History of English Law, Bk. II, c. IX, Procedure, ~ 1, 559 (Cambridge 1895).

And Professor Hepburn, in his work, The Historical Development of Code Pleading c. Ii,

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