BY reason of the large number of Writs in the Real Actions, by reason of the long, dilatory and highly technicai character of the proceedings thereunder, together with the burdensome cost incidental to their prosecution; and finally, by reason of the almost imperceptible distinctions between many of them, with the passage of time, their Inadequacy as Remedies for the redress of alleged wrongs involving Title or Possession of Real Estate became evident. The Defects in the Proceedings involved in the various Real Actions and the abuses which grew up around them had originated in the Courts and for years had gone on uninterrupted by any attempt at Parliamentary Reform.
In the first quarter of the Nineteenth Century, as an incident of the general wave of Governmental Reform which swept over England, a Movement for Procedural Law Reform got under way. It is therefore not surprising to find that in 1833, by the Real Property Limitations Act,” the Real and Mixed Actions, with few exceptions, were swept aside. The Statute provided that some sixty actions, specifically named,°5 should not be brought after December 31, 1834.
64. 3 & 4 Wm. IV, c. 27, § 36 (1833). 65. The Statute of 3 & 4 Wm. IV, c. 27, § 36 provides that: 1No writ of right patent, writ of right quja dominus remisit curiam, wi-it of right in capite, writ of right In London, writ of right close, writ of right do rationabit parte, writ of right of advowson, writ Of right upon disclaimer, writ de rationabilibus divisis, writ of right of ward, writ de eonsuetudinibug et serviti-is, writ of eessavit, writ of escheat, writ of quo jure, writ of seeta ad rnolendinum, writ de essendo qitietum de theolonio, writ of no injuste vexes, writ of mesne, writ of quod permittat, writ of formedon in descender, in remainder, or In reverter, writ of o.ssL—e of novel disseisin, nuisance, darrein presentment, June tztrum, or ntort d’ancestor, writ of entry stir disseisim in the quibus, in the per, in the per and ciii, or in the post, writ of entry ear intrusion, writ of entry sur alienation dum futt non compos menus, dum fuit infra aeta” tam, dum fi4t in prisona, ad oommunem legent, in oaeit proviso, in consimili caRs, ciii in vita, ear Ciii in Dita, ciii ante divortuum, or Stir ciii ante divor
Exceptions were made Writ of Right of Dower, er undo nihil h-abet, and
Impedit, the latter being preserved to try disputes about Advowsons, as Ejectment, which now came to be used in lieu of the abolished Real Actions, was inapplicable for such purposes. As a widow claiming dower could not institute an Action of Ejectment until after her dower had been set out,°° the two Writs of Dower were temporarily preserved. In 1860, with the establishment of a New Statutory Form of Action to serve as a substitute, the Old Writs of Dower were abolished by the Common Law Procedure Act.67 Also abolished by the same
act was the Writ of Quczre Impedit.
TUE MODERN REAL ACTIONS
11. The Modern Real Actions included
Ejectment, Trespass to Try Title, Writs of
Entry, Disseisin, Dower and Partition, and
Forcible Entry and Detainer.
The Action of Ejectment
WHEN it finally became clear that the so-called distinction between the Proprietary and Possessory Actions was largely illusory, that you could not Try Title without also trying possession, and that these Actions were needlessly technical and very expensive,
tium, writ of entry ear abatement, writ of entry quare ejecit infra terminum, or ad terminum qui praeteriit, or eauea matri,nonii praelocuti, writ of aid, besaiel, tresaicl, cosinage, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ of quad ci deforceat, writ of covenant real, writ of warfl rantia chartae, writ of curia elaudenda, or writ per quae seri,itia, and ‘zo other action, real or mixed, (except a writ of right of dower, or writ of dower unde nihU habet, or a quare impedit, or an cject,nent,) and no plaint in the nature of any such writ or action (except a plaint for free bench or dower), shall be brought after the 81st day of December, 1884.”
06. For an explanation of the intricacies involved in claims for dower at Common Law, see Maitland, -‘The Forms of Action at Common Law, Lecture III, 36, 37 (CambrIdge 1948).
01. 23 & 24 Vict, c. 126, § 26, 100 Statutes at Large
in the case of a
a Writ of Dow-
a Writ of Quare
FORMS OF ACTION
the slate was cleared for the entry of a far simpler, yet more Adequate Remedy for the redress of Wrongs to Title or Possession— the Action of Ejectment. This move by the Common-Law Courts was hastened by the threatened intervention of Chancery. And the change came about not by developing a New Remedy, but “by adapting the well known Process and Proceedings of Personal Actions to the Trial of Issues relating to ouster and disseisin from real estate.” °~ More specifically, the Action of Ejectment was developed out of the Writs of Quare Ejecit In Ira Terininum and Dc Ejectione Firmae in favor of the owners of non-freehold estates. Through the use of the famous Fiction in Ejectment it ultimately became available to the holders of freehold estates as well, without violating the Common-Law theory that it could be used only to protect the possession of non-freehold estates. The details of this development will be set forth fully in the Chapter on the Action of Ejectment.°°
The Action, as thus developed by the Common Law, was excepted from the sweeping effect of the Statute of 3 & 4 Wm. TV, c.
27, § 36,73 Statutes at Large 149 (1833), and continued unchanged until 1852. Under the Common-Law Procedure Acts of 1852,~° 1854 ~‘ and 1860 72 the Procedure in the Action was simplified, the Fiction in Ejectment was abolished, so that the Action was directed to the person actually in possession of the property in dispute, or to any other person entitled to defend the Action, and it was provided that in the Default of Appearance such person would be dispossessed. If the
08. Martin, Civil Procedure at Common Law, C. V, Modern Real Actions, § 166 141 (St. Paul 1905).
69. See Chapter 10.
70. 15 & 16 Vict. C. 76, 92 Statutes at Large 285 (1852).
‘IL 17 & 18 Vict. C. 125, 94 Statutes at Large 794 (1854).
defendant 4ppeared, the Court made up an Issue, and the Case was tried according to the Principles of Ejectment as developed at Common Law. And so the Action continued until the Supreme Court of Judicature Act of 1873,~~ under which the Action was “commenced by a Judicial Writ of Summons upon which the plaintiff indorses a Statement of his Claim with the Relief asked for, to which the defendant makes a Statement of his Defense. The Pleadings are governed by Rules of Court under General Orders made in 1883,”” Although the Remedy under this Act has lost its Earlier Form, it is still governed by the principles underlying the Action as Developed at Common Law. And this same Common-Law Action has been generally adopted, subject to modification in its Form and Procedure, as the generally recognized mode of Trying Title or possession in the Several States of the United States.
The Action of Trespass to Try Title THE Action of Trespass to Try Title has been used in three states, Alabama, South Carolina and Texas.
Derived from the Action of Trespass Quai-e Clausem Fregit, it was first introduced by Statute in South Carolina in 1791,~~ being substituted in the place of Ejectment. Mere possession was sufficient to support the Action as against a wrong-doer, but it was not sufficient as against one with a Superior Title. And, as in Trespass, the defendant might enter a Plea of liberuni tenementwnt, that is, that the land he entered upon was owned by himself, or by some one under whose authority he acted, the defendant claimed that he had an immediate Right of Entry. Thus the Right of Entry came to be the Controlling Issue in the Action of Trespass, but recovery resulted only in a
73. 36 & 37 Viet. C. 68 (1873).
74. Martin, Civil Procedure at Common Law, c. V.
Modem Real Actions, § 170, 143 (St. Paul 1905).
¶5. S.C.Stat. at Large 170.
¶2. 23 & 24 Vict. C. 154, 100 stat, at Large 860 (1860).
MODERN REAL ACTIONS
Judgment for Damages. This use of Trespass to Try Title was brought about by indorsing on the Writ of the Action for Trespass a notice that the Action was brought to Try Title, as well as for Damages. And if the entry had ousted the plaintiff, the plaintiff if successful, was entitled to a Writ of ilabere Facias Possessionem and Damages Abolished in South Carolina in 1873,~~ it appeared in Alabama in 1821,” where it continued to 1852, ~ at which time it was superseded by an Action in the Nature of an Action of Ejectment.
In Texas, Trespass to Try Title was long the accepted and exclusive Mode for Trial of disputed Titles. As developed there it was broader than Ejectment, being maintainable even on an Equitable Title, and available to Try Title irrespective of occupancy. In general, the Trial was governed by the principles of Trial by Ejectment, except where the Statute provided otherwise.79 Writs of Entry
IN a modified Form, the Possessory Writ under this name, was adopted in Maine, Massachusetts and New Hampshire.8° In the two latter States at least a life estate was necessary to support the action.8’ Generally, the Action was directed against the actual tenant of the land, but if the defendant ousted the demandant, the latter might treat the defendant as a disseisor, in order to try the right, although claiming an estate of less than a freehold.82 Damages for Mesne Prof
70. Bev.Stat.S.C.1873, 586.
17. Clays Digest of the Laws of Alabama, 320—340 ~Tuslcaloosa 1843).
78. Ala.code, 1852, 2209.
19. Rev.Stat.Tex.1879, art. 4784. See, also, Thurber v. Conners, 57 Tex. 96 (1882).
£0. Jackson, A Treatise on the Pleadings and Practice Ia Real Actions, C. 1, 11 (Boston 1828).
81. lay -v. Taft, 66 Mass. (12 Cush.) 448 (1853); Johnson v. Elliot, 26 N.H. 67 (1857).
S2. Gen.Stat.Mass.1860, c. 134, 5~ 3, 4, 5, 6. See, also,
Wyman v. Brown, 50 Me. 139 (1863).
its finally became recoverable in the Action in Massachusetts.83 Of course the Pleadings in the Action were greatly simplified over those which prevailed in England prior to the Era of Reform.
Writ of Dissejsin
THE Writ of Disseisin long served in Connecticut as a substitute for the Common-Law Actions of the Writ of Right, the Writ of Entry and the Writ of Ejectment.84 It was commenced and prosecuted like a Personal Action, and was available onl~’ on the basis of a Legal Title. According to Martin, it resembled Ejectment closely and was frequently called by that name.85 But in 1888, the Action was superseded by a Statutory Form of Procedure.8°
UNDER the Statute of 3 & 4 Wm. IV, c. 27, § 36, 73 Statutes at Large 149 (1833), a Dower was one of the Actions excepted from abolition. But resort to the Action became constantly less frequent because Chancery had long since intervened to exercise Concurrent Jurisdiction with the Law Court in protecting dower rights.87 And the flexibility of the Procedure in Equity gave it an increasing preference over the Remedy at Law. While in general the right to dower is governed by Statute which has superseded the Common Law, in the enforcement of such Statute, resort may still be had to Common Law and Equity for Remedial Relief, where, for any reason, the Statutes fail to cover the Point in Issue. In many States a Bill in Equity is had for Dower under which dower is admeasured, Damages are Assessed
83. Raymond v. Audrews,60 Mass. (6 Cush.) 265 (1850).
84. Tyler, Ejeetment and Adverse Enjoyment, e. 37,
654 (Albany 1870).
85. Martin, Civil Procedure at Common Law, e. V, Modern Real Actious, § 175, 147 (St. Paul 1905).
86. Gcn.Stat.18S8, 872.
87. Scribner, Dower, c. 7, 145 (2d ed. Philadelphia
1883). See, also, Mundy v. Mundy, 2 Ves.Jirn. 122, 30 Eng.Rep. 554 (1793).
FORMS OF ACTION
and Possession Awarded.M By Judicial Deci-
‘IRE MODERN PERSONAL ACTIONS
sion or by Statute in a few States, where the Right of Dower is disputed in an Equitable
12. From the close of the Reign of Queen Elizabeth in 1603, the Ancient Real Actions
or Statutory Proceeding, the Parties involved
suffered a decline with the consequence that
are entitled to have the Right of Trial by Jury, which is in accord with the early Eq-
the Modern Personal Actions emerged as a
New System of Actions, eleven in number.
uity Practice of accepting a Verdict at Law
FROM the middle of the Thirteenth Cen
on such an Issue.89
tury to the Reign of Elizabeth (1558—1603),
the Ancient Real and Mixed Actions, Proprie-~
WITH the abolition of the Writ of Parti-lion by the Statute of 3 & 4 Win. IV, c. 27 § 36, 73 Statutes at Large 149 (1833), Ex-clusive Jurisdiction over Partition Proceed-ings fell to the Court of Chancery, a Juris-diction which it had exercised concurrently with the Law Courts since the days of Eliza-beth (1558—1603) Y° In the Several States of the United States the Action of Partition at Common Law was never recognized in its Ancient Form. It was superseded by the Bill in Equity or some Form of Statutory Proceeding.” There were, of course, no Ac-tions at Common Law for the Partition of
tary and Possessory in Character, and what
we now speak of as the Modern Personal Common-Law Actions, were developing along parallel lines. But from the close of
Elizabeth’s Reign  the Ancient Real Actions fell into a decline, with the Modern
Common-Law Actions emerging as the principal System of Actions. These Personal
Actions were those brought for the Recoveiy of a Debt, the possession of specific per-sonal property, Damages for the Breach of a Contract, or Damages for some injury to the person, or to one’s relative rights, or to personal or real property.
Personal Property, Equity assuming Jurisdiction in such case.
wrongs, and include also actions for the recovery of real and per-
90. Eisphanj Principles of Equity, PartIII, C. IV,
I 487 (5th ed. Philadelphia 1893).
91. See 21 Am. & Eng.Encycl.Law, 1144, 1145 (2d ed.
(B) Trespass on the Case
92. For the characteristic features of the remedy as used In the United States, see Martin, Civil Procedure at Common Law, C. V. Modern Real ActIons, ~ 179. 151—iSS (St. Pau) 1905).
MODERN PERSONAL ACTIONS
Personal Actions, as indicated in the Chart above, include Actions that are brought for the Recovery of a Debt, or for Damages for the Breach of a Contract, or for Tort, for some Injury to the Person, or to Relative Rights or to Personal or Real Property. The most common of these Actions are Debt, Covenant, Assumpsit, Detinue, Trespass, Trespass on the Case, Trover and Replevin.
Personal Actions are divided, according to their nature, into Actions Ex Contractu and Actions E7x Delicto. The former are Actions based upon a Contract, Express or Implied; while the latter are for injuries, the right to recover for which is not based upon Contract, but upon Tort. This attempt to distribute our Personal Forms under the two heads of Contract and Tort, as Maitland points out, has never been very successful or very important.°3 Of the Forms of Action which have been enumerated above, the Action of Ejectment has been classified as a Real Action, as well as a Personal Action, as is indicated in the preceding section. In the classification of actions as Ex Contractu and Ex Delicto, some writers put Detinue on one side of the line and some on the other.
The above Classification of all Personal Actions as Ex Contractu or Ex Delicto cannot be supported on principle, for there are many duties imposed by Law, a Breach of which constitutes neither a Tort nor the violation of a Genuine Contract, as, for instance, the failure to pay a Debt imposed by Custom, Judgment or Statute. In some of these cases the Classification has been maintained by
93. Ma~tJan~l, Equity and the Forms of Action at Common Law 369 (Cambridge 1910); Pollock, Torts, Appendix A, 571 (11th ed. London 1920).
Actions at Law or in Equity may be classified, according to the nature of the Cause of Action, as (1)
Actions of Tort; (2) Actions of Contract; (3) Actions on Non-Contractual Obligations; (4) Proprietary Actions; (5) Actions of Status; and (6) Public Actions. See, also, 1 Standard Encyclopedia of Procedure, Introduction, ~ 14, on Classifications of Actions. (Los Angeles & Chicago 1911).
treating the Action as if arising on Contract, although clearly not so arising. In others, the duty imposed by Law so resembles the duty assumed by Contract that they have for convenience been included in Actions Ex Contractu.
The Decline of the Modern Personal Actions THE Personal Actions, which, in general were of later development than the Real Actions,—developed out of the Action and Interaction which, over a Period of Several Centuries, took place between the Chancery and the Three Royal Superior Courts without the aid of any Legislative Enactment, and included the Actions of Debt, Covenant, Account, Detinue, Replevin, Trespass and Ejection; also Trespass on the Case, Trover, Special Assumpsit and General Assumpsit, the development of which, according to one view, was given considerable impetus, directly or mdirectly, by the power granted to the Chancery Clerks by the Statute of Westminister II (1285) ~M while others have either minimized or discounted the effect of this Statute on this development. As the Old Real and Mixed Actions declined these Personal Common-Law Actions naturally came into wider use. Their Supremacy and the Procedures connected therewith long stood unchallenged. But in 1834, as an Incident of a demand for improvement in Legal Procedure, the Hilary Rules °~ were promulgated. They were designed to limit the Scope of the Various General Issues in the Actions, and to restore the Ancient Strict Common-Law Theory that under a Plea of the General
94. 13 Edw. I, c. 24, 1 Statutes at Large 190 (1285).
95- Promulgated pursuant to S & 4 Wm. iv, C. 42, § 1,
73 Statutes at Large 272 (1833).
For the history and effect of the Bilary Rules in England, see article by Holdsworth, The New Rules of Pleading of the }Iilary Term, 1 Cambridge L.J. 261 (1923); for the history and effect of the Hilary Rules in the Several States of the United Statog, see Reppy, The Hhlary Rules and Their Effect on Negative and Affirmative Pleas under Modern Codes and Practice Acts, 6 N.Y.tJ.L.Q.Rev. 95 (1929),
FORMS OF ACTION
Issue a defendant was restricted in his Proof to offers of Evidence having a logical tendency to deny the Material Allegations in the Declaration, and he could not offer Evidence of Defenses going to dispute liability. But the effort did not stay the Movement for Reform. Under the Uniformity of Process Act,96 enacted in 1832, the Process in the Personal Actions was made uniform. The Old Form of Writ was abolished in favor of a New, Statutory Form, which, as a parting tribute to the Old Form, was characterized by the requirement that the Pleadings should include by name one of the Recognized Forms of Actions. A second assault upon the Status of the Personal Actions came in 1852 when the Common-Law Procedure Act97 eliminated the requirements that the plaintiff should mention in any Summons any Form or Cause of Action. Even so the Personal Forms of Action as developed at Common Law remained substantially intact,
It was thus left for the final blow to be delivered by the Supreme Court of Judicature Act of 1873,°~ and the Rules promulgated under its authority, which was extended in 1875?~ This Statute not only abolished the Common-Law Forms of Action; but, following the lead of the Code Reforms in the United States, undertook to wipe out the distinctions between Law and Equity, by establishing a Single Court with both Law and Equity Jurisdiction, so that the question in England ceased to be whether a plaintiff had a Cause of Action at Law or a Suit in Equity, and came to be one of whether he had a Cause of Action under the Law of England.’
9°. 2 Wm. TV, e. 39, 72 Statutes at Large 115 (1832).
97. 15 & 16 Vict,, e. 76, 92 Statutes at Large 255 (1852).
98. 36 & 37 Vict., c. 66 (1873).
99. 38 & 39 Yhet., e. 77 (1875).
1. Maitland, The Forms of Action at Common Law, Leeture 1, 8, 9, 10 (cambridge 1948).
TIlE EFFECT OF TIlE DEVELOPMENT OF THE FORMS OF ACTION
13. The Development of the Forms of Action, both Ancient and Modern, resulted in the Creation of a Formulary System of Procedure, under which each Form of Action came to stand for a more or less Specific Theory of Liability. WITH a view of the Historical Development of the Common-Law Actions, Ancient and Modem in mind, it immediately becomes evident why any attempt to define what constitutes a “Form of Action,” in advance of such a survey, is practically meaningless. Thus, it now appears that the student, before attempting a definition, should realize that the Forms of Action were not created at one stroke out of pre-existing raw materials; that they grew over a period of Several Centuries; that there was more than One Set of Common-Law Actions—the Ancient Real and Mixed, and the Modem Parsonal Actions
—the latter being almost completely substituted in lieu of the former after the Reformatory Legislation of 1833. It appears further that the student, as a condition precedent to an understanding of the Forms of Action, should first have some appreciation of the effect of the Norman Conquest in Centralizing Justice in the Crown; the~.organization and Development of the Superior-Common-Law Courts and their relation to the Local Courts and Franchises; the story of the Original Writ and its creation and effect; the dependence of Right upon Remedy; the connection between the Charge in the Original Writ and the Charge in the Declaration; the Power of Chancery to issue New Varieties of Original Writs; the effect of the Provisions of Oxford in 1258 in destroying Equitable Remedies based on earlier Common-Law Writs not of course, thus depriving the Common-Law Courts of the power to coerce obedience by orders in personam, and preparing the way for a vast expansion of Equity Jurisdiction; the various theories concern-
EFFECT OF DEVELOPMENT
ing the effect of the Statute of Westminster II (1283) upon the Writ System; the Classification of the Ancient Real Actions as Proprietary and Possessory; the ascendency and decline of the Ancient Real Actions; the Development of the Modem Real Actions; and finally, the emergence of the Modern Personal Common-Law Actions. Against this background only is it practicable for the student to draw any clear-cut conclusions as to what constitutes a “Form of Action.” The first step in this direction ought to be that of drawing the student’s attention to the distinctions between a “Form of Action” and a “Cause of Action”.
A Cause of Action and a Form of Action Distin gwished TO fully understand the Common-Law Forms of Action, the student must clearly distinguish between a Cause of Action and a Form of Action, At the very moment the first application was made to the Chancellor for the First Original Writ, it might be urged that there was no distinction, for until a sufficient number of Writs had been issued to develop a body of Substantive Law, no Cause of Action could exist except as an incident of the issuance of some Form of Writ. Once a given Writ had been used enough to find a secure place on the Register of Writs, it became one of a class known as the Writs of Course (brevja dc cursu), Such Writs were issued as of course to any applicant upon the payment of the appropriate fee. Writs which were issued upon application to the Chancellor, and which required an exercise of discretion, were known as Magisterial Writs (brevia magistralia) ~2 This latter type of Writ in the beginning was often varied to meet the varying circumstances of the Cases disclosed in the plaintiff’s Petition for Relief. Bracton, in speaking of the early Common-Law Scheme of Remedial Action, observed, Tot erunt formulae brcvium quot
stint genera actionum. There may be as many Forms of Action as there are Causes of Action. As he conceived the matter the Remedy (remedium) was in exact equilibrium with jus, or, as of then, where there was a Right of Action there was a Form of Action to vindicate an Alleged Wrong. Bracton’s view was justified, for as yet, Form was the servant and had not become the master; Form had only served as a procedural device for securing conciseness in the statement of the Grounds of Action. However this may be, the net result of the issuance of Writs of Course and Magisterial Writs was to develop a well-defined body of Substantive Law.
And once such a body of Substantive Law had been developed, the distinction between a Cause of Action and a Form of Action became vitally important if the plaintiff was to be successful in the statement of his Cause of Action. Thus, conceivably, it might be possible for a plaintiff to select the correct Form of Action to fit the particular combination of facts or events presented in his Case and yet, by failure to include in his Declara. tion one of the Allegations required by the Substantive Law as essential to the statement of his Cause of Action, he might utterly fail in the enforcement of his right. To illustrate, if A ousted B from Blackacre, the proper Form of Action for B to institute would be Ejectment. Since, however, under the Substantive Law of Real Property B was required to aliege Title, Ouster and Damages in order to state a good Cause of Action in Ejectment, failure on B’s part to allege Title would result in a failure to state a good Cause of Action. And the fact that B has selected the Correct Form of Action—Ejectment—would not save his Cause. If, however, the plaintiff had stated all the Allegations required by the Substantive Law of Real Property as essential to the Statement of a Cause of Action in Ejectment, but had selected as his Form of Action Trespass to
2. 3 Street, Foundations of Legal Liability, C. III,
29 (Northport 1900).
FORMS OF ACTION
Real Estate, he still would have met with defeat. The phrase “Cause of Action,” therefore, ilepends upon and is prescribed by the Substantive Law applicable to the Specific Facts of the Particular Case, whereas the phrase “Form of Action” goes to the Theory of Liability, that is, the plaintiff must state the Combination of Facts or Events on which he relies in such a manner as to invoke one of the categories of liability represented by what we cali a “Form of Action.” In other words it is descriptive of the technical Mode of Framing the Writ and Pleadings appropriate to the injury and to the theory of liability. Failure on the part of the plaintiff to achieve this end meant that his Action was dismissed. The plaintiff may therefore have failed for either of two reasons, first, because he had omitted from the Statement of his Cause of Action an Allegation required by the Substantive Law as essential to his Cause of Action; or second, because he has not presented his Cause of Action in the category of liability as called for by a Specific Form of Action. Selecting a “Form of Action,” then had to do with a theory of liability, it merely involved a selection of those Allegations required by the Substantive Law as essential to the Statement of a Specific Cause of Action.3
The Practical Importance of Distinguishing Between the Different Forms of Action
IN Maitland’s famous book on the Forms of Action at Common-Law,4 he attempts, at the inception of his treatment, to explain or define the Forms of Action by pointing out that the choice between the various Forms of Action—Novel Disseisin, Mort d’Ancestor, Writ of Entry, Quare Impedit, Covenant, Debt, Detinue, Replevin, Trespass, Ejectment, Case and Assumpsit—”is a choice between Methods of Procedure adapted to Cases of different kinds”, With the greatest defer-
3. Id. at 8, 9, 10.
4. The Forms of Action at Common Law, Lecture 1,
2, 3, 4 (Cambridge 1948).
ence to such a distinguished scholar, exception must be taken to this statement. It is rather, as previously observed above, a choice between different theories of liability as represented by the various Forms of Action, Pursuing his thought, Professor Maitland suggests, quite properly, that there were incidental differences between the different Forms of Action with respect to:
(I) Jurisdiction of the Courts.—Under this heading Professor Maitland observes that in most Civil Cases each of the Three Royal Courts was equally competent as to Jurisdiction, an end made possible by the use of a Fiction previously explained.~
(II) Process.—Here it is pointed out that sometimes the defendant’s Appearance is compelled by a Summons and sometimes he may be Attached; or he may be forced to find gage and pledge for his Appearance. In at least one action, the Assize of Novel Disseisin, his bailiff might be Attached.
In the event the defendant proves contumacious may one have his body seized, or, if he cannot be found, may he be outlawed? This barbaric Mode of Procedure was not applicable in all Forms of Action, although the tendency was in that direction. And the seizure of the thing in dispute varied with the Form of Action chosen.
(III) Pleading.—With respect to this topic, it is suggested that each Form of Action has some Rules which are peculiar to it; that is that the General Issue in each Form is different, as for example, Nil Debet in Debt, Non Assumpsit in Special Assumpsit, Not Guilty in Trespass to Realty, and in others Nul Tort or Nul Disseisin.
(IV) Judgment by Default.—}Iere the question is raised as to whether a Judgment may be obtained against an Adversary who is persistent in his contumacy, to which the
~‘ For expansion or the Jurisdiction of the ThreO Common.Law courts sec Stephen, A Treatise on the Principles of Pleading in Civil Actions, c. I, 40 (3d ed. by Tyler, Washington, B. C. 1892).
EFFECT OF DEVELOPMENT
answer seems Yes in some Forms of Action and No in others.
(V) Mode of TriaL—By the time the Forms of Action had reached a Status of Maturity, the chief Mode of Trial was by Jury. But there might be a Trial by a Grand or Petty Assize, and, of course, in an earlier time it was still possible that the issue could be determined by Trial by Battle. And finally, observes Professor Maitland, a few Issues were treated by the Judges who heard Witnesses.
(VI) Judgment.—If the plaintiff secures a Judgment how may it be enforced? On Execution may the plaintiff be placed in possession of the property in dispute? May the defendant be imprisoned or outlawed, or may he only be distrained? In addition to satisfying the plaintiff’s demand, may he also be punished for his violation of the Law, and if so, what shall be the nature of such punishment—an Amercement, a Fine or Imprisonment? These may differ with the Form of Action.
(VIE) Dilatory Character of Some Actions.—Some actions were susceptible to greater delay than others. Thus, in the Oldest Farms personal appearance of the parties was required, Attorneys being appointable by the King’s permission. Such Actions were subject to great delay, every type of excuse being allowed for the non-appearance, a short or a long Essoin being granted, as of course, there being no discretion. Again, in the Older Forms, an Essoin might be granted under which a party might betake himself to his bed for a year and a day, during which period of time the Action was Suspended.
(V~) Measure of Damages and the Period of Limitations.—Ta the above we may add that the Measure of Damages differed, depending upon what choice of Action was made, and, of course, the Statutes of Limitations varied according as the Form of Action fell in the Contract, Property or Tort Field.
Having concluded his story of the incidental differences between the different Forms of Action, Professor Maitland declares that “a Form of Action” implies “a particular Original Process, a particular Mesne Process, a particular Final Process, a particular Mode of Pleading, of Trial, of Judgment. But further to a very considerable degree the Substantive Law administered in a given Form of Action has grown up independently of the Law administered in other Forms. Each procedural pigeon-hole contains its own Rules of Substantive Law, and it is with great caution that we may argue from what is found in one to what will probably be found in another; each has its own Precedents. It is quite possible that a litigant will find that his Case will fit some two or three of these pigeon-holes. If that be so, he will have a choice, which will often be a choice between the old, cumbrous, costly, on the one hand, the modem, rapid, cheap, on the other. Or again he may make a bad choice, fail in his Action, and take such comfort as he can from the hints of the Judges that another Form of Action might have been more successful. The plaintiff’s choice is irrevocable; he must play the rules of the game that he has chosen. Lastly he may find that, plausible as his Case may seem, it just will not fit any one of the receptacles provided by the Courts and he may take to himself the lesson that where there is no Remedy there is no Wrong.” G
It may be admitted, as Professor Maitland says, that the Formulae of Pleading the Cause of Action and Defense, and even the Methods of Trial, Judgment and Execution, varied with the different Forms of Action. But this was not so in the beginning; it was not and could not be so until enough Writs had been issued to create the Forms of Action and a body of Substantive Law; these Forms of Action were not the product of a
I. Maitlanci, The Forms of Action at Common Law,.
Lecture J, 4, 5 (Cambridge 1948).
FORMS OF ACTION
classificatory process that was or could be applied to pre-existing materials. Drawing up a description of the incidental differences between the different Forms of Action or setting up a Classification of the Forms of Action after the fact may serve the purpose of assisting in the identification of the Actions as finally developed or it might have aided the Lawyer as a guide in the selection of a Form of Action, but neither of these steps seems calculated to define a Form of Action, or to aid a beginning student in understanding what constitutes a Form of Action prior to the time he has traced the step-by-step process by which these Forms of Action finally assumed Definitive Form. A list of the incidents of the Forms of Action and an effort at classification both necessarily come after the fact of Development became a reality. And all this merely emphasizes that a choice between the Various Forms of Action was a choice between different theories of liability, and not a choice between different Methods of Procedure or relief. It was the theory of liability which was the keynote in Selecting a Form of Action and not the Incidental Differences in Procedure. The proof of that is that when, under our Modern Codes, these incidental differences in Procedure were removed and, under the Single, Formless Form of Action, all the Procedure in all Actions was reduced to uniformity, the Forms of Action remained. Thus, if B converted A’s watch, A was no longer to sue in the Form of Action formerly known as Trover, but in order to State a Good Cause of Action in the Nature of an Action on the Case, he was required to allege Possession or Right to Possession, Act of Conversion, and Damages. The essential differences in the Forms of Action were therefore in the Allegations necessary to show the Right of Action, in each Form, or to invoke the correct theory of liability represented in the selection of a Specitic Form of Action; the incidents of Procedural Difference probably developed in point
of time long after the theory of liability had assumed its full play, in each Form of Action. The Law of the Forms of Action, therefore, is not the Law of Pleading and Practice, although the two are so intimately associated that it is easy to miss the distinction.
The Misco’itception of the Form.s of Action AS an incident of the development of the Forms of Action, Two Inflexible Rules of Pleading grew up, first that the Charge in the Declaration must conform to the Charge in the Original Writ; second, that the Charge proved at the Trial must conform to the Charge in the Declaration.7 Such Rules originated out of the fact that the Jurisdiction of a Specific Court was limited to the identical case as authorized by the Original Writ and developed by the Declaration. The same conformity was required in respect of the legal principle invoked, and not only in respect of the Facts alleged. Thus, as to Matters of Fact, the Proof must correspond with the Facts alleged; if the plaintiff Charges in his Declaration that the defendant took a black horse, and at the Trial offers evidence that the defendant took a white horse, he cannot succeed as he is guilty of a Variance between the Charge in the Declaration and the Proof at the Trial, which could be taken advantage of by a Motion For a Nonsuit. For a Variance between the Declaration and the Original Writ, a Plea in Abatement was the proper procedural device. A Variance between the Declaration and the Proof occurs when the plaintiff has misunderstood the actual state of Facts or has over-estimated his ability to prove what he alleged.
But a plaintiff may still lose although he knows the Facts of his case and is able to sustain the Burden of Proof; he may lose because of a mistake as to the legal effect of his Facts and as to the Legal Doctrine applicable thereto. Thus, suppose A charges
?. See floppy, Introduction to Civil Procedure, C. U,
1, 89, it. 43 (Buffalo 1954).
EFFECt OF DEVELOPMENT
B with conduct which he supposes amounts to a trespass when, as a matter of Substantive Law, the wrong in question actually creates a debt or amounts to no more than a conversion without a Trespass. If A in error sues B in Trespass, stating a case within the Law applicable to Trespass, it would constitute a glaring departure from true procedural principle to allow the plaintiff to recover for the debt or the proved conversion.8 In such a situation the plaintiff failed, because the Pleader, by the Form of Action in which he stated his case invoked a theory of liability or principle of Law relating to trespasses, whereas his right to recover was referable to an entirely distinct Doctrine of Law as represented by the Action of Trover. It follows therefore that the case proved is in legal implication entirely different from that Stated in the Declaration.9 The same principle operates where, in an Action of Trover, the plaintiff fails in his Proof of a conversion but succeeds in establishing a trespass, and hence plaintiff fails to recover, as he is relying upon a theory of liability for conversion which has no application to Trespass; 10 likewise, where the plaintiff alleges Trover, but merely shows that the defendant permitted the goods to spoil; 11 under the Form of the Action of Trover, the theory is one of liability for a conversion, but the true theory of liability is one for negligence which invokes another doctrine of law entirely different in origin and in theory from that invoked by the Action of Trover. So, if the plaintiff brings Debt against the defendant
B. Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 LEd. 913 (1895).
9. Even In the Code States where the Ponits of Ac. tion have been abolished, it is not possible to declare in Tort and recover for a Breach of Contract. Pomeroy, Code Remedies, c. JIr, 452, 623 (4th ed. by Bogle, Boston 1904).
10. Pouldes v. Willoughby, 8 M. & W. 540, 151 Bug. Rep. 1153 (1841).
11. Mulgrave v. Ogden, Oro.Eliz. 219, 78 Eng.Rep. 475,
for goods sold and delivered, whereas in fact the defendant undertook to purchase the goods, and then refused to accept the goods upon Tender, the Action is misconceived,’2 as it assumes a liability for debt when there is no debt, but only a liability based upon a Breach of Contract, a liability created by a Rule of the Law of Contracts. Moreover, if in Debt, the Pleadings and Proof show that the defendant, not being indebted to the plaintiff, proftrised to pay to the plaintiff a debt owed by a third person, the plaintiff cannot recover, there being no obligation imposed by the Law upon the defendant to pay the debt; the defendant, if liable, was liable under a legal doctrine based upon a Breach of Promise.
The mistake made by suing in a Form of Action which expresses a theory of liability not available in the case which the plaintiff has stated and proved is known as a Misconception of the Form of Action. Such a Defect is one of Substance, and has been insisted upon as a Fatal Defect, as it has been the policy of the Courts to preserve the Distinctions Between the Actions,13 which in fact merely amounts to the observance of the differences between the distinct theories of liability or principles of Law.’4 The History of the Forms of Action is the History of Substantive Law ‘~ THE Rules of the Substantive Law of Contract, Property and Tort have been evolved by inquiring in a myriad of specific instances whether the Combination of Facts or
12. For a similar Rule in New York under the Code.
Henry Glass & Co. V. Misroch, 210 App.Div. 783, 206
13. Reynolds v. Clarke, 8 Mod, 272, 88 Bug-Rep. 193 (1725).
14. Mitchell v. McNabb, 58 Me. 506 (1870).
15. It was In this very conneetlon that Sir Henry Maine observed that the Boles of Substantive Law had the appearance of being “secreted In the Interstices of Procedure.” Maine, Early Law and
Custom, 3S9 (New York, 1886).
Koffler & ReppycomLaw PIdg. H.B.—4
Events of the plaintiff’s case were covered by any recognized theory of liability, as represented by a Particular Form of Action. The primary question before the Courts was not one of whether the plaintiff in the statement of his case had alleged a right in him, a violation of that right by the defendant, and Damages. It has been rather, whether the Operative Facts presented constituted a Cause of Action which fit into the theory of liability as represented by some Specific Form of Action, such as Assumpsit, or Trespass. This was neither a Matter of Pleading nor of Procedure generally; it was a question of Remedial Right, the existence of the Right being dependent upon the existence of a Remedy.
From this it may be inferred that the list
-of Original Writs not only determined the Jurisdiction of the Royal Superior Common-Law Courts, but it determined the existence of Remedial Rights and Liabilities. Long after the Original Writs ceased to be essential to authorize the Courts to act in a specific case, the Judges felt impelled to consider the case exactly as if it had been begun by an Original Writ and to govern the exercise of their Jurisdiction according to the recognized occasions of Remedy. Even though the Writs became in time a mere formality, and were superseded as the Method of Commencing the Action, the Principle of Jurisdiction remained as if still actually governed by the Original Writ, and the theories of liability, as if represented by the various Forms of Action, were still observed as being the sole occasion of remedial intervention.10
The list of Original Writs as recorded in Chancery or as they appeared in the Regis
16. “The Writs were like doors to the King’s Courts; there was one for big dogs and a smaller one for little dogs; there were doors for yellow dogs and black dogs, and the door of Case for mongrel curs of no particular breed, but lust plain dogs.” Ship. man, Handbook of Common-Law Pleading, 60, a 11 (St. Paul 1923).
Ch. 2 1mm Brevum’7 was not a reasoned or well-rounded Scheme of Remedial Justice; it was not the product of a skilled Legislator selected by providence to calmly devise theorems of Remedial Rights for all conceivable wrongs. Nor was this list the result of a rational Classification of Theories of Liability or of Causes of Action according to the character of the Rights and claims to be presented; the Forms of Action, representing Theories of Liability, were relatively few and arbitrary, when measured by the myriads of human situations in which human beings were bound to be seeking some Form of Remedial Relief. Nor were the Theories of Liability as seen in the Forms of Action comprehensive and logical; they just grew; yet the stream of rights flowed down these channels, with the well recognized result that the history of these Theories of Liability is the History of the Development of English Substantive Law. Thus when Glanvill and Bracton wrote concerning the Law of England they were compelled to write about the Writs, as the Law could only be found in their interstices. In their thy this involved the Forms of Action known as the Ancient Proprietary and Possessory Real Actions; in a later or more modern day a discussion of Debt, Covenant, Account or Assumpsit, is necessarily a discussion of the development of the Law of Contracts; that of Trespass and Case is a discussion of the Law of Torts; that of Detinue, Replevin, Ejectment and Trover is usuaily a discussion of Property; in short, a History of the Forms of Action, both Ancient and Modern, would fall little short of a Complete History of the Common Law. Had the authority of the Clerks in Chancery been less restricted in their practice of issuing New Writs and had the Judges been more liberal in extending the Remedial Scope of the various Forms of Action,
17. See Maitland, History of the Register of OrigInal WrIts, 3 Harv.L.Rev. 97, 167, 212 (1889), it-printed In 2 Select Essays In Anglo-American Legal History, 549 (CambrIdge 1908).
64 FORMS OF ACTION
EFFECT OF DEVELOPMENT
and particularly the Great Residuary Remedy of the Common Law—the Action of Trespass on the Case—their Remedies might have effectually answered many of the purposes of a Court of Equity and thus made its creation unnecessary.
The Law was required to express itself through the Limited System of Writs and Forms of Action sanctioned by precedent, and little discretion was left to the Judge. The Common Law, thus hampered and restricted was found insufficient to meet certain demands for Justice; a distinct Tribunal arose, so it is said, to supply the deficiencies of the Common Law and to give Justice where the Common Law Remedies were inadequate, namely, the Court of Chancery, which in legal theory gave a Remedy where there was a right, on principles of natural justice, to meet the exigencies as they arose, so that no wrong should exist without a remedy. Aside from the soundness of these last observations concerning the Supplementary Functions of Equity, it is clear that the Classification and Definition of the Different Species of Contracts and Tarts, even at the present day, are based on the historic distinction between the different theories of liability as represented by the Forms of Action and the Remedies available thereunder. The test of the existence of liability and of the amount of Damages due may depend upon whether one Form or another is applicable. It follows, therefore, that in order to understand the intricacies of the Law, it is necessary to approach it by the study of the various theories of Remedial Right available under the Forms of Action at Common Law which have been recognized by the Courts. Or, to put the matter in a broader way, practically all of our Modern Substantive Contract, Property and Torts Law, had its origin in and developed out of the Theories of Liability represented by the Forms of Action and the Procedural Incidents thereto.
The Phrqse~ “Form of Action” Defined WITH the distinction between a Cause of Action and a Form of Action in mind, with some understanding of the different Doctrines of the Different Actions, with some comprehension of what constitutes a Misconception of a Form of Action, as ~veIl as the knowledge that the History of the Forms of Action is the History of Substantive Law, we are at last ready to attempt to define a “Form of Action.”
The phrase “Form of Action” has been defined as the “technical Mode of Framing the Writ, and Pleadings appropriate to the particular injury”,’8 as the Method of Procedure adapted to a specific kind of case. Nothing could be farther from the truth. The law governing Forms of Action is not the Law of Pleading or Procedure, though it is closely associated therewith. The choice of One Form of Action over Another is primarily a choice between different Theories of Substantive Liability, and the Scope of the Various Actions measures the existence and extent of liability at Common Law. In other words the Cause of Action had to fit the Theory of Liability as represented by a Specific Form of Action. And this remained true even when the incidental differences in procedure were removed, and the Procedure in All Actions was reduced to uniformity. Thus, after England and most states abolished the necessity of choosing one of these specified theories in Commencing an Action, the Forms of Action remained in substance. “The Forms of Action we have buried.” Yet, though we have buried them, observes Professor Maitland, “. . . they still rule us from their graves.” 19 The names and the-aries of the Forms of Action as they existed at Common Law still indicate the Recognized
18. 2 Warren, Law Studies, 759 (3d ed. London 3883); First Report, Common-Law Commissioners of 1851, 32; 1 Standard Encyclopedia of Procedure, Introduction, S (Los Angeles & Chicago 1911).
19. Maitland, The Forms of Action at Common Law, Lecture 1, 2 ~Cambridge 1948).
FORMS OF ACTION
Causes of Action, the occasions of liability, and the starting point of legal doctrine. The essential differences were in the Allegations of Fact necessary to show the Right of Action in each Form; in other words, in their respective grounds and theories of liability. And this is true even under the Code~° Some cases may fall under two or three of these theories of liability, and a litigant will have a choice or Election between them.
By way of summary then, it may be asserted that a “Farm of Action” is not a choice between Methods of Procedure or Relief; it is not to be confused with a Cause of Action; it is not a General Demand for Reilef based on a Specific Wrong as might be made under a Non-Formulary system of procedure. Rather a “Form of Action” may be defined as a Procedural Device whereby the primitive mind gave concrete expression to a theory of liability; it is a mechanism through which the doctrine or principle of Law applicable to the Statement of a Plaintiff’s Cause of Action may be enforced; it provides a scheme whereby it may be determined whether the plaintiff’s alleged Cause of Action fits into any judicially recognized Theory of Liability; it is a device, an incidence of the existence of which determines the Formulae of Pleading the Cause of Action and Defence, the Method of Proof and Trial, and the Judgment and Execution, these varying with each Form of Action; it is the Frame within which a plaintiff could suggest the facts constituting his Claim for Relief in accordance with the appropriate Rule of Substantive Law applicable thereto; and finally, it is the mechanism through which an unnamed short, but not unidentifiable Charge in the Original Writ—the keynote of the Form of Action—is, through the Statement of the
SO. “While the New Rules have abolished the distinctive Common-Law Forms, the essential and differentlathig Rules applicable to Pleading as estab. flailed at Common Law sUn sun,tve as a Basis of Remedial Law.” Minturn, S, In Ward t Huff, 94 N.J.L. 81, 84, 109 A. 287, 288 (1*20).
Substantive Facts in the Declaration, converted into an enforceable liability, the Declaration as finally developed being but an amplification of the Original Writ, “with the additional circumstances of time and place” 21 set forth in a more narrative and spacious form.
The Mode of Pleading Under Modern Codes and Practice Acts
THE Forms of Action as finally developed are usually associated and discussed with Common Law Pleading, but they relate to the Substantive Law of Contract, Property and Tort rather than to Procedure. Forms of Action are the recognized Theories of Liability through which the Common Law Rights of Action have been evolved, classified and formulated. As such they are much more important than any mere Rules of Pleading. The abolition of the requirement of selecting a particular one of these theories of liability has emancipated Pleading from arbitrary Variations of Procedure in different kinds of Actions. While necessarily the Rights and Liabilities and Defenses depend on Substantive Law, only the manner in which the Calm or Defense shall be set forth depends upon Rules of Pleading, which are made the same for All Actions in Modern Procedure. But there are still many Code States which insist that the Pleader shall select and adhere to some Theory of Liability in stating his Cause of ActionP
The Forms of Action, and the necessity of choosing between them, have been abolished by the Codes in the Several States, following the pattern set by the New York Code of Procedure of 1848.23 Thus, in New York,
21. 3 Blackstone’s Commentaries on the Laws of England, 293 (7th ed. Oxford 1775); Duyckinck V. Clinton Mutual Ins. (Jo., 23 NJ.L. 279 (1852).
St. 5hlpman, ffandbook of Common Law Pleading, 56, ii. 5 (St. Paul 1923); Albertsworth, The Theory of the Pleadings in Code States, 10 Calif.LRov. 202 (1922), reprInted in 94 CentLJ. 389, 400 (1922).
23. N.Y.Laws 1845, C. 379.
EFFECT OF DEVELOPMENT
“there is only one Form of Civil Action. The distinctions between Actions at Law and Suits in Equity, and the Forms of those Actions and Suits, have been abolished.” 24 In the famous New York case of Goulet v. Asseler,25in reference to this type of Statute Abolishing the Forms of Action, Selden, J., observed: “Although the Code [of Procedure] has abolished 26 all distinction between the mere Forms of Action, and every Action is now in Form a Special Action on the Case, yet Actions vary in their Nature, and there are intrinsic differences between them which No Law can abolish. It is impossible to make an Action for a direct aggression upon the plaintiff’s rights, by taking and disposing of his property, the same thing, in Substance
24. New York Civil Practice Law and Rules, § 103 (a) (1968), contains this provision.
25. 22 N.Y. 225 (1860).
or in Principle, as an Action to recover for the consequential injury resulting from an improper interference with the property of another, in which he has a contingent or prospective interest. The mere Formal Differences between such Actions are abolished; the Substantial Differences remain as before. The same Proof, therefore, is required in each of these Two Kinds of Actions, as before the Code, and the same Rule of Damages applies.” 27
In many of the States which retain the Forms of Action, the Common Law Forms have been combined or modified by Statute. In Massachusetts, actions were Classified as either in Contract or Tort, while in Michigan, at one time at least, Contract Actions were all called Assumpsit, and Tort Actions for Damages were called Trespass on the Case.
27. See, siso In this connection the New Jersey case of ward v. Huff, 94 N.J.L. 81 at 84, 109 A. 287 at 288 (1920).
26. Goulet v. Asseler, at al., 22 N.Y. 225 at 228.