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The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery (or file a bill) which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".
The forms of action were abolished during the 19th century, but they have left an indelible mark on the law. In the early Middle Ages, the focus was on the procedure that was employed to bring one's claim to the royal courts of King's Bench or Common Pleas: it was the form of one's action, not its substance, which occupied legal discussion. This restrictive approach is one of the reasons which attracted litigants to petition the King directly, which eventually led to the development of a separate court known as the Court of Chancery, from which the body of law known as equity derives. Modern English law, as in most other legal systems, now looks to substance rather than to form: a claimant need only demonstrate that he or she has a valid cause of action.
The substantive law lay buried beneath the various actions: medieval practitioners and judges thought procedurally, not substantively. Rights and duties which we would consider to be part of the law of property, tort, contract or unjust enrichment were not conceptualised as such.
In the early medieval period, justice was administered at a local level. Following the Norman conquest of England in the 11th century, a system of royal central justice gradually took shape. The principal royal courts were King's Bench, Common Pleas, and Exchequer. These royal courts were initially only interested in matters relating to the feudal system: that is, to land law. Accordingly, many of the earliest writs dealt with real property. For example:
Over time, the royal courts began to take notice of other cases. These early writs were in the praecipe form: they commanded that the defendant perform a certain act or else appear and explain why he had not done so. Examples include the writs of covenant, debt and account. Such writs demanded something as of right. The royal courts were initially only concerned with complaints of wrong if the wrong involved a forcible breach of the King's Peace. Such wrongs were enforced by a writ of trespass vi et armis contra pacem regis. During the 14th century the royal courts gradually allowed actions which did not involve breaches of the King's Peace. Instead, the plaintiff would set out his 'special case' in an extra clause, specifying the damage sustained which justified the bringing of an action. This was known as a trespass on the case. From the trespass on the case developed many other forms of action. Apart from the actions which dealt with real property, other significant forms of action include:
Many actions developed from the action on the case during the later history of the common law. The three most significant of these were:
One of the reasons for the crystallisation of particular forms of action in English common law is the fact that actions in the royal courts were commenced by use of a writ purchased in Chancery. Initially, the clerks of the Chancery were permitted to devise new writs to deal with new situations. This freedom was drastically curtailed by the Provisions of Oxford.
By the 14th century, the common law had begun to show some of its defects. First, different forms of action would result in different procedures, meaning that one's chance of success was strongly dependent upon the form of action which was used. The forms were mandatory: if the wrong form was used, a case would be dismissed with prejudice. Secondly, the common law had strict rules of evidence. For example, a deed was conclusive proof of a defendant's liability to pay. If a plaintiff brought a writ of debt sur obligation against the defendant, but the defendant had already paid the debt, the defendant would still be held liable to pay unless he could produce a deed of acquittance. Problems such as these prompted litigants to turn to the Court of Chancery, which had begun to develop judicial functions in the early 14th century.
Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of legal fictions in order to fit new types of cases within the existing forms.
For example, in a writ of debt sur contract, the defendant could generally elect between having a jury trial or wager of law. The latter was a particularly undesired option for a plaintiff because the defendant could hire oath-helpers. This and other restrictions (for example, that the sum the plaintiff sued for had to be a fixed rather than an unliquidated sum) made debt sur contract undesirable for enforcing oral contracts. In the 16th century, litigants began to bring an action on the case instead: an action of assumpsit. The plaintiff would allege that, because the defendant was indebted to the plaintiff, the defendant had undertook (assumpsit) to pay the money. The Court of King's Bench gradually accepted that the subsequent promise did not need not be proven: the defendant's alleged promise to pay the antecedent debt would be supplied by law. This view was vindicated in Slade's Case (1602).
The forms themselves remained unchallenged. The Court of Chancery eventually ceased to be the answer to the restrictive approach at common law. By the 16th century the intervention of the Chancellor was increasingly said to depend on principles, rather than on some unbounded discretion. Chancery developed a stronger system of precedent and, in the words of Professor Sir John Baker, "hardened into law".
During the 19th century, Parliament passed several laws to simplify legal procedure, and the old forms of action were gradually swept away:
With the abolition of the forms of action, it became necessary (and for the first time truly possible) to perceive the substantive law beneath the various actions. In terms of the private law of obligations, the following points can be noted.
The Common Law Procedure Act 1852 (15 and 16 Vic., c. 76) was enacted prior to the promulgation of the Colonial Laws Validity Act 1865 and while it was repealed in England, continued to apply by paramount force in South Australia. The Supreme Court Act 1935 grants to the Supreme Court of South Australia the like jurisdiction exercised by both the common law and equity courts of England prior to the enactment of the Judiciary Acts which included the initiation of a personal jurisdiction over a person in a case by virtue of the issue of a writ of summons. The judges of the Court were given power to regulate the procedure of the Court within jurisdiction and preserved the Rules of Court extant at 1935 in cases not otherwise provided for. The writ of summons is the common originating process, but takes a form approved under the present rules.
The forms of action survived much longer in the United States. New York was the first to abolish them, by enacting a Code of Civil Procedure in 1850 at the suggestion of David Dudley Field II. Twenty-three other states eventually followed. Section 307 of the California Code of Civil Procedure is a typical example of how the forms of action were abolished in those states: "There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs."
However, the forms of action persisted in the federal courts until 1938, when the Federal Rules of Civil Procedure were promulgated pursuant to the Rules Enabling Act. Rule 2, at that time, stated: "There shall be one form of action to be known as 'civil action.'" Since 35 U.S. states now use versions of the FRCP in their state courts and the remaining 15 states are all "code pleading" states, so the forms of action are now obsolete in the United States.