Form of action
Encyclopedia
The forms of action were the different procedures by which a legal claim could be made in the early history of the English common law. While in modern English law
, as in most other legal systems, the focus is on the substance underlying an action, such as the existence of a legal right, in the early Middle Ages
, the focus was on the procedure that was used, while the substantive law underlying that procedure came second. In other words it is the form of action that was important and not the cause of action
as now.
. While at an early stage 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
.
Different forms of action would result in different procedures, so that one's chance of success could depend critically on the form of action which was used. The forms were also mandatory: if the wrong form were used, a case could fail.
For example, if a potential litigant wished to assert his rights over a plot of land, he could use a writ of right. This would assert his absolute right to the land in question – in itself a very desirable outcome – but the use of a writ of right could well result in a trial by battle, which might be undesirable. A much quicker and less dangerous method might be to use an assize of novel disseisin
, or later to assert his right to the land indirectly through an action of ejectment.
s in order to fit new types of cases within the forms available. Nevertheless, for centuries the forms themselves remained unchallenged. During the 19th century, Parliament
passed several laws to simplify legal procedure, and the old forms of action were gradually swept away.
For personal forms of action, the Uniformity of Process Act 1832 (2 Will. IV, c.39) imposed a single uniform process. The older forms of writ were abolished and a new form of writ was to be used, although the writ had to state the form of action that was being used.
The next year, most real and mixed actions were abolished, by the Real Property Limitation Act 1833 (3 and 4 Will. IV, c. 27, sec 36).
There then followed the Common Law Procedure Act 1852 (15 and 16 Vic., c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ. Finally, with the passage of the Judicature Act 1873, the last vestiges of the forms of action were removed.
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, the forms of action are now obsolete in the United States.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, as in most other legal systems, the focus is on the substance underlying an action, such as the existence of a legal right, in the early Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
, the focus was on the procedure that was used, while the substantive law underlying that procedure came second. In other words it is the form of action that was important and not the cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
as now.
Forms
English law knew a number of forms of action:- writ of right
- assize of novel disseisinAssize of novel disseisinIn English law, the Assize of novel disseisin was an action to recover lands of which the plaintiff had been disseised, or dispossessed. The action became extremely popular due to its expediency...
- assize of mort d'ancestorAssize of mort d'ancestorIn English law, the Assize of mort d'ancestor was an action brought where a plaintiff claimed the defendant had entered upon a freehold belonging to the plaintiff following the death of one of his relatives....
- writ of entry sur disseisin]] in the per and cui
- writ of besaiel
- writ of quare impedit
- action of covenant
- action of debt
- action of detinueDetinueIn tort law, detinue is an action to recover for the wrongful taking of personal property. It is initiated by an individual who claims to have a greater right to their immediate possession than the current possessor...
- replevinReplevinIn creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
- trespass
- assumpsitAssumpsitAssumpsit is a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing....
- ejectmentEjectmentEjectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
- case
- scire facias
England
One of the reasons for the crystallization of particular forms of action in English common law is the fact that actions, in the royal courts at least, were normally begun by the use of a writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
. While at an early stage the clerks of the Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
were permitted to devise new writs to deal with new situations, this freedom was drastically curtailed by the Provisions of Oxford
Provisions of Oxford
The Provisions of Oxford are often regarded as England's first written constitution ....
.
Different forms of action would result in different procedures, so that one's chance of success could depend critically on the form of action which was used. The forms were also mandatory: if the wrong form were used, a case could fail.
For example, if a potential litigant wished to assert his rights over a plot of land, he could use a writ of right. This would assert his absolute right to the land in question – in itself a very desirable outcome – but the use of a writ of right could well result in a trial by battle, which might be undesirable. A much quicker and less dangerous method might be to use an assize of novel disseisin
Assize of novel disseisin
In English law, the Assize of novel disseisin was an action to recover lands of which the plaintiff had been disseised, or dispossessed. The action became extremely popular due to its expediency...
, or later to assert his right to the land indirectly through an action of ejectment.
Abolition of the forms
Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of legal fictionLegal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s in order to fit new types of cases within the forms available. Nevertheless, for centuries the forms themselves remained unchallenged. During the 19th century, Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
passed several laws to simplify legal procedure, and the old forms of action were gradually swept away.
For personal forms of action, the Uniformity of Process Act 1832 (2 Will. IV, c.39) imposed a single uniform process. The older forms of writ were abolished and a new form of writ was to be used, although the writ had to state the form of action that was being used.
The next year, most real and mixed actions were abolished, by the Real Property Limitation Act 1833 (3 and 4 Will. IV, c. 27, sec 36).
There then followed the Common Law Procedure Act 1852 (15 and 16 Vic., c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ. Finally, with the passage of the Judicature Act 1873, the last vestiges of the forms of action were removed.
United States
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. 23 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
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
were promulgated pursuant to the Rules Enabling Act
Rules Enabling Act
The Rules Enabling Act is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure and other procedural court rules...
. 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, the forms of action are now obsolete in the United States.