Forms of Action
FORMS OF ACTION
The old common-law patterns for different kinds of lawsuits.
A plaintiff could start an action only if it was possible to state the claim in words that followed one of the forms. The forms of action governed all common-law pleading.
Origin of the Forms of Action
The common-law forms of action were not planned and enacted like a statute, but they developed over hundreds of years out of the struggle to centralize justice in England. They were the first writs by which the king's courts took notice of a dispute and asserted its authority to resolve it. When William the Conqueror first established the English throne in 1066 there were already local courts that handled most legal disputes. The king's courts began to hear cases involving the assertion of royal rights and disputes between high noblemen.
In time, dissatisfied litigants from the community courts appealed to the king's courts for review of the decisions. The king's courts became one of his tools for consolidating his power, and the scope of the authority of the court reflected political struggles through the centuries.
A person who thought he had been wronged had to serve notice on the defendant, but something more was needed to engage the legal process that led to judgment. A court would examine the substance of the claim only if it were cast in the correct form. As courts were organized beyond the local level in medieval England, writs were designed to give recognition to the sort of disputes that were most important to the king. The possibility of obtaining relief, then, depended on the plaintiff's ability to fit his grievance into one of the available writs.
Royal power was first and most vigorously asserted in disputes involving land because all of society was organized under the land tenure system of the feudal law. The foundation of this system was the principle that no one should be deprived of his interest in real property without a fair judgment against him, and no one should be made to answer a challenge to his rights without the king's command in a writ. The protection of these individual rights was so important to the stability of the society that the procedures for resolving land disputes became very formal. The forms for these lawsuits, called real actions, determined the way facts could be presented to constitute a legal cause of action, the defenses to such claims, and the remedies available for a successful plaintiff.
By the early part of the thirteenth century, personal actions were allowed. A litigant could sue for money due on an account, make a demand for a certain sum of money, or demand a specific item of personal property. The action of replevin appeared for the recovery of personal goods wrongfully taken or withheld from the plaintiff. The action of covenant covered disputes arising from agreements under seal, originally covering leases of land but eventually contributing to the development of all contract law.
The most important form of action, the action of trespass, appeared later in the thirteenth century. The great legal scholar frederic william maitland once called trespass "that fertile mother of actions." It might have had its roots in the criminal law, a sort of appeal to redress the harm caused by the defendant's violence. The action of trespass became very popular because a form allowing the claim that force had been wrongfully used could cover a wide variety of injuries.
By the fourteenth century, forms were firmly established for trespass vi et armis ("with force and arms") for injuries to the plaintiff or his property, trespass de bonis asportatis ("for goods carried away"), and trespass quare clausum fregit ("whereby he broke the close") for an unlawful entry on the premises. The jurisdiction of the courts was thus enlarged and the chance of finding legal relief substantially increased.
The justification for extending the authority of the royal courts to cover personal actions for private wrongs was the claim that the trespass was committed vi et armis et contra pacem Domini Regis ("with force and arms and against the peace of the Lord King"). During the fifteenth century, this principle supported an additional form of action for cases where the plaintiff's injury was a more indirect result of the defendant's conduct. This action was called trespass on the case, action on the case, a trampling on the plaintiff's legal rights, or his case. Sometimes the action was simply called "case," and different forms were used for special circumstances, for deceit and for defamation, for example. This form gave birth to our entire modern system of negligence law.
The next important innovation was the action of trover, by which the ownership of personal property could be challenged. Originally, the claim was good only when the plaintiff had lost his goods and the defendant had found them, but later the action required no more than a claim that the defendant refused to turn over personal property that belonged to the plaintiff.
By the sixteenth century the action of assumpsit took over as the dominant form of action for recovering damages for a broken contract that was not under seal. Special assumpsit was an action brought on an express contract or promise, and general assumpsit allowed monetary damages for the failure to perform an obligation that arose out of the facts of the situation and was implied by the law. Our modern law of contracts developed from the old action of assumpsit.
Forms of Action in the United States
American colonies under English rule were less restrained by complicated distinctions among the various forms of action, probably because legal systems in the United States were less formal until a time when dissatisfaction with the technicalities of the forms was beginning to peak. For example, there were lawsuits where both trespass and case were used for the recovery of real property and for specific items of personal property. Trover and assumpsit frequently were used interchangeably.
As a result of the Federal Rules of Civil Procedure applicable in federal courts and adopted to a large degree by many state courts, there is only one form of action, a civil action.
Gordley, James. 2000. "The Common Law in the Twentieth Century: Some Unfinished Business." California Law Review 88 (December).
Hazard, Geoffrey C., Jr. 1988. "Forms of Action Under the Federal Rules of Civil Procedure." Notre Dame Law Review 63 (winter).