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Form of action

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810:(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and 16 Vic., c. 76) was enacted prior to the promulgation of the Colonial Laws Validity Act 1865 and while it was repealed in England, continued to apply by paramount force in South Australia.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 in 1935, for cases not otherwise provided for. The writ of summons is the common originating process, but takes a form approved under the present rules. 554:, a form of action known as indebitatus assumpsit took shape. This action developed several sub-forms known as the common money counts. These actions were initially used to enforce what we would call contractual liability, but they rested on the court implying that a defendant had promised to pay a sum of money to the plaintiff. This promise initially reflected reality, but came to be used fictitiously. Thus where A mistakenly paid money to B, the law would imply a promise by B that B would repay the money: A could then bring an action for money had and received and recover the mistaken payment. The defendant's obligation was not consensually undertaken, but imposed by law. From such actions came the 121: 184: 22: 63: 595:
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
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in the 11th century, a system of centralized royal justice gradually began to take 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
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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.
418:. 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 838:. 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. 751:, explicable in terms of consensually assumed obligation. But traces of the old forms of action remain. For example, it is not necessary to show that a claimant has provided consideration where she sues on a deed. This is because consideration was never a requirement in the action of debt 528:(1602). The medieval law of contract developed in a fractured way through the old actions of covenant, debt and account. In the 1500s litigants began to use the action on the case to enforce contractual agreements (with the exception of contracts under seal, for which debt 640:
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 undertaken
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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
282:(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". 739:
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.
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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."
645:) to pay the money. The Court of King's Bench gradually accepted that the subsequent promise did not need to be proven: the defendant's alleged promise to pay the antecedent debt would be supplied by law. This view was vindicated in 714:
c. 66), most of the last vestiges of the forms of action were removed. The flexible bill procedure of Chancery was adopted by the common law courts. It was now only necessary to state the facts sufficient to give rise to one's
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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
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case would be dismissed with prejudice. Second, 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
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The substantive law lay buried beneath the various actions: medieval practitioners and judges thought procedurally, not substantively. Rights and duties which are today considered to be part of the law of
681:. 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. 654:
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
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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
674: 696: 727:: the language of the original writs in which the sovereign commanded the defendant to appear in court and answer, or else. Lord Hailsham felt that "sending a command from 818:
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
578:, which also includes obligations enforced via the old actions of trespass (to the person, to goods, and to land), actions on the case, conversion, deceit, and defamation. 422:. 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: 73: 658:
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
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Many actions developed from the action on the case during the later history of the common law. The three most significant of these were:
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oath-helpers. This and other restrictions (for example, that the sum the plaintiff sued for had to be a fixed rather than an
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Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of
707: 314:, as in most other legal systems, now looks to substance rather than to form: a claimant needs only to demonstrate a valid 285:
The forms of action were abolished during the 19th century, but they have left an indelible mark on the law. In the early
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was too intimidating" for ordinary laypeople. The last original writ in the name of the queen was issued on 2 June 1980.
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At first, common law restitutionary obligations were appended to the law of contract and said to form a law of
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if the wrong involved a forcible breach of the King's Peace. Such wrongs were enforced by a writ of trespass
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c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ.
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The various writs which involved complaint of a civil wrong and a demand for a remedy came together in a
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the courts gradually accepted that such obligations were of another kind, underpinned by the concept of
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passed several laws to simplify legal procedure, and the old forms of action were gradually swept away:
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that states a Knowledge editor's personal feelings or presents an original argument about a topic.
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Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877
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Over time, the royal courts began to take notice of other cases. These early writs were in the
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In the early medieval period, English justice was administered at a local level, first through
289:, the focus was on the procedure that was employed to bring one's claim to the royal courts of 1256:"David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision" 1093: 1174: 1137: 1065: 1013: 819: 628:. The latter was a particularly undesired option for a plaintiff because the defendant could 988: 780: 776: 748: 589: 570: 537: 419: 336: 328: 8: 1347: 143: 41: 201: 139: 80: 1296: 1288: 835: 633: 267: 1300: 1180: 1143: 1099: 1019: 784: 303: 1278: 1270: 902: 762: 711: 700: 689: 678: 575: 332: 830:
However, the forms of action persisted in the federal courts until 1938, when the
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The various writs by which agreements could be enforced became part of a modern
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The next year, most real and mixed actions were abolished, by section 36 of the
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The final vestige of the forms of action was abolished in 1980 by Chancellor
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An Historical Sketch of the Equitable Jurisdiction of the Court of Chancery
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the House of Lords explicitly recognised the independent existence of the
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The Historical Development of Code Pleading in America and England
822:. Twenty-six other states eventually followed. Section 307 of the 444: 1098:(5th ed.). Oxford: Oxford University Press. p. 119. 617:
in order to fit new types of cases within the existing forms.
1142:(5th ed.). Oxford: Oxford University Press. p. 75. 1018:(5th ed.). Oxford: Oxford University Press. p. 63. 852: 275: 74:
personal reflection, personal essay, or argumentative essay
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the earliest writs dealt with real property. For example:
574:. The tort of negligence lies at the heart of the modern 456:("Trespass with force and arms against the King's peace") 493:
Action for money had and received to the plaintiff's use
550:(1602) that assumpsit could be brought in lieu of debt 588:
This freedom was drastically curtailed in 1258 by the
410:. The royal courts were initially only concerned with 993:. Cambridge: Cambridge University Press. p. 9. 130:deal primarily with England and do not represent a 478:Action on the case for words (Defamation, Slander) 972:Historical Introduction to the Law of Obligations 463:("Trespass on the case" or "action on the case") 1334: 1179:. New Haven: Yale University Press. p. 11. 1070:. Cincinnati: W.H. Anderson & Co. p. 25 266:could be made during much of the history of the 1163: 1128: 1126: 1124: 1122: 1004: 1002: 1000: 1057: 982: 980: 1206:See generally, Robert Goff and Gareth Jones, 1082: 128:The examples and perspective in this article 1119: 1053:. St. Paul: West Publishing Co. p. 474. 1048: 997: 775:. Motivated by the writing of scholars from 568:, the rapid expansion of which is traced to 522:, the rapid expansion of which is traced to 497:Action for money paid to the defendant's use 977: 50:Learn how and when to remove these messages 1233:"Supreme Court Act 1935 (South Australia)" 1049:Koffler, Joseph H.; Reppy, Alison (1969). 354:and the wapentakes, and later through the 1282: 1212:An Introduction to the Law of Restitution 1044: 1042: 608: 262:were the different procedures by which a 246:Learn how and when to remove this message 228:Learn how and when to remove this message 166:Learn how and when to remove this message 103:Learn how and when to remove this message 1139:An Introduction to English Legal History 1095:An Introduction to English Legal History 1015:An Introduction to English Legal History 955:An Introduction to English Legal History 930:An Introduction to English Legal History 558:. This area of law is now known as the 1169: 1063: 350:institutions such as the courts of the 1335: 1253: 1247: 1039: 734: 306:, from which the body of law known as 1132: 1088: 1008: 986: 857:Historians of English legal history: 566:The action on the case for negligence 532:was required), a shift vindicated in 1216:Principles of the Law of Restitution 938:Historical Foundations of the Common 708:Supreme Court of Judicature Act 1873 177: 114: 56: 15: 544:The action of indebitatus assumpsit 540:then gradually began to take shape. 13: 1254:Subrin, Stephen N. (Autumn 1988). 1064:Hepburn, Charles McGuffey (1897). 867:Sir Frederick Pollock, 3rd Baronet 824:California Code of Civil Procedure 801: 673:For personal forms of action, the 321: 14: 1364: 1320:The Forms of Action at Common Law 1311: 834:were promulgated pursuant to the 686:Real Property Limitation Act 1833 662:, "hardened into a kind of law". 343:were not conceptualised as such. 31:This article has multiple issues. 1218:(3rd ed, 2011); Andrew Burrows, 987:Kerly, Duncan Mackenzie (1890). 968:An Introduction to Legal History 832:Federal Rules of Civil Procedure 813: 182: 119: 61: 20: 1225: 1200: 1051:Handbook of Common Law Pleading 966:See generally, Sir John Baker, 620:For example, in a writ of debt 546:. Following the recognition in 39:or discuss these issues on the 960: 943: 918: 675:Uniformity of Process Act 1832 454:vi et armis contra pacem regis 416:vi et armis contra pacem regis 408:demanded something as of right 1: 1210:(1st ed, 1966); Peter Birks, 911: 808:Common Law Procedure Act 1852 697:Common Law Procedure Act 1852 1343:Common law legal terminology 891:John Baker (legal historian) 790:Lipkin Gorman v Karpnale Ltd 270:. Depending on the court, a 7: 841: 208:the claims made and adding 142:, discuss the issue on the 10: 1369: 970:(4th ed); David Ibbetson, 582: 360:Norman conquest of England 879:William Searle Holdsworth 861:Frederic William Maitland 665:During the 19th century, 433:("Debt on an obligation") 376:assize of mort d'ancestor 371:assize of novel disseisin 1353:Legal history of England 795:law of unjust enrichment 706:With the passage of the 695:There then followed the 660:Professor Sir John Baker 560:law of unjust enrichment 520:The action of assumpsit 348:traditional Anglo-Saxon 1263:Law and History Review 1208:The Law of Restitution 905:, Oxford and Cambridge 609:Abolition of the forms 489:Indebitatus assumpsit 440:("Debt on a contract") 83:by rewriting it in an 820:David Dudley Field II 556:law of quasi-contract 590:Provisions of Oxford 571:Donoghue v Stevenson 420:trespass on the case 148:create a new article 140:improve this article 735:The substantive law 412:complaints of wrong 1220:Law of Restitution 1171:Kessler, Amalia D. 836:Rules Enabling Act 769:Unjust enrichment. 426:Action of covenant 384:in the per and cui 380:Writ of entry sur 268:English common law 193:possibly contains 85:encyclopedic style 72:is written like a 785:unjust enrichment 729:the queen herself 712:36 & 37 Vict. 701:15 & 16 Vict. 690:3 & 4 Will. 4 679:2 & 3 Will. 4 603:Court of Chancery 486:Special assumpsit 449:Action of account 341:unjust enrichment 304:Court of Chancery 274:would purchase a 256: 255: 248: 238: 237: 230: 195:original research 176: 175: 168: 150:, as appropriate. 113: 112: 105: 54: 1360: 1318:F. 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Milsom 873:James Barr Ames 848:Cause of action 844: 816: 804: 802:South Australia 749:law of contract 737: 717:cause of action 656:Lord Chancellor 636:sum) made debt 611: 585: 538:law of contract 436:Action of debt 429:Action of debt 387:Writ of besaiel 356:manorial courts 324: 322:Forms of action 316:cause of action 260:forms of action 252: 241: 240: 239: 234: 223: 217: 214: 199: 187: 183: 172: 161: 155: 152: 137: 124: 120: 109: 98: 92: 89: 81:help improve it 78: 66: 62: 25: 21: 12: 11: 5: 1366: 1356: 1355: 1350: 1345: 1331: 1330: 1324: 1313: 1312:External links 1310: 1307: 1306: 1284:2047/d20002460 1275:10.2307/743686 1269:(2): 311–373. 1246: 1224: 1199: 1185: 1162: 1148: 1118: 1104: 1081: 1056: 1038: 1024: 996: 976: 959: 951:Sir John Baker 942: 926:Sir John Baker 924:See generally 916: 915: 913: 910: 909: 908: 907: 906: 900: 897:David Ibbetson 894: 888: 882: 876: 870: 864: 855: 850: 843: 840: 815: 812: 803: 800: 799: 798: 773:quasi-contract 766: 756: 753:sur obligation 736: 733: 721: 720: 704: 693: 682: 615:legal fictions 610: 607: 598:sur obligation 584: 581: 580: 579: 563: 541: 530:sur obligation 513: 512: 511: 510: 509: 508: 507: 506: 503: 501:Quantum meruit 498: 495: 487: 479: 476: 473: 470: 467: 457: 450: 447: 441: 434: 431:sur obligation 427: 400: 399: 394: 388: 385: 378: 373: 368: 323: 320: 254: 253: 236: 235: 190: 188: 181: 174: 173: 134:of the subject 132:worldwide view 127: 125: 118: 111: 110: 69: 67: 60: 55: 29: 28: 26: 19: 9: 6: 4: 3: 2: 1365: 1354: 1351: 1349: 1346: 1344: 1341: 1340: 1338: 1329: 1325: 1323: 1321: 1316: 1315: 1302: 1298: 1294: 1290: 1285: 1280: 1276: 1272: 1268: 1264: 1257: 1250: 1234: 1228: 1221: 1217: 1213: 1209: 1203: 1188: 1186:9780300222258 1182: 1178: 1177: 1172: 1166: 1151: 1149:9780198812609 1145: 1141: 1140: 1135: 1129: 1127: 1125: 1123: 1107: 1105:9780198812609 1101: 1097: 1096: 1091: 1085: 1069: 1068: 1060: 1052: 1045: 1043: 1027: 1025:9780198812609 1021: 1017: 1016: 1011: 1005: 1003: 1001: 992: 991: 983: 981: 973: 969: 963: 956: 952: 946: 940:Law (2nd ed). 939: 935: 931: 927: 921: 917: 904: 901: 898: 895: 892: 889: 886: 883: 880: 877: 874: 871: 868: 865: 862: 859: 858: 856: 854: 851: 849: 846: 845: 839: 837: 833: 828: 825: 821: 814:United States 811: 809: 796: 792: 791: 786: 782: 778: 774: 770: 767: 764: 760: 757: 754: 750: 746: 743: 742: 741: 732: 730: 726: 718: 713: 709: 705: 702: 698: 694: 691: 687: 683: 680: 676: 672: 671: 670: 668: 663: 661: 657: 652: 650: 649: 644: 639: 635: 631: 627: 623: 618: 616: 606: 604: 599: 593: 591: 577: 573: 572: 567: 564: 561: 557: 553: 549: 545: 542: 539: 536:. The modern 535: 531: 527: 526: 521: 518: 517: 516: 504: 502: 499: 496: 494: 491: 490: 488: 485: 484: 483: 480: 477: 474: 471: 468: 465: 464: 462: 458: 455: 451: 448: 446: 442: 439: 435: 432: 428: 425: 424: 423: 421: 417: 413: 409: 405: 398: 395: 393: 392:quare impedit 389: 386: 383: 379: 377: 374: 372: 369: 367:Writ of right 366: 365: 364: 361: 357: 353: 349: 344: 342: 338: 334: 330: 319: 317: 313: 309: 305: 300: 297:: it was the 296: 292: 288: 283: 281: 277: 273: 269: 265: 261: 250: 247: 232: 229: 221: 211: 207: 203: 197: 196: 191:This article 189: 180: 179: 170: 167: 159: 149: 145: 141: 135: 133: 126: 117: 116: 107: 104: 96: 86: 82: 76: 75: 70:This article 68: 59: 58: 53: 51: 44: 43: 38: 37: 32: 27: 18: 17: 1319: 1266: 1262: 1249: 1237:. Retrieved 1227: 1219: 1215: 1211: 1207: 1202: 1190:. Retrieved 1175: 1165: 1153:. Retrieved 1138: 1109:. Retrieved 1094: 1084: 1072:. Retrieved 1066: 1059: 1050: 1029:. 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Austlii 974:(2nd ed). 875:, Harvard 781:Cambridge 745:Contract. 692:. c. 27). 643:assumpsit 482:Assumpsit 459:Trespass 452:Trespass 397:Ejectment 382:disseisin 272:plaintiff 218:July 2018 206:verifying 156:July 2018 144:talk page 93:July 2018 42:talk page 1173:(2017). 1136:(2019). 1092:(2019). 1012:(2019). 957:(4th ed) 881:, Oxford 869:, Oxford 842:See also 725:Hailsham 651:(1602). 469:Nuisance 404:praecipe 390:Writ of 352:hundreds 337:contract 329:property 280:Chancery 138:You may 1326:Select 583:England 445:detinue 200:Please 79:Please 1328:Writs. 1322:(1909) 1299:  1293:743686 1291:  1239:22 May 1183:  1146:  1102:  1022:  777:Oxford 475:Deceit 308:equity 1297:S2CID 1289:JSTOR 1259:(PDF) 787:. 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