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 author-
ity 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 dis-
putes between high noblemen.
In time, dissatisfied litigants from the com-
munity 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 some-
thing 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.
Real Actions
Royal power was first and most vigorously
asserted in disputes involving land because all of
society was organized under the land tenure sys-
tem 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 with-
out the king’s command in a writ. The protec-
tion 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.
Personal Actions
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 cov-
ered disputes arising from agreements under
seal, originally covering leases of land but even-
tually contributing to the development of all
contract law.
The most important form of action, the
action of TRESPASS, appeared later in the thir-
teenth century. The great legal scholar FREDERIC
WILLIAM MAITLAND once called trespass “that
