Forms of Action

Author:Jeffrey Lehman, Shirelle Phelps
 
INDEX
FREE EXCERPT

Page 461

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.

Real Actions

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...

To continue reading

FREE SIGN UP