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CHAPTER 1. THE FORMS OF ACTION
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CHAPTER 1 THE FORMS OF ACTION SUMMARY The Relation of Writ and Remedy Thl Beginnings of Rl!Jal Intervention The Nature ofthe Earliest Writs Nt '" Writs WIder Henry II Pelty AssiZes, Seisin and Possession NII/ure and Origin of Nwel Dimi!in Scope of the Petty Allizer The Auizer Supplemented The Writ.t ofEntry The Ear/illl Form! ofPersonal AtJion.r: DebtDetinue Arrount Cwenanl The NetP Pattern of Writ The Action of Trespo!1 The Action ofReplevin The Origin of TmpoJS The Problem Re.rtaled Remoter OriginsTre !pall and Ca.re The Rill ofEjectment Assumpsit : Trover Actions Rea!and PCrllmal Actio Personalis Moritur cum Persona - \ PAGE 354 355 355 357 357 358 360 360 361 362 364 365 365 366 366 367 369 370 371 372 373 374 375 376 The forms of action are in themselves a proof that the King's Court only intended to intervene occasionally in the disputes of his subjects. It was no doubt possible to argue with perfect justice that the country was well provided with competent courts for all ordinary purposes, and that the King's Court was only concerned with matters of state and matters of special difficulty which could not be otherwise determined . A few classes of cases with which the King's Court concerned itself were therefore most naturally treated along formulary lines. They constituted one or two of the several routines of government which the administration had developed, and in order to handle them more easily it was a simple device to standardise the forms which were used. As long as this condition of things lasted a formulary procedure was clearly 353 354 PROCEDURE an advantage, and for a while it may have limited the activities of the administration and prevented them from overstepping the proper boundaries of their jurisdiction. THE RELATION OF WRIT AND REMEDY Whenever it became necessary to enlarge the scope of the King's Court, the change could be effected simply by the invention of a new set of forms, and so the early development of the jurisdiction of the King's Court very closely resembles the enlargement of the sphere of an administrative body by means of the invention of new administrative routines. Once the habit was formed, future development for a long time seemed simple. Glanvill had described a royal court which had very little interest in enlarging its jurisdiction beyond certain matters. Two generations later Bracton described this same court and shows us how greatly it had elaborated its machinery; indeed, Bracton was even ready to contemplate an indefinite expansion of the common law in virtue of which the King's Court was to administer a law as rich in its variety and as wide in its extent as the Roman Jaw itself. The means whereby such a prodigious expansion was to be effected (and indeed had already been begun) was the invention of new forms of action; many new forms were invented by Bracton's hero Raleigh, and Bracton had no hesitation in saying that there will be as many forms of action as there are causes of action. «There ought to be a remedy for every wrong; if some new wro~g be perpetrated then a new writ may be invented to meet it."1 This was a bold programme. It contemplated special sets of forms through which the King's Court would exercise general jurisdiction and afford a remedy for every wrong. One would expect that so ambitious a scheme would emanate from some great monarch such as Henry II, and in truth he may have taken the first steps in that direction; but it was under the comparatively weak rule ofHenry III that the greatest progress was made-and here we have a striking example of the way in which organisations such as the King's Court and Council could do effective and even constructive work although their nominal head was undistinguished. The secret seems to lie in a little group of lawyers whom we can only see, at this distance of time, in the appreciative pages of Bracton. As Maitland has observed, this formulary system is distinctively English,- " hut it is also, in II. certain sense, very Roman. While the other nations of Western Europe were beginning to adopt as their own the ultimate results of Roman legal history, England was unconsciously reproducing that history; it was developing a formulary system which in the ages that were coming would be the strongest bulwark against Romanism and sever...