Forms of Action

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.