The Forms of Action

Abstract

This chapter is concerned with writs, and principally with the ‘original’ writs which commenced an action at common law. Though designed as a means of administrative regulation, a decision to stop inventing new ones made them definitive of the common law. The procedures initiated by each type of writ – the ‘forms of action’ – dominated English law until the nineteenth century. The principal varieties of writ were praecipe (demanding a right) and trespass (complaining of wrong). The latter were at first limited to trespasses with force against the king’s peace, but this requirement was dropped around 1350 and writs of trespass ‘on the case’, tailored to a plaintiff’s facts, enabled the common law to begin its escape from the formulary system and to develop a wide range of new remedies. Some account is also given of judicial writs, which controlled process once a suit had been originated.