Form of action
The forms of action were the different procedures by which a legal claim could be made in the early history of the English common law. While in modern English law, as in most other legal systems, the focus is on the substance underlying an action, such as the existence of a legal right, in the early Middle Ages, the focus was on the procedure that was used, while the substantive law underlying that procedure came second. In other words, it is the form of action that was important and not the cause of action as now.
English law knew a number of forms of action:
- writ of right
- assize of novel disseisin
- assize of mort d'ancestor
- writ of entry sur disseisin in the per and cui
- writ of besaiel
- writ of quare impedit
- action of covenant
- action of debt
- action of detinue
- action on the case
- scire facias
One of the reasons for the crystallization of particular forms of action in English common law is the fact that actions, in the royal courts at least, were normally begun by the use of a writ. While at an early stage the clerks of the Chancery were permitted to devise new writs to deal with new situations, this freedom was drastically curtailed by the Provisions of Oxford.
Different forms of action would result in different procedures, so that one's chance of success could depend critically on the form of action which was used. The forms were also mandatory: if the wrong form were used, a case could fail.
For example, if a potential litigant wished to assert his rights over a plot of land, he could use a writ of right. This would assert his absolute right to the land in question – in itself a very desirable outcome – but the use of a writ of right could well result in a trial by battle, which might be undesirable. A much quicker and less dangerous method might be to use an assize of novel disseisin, or later to assert his right to the land indirectly through an action of ejectment.
Abolition of the forms
Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of legal fictions in order to fit new types of cases within the forms available. Nevertheless, for centuries, the forms themselves remained unchallenged. During the 19th century, Parliament passed several laws to simplify legal procedure, and the old forms of action were gradually swept away.
For personal forms of action, the Uniformity of Process Act 1832 (2 Will. IV, c.39) imposed a single uniform process. The older forms of writ were abolished and a new form of writ was to be used, although the writ had to state the form of action that was being used.
The next year, most real and mixed actions were abolished, by the Real Property Limitation Act 1833 (3 and 4 Will. IV, c. 27, sec 36).
There then followed the Common Law Procedure Act 1852 (15 and 16 Vic., c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ. Finally, with the passage of the Judicature Act 1873, the last vestiges of the forms of action were removed.
The forms of action survived much longer in the United States. New York was the first to abolish them, by enacting a Code of Civil Procedure in 1850 at the suggestion of David Dudley Field II. Twenty-three other states eventually followed. Section 307 of the California Code of Civil Procedure is a typical example of how the forms of action were abolished in those states: "There is in this State but one form of civil actions for the enforcement or protection of private rights and the redress or prevention of private wrongs."
However, the forms of action persisted in the federal courts until 1938, when the Federal Rules of Civil Procedure were promulgated pursuant to the Rules Enabling Act. Rule 2, at that time, stated: "There shall be one form of action to be known as 'civil action.'" Since 35 U.S. states now use versions of the FRCP in their state courts and the remaining 15 states are all "code pleading" states, the forms of action are now obsolete in the United States.