be drawn, in particular as to the number of "essoins," excuses for non-appearance, that the litigants may proffer. Thus before the end of Henry's reign we must already begin to think of royal justice and this is becoming by far the most important kind of justice - as consisting of many various commodities each of which is kept in a different receptacle. Between these the would-be litigant must make his choice; he must choose an appropriate writ and with it an appropriate form of action. These wares are exposed for sale; perhaps some of them may already be had at fixed prices, for others a bargain must be struck. As yet the king is no mere vender, he is a manufacturer and can make goods to order; the day has not yet come when the invention of new writs will be hampered by the claims of a parliament; but still in Glanvill's day the "officina iustitiae" has already a considerable store of ready-made wares, and English law is already taking the form of a commentary upon writs. . . . The time has long gone by when English lawyers were tempted to speak as though their scheme of “forms of action” had been invented in one piece by some all-wise legislator. It grew up little by little. The age of rapid growth is that which lies between 1154 and 1272.1 During that age the chancery was doling out actions one by one. There is no solemn "Actionem dabo" proclaimed to the world, but it becomes understood that a new writ is to be had, or that an old writ, which hitherto might be had as a favour, is now "a writ of course." " It was an empirical process, for the supply came in response to a demand; it was not dictated by an abstract jurisprudence; it was conditioned and perturbed by fiscal and political motives; it advanced along the old Roman road which leads from experiment to experiment. . . . Our forms of action are not mere rubrics nor dead categories; they are not the outcome of a classificatory process that has been applied to pre-existing materials. They are institutes of the law; they are we say it without scruple - living things. Each of them lives its own life, has its own adventures, enjoys a longer or shorter day of vigour, usefulness and popularity, and then sinks perhaps into a decrepit and friendless old age. A few are still-born, some are sterile, others live to see their children and children's children in high places. The struggle for life is keen among them and only the fittest survive. The metaphor which likens the chancery to a shop is trite; we will liken it to an armoury. It contains every weapon of medieval warfare, from the twohanded sword to the poniard. The man who has a quarrel with his neighbour comes thither to choose his weapon. The choice is large; but he must remember that he will not be able to change weapons in the middle of the combat, and also that every weapon has its proper use and may be put to none other. If he selects a sword, he must observe the rules for sword-play; he must not try to use his cross-bow as a mace. To drop metaphor, our plaintiff is not merely choosing a writ, he is choosing an action, and every action has its own rules. The great difference between our medieval procedure and that modern procedure which has been substituted for it by statutes of the present century lies here: To-day we can say much of actions in general, and we can say little of any procedure that is peculiar to actions of particular kinds. On the other hand, in the middle ages one could say next to nothing about actions in general, 1 See above, vol. I, pp. 129, 174. 2 For an instance, see above, vol. II, p. 64. 3 Britton, I, p. 152: "Voloms qe nul ne soyt plede par autre." ... qe chescun bref eyt sa propre nature et while one could discourse at great length about the mode in which an action of this or that sort was to be pursued and defended.' It must not escape us that a law about "actions in general" involves the exercise by our judges of wide discretionary powers. If the rules of procedure take nowadays a far more general shape than that which they took in the past centuries, this is because we have been persuaded that no rules of procedure can be special enough to do good justice in all particular cases. Instead of having one code for actions of trespass and another for actions of debt, we have a code for actions; but then at every turn some discretionary power over each particular case is committed to "the court or a judge." .. Let us not be impatient with our forefathers. Discretion is not of necessity “the law of tyrants," and yet we may say with the great Romanist of our own day that formalism is the twin-born sister of liberty. As time goes on there is always a larger room for discretion in the law of procedure; but discretionary powers can only be safely entrusted to judges whose impartiality is above suspicion and whose every act is exposed to public and professional criticism. One of the best qualities of our medieval law was that in theory it left little or nothing, at all events within the sphere of procedure, to the discretion of the justices. They themselves desired that this should be so and took care that it was or seemed to be so. They would be responsible for nothing beyond an application of iron rules. Had they aimed at a different end, they would have "received" the plausibly reasonable system of procedure which the civilians and canonists were constructing, and then the whole stream of our legal history would have been turned into a new channel. For good and ill they made their choice. The ill is but too easily seen by any one who glances at the disorderly mass of crabbed pedantry that Coke poured forth as "Institutes" of English law; the good may escape us. But when we boast of "the rule of law" in England, or give willing ear to the German historian who tells us that our English state is a Rechtsstaat, we shall do well to remember that the rule of law was the rule of writs. When Ihering assures the unamiable English traveler who fights a "battle for right" over his hotel bill, that his is the spirit that built up the Roman law, he speaks of nothing new. In the thirteenth century our justices kept to the old Roman road of strict adherence to "word and form." From the alien Corpus Iuris they turned aside, just because the spirit that animated them was (though they knew it not) "der Geist des römischen Rechts."4 The last years of Henry III's day we may regard as the golden age of forms. We mean that this was the time in which the number of forms which were living and thriving was at its maximum. Very few of the writs that had as yet been invented had become obsolete, and, on the other hand, the common law's power of producing new forms was almost exhausted. Bracton can still say, "Tot erunt formulae brevium quot sunt genera actionum." A little later we 1 During cents. xvii, xviii, much was done by fiction towards introducing a uniform procedure in the only actions that were commonly used; but the first great statutory change was made by the Uniformity of Process Act, 2 & 3 Will. IV, c. 39. 2 Ihering, Geist des römischen Rechts, II (2) § 45: "Die Form ist die geschworene Feindin der Willkür, die Zwillingsschwester der Freiheit." 3 Ihering, Der Kampf um's Recht (10th ed.), 45, 69. As to what happened in France when the reverence for "word and form" disappeared, see Brunner, Wort und Form, Forschungen, pp. 272–273. Bracton, f. 413 b. shall have to take the tale of writs as the fixed quantity and our maxim will be, "Tot erunt genera actionum quot sunt formulae brevium." Only some slight power of varying the ancient formulas will be conceded to the chancellor; all that goes beyond this must be done by statutes, and, when Edward I is dead, statutes will do little for our ordinary private law. The subsequent develop ment of forms will consist almost entirely of modifications of a single action, namely, Trespass, until at length it and its progeny — Ejectment, Case, Assumpsit, Trover, will have ousted nearly all the older actions. This process, if regarded from one point of view, represents a vigorous, though contorted, growth of our substantive law; but it is the decline and fall of the formulary system, for writs are being made to do work for which they were not originally intended, and that work they can only do by means of fiction.1 4. A. WOOD RENTON, editor. Encyclopædia of the Laws of England. (1897. Vol. I, p. 110.) Actions. At an early stage of the history of the law of England as also of the law of Rome, France, and other continental nations - an attempt was made to group all legal proceedings under certain defined heads. And in each case the classification was unfortunately based, not so much on the right which the plaintiff desired to assert or enforce, as on the nature of the wrong done by the defendant, or the remedy which it was sought to apply to the case. It was, in short, a classification of the usual subjects of litigation; and to each class was allotted its appropriate formula of complaint or claim. In England such a formula was an essential part of the "original writ" (breve originale), with which the litigation commenced. The plaintiff's rights were regarded as synonymous, or as coextensive, with his cause of action; and even his cause of action was limited to cases in which an appropriate formula was known to the officers of the Court. Writs had been provided when or by whom we know not - for the most obvious kinds of wrong; but when, in the progress of society, novel causes of complaint arose, it was found that they were not covered by any of the writs in vogue. And the clerks of the Chancery (whose duty it was to prepare the original writ for the suitor) had apparently no power to devise a new formula to meet the case. They had before them an authoritative list of all the recognized forms of action; and this they regarded as an exhaustive catalogue of the injuries for which the law of England provided redress. If there was no formula to fit the case, the person injured had no remedy. To meet this difficulty, the Statute of Westminster the Second (13 Edw. I, c. 24) was passed, which provided, "That as often as it shall happen in the Chancery, that in one case a writ is found, and in a like case (in consimili casu) falling under the same right, and requiring like remedy, no writ is to be found, the clerks of the Chancery shall agree in making a writ, or adjourn the complaint to the next parliament." The clerks of the Chancery made liberal use of the power thus conferred on them. But it will be observed that they still had no power to deal with cases entirely unprecedented; they could only frame new writs analogous to those previously existing (compare the Roman actio utilis). Parliament, indeed, from time to time added new writs; but it still remained the law of England, down to 1875, that a plaintiff could only sue in one or other of certain defined and recognised forms of action; his writ must either be according to one of the ancient original forms, or "in consimili casu" therewith, or 1 [Compare F. W. Maitland's "Equity, also The Forms of Action at Common Law" (1909), pp. 295–386.] justified by some statute. If the plaintiff selected the wrong form of action, judgement went against him, and he had to pay the defendant's costs, although he was clearly entitled to recover on a different writ (see White v. Great Western Ry. Co., 1857, 2 C. B. N. s. 7). There were three different classes of actions real, personal, and mixed. There were three real actions (dower, writ of right of dower, and quare impedit), and prior to 3 & 4 Will. IV, c. 27, there were many more. There was one mixed action, ejectment (see Recovery of Land). There were seven principal forms of personal actions: debt, covenant, assumpsit, detinue, trespass, trespass on the case, and replevin, each of which is dealt with hereafter under a separate heading. And in some cases it was only by a costly process of elimination that a plaintiff could ascertain which was his proper remedy; for the Court never decided that no action lay on the facts stated to it, but only that no action lay in the particular form which the plaintiff had been advised to select. But all difficulty of this kind was removed by the Judicature Act, 1875. Forms of action are now in fact abolished. The plaintiff states the material facts upon which he relies, and claims the relief which he desires; there is no longer any necessity for him to specify the form of action in which he would formerly have had to seek that relief; for that is a conclusion of law, and he may safely leave the Court to draw the proper inference from the facts which he proves at the trial (Hammer v. Flight, 1876, 24 W. R. 346; 35 L. T. 127). Topic 2. Trespass and Case; their Distinction and General Scope 5. STATUTA REGIS EDWARDI [PRIMI] EDITA APUD WESTMONASTERIUM IN PARLIAMENTO suo. (Statutes at Large, Pickering's ed., 1762, Vol. I, pp. 163, 196, 197.) Whereas of late our Lord the King, in the Quinzim of Saint John Baptist, the Sixth Year of his Reign, calling together the Prelates, Earls, Barons, and his Council at Gloucester, and considering that divers of this Realm were disherited, by Reason that in many cases, where Remedy should have been had, there was none provided by him nor his Predecessors, ordained certain Statutes right necessary and profitable for his Realm, whereby the People of England and Ireland, being Subjects unto his Power, have obtained more speedy Justice in their Oppressions, than they had before; and certain Cases, wherein the Law failed, did remain undetermined, and some remained to be enacted, that were for the Reformation of the Oppressions of the People: Our Lord the King in his Parliament, after the Feast of Easter, holden the Thirteenth Year of his Reign at Westminster, caused many Oppressions of the People, and Difaults of the Laws, for the accomplishment of the said Statutes of Gloucester, to be rehearsed, and thereupon did provide certain Acts, as shall appear here following. . . . Cap. XXIV. . . . In Cases whereas a Writ is granted out of the Chancery for the Fact of another, the Plaintiffs from henceforth shall not depart from the King's Court without Remedy, because the Land is transferred from one to another. (2) And in the Register of the Chancery there is no special Writ found in this Case, as of a House, a Wall, a Market, but the Writ is granted against him that levied the Nusance. (3) And if the House, Wall, or such like be aliened to another, the Writ shall not be denied; but from henceforth, where in one Case a Writ is granted, in like Case, when like Remedy falleth, the Writ shall be made as hath been used before: . . . II. In like manner . . . whensoever from henceforth it shall fortune in the Chancery, that in one Case a Writ is found, and in like Case falling under like Law and requiring like Remedy, is found none, the Clerks of the Chancery shall agree in making the Writ; (4) or the Plaintiffs may adjourn it until the next Parliament, and let the Cases be written in which they cannot agree, and let them refer themselves until the next Parliament, by Consent of Men learned in the Law, a Writ shall be made, lest it might happen after that the Court should long time fail to minister Justice unto Complainants. 6. REGISTRUM BREVIUM (1595). Breve de transgressione in banco (fol. 93). Rex, vicecomiti Lincolni salutem. Si A. fecerit te securum de clamore suo prosequendo, tunc pone per vadium & saluos plegios B., quod sit coram iustitiariis nostris apud Westmonasterium in octauis sancti Michaelis; (Vel sic, quod sit coram nobis in octauis sancti Michaelis vbicunque tunc fuerimus in Anglia;) Ostensurus quare vi & armis in ipsum A. apud N. insultum fecit, & ipsum verberauit, vulnerauit & male tractauit: ita quod de vita eius desperabatur, & alia enormia ei intulit, ad graue damnum ipsius A, & contra pacem. nostram. Et habeas ibi nomina plegiorum & hoc breue. T. &c. 7. REGISTRUM BREVIUM (1595). Breve de sewera fracta (fol. 106 b). Ostensurus quare vi & armis ripas cuiusdam sewerae apud R. fregit, ita quod aqua, de eadem sewera per huiusmodi rupturam decurrens, terras & prata ipsius A. eidem sewerae adiacentia inundauit, per quod idem A. proficuum terrarum & pratorum suorum praedictorum totaliter amisit, & alia enormia &c. ad damnum ipsius A. centum librarum, & contra pacem nostram &c. 8. R. RosS PERRY. Common Law Pleading; its History and Principles. (1897. Appendix I, p. 435.) Declaration in an Action of Trespass for Assault and Battery, date, 1677. Hawe versus Planner. Trin. 17 Car. II. Regis. Roll. 925. Berkshire, to wit, Be it remembered that heretofore, to wit, in the term of St. Hilary last past, before our lord the king at Westminster, came Henry Hawe by James Rouse his attorney, and brought here into the court of our said lord the king, then there, his certain bill against John Planner, of the parish of Wokingham, in the county aforesaid, yeoman, in the custody of the marshal, &c., of a plea of trespass, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words; that is to say, Berkshire, to wit, Henry Hawe complains of John Planner, of the parish of Wokingham in the county aforesaid, yeoman, being in the custody of the marshal of the Marshalsea of our lord the king before the king himself, for that he on the 4th day of September, in the 16th year of the reign of our lord Charles the Second, now King of England, &c. with force and arms, &c. made an assault upon him the said Henry Hawe, at Wokingham aforesaid, in the county aforesaid, and him the said Henry then and there beat, wounded, and ill treated, so that his life was greatly despaired of, and other wrongs to him then and there did, against the peace of our said lord the now king, and to the damage of him the said Henry of 100l. and therefore he brings suit, &c. 9. SABIN D. PUTERBAUGH. Common Law Pleading and Practice. (1896. 70 ed., p. 633, No. 327.) Declaration in an Action on the Case for Corporal Injury: In the State of Illinois, Court. Term, 18-. sct. A. B., plaintiff, by E. F., his attorney, complains of the ...... railroad company, defendant, of a plea of trespass on the case: For that whereas the plaintiff, on, etc. in, etc., was riding in a certain carriage, |