14. FIRST REPORT OF HER MAJESTY'S COMMISSIONERS FOR INQUIRING INTO the Process, PRACTICE, AND System of PleaDING IN THE Superior Courts OF COMMON LAW. (JOHN JERVIS, SAMUEL MARTIN, ALEXANDER EDMUND COCKBURN, WILLIAM HENRY WALTON, GEORGE WILLIAM BRAMWELL, JAMES SHAW WILLES.) (1851. pp. 31, 34, 72, 74.) It is admitted that serious inconvenience arises from the stringency of the existing rules respecting forms of action, both with respect to the misjoinder of forms of action, and their misapplication to the particular case. A few instances, not unfrequently occurring in practice, will be sufficient to explain the nature of the inconvenience complained of. . . . Trespass lies for direct injuries to person or property: Case is far more extensive than any other form of action, and is applicable as a remedy for what are called consequent injuries, that is, injuries supposed to arise indirectly and consequentially from the act complained of, - as slander, whereby the plaintiff's character is injured; negligent driving, whereby the plaintiff is run over and hurt; and the like. A familiar illustration of the difference between trespass and case may be stated:- Suppose a person throws a log of wood on a highway, and, by the act of throwing, another person is injured, the remedy in such case is trespass. But if the log reaches the ground, and remains there, and a person falls over it, and is injured, the remedy is case, as the injury is not immediately consequent on the act. So, if the defendant drive his carriage against that of another, the remedy may be trespass; but if the defendant's servant be driving, the remedy is case. One form of the action on the case is trover, which is a remedy for the wrongful conversion of goods. Case is said to be the remedy for all actionable matters of complaint to which the other forms of action do not apply. . . . We pass on to the important question of whether forms of action should still be retained. It may be difficult to define what is meant by a form of action Practically, however, it may be said to be the peculiar technical mode of framing the writ and pleadings appropriate to the particular injury which the action is intended to redress. By the established practice of pleading, peculiar forms of expression characteristic of each. action have been appropriated thereto, many of which are of a purely formal nature, and are wholly independent of the merits of the cause of action. Thus, as an instance, in those cases which, as we have already pointed out, trespass is the appropriate remedy, the plaintiff's declaration must state that the act complained of was done with force and arms, and against the peace, although the trespass may have been unaccompanied by violence; these allegations being unnecessary in case. Yet the distinction between the injuries to which these forms of action are respectively appropriate is, as we have already shown, often of a very shadowy nature, and the ground of complaint must in each case be set forth with sufficient distinctness and particularity, independently of these technical forms. . The necessity of adhering to these forms sometimes subjects declarations to objections on special demurrer, and has led to plaintiffs being defeated after establishing a good cause of action, on the ground that the form of action has been mistaken. It remains to be considered whether any countervailing advantage results from maintaining these forms. We think not. It appears to us that if the facts which constitute the cause of action be sufficiently set forth in the declaration, all the legitimate purposes of pleading are thereby accomplished, and that to incumber the pleading with formal requirements which afford no additional information, but which open a door to technical and captious objections, is not only useless but mischievous. We feel ourselves, however, bound to state, that much difference of opinion exists in the legal profession on this head. ... It is manifest, therefore, that as the question, whether there is a cause of action or not, must depend upon the facts and not upon the form adopted, the decision of a cause on the merits is not helped by means of these forms of action. . . . It is obvious, therefore, that, if our other recommendations be adopted, forms of action will exist in name only, and, as their general effect appears to us to be mischievous, we recommend their abolition. We recommend not only that merely formal expressions shall be unnecessary, but that they shall be disused. This will have several good results; it will get rid of formal and captious objections; it will shorten pleadings, free them of their verbiage, and make them more intelligible by being more like the language of every-day use. ... In order to illustrate the effect of our recommendation upon the form of pleadings, we give in the Appendix a set of forms, free from fictitious and unnecessary statements. . . Recommendations made in the foregoing report. ... 31. That every declaration and subsequent pleading which shall clearly and distinctly state all such matters of fact as are necessary to sustain the action, defence, or reply, as the case may be, shall be sufficient, and it shall not be necessary that such matters should be stated in any technical or formal language or manner, or that any technical or formal statements should be used. 59. That the technical forms of action be done away with. . . . Appendix. Forms to serve as examples: 26. That the defendant broke and entered certain land of the plaintiff called the Big Field, and depastured the same with cattle. 27. That the defendant assaulted and beat the plaintiff, gave him into custody to a policeman, and caused him to be imprisoned in a police office. 31. That the plaintiff was possessed of a mill, and by reason thereof was entitled to the flow of a stream for working the same, and delendant, by cutting the bank of the said stream, diverted the water thereof away from the said mill. 15. FIRST REPORT OF THE COMMISSIONERS OF THE STATE OF NEW YORK ON PRACTICE AND PLEADINGS (ARPHAXAD LOOMIS, DAVID GRAHAM, DAVID DUDLEY FIELD), 1848. Part II, Civil Actions; Title I, Of their Form. (Code of Procedure, pp. 81, 87.) Within some one of these forms of action, every injury to personal rights, which is the subject of legal redress, must be brought; and the failure to select the one which is strictly appropriate, is as fatal to the rights of the party, as his failure to sustain the merits upon which his claim to redress is founded. There is no branch of legal science upon which so much curious, and we may be permitted to add, unnecessary learning has been expended, as in the attempt to define the precise boundaries which distinguish these various forms of action; and the absurdities by which their early history and their present retention are attended, are full of instruction as to the necessity for a deliberate inquiry into the propriety of their further continuance. They are referred back, by - some of the elementary writers, to the sanction of the king's original writ, which formerly was, and even now, by fiction of law, is an essential preliminary form to the institution of a suit in the common law courts; and which, from the fact, that, from the most ancient times, it defined and determined the form of action, rendered the forms of writs and actions correlative terms, and led to the result that the former were regarded as evidence of the right. . . From the period of which we have been speaking - a period comparatively benighted and ignorant, in all that is valuable in science to the present, these forms have been adhered to with a sort of bigoted devotion. While the principles of legal science have expanded and adapted themselves to the exigencies of each successive age, through which they have passed, we find ourselves met with the standing argument against improvement, that the timehonored institutions of ages must be held sacred, and that these forms, which may have been well suited to the age in which they originated, must be left untouched. Is there, in truth, any soundness in such a doctrine? Can it be possible, that the progress which has characterized almost every age since that period, and which is the distinguishing feature of the present day, must stop in its application to the machinery by which rights are to be vindicated and wrongs redressed? While we are disposed to respect the opinions of those who differ from us, we cannot admit that these questions are difficult of solution. It seems to us clear, that neither the forms of remedies, nor the mode in which they are stated, require the complexity, in which both are now enveloped. The embarrassments, to which they have given rise, have resulted from no difficulty in determining the real rights of parties, but simply in the means of enforcing them; and in this respect, we feel no hesitation in recommending, that the retention of forms, which serve no valuable purpose, should no longer constitute a portion of the remedial law of this State. Let our Courts be hereafter confined in their adjudications to questions of substantial right, and not to the nice balancing of the question, whether the party has conformed himself to the arbitrary and absurd nomenclature, imposed upon him by rules, the reason of which, if they ever possessed that quality, has long since ceased to exist, and the continuance of which is a reproach to the age in which we live. . . . [We therefore recommend this provision:] 62. The distinction between actions at law, suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and there shall be in this State, hereafter, but one form of action, for the enforcement or protection of private wrongs, which shall be denominated a civil action. 16. CODES AND STATUTES OF CALIFORNIA, 1873. Code of Civil Procedure. (Pomeroy's ed., 1901.) Sect. 307. 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. 17. REVISED STATUTES OF THE STATE OF ILLINOIS, 1874. COMPILED AND EDITED BY HARVEY B. HURD, COMMISSIONER OF REVISION. Practice. (Chap. 110, § 22.) The distinctions between the action of "trespass" and "trespass on the case" are hereby abolished; and in all cases where trespass or trespass on the case has been heretofore the appropriate form of action, either of said forms may be used, as the party bringing the action may elect. 18. PUBLIC STATUTES OF MASSACHUSETTS, 1882. Forms of Declaration in Tort. (Chap. 167, §§ 1, 94.) Section 1. There shall be only three divisions of personal actions: First, Actions of contract, which shall include those heretofore known as actions of assumpsit, covenant, and debt, except for penalties. Second, Actions of tort, which shall include those heretofore known as actions of trespass, trespass on the case, trover, and all actions for penalties. Third, Actions of replevin. Sect. 2. The form of declaring in personal actions shall be according to the following particulars: First, The action shall be named in conformity with the division specified in the preceding section. Second, No averment need be made which the law does not require to be proved. Third, The substantive facts necessary to constitute the cause of action may be stated with substantial certainty, and without unnecessary verbiage. . . Sect. 94. The forms contained in the schedule annexed to this chapter may be used in the several Courts, subject to be changed and modified from time to time by the Supreme Judicial Court, by general rules made for the purpose. ...... Negligence of Town. "And the plaintiff says there is in the town of a public highway leading from to ......, which said defendants are bound to keep in repair; that the same was negligently suffered by defendants to be out of repair, whereby the plaintiff, traveling thereon and using due care, was hurt; and that due notice of the time, place, and cause of injury was given." Trespass to Person. "And the plaintiff says the defendant made an assault upon him, and struck him on his head, and kept him imprisoned for the space of one day." Trespass to Land. "And the plaintiff says the defendant forcibly entered the plaintiff's close, (describing it,) and ploughed up the soil, etc., and took and carried away fifty bushels of the plaintiff's corn there being, and converted the same to his own use." Topic 3. Nominal Damage and Substantial Damage 19. L. C. J. HOLT, in Ashby v. White. (1703. 2 Ld. Raym. 938, 950.) The single question in this case is, whether, if a free burgess of a corporation, who has an undoubted right to give his vote in the election of a burgess to serve in Parliament, be refused and hindered to give it by the officer, if an action on the case will lie against such officer. I am of opinion that judgment ought to be given in this case for the plaintiff. My brothers differ from me in opinion, and they all differ from one another in the reasons of their opinion; but notwithstanding their opinion, I think the plaintiff ought to recover, and that this action is well maintainable, and ought to lie. . . . If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal. . . . And I am of opinion, that this action on the case is a proper action. My brother Powell indeed thinks, that an action upon the case is not maintainable, because here is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there. And in these cases the action is brought vi et armis. But for invasion of another's franchise, trespass vi et armis does not lie, but an action of trespass on the case; as where a man has retorna brevium, he shall have an action against any one who enters and invades his franchise, though he lose nothing by it. So here in the principal case, the plaintiff is obstructed of his right, and shall therefore have his action. And it is no objection to say, that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompence. Suppose the defendant had beat forty or fifty men, the damage done to each one is peculiar to himself, and he shall have his action. 20. WEBB v. PORTLAND MANUFACTURING COMPANY CIRCUIT COURT OF THE UNITED STATES. 1838 3 Sumner, 189; Fed. Cas. No. 17322 BILL IN EQUITY for an injunction by the plaintiff to prevent the defendant from diverting a water-course from the plaintiff's mill, and for further relief. The facts admitted on all sides were that at the Saccarappi Falls, on the river Presempscut, there are two successive falls, upon which there are erected certain mills and mill dams, the latter being called the upper and the lower mill dams, and the distance between them is about forty or fifty rods; and the water therein constituted the mill pond of the lower dam. The plaintiff is the owner of certain mills and mill privileges, in severalty, upon the lower dam, and the defendants are entitled to certain other mills and mill privileges on the same dam, also in severalty. As to a portion of one of the mills, there was a controversy between the parties in regard to title; but that controversy in no essential degree affected the question presented to the Court. The defendants are the owners of a cotton factory mill near the left bank of the river, and opened a canal for the supply of the water necessary to work that mill, into the pond immediately below the upper dam; and the water thus withdrawn was returned again into the river immediately below the lower dam. The defendants insisted upon their |