810:(15 and 16 Vic., c. 76) was enacted prior to the promulgation of the Colonial Laws Validity Act 1865 and while it was repealed in England, continued to apply by paramount force in South Australia. The Supreme Court Act 1935 grants to the Supreme Court of South Australia the like jurisdiction exercised by both the common law and equity courts of England prior to the enactment of the Judiciary Acts which included the initiation of a personal jurisdiction over a person in a case by virtue of the issue of a writ of summons. The judges of the Court were given power to regulate the procedure of the Court within jurisdiction and preserved the Rules of Court extant in 1935, for cases not otherwise provided for. The writ of summons is the common originating process, but takes a form approved under the present rules.
554:, a form of action known as indebitatus assumpsit took shape. This action developed several sub-forms known as the common money counts. These actions were initially used to enforce what we would call contractual liability, but they rested on the court implying that a defendant had promised to pay a sum of money to the plaintiff. This promise initially reflected reality, but came to be used fictitiously. Thus where A mistakenly paid money to B, the law would imply a promise by B that B would repay the money: A could then bring an action for money had and received and recover the mistaken payment. The defendant's obligation was not consensually undertaken, but imposed by law. From such actions came the
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By the 14th century, the common law had begun to show some of its defects. First, different forms of action would result in different procedures, meaning that one's chance of success was strongly dependent upon the form of action which was used. The forms were mandatory: if the wrong form was used, a
362:
in the 11th century, a system of centralized royal justice gradually began to take shape. The principal royal courts were King's Bench, Common Pleas, and
Exchequer. These royal courts were initially only interested in matters relating to the feudal system: that is, to land law. Accordingly, many of
587:
One of the reasons for the crystallisation of particular forms of action in
English common law is the fact that actions in the royal courts were commenced by use of a writ purchased in Chancery. Initially, the clerks of the Chancery were permitted to devise new writs to deal with new situations.
418:. During the 14th century the royal courts gradually allowed actions which did not involve breaches of the King's Peace. Instead, the plaintiff would set out his 'special case' in an extra clause, specifying the damage sustained which justified the bringing of an action. This was known as a
838:. 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.
751:, explicable in terms of consensually assumed obligation. But traces of the old forms of action remain. For example, it is not necessary to show that a claimant has provided consideration where she sues on a deed. This is because consideration was never a requirement in the action of debt
528:(1602). The medieval law of contract developed in a fractured way through the old actions of covenant, debt and account. In the 1500s litigants began to use the action on the case to enforce contractual agreements (with the exception of contracts under seal, for which debt
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undesirable for enforcing oral contracts. In the 16th century, litigants began to bring an action on the case instead: an action of assumpsit. The plaintiff would allege that, because the defendant was indebted to the plaintiff, the defendant had undertaken
301:
of one's action, not its substance, which occupied legal discussion. This restrictive approach is one of the reasons which attracted litigants to petition the King directly, which eventually led to the development of a separate court known as the
282:(or file a bill) which would set in motion a series of events eventually leading to a trial in one of the medieval common law courts. Each writ entailed a different set of procedures and remedies which together amounted to the "form of action".
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With the abolition of the forms of action, it became necessary (and for the first time truly possible) to perceive the substantive law beneath the various actions. In terms of the private law of obligations, the following points can be noted.
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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."
645:) to pay the money. The Court of King's Bench gradually accepted that the subsequent promise did not need to be proven: the defendant's alleged promise to pay the antecedent debt would be supplied by law. This view was vindicated in
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c. 66), most of the last vestiges of the forms of action were removed. The flexible bill procedure of
Chancery was adopted by the common law courts. It was now only necessary to state the facts sufficient to give rise to one's
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against the defendant, but the defendant had already paid the debt, the defendant would still be held liable to pay unless he could produce a deed of acquittance. Problems such as these prompted litigants to turn to the
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case would be dismissed with prejudice. Second, the common law had strict rules of evidence. For example, a deed was conclusive proof of a defendant's liability to pay. If a plaintiff brought a writ of debt
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The substantive law lay buried beneath the various actions: medieval practitioners and judges thought procedurally, not substantively. Rights and duties which are today considered to be part of the law of
681:. 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.
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The forms themselves remained unchallenged. The Court of
Chancery eventually ceased to be the answer to the restrictive approach at common law. By the 16th century the intervention of the
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form: they commanded that the defendant perform a certain act or else appear and explain why he had not done so. Examples include the writs of covenant, debt and account. Such writs
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727:: the language of the original writs in which the sovereign commanded the defendant to appear in court and answer, or else. Lord Hailsham felt that "sending a command from
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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
578:, which also includes obligations enforced via the old actions of trespass (to the person, to goods, and to land), actions on the case, conversion, deceit, and defamation.
422:. From the trespass on the case developed many other forms of action. Apart from the actions which dealt with real property, other significant forms of action include:
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was increasingly said to depend on principles, rather than on some unbounded discretion. Chancery developed a stronger system of precedent and, in the words of
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Many actions developed from the action on the case during the later history of the common law. The three most significant of these were:
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oath-helpers. This and other restrictions (for example, that the sum the plaintiff sued for had to be a fixed rather than an
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Because the forms of action remained largely static from the 13th century, English lawyers and judges formulated a number of
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314:, as in most other legal systems, now looks to substance rather than to form: a claimant needs only to demonstrate a valid
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The forms of action were abolished during the 19th century, but they have left an indelible mark on the law. In the early
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was too intimidating" for ordinary laypeople. The last original writ in the name of the queen was issued on 2 June 1980.
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c. 76), which dropped the requirement that any particular form of action should be mentioned within a writ.
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The various writs which involved complaint of a civil wrong and a demand for a remedy came together in a
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the courts gradually accepted that such obligations were of another kind, underpinned by the concept of
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passed several laws to simplify legal procedure, and the old forms of action were gradually swept away:
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that states a
Knowledge editor's personal feelings or presents an original argument about a topic.
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Inventing
American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877
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Over time, the royal courts began to take notice of other cases. These early writs were in the
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In the early medieval period, English justice was administered at a local level, first through
289:, the focus was on the procedure that was employed to bring one's claim to the royal courts of
1256:"David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision"
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The final vestige of the forms of action was abolished in 1980 by
Chancellor
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An
Historical Sketch of the Equitable Jurisdiction of the Court of Chancery
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the House of Lords explicitly recognised the independent existence of the
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624:, the defendant could generally elect between having a jury trial or
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212:. Statements consisting only of original research should be removed.
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The
Historical Development of Code Pleading in America and England
822:. Twenty-six other states eventually followed. Section 307 of the
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1098:(5th ed.). Oxford: Oxford University Press. p. 119.
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in order to fit new types of cases within the existing forms.
1142:(5th ed.). Oxford: Oxford University Press. p. 75.
1018:(5th ed.). Oxford: Oxford University Press. p. 63.
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personal reflection, personal essay, or argumentative essay
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the earliest writs dealt with real property. For example:
574:. The tort of negligence lies at the heart of the modern
456:("Trespass with force and arms against the King's peace")
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Action for money had and received to the plaintiff's use
550:(1602) that assumpsit could be brought in lieu of debt
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This freedom was drastically curtailed in 1258 by the
410:. The royal courts were initially only concerned with
993:. Cambridge: Cambridge University Press. p. 9.
130:deal primarily with England and do not represent a
478:Action on the case for words (Defamation, Slander)
972:Historical Introduction to the Law of Obligations
463:("Trespass on the case" or "action on the case")
1334:
1179:. New Haven: Yale University Press. p. 11.
1070:. Cincinnati: W.H. Anderson & Co. p. 25
266:could be made during much of the history of the
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128:The examples and perspective in this article
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1053:. St. Paul: West Publishing Co. p. 474.
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997:
775:. Motivated by the writing of scholars from
568:, the rapid expansion of which is traced to
522:, the rapid expansion of which is traced to
497:Action for money paid to the defendant's use
977:
50:Learn how and when to remove these messages
1233:"Supreme Court Act 1935 (South Australia)"
1049:Koffler, Joseph H.; Reppy, Alison (1969).
354:and the wapentakes, and later through the
1282:
1212:An Introduction to the Law of Restitution
1044:
1042:
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262:were the different procedures by which a
246:Learn how and when to remove this message
228:Learn how and when to remove this message
166:Learn how and when to remove this message
103:Learn how and when to remove this message
1139:An Introduction to English Legal History
1095:An Introduction to English Legal History
1015:An Introduction to English Legal History
955:An Introduction to English Legal History
930:An Introduction to English Legal History
558:. This area of law is now known as the
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350:institutions such as the courts of the
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306:, from which the body of law known as
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857:Historians of English legal history:
566:The action on the case for negligence
532:was required), a shift vindicated in
1216:Principles of the Law of Restitution
938:Historical Foundations of the Common
708:Supreme Court of Judicature Act 1873
177:
114:
56:
15:
544:The action of indebitatus assumpsit
540:then gradually began to take shape.
13:
1254:Subrin, Stephen N. (Autumn 1988).
1064:Hepburn, Charles McGuffey (1897).
867:Sir Frederick Pollock, 3rd Baronet
824:California Code of Civil Procedure
801:
673:For personal forms of action, the
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14:
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1320:The Forms of Action at Common Law
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834:were promulgated pursuant to the
686:Real Property Limitation Act 1833
662:, "hardened into a kind of law".
343:were not conceptualised as such.
31:This article has multiple issues.
1218:(3rd ed, 2011); Andrew Burrows,
987:Kerly, Duncan Mackenzie (1890).
968:An Introduction to Legal History
832:Federal Rules of Civil Procedure
813:
182:
119:
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20:
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1051:Handbook of Common Law Pleading
966:See generally, Sir John Baker,
620:For example, in a writ of debt
546:. Following the recognition in
39:or discuss these issues on the
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675:Uniformity of Process Act 1832
454:vi et armis contra pacem regis
416:vi et armis contra pacem regis
408:demanded something as of right
1:
1210:(1st ed, 1966); Peter Birks,
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808:Common Law Procedure Act 1852
697:Common Law Procedure Act 1852
1343:Common law legal terminology
891:John Baker (legal historian)
790:Lipkin Gorman v Karpnale Ltd
270:. Depending on the court, a
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208:the claims made and adding
142:, discuss the issue on the
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970:(4th ed); David Ibbetson,
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360:Norman conquest of England
879:William Searle Holdsworth
861:Frederic William Maitland
665:During the 19th century,
433:("Debt on an obligation")
376:assize of mort d'ancestor
371:assize of novel disseisin
1353:Legal history of England
795:law of unjust enrichment
706:With the passage of the
695:There then followed the
660:Professor Sir John Baker
560:law of unjust enrichment
520:The action of assumpsit
348:traditional Anglo-Saxon
1263:Law and History Review
1208:The Law of Restitution
905:, Oxford and Cambridge
609:Abolition of the forms
489:Indebitatus assumpsit
440:("Debt on a contract")
83:by rewriting it in an
820:David Dudley Field II
556:law of quasi-contract
590:Provisions of Oxford
571:Donoghue v Stevenson
420:trespass on the case
148:create a new article
140:improve this article
735:The substantive law
412:complaints of wrong
1220:Law of Restitution
1171:Kessler, Amalia D.
836:Rules Enabling Act
769:Unjust enrichment.
426:Action of covenant
384:in the per and cui
380:Writ of entry sur
268:English common law
193:possibly contains
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729:the queen herself
712:36 & 37 Vict.
701:15 & 16 Vict.
690:3 & 4 Will. 4
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1134:Baker, John
1090:Baker, John
1074:18 November
1010:Baker, John
899:, Cambridge
893:, Cambridge
887:, Cambridge
863:, Cambridge
763:law of tort
576:law of tort
461:sur la case
312:English law
287:Middle Ages
264:legal claim
1348:Common law
1337:Categories
1155:August 26,
1111:August 26,
1031:August 26,
932:(4th ed);
912:References
667:Parliament
472:Negligence
466:Conversion
443:Action of
202:improve it
36:improve it
1301:145512997
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875:, Harvard
781:Cambridge
745:Contract.
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643:assumpsit
482:Assumpsit
459:Trespass
452:Trespass
397:Ejectment
382:disseisin
272:plaintiff
218:July 2018
206:verifying
156:July 2018
144:talk page
93:July 2018
42:talk page
1173:(2017).
1136:(2019).
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1012:(2019).
957:(4th ed)
881:, Oxford
869:, Oxford
842:See also
725:Hailsham
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404:praecipe
390:Writ of
352:hundreds
337:contract
329:property
280:Chancery
138:You may
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583:England
445:detinue
200:Please
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1328:Writs.
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475:Deceit
308:equity
1297:S2CID
1289:JSTOR
1259:(PDF)
787:. In
759:Tort.
146:, or
1241:2016
1194:2023
1181:ISBN
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1100:ISBN
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779:and
630:hire
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276:writ
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1271:doi
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