Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: CHAPTER II. THE FORM OF THE ACTION AND OTHER PRELIMINARIES. The history and constitution of the Court in which the action is commenced having been thus stated, the next consideration is the action itself. Assuming that the proposed plaintiff has suffered a civil injury, the first question for him is the form of the action which he should institute in order to obtain redress. In ancient times the
form of action was a question of vital importance to the plaintiff who if he chose the wrong form was liable to be defeated altogether. Strictness in the use of forensic formulae is a characteristic of the early legal history of most countries, and in England it originated in the practice of commencing all actions by
original writs.

Non potest quis, says Bracton, sine brevi agere. These writs which were addressed to the sheriff of the county and ordered him to enforce the appearance of the defendant in a Superior Court issued, as has already been said, out of the Court of Chancery, and were couched in certain unvarying forms of words. The suitor had his choice among these writs, and if he did not find a writ to fit hisgrievance, he was altogether without a remedy. Some relaxation of this rule was introduced by the Statute of Westminster the Second which provided that as often as it shall happen in Chancery that in one case a writ is found, and in a like case falling under the same right and requiring like remedy no writ is found, the Clerks in Chancery shall agree in making a writ. These writs being made in
consimili casu
with the older forms were the origin of the large class of actions called
case. The strictness of the rule as to forms of action often led to great injustice, and the Common Law Procedure Act, 1852, abolished the original writ in most actions…