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and the whole thereof, now on file in the office of the Clerk of Kings County, and certification thereof pursuant to Section 616 of the Civil Practice Act or otherwise is hereby waived.
Dated, January 24, 1928.
MATTHEW W. WOOD,
Attorney for Plaintiff-Respondent.
JOSEPH F. KEany,
Attorney for Defendant-Appellant.
NOTE: The Court of Appeals reversed the judgment and dismissed the complaint. Chief Judge Cardozo gave the opinion in which three judges concurred and Judge Andrews gave a dissenting opinion in which two judges concurred.
THE FORMS OF ACTION
THE ORIGINAL WRIT AND THE FORMS OF ACTION
STEPHEN, PLEADING (5th ed. 1843) *5_*9.2 ANCIENTLY it was essential to the due institution of all actions in the Superior Courts, that they should commence by original writ; 3 in the case of real and mixed actions this is still necessary. But in personal actions the use of original writs is abolished by the recent statute 2 Will. IV. c. 39 (1832).
The original writ (breve originale) is a mandatory letter issuing out of the Court of Chancery, under the great seal, and, in the King's name, directed to the sheriff of the county where the injury is alleged to have been committed, containing a summary statement of the cause of complaint, and requiring him to command the defendant to satisfy the claim; and, on his failure to comply, then to summon -him to appear in one of the superior courts of common law, there to account for his non-compliance. In some cases, however, it omits the former alternative, and requires the sheriff simply to enforce the appearance.
The original writs differ from each other in their tenor, according to the nature of the plaintiff's complaint, and are conceived in fixed and certain forms. Many of these forms are of a remote and undefined antiquity, but others are of later origin, and their history is as follows. The most ancient writs had provided for the most obvious kinds of wrong; but in the progress of society, cases of injury arose, new in their circumstances, so as not to be reached by any of the writs then known in practice; and it seems that either the clerks of the Chancery (whose duty it was to prepare the original writ for the suitor) had no authority to devise new forms to meet the exigency of such new cases, or their authority was doubtful, or they were remiss in its exercise. Therefore by the statute of Westminster 2, 13 Ed. I. c. 24, it was 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 till the next parliament, and write the cases in which they cannot agree, and refer them to the next parliament,” &c. This statute
1 Read Maitland, The Forms of Action at Common Law (1936) 1-72. 2 Footnotes omitted. 3 But see p. 24, n. 2, supra.
it will be observed, while it gives to the officers of the Chancery the power of framing new writs in consimili casu with those that formerly existed, and enjoins the exercise of that power, does not give or recognize any right to frame such instruments for cases entirely new. It seems, therefore, that for any case of that description, no writ could be lawfully issued, except by authority of parliament. But on the other hand, new writs were copiously produced, according to the principle sanctioned by this act, i.e., in consimili casu, or upon the analogy of actions previously existing: and other writs also, being added. from time to time, by express authority of the legislature, large accessions were thus, on the whole, made to the ancient stock of brevia originalia.
All forms of writs once issued, were entered from time to time, and preserved, in the Court of Chancery, in a book called The Register of Writs, which in the reign of Hen. VIII. was first committed to print and published. This book is still in authority, as containing, in general, an accurate transcript of the forms of all original writs as then framed. It seems, however, that a variation from the Register is not conclusive against the propriety of a form, if other sufficient authority can be adduced to prove its correctness.
An original writ (as already stated). was formerly essential in every case, to the due institution of the suit. These instruments have consequently had the effect of limiting and defining the right of action itself; and no cases are even now considered as within the scope of judicial remedy, in the English law, but those to which some known original writ (when these instruments were in universal use) would have applied, or for which some new original writ, framed on the analogy of those already existing, might, under the provisions of the statute of Westminster 2, have been lawfully devised. The enumeration of writs, and that of actions, have become, in this manner, identical.
CHITTY, PLEADING (2d ed. 1811) Vol. I, 86–87. ACTIONS are, from their subject-matter, distinguished into real, personal, and mixed. Real actions are for the recovery of real property only, and in which the plaintiff, then called the demandant, claims title to lands, tenements, or hereditaments in fee-simple, feetail, or for term of life, such as writs of entry, right, formedon, dower, &c. Personal actions are for the recovery of a debt, or damages for the breach of a contract, or a specific personal chattel, or a satisfaction in damages for some injury to the person, personal, or real property. In mixed actions, which partake of the nature of the other two, the plaintiff proceeds for the specific recovery of some real property, and also for damages for an injury thereto, as in the instance of an action of ejectment or of waste.?
i Footnotes omitted.
TRESPASS, CASE AND TROVER
1. Trespass to the person.
there has been an asportation (i.e., carrying away) of the chat
tels. 3. Trespass to land, called Trespass quare clausum fregit. 4. Trespass for enticing away a servant, called Trespass per quod
servitium amisit. The orthodox view has been that the action of trespass grew out of the early criminal procedure in appeals of felony.3. But more recent researches indicate that trespass in so far as it involves primarily the idea of damages grew out of the damage aspect of the assize of novel disseisin. This latter action did not wholly cover certain wrongs to land and chattels thereon, and Woodbine takes the position that trespass quare clausum fregit and de bonis asportatis grew up to deal with these wrongs, while tracing trespass to the person to the action quare imprisonavit as a remedy for feudal forays involving wrongs to land, chattels and persons. The damage idea in novel disseisin, which was wholly absent from the writ of right which the assize largely superseded in practice, appears to have been derived from the actio spolii of the canon law, which in turn was modelled on the Roman law interdict unde vi. Plucknett has further suggested a relation of the action of trespass to the early indictments for trespass before justices of the peace.5
It is probable that trespass has a double ancestry, the damage idea coming from the Roman and canon law by way of the assize of novel disseisin, and the quasi-criminal character of the writ from the appeals and indictments which the writ was superseding. What
1 See Ames, Lectures on Legal History (1913) 56-63, 219-230; 3 Street, Foundations of Legal Liability (1906) 223–244.
2 Maitland, The Forms of Action at Common Law (1936) 65.
3 See Maitland, The Forms of Action at Common Law (1936) 48–50. As to the appeal system, see also Ames, Lectures on Legal History (1913) 47–55. Appeals fell into disuse in England at a comparatively early date, but were not finally abolished until 1819, after the appeal of death brought in Ashford v. Thornton, 1 B. & Ald. 405 (K. B. 1819), in which trial by battle was demanded.
4 See Woodbine, “The Origins of the Action of Trespass,” 33 Yale L. J. 798 (1924), 34 id. 342 (1925).
5 Proceedings before the Justices of the Peace, Edward III to Richard III (ed. Putnam, 1938) cliv-clix.
6 See 2 Holdsworth, History of English Law (4th ed. 1936) xxxviii.
ever its origins, and probably because of them, trespass involves two primary elements: (1) use of force, originally violence (the vi et armis element), later translated into terms of "direct" injury; (2) harm to the plaintiff's person or to his possession of property. There must not only be damage, but damage of a particular kind done in a particular way.
Although trespass has come to lie where there is no actual violence, yet it is essential that the injury be a direct consequence of the defendant's act. “If a man throws a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, I must bring an action upon the case, because it is only prejudicial in consequence, for which originally I could have no action at all." 1
For injuries to property, real or personal, the form of action depends not merely on the nature of the connection between the defendant's act and the resulting injury to the plaintiff, but also on the nature of the plaintiff's interest in the property. Trespass lies only if the plaintiff-had a possessory interest in the property. If the plaintiff had only an easement, for example, or a future interest, case and not trespass is the proper form of action.
CASE.? By the Statute of Westminster II, 13 Edw. I, c. 24 (1285), it was provided that “whenever henceforth, it shall happen in the Chancery that in one case a writ is found and in a like case falling under the same law (right?) and requiring a like remedy 3 (no writ is found], then the clerks of the Chancery shall agree in making the writ, or they may adjourn the plaintiffs until the next parliament, and let them write the cases in which they cannot agree and refer them to the next parliament, and let the writ be made with the consent of the wise men of the law; and from henceforth, let it not happen that the court any longer fail complainants seeking justice." + "It has generally been assumed that from the power thus conferred upon the clerks of the Chancery arose what ultimately came to be a separate form of action, known as the action on the case. The orthodox view is that the clerks had this power to frame new writs originally, but that their power was cut down by the Provisions of Oxford, en· acted in 1258, which provided that the Chancellor should not seal any writ save writs of course without the command of the King and his Council, and that the Statute of Westminster restored the power.
1 Fortescue, J., in Reynolds v. Clarke, 1 Strange 634, 636 (K. B. 1722).
2 See 3 Street, Foundations of Legal Liability (1906) 245–277. The distinction between “trespass on the case” and “case” as separate actions suggested by Street seems lacking in basis. The historical fact appears to be that the action ramified, and that actions on the case developed in analogy to other older writs such as deceit, waste, etc., as well as to fit new kinds of wrongs.
3 The original Latin of this important phrase is : in consimili casu cadente sub eodem iure et simili indigente remedio.
+ The translation is that given in Dix, “The Origins of the Action of Trespass on the Case,” 46 Yale L. J. 1142, 1147 (1937).