Page:Halsbury Laws of England v1 1907.pdf/254

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Action.

32 Sect.

from suits in the Court of Chancery) were begun by purchasing (n) an original writ out of Chancery and each form of action was founded on a particular original writ (o) appropriate to it. These writs, which were mandatory letters under the Great Seal (p), had by the reign of Henry III. become limited in number and crystallised in form, as the clerks in Chancery then considered that they had no authority to issue an original writ for which they could not find a precedent consequently the number of forms of action was

1.

Old Forms



of Action,



also limited.

The Statute of Westminster the Second (q) provided a partial remedy for the difficulty thus thrown in the way of litigants by directing the clerks in Chancery to agree in making a writ where a case, for which no writ was to be found, fell under the " like law" and required a like remedy as another case for which a writ

Magistral writs.

Be

found

cursu

them from the

writs.



such writs were called magistral, to distinguish cle cursu, which were the earlier established

writs

forms.

The

by which actions came to be commenced in Bench and Exchequer upon imaginary original writs

legal fictions (?)

the King's affected

merely the procedure

in,

and not the form

of,

an action.

Actions were of three classes real, personal, or mixed. In personal actions the plaintiff claimed a debt, or sought to recover a chattel or damages in lieu thereof, or claimed satisfaction in damages for some injury done to his person or property. In real actions the plaintiff claimed the right to recover lands, tenements, and hereditaments. Mixed actions were suits partaking of the nature of both personal and real actions, some real property being demanded therein, and also personal damages for a wrong sustained (s).

Classes of actions.

Appeals were brought by means

judgment

of

actions

of

error or false

(0-

Sub-Sect.

1.

Beal Actions.

When

a person (technically called the " demandant ") claimed as against another (called the " tenant ") a right to the possession of, or an interest in, land, or in incorporeal hereditaments, he had, until the passing of the Eeal Property Limitation Act, 1833 {u), various real actions which he could institute to enforce his claim. It is beyond the scojDe of the present work to give a detailed account of these actions, each of which was generally named after the most important words of the appropriate writ but the chief of them

45.

Kinds of real actions.



{n) lu daj'-s when the granting of a writ was not a matter " of course," there was an actual bargain for the royal writ. (o) See Registrum Brevium and articles by Prof. Maitland in (1531), 3 Harvard Law Eeview, pp. 97, 167, 212. (f>) I.e., the King in Chancery. q) 13 Edw. 1, c. 24 ("in consimili casu "). {r) E.g., bills of Middlesex and latitat, and writ of quomirius, representing that the defendant was already in the custody of the King's Marshal, or that, by reason of his default, the plaintiff could not pay a debt to the King, whereby the Courts of King's Bench or Exchequer had seisin of the case. (s) See Com. Dig. tit. "Actions." (t) -

See

(u) 3

&

2^ost,

p. 45.

4 Will.

4, c. 27.