Page:Halsbury Laws of England v1 1907.pdf/261

 — Forms of Action.

Part VII.

39

The action of attaint left a permanent trace on procedure, for by the Statute of Westminster the Second (/•) jurors were permitted to protect themselves by finding the facts and praying the aid of the Court, whether it be disseisin, or not if they said of their own accord that it was disseisin, " their verdict shall be admitted at their

^' ,

Old Forms of Actio n.



From this the peril." actions of all forms grew up. own

custom

of

finding special verdicts in

60. The action of audita querela (s) was an action of an equitable Audita 5'^^^^'^^*nature akin to trespass, and was a remedy provided for the benefit of a person who had been, or was in danger of being, taken in execution upon a judgment, a statute merchant, a statute staple, or a recognisance, when he had good cause to show against the justice It could thus be used to prevent an oppressive of such execution. exercise of the powers of the law where the threatened person had a good defence in fact or law, but could not set it up otherwise (t) so if A. acknowledged to a statute in the name of B., and then B. was taken in execution, B. could have a writ; and, since the action lay quia timet, the proper applicant could have his writ before execution was actually sued out against him (a)

.

61. The action on the case (b) owed its origin to the Statute of Westminster the Second, which authorised the clerks in Chancery to issue writs similar to those of which there were precedents to be found {. The formal part of the writ was worded similarly to that in trespass, omitting the words vi et armis. It was the remedy of plaintiffs who sought to recover damages in cases arising either quasi ex contractu or quasi ex delicto. The former class included actions where there was a contractual relation between the parties but where the real ground of action was some breach of duty collateral to the actual contract, e.g., mala ijraxis on the part of a surgeon {d), deceit on the sale of goods (e), waste etc., or (to take a modern instance) an injury to a railway passenger by reason of the negligence of the company's servants. The second class included actions in respect of such wrongs as public nuisances, the keeping of dangerous animals, libel, scandalum viagnatum(f), slander, wrongful refusal of bail by justices, malicious prosecution, conspiracy,

neghgence, infringements of patents or of copyrights, disturbance of rights of common, private nuisances, seduction, pound-breach, rescue, playing with false dice (r/) etc. In all cases where a man had a temporal loss or damage by the wrong of another, he might have an action on the case to be (r) (s)

[t)

13

Edw.

1, stat. 1, c.

30,

s. 2.

See Turner v. Davies (1670), 2 Saund. 148 Com. Dig. tit. "Audita Querela."

(1).

Eoll. Abr. 306 c, pi. 6. («) (/>) Pitz. Nat. Brev. 92 e. ((•) 13 Edw. 1, c. 24. The first instance of a writ in this found in the year-books of Edward II. 1

form

is

Pippin V. Sheppard (1822), 11 Price, 400. Eitz. Nat. Brev. 94 c. slander of certain exalted personages, e.g., peers, judges, (/)

said to be

(d) (e)

great {[))

officers.

Fitz.

Nat. Brev. 95 d.

and other

Case.