Page:Halsbury Laws of England v1 1907.pdf/266

 Action.

44 Sect.

by justices in the sheriffs' county courts, in which vi et armis and contra pacem nostram'' were case the words The action of trespass was the earliest omitted from the writ. form of action for wrongs, and was the source from which were developed the action on the case, trover, and assumpsit. Originally the King's Courts did not take cognisance of trespass, and the remedy was either by a criminal appeal and wager of battle or by plaint in an inferior Court. By the time of King John, however, writs of trespass began to appear in the records, and by the end of the reign of Henry III. had become of frequent occurrence {i) while in the reign of Edward I. the writ was introduced into the Eegistrum Brevium. In later times, a practice grew up of commencing actions by what was called a common original writ of trespass quare clausum fregit, and then continuing ac etiain to set out the real cause of action. The fictitious trespass was subsequently abandoned or ignored, and It was not necessary to set the action proceeded on the true cause. out the ac etiain in the praecipe for the writ {k). Ejectment was originally a personal action of trespass to real property, but (as we have seen (Z)) became a mixed action, and the customary mode of trying the title to real property. All other violent wrongs to real property might be made the subject of an action of this form, the formula being " qiLare clausum fregit.'" An action of trespass also lay for voluntary waste against a tenant at will(??0 for cutting trees, fishing in ponds, or taking young hawks, for hunting in a warren, digging the soil and taking away sea coal etc. {n). The subject-matter of actions of trespass to personal property was the violent taking away of goods (o) etc. {quare bona et catalla asportavit). Where goods were wrongfully taken and detained the plaintifi* could bring his action either in trespass, detinue, replevin, or trover, and if they had been converted into money he could waive the tort and bring his action in assumpsit for money had and received to his use (p). Menaces, assaults, battery, wounding, mayhem, and false imprisonment were the principal wrongs for which redress was sought by trespass to the person. also be tried

1.

Old Forms of Action.

,

Writ qiiare clausum fregit.

Trespass to real property.

Trespass to personal property.

Trespass to the person.

74. The action of trover {q), which was a form of action on the but which developed into a separate form of action, was originally the remedy of a person who had lost personal property against the finder of it. By a legal fiction it became in time the appropriate form of action wherever a plaintiff sought to recover

Trover,

case,

Pollock and Maitland, Hist, of England, vol. ii. (2nd ed.), p. 525, note 2. Boyd V. Durand (1809), 2 Taunt. 161. (Z) See p. 35, ante. (m) Countess of Shrevjshury^s Case (1600), 5 Co. Eep. 13 b. {n) Fitz. Nat. Brev. 86, 87. (o) After 6 Edw. 1, c. 8, the plaintiff had to swear that the goods were

(?)

(k)

,

worth (p) .

40s.

Didwn

V.

Clifton (1766), 2 Wils. 319;

Broiun

v.

Dixon

Eep. 274. [q)

Com. Dig.

tit.

"Action upon the Case upon Trover."

(1786), 1

Term