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.

Action.

46 Sect.

2.

Abolition of

Old Forms of Action. Keal Property Limitation Act, 1833.

summons, and, in cases in which it was intended to hold the defendant to special bail, a writ of capias. Both of these writs set out the form of action in which the defendant was sued, otherwise they were the same in each form of action. The following year saw another step taken towards the simplificaBy this time nearly all the varied forms of real tion of procedure. and mixed actions had either become obsolete or had been superseded by the action of ejectment and the Eeal Property Limitation Act, 183B (i), now abolished all except four of the original writs and forms of action in real and mixed actions. The four forms of real and mixed action which remained were those founded on the writs of right for dower, de dote unde nihil hahet, quare impedit, and writ of



ejectment.

Common Law Procedure Act, 1852.

In 1850 another Koyal Commission was appointed to examine and report on the condition of the common law of England. This Commission reported in favour of abolishing all forms of action, although they admitted that the feeling of the profession was very much divided on the question. The Common Law Procedure Act,

into

1852 {k), which was the first result of the investigations of the Commissioners, did not go to the length of abolishing forms of action altogether but it enacted that no form of action need be mentioned in the writ of summons (l), and that all forms of action (except ejectment and replevin) might be joined in one action (m). The practical effect of this was to leave as the only incident affecting forms of action the various periods of limitation of time in respect

of

Common Law Procedure Act, 1860.

them

(n).

In 1860, however, a second Common Law Procedure Act (o) abolished the forms of original writs in the three remaining real actions, viz., right of dower, de dote unde nihil habet, and quare

and substituted for them a writ of summons. The procedure introduced by the various Common Law Procedure

impedit, Judicature Acts.

Acts lasted over twenty years, until the Judicature Acts put a final end to forms of action by enacting that, in the writ of summons or the indorsement thereof, it should not be necessary to state the precise ground of complaint, or the precise relief the plaintiff claimed {p) The effect of this legislation, abolishing forms of action, has been to obviate the inconvenience and expense to plaintiffs who were nonsuited by reason of having selected the wrong form of action. {i) 3 & 4 Will. 4, c. 27, s. 36. In introducing the Bill into the House of Lords, Lord Lyistdhuiist said that the old forms were " antiquated, technical, obsolete, and little understood" (Hansard, 3rd ser., xviii. 793).

[h) [l)

15

&

16 Vict.

lUd.,

(m) Ibid.,

c. 76.

s. 3. s.

41.

The Common Law Procedure Acts " did not abolish forms of action in words. The Common Law Commissioners recommended that, but it was supposed that, if adopted, the law would be shaken to its foundations, so that all that could be done was to provide as far as possible that, though forms of action remained, there never should be a question what was the form " {per Bramwell, (n)

L.J., (o)

Ip) r. 1



Bryant v. Herbert (1878), 3 23&24yict. c. 126,8.26. Judicature Act, 1875 (38 Ord. 2, r. 1 Ord. 3, r. 2.

C. P.

&

D. 389, at

39 Yict.

p. 390).

c. 77),

Sched.

I.



E.

S.

C, Ord.

1,