The judicial system in England developed two separate and distinct types of courts. These two systems of courts–law and equity–were independent of each other: they developed and expanded their jurisdictions separately and not as a complementary system. Even though these courts offered a litigant different types of relief, the litigant was forced to choose the correct court at his peril. A case commenced in one court could not be transferred to another court. On one side of the divide were the three common law courts. King’s Bench originally heard criminal cases and pleas of the crown. Common Pleas originally heard cases between subject and subject; it was held at a fixed place, which came to be Westminster. Exchequer originally heard revenue matters, then expanded its civil jurisdiction with the fiction that a person wronged by another person is less able to pay taxes, so such a case was in reality a revenue matter. The three common law courts contested with each
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other to expand their civil jurisdiction and eventually came to have essentially concurrent civil jurisdiction.
In these courts, a plaintiff pursued an “action at law” by filing a “claim” or “complaint” before a judge (or in the case of Exchequer, before a baron). The common law courts employed juries to decide questions of fact. The relief that these courts could grant was legal, which meant almost exclusively money damages. The common law courts developed a rigid system of writs that limited the types of actions that could be brought, as discussed in I.A.2, infra. These courts also became somewhat hidebound by the accumulation of their precedents.
On the other side of the divide was the court of equity. The court of Chancery became available to prevent individual injustices that could occur through the rigid operation of the common law. This court developed parallel to, and independent of, the common law courts.
In Chancery, a plaintiff pursued a “suit in equity” by filing a “bill” before a chancellor. The court decided cases by the conscience of the chancellor, who would attempt to do justice in the individual case. To that end, Chancery originally refused to create precedents, but as the years passed, an oral tradition arose, and then written precedents developed. The chancellor decided all aspects of the case, including questions of fact. Chancery used no juries. The relief that this court could grant was equitable, which meant forms of relief–such as injunctions, specific performance, and rescission– that were designed to make the plaintiff whole when legal relief was not adequate.
This divided, independent system of law and equity flourished in England in the seventeenth and eighteenth centuries, so the system was imported into the American colonies. It became the legal system of the American states, and endured until the adoption of code practice in the mid-to-late nineteenth century (and in many states that refused the codes for long afterward). The English system itself was transformed in 1873 when Parliament combined
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all the courts into the Supreme Court of Judicature with both common law and equity jurisdiction.
2. The Writ System in the Common Law Courts
The part of the English common law system of most interest for study of the historical roots of pleading a complaint is the writ system.20 Originally, a common law court secured jurisdiction over
a civil case when the King, or later the Chancellor, issued a writ to the sheriff to arrest the defendant and bring him before the court. As the years passed, these writs took on differing forms that hardened into separate categories that became summaries of the type of case.
The primary contract (ex contractu) writs in the common law courts were debt (for a fixed sum of money or specific chattel owed), covenant (for breach of an obligation under seal), assumpsit (for breach of an obligation not under seal), and account (for receipts and disbursements in a continuing relationship). The primary tort
(ex delicto) writs were trespass (for a direct and immediate injury to
person or property),21 case (for an indirect injury to person or
property),22 detinue (to recover a specific chattel), replevin (also to
recover specific chattels), and trover (for money damages against a person who converted a chattel).
20 See generally Frederic W. Maitland, The Forms of Action at Common Law (1948);
George B. Adams, The Origin of English Equity, 16 Colum. L. Rev. 87 (1916).
21 The writ of trespass was originally criminal, which developed to prevent breaches
of the King’s peace. The writ later further divided into trespass quare clausum fregit (q.c.t.) for injury to land, trespass de bonis asportatis (d.b.a.) for injury to chattels, and trespass vi et armis (with force and arms) for injury to person.
22 The distinction between the writ of trespass and the writ of (trespass on the) case
was the direct or indirect nature of the injury to plaintiff. It had nothing to do with intent of the defendant. For example, “[i]f a man throws a log into the highway, and in that act hits me, I may maintain trespass because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence.” Reynolds v. Clarke, 93 Eng. Rep. 747, 748 (K.B. 1726). Similarly, trespass lies against a defendant who feeds a dog poison; case lies against a defendant who leaves poison for a dog to find.
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3. Problems with Common Law Pleading
The primary problem with the common law pleading system was it became more of a game of skill for lawyers than a method of resolving disputes on the merits. First, plaintiff’s attorney was required to choose the correct writ to plead the case, for the wrong writ would put plaintiff out of court. In most cases, the choice was easy, but in too many cases the facts lay between writs or in no writ at all. Second, pleadings did all the heavy lifting in cases, at least until the time of trial. Pleadings had the functions of 1) giving the opponent and the judge notice of the nature of the claim (or defense), 2) weeding out groundless claims (or defenses), 3) revealing the facts of the case, and 4) narrowing the issues. Third, because the pleading system had the goal of narrowing the case to a single issue of law or fact, the case might require many pleadings back and forth. For example, a defendant who responded with a plea of confession and avoidance (today an affirmative defense) did not deny plaintiff’s complaint, so no issue was joined; plaintiff was required to replead a replication. Should that replication also plead in confession and avoidance, defendant was required to plead a rejoinder. The string could continue. Also, because the goal was a single issue, the common law severely restricted joinder of claims and parties.