The form “Trespass on the Case”
Now we shall turn to some detailed explanations of the form of action titled “Case,” or sometimes called, “Trespass on the Case.” This will be followed by descriptions of how a common law action proceeds.
At the time of Curia Regis, to commence a suit, one would first issue a demand called “the original writ” in which one demanded that another provide remedy for a wrong done. If they failed to fulfill the demand, then a summons was served, “to summon him before the king or his justicars at a certain time, to show cause why he had so failed” (Perry, 138). It appears that in time, this original writ evolved to become the ten forms of action which could be used to commence a suit (Perry 146-49).
McKelvey (4) briefly explains this evolution of the forms:
So originally, the causes of action were grouped together out of “convenience,” with suits grouped according to “similar causes of action,” each class of suit having two characteristics: “name and form of statement.” Name was an indicator of the form within. In time, with “the broadening of actionable wrongs,” new “classes of actions” were created. Thus the development of the common law forms of action.
The title of the original complaint by the Plaintiff for the suit at hand was “Action for Trespass on the Case,” approximately matching the title in the example above. Also by the quote above, the title just as well could have been “Case” or “Action on the Case.” Nevertheless, the paper which is first served in a suit would usually use one of the ten forms of action. The passage above also expresses the great flexibility which the common law affords, that it’s purpose is justice, and the forms are flexible such to accommodate new wrongs as the law evolves over time.
It is also worthy to note the phrase, “plaintiffs based their rights to relief upon ... theory,” which emphasizes even more so that the common law is not something written down, but is merely one’s own meditations about what is right and wrong – good common sense.
As mentioned, the “classes of actions, each [had their own] separate name and statement.” That statement itself was often referred to as a “declaration.” For the purposes of this brief, the class/form of action titled “Trespass on the Case” will be primarily discussed, as it is the one most applicable for a common law name change suit. As this form of action is highly related historically and in the form of its statements within to the form of action Trespass, Trespass will be also and firstly be discussed.
For greater clarity though, both Trespass and Trespass on the Case fall within the realm of being natural rights, not acquired rights. All of the forms of action fall in either one or the other. Acquired rights occur due to a contractual agreement. Conversely, natural rights are inherent to one’s person and property (31):
Among the natural rights, an example, in the instance of Trespass, is the right to be able to walk down the street without someone running their speeding bicycle into you causing you to break your arm in a fall. You have the unwritten “right to personal security,” to be able to peaceably walk down the street without harm coming to you. The same for all that one owns, if harming none, to freely enjoy.
McKelvey goes on to explain some of the history behind these categories of actions based on natural/original rights (32):
From this one can understand even more fully how common law is very much the study and understanding of history and principles. This passage also begins to reveal some of what the action of case is. More will be explained later.
Moving beyond understanding some of the larger groupings, Trespass itself upon a person carries some distinct requirements regarding the forms of statements necessary for its validity:
Oh the simplicity of the common law! If someone has injured your person, the only imperative for valid form is “a statement of the wrongful act.” Other declarations require more, but for injuries to the person, its pretty straightforward. And any statement about the law itself – one’s right not to be injured – need not ever be mentioned, for “the court is already informed of it” and such natural rights “cannot be questioned by the court or controverted by the defendant.”
A declaration of Trespass upon property carries just one more formal requirement – a statement of possession (34, 36):
Again we see that stating the law is unnecessary, only a statement claiming possession and another about the wrongs done regarding that possession.
Now we shall go into much more detail concerning the action of Case. As Case has been historically a remedial form used when one’s wrong fits into no other category, there is an abundance of information in the texts regarding its evolution to accommodate new forms of wrongs.
Both Perry and McKelvey have much to say on the matter of Case. Below we begin with Perry (77-8, 79):
So at first this form of action sought to draw in wrongs that did not quite fit into the category of trespass, but clearly needed a remedy. Later it has opened to encompass many more wrongs. In the suit at hand, it fits into this class of action as it “lie(s) generally to recover damages for torts not committed with force actual or implied,” for an injuries to both “the absolute and relative rights”, and the injuries are based on an act of “non-feasance.” Thus, this is the correct formal category for a name change suit.
Perry goes on to explain its continued extreme adaptability today, as the law organically evolves and expands (81-2):
So as our civilization grows, this wrong will become ever more important. One can only surmise that this is true, because in this form of action’s broad repertoire and in the light of a name or identity change suit, Case has the potential to mend non-physical injuries regarding issues of possession of personal identity and trespass upon it.
The quote above also uses two Latin phrases. “Vi et armis” meaning “with force and arms” (Black 1737) and “contra pacem” meaning “against the peace” (393). Considering the two, especially used together, it appears that the charge of wrong needs simply to not be concerning an act of physical violence, whether against one or many.
As well, because “the form of the declaration depends upon the circumstances ... there is greater variety in this than any other form of action.” This profoundly touches on the great value of substance over form embodied in this action, and that truly good substance is good form, not the reverse.
Moving on to McKelvey, he also has much to say (58):
McKelvey here provides many historical details of how this form came about. When a new form was needed, a new form was created, and that form was “Case.”
McKelvey (61-3) continues:
While some of the passage above covers other instances not related to a the hindrance of an identity change, it is instructive concerning the broadness of this form of action, and presents a deeper understanding of how this form of action may function.
Of particular value from the quote above is its insight into the forms of declaration for Case. Similar to Trespass, “the absolute or natural right” itself “need not be stated,” only “a statement of the wrongful act on the part of defendant” and sometimes if “necessary to state somewhat fully the circumstances, in order to connect the act with the injury, as its cause.” So if one did choose to serve and file a name/identity change suit at common law, one would in their declaration/statement: Stating the wrongful acts which the defendants had done, and give the details of those acts in the form of a statement of facts. By this we can understand that the plaintiff’s form, in both name and statement, are good.
McKelvey (63) also includes a summary in regard to the requirements of a Case:
The quote above is fairly straightforward regarding the statements residing as part of the form of action. As well, the indica of one’s name, gender, and other indica are clearly “of value [to the plaintiff], or from which the plaintiff rightfully enjoys a benefit.”
Part Two D -- How Do Common Law Suits Proceed?: Proceedings of a court of record