chapter  2
CAUSES OF ACTION (a) Historical considerations: the forms of action
Pages 2

Bramwell LJ: It seems to me that the question in this case is, what is the meaning of the words ‘in any action founded on contract’, and ‘on any action founded on tort’… The words are not words of art even as much as ex contmctu or ex delicto would be. They are plain English words, and are to have the meaning ordinary Englishmen would give them. What is the foundation of an action? Those facts which it is necessary to state and prove to maintain it, and no others. This really seems a truism: unless those necessary facts exist, the action is unfounded. All other facts are no part of the foundation. There is a further observation. This statute passed after the Common Law Procedure Acts. They 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 actions remained, there never should be a question what was the form. This was accomplished save as to this very question of costs in actions within the county court jurisdiction. Until the passing of the statute [County Courts Act] we are discussing, it was necessary to see if an action was assumpsit, case, etc. But the Common Law Procedure Act having passed, and the forms of actions being practically abolished, the legislature pass this Act dropping the words ‘assumpsit, case’, etc, and using the words ‘founded on contract’, ‘founded on tort’. This shows to me that the substance of the matter was to be looked at. One may observe there is no middle term; the statute supposes all actions are founded either on contract or on tort. So that it is tort, if not contract, contract if not tort. Then is this action on the face of the statements of claim and defence founded on contract or on tort. All that is alleged is that the plaintiffs are owners of the picture, and that the defendant detains it. This means wrongfully detains it, not merely has in his possession, and negatively does not give it up. Then the action is manifestly founded on a tort on the pleadings. But so it is if the facts are looked at. I doubt if there was any contract between the parties… These are the considerations on which I think this case ought to be decided, and not by inquiries whether detinue is an action ex contractu or ex delicto. I think that the legislature intended that the substance of the action and not its form should be looked at. It leaves out what was in the former Act, ‘assumpsit, case’, etc, and uses general words ‘founded on contract’, ‘founded on tort’. But if the old learning as it was called is to be brought to help us, I should come to the same conclusion. No doubt dicta and decisions are to be found that detinue is an action ex contractu or ex quasi contractu, etc, but there are dicta and decisions the other way. It is not easy to make sense of them: perhaps the nature of the thing does not admit of it. It cannot be settled by saying that debt and detinue could be joined, and that actions of tort could not be joined with actions on contract. Actions on contract could not be joined, for example, debt and assumpsit. The reason being unconnected with the question whether

the action was ex contractu or ex delicto… But I believe that it was intended that all this useless, and worse than useless, learning should be disregarded, and the matter decided on its substance.