since the complaint would be dismissed if the wrong writ were chosen, and it was difficult, because each set of facts had its own writ and the distinction between the different sets of facts became increasingly complex as the number of writs increased. In addition, each writ had its own special rules of procedure. Unlike what happens today in our courts, the question which a Court in 13th- 15th centuries would ask itself was not, “has the defendant broken some duty owed to the plaintiff” but, “has the plaintiff any form of action against the defendant and if so what Form of Action? ”
44 The main Forms of Action in Tort were basically two: The writ of Trespass and The writ of Trespass on the Case . The modern Law of Tort was born out of the two basic writs . In the early days of the Common Law there were no such branches as Torts, Criminal Law or even Law of Contract. Had some smart lawyer in the 14th century tried his hand to write a law book, he would have titled it: Law of Trespass, and certainly not Law of Torts or Criminal Law.
