1911 Encyclopædia Britannica/Writ
WRIT (O. Eng. gewrit, writ, from writan, to write), in law, a formal order from the crown or a delegated executive officer to an inferior executive officer or to a private person, enjoining some act or omission. The word represents the Latin brevis or breve (sometimes Englished into “brief” in the older authorities), so called, according to Bracton and Fleta, from its “shortly” expressing the intention of the framer (quia breviter et paucis verbis intentionem proferentis exponit).
The breve can be traced back as far as Paulus (about A.D. 220), who wrote a work Ad edictum de brevibus, cited in the Vatican Fragment, § 310. In the Corpus juris the word generally means a summary or report. In Cod. vii. 44, breviculum means a summary of the grounds of a judgment. The interdictum of Roman law sometimes represents the writ of English law; e.g. there is considerable likeness between the Roman interdictum de libero homine exhibendo and the English writs of habeas corpus and de homine replegiando. From Roman law the breve passed into the Liber feudorum and the canon law, in both in a sense differing from that at present borne by the writ of English law. The breve testatum of the Liber feudorum was an instrument in writing made on the land at the time of giving seisin by the lord to the tenant, and attested by the seals of the lord and the pares curiae or other witnesses. In England such witnesses were part of the inquest, and joined in the verdict in case of disputed right until 12 Edw. II. st. 1, c. 2. The breve testatum in England developed into the feoffment, later into the deed of grant; in Scotland into the charter, and later into the disposition. In canon law breve or brevlegium denoted a letter from the pope, sealed with the seal of the fisherman and less formal than a bull. In old English ecclesiastical law a brief—still named in one of the rubrics of the Book of Common Prayer—meant letters patent to churchwardens or other officers for the collection of money for church or charitable purposes. (For counsel's brief see under Brief.)
The writ in English law still occupies a very important position, which can scarcely be understood without a sketch of its history. History. The whole theory of pleading depends in the last resort upon the writ, the plaintiff's claim simply expanding its terms.
Writ or breve was at first used in a less technical sense than that which it afterwards assumed: thus in the Leges Henrici Primi it simply means a letter from the king, and in the Assize of Clarendon (1166) imbreviari means to be registered. It became formalized by the reign of Henry II., and precedents are given by Glanvill. The writ process was at that date the foundation of all civil justice in the king's court, and of much in the lower courts, and was a profitable source of revenue to the exchequer. Writs were not framed on any scientific scheme, but as occasion arose, and were frequently the result of compromise in the struggle between the king's and the lords' courts. Every writ had to be purchased (breve perquirere was the technical term). This purchase developed in later times into the payment of a fine to the king where the damages were laid above £40. The usual scale was 6s. 8d. for every 100 marks claimed. In suing out a writ of covenant, the basis of the proceedings in levying a fine, the king was entitled to his primer fine, i.e. one-tenth of the annual value of the land concerned. The sale of writs was forbidden by Magna Carta and other statutes in certain cases, especially that of the writ de odio et alia in favour of the liberty of the subject. A solicitor was so called because his original duty was to solicit or sue out a writ and take the due proceedings by paying the proper fine. The costs of a writ purchased were first allowed to a successful demandant by the Statute of Gloucester, 1278. The counterpart of the writ (contrabreve) was usually filed in court with the custos brevium. Through the Norman period the prerogative of issuing writs seems to have been undisputed. Glanvill's precedents did not exhaust all possible forms, for in the time of Bracton, in the 13th century, it was still possible to frame new writs at the pleasure of the crown. The Provisions of Oxford in 1258 put an end to this by enacting that the chancellor should not seal anything out of course (i.e. any writ for which there was no precedent) by the will of the king, but that he should do it by the council. In 1285 the Statute of Westminster the Second re-established the power of the crown within certain limits, that is, in causes of action in a similar case falling under the same law (in consimili casu cadente sub eodem jure) as those for which precedents of writs already existed in the chancery. These precedents were recorded about 1227 in the Registrum brevium, called by Sir Edward Coke the oldest book in the common law. Apart from the powers given by the statute, new writs could only be issued by the authority of parliament, and writs are sometimes found set out in statutes, especially in the Statutum Walliae, 1284, where precedents of the most usual writs will be found. The Statute of Westminster the Second itself contained precedents of the writ of formedon and of many others. The original flexibility of the writ was thus limited within comparatively narrow bounds. The right to the issue of the writ determined the right of action. If the writ was not sufficient to found an action, the writ was said to fail (cadere). So essential was the writ that it was a legal axiom in Bracton that no one could sue at law without a writ, and it was called by Coke, in his introduction to Littleton, “the heartstrings of the common law.” As such it occupied an important place in some of the leading statutes dealing with constitutional rights. The Statute of Marlbridge, 1267, forbade a lord to distrain his freeholders to answer for their freeholds, or for anything touching their freeholds, without the king's writ. By 25 Edw. III. st. 5, c. 4 (1342), it was accorded, asserted and established that none should be taken by petition or suggestion made to the king or his council unless by indictment or presentment in due manner or by process made by writ original at the common law. 42 Edw. III. c. 3 (1359) provided that no man should be put to answer without presentment before justices, or matter of record, or by due process and writ original according to the old law of the land. Both these statutes were recited and the general principle confirmed by 16 Car. I. c. 10 (1641). Uniformity of procedure was secured by 27 Hen. VIII. c .24 (1536), by which all writs were to be in the king's name in a county palatine or liberty, but tested by those who had the county palatine or liberty. It was not until 1731 that, by virtue of 4 Geo. II. c. 26, writs were framed in the English language. They had previously been in Latin; this accounts for the Latin names by which a large number are still known.
The writ was issued from the common law side of the chancery, and was in the special charge of the hanaper and petty bag offices. Though issuing from the king's chancery, it did not necessarily direct the trial of the question in the king's court. In whatever court it was returnable, it called in the aid of the sheriff as executive officer. It was either addressed to him or, if addressed to the party alleged to be in default, it concluded with a threat of constraint by the sheriff in the event of disobedience, generally in those terms, et, nisi feceris, vicecomes de N. faciat ne amplius clamorem audiam pro defectu justitiae. If the writ was returnable in the county court or the lord's court, the sheriff or the lord sat as the deputy of the king, not by virtue of his inherent jurisdiction. The writ was not necessary for the initiation of proceedings in these courts or before the justices in eyre, but a custom seems to have grown up of suing out a writ from the king where the claim was above 40s. Cases were transferred from the lord's court to the county court by writ of tolt (so called because it removed, tollit, the case), from the latter to the king's court by writ of pone (so called from its first word). By Magna Carta the power of bringing a suit in the king's court in the first instance by writ of praecipe was taken away, and the writ was thenceforth only returnable in the king's court where the tenant held of the king in capite, or where the lord had no court or abandoned his right. Hence it became a common form in the writ of right to allege that the lord had renounced his court (dominus remisit curiam) so as to secure trial in the king's court.
Besides being used for the trial of disputes, writs addressed to sheriffs, mayors, commissioners or others were in constant use for financial and political purposes, e.g. for the collection of fifteenths, scutage, tallage, &c., for summons to the council and later to parliament, and for dissolving a parliament, the last by means of the rarely occurring writ de revocation parliamenti.
There were several divisions of writs (excluding those purely financial and political), the most important being that into original and judicial, the former (tested in the name of the king) issued to bring a suit before the proper court, the latter (tested in the name of a judge) issued during the progress of a suit or to enforce judgment. Original were either optional, i.e. giving an option of doing a certain act or of showing cause why it was not done, beginning with the words praecipe quod reddat, the principal example being the writ on which proceedings in a common recovery (see Fine) were based, or peremptory, i.e. calling on a person to do a certain act, beginning with the words si A. fecerit te securum. Original were also either de cursu (also called by Bracton formata) or magistralia, the former those fixed in form and depending on precedent, the latter those framed by the masters in chancery under the powers of the Statute of Westminster the Second. They were also either general or special, the latter setting forth the grounds of the demand with greater particularity than the former. In regard to real estate they might be possessory or ancestral. By 5 Geo. II. c. 27 (1732) special writs were confined to causes of action amounting to £10 or upwards. There was also a division of writs into writs of right (ex debito justitiae), such as habeas corpus, and prerogative writs (ex gratia), such as mandamus and prohibition. Coke and other authorities mention numerous other divisions, but those which have been named appear to be the principal.
The most interesting form of writ from the historical point of view was the writ of right (breve de recto), called by Blackstone “the highest writ in the law,” used at first for debt and other personal claims, afterwards confined to the recovery of real estate as the writ of right par excellence. It was so called from the words plenum rectum contained in it, and was the remedy for obtaining justice for ouster from or privation of the freehold. By it property as well as possession could be recovered. It generally lay in the king's court, as has been said, by virtue of a fictitious allegation. In that case it was addressed to the sheriff and was called a writ of right close. When addressed to the lord and tried in his court, it was generally a writ of right patent. After the appearance of the tenant the demandant in a writ of right counted, that is, claimed against the tenant according to the writ, but in more precise terms, the writ being as it were the embryo of the future count. The trial was originally by battle (see Trial), but in the reign of Henry II. an alternative and optional procedure was introduced, interesting as the earliest example of the substitution of something like the jury (q.v.) for the judicial combat. A writ de magna assisa eligenda was directed to the sheriff commanding him to return four knights of the county and vicinage to the court, there to return twelve other knights of the vicinage to try upon oath the question contained in the writ of right (technically called the mise). This mode of trial was known as trial by the grand assize. Generally the whole of the sixteen knights were sworn, though twelve was a sufficient number. The last occasion of trial by the grand assize was in 1835. But long before that date possessor had from their greater convenience tended to supersede proprietary remedies, and in most cases the title was sufficiently determined by the assizes of other kinds, especially that of novel disseisin and later by proceedings in ejectment. The oath of the champion on proceedings in a writ of right where the alternative of the judicial combat was accepted, was regulated by statute, 3 Edw. I. c. 41 (1275). The writ of right is also interesting as being the basis of the law of limitation. By the Statute of Merton (1226) no seisin could be alleged by the demandant but from the time of Henry II. By 3 Edw. I. c. 39 the time was fixed at the reign of Richard I., by 32 Hen. VIII. c. 2 (1541) at sixty years at the most. There were other writs of right with special names, e.g. the writ of right by the custom of London for land in London, the writ of right by advowson, brought by the patron to recover his right of presentation to a benefice, and the writs of right of dower, ne injuste vexes and de rationabili parte, the latter brought by coparceners or brothers in gavelkind. Coheirs and coparceners also had the nuper obiit for disseisin by one of themselves. There were also writs in the nature of a writ of right, e.g. formedon, brought by a reversioner on discontinuance by a tenant in tail and given by the statute De Donis Conditionalibus; escheat, brought by the lord where the tenant died without an heir; ne injuste vexes, to prohibit the lord from exacting services or rents beyond his due; de nativo habendo, to recover the inheritance in a villein; and the little writ of right close according to the custom of the manor, to try in the lord's court the right of the king's tenants in antient demesne. They had also the writ of monstraverunt.
Up to 1832 an action was (except as against certain privileged persons, such as attorneys) begun at law by original writ, and writ practically became the equivalent of action, and is so used in old books of practice. The law was gradually altered by legislation and still more by the introduction of fictitious proceedings in the common law courts, by which the issue of the original writ was suspended, except in real actions, which were of comparatively rare occurrence. The original writ is no longer in use in civil procedure, an action being now in all cases commenced by the writ of summons, a judicial writ, a procedure first introduced in 1832 by 2 Will. IV. c. 39. In the following year an immense number of the old writs was abolished by the Real Property Limitation Act 1833. An exception was made in favour if the writ of right of dower, writ of dower unde nihil habet, quare impedit and ejectment, and of the plaints for free bench and dower in the nature of writs of right. Ejectment was remodelled by the Common Law Procedure Act 1852; the other writs and plaints remained up to the Common Law Procedure Act 1860, by which they were abolished. Other writs which have been superseded by simpler proceedings, generally by ordinary actions, are those of the four assizes of novel disseisin, juris utrum, mort d'auncester and darrein presentment, conspiracy, estrepement and waste, false judgment, monstrans de droit, nuisance, partition, praemunire, quo warranto, scire facias, subpoena and warrantia chartae.
The number of writs, especially those connected with ecclesiastical procedure, was so large that any exhaustive list of them is almost Obsolete writs. impossible, but a few of those of more special interest which have become obsolete may be shortly mentioned. Admensuratio lay against persons usurping more than their share of property. It was either dotis or pasturae, the latter, like the Scottish “souming and rouming,” being the remedy for surcharge of common, for which also quod permittas lay. Alias and pluries writs were issued when a previous writ had been disobeyed. Apostata capiendo was the mode of apprehension of a monk who had broken from his cloister. Assistance went to the sheriff to assist the party or an officer of chancery to gain possession of land. Attaint lay to inquire by a jury of twenty-four whether a jury of twelve had given a false verdict. Decies tantum also lay against a juror who had accepted a bribe, so called because he had to refund ten times the sum received. Audita querela was a means of relieving a defendant by a matter of discharge occurring after judgment. After having been long practically superseded by stay of execution it was finally abolished by the rules made under the Judicature Act 1875. Beaupleader lay to prohibit the taking of a fine de pulcre placitando, forbidden by the Statute of Marlbridge (1268). Capias, latitat and quominus are interesting as showing the extraordinary mass of fictitious allegation in the old procedure of the common law courts before 1832. By capias ad respondendum followed by alias and pluries the court of common pleas was enabled to take cognizance of an action without the actual issue of an original writ. The capias was a judicial writ issued to follow an original writ of trespass quia clausum fregit. The issue of the original writ and after a time the issue of the capias became mere fictions, and proceedings commenced with the issue of another writ called capias testatum. On return of the writ the plaintiff elected to proceed with a cause of action other than trespass, and the real merits of the case were eventually reached in this tortuous manner. After being served with the capias the defendant was bound to put in common or special bail, the former being sufficient in all but exceptional cases. Here again there was a fiction, for his common bail were John Doe and Richard Roe. The same fictitious pair also appeared on the side of the plaintiff as his pledges for the due prosecution of his action. By latitat and quominus the courts of king's bench and exchequer respectively assumed jurisdiction by a further series of fictions over ordinary civil actions. The writ of latitat, following the bill of Middlesex, itself in later times generally a fiction, alledged that the defendant was in hiding out of Middlesex, after committing a trespass quia clausum fregit, for which he was in the custody of the king's marshal in the Marshalsea prison. The real cause of action was then stated in what was called the ac etiam clause. The writ of quominus alleged that the plaintiff was the king's debtor, and that through the defendant's default he was unable to discharge the debt. De cautione admittenda was a curiosity. It enjoined a bishop to admit an excommunicated person to absolution on condition of his giving security to obey the commands of the church. Deceit or disceit lay for the redress of anything done deceitfully in the name of another, but was especially used to reverse a judgment in a real action obtained by collusion. Distraint of knighthood was a mode of obtaining money for the crown by the exercise of the prerogative of forcing every one who held a knight's fee under the crown to be knighted or to pay a fine. The earliest extant writ was issued in 1278. It was abolished in 1641 by 16 Car. I. c. 20. Entry was a possessor remedy against one alleged to hold land unlawfully. It was divided into a large number of kinds, and was the subject of much of the old real property learning. The ones most commonly occurring were the writs of entry in the per and in the post, the former alleging, the latter not, the title of the heir from the original disseisor. When writ had come to be equivalent in meaning to action, one of the divisions of possessor actions was into writs of entry and writs of assize. A special writ of entry for dower was given by 6 Edw. I. c. 7. Excommunicato capiendo was the authority for arresting an excommunicated person and detaining him until he was reconciled to the church, when he was liberated by the writ de excommunicate liberando. These proceedings were abolished and the writ de contumace capiendo substituted in 1817. Faux judgment was for revising the decision of an inferior court. Haeretico comburendo was issued on certificate of conviction for heresy by the ecclesiastical court. A case of burning two Arians under this writ occurred as lately as the reign of James I. It was abolished by 29 Car. II. c. 9. Homine replegiando, mainprize and odio et atia (or bono et malo) were all ancient means of securing the liberty of the subject, long superseded by the more effective procedure of habeas corpus. The last of the three enjoined the sheriff to inquire whether a committal on suspicion of murder was on just cause or from malice and ill-will. It was regulated by Magna Carta and the Statute of Westminster the Second, but, having been abused to the advantage of sheriffs, it was abolished in 1355 by 28 Edw. III. c. 9. It was possibly among the means—like the writ of right—by which the trial by battle and the appeal of felony tended to become obsolete. Leproso amovendo explains itself. Moderata misericordia was the means of reviewing an excessive amercement of an inferior court, especially after an amercement had tended to become a fixed sum of twelve pence. Nisi prius was given by the Statute of Westminster the Second, 13 Edw. I. c. 30. Its place is now taken by the commission of nisi prius. Orando pro rege et regno, before the present Book of Common Prayer, enjoined public prayers for the high court of parliament. Protection was given for enabling a man to be quit of suits brought against him while absent beyond seas. It was dealt with by a large number of old statutes, but none has been issued since 1692. Quare ejecit infra terminum was the old remedy of the lessee for eviction by the lessor. Rebellion was a means of enforcing obedience to the process of the court of chancery. In modern procedure attachment takes its place. Rege inconsulto commanded judges of a court not to proceed in a case which might prejudice the king until his pleasure should be known. Replevin was a survival of the most archaic law. The procedure consisted of writ on writ to an almost unlimited extent. It originally began by the issue of a writ of replevin or replegiari facias. The case might be removed from the county court to a superior court by writ of recordari facias loquelam. If the distrainor claimed a property in the goods distrained, the question of property or no property was determined by a writ de proprietate probanda, and, if decided in favour of the distrainor, the distress was to be returned to him by writ de retorno habendo. If the goods were removed or concealed, a writ of rescous or capias in withernam enabled the sheriff, after due issue of alias and pluries writs, to take a second distress in place of the one removed. It is said that the question whether goods taken in withernam could be replevied was the only one which the Admirable Crichton found himself unable to answer. Restitutione extracti ab ecclesia lay for restoring a man to a sanctuary from which he had been wrongfully taken. Secta lay for enforcing the duties of tenants to their lord's court, e.g. secta ad molendinum, where the tenants were bound to have their corn ground at the lord's mill. Seisina habenda allowed delivery of lands of a felon to the lord after the king had had his year, day and waste. Vi laica removenda is curiously illustrative of ancient manners. It lay where two parsons contended for a church, and one of them entered with a great number of laymen and kept out the other by force. As lately as 1867 an application for the issue of the writ was made to the chancery court of the Bermuda Islands, but refused on the ground that the writ was obsolete, and that the same relief could be obtained by injunction. On appeal this refusal was sustained by the privy council.
Of writs now in use, other than those for elections, all are judicial, or part of the process of the court, except perhaps the writ of error Writs now in use. in criminal cases. They are to be hereafter issued out central office of the supreme court, or the office of the clerk of the crown in chancery. By the Crown Office Act 1877 the wafer great seal or the wafer privy seal may be attached to writs instead of the impression of the great or privy seal. The judicial writs issue chiefly, if not entirely, from the central office, with which the old crown office was incorporated by the Judicature (Officers) Act 1879. The crown office had charge of writs occurring in crown practice, such as quo warranto and certiorari.
In local civil courts, other than county courts, writs are usually issued out of the office of the registrar, or an officer of similar jurisdiction. By the Borough and Local Courts of Record Act 1872, writs of execution from such courts for sums under £20 may be stamped or sealed as of course by the registrar of a county court, and executed as if they had issued from the county court. In county court practice the warrant corresponds generally to the writ of the supreme court. Most of the present law on the subject of writs is contained in the Rules of the Supreme Court, 1883, Ord. xlii.-xliv., and in the Crown Office Rules 1906. Both sets of rules contain numerous precedents in their schedules. By Ord. ii. r. 8 of the rules of 1883 all writs (with certain exceptions) are to be tested in the name of the lord chancellor, or, if that office be vacant, in the name of the lord chief justice. The main exceptions are those which occur in crown practice, which are tested by the lord chief justice. The writ of error bears the teste of the king “witness ourselves.” Before the issue of most writs a praecipe, or authority to the proper officer to issue the writ, is necessary. This is of course not to be confounded with the old original writ of praecipe. Writs affecting land must generally be registered in order to bind the land (see Land Registration). A writ cannot as a rule be served on Sunday. Some of the more important modern writs (other than those of an extrajudicial nature) may be shortly noticed. Habeas corpus, mandamus, prohibition, scire facias and others are treated separately. Writs are generally, unless where the contrary is stated, addressed to the sheriff. Abatement or nocumento amovendo enjoins the removal of a nuisance in pursuance of a judgment to that effect. Ad quod damnum is for the purpose of inquiring whether a proposed crown grant will be to the damage of the crown or others. If the inquiry be determined in favour of the subject, a reasonable fine is payable to the exchequer by 27 Edw. I. st. 2 (1299). Attachment is issued as a means of supporting the dignity of the court by punishment for contempt of its orders (see Contempt of Court). Since the Judicature Acts a uniform practice has been followed in all the branches of the high court, and a writ of attachment can now only be issued by leave of the court or a judge after notice to the party against whom it is to be issued. Capias: the old writs of capias ad satisfaciendum and capias utligatum may still be used, but their importance has been much diminished since the alterations made in the law by the Debtors Act 1869 and the abolition of civil outlawry (see Outlawry). Certiorari is a writ in very frequent use, by which the proceedings of an inferior court are brought up for review by the high court. In general it lies for excess of jurisdiction as mandamus does for defect. The Summary Jurisdiction Act 1879 makes the writ no longer necessary where a special case has been stated by a court of quarter sessions. Delivery enforces a judgment for the delivery of property without giving the defendant (unless at the option of the plaintiff) power to retain it on payment of the assessed value. Distringas lay to distrain a person for a crown debt or for his appearance on a certain day. Its operation has been much curtailed by the substitution of other proceedings by the Crown Suits Act 1865 and the rules of the supreme court. It now seems to be only against inhabitants for non-repair of a highway. Distringas nuper vicecomitem is a writ calling on an ex-sheriff to account for the proceeds of goods taken in execution. Elegit is founded on the Statute of Westminster the Second, 1285, and is so named from the words of the writ, that the plaintiff has chosen (elegit) this particular mode of satisfaction. It originally ordered the sheriff to seize a moiety of the debtor's land and all his goods, save his oxen and beasts of the plough. By the Judgments Act 1838, the elegit was extended to include the whole of the lands, and copyholds as well as freeholds. By the Bankruptcy Act 1883, an elegit no longer applies to goods. Error, the last remaining example of an original writ was at one time largely used in both civil and criminal proceedings. It was abolished in civil procedure by the rules made under the Judicature Act 1875, and in criminal cases by the Criminal Appeal Act 1907. Exigent (with proclamation) forms part of the process of outlawry now existing only against a criminal. It depends on several statutes, commencing in 1344, and is specially mentioned in the Statute of Provisors of Edward III., 25 Edw. III. st. 6. Extent is the writ of execution issued by the crown for a crown debt of record. The sale of chattels seized under an extent takes place under a writ of venditioni exponas. A crown debtor is entitled to an extent in aid against a person indebted to him. Where a crown debtor has died a writ reciting his death, and so called diem clausit extremum, issues against his property. Fieri facias is the ordinary writ of execution on a judgment commanding the sheriff to levy the sum, interest and costs on the personal property of the party. Where the sheriff has not sold the goods, venditioni exponas issues to compel him to do so. Where the party is a beneficed clergyman, the writ is one of fieri facias de bonis ecclesiasticis or of sequestrari facias (addressed to the bishop). The latter writ also issues in other cases of an exceptional nature, as against a corporation and to seize a pension. It is addressed to commissioners, not to the sheriff. Habere facias possessionem is given to the owner of a tithe or rent charge, enabling him to have possession of the lands chargeable therewith until arrears due to him are paid. Indicavit is still nominally grantable under the statute De Conjunctim Feoffatis of 1306, and is a particular kind of prohibition granted to the patron of an advowson. Inquiry issues for the assessment of damages by the sheriff or his deputy. It represents to some extent the old writ of justices, and the later writ of trial allowed by 3 & 4 Will. IV. c. 42, but is narrower in its operation, for under the last-named writs the whole case or issues under it could be tried. Before an inquiry the liability has been already established. Levari facias is the means of levying execution for forfeited recognizances. The Bankruptcy Act 1883 abolished it in civil proceedings. Ne exeat regno was at one time issued by virtue of the prerogative to prevent any person from leaving the realm, a form of restraint of liberty recognized by parliament in 5 Ric. II. c. 2. It has now become a means of preventing one who owes an equitable debt of £50 or more from quitting the kingdom, and so withdrawing himself from the jurisdiction of the court without giving security for the debt. It is usually issued on an ex parte motion in the chancery division, but is rare in practice, having been superseded by proceedings under the Debtors Act 1869. Non omittas is for executing process by the sheriff in a liberty or franchise, where the proper officer has neglected to do so. It rested originally chiefly upon the Statute of Westminster the Second, c. 39, and is now regulated by the Sheriffs Act 1887, which repeals the previous enactment. Possession enjoins the sheriff to give possession of land to the party entitled thereto under a judgment for such possession. It fills the place of the old writ of assistance. In admiralty, where the judgment is for possession of a ship, the writ is addressed to the marshal. Procedendo is the converse of prohibition. It directs the lower court to proceed with the case. It also lies to restore the authority of commissioners suspended by supersedeas. Restitution restores property, either real or personal, after the right to it has been judicially declared. Thus it lies on behalf of the owner of real property under the statutes of forcible entry and of the owner of personal property under the Larceny Act 1861. Significavit, once a writ, appears since 57 Geo. III c. 127 to be merely a notice. It is a part of the process against a person disobeying the order of an ecclesiastical court, and consists in a notification to the crown in chancery of the disobedience. Thereupon a writ de contumace capiendo issues for his arrest. On his subsequent obedience or satisfaction, a writ of deliverance is granted. Precedents of these writs are given in the act named. Subpoena is the ordinary means of securing the presence of a witness in court, and is addressed to the person whose attendance is required. It is so called from its containing the words “and this you are not to omit under the penalty of £100,” &c. The subpoena may be either ad testificandum, to give evidence, or duces tecum, to produce documents, &c., or both combined. By special order of a judge a subpoena may be issued from any court in England, Scotland or Ireland to compel the attendance of a witness out of the jurisdiction. Summons is the universal means of commencing an action in the high court. It is addressed to the defendant, and may be either generally or specially indorsed with a statement of the nature of the claim made. The latter form of indorsement is allowed in certain cases of debt or liquidated demand, and gives the plaintiff the great advantage of entitling him to final judgment in default of appearance by the defendant, and even in spite of appearance unless the defendant can satisfy a judge that he ought to be allowed to defend. No statement of claim is necessary in case of a specially indorsed writ, the indorsement being deemed to be the statement. The writ may be issued out of the central office or out of a district registry, and the plaintiff may name on his writ the division of the high court in which he proposes to have the case tried. There are special rules governing the issue of writs in probate and admiralty actions. The writ remains in force for twelve months, but may be renewed for good cause after the expiration of that time. Service must be personal, unless where substituted service is allowed, and in special cases, such as actions to recover land and admiralty actions. Service out of the jurisdiction of a writ or notice of a writ is allowed only by leave of the court or a judge. Notice of the issue of a writ, and not the writ itself, is served on a defendant who is neither a British subject nor in British dominions. The law is contained in the Rules of the Supreme Court, especially orders ii.-xi. and xiv. Supersedeas commands the stay of proceedings on another writ. It is often combined with procedendo, where on a certiorari or prohibition the high court has decided in favour of the jurisdiction of the inferior court. It is also used for removing from the commission of the peace, and for putting an end to the authority of any persons acting under commission from the crown. Venire facias is the first proceed in outlawry, calling upon the party to appear. Under the old practice a venire facias de novo was the means of obtaining a new trial. Venire inspiciendo appears still to be competent, and is a curious relic of antiquity. It issues on the application of an heir presumptive in order to determine by a jury of matrons whether the widow of a deceased owner of lands be with child or not. Almost exactly the same proceeding was known in Roman law.
The principal writs of a non-judicial nature relate to parliament on some of its constituent elements. Parliament is summoned by the king's writ issued out of chancery by advice of the privy council. The period of forty days once necessary between the writ and the assembling is now by an act of 1852 reduced to thirty-five days. Writs of summons are issued to the lords spiritual and temporal before every new parliament. Those to Irish representative peers are regulated by the Act of Union, those to archbishops and bishops by the Ecclesiastical Commissioners Act 1847. New peerages are no longer created by writ, but the eldest son of a peer is occasionally summoned to the House of Lords in the name of a barony of his father's. With respect to election of members of the House of Commons, the procedure differs as the election takes place after a dissolution or on a casual vacancy. After a dissolution the writ is issued, as already stated, by order of the crown in council. For a single election the warrant for a new writ is issued during the session by the speaker after an order of the house made upon motion; during the recess by the speaker's authority alone. The warrant is addressed to the clerk of the crown in chancery for Great Britain, to the clerk of the crown and hanaper of Ireland. A supersedeas to a writ has sometimes been ordered where the writ was improvidently issued. The time allowed to elapse between the receipt of the writ and the election is fixed by the Ballot Act 1872, sched. 1, at nine days for a county or a district borough, four days for any other borough. The writ is to be returned by the returning officer to the clerk of the crown with the name of the member elected endorsed on the writ. Sched. 2 gives a form of the writ, which is tested, like the writ of error, by the king himself. The returning officer is the sheriff in counties and counties of cities, generally the mayor in cities and boroughs, and the vice-chancellor in universities. Other writs for election are those for convocation, which is by 25 Hen. VIII. c. 19 summoned by the archbishop of the province on receipt of the king's writ, and for election of coroners, verderers of royal forests, and some other officers whose office is of great antiquity. The writ de coronatore eligendo, addressed to the sheriff, is specially preserved by the Coroners Act 1887.
Offences relating to writs are dealt with by the Criminal Law Consolidation Acts of 1861 and other statutes. The maximum penalty is seven years' penal servitude.
Scotland.—“Writ” is a more extensive term than in England. Writs are either judicial or extrajudicial, the latter including deeds and other instruments—as, for instance, in the Lord Clerk Register Act 1879, and in the common use of the phrase “oath or writ” as a means of proof. In the narrower English sense both “writ” and “brieve” are used. The brieve was as indispensable a part of the old procedure as it was in England, and many forms are given in Regium Majestatem and Quoniam Attachiamerta. It was a command issued in the king's name, addressed to a judge, and ordering trial of a question stated therein. It was drawn by the writers to the signet, originally clerks in the office of the secretary of state. Its conclusion was the will of the summons. In some cases proceedings which were by writ in England took another form in Scotland. For instance, the writ of attaint was not known in Scotland, but a similar end was reached by trial of the jury for wilful error. The English writ of ne exeat regno is represented by the meditatio fugae warrant. Most proceedings by brieve, being addressed to the sheriff, became obsolete after the institution of the court of session, when the sheriffs lost much of that judicial power which they had enjoyed to a greater extent than the English sheriff (see Sheriff). An English writ of execution is represented in Scotland by diligence, chiefly by means of warrants to messengers-at-arms under the authority of signet letters in the name of the king. See the Writs Execution Act 1868. The brieve, however, has not wholly disappeared. Brieves of tutory, terce and division among heir-portioners are still competent but not in use. Other kinds of brieve have been superseded by simpler procedure, e.g. the brieve of service of heirs, representing the older brete de morte antecessoris, by a petition to the sheriff under the Titles to Land Consolidation Act 1868 and the brieve of perambulation by a declaratory action. The brieve of cognition of insane persons is now one of the few of practical importance. The old brieves of furiosity and idiotcy were abolished, and this new form was introduced by the act last named. Writs co nomine have been the subject of much modern legislation. The writs of capias, habeas, certiorari and extent were replaced by other proceedings by the Exchequer Court Act 1856. The writs of clare constat, resignation and confirmation (whether granted by the crown or a subject superior) were regulated by the act of 1868. By the same act crown writs are to be in the English language and registered in the register of crown writs. Writs need not be sealed unless at the instance of the party against whom they are issued. Writs of progress (except crown writs, writs of clare constat and writs of acknowledgment) were abolished by the Conveyancing Act 1874. The clare constat writ is one granted by the crown or a subject superior for the purpose of completing title of a vassal's heirs to lands held by the deceased vassal. Where the lands are leasehold the writ of acknowledgment under the Registration of Leases Act 1857 is used for the same purpose. By the Writs Execution Act 1877 the form of warrant of execution on certain extracts of registered writs is amended. Extracts of registered writs are to be equivalent to the registered writs themselves. Writs registered in the register of sasines for preservation only may afterwards be registered for preservation and execution. By 22 Geo. II. c. 48, passed for the purpose of assimilating the practice of outlawry for treason in Scotland to that in use in England, the court before which an indictment for treason or misprision of treason is found, is entitled on proper cause to issue writs of capias, proclamation and exigent. In some respects the proceedings in parliamentary elections differ from those in use in England. Thus the writ in university elections is directed to the vice-chancellors of Edinburgh and Glasgow respectively, but not to those of St Andrews and Aberdeen, and there is an extension of the time for the return in elections for Orkney and Shetland, and for the Wick burghs. Representative peers of Scotland were by the Act of Union to be elected after writ issued to the privy council of Scotland. On the abolition of the privy council a proclamation under the great seal was substituted by 6 Anne, c. 23.
United States.—Writs in United States courts are by Act of Congress to be tested in the name of the chief justice of the United States. By state laws writs are generally bound to be in the name of the people of the state, in the English language, and tested in the name of a judge. Writs of error have been the subject of much legislation by the United States and by the states. In New York writs of error and of ne exeat have been abolished. Writs as parts of real actions have been generally superseded, but in Massachusetts a writ of entry on disseisin is still a mode of trying title. Writs of dower and of estrepement are still in use in some states. By the law of some states, e.g. New Jersey, writs of election are issued to supply casually occurring vacancies in the legislature. The writ of assistance, already named, has its interest in constitutional history. Before the War of Independence it was issued to revenue officers to search premises for smuggled goods. It was on this writ that it was first contended in 1761 that a colonial court had jurisdiction to examine the constitutionality of a legislative act authorizing the issue of the writ. See Quincy's Massachusetts Rep. App., I. 520.
Authorities.—The importance of the writ in procedure led to the compilation of a great body of law and precedent at an early date. In addition to the Registrum brevium there were, among other old works, the Natura brevium, first published in 1525; Theloall, Le Digest des briefes originales (1579); Fitzherbert, Le Nouvel Natura brevium (1588); Hughes, Original Writs (1655); Thesaurus brevium (1661); Brownlow, Brevia judicialia (1662); Officina brevium (1679). See too Coke upon Littleton, 158, 159. 2 Coke's Inst. 39; and Du Cange. Many precedents will be found in the collection of parliamentary writs and in Stubbs's Select Charters. The Crown Office Rules, 1906, contain many precedents of the modern writs used in crown practice. Old books of practice, such as Tidd's Practice, Corner's Crown Practice and Booth's Real Actions, contain much law on the subject. For the history, Spence's Equitable Jurisdiction, vol. i. bk. ii . ch. viii.; Forsyth's Hist. of Trial by Jury; Stephen, On Pleading, Bigelow's Hist. of Procedure, ch. iv.; Pollock and Maitland, Hist. of Eng. Law; and W. S. M'Kechnie, Magna Carta may be consulted. There appears to be no book dealing with the writ in modern practice, but sufficient information is contained in the ordinary treatises on procedure. (J. W.)
- There seems to be no authentic definition of writ. That of Reeves is “a settled form of precept applicable to the purpose of compelling defendants to answer the charge alleged by plaintiffs” (1 Hist. of the Eng. Law, 415).
- It is perhaps doubtful whether intentio is here used in its ordinary sense or in the technical signification which it bore as a part of the Roman formula.
See W. Bewes, Church Briefs (1896). The lines in Cowper's
“Charity” allude to such a brief:—
“ The brief proclaimed it visits every pew, But first the squire's—a compliment but due.”
- See article by F. W. Maitland in 3 Harvard Law Rev. 177.
- The place where writs were deposited was called breviarium or breviorium. This use of the word must be distinguished from legal compendia, such as the Breviarium Alarici or Breviarium extravagantium.
- Relief from “miskenning” or “mescheninga,” or fine for beaupleader, was often granted in charters to towns, as by that of Henry I. to London.
- It may be noticed that by the interpretation clause of the Sheriffs Act 1887 the expression “writ” includes any process.
- An example occurring in the reign of James VI. will be found in Pitcairn, Criminal Trials, i. 216.
- Explanations of many of the older writs will be found in Lord Clerk Register Skene's De verborum significatione (1641), and styles in Spotiswood, Stile of Writs (1715).
- A reference to Du Cange will show the great variety of the non-legal uses of brevis or breve. It may mean, inter alia, an annual rent, an amulet, a notice of the death of a monk. Brevetum signified what are now known as ship's papers.