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See also:WRIT (O. Eng. gewrit, writ, from writan, to write) , in See also:law, a formal See also:order from the See also:crown or a delegated executive officer to an inferior executive officer or to a private See also:person, enjcining some See also:act or omission.' The word represents the Latin brevis or breve (sometimes Englished into "brief " in the older authorities), so called, according to See also:Bracton and See also:Fleta, from its " shortly " expressing the intention of the framer (quia breviter et paucis verbis intentionem proferentis exponit) 2 The breve can be traced back as far as See also:Paulus (about A.D . 220), who wrote a See also:work Ad edictum de brevibus, cited in the Vatican Fragment, § 310 . In the Corpus See also:juris the word generally means a See also:summary or See also:report . In See also:Cod. vii . 44, breviculum means a summary of the grounds of a See also:judgment . The interdictum of See also:Roman law some-times represents the See also:writ of See also: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 See also:Liber feudorum and the See also:canon law, in both in a sense differing from that at See also:present See also:borne by the writ of English law . The breve testatum of the Liber feudorum was an See also:instrument in See also:writing made on the See also:land at the See also:time of giving See also:seisin by the See also:lord to the See also:tenant, and attested by the See also:seals of the lord ' There seems to be no See also:authentic See also:definition of writ . That of See also:Reeves is " a settled See also:form of See also:precept applicable to the purpose of compelling defendants to See also:answer the See also:charge alleged by plaintiffs" (i Hist. of the Eng . Law, 415) . 2 It is perhaps doubtful whether intentio is here used in its See also:ordinary sense or in the technical signification which it See also:bore as a See also:part of the Roman See also:formula . and the pares curiae or other witnesses .
In See also:England such witnesses were part of the See also:inquest, and joined in the See also:verdict in See also:case of disputed right until 12 Edw
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II. st
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The breve testatum in England See also:developed into the See also:feoffment, later into the See also:deed of See also: Writs were not framed on any scientific See also:scheme, but as occasion arose, and were frequently the result of See also:compromise in the struggle between the king's and the lords' courts . Every writ had to be See also:purchased (breve perquirere was the technical See also:term) . This See also:purchase developed in later times into the See also:payment of a See also:fine to the king where the See also:damages were laid above £40 . The usual See also:scale was 6s . 8d. for every 10o marks claimed . In suing out a writ of See also:covenant, the basis of the proceedings in levying a fine, the king was entitled to his primer fine, i.e. one-tenth of the See also:annual value of the land concerned . The See also:sale of writs was forbidden by Magna Carta and other statutes in certain cases, especially that of the writ de odio et atia in favour of the See also:liberty of the subject . A See also:solicitor was so called because his See also:original See also:duty was to solicit or See also:sue out a writ and take the due proceedings by paying the proper fine . The See also:costs of a writ purchased were first allowed to a successful demandant by the See also:Statute of See also:Gloucester, 1278 . The counterpart of the writ (contrabreve) was usually filed in court with the custos brevium . Through the See also:Norman See also:period the See also: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 See also:century, it was still possible to See also:frame new writs at the See also:pleasure of the crown . The Provisions of See also:Oxford in 1258 put an end to this by enacting that the See also: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 See also:council . In 1285 the Statute of See also:Westminster the Second re-established the See also:power of the crown within certain limits, that is, in causes of See also: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 See also:chancery . These precedents were recorded about 1227 in the Registrum brevium, called by See also:Sir See also:Edward See also:Coke the See also:oldest book in the common law ? Apart from the See also:powers given by the statute, new writs could only be issued by the authority of See also: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 See also: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 See also:axiom in Bracton that no one could sue at law without a writ, and it was called by Coke, in his introduction to See also:Littleton, " the heartstrings of the common law." As such it occupied an important See also:place in some of the leading statutes dealing with constitutional rights . The Statute of See also:Marl-See also:bridge, 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 stablished that none should be taken by See also:petition or See also:suggestion made to the king or his council unless by See also: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 See also:man should be put to answer without presentment before justices, or See also:matter of See also:record, or by due process and writ original according to the old law of the land . Both these statutes were recited and the See also:general principle confirmed by i6 See also:Car . I. c . 10 (1641) . Uniformity of See also:procedure was secured by 27 See also:Hen . VIII. c . 24 (1536), by which all writs were to be in the king's name in a See also:county See also:palatine or liberty, ' See W . A . Bewes, Church Briefs (1896) . The lines in See also:Cowper's " Charity " allude to such a brief : " The brief proclaimed it visits every See also:pew, But first the See also:squire's—a compliment but due." ' See See also:article by F . W . See also:Maitland in 3 Harvard Law Rev . 177.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 See also: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 See also:side of the chancery, and was in the See also:special charge of the See also:hanaper and See also:petty bag offices.' Though issuing from the king's chancery, it did not necessarily See also:direct the trial of the question in the king's court . In whatever court it was returnable, it called in the aid of the See also:sheriff as executive officer . It was either addressed to him or, if addressed to the party alleged to be in See also:default, it concluded with a See also: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 See also: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 See also:deputy of the king, not by virtue of his inherent See also:jurisdiction . The writ was not necessary for the See also:initiation of proceedings in these courts or before the justices in See also:eyre, but a See also:custom seems to have grown up of suing out a writ from the king where the claim was above 4os . Cases were transferred from the lord's court to the county court by writ of See also:toll (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 thence-forth 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 (See also:dominus remisil 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 See also:constant use for See also:financial and See also:political purposes, e.g. for the collection of fifteenths, See also:scutage, See also:tallage, &c., for See also: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 See also:judge) issued during the progress of a suit or to enforce judgment . Original were either optional, i.e. giving an See also:option of doing a certain act or of showing cause why it was not done, beginning with the words praecipe quod reddat, the See also:principal example being the writ on which proceedings in a common recovery (see FINE) were based, or See also:peremptory, i.e. calling on a person to do a certain act, beginning with the words si A. fecerit to 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 See also: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 See also:division of writs into writs of right (ex debito justitiae), such as habeas corpus, and prerogative writs (ex gratia), such as See also:mandamus and See also: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 See also:historical point of view was the writ of right (breve de recto), called by See also:Blackstone " the highest writ in the law," used at first for See also:debt and other See also:personal claims, afterwards confined to the recovery of real estate as the writ of right See also:par excellence . It was so called from the words plenum rectum contained in it, and was the remedy for obtaining justice for See also:ouster from or privation of the See also:freehold . By it See also:property as well as See also:possession could be recovered . It generally See also: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 See also:close . When addressed to the lord and tried in his court, it was generally a writ of right patent . After the See also: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 See also:count . The trial was originally by See also: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 See also: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 See also:oath the question contained in the writ of right (technically called the See also:mise) . This mode of trial was known as trial by the See also: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 ' The place where writs were deposited was called breviarium or breviorium . This use of the word must he distinguished from legal compendia, such as the Breviarium Alarici or Breviarium extravagantium . assize was in 1835 . But See also:long before that date possessory had from their greater convenience tended to supersede proprietary remedies, and in most cases the See also:title was sufficiently determined by the assizes of other kinds, especially that of novel disseisin and later by proceedings in See also:ejectment . The oath of the See also: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 basisof the law of See also: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 See also: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 See also:London for land in London, the writ of right by See also:advowson, brought by the See also:patron to recover his right of presentation to a See also:benefice, and the writs of right of See also:dower, ne injuste vexes and de rationabili perte, the latter brought by coparceners or See also:brothers in See also: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; See also:escheat, brought by the lord where the tenant died without an See also:heir; ne injuste vexes, to prohibit the lord from exacting services or rents beyond his due; de nativo habendo, to recover the See also:inheritance in a villein; and the little writ of right close according to the custom of the See also:manor, to try in the lord's court the right of the king's tenants in antient See also: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 See also: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
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In the following See also:year an immense number of the old writs was abolished by the Real Property Limitation Act 1833
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An exception was made in favour of the writ of right of dower, writ of dower unde nihil habet, quare impedit and ejectment, and of the plaints for See also:freebench and dower in the nature of writs of right
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Ejectment was remodelled by the Common Law Procedure Act 1852; the other writs and plaints remained up to the Common Law Procedure Act 186o, by which they were abolished
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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, See also:conspiracy, estrepement and See also:waste, false judgment, monstrans de See also:droit, See also:nuisance, See also:partition, See also:praemunire, quo warranto, scire facias, subpoena and warrantia chartae
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The number of writs, especially those connected with ecclesiastical procedure, was so large that any exhaustive See also:list of them is almost Obsolete impossible, but a few of those of more special See also:interest
which have become obsolete may be shortly mentioned. writs
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Admensuratio lay against persons usurping more than their See also:share of property
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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
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See also:Alias and pluries writs were issued when a previous writ had been disobeyed
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Apostata capiendo was the mode of See also:apprehension of a See also:
See also:Attaint lay to inquire by a jury of twenty-four whether a jury of twelve had given a false verdict
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Decies tantum also lay against a juror who had accepted a bribe, so called because he had to refund ten times the sum received
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Audita querela was a means of relieving a See also:defendant by a matter of See also:discharge occurring after judgment
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After having been long practically superseded by stay of See also:execution it was finally abolished by the rules made under the Judicature Act 1875
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Beau pleader lay to prohibit the taking of a tine de pulcre placitando, forbidden by the Statute of Marlbridge (1268).1 Capias, latitat and quominus are interesting as showing the extraordinary See also:mass of fictitious allegation in the old procedure of the common law courts before 1832
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By capias ad respondendum followed by alias and pluries the court of common pleas was enabled to take See also:cognizance of an action without the actual issue of an original writ
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The capias was a judicial writ issued to follow an original writ of trespass quia clausum fregit
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The issue of the original writ and after a time the issue of the capias became See also:mere See also:fictions, and proceedings commenced
with the issue of another writ called capias testatum
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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
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After being served with the capias the defendant was See also:bound to put in common or special See also:bail, the former being sufficient in all but exceptional cases
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Here again there was a
1 See also:Relief from " miskenning " or " mescheninga, " or fine for beau-pleader, was often granted in charters to towns, as by that of Henry I. to London.849
fiction, for his common bail were See also: By latitat and quo-minus the courts of king's See also:bench and exchequer respectively assumed jurisdiction by a further See also:series of fictions over ordinary civil actions . The writ of latitat, following the See also:bill of See also: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 See also:marshal in the See also:Marshalsea See also: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 See also:bishop to admit an excommunicated person to See also:absolution on See also:condition of his giving See also: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 See also:reverse a judgment in a real action obtained by See also:collusion . Distraint of See also:knighthood was a mode of obtaining money for the crown by the exercise of the prerogative of forcing every one who held a See also:knight's See also: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 possessory 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 See also: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 possessory 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 excommunicato 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 See also:heresy by the ecclesiastical court .
A case of burning two Arians under this writ occurred as lately as the reign of See also: Nisi prius was given by the Statute of Westminster the Second, 13 Edw . I. c . 30 . Its place is now taken by the See also: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 . See also: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 . See also:Rebellion was a means of enforcing obedience to the process of the court of chancery . In See also:modern procedure See also:attachment takes its place . Rege inconsulto commanded See also:judges of a court not to proceed in a case which might See also:prejudice the king until his pleasure should be known . See also:Replevin was a survival of the most archaic law . 
The procedure consisted of writ on writ to an almost unlimited extent
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It origin-ally began by the issue of a writ of replevin or replegiari facias
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The case might be removed from the county court to a See also:superior court by writ of recordari facias loquelam
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If the distrainor claimed a property in the goods distrained, fhe question of property or no property was determined by a writ de proprietate probanda, and, if decided in favour of the distrainor, the See also:distress was to be returned to him by writ de retorno habendo
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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
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It is said that the question whether goods taken in withernam could be replevied was the only one which the Admirable See also:Crichton found himself unable to answer
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Restitution extracti ab See also:ecclesia lay for restoring a man to a See also:sanctuary from which he had been wrongfully taken
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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 See also:corn ground at the lord's See also: 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 See also:error in criminal cases . They are to be hereafter issued out of the central See also:office of the supreme court, or the office of the clerk of the crown in chancery . By the Crown Office Act 1877 the See also: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 See also: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 See also:Borough and Local Courts of Record Act 1872, writs of execution from such courts for sums under £2o 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 See also: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 See also: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 "See also: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 See also:REGISTRATION) . A writ cannot as a See also:rule be served on See also: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 . See also:Abatement or nocumento arnovendo 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 See also:punishment for contempt of its orders (see CONTEMPT OF COURT) . Since the Judicature Acts a See also: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 See also:notice |