Writ
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In
are common types of writs, but many forms exist and have existed.In its earliest form, a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the feudal era, a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a specific place and time.[2] An early usage survives in the United Kingdom, Canada, and Australia in a writ of election, which is a written order issued on behalf of the monarch (in Canada, by the Governor General and, in Australia, by the Governor-General for elections for the House of Representatives, or state governors for state elections) to local officials (High sheriffs of every county in the United Kingdom) to hold a general election. Writs were used by the medieval English kings to summon people to Parliament[3] (then consisting primarily of the House of Lords) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "barons by writ".
History
Origins
The writ was a unique development of the
Writs could take two main forms: 'letters patent', which were open for all to read, and 'letters close' for one or more specified individuals alone.[7]
Development
The development of writs as a means of commencing a court action was a form of "off-the-shelf" justice designed to enable the English law courts to rapidly process lawsuits by allocating each complaint form into a standard category that could be dealt with by standard procedures. The complainant applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a
Where a plaintiff wished to have a case heard by a local court or by the justice of an Eyre if one happened to be visiting the county, there would be no need to obtain a writ. An informal complaint could usually start actions in local courts. However, if a plaintiff wished to avail himself of Royal — and by implication superior — justice in one of the King's courts, then he would need a writ, a command of the King, to enable him to do this. Initially, for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For most Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being, in essence, another government department, could issue its own writs.
While originally writs were exceptional, or at least non-routine devices,
At first, new writs were drafted to fit each unique situation. However, in practice, the clerks of the Chancery would use wording from previously issued writs, with suitable adjustments, often taken from reference books containing collections of forms of writ, much as in modern times, lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a new legal document. The problem with this approach was that a plaintiff's rights and available forms of action at his disposal, would be defined, and in most cases limited, by the limited variety of writs available to him. Thus, the power to create new writs was akin to the power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser noble, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence.
Over time, opposition to the creation of new writs by the Chancery increased. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason".
Rationalisation of writs
With the abolition of the Forms of Action in 1832 and 1833, a profusion of writs was no longer needed, and one uniform writ came into use. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered to conform more to the subpoena used in the Chancery. A writ was a summons from the Crown to the parties to the action, with on its back the substance of the action set out, together with a 'prayer' requesting a remedy from the court (for example, damages). In 1980, the need for writs to be written in the name of the Crown was ended. From that time, a writ simply required the parties to appear.[10]
Writs applied to claims to be heard in one of the courts, eventually forming part of the
In 1999, the
List
The following writs, amongst others, existed in England:[11]
- Advocatione decimarum was a writ which lay for claiming the fourth part or more of tithes which belong to the church: Reg of Writs, fol 29b.[12][13][14] The writ was founded on section 4 of chapter 5 of the Statute of Westminster 1285.[15][16][17] It was obsolete by 1876.[18][19]
- Arrestandis bonis ne dissipentur was a writ which lay for a man whose cattle or goods were taken by another, who was likely, during the controversy, to make away with them, and would hardly have been able to make satisfaction for them afterwards. Reg of Writs 126. Cowel.[20][21] The writ lay to seize the cattle and goods in the hands of a party, and to hold them during the pendency of a suit, to prevent their being made away with. Reg Orig 126b.[22] In 1816, Williams said the writ lay anciently.[23] Also called bonis arrestandis.[24][25][26]
- Arrestando ipsum qui pecuniam recepit was a writ which anciently lay for the apprehension of him who had taken prest money for the king's wars, and afterwards hid himself, when he should have been ready to go. Reg Orig 24. Cowel.[27][28][29]
- Arresto facto super bonis mercatorum alienigenorum was a writ that lay for a denizen against the goods of aliens found in the kingdom, as a recompense for goods taken from him in a foreign country after a refusal to restore them. Reg Orig 129; Cowel.
- Attornato faciendo,
- Auxilium ad filium militem faciendum et filiam maritandam,
- Ayel, or ayle or de avo[51] or aile[52] or aiel,[53] was a writ which lay for an heir to recover the possession of lands of which a grandfather or grandmother was seized in fee simple on the day of his or her death; and a stranger entered on that day and abated or dispossessed the heir of the inheritance. FNB 221D; 3 Bl Com 186. It was a possessory ancestral writ.[51][54][55] 1 Rosc Real Act 127. It was abolished by section 36 of the Real Property Limitation Act 1833 (3 & 4 Will 4 c 27).[51] Ayle was one of a group of writs consisting of ayle, besayle, tresayle, and cosinage.[56]
- Chartis reddendis was a writ which lay against him that has charters of feoffment delivered him to be kept, and refuses to deliver them. Old Nat Brev, fol 66. Reg Orig, fol 159.[57][58][59] It was a writ of detinue of charters.[60][61] It had fallen into disuse by 1816[62] and was obsolete by 1843.[63][64]
Writ of election
In some
United States law
Early
- The writ of Guantanamo Bay detainees. See Boumediene v. Bush.
- By statute, the Supreme Court of the United States uses the writ of certiorari to review cases from the United States courts of appeals or the state courts.
- In extraordinary circumstances, the prohibitionunder the All Writs Act to control proceedings in the district courts.
- Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common law writ of error coram nobis under the All Writs Act to set aside a conviction when no other remedy is available.
- In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.
The situation in the courts of the various U.S. states varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts.
In an attempt to purge Latin from the language of the law,
Prerogative writs
The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto,
The due process for 'petitions for' such writs is not simply civil or criminal because they incorporate the presumption of non-authority so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this, they differ from a motion in a civil process in which the burden of proof is on the movant and in which there can be a question of standing.
Other writs
- A writ of attachment permits the seizure of private property.
- A writ of audita querela inhibits the unconscionable use of a lawful judgment because of matters arising after the judgment.
- A writ of capias directs an officer to take the person named in the writ or order into custody.[66]
- A writ of coram nobis corrects a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available, e.g., when a judgment was rendered without full knowledge of the facts.
- A writ of elegit orders the seizure of a portion of a debtor's lands and all his goods (except work animals) towards satisfying a creditor until the debt is paid off.
- A writ of error is issued by an appellate court and directs a lower court of record to submit its record of the case laid for appeal.[67]
- A writ of exigent (or exigend) commands a sheriff to summon a defendant indicted for a felony who had failed to appear in court to deliver himself upon pain of outlawry or forfeiture of his goods.
- A writ of fieri facias (colloquially "fi fa") commands a sheriff to take and auction off enough property from a losing party to pay the debt (plus interest and costs) owed by a judgment debtor.
- A writ of mittimusorders either (1) a court to send its record to another or (2) a jailor to receive the accused in their custody at any point during the investigative or trial process.
- A writ of ne exeat restrains a defendant from fleeing the country or jurisdiction.
- A writ of praemunire instructs a sheriff to order someone to appear in court to answer for several different crimes.
- A writ of scire facias revives a dormant judgment.
- A writ of supersedeas contains a command to stay the proceedings at law.[68]
- A writ of venire facias summons jurors to appear in court.[69]
Indian law
Under the Indian legal system, jurisdiction to issue '
- The writ of prohibition (forbid) is issued by a higher court to a lower court, prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.
- The writ of habeas corpus(to have the body of) is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of their detention. If the detention is illegal, the court issues an order to free the person.
- The fundamental rightsof the citizens are upheld.
- The writ of mandamus (command) is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. But it cannot be issued against a Public Authority for enforcing a Private Contractual Obligation read more
- The writ of quo warranto(by what authority; under what warrant) is issued against a person who claims or usurps a public office. Through this writ, the court inquires 'by what authority' the person supports their claim.
See also
Notes
- ^ S. H. Steinberg ed., A New Dictionary of British History (London 1963) p. 402
- ^ Francis Palgrave, Parliamentary Writs and Writs of Military Summons (2 volumes, 1827 and 1834)
- ^ R. Wickson, The Community of the Realm in 13th Century England (London 1970) p.66
- ^ a b G. O. Sayles, The Medieval Foundations of England (London 1966) p. 174
- ^ D. Douglas, William the Conqueror (London 1966) p. 293
- ^ G. O. Sayles, The Medieval Foundations of England (London 1966) pp. 305, 332–33
- ^ R. Wickson, the Community of the Realm in 13th C England (London 1970) p. 24
- ^ Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44
- ^ ISBN 9780198812609. Retrieved August 26, 2023.
- ^ Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716)[1], discussed in House of Lords in 1980,[2]
- ^ For a list of writs, see, for example, "Antiquities of the Law" (1870) 1 Albany Law Journal 247.
- ^ John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 27
- ^ Black's Law Dictionary, 2nd Ed, 1910, p 44.
- ^ Ephraim Chambers. "Advocatione". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Finlason. Reeves' History of the English Law. New American Edition. 1880. p 501.
- ^ Ruffhead. "Advowson" in "The Table". The Statutes at Large. 1765. Volume 9.
- ^ Encyclopædia Britannica. 9th Ed. 1888. vol 23. p 412.
- ^ Mozley and Whiteley. A Concise Law Dictionary. Butterworths. London. 1876. p 15.
- ^ See further FNB 30 and 2 Co Inst 489 and 646.
- ^ Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
- ^ Ephraim Chambers. "Arrestandis". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Adams. A Juridicial Glossary. 1886. vol 1. p 277.
- ^ Thomas Walter Williams. "ARR". A Compendious and Comprehensive Law Dictionary. 1816.
- ^ Mozely and Whitely, A Concise Law Dictionary, 1876, p 48
- ^ See further 2 Co Inst 328; "The Merry Wives of Windsor" (1984) 59 Shakespearean Criticism 150; Dolan (ed), "Renaissance Drama and the Law" (1996) 25 Renaissance Drama 158; Ross, Elizabethan Literature and the Law of Fraudulent Conveyance, 2003, p 26.
- ^ As to the meaning of "cattle" generally, see for example Stroud, The Judicial Dictionary, 1890, p 113; and Dwarris, A General Treatise on Statutes, 2nd Ed, 1848, p 248.
- ^ Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
- ^ Ephraim Chambers. "Arrestando". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ See further 2 Co Inst 53; Reg Orig 24; Tyler v Pomeroy (1864) 8 Allen's Massachusetts Reports 480 at 487.
- ^ Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 29.
- ^ Ephraim Chambers. "Arresto". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Adams. A Juridicial Glossary. 1886. vol 1. p 191.
- ^ See further Reg Orig 129; 2 Co Inst 205; FNB 114; 4 Co Inst 124; De Lovio v Boit (1815) 2 Gallison 398 at 408, 23 Myer's Federal Decisions 20 at 26; Molloy, De jure maritimo et navali, p 29; 17 Viner's Abridgment 4.
- ^ An Abridgment of Sir Edward Coke's Reports. New York. 1813. p 233
- ^ Maugham. A Treatise on the Law of Attornies, Solicitors and Agents. 1825. p 6.
- ^ The New Encyclopaedia. 1807. vol 3. p 78.
- ^ Adams. A Juridicial Glossary. 1886. vol 1. p 277.
- ^ Adams. A Juridicial Glossary. 1886. vol 1. p 619.
- ^ Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 36
- ^ Ephraim Chambers. "Atturnato". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Sweet. A Dictionary of English Law. 1882. p 153.
- ^ Edward Wynne. "Observations on Fitzherbert's Natura Brevium". 1760. printed in "A Miscellany containing Several Law Tracts". 1765. p 24.
- ^ See further FNB 156
- ^ a b Henry James Holthouse. A New Law Dictionary. 2nd Ed. London. Boston. 1850. p 39.
- ^ Adams. A Juridicial Glossary. 1886. vol 1. p 230.
- ^ Ephraim Chambers. "Auxilium". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ English. A Dictionary of Words and Phrases Used in Ancient and Modern Law. 1899. Reprinted 2000. vol 1. p 79.
- ^ Digby. An Introduction to the History of the Law of Real Property. 2nd Ed. 1876. p 117. The enactment which is chapter 36 in Ruffhead's edition is sometimes cited as chapter 35.
- ^ Mozely and Whitely. A Concise Law Dictionary. 1876. p 36
- ^ See further 2 Broom & Had Com 144; FNB 82 and 83; and The Law-french Dictionary.
- ^ a b c Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1. p 278.
- ^ John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 35
- ^ 1 Rosc Real Act 127
- ^ Ephraim Chambers. "Ayel". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Also called an ancestral possessory writ: 1 Rosc. Real Act. 127; Martin, Civil Procedure at Common Law, 1899, p 127. Ayel is an ancestral writ: Roberts, A Digest of Select British Statutes, 1817, p 148. Cf. Booth, p 83.
- ^ Roberts, A Digest of Select British Statutes, 1817, p 148. Buchanan, A Technological Dictionary, 1846, p 133. (1879) 112 Westminster Review 356. (1943) Bulletin of the Institute of Historical Research 217. Booth, The Nature and Practice of Real Actions, 2nd Ed, 1811, Ch 16, pp 200 to 205.
- ^ John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721. p 119.
- ^ Ephraim Chambers. "Chartis". Cyclopaedia. Fifth Edition. 1741. Volume 1.
- ^ Bouvier's Law Dictionary. Revised 6th Ed. 1856.
- ^ Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1. p 341.
- ^ "Detinue of charters" (or "detinue for charters") was a form of detinue.
- ^ Williams. " Chartis reddendis". A Compendious and comprehensive Law Dictionary. 1816.
- ^ Bouvier. A Law Dictionary. 2nd Ed. 1843. vol 1. p 257.
- ^ See further, Finlason, Reeves' History of the English Law, 1869, vol 2, pp 383 to 385; and Troubat, The Practice in Civil Actions and Proceedings, 1837, vol 2, p 30.
- ^ 28 U.S.C. § 1651
- ^ "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30 Jun 2009: [3].
- ISBN 978-0-8377-3626-6
- ^ "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009: [4].
- ^ "Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias".
Bibliography
- Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.
- Baker, J. H. ISBN 0-406-53101-3
- Milsom, S. F. C. ISBN 0-406-62503-4
- This article incorporates text from this source, which is in the public domain: John Rastell and William Rastell. Les Termes de la Ley. 1721.
- This article incorporates text from this source, which is in the public domain: Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1.
- This article incorporates text from this source, which is in the public domain: Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1.
- This article incorporates text from this source, which is in the public domain: Henry James Holthouse. A New Law Dictionary. Second Edition. Thomas Blenkarn. London. Charles C Little and James. Boston. 1850.