Warrant

writ writs court crown sheriff issued name proceedings addressed viet

WARRANT (q.v.) 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, and in the Crown Office Hales, 1886. 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) arc to be tested in the name of the lord chancellor, or, if that office be vacant, in the name of the lord chief jnstiee. The main exceptions are those which occur in crown practice, which are tested by the lord chief justice, The writ of error bears the tests of the king or queen, witness ourselves." Before the issue of most writs a prxeipe, or authority to the proper offices to issue the writ, is necessary. This is of course not to be confounded with the old original writ of prlecipe. Writs affecting land must generally be registered in order to bind the land (see REGISTRATION). A writ cannot as a rule be served on Sunday (see StristnAv). Some of the more important modern writs (other than those of an extrajudicial nature) may be shortly noticed. HABEAS CORPUS, MANDAMUS, and PROHIBITION (qq.r.) have been already treated. Writs arc generally, unless where the contrary is stated, addressed to the sheriff. Abatement or nommento amo•endo enjoins the removal of a nuisance in pursuance of a judgment to that effect. Ad quod dainnum is for the purpose of inquiring whether a proposed crown grant will be to the damage of the crown or others. It is still in use, and recent examples will be found in the London Gazette. If the inquiry be determined in favour of the subject, a reasonable fine is payable to the exchequer by 27 Edw. I. st. 2. Attachment is issued as a means of supporting the dignity of the court by punishment for contempt of its orders (see CONTEMPT OF Coma). 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 ha issued. C'«pias : the old writs of capias ad satisfaciendum and eapias uaigatum 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 OUTLAW). Certiorari is a writ in very frequent use, by which the proceedings of an inferior court arc 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 (muter 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 ranch curtailed by the substitution of other proceedings by 28 and 29 Vict. c. 104, and the rules of the Supreme Court. It now seems to lie only against inhabitants for non-repair of a highway. Distringees nuper vieceomitent is a writ calling on an ex-sheriff to account for the proceeds of goods taken in execution. Elegit is founded en the Statute of Westminster the Second, and is so named from the words of the writ, that the plaintiff has chosen (clegit) 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 1 and 2 Viet. e. 110 the clegit was extended to include the whole of the lands, and copy-holds as well as freeholds. By the Bankruptcy Act, 1883, an elegit no longer applies to goods. Error, the only example of an original writ remaining, was at one time largely used in both civil and criminal proceedings. It was abolished in civil procedure by the Common Law Procedure Act, 1852, and proceedings in error by the rules made under the Judicature Act, 1875. A writ of error to the Queen's Bench Division still lies in criminal cases, though it is rarely brought, for it only lies for mistakes appearing on the record, and recent legislation has given large powers of amending such mistakes. The fiat of the attorney-general is necessary before it can be sued out. 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. Whore a crown debtor has died a writ reciting his death, and so called diem elausit 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 crponas Issues to compel him to do so. Where the party is a beneficed clergyman, the writ is one of fieri facias de Ionic ecelesiasticis 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 possessioncm 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 hint are paid (sec TrrnEs). Indicavit is still nominally grantable under the Statute De COni201CtiM Feoffatis of 34 Edw. I., 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 justieies, and the later writ of trial allowed by 3 and 4 Will. IV. e. 42, but is narrower in its operation, for under the last-named writs the whole ease 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 (see RECOGNIZANCE). The Bankruptcy Act, 1883, abolished it in civil proceedings. 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. e. 2. It has how become a means of preventing a debtor from quitting the kingdom, and so withdrawing himself from the jurisdiction of the court with out giving security for the debt. There is some doubt whether it has not been impliedly superseded by the powers given by Ord. lxix. of the Rules of the Supreme Court. Aron 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 (also called assistance) enjoins the sheriff to give possession of land to the party entitled thereto under a judgment for such possession. 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 ease. 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 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 proceedings 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 capienclo 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. Subpxna 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 subpcena may be either ad testificandion, to give evidence, or duces tecum, to produce documents, &c., or both combined. By special order of a judge under 17 and 18 Viet. c. 23 a subpcena may be issued from any court in England, Scotland, or Ireland to compel the attendance of a witness out of the juris. diction. 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 has a defence or 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 Ord. ii. - xi. and xiv. Supersedeas commands the stay of proceedings on another writ. It is often combined with proce,dendo, where on a certiorari the High Court has decided in favour of the jurisdiction of the inferior court. It is also used for removing front the commission of the peace, and for patting an end to the authority of, any persons acting under commission from the crown. Venire facias is the first proceeding in outlawry, calling upon the party to appear. Under the old practice a venire ficcias de novo was the means of obtaining a new trial. Ventre inspieiendo 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 under the name of interdictum de in.qpiciendo venire, the prmtor sending five women to make a report.

The principal writs of a non-judicial nature relate to parliament or 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 15 and 16 Vict. c. 23 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 10 and 11 Vict. c. 108. 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. Earl Percy, the eldest son of the duke of Northumberland, was so summoned in 1887, and sits as Baron Lovaine (see PEERAGE). 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, sander the powers given by 24 Geo. III. sess. 2, c. 26, 21 and 22 Viet. c. 110, and 26 Viet. c. 20. 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 he 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 queen herself. The returning officer is the sheriff in counties and counties of cities (such as Chester), generally the mayor in cities and boroughs, and the vice-chancellor in universities (see PARLIAMENT). Other writs for election are those for CONVOCATION (q.v.), which is by 25 Hen. VIII. c. 19 summoned by the arehbi-hop 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 eoronatore 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 ; larceny by 24 and 25 Vict. c. 96, a 30; forgery by 24 and 25 Vict. c. 98, s. 27. The maximum penalty is seven years' penal servitude.

Seotland. - 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 42 and 43 Vict. c. 44, 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 Regiam Hajestatem and QUallialll Attaehiamenta. It was a command issued in the king's name, addressed to a judge, and ordering trial of a question stated therein. Its conclusion was the will of the summons (see WILL, Sumatoxs). 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 excel regno is represented by the nzeditatio fugal 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). The executive functions of the English sheriff are performed by the messengers-at-arms. An English writ of execution is represented in Scotland by diligence, chiefly by means by warrants to messengers-at-arms sander the authority of signet letters in the name of the king. The brieve, bow-ever, has not wholly disappeared. Brieves of tutory, terce, and division are still competent, lint not in use. Other kinds of brieve have been superseded by simpler procedure, e.g., the brieve of service of heirs by 10 and 11 'Viet. c. 47, for which a petition to the sheriff was substituted by that Act and 31 and 32 Vict. c. 101. The brieve of cognition of insane persons is now the only one of practical importance. The old brieves of furiosity and idiotcy were abolished, and this new form was introduced by the Act last named. 'Writs eo ?tontine have been the subject of much recent legislation. The writs of eapias, habeas, certiorari, and extent were replaced by other proceedings by 19 and 20 Vict. e. 56. The writ of dare eonstat was introduced by 21 and 22 Viet. c. 76. It and the writs of resignation and confirmation (whether granted by the crown or a subject superior) were regulated by 31 and 32 Viet. c. 101. By the same Act crown writs are to be in the English language, and registered in the register of crown writs. They need not be sealed sinless at the instance of the party against whom they are issued. Writs of progress (except crown writs, writs of dare eonstat, and writs of acknowledgment) were abolished by 37 and 38 Viet. c. 94. The dare eonstat 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 20 and 21 Viet. c. 26 is used for the same purpose. By 40 and 41 Viet. e. 40 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 caplets, proclamation, and exigent. Many writs are by the Stamp Act, 1870, chargeable with a duty of five shillings. 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 Andrew's 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.

Aulhorities. - 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 Regis0 um Brevium there were, among other old works, the tiatura Brew-1nm, first published in 1525; Theloall, Le Digest des Briefes Originates (1579); Fitzherbert, Le Nourel Natura Brecium (158S); Officina Brerium (1679). See too Coke upon Littleton, 158, 159, 2 Coke's Institutes, 39. Many precedents will also be found in the collection of Parliamentary Writs and in Stubbs's Select Charters. Old books of practice, such as Tidd's Practice, Corner's Crown Practice, and Booth On Real Actions, contained much law on the subject. For the history Spence's Equitable Jurisdiction, vol. 1. bk. ii. ch. viii., Forsyth's Hist. of Trial by Jury, Stephen On Pleading, and Bigelow's Ilist. of Procedure, ch. iv., 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. wt.)

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