Page:EB1911 - Volume 28.djvu/876

Rh 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

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 ). 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 ). 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 ). 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