Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/735

Rh WRIT 693 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 curias 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 FEOFFMEXT (q.v.), later into the deed of grant (see REAL ESTATE) ; in Scotland into the charter, and later into the disposition. In canon law breve denoted a letter under the pope s seal. In old English ecclesiastical law a brief meant letters patent issued out of Chancery to churchwardens or other officers for the collection of money for church purposes. Such briefs were regulated by 4 Anne c. 14, but are now obsolete, although they are still to be found named in one of the rubrics in the communion service of the Book of Common Prayer. In English legal practice brief now denotes the written instructions put into the hands of counsel to form the basis of his case. It was probably so called from its at first being only a copy of the original writ. Such a brief is in Scotland called a memorial. istory The writ in English law still occupies a very important writ in position, which can scarcely be understood without a already been given under PLEADING, for the whole theory of pleading depends in the last resort upon the writ. 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. 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 (see ENTAIL), 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 Charta 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, 6 Edw. I. c. 1. Through the Norman period the pre rogative 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, 13 Edw. I. st. 1, c. 24, 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 (see TRESPASS, TROVER). These precedents were at an early date recorded in the Begistrum 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 Wallise, 12 Edw. I. c. 7, 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. 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, &quot;the heartstrings of the common law.&quot; As such it occupied an important place in some of the leading statutes dealing with constitutional rights. The Statute of Marl- bridge, 52 Hen. III. c. 22, 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, it was accorded, asserted, and stablished that none should be taken by petition or sug gestion made to the king or his council unless by indict ment or presentment in due manner or by process made by writ original at the common law. 42 Edw. III. c. 3 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. Uniformity of procedure was secured by 27 Hen. VIII. c. 24, 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 manager 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 con straint by the sheriff in the event of disobedience, generally in those terms, &quot; et, nisi feceris, vicecomes de N. faciat ne amplius clamorem audiam pro defectu justitice.&quot; 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 (who sat as judges of the county court), 1 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 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 Charta the power of bringing a suit in the king s court in the first instance by writ of preeci2)e 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 1 The distinction between the royal and local courts was not per haps at all times very strictly drawn. Thus in the Lcycs Henrici Primi, c. 31, the county court is called curia regis.
 * is ^ sketch of its history. To a certain extent this history has