Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/736

Rh 694 W K I T and political purposes, e.g., for the collection of_ fifteenths, scutage, tallage, &c., for summons to the council and later to parliament, and for recalling a parliament, the last by means of the rarely occurring writ de revocation* parlia- menti. 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 judge) issued during the progress of a suit or to enforce judgment. Original were either optional, i.e., giving an option of doing a certain act or of showing cause why it was not done, beginning with the words pr&cipe quod reddat, the principal example being the writ on which proceedings in a common recovery (see ENTAIL) were based, or per emptory, i.e., calling on a person to do a certain act, beginning with the words si A fecerit te securum. Original were also either de cursu 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. By 5 Geo. II. c. 27 special writs were confined to causes of action amounting to 10 or upwards. There was also a division of writs into writs of right (ex debito justitise), such as habeas corpus, and prerogative writs (ex gratia), such as mandamus (see PREROGATIVE). 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 historical point of view was the writ of right (breve de recto), called by Blackstone &quot; the highest writ in the law,&quot; used at first for debt and other personal claims, afterwards confined to the recovery of real estate as the writ of right par excellence. It was so called from the words plenum rectum contained in it, and was the remedy for obtaining justice for ouster from or privation of the freehold. By it property as well as possession could be recovered. It generally 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 close. It was also a writ of right close where the lands in dispute were held in antient demesne. When addressed to the lord and tried in his court, it was generally a writ of right patent. After the 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 Avere the embryo of the future count. The trial was originally by battle (see TRIAL), but in the reign of Henry II. an alternative pro cedure was introduced, interesting as the earliest example of the substitution of something like the JURY (q.v.) system 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 oath the question contained in the writ of right (technically called the mise). This mode of trial was known as trial by the 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 assize was in 1835. But long before that date possessory had from their greater convenience tended to supersede proprietary remedies, and in most cases the title was sufficiently determined by the assizes of other kinds, especially that of novel disseisin and later by pro ceedings in ejectment (see POSSESSION). The oath of the 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. The writ of right is also interesting as being the basis of the law of LIMITA TION (q.v.). By the Statute of Merton, 20 Hen. III. c. 8, 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 Richard I., by 32 Hen. VIII. c. 2 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 London for land in London, the writ of right of advowson, brought by the patron to recover his right of presentation to a benefice, and the writs of right of dower and de rationabili parte, the latter brought by coparceners or brothers in gavelkiud. 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 (see ENTAIL) ; escheat, brought by the lord where the tenant died without an heir ; ne injuste vexes, to prohibit the lord from exacting services or rents beyond his due ; de native habendo, to recover the inherit ance in a villein ; and the little writ of right close according to the custom of the manor, to try in the lord s court the right of the king s tenants in antieut demesne. Up to 1832 an action was (except as against certain privileged persons, such as attorneys) commenced by original writ, and writ practically became the equivalent of action, and is so used in old books of practice, such as Booth on Real Actions. The law was gradually altered by legislation and still more by the introduction of fictitious proceedings in the common law courts, to be described later, 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. 39. In the follow ing year an immense number of the old writs were abolished by 3 and 4 Will. IV. c. 27. An exception was made in favour of the writ of right of dower, writ of dower unde nihil habet, QUARE IMPEDIT (q.v.), and EJECTMENT (q.v.), and of the plaints for free bench and dower in the nature of writs of right. Ejectment was remodelled by the Common Law Procedure Act, 1852 ; the other writs and plaints remained up to the Common Law Procedure Act, 1860, by which they were abolished. 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 ASSIZE), estrepemeut and waste (see WASTE), monslrans de droit (see PETITION), NUISANCE (q. v.), PARTITION (q.v.), prse,munire (see TREASON), Quo WARRANTO (q.v.), SCIRE FACIAS (q.v.), subpoena (see TRUST), and warrantia chartse (see WARRANTY). The number of writs was so large that any exhaustive list of them is almost impossible, but a few of those of more special interest which have become obsolete may be shortly mentioned. Admensuratio lay against persons usurping writs more than their share of property. It was either dotis or pa&turse, the latter, like the Scotch &quot; souming and rouming,&quot; being the remedy for surcharge of common. A lias and pluries writs were issued when a previous writ had been disobeyed. Attaint lay to inquire by a jury of twenty-four whether a jury of twelve had given a false verdict. It was superseded in the 16th century by the practice of setting aside a verdict or granting a new trial, and was finally abolished by 6 Geo. IV. c. 50. Audita querela was a means of relieving a defendant by a matter of discharge occurring after judgment. After having been long practically superseded by stay of execution it was finally abolished by the rules made under the Judicature