Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/737

Rh W II I T 695 Act, 1875. Capias, latitat, and quominus are interesting as showing the extraordinary mass of fictitious allegation in the old procedure of the common law courts before 1832. By capias ad respondendum followed by alias and pluries the Court of Common Pleas was enabled to take cognizance of an action without the actual issue of an original writ. The capias was a judicial writ issued to follow an original writ of trespass quia clausum fregit. The issue of the original writ and after a time the issue of the capias became mere fictions, and proceedings com menced with the issue of another writ called capias testatum. On return of the writ the plaintiff elected to proceed with a cause of action other than trespass, and the real merits of the case were eventually reached in this tortuous manner. After being served with the capias the defendant was bound to put in common or special bail, the former being sufficient in all but exceptional cases. Here again there was a fiction, for his common bail were John Doe and Richard Roe. The same fictitious pair also appeared on the side of the plaintiff as his pledges for the due prosecution of his action. By latitat and quominus the Courts of King s Bench and Exchequer respectively assumed jurisdiction by a further series of fictions over ordinary civil actions. The writ of latitat, following the bill of Middlesex, itself in later times generally a fiction, alleged that the defendant was in hiding out of Middlesex, after committing a trespass quia clausum fregit, for which he was in the custody of the king s marshal in the Marshalsea prison. The real cause of action was then stated in what was called the ac etiam clause. Writs filed in the King s Bench and Common Pleas were in the custody of an officer of each court called the custos brevium. The writ of quominus alleged that the plaintiff was the king s debtor and that through the defendant s default he was unable to discharge the debt. Deceit or disceit lay for the redress of anything done deceitfully in the name of another, but was especially used to reverse a judgment in a real action obtained by collusion. Distraint of knighthood was a mode of obtaining money for the crown by the exercise of the prerogative of forcing every one who held a knight s fee under the crown to be knighted or to pay a fine. The earliest extant writ was issued in 1278. It was abolished by 16 Car. I. c. 20. Entry was a possessory remedy against one alleged to hold land unlawfully. It was divided into a large number of kinds, and was the subject of much of the old real property learning. The ones most commonly occurring were the writs of entry in the per and in the post, the former alleg ing, the latter not, the title of the heir from the original disseisor. When writ had come to be equivalent in mean ing to action, one of the divisions of possessory actions was into writs of entry and writs of assize. A special writ of entry for dower was given by 6 Edw. I. c. 7. Excommunicato capiendo was the authority for arresting an excommunicated person and detaining him until he was reconciled to the church, when he was liberated by the writ de excommunicato deliberando. These proceedings were abolished and the writ de contumace capiendo substi tuted by 57 Geo. III. c. 127 (see EXCOMMUNICATION). Hscretico comburendo was issued on certificate of conviction for heresy by the ecclesiastical court. A case of burning two Arians under this writ occurred as lately as the reign of James I. It was abolished by 29 Car. II. c. 9. Homine repleyiando, mainprize, and odio et atia (or bono et malo) were all ancient means of securing the liberty of the sub ject, long superseded by the more effective procedure of habeas corpus. The last of the three enjoined the sheriff to inquire whether a committal on suspicion of murder was on just cause or from malice and ill-will. It was regulated by Magna Charta and the Statute of Westminster the Second, but, having been abused to the advantage of sheriffs, it was taken away by 28 Edw. III. c. 9. Nisi prius was given by the Statute of Westminster the Second, 13 Edw. I. c. 30. Its place is now taken by the com mission of NISI PRIUS (q.v.}. Orando pro rege et regno, before the present Book of Common Prayer, enjoined public prayers for the high court of parliament. Privilege com manded the release of a prisoner entitled to privilege of parliament. Protection was given for enabling a man to be quit of suits brought against him while absent beyond seas. It was dealt with by a large number of old statutes, but none has been issued since 1692. Rebellion was a means of enforcing obedience to the process of the Court of Chancery. In modern procedure attachment takes its place. Rege inconsulto commanded judges of a court not to proceed in a case which might prejudice the king until his pleasure should be known. Replevin was a survival of the most archaic law. The procedure consisted of writ on writ to an almost unlimited extent. It originally began by the issue of a writ of replevin or replegiari facias. The case might be removed from the county court to a superior court by writ of recordari facias loquelam. If the dis- trainor claimed a property in the goods distrained, the question of property or no property was determined by a writ de proprietate probanda, and, if decided in favour of the distrainor, the distress was to be returned to him by writ de retorno habendo. If the goods were removed or concealed, a writ of capias in ivithernam enabled the sheriff, after due issue of alias and pluries writs, to take a second distress in place of the one removed. It is said that the question whether goods taken in uithernam could be replevied was the only one which the Admirable Crichton found himself unable to answer. For the modern practice, see DISTRESS, REPLEVIN. Restitutions extracti ab ecclesia lay for restor ing a man to a sanctuary from which he had been wrong fully taken (see SANCTUARY). Secta lay for enforcing the duties of tenants to their lord s court, e.g., secta ad molen- dinum, where the tenants were bound to have their corn ground at the lord s mill. Seisina habenda allowed delivery of lands of a felon to the lord after the king had had his year, day, and waste (see WASTE). Vi laica removenda is curiously illustrative of ancient manners. It lay where two parsons contended for a church, and one of them entered with a great number of laymen and kept out the other by force. As lately as 1867 an application for the issue of the writ was made to the Chancery Court of the Bermuda Islands, but refused on the ground that the 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 Writs judicial, or part of the PROCESS (q.v.) 1 of the court, except per- now in haps the writ of error in criminal cases. They are to be hereafter use. issued out of the central office of the Supreme Court, or the office of the clerk of the crown in Chancery, provision having been made by the Great Seal (Officers) Act, 1874, and the Judicature (Officers) Act, 1879, for the transfer on the next vacancy of the duties of the clerk of the petty bag to those officers. By the latter Act the record and writ clerks, previously officers of the Chancery Division, were abolished. By 40 and 41 Viet. c. 41 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 Act of 1879. The crown office had charge of writs occurring in crown practice, such as quo icarranto and certiorari. In local civil courts, other than county courts, writs are usually Judicial issued out of the office of the registrar, or an officer of similar writ.-;, jurisdiction. By 35 and 3G Viet. c. 86 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 1 It may be noticed that by the interpretation clause of the Sheriffs Act, 1887, the expression ;&amp;lt; writ&quot; includes any process.