Writ

A mandatory precept, issued by the authority and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned. It is issued by a court or other competent jurisdiction, and is returnable to the same. It is to be under seal and tested by the proper officer, and is directed to the sheriff or othmesne process, of execution. See 3 Bla. Com. 273; Gould, PI. c. 2, s. 1. The list of original writs was not the reasoned scheme of a provident legislator, calmly devising apt remedies for all conceivable wrongs, rather it was the outcome of the long and complicated struggle whereby the king drew into his court all the litigation of the realm. The statute of Westminster 2d (1285) allowed the chancery to vary the old forms sb as to suit new cases, but only new cases which fall under old law. This gave in time one new form of action — trespass upon the special case — and this again threw out branches which came to be considered distinct forms of action, namely, assumpsit and trover. Equity, again, met some of the new wants, but others had to be met by a stretching and twisting of the old forms which were made to serve many purposes for which they were not originally intended; Poll. Torts (5th ed.) 535, note by F. W. Maitland. See Maitland, Register of Original Writs (3 Harv. L. Rev. 97, 167, 212; 2 Sel. Essays in Anglo- Amer. L* H. 549), with a classified list of writs. A writ is “issued” when it is delivered to an officer, with the intent to have it served; Wilkins v Worthcn, 62 Ark. 401, 36 S. W. 21; Michigan Ins. Bk. v. Eldred, 130 U. S. 693, 9 Sup. Ct. 690, 32 L. Ed! 10S0; Webster v. Sharpe, 116 N. C. 466, 21 S. E. 912. Although a writ which the court had power to issue was irregularly issued, the marshal must still act under it; Bryan v. Ker, 222 U. S. 107, 32 Sup. Ct. 26, 56 B. Ed. 114. As to the history of assumpsit, see 2 Harv. B. Rev. 1, 53, by Prof. J. B. Ames. See Westminister 2d, Statute of; Brevia Formata.

A precept In writing, couched in the form of a letter, running in the name of the king, president or state, issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to its progress, and requiring the performance of a specified act or giving authority and commission to have it done. For the names and description of various particular writs, sce the following titles.

In old English law. An instrument in the form of a letter; a letter or letters of attorney. This is a very ancient sense of the word. In the old books, "writ" is used as equivalent to "action;" hence writs are sometimes divided into real, personal, and mixed.

In Scotch law. A writing; an instrument in writing, as a deed, bond, contract, etc. 2 Forb. Inst, pt 2, pp. 175-179.

— Alias writ. A second writ issued in the same cause, where a former writ of the Same kind has been issued without effect.

— Close writ. In English law, a name given to certain, letters of the sovereign, sealed with his great seal and directed to particular persons and for particular purposes, which, uot being proper for public inspection, were closed up and sealed on the outside; also, a writ directed to the sheriff instead of to the lord. 2 Bl. Comm. 346, 3 Reeve, Eng. Law, 45.

— Concurrent writs. Duplicate originals, or several writs running at the same time for the same purpose, for service on or arrest of a person, when it is not known where he is to be found; or for service on several persons, as when there are several defendants to an action. Mozley & Whitley.

— Judicial writs. In English practice. Such writs as issue under the private seal of the courts, and not under the great seal of England, and are tested or witnessed, not in the king's name, but in the name of the chief judge of the court out of which they issue. The word "judicial" is used in contradistinction to "original;" original writs being such as issue out of chancery under the great seal, and are witnessed in the king's name. See 3 Bl. Comm. 282. Pullman's Palace-Car Co. v. Washburn (C. C.) 66 Fed. 792.

— Junior writ. One which is issued, or comes to the officer's hands, at a later time than a similar writ, at the suit of another party, or on a different claim, against the same defendant.

— Original writ. In English practice. An original writ was the process formerly in use for the commencement of personal actions. It was a mandatory letter from the king, issuing out of chancery, sealed with the great seal, and directed to the sheriff of the county wherein the injury was committed, or was supposed to have been committed, requiring him to command the wrong-doer or accused party either to do justice to the plaintiff or else to appear in court and answer the accusation against him. This writ is now disused, the writ of summons being the process prescribed by the uniformity of process act for commencing personui actions; and under the judicature act, 1873, all suite, even in the court of chancery, are to be commenced by such writs of summons. Brown.

— Patent writ. In old practice, an open writ; one not closed or sealed up.

— Peremptory writ. An original writ, calied from the voids of the writ a "si te feoerit seourum," and which directed the sheriff to cause the defendant to appear in court without any option given him, provided the plaintiff gave the sheriff security effectually to prosecute his claim. The writ was very occasionally in use, and only where nothing was specifically demanded, but only a satisfaction in general; as in the case of write of trespass on the case, wherein no debt or other specific thing was sued for, but only damages to be assessed by a jury. Brown.

— Prerogative writs. Those issued by the exercise of the extraordinary power of the crown (the court, in modem practice) on proper cause shown; namely, the writs of procedendo, man-damus, prohibition, quo warranto, habeas corpus, and certiorari.

A writing; a mandate or precept; an instrument in writing by which a court commands a person to whom it is directed to do some act; an instrument in writing, running in the name of the sovereign, and issued out of a court, under seal, directed to pome ministerial oificer, or to the party, commanding that some act be done. Writ of entry: v. Entry, writ of. Writ of inquiry: v. Inquiry, writ of. Writ of error: a writ to correct error, v. Error, writ of.

In English law. Originally, the written command of the king, or of sonie member of his household; later, the written command or precept of a court, or of some officer authorized. It is original when it issues from chancery under the king's seal at the beginning of the action, and judicial when it issues from a court during the progress of an action; it is close or clause when sealed, and open when not sealed. Writ de cursn: writ of course, — a writ issued by the crown, or by a court or person authorized by the crown, as matter of right, of Westminster 11., c. 24, providing for the issue of writs in cases similar to tliose in whicli writs had been issued de cursu prior to promulgation in 1358 forbidding the issue of new writs.

In old English law. Writ of right: a writ which lay to recover lands in fee simple, unjustly withheld from the owner, — the great and final remedy for the recovery of the right of property, or mere right, as distinguished from the right of possession, and in its nature the highest writ in the law.

In Scots law. A writing; an instrument in writing, as a deed, bond, contract, etc.

Inpractice. Terms anciently used to designate actions commenced by original bill, as distinguished from those commenced by original wrié, and applied in modern practice to suits commenced by capias ud respondendum. 1 Arch. Pr. pp. 2,337; 5 Hill, 218,

That which is written: a writing; a mandate or precept. The king's precept in writing under seal issuing out of some court and commanding something to be done touching a suit or action, or giving commission to have it done.' As used in the statutes of some States, generally means process in a civil suit, while process in a criminal case is denominated a "warrant." 2 1 At common law writs in civil actions were either original or judicial writs: Original writ. When a person had to apply to the sovereign for redress of an injury he sued out an " original writ," or simply an "original," from the court of chancery (wherein all the king's writs were framed). This was a mandatory letter from the king, in parchment, sealed with his great seal, and directed to the sheriff of the county wherein the injury was committed, or supposed to be, requiring him to command the wrong-doer to do justice to the complainant or else to appear in court and answer the accusation. whatever the sheriff did in pursuance of this writ he "returned" or certified to the court of common pleas, together with the writ itself. This was the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the determination of the cause. An original writ was either optional or peremptory. It was " optional," or a proecipe, when in the alternative, commanding the defendant to do the thing required, or show the reason why he had not done it. It was " peremptory," or a si fecerit te securum, when it directed the sheriff to cause the defendant to appear in court, without option, provided the plaintiff gave security to effectually prosecute his claim. The former writ issued when something certain was demanded; the latter, when only a satisfaction in general was wanted. 8 Judicial writ. A mandate, precept, or process issuing, or issued, from a court (of liw or equity), or from a judge acting as a judge. It a defendant, being summoned, neglected to aj)pear, or if the sheriff returned a nihil (i. e., nothing whereby the defendant may be summoned, attached, or distrained), a capias issued, to take the body of the defendant and have him in court on the day of the return, to answer the complaint. That writ of capias, and all other writs subsequent to the original writ, not issuing out of chancery, but from the court into which ' Termes de la Ley; Brown's Law Diet. the original was returnable, and being grounded on what passed in that court in consequence of the sheriff's return, were called judicial writs. They issued under the private seal of that court, and were teste'd in the name of the chief or senior justice only.^ In England, since 1873, all suits begin with a writ of summons. In this country, the courts derive jurisdiction from constitutions, and not from any writ in the. nature of the old common-law original writ.'-^ See Straw Bail. In some jurisdictions, " original " refers to the writ by which a suit is instituted, as, a writ of summons, and is contradistinguished from the "final" writ or writ of execution. See Final, 3. The forms of writs, by which actions are commenced, were perfected ih the reign of Edward the First (1273-130T).s One inherent power ih an appellate court is the right to make use of all writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably esercise jurisdiction already conferred.* The various species of writs in use take their names from their office or purpose; as, a writ of —assistance, attachment, capias, dower, ejectment, entry, error, execution, extent, inquiry, right, summons; prerogative writs, etc. See those substantives, also Abatement, 4; Exigency; Judge, p. 675, c. 3; Qttash; Process, 1; Return, 3; Service, 6; especially Execution, 3, Writs of.

Originally, the written command of the King, or some member of his household, introduced into England from Normandy. Later, the written command or precept of any court or officer. V. Breve, Action, Bill of Middlesex, Trespass. Prerogati Te ^vrit: a special writ issued by the royal authority or prerogative, as matter of favor; as distinct from the writs de cursu, writs of course, issued by the Crown or court, or person authorized by the Crown, as matter of right. The writs de cursu were at first vague in form, but by the time of Glanvill had assumed definite shape; they were formed Tvrits, called later original ■writs, and by promulgation in the year 1258 no new writs could be issued. By the Stat. Westminster II. c. 24, it was enacted that new writs should be issued in similar cases (v. Case, Action on the case), whence these flatter were termed writs on the case, as distinct from the original writs. Both the original writs, or writs de cursu, and writs on the case were original writs, as distinct from judicial writs; that is, they issued from Chancery under the seal of the King, as the fountain of justice, at the beginning of actions; judicial writs issues from a court, and include aU writs issuing after the beginning of the action (v. Bill, Process). Close writs, clause writs, are sealed writs; grants of the King, sealed with his great seal, but directed to some particular person for particular purposes; not letters patent. Writ of inquiry: a proceeding by which the sheriff inquires by a jury into the amount of damages, after judgment by default. For other writs, see their respective titles. Writer to the Signet Anciently, clerks in the office of the Scotch Secretary of State, who prepared writs passing the King's signet, and various other processes; they are also attorneys or solicitors, and privileged to conduct causes in the Court of Session. "^tfr. There. Y est: there Yalemaines./r. At least,

A general term for a variety of judicial instruments by which a court commands something to be done by a person to whom the instrument is addres.sed. Burrill describes a writ as being an instrument in writing, in an epistolary form, running in the name of the sovereign of a state, and issued out of a court of justice, under seal, either as the commencement of an action or during its progress, directed to a sherifE or other ministerial officer, or to the party intended to be bound by it, and commanding some act therein mentioned to be done at or within a certain time specified. Former common-law practice allowed a great variety of writs specially adapted to different causes of action. These have been described, so far as they possess interest, under their various names, excluding the word writ from the name; thus the writ de lunatico inquirendo is mentioned under de lunatico inquirendo; and so with others. The writs particularly mentioned below are those of a general character, employed in modern practice. In general, a writ is the king's precept in Ttriting, under seal, issuing out of some court, and commanding something to be done touching a suit or action, or giving commission to have it done. (Termes de la Ley.) Writs in civil actions were cither original or judicial. Original writs issued out of the court of chancery for summoning a defendant to appear, and were granted before the suit was begun, to begin the same, whence the name; judicial writs issued out of the court where the original was returned after the suit was begun. The original bore date in the name of the king, the judicial in the name of the judge. Another division of writs was into real, personal, and mixed: the real conpersonal concerning goods, chattels, and personal injuries; and the mixed partaking of the nature of both. Again, writs concerning the possession of land were either possessory, of a man's own possession; or ancestral, of the seisin and possession of his ancestor as well. Writs also commonly bore some special name or addition descriptive of their particular purpose; e.g., writ of assistance, of inquiry, of capias, &c. Brown. The Stat. 3 & 4 Wm. IV. ch. 27, abolished a great number of writs. It enacted that " no writ of right patent, writ of right quia dominus remisit curiam, writ of right in capite, writ of right in London, writ of right close, writ of right de rationabili parte, writ of right of advowson, writ of right upon disclaimer, writ de rationabilibus dioisis, writ of right of ward, writ de consuetudinibus el servitiis, writ of cessnvit, writ of escheat, writ of quo jure, writ of secta demolendinum, writ de essendo quietum de theolonio, writ of ne injuste vexes, writ of mesne, writ of quod permitlat, writ of formedon in descender in remainder, or in reverter, writ of assise of novel disseisin, nuisance, darrein presentment, juris utrum, or mort d'ancestor, writ of entry sur disseisin in the quibus, in the per, in the per and cui, or in the post, writ of entry sur intrusion, writ of entry sur alienation, dum fuit non compos mentis, dum fuit infra cetatem, dum fuit in prisona, ad communem legem, in casu proriso, in consimili casu, cui in vita, sur cui in vita, cui ante dicortium, or sur cui ante divortium, writ of entry sur abatement, writ of entry quare ejecit infra terminum, or ad terminum qui prateriit, or causa matrimonii prcelocuti, writ of aiel, besaiel, tresaiel, cosinage, or nuper obiit, writ of waste, writ of partition, writ of disceit, writ of qjiod ei deforceat, writ of covenant real, writ of warrantia chartce, writ of curia claudenda, or writ per qwB servitia, and no other action real or mixed (except a writ of right of dower, or writ of dower unde nihil habet, or a quare impedit, or an ejectment), and no plaint in the nature of any such writ or action, except a plaint for freebench or dower, — shall be brought after the 31st day of December, 1834." (Trouh. %■ H. Prac.) Wharton. The common-law definition of a writ includes a seal. Baird v. Pridmore, 29 How. Pr. 253. The term writ includes execution and attachment. Bank of Rutland v. Parsons, 21 Vt. 199. Also, a capias. Tyler v. Canaday, 2 Barb. 160. Also, a summons in a justice's court. Cole v. Bell, 48 Barb. 194. Writ of assistance. A writ issuing out of chancery to aid or assist the sheriff in giving possession of lands pursuant to an execution upon a judgment at law for recovery of possessfcn. the record of the proceedings had in a cause which has been adjudged in a court helow, to review what has been there done, and correct errors, if any. Whether " writ of error " includes a certiorari, see King c. Wright, 2 Harr. (Del.) 135; Carman v. Carman, 3 N. J. L. 470. Writ of inquiry. A writ used in an action at common law, by which, after judgment by default for the plaintiff, the sheriff inquires, by the oaths of twelve honest and lawful men, what amount of damages the plaintiff hath really sustained. The inquiry is usually had by the under-sheriff before a jury. Writ of right. This was a writ which lay for a man who had the right of property, against another man who had the right of possession and was in possession under such right. This severance of the two rights arose in three cases, chiefly: Upon discontinuance by tenant in tail; After judgment in a possessory action; and After the possessory action was barred by the statute of limitations. The writ of right properly lay only to recover corporeal hereditaments for an. estate in fee-simple; but there were other writs, said to be " in the nature of a writ of right," available for the recovery of incorporeal hereditaments or of lands for a less estate than a fee-simple. In this action, the demandant alleged some seisin of the lands in himself, or else in some one under whom he claimed; and usually the tenant in possession denied the demandant's right, which the latter was thereupon required to prove; and, failing such proof, the demandant and his heirs were perpetually barred of his claim, otherwise he recovered the lands against the tenant and his heirs for ever. There was a limit to the seisin which the demandant might allege; and such limit was fixed by the Statute of Westminster the First (3 Edw. I.), ch. 39, from the time of Eichard I.; and afterwards by the Stat. 32 Hen. VIII. ch. 2, seisin in a writ of right was to be alleged within sixty years. By the Stats. 3 & 4 Wm. IV. ch. 27, § 36, and the common-law procedure act, 1860, § 26, all writs of right and writs in the nature thereof have been abolished. Braum. Writ of Bummons. The writ by which, under the English judicature acts, actions are commenced. It corresponds to the writ in use in the New England states for commencing an action, and to the summons employed under the codes of reformed procedure.

In practice. Terms anciently used to designate actions commenced by original bill, as distinguished from those commenced by original writ, and applied in modem practice to suits commenced by capias ad respondendum. 1 Arch. Fr.2,S'd1. b Hil Cs

practice, is a mandatory recept, issued by the authority, and in the name of the sovereign or the state, for the purpose of compelling the defendant to do something therein mentioned. It is issued by a court or other competent jurisdiction, and is returnable tothe same. It isto be under seal and tested by the proper officer, and is directed to the sheriff, or other officer lawfully authorised to execute the same. Vide 3 BI. Com. 273; 1 Tidd, Pr. 93; Gould on Pl. c. 2, s. 1. There are several kinds of writs, some of which are mentioned below.