outlawry, calling upon the party to appear. Under the old practice
a venire facias de novo was the means of obtaining a new trial. Venire
inspiciendo appears still to be competent, and is a curious relic of
antiquity. It issues on the application of an heir presumptive in
order to determine by a jury of matrons whether the widow of a
deceased owner of lands be with child or not. Almost exactly the
same proceeding was known in Roman law.
The principal writs of a non-judicial nature relate to parliament on some of its constituent elements. Parliament is summoned by the king's writ issued out of chancery by advice of the privy council. The period of forty days once necessary between the writ and the assembling is now by an act of 1852 reduced to thirty-five days. Writs of summons are issued to the lords spiritual and temporal before every new parliament. Those to Irish representative peers are regulated by the Act of Union, those to archbishops and bishops by the Ecclesiastical Commissioners Act 1847. New peerages are no longer created by writ, but the eldest son of a peer is occasionally summoned to the House of Lords in the name of a barony of his father's. With respect to election of members of the House of Commons, the procedure differs as the election takes place after a dissolution or on a casual vacancy. After a dissolution the writ is issued, as already stated, by order of the crown in council. For a single election the warrant for a new writ is issued during the session by the speaker after an order of the house made upon motion; during the recess by the speaker's authority alone. The warrant is addressed to the clerk of the crown in chancery for Great Britain, to the clerk of the crown and hanaper of Ireland. A supersedeas to a writ has sometimes been ordered where the writ was improvidently issued. The time allowed to elapse between the receipt of the writ and the election is fixed by the Ballot Act 1872, sched. 1, at nine days for a county or a district borough, four days for any other borough. The writ is to be returned by the returning officer to the clerk of the crown with the name of the member elected endorsed on the writ. Sched. 2 gives a form of the writ, which is tested, like the writ of error, by the king himself. The returning officer is the sheriff in counties and counties of cities, generally the mayor in cities and boroughs, and the vice-chancellor in universities. Other writs for election are those for convocation, which is by 25 Hen. VIII. c. 19 summoned by the archbishop of the province on receipt of the king's writ, and for election of coroners, verderers of royal forests, and some other officers whose office is of great antiquity. The writ de coronatore eligendo, addressed to the sheriff, is specially preserved by the Coroners Act 1887.
Offences relating to writs are dealt with by the Criminal Law Consolidation Acts of 1861 and other statutes. The maximum penalty is seven years' penal servitude.
Scotland.—“Writ” is a more extensive term than in England. Writs are either judicial or extrajudicial, the latter including deeds and other instruments—as, for instance, in the Lord Clerk Register Act 1879, and in the common use of the phrase “oath or writ” as a means of proof. In the narrower English sense both “writ” and “brieve” are used. The brieve was as indispensable a part of the old procedure as it was in England, and many forms are given in Regium Majestatem and Quoniam Attachiamerta. It was a command issued in the king's name, addressed to a judge, and ordering trial of a question stated therein. It was drawn by the writers to the signet, originally clerks in the office of the secretary of state. Its conclusion was the will of the summons. In some cases proceedings which were by writ in England took another form in Scotland. For instance, the writ of attaint was not known in Scotland, but a similar end was reached by trial of the jury for wilful error.[1] The English writ of ne exeat regno is represented by the meditatio fugae warrant. Most proceedings by brieve, being addressed to the sheriff, became obsolete after the institution of the court of session, when the sheriffs lost much of that judicial power which they had enjoyed to a greater extent than the English sheriff (see Sheriff).[2] An English writ of execution is represented in Scotland by diligence, chiefly by means of warrants to messengers-at-arms under the authority of signet letters in the name of the king. See the Writs Execution Act 1868. The brieve, however, has not wholly disappeared. Brieves of tutory, terce and division among heir-portioners are still competent but not in use. Other kinds of brieve have been superseded by simpler procedure, e.g. the brieve of service of heirs, representing the older brete de morte antecessoris, by a petition to the sheriff under the Titles to Land Consolidation Act 1868 and the brieve of perambulation by a declaratory action. The brieve of cognition of insane persons is now one of the few of practical importance. The old brieves of furiosity and idiotcy were abolished, and this new form was introduced by the act last named. Writs co nomine have been the subject of much modern legislation. The writs of capias, habeas, certiorari and extent were replaced by other proceedings by the Exchequer Court Act 1856. The writs of clare constat, resignation and confirmation (whether granted by the crown or a subject superior) were regulated by the act of 1868. By the same act crown writs are to be in the English language and registered in the register of crown writs. Writs need not be sealed unless at the instance of the party against whom they are issued. Writs of progress (except crown writs, writs of clare constat and writs of acknowledgment) were abolished by the Conveyancing Act 1874. The clare constat writ is one granted by the crown or a subject superior for the purpose of completing title of a vassal's heirs to lands held by the deceased vassal. Where the lands are leasehold the writ of acknowledgment under the Registration of Leases Act 1857 is used for the same purpose. By the Writs Execution Act 1877 the form of warrant of execution on certain extracts of registered writs is amended. Extracts of registered writs are to be equivalent to the registered writs themselves. Writs registered in the register of sasines for preservation only may afterwards be registered for preservation and execution. By 22 Geo. II. c. 48, passed for the purpose of assimilating the practice of outlawry for treason in Scotland to that in use in England, the court before which an indictment for treason or misprision of treason is found, is entitled on proper cause to issue writs of capias, proclamation and exigent. In some respects the proceedings in parliamentary elections differ from those in use in England. Thus the writ in university elections is directed to the vice-chancellors of Edinburgh and Glasgow respectively, but not to those of St Andrews and Aberdeen, and there is an extension of the time for the return in elections for Orkney and Shetland, and for the Wick burghs. Representative peers of Scotland were by the Act of Union to be elected after writ issued to the privy council of Scotland. On the abolition of the privy council a proclamation under the great seal was substituted by 6 Anne, c. 23.
United States.—Writs in United States courts are by Act of Congress to be tested in the name of the chief justice of the United States. By state laws writs are generally bound to be in the name of the people of the state, in the English language, and tested in the name of a judge. Writs of error have been the subject of much legislation by the United States and by the states. In New York writs of error and of ne exeat have been abolished. Writs as parts of real actions have been generally superseded, but in Massachusetts a writ of entry on disseisin is still a mode of trying title. Writs of dower and of estrepement are still in use in some states. By the law of some states, e.g. New Jersey, writs of election are issued to supply casually occurring vacancies in the legislature. The writ of assistance, already named, has its interest in constitutional history. Before the War of Independence it was issued to revenue officers to search premises for smuggled goods. It was on this writ that it was first contended in 1761 that a colonial court had jurisdiction to examine the constitutionality of a legislative act authorizing the issue of the writ. See Quincy's Massachusetts Rep. App., I. 520.
Authorities.—The importance of the writ in procedure led to the compilation of a great body of law and precedent at an early date. In addition to the Registrum brevium there were, among other old works, the Natura brevium, first published in 1525; Theloall, Le Digest des briefes originales (1579); Fitzherbert, Le Nouvel Natura brevium (1588); Hughes, Original Writs (1655); Thesaurus brevium (1661); Brownlow, Brevia judicialia (1662); Officina brevium (1679). See too Coke upon Littleton, 158, 159. 2 Coke's Inst. 39; and Du Cange.[3] Many precedents will be found in the collection of parliamentary writs and in Stubbs's Select Charters. The Crown Office Rules, 1906, contain many precedents of the modern writs used in crown practice. Old books of practice, such as Tidd's Practice, Corner's Crown Practice and Booth's Real Actions, contain much law on the subject. For the history, Spence's Equitable Jurisdiction, vol. i. bk. ii . ch. viii.; Forsyth's Hist. of Trial by Jury; Stephen, On Pleading, Bigelow's Hist. of Procedure, ch. iv.; Pollock and Maitland, Hist. of Eng. Law; and W. S. M'Kechnie, Magna Carta may be consulted. There appears to be no book dealing with the writ in modern practice, but sufficient information is contained in the ordinary treatises on procedure. (J. W.)
WRITERS TO THE SIGNET, in Scotland, a society of law agents corresponding to solicitors in England. They were originally clerks in the secretary of state's office and prepared the different writings passing the signet; every summons is still signed on its last page by a writer to the signet. By the Titles to Land Consolidation (Scotland) Act 1868, they have the exclusive privilege of preparing all crown writs, charters, precepts, &c., from the sovereign or the prince of Scotland. They have no charter but are usually considered a corporation by long custom; they have office-bearers and are members of the College of Justice. On the Act of Union there was much debate as to whether writers to the signet should be eligible to the Scottish bench. It was finally decided that they should be eligible after ten years' practice. But, with the exception of Hamilton of Pencaitland in 1712, no writer to the signet has ever had a seat on the bench.
- ↑ An example occurring in the reign of James VI. will be found in Pitcairn, Criminal Trials, i. 216.
- ↑ Explanations of many of the older writs will be found in Lord Clerk Register Skene's De verborum significatione (1641), and styles in Spotiswood, Stile of Writs (1715).
- ↑ A reference to Du Cange will show the great variety of the non-legal uses of brevis or breve. It may mean, inter alia, an annual rent, an amulet, a notice of the death of a monk. Brevetum signified what are now known as ship's papers.
