Writ - Knowledge

742: 350:, rather than re-inventing the wording of a new legal document. The problem with this approach was that a plaintiff's rights and available forms of action at his disposal, would be defined, and in most cases limited, by the limited variety of writs available to him. Thus, the power to create new writs was akin to the power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser 43: 431: 723: 140: 2371: 2359: 2347: 2335: 315:, had their own system of writs, which often reflected or anticipated the common law writs. The writ was "served" on (delivered in person to) the wrongdoer and acted as a command that he should appear at a specified time and date before the court specified in the writ, or it might command some other act on the part of the recipient. 948:

The due process for 'petitions for' such writs is not simply civil or criminal because they incorporate the presumption of non-authority so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide

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was a writ which lay for a man whose cattle or goods were taken by another, who was likely, during the controversy, to make away with them, and would hardly have been able to make satisfaction for them afterwards. Reg of Writs 126. Cowel. The writ lay to seize the cattle and goods in the hands of a

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if one happened to be visiting the county, there would be no need to obtain a writ. An informal complaint could usually start actions in local courts. However, if a plaintiff wished to avail himself of Royal — and by implication superior — justice in one of the King's courts, then he would need a

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used in the Chancery. A writ was a summons from the Crown to the parties to the action, with on its back the substance of the action set out, together with a 'prayer' requesting a remedy from the court (for example, damages). In 1980, the need for writs to be written in the name of the Crown was

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The development of writs as a means of commencing a court action was a form of "off-the-shelf" justice designed to enable the English law courts to rapidly process lawsuits by allocating each complaint form into a standard category that could be dealt with by standard procedures. The complainant

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took over the system unchanged, but was to extend it in two ways: first, writs became mainly framed in Latin, not Anglo-Saxon; second, they covered an increasing range of royal commands and decisions. Writs of instruction continued to develop under his immediate successors, but it was not until

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At first, new writs were drafted to fit each unique situation. However, in practice, the clerks of the Chancery would use wording from previously issued writs, with suitable adjustments, often taken from reference books containing collections of forms of writ, much as in modern times, lawyers

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writ, a command of the King, to enable him to do this. Initially, for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For most Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the

418:. Under these, almost all civil actions, other than those connected with insolvency, are now commenced by the completion of a 'Claim Form' as opposed to the obtaining of a 'Writ', 'Originating Application', or 'Summons' (see Rules 7 and 8 of the Civil Procedure Rules). 1174:(command) is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. But it cannot be issued against a Public Authority for enforcing a Private Contractual Obligation 1161:(be informed) is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence, and documents, usually to overrule the judgment of the lower court. It is one of the mechanisms by which the 1152:(to have the body of) is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of their detention. If the detention is illegal, the court issues an order to free the person. 1116:

and under Article 139 for enforcement of rights other than fundamental rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs:

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in 1832 and 1833, a profusion of writs was no longer needed, and one uniform writ came into use. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered to conform more to the

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applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a

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of his son and the marriage of his eldest daughter. Cowel. No man was entitled to have this writ before his son had attained the age of fifteen years, or his daughter the age of seven years. FNB 82 A; Reg Orig 87; Glanvil, l 9, c 8;

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Over time, opposition to the creation of new writs by the Chancery increased. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason". Ultimately, in 1258, the King was forced to accept the

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was a writ that lay for a denizen against the goods of aliens found in the kingdom, as a recompense for goods taken from him in a foreign country after a refusal to restore them. Reg Orig 129; Cowel. The writ was equivalent to

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for the petitioner, who may be any person, not just an interested party. In this, they differ from a motion in a civil process in which the burden of proof is on the movant and in which there can be a question of

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The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are

1143:(forbid) is issued by a higher court to a lower court, prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself. 302:

was tailor-made to suit each case and was thus highly time-consuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the

1186:(by what authority; under what warrant) is issued against a person who claims or usurps a public office. Through this writ, the court inquires 'by what authority' the person supports their claim. 995:

corrects a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available, e.g., when a judgment was rendered without full knowledge of the facts.

648: 785:, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now commonly available by a 1424: 374:

to select on his client's behalf the appropriate writ for the proposed legal action. These were purchased from the court by payment of a fee. The solicitor would then hire a

1035:(colloquially "fi fa") commands a sheriff to take and auction off enough property from a losing party to pay the debt (plus interest and costs) owed by a judgment debtor. 644: 487:

party, and to hold them during the pendency of a suit, to prevent their being made away with. Reg Orig 126b. In 1816, Williams said the writ lay anciently. Also called

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orders either (1) a court to send its record to another or (2) a jailor to receive the accused in their custody at any point during the investigative or trial process.

1026:) commands a sheriff to summon a defendant indicted for a felony who had failed to appear in court to deliver himself upon pain of outlawry or forfeiture of his goods. 366:. New writs were created after that time only by the express sanction of Parliament and the forms of writ remained essentially static, each writ defining a particular 298:, for dealing with commonly made complaints by subjects of the crown, for example: "someone has damaged my property". The previous system of justice at the royal 803:, usually used to test the legality of a prisoner's detention, has expressly been preserved. It is explicitly mentioned in Article I, Section 9, Clause 2 of the 192:

In its earliest form, a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the

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on the day of his or her death; and a stranger entered on that day and abated or dispossessed the heir of the inheritance. FNB 221D; 3 Bl Com 186. It was a

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to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." However, the

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that writs became available for purchase by private individuals seeking justice, thus initiating a vast expansion in their role within the common law.

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orders the seizure of a portion of a debtor's lands and all his goods (except work animals) towards satisfying a creditor until the debt is paid off.

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or conveyed instructions to a local court. In the beginning, writs were the documents issued by the King's Chancellor against a landowner whose

502: 2354:: Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1. 852:

Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common law writ of

807:. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by 741: 400: 2134:

Stewart Rapalje and Robert L Lawrence. A Dictionary of American and English Law. Frederick D Lynn & Co. Jersey City. 1888. vol 1.

2378:: Henry James Holthouse. A New Law Dictionary. Second Edition. Thomas Blenkarn. London. Charles C Little and James. Boston. 1850. 874:

varies from state to state but is often similar to that in the federal courts. Some states continue to use writ procedures, such as

354:, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence. 1848:

Edward Wynne. "Observations on Fitzherbert's Natura Brevium". 1760. printed in "A Miscellany containing Several Law Tracts". 1765.

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in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:

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to receive an attorney for the person taking out the writ, and to admit his appearance by him. Cowel. Sweet said it was the writ

232:) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created " 2254: 582:, was a writ directed to the sheriff of every county where the king or other lord had tenants, to levy of them reasonable 438: 1112:. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of 414:

unified most of the procedures of the Supreme Court and the county courts in civil matters. These reforms brought in the

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complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless.

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delivered him to be kept, and refuses to deliver them. Old Nat Brev, fol 66. Reg Orig, fol 159. It was a writ of

308: 79: 635:, was a writ which lay for an heir to recover the possession of lands of which a grandfather or grandmother was 842: 64: 651:(3 & 4 Will 4 c 27). Ayle was one of a group of writs consisting of ayle, besayle, tresayle, and cosinage. 1175: 213: 2319: 216:

for elections for the House of Representatives, or state governors for state elections) to local officials (

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for the king's wars, and afterwards hid himself, when he should have been ready to go. Reg Orig 24. Cowel.

2366:: Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1. 1113: 808: 761:

adopted the traditional English writ system, in the sense of a rigid set of forms of relief that the law

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which belong to the church: Reg of Writs, fol 29b. The writ was founded on section 4 of chapter 5 of the

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English. A Dictionary of Words and Phrases Used in Ancient and Modern Law. 1899. Reprinted 2000. vol 1.

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at a specific place and time. An early usage survives in the United Kingdom, Canada, and Australia in a

2227: 596: 209: 93: 1400: 699: 362:, which among other things, prohibited the creation of new forms of writ without the sanction of the 335: 285:', which were open for all to read, and 'letters close' for one or more specified individuals alone. 1983:

Henry C Adams. A Juridical Glossary. 1886. Weed, Parsons & Company. Albany, New York. Volume 1.

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inhibits the unconscionable use of a lawful judgment because of matters arising after the judgment.

853: 816: 758: 731: 342:(1154–1189), the use of writs had become a regular part of the system of royal justice in England. 339: 2087: 1702: 1646: 1570: 1545: 862:

In modern times, the All Writs Act is most commonly used as authority for federal courts to issue

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to form a new one. This phrase derives from the fact that to hold an election in such a system, a

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As to the meaning of "cattle" generally, see for example Stroud, The Judicial Dictionary, 1890,

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instructs a sheriff to order someone to appear in court to answer for several different crimes.

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For a list of writs, see, for example, "Antiquities of the Law" (1870) 1 Albany Law Journal

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Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716)

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Writs applied to claims to be heard in one of the courts, eventually forming part of the

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Auxilium ad filium primogenitum militem faciendum, vel ad filiam primogenitam maritandam

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and directs a lower court of record to submit its record of the case laid for appeal.

811:. The writ's application does not stop there: the Supreme Court has held the writ of 753:, stating that he is still in possession of the attached property for want of a buyer 703: 695: 323: 299: 1362: 859:

under the All Writs Act to set aside a conviction when no other remedy is available.

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Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962.

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to 385; and Troubat, The Practice in Civil Actions and Proceedings, 1837, vol 2,

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Digby. An Introduction to the History of the Law of Real Property. 2nd Ed. 1876.

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and consisted of a brief administrative order, authenticated (innovatively) by a

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Shakespearean Criticism 150; Dolan (ed), "Renaissance Drama and the Law" (1996)

2411: 972: 950: 884: 790: 387: 367: 331:, being, in essence, another government department, could issue its own writs. 282: 229: 986:

directs an officer to take the person named in the writ or order into custody.

442: 208:, which is a written order issued on behalf of the monarch (in Canada, by the 2385: 2375: 2363: 2351: 2339: 2270: 2086:

217. Booth, The Nature and Practice of Real Actions, 2nd Ed, 1811, Ch 16, pp

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to review cases from the United States courts of appeals or the state courts.

799: 766: 557: 411: 163:) is a formal written order issued by a body with administrative or judicial 2099:

John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721.

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John Rastell and William Rastell. Les Termes de la Ley. In the Savoy. 1721.

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See further, Finlason, Reeves' History of the English Law, 1869, vol 2, pp

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