assize was in 1835. But long before that date possessor 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
proceedings in ejectment. 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 (1275). The writ
of right is also interesting as being the basis of the law of limitation.
By the Statute of Merton (1226) 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 (1541)
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 by advowson, brought by the patron to
recover his right of presentation to a benefice, and the writs of right
of dower, ne injuste vexes and de rationabili parte, the latter brought
by coparceners or brothers in gavelkind. Coheirs and coparceners
also had the nuper obiit for disseisin by one of themselves. 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 Conditionalibus; 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 nativo
habendo, to recover the inheritance 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 antient demesne.
They had also the writ of monstraverunt.
Up to 1832 an action was (except as against certain privileged persons, such as attorneys) begun at law by original writ, and writ practically became the equivalent of action, and is so used in old books of practice. The law was gradually altered by legislation and still more by the introduction of fictitious proceedings in the common law courts, 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 following year an immense number of the old writs was abolished by the Real Property Limitation Act 1833. An exception was made in favour if the writ of right of dower, writ of dower unde nihil habet, quare impedit and ejectment, 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, conspiracy, estrepement and waste, false judgment, monstrans de droit, nuisance, partition, praemunire, quo warranto, scire facias, subpoena and warrantia chartae.
The number of writs, especially those connected with ecclesiastical procedure, was so large that any exhaustive list of them is almost Obsolete writs. impossible, but a few of those of more special interest which have become obsolete may be shortly mentioned. Admensuratio lay against persons usurping more than their share of property. It was either dotis or pasturae, the latter, like the Scottish “souming and rouming,” being the remedy for surcharge of common, for which also quod permittas lay. Alias and pluries writs were issued when a previous writ had been disobeyed. Apostata capiendo was the mode of apprehension of a monk who had broken from his cloister. Assistance went to the sheriff to assist the party or an officer of chancery to gain possession of land. Attaint lay to inquire by a jury of twenty-four whether a jury of twelve had given a false verdict. Decies tantum also lay against a juror who had accepted a bribe, so called because he had to refund ten times the sum received. 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 Act 1875. Beaupleader lay to prohibit the taking of a fine de pulcre placitando, forbidden by the Statute of Marlbridge (1268).[1] 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 commenced 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, alledged 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. 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. De cautione admittenda was a curiosity. It enjoined a bishop to admit an excommunicated person to absolution on condition of his giving security to obey the commands of the church. 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 in 1641 by 16 Car. I. c. 20. Entry was a possessor 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 alleging, the latter not, the title of the heir from the original disseisor. When writ had come to be equivalent in meaning to action, one of the divisions of possessor 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 excommunicate liberando. These proceedings were abolished and the writ de contumace capiendo substituted in 1817. Faux judgment was for revising the decision of an inferior court. Haeretico 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 replegiando, mainprize and odio et atia (or bono et malo) were all ancient means of securing the liberty of the subject, 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 Carta and the Statute of Westminster the Second, but, having been abused to the advantage of sheriffs, it was abolished in 1355 by 28 Edw. III. c. 9. It was possibly among the means—like the writ of right—by which the trial by battle and the appeal of felony tended to become obsolete. Leproso amovendo explains itself. Moderata misericordia was the means of reviewing an excessive amercement of an inferior court, especially after an amercement had tended to become a fixed sum of twelve pence. Nisi prius was given by the Statute of Westminster the Second, 13 Edw. I. c. 30. Its place is now taken by the commission of nisi prius. Orando pro rege et regno, before the present Book of Common Prayer, enjoined public prayers for the high court 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. Quare ejecit infra terminum was the old remedy of the lessee for eviction by the lessor. 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 distrainor 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 rescous or capias in withernam 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 withernam could be replevied was the only one which the Admirable Crichton found himself unable to answer. Restitutione extracti ab ecclesia lay for restoring a man to a sanctuary from which he had been wrongfully taken. Secta lay for enforcing the duties of tenants to their lord's court, e.g. secta ad molendinum, 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. 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
- ↑ Relief from “miskenning” or “mescheninga,” or fine for beaupleader, was often granted in charters to towns, as by that of Henry I. to London.
