20170712

WRIT, WRIT OF CONSPIRACY, WRIT OF DEBT, WRIT OF ERROR...

    12.7.17  

WRIT, practice. 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. 
 
2. It is issued by a court or other competent jurisdiction, and is return-able to the same. It is to be under seal and tested by the proper officer, and is directed to the sheriff, or other officer lawfully authorized to execute the same. Writs are divided into, 1. Original. 2. Of mesne process. 3. Of execution. Vide 3 Bl. 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.
WRIT DE BONO ET MALO. An ancient writ which was issued in the case of each prisoner, instead of a general commission of general jail delivery for all the prisoners. This writ has not been used for a very long time, and is obsolete. 4 Bl. Com. 210.
WRIT OF CONSPIRACY. The name of an ancient writ, now superseded by the more convenient remedy of an action on the case, which might have been sued against parties guilty of a conspiracy. F. N. B. 260. See Conspiracy.
WRIT OF DECEIT. The name of a writ which lies where one man has done anything in the name of another, by which the latter is damnified and deceived. F. N. B. 217.
2. The modern practice is to sue a writ of trespass on the case to remedy the injury. See Deceit.
WRIT DE EJECTIONE FIRMAE. A writ of ejectment. Vide Ejectment, and 3 Bl. Com. 199.
WRIT DE HAERETICO COMBURENDO, Engl. law. The name of a writ formerly issued by the secular courts, when a man was turned over to them by the ecclesiastical tribunals, after having been condemned for heresy.
2. It was founded on the statute 2 Hen. IV. c. 15; it was first used, A. D. 1401, and as late as the year 1611. By virtue of this writ, the unhappy man against whom it was issued, was burned to death. See 12 Co. R. 92.
WRIT DE HOMINE RELEGIANDO, practice. A writ which lies to replevy a man out of prison, or out of the custody of any private person, in the same manner in which cattle taken in distress may be replevied, upon giving security to the sheriff that the man shall be forthcoming to answer to any charge against him.
2. This writ is almost entirely superseded by the more effectual writ of habeas corpus. 3 Bl. Com. 129; Com. Dig. Imprisonment, L 4; Lord Raym. 613; F. N. B. 66; 1 Atk. 633; 14 Vin. Ab. 305; Dane's Ab. h. t.; 7 Com. Dig. 271; 5 Binn. R. 304; 1 John. R. 23; 14 John. R. 263 2 Cain. C. Err. 322.
WRIT DE ODIO ET ATIA, Engl. law. This writ is probably obsolete, and superseded by the writ of habeas corpus. It was anciently directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause or suspicion, or merely propter odium et atiam, for hatred and ill-will; and, if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail, 3 Bl. Com. 128; Com. Dig. Imprisonment, L 3.
WRIT OF COVENANTS, practice. A writ which lies where a party claims damage for breach of covenant, i. e. of a promise under seal.
WRIT OF DEBT, practice. A writ which lies where the party claims the re-covery of a debt, i. e. a liquidated or certain sum of money alleged to be due to him. This is debt in the debet, which is the principal and only common form. There is another species mentioned in the books, called the debt in the detinet, which lies for the specific recovery of goods, under a contract to deliver them. 1 Chit. Pl. 101.
WRIT OF DETINUE, practice. A writ which lies where a party claims the spe-cific recovery of goods and chattels, or deeds and writings detained from him. This is seldom used: trover is the more frequent remedy, in cases where it may be brought.
WRIT OF DOWER, practice. A writ which lies for a widow ciaiming the specific recovery of her dower, no part having been yet assigned to her. It is usually called a writ of dower unde nihil habet. 3 Chit. Pl. 393; Booth, 166.
2. There is another species, called a writ of right of dower, which applies to the particular case where the widow has received a part of her dower from the tenant himself, and of land lying in the same town in which she claims the residue. Booth, 166; Glanv. lib. 6, c. 4, 5. This latter writ is seldom used in practice.
WRIT OF EJECTMENT, practice. The name of a process issued by a party claiming land or other real estate, against one who is alleged to be unlawfully in possession. Vide Ejectment.
WRIT OF ENTRY, practice. A writ requiring the sheriff to command the tenant of land that he render to the demandant the premises in question, or to appear in court on such a day to show cause why he hath not done so. Co. Litt. 238. See 2 Pick. 473; 10 Pick. 359; 14 Mass. 20; 15 Mass. 305; 5 N. Hamp. R. 450; 6 N. Hamp. R. 555; 7 Pick. 36.
WRIT OF ERROR, practice. A writ issued out of a court of competent jurisdiction, directed to the judge of a court of record in which final judgment has been given, and commanding them, in some cases, themselves to examine the re-cord; in others to send it to another court of appellate jurisdiction, therein named, to be examined in order that some alleged error in the proceeding may be corrected. Steph. Pl. 138; 2 Saund. 100, n. 1; Bac. Ab. Error, in pr.
2. The first is called a writ of error coram nobis or vobis. When an issue in fact has been decided, there is not in general any appeal except by motion for a new trial; and although a matter. of fact should exist which was not brought into the issue, as for example, if the defendant neglected to Plead a release, which he might have pleaded, this is no error in the proceedings, though a mistake of the defendant. Steph. Pl. 139. But there are some facts which affect the validity and regularity of the proceeding itself, and to remedy these errors the party in interest may sue out the writ of error coram vobis. The death of one of the parties at the commencement of the suit; the appearance of an infant in a personal action, by an attorney, and not by guardian; the coverture of either party, at the commencement of the suit, when her husband is not joined with her, are instances of this kind. 1 Saund. 101; 1 Arch. Pr. 212; 2 Tidd's Pr. 1033; Steph. Pl. 140 1 Browne's Rep. 75.
3. The second species is called, generally, writ of error, and is the more common. Its object is to review and correct an error of the law committed in the proceedings, which is not amendable, or cured at common law, or by some of the statutes of amendment or jeofail. Vide, generally, Tidd's Pr. ob. 43; Graham's Pr. B. 4, o. 1; Bac. Ab. Error; 1 Vern. 169; Yelv. 76; 1 Salk. 322; 2 Saund. 46, n. 6, and 101, n. 1; 3 Bl. Com. 405; Serg. Const. Law, ch. 5.
4. In the French law the demande en cassation is somewhat similar to our proceeding in error; according to some of the best writers on French law, it is considered as a new suit, and it is less an action between the original parties, than a question between the judgment and the law. It is not the action which is to be judged, but the judgment; "la demande en cassation est un nouveau proces, bien moins entre les parties qui figuraient dans le premier, qu'entre l'arret et la loi." Henrion de Pansey, de l'Autorite judiciare dans les gouvernemens monarchiques, p. 270, edit. in 8vo.; 6 Toull. n. 193. Ce n'est point le' proces qu'il s'agit de juger, mais le jugement. Ib.
5. A writ of error is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of any thing which is withheld from him, not when its operation is entirely defensive. 3 Story. Const. §1721. And it is considered generally as a new action. 6 Port 9.
WRIT OF EXECUTION, practice. A writ to put in force the sentence that the law has given: it is addressed to the Sheriff (and in the courts of the United States, to the marshal) commanding him, according to the nature of the case, either to give the plaintiff possession of lands; or to enforce the delivery of a chattel which was the subject of the action; or to levy for the plain-tiff, the debt, or damager, and costs recovered; or to levy for the defendant his costs; and that, either upon the body of the opposite party, his lands, or goods, or in some cases, upon his body, land, and goods; the extent and manner of the execution directed, always depending upon the nature of the judgment. 3 Bl. Com. 413.
2. Writs of execution are supposed to be actually awarded by the judges in court; but no such award is in general, actually made. The attorney, after signing final judgment, sues out of the proper office a writ of execution, in the form to which he conceives he would be entitled upon such judgment as he. has entered, if such entry has been actually made; and, if not made, then upon such as he thinks he is entitled to enter; and he does this, of course, upon peril that, if he takes a wrong execution, the proceeding is legal and void, and the opposite party entitled to redress. Steph. Pl, 137, 8. See Ca. Sa.; Execution; Fi. Fa.; Haberefa. possessionem; Vend. Exp.
WRIT OF EXIGI FACIAS. The name of a process issued in the course of proceedings in outlawry, and which immediately precedes the writ of capias agatum. See Exigent, or Exigi Facias.
WRIT OF FORMEDON, practice. This writ lies where a party claims the specific recovery of lands and tenements, as issue in tail; or as remainder-man or reversioner, upon the determination of an estate in tail. Co. Litt. 236 b; Booth, 139, 151, 154.
WRIT OF INQUIRY, practice. When in an action sounding in damages, (q. v.) as covenant, trespass, and the like, an interlocutory judgment is rendered, which is, that the plaintiff ought to recover his damages, without specifying the amount, it not yet being ascertained, the court does not in general undertake the office of assessing the damages, but issues a writ of inquiry, which is a writ directed to the sheriff of the county where the facts are alleged by the pleadings to have occured, commanding him to inquire into the amount of damages sustained "by the oath or affirmation of twelve good or lawful men of his county;" and to return such inquisition, when made, to the court.
2. The finding of the sheriff and jury under such a proceeding is called an inquisition. (q. v.)
3. The court will, on application, order that a writ of inquiry shall be executed before a judge, where it appears that important questions of law will arise. 2 John. R. 107.
4. When executed before the sheriff, he acts ministerially, and not judicially, and therefore, it may be executed before a deputy of the sheriff. 2 John R. 63. Vide Steph. Pl. 126; Grah. Pr. 639; 2 Archb. Pr. 19; Tidd's Pr. 513; Yelv. 152, n.; 18 Eng. Com. Law Rep. 181, n., 189, n.; 1 Marsh. R. 129; l Sell. Pr. 346; Watson on Sher. 221; 2 Saund. 107, n. 2.
WRITS, JUDICIAL, practice. In England those writs which issue from the common law courts during the progress of a suit, are described as judicial writs, by way of distinction from the original one obtained from chancery. 3 Bl. Com. 282.
WRIT OF MAINPRIZE, English law. A writ directed to the sheriff (either gen-erally, when any man is imprisoned for a bailable offence, and bail has been refused; or specially, when the offence or cause of commitment is not properly bailable below) commanding him to take sureties for the prisoner's appearance, commonly called mainpernors, and to set him at large. 3 B]. Com. 128. Vide Mainprize.
WRIT OF MESNE, Breve' de medio, old English law. A writ which was so called, by reason of the words used in the writ, namely, Unde idem A qui medius est inter C et praefatum B; that is, A, who is mesne between C, the lord paramount, and B, the tenant paravail. Co. Litt. 100, a.
WRIT, ORIGINAL, practice, English law. An original writ is a mandatory letter issuing out of the court of chancery under the great seal and in a king's name, directed to the sheriff of the county where the injury is alleged to have been committed, containing a summary statement of the cause of complaint, and requiring him in most cases, to command the defendant to satisy the claim; and, on his failure to comply, then to summon him to appear in one of the superior courts of common law, there to account for his non-compliance. In some cases, however, it omits the former alternative, and requires the sheriff simply to enforce the appearance. Steph. Pl. 5.
WRIT OF REPLEVIN, practice. The name of a process issued for the recovery of goods and chattels. Vide Replevin.
WRIT OF PRAECIPE. This writ is also called a writ of covenant, and is sued out by the party to whom lands are to be conveyed by fine; the foundation of which is a supposed agreement or covenant that the one shall convey the land to the other. 2 Bl. Com. 349, 350.
WRIT OF PREVENTION. This name is given to certain writs which may be issued in anticipation of suits which may arise. Co. Litt. 100. See Quia Timet.
WRIT OF RATIONABILI PARTE BONORUM. A writ which was sued out by a widow when the executors of her deceased husband refused to let her have a third part of her late husband's goods after the debts were paid. F. N. B. 284.
WRIT OF RESTITUTION. A writ which is issued on the reversal of a judgment, commanding the sheriff to restore to the defendant below, the thing levied upon, if it has not been sold, and if it has been sold, the proceeds. Bac. Ab. Execution, Q. Vide Restitution.
WRIT PRO RETORNO HABENDO, remedies, practice. The name of a writ which re-cites that the defendant was summoned to appear to answer the plaintiff in a plea whereof he took the cattle of the said plaintiff, specifying them, and that the said plaintiff afterwards made default, wherefore it was then considered that the said plaintiff and his pledges of prosecuting should be in mercy and that the said defendant should go without day, and that he should have re-turn of the cattle aforesaid. It then commands the sheriff, that he should cause to be returned the cattle aforesaid, to the said defendant without delay, &c. 2 Sell. Pr. 168. Vide Judgment in replevin.
WRIT OF PROCESS, Engl. law, pradice. If the defendant does not appear, in obedience to the original writ, there issue, when the time for appearance is past, other writs, returnable on some general return day in the term, called writs of process, enforcing the appearance of the defendant, either by attachment, or distress of his property, or arrest of his person, according to the nature of the case.
2. These differ from the original writ in the following particulars; they issue not out of chancery, but out of the court of common law, into which the original writ is returnable; and, accordingly, are not under the great seal, but the private seal of the court; and they bear teste in the named of the chief justice of that court, and not in the name of the king himself. It may also be observed, that in common with all other writs issuing from the court of common law, during the progress of the suit, they are described as judicial writs, by way of distinction from the original one obtained from the chancery. 4 Bl. Com. 282. See further, as to the nature of those writs, 1 Tidd's Pr. 106-193, 4th edit.; 1 Sellon's Pr. 64-102.
WRIT OF PROCLAMATION, Engl. practice. A writ which issues, at the same time with the exigi facias, by virtue of Stat. 31 Eliz. c. 3, s. 1, by which the sheriff is commanded to make proclamations in the statute prescribed.
2. When it is not directed to the same sheriff as the writ of exigi facias is, it is called a foreign writ of proclamation. Lee's Dict. of Pr.; 4 Reev. Inst. 261.
WRIT OF QUARE IMPEDIT, English law. The remedy by which, where the right of a party to benefice is obstructed, he recovers the presentation; and is the form of action now constantly adopted to try a disputed title to an advowson. Booth, 223 1 Arch. Civ. Pl. 34.
WRIT OF RECAPTION, practice. This writ lies where, pending an action of replevin, the same distrainor takes, for the same supposed cause, the cattle or goods of the same distrainee. See F. N. B. 169.
2. This writ is nearly obsolete, as trespass, which is found to be a pre-ferable remedy, lies for the second taking; and, as the defendant cannot justify, the plaintiff must necessarily recover damages proportioned to the injury.
WRIT OF RIGHT, practice. The remedly appropriate to the case where a party claims the specific recovery of corporeal hereditaments in fee simple; founding his title on the right of property, or mere right, arising either from his own seisin, or the seisin of his ancestor or predecessor. F. N. B. 1 B 3 Bl. Com. 391.
2. At common law, a writ of right lies only against the tenant of the free-hold demanded. 8 Cranch, 239.
3. This writ brings into controversy only the rights of the parties in the suit, and a defence that a third person has better title will not avail. Id.; 7 Wheat. 27; 3 Pet. 133. See 2 Wheat. 306; 4 Bing. N. S. 711; 3 Bing. N. S. 434; 4 Scott, R. 209; 6 Scott, R. 435; Id. 738; 1 Bing. N. S. 597; 5 Bing. N. S. 161; 6 Ad. & Ell. 103; 1 H. Bl. 1; 5 Taunt. R. 326; 1 Marsh. R. 68; 2 Bos. & P. 570; 1 N. R. 64; 4 Taunt. R. 572; 3 Bing. R. 167; 2 W. Bl. Rep. 1261; 1 B. & B. 17; 2 Car. & P. 187; Id. 271 Holt, R. 657; 8 Cranch, 229; 3 Fairf. 312; 7 Wend. 250; 3 Bibb, 57; 3 Rand. 568 2 J. J. Marsh. 104; 2 A. K. Marsh. 396; 1 Dana, 410; 2 Leigh, R. 1 4 Mass. 64; 17 Mass. 74.
WRIT OF TRESPASS, practice. This writ lies where a party claims damages for a trespass committed against his person, or tangible and corporeal property. See Trespass.
WRIT OF TRESPASS ON THE CASE, practice. A writ which lies where a party sues for damages for any wrong or cause of complaint to which covenant or trespass will not apply. See 3 Woodd. 167; Steph. Pl. 15.
2. This action originates in the power given by the statute of Westm. 2, to the clerks of chancery to frame new writs in consimili casu with writs already known. Under this power they constructed many writs for different injuries, which were considered as in consimili casu, with, that is, to bear a certain analogy to a trespass. The new writs invented for the cases supposed to bear such analogy, have received, accordingly, the appellation of writs of trespass on the case, as being founded on the particular circumstances of the case thus requiring a remedy, and, to distinguish them from the old writ of trespass; 3 Reeves, 89, 243, 391; and the injuries themselves, which are the subjects of such writs, are not called trespasses, but have the general name of torts, wrong or grievances.
3. The writs of trespass on the case, though invented thus, pro re nata, in various forms, according to the nature of the different wrongs which respectively called them forth began nevertheless, to be viewed as constituting collectively a new individual form of action; and this new genus took its place, by the name of Trespass on the case, among the more ancient actions of debt, covenant, trespass, &c. Such being the nature of this action, it comprises, of course, many different species. There are two, however, of more frequent use than any other species of trespass on the case, or, perhaps, than any other firm of action whatever. These are assumpsit and trover. Steph. Pl. 15, 16.
WRIT OF TOLT, Eng. law. The name of a writ to remove proceedings on a writ of right patent from the court baron into the county court. 3 Bl. Commen-taries, App. No. 1, §2.
WRIT OF WASTE. The name of a writ to be issued against a tenant who has committed waste of the premises. There are several forms of this writ, that against a tenant in dower differs from the others. F. N. B. 125.

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