Writ

There are several divisions of writs (excluding those purely financial and political), the most important being that into original and judicial, the former (tested in the name of the king) issued to bring a suit before the proper court, the latter (tested in the name of a judge) issued during the progress of a suit or to enforce judgment. The nature of a third class, magistralia, is an unsolved puzzle. Bracton regarded them as writs which were capable of variation in order to meet the plaintiff's grievance; Coke con sidered them to be a variety of original writs which generated actions upon the case. Possibly the later writers attached more technicality to Bracton's expressions than they were meant to bear, and in any event the use of magistralia for purposes of classification was of little import by the time that Registrum Brevium was printed, for the primary division there is only twofold, original and judicial.

No ms. register known to the author of this article contains even this twofold division. Coke and other authorities mention numerous other divisions, but those which have been named appear to be the principal, of writs.

Writs of Historical Interest.

A great number of the older writs are now obsolete. The details relating to them can be found in the printed Registrum Brevium and in Sir Anthony Fitz herbert's "New Natura Brevium," a work of the highest authority which ran into 18 editions, or reprints, between 1534 and Some of these ancient writs had such a great influence on the history of English law that they need brief descriptions here. The prerogative writs are treated in the paragraph on "Writs at the present day"; historically they had a large share in securing the administration of justice, and the personal freedom of the subject. In the domain of private law, the writ of right (breve de recto) was styled by Fitzherbert "the highest writ in law," and Registra Brevium invariably commence with it. It was employed for the recovery of real estate. The principle that no man need answer for his freehold without a royal writ was laid down in Henry II.'s reign. This compelled everyone who demanded freehold land from another person to obtain a writ, in effect the writ of right, if he were asserting title to the land. The insistence on the writ of right had political significance, for it furthered the cen tralization of justice. The procedure upon it became intolerably clumsy and tedious, and this led first to its disuse and finally to its abolition. No writ had wider effect than the writ of trespass. In origin, the word "trespass" covered nearly every wrongful act or default, whether it be what we should now call a clime or a tort. In that sense, it is traceable as early as John's reign, but the writ of trespass did not become a writ "of course" until the latter part of Henry III.'s reign, just after the conclusion of the Barons' war. Very likely it was one of the agencies in clear ing up the litter of disorder left by civil strife. The action which the writ of trespass vi et armis originated was quasi-criminal. It was aimed at serious and forcible breaches of the king's peace. Though it was begun by the injured individual, it ended in the punishment of the defendant as well as in compensation to the plaintiff. It was more popular than the "appeal of felony" because

the same precision in pleading was not required and the trial was not by the detested method of battle. Its scope was also wider, and damages were obtainable. Later, trespass developed on one side into misdemeanours (now one branch of criminal law) and on the other into the law of torts, or civil injuries. In the 14th and 15th centuries, statutes often fixed the action of trespass as an appropriate remedy for the offences created by them, because criminal "appeals" were falling into disuse, there was no organized police, the judges were often corrupt, except in the central courts, and were not always pure even there. The three chief kinds of the writ of trespass vi et armis, were for assault and battery, for injury to land (quare clausum fregit), and for taking away goods (de bonis asportatis). The writ could therefore be employed by any landholder for the recovery of damages done to his possession, but not, at first, for the recovery of possession itself. This ex tension was not recognized till the middle of the 15th century, and it resulted in the writ of trespass, de ejectione firmae, which appears first as a remedy enabling the termor, or lessee for years, to sue anyone who had ejected him, whether his lessor or another person, and then becomes the best remedy of the ejected free holder. He borrowed this "action of ejectment" from the termor, because his own proprietary and possessory remedies had become so inadequate. A cloud of legal fictions veiled the borrowing, but in spite of the duration of some of these till the Common Law Procedure Act, 1852, the action of ejectment was greatly superior to the dilatory remedies which it thrust in the background. The law of torts, as it is now called, also owes a heavy debt historically to writs of trespass upon the case, which were adapta tions of the writ of trespass made to meet special cases. The same object was achieved by means of the statute of West minster II, 1285 (supra), for the clerks of the chancery were required by it to issue modified writs in consimili case. It is not clear whether writs of trespass upon the case ought, as a matter of history, to be regarded as springing from this statute or as of independent origin. Certainly, in later law, the sources seem to be distinct. However that may be, trespass upon the case, or "case," was an excellent machine for redressing most civil in juries, nor have judges ceased to speak of "action on the case" even at the present day. Nor was its influence confined to the law of torts. The most notable offshoot of "case" was the variety of it styled assumpsit, which became the general form of action by which damages could be recovered for breach of a contract not made under seal. If one undertook (assumpsit) to do some thing and did it ill, he was liable. Gradually it was held that even if he did nothing, he was still liable. This was recognized very early in the 16th century, and the shaping of this action of assumpsit by the judges of this and the succeeding century re sulted in the curious spectacle of an action upon contract modelled upon an action of pure tort.