Writ

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 (Scotland) Act, 1879, and in the common use of the phrase "oath or writ" as a means of proof. In the narrower Eng lish 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 Regiam Maiestatem and Quoniam Attachiamenta. 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. Most proceed ings 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.) 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. The only brieves in practical use are those for serving a tutor-at-law, for kenning to the terce, and for cognition of insane persons. The two former are rare; the third was substituted by the Court of Session (Scotland) Act, 1868, for the old brieves of furiosity and idiotry. Other kinds of brieve have been superseded by simpler procedure, e.g., the brieve of service of heirs, representing the older breve de morte anteces soris, by a petition to the sheriff under the Titles to Land Con solidation (Scotland) Act, 1868, and the brieve of perambulation by action of declarator. Writs eo ?tontine have been the subject of much modern legislation. The writs of cakias, habeas, certiorari and extent were replaced by other proceedings by the Exchequer Court Act, 1856. The writs of dare constat, resigna tion and confirmation (whether granted by the Crown or a subject superior) were regulated by the Titles to Land Act (supra). 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 dare constat and writs of acknowledgment) were abolished by the Conveyanc ing (Scotland) Act, 1874. The dare 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.

(P. H. \V.) United States.—The system of original writs seems never to have obtained in the United States. From the earliest colonial times actions were begun by the issuance of a writ of summons directed to a sheriff or constable, briefly setting forth the char acter of the claim, and directing that official to summon the de fendant. This writ of summons as distinguished from the early

English chancery writs was a judicial and not an executive writ. Its issuance was simply a means for securing the presence of the defendant before the court, not as in England giving the court jurisdiction to hear the particular claim. The form of the writ of summons followed in the main the old English writ, briefly stat ing the cause of action. Probably because of this similarity, despite the absence of original writs, the common law forms of action con tinued to survive in the United States. Until the adoption of pro cedural reforms by the codes during the middle of the i9th cen tury, they persisted with all their common law vigour. Under the codes there is usually but one form of action, which is begun by the issuance of a summons prepared by the plaintiff's attorney and served by any one not a party to the suit. The summons is brief, does not disclose the nature of the action, though a copy is commonly attached to and served with the summons.

Writs in the Federal courts are by Act of Congress to be tested in the name of the chief justice of the United States. By State law writs in the State courts are generally bound to be in the name of the people of the State, in the English language, and tested in the name of the chief justice of the State. The common law prerog ative writs such as mandamus, prohibition, certiorari, quo war ranto and habeas corpus are well known in the United States. The Constitutions or statutes of the several States confer upon their courts power to issue these writs. The cases in which they may issue are generally governed by statute, and the courts issue them as a matter of sound discretion and not as a matter of right. In trying questions of title to real property, writs of entry and other real actions, which before the settlement of the colonies had be come nearly obsolete in England, were until the middle of the i9th century the common remedies in the U.S. courts. They were, however, stripped of the cumbrous feudal appendages which made them intolerable in England. The action of ejectment begun by summons in the manner of any personal action has now supplanted them. Two prerogative writs have much importance in the Fed eral courts. These are the writ of error (now abolished in Eng land) and the writ of certiorari. From 1879 until 1914, writ of error was the only means by which a decision of a State court could be reviewed in the Supreme Court of the United States. In that year certiorari was added as another method for review, having been available since 1891 as a method for reviewing decisions of the inferior Federal courts in the Supreme Court. In 1928 the writ of error was abolished and appeal substituted in its place. The writ of assistance 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 ex amine the constitutionality of a legislative Act authorizing the issue of the writ. (See Quincy's Massachusetts Rep., app., I.