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Scire facias

In English law, a writ of scire facias (Latin, meaning literally "make known") was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring the defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why, in the case of letters patent and grants, the patent or grant should not be annulled and vacated. In the United States, the writ has been abolished under federal law but may still be available in some state legal systems.

Contents

HistoryEdit

The writ of scire facias was created in 1285 during the 13th year of the reign of Edward I by the English Parliament in the Second Statute of Westminster. The writ of quo warranto was created during this same period.

ProcedureEdit

Proceedings in scire facias were regarded as a form of action, and the defendant could plead his defense as in an action.[1] They were analogous to quo warranto proceedings.[2]

In 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of scire facias for the Colony's interference with the royal prerogative in founding Harvard College and other matters.[2][3]

By the beginning of the twentieth century, the writ was of little practical importance. Its principal uses were to compel the appearance of corporations aggregate in revenue suits, and to enforce judgments against shareholders in companies regulated by the Companies Clauses Act 1845, or similar private acts, and against garnishees in proceedings in foreign attachment in the Lord Mayor's Court.[1][4] It was not used in Scottish law.[1]

Proceedings by scire facias to repeal letters patent for inventions were abolished by the Patents, Designs and Trademarks Act 1883, and a petition to the court substituted.[1]

The writ was abolished on 1 January 1948 by the Crown Proceedings Act 1947.[5]

U.S. significanceEdit

Some American legal scholars have suggested that impeachment may not be the sole method to remove a federal judge from office, pointing to scire facias as an alternative.[6] The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Under the law of many states, Arkansas, Georgia, New Hampshire, Tennessee, and Texas for example, an action in scire facias may be used to revive a dormant judgment if brought in a timely fashion. An action on debt, reciting that the dormant judgment remains unpaid, may be used for the same purpose. The defendant of the scire facias writ would generally need to prove that the debt was paid in order for the court to invalidate the writ. See O.C.G.A. § 9-12-61; Texas Civil Practice & Remedies Code § 31.006.

See alsoEdit

ReferencesEdit

  1. ^ a b c d [Anon.] (1911) "Scire facias", Encyclopædia Britannica
  2. ^ a b Baker, J. H. (2002). An Introduction to English Legal History (4th ed.). London: Butterworths. p. p.145. ISBN 0-406-93053-8. 
  3. ^ Adams, J. T. (1921). The Founding of New England. Boston: Atlantic Monthly Press. p. Ch.15 "Loss of the Massachusetts Charter". 
  4. ^ Brandon, W. (1861). A Treatise upon the Customary Law of Foreign Attachment: And the Practice of the Mayor's Court of the City of London. London: Butterworths. pp. pp73–103.  (Google Books)
  5. ^ Crown Proceedings Act 1947, s.23/ Sch.1(3)
  6. ^ Saikrishna Prakash & Steven D. Smith (2006). "How to remove a Federal Judge". Yale Law Journal. The Yale Law Journal, Vol. 116, No. 1. 116 (1): 72–137. doi:10.2307/20455714. JSTOR 20455714. 

BibliographyEdit

  This article incorporates text from a publication now in the public domainChisholm, Hugh, ed. (1911). "Scire Facias". Encyclopædia Britannica. 24 (11th ed.). Cambridge University Press. p. 407.