Talk:Audita querela

Coram nobis

Hi, I think this page should link to http://en.wikipedia.org/wiki/Coram_nobis and also http://www.law.cornell.edu/rules/frcp/Rule60.htm

but I do not know the proper way of doing that. I'm sure you wikipedians can assist.

To do...

Don't mind me... just outlining the direction this article needs to go.

• History
  • English law
    • Needs filling out of details of its abolition, and confirmation that it is indeed dead in modern UK procedure
    • A better explanation of the equity vs. common law nature of the writ is merited.
  • United States law
    • Needs more coverage of prior civil procedure usage
    • Should have some coverage of states that have since abolished the writ in some or all situations
  • Other countries?
    • Needs some coverage, period. I really don't have sources, though.
• Modern use
  • United States immigration law
    • Should be fairly straightforward
  • State law
    • Quick survey of states that have not abolished the writ
• Practice and procedure (?)
  • This may more properly belong under the general heading of modern usage, especially since US usage is going to be the only sources I have available.

Some photos would be nice... especially if there's a particularly famous AQ case. —/Mendaliv/^2¢/_Δ's/ 01:17, 31 March 2013 (UTC)

To do re: individual common law jurisdictions

Australia

Appears to have been abolished by an 1876 Order 57, rule 11. Or perhaps Order 41 Rule 22 of the Judicature Act 1876 (could this be the 1875 English act misnamed?)

Canada

Check outside the Supreme Court Reports. Hein notes precisely two mentions of AQ in the history of the Canadian Supreme Court, neither case actually involving the writ. There may be some provincial usage. Few of the sources I have actually mention it however; I'm guessing it just never took root in the Canadian courts.

Saskatchewan: replaced by "stay of execution". Sask. Q.B. Rules § 365. Whereas the other provinces appear to have equivalent remedies, their rules currently do not mention AQ. May have been abolished by a Judicature Act of 1880, Rule 359. Kallio v. Russell Timber Co., 1941 CarswellOnt 203 (Can. Ont. C.A.). Another case mentions that AQ was done away with by the Execution Act 1664. Bank of Liverpool (Re), 1908 CarswellNS 90 (Can. N.S.). (I'm not sure that's correct; the Execution Act seems more intended to fix an exploit involving AQ, and furthermore, there's a statement that the act would expire at the end of the session of parliament three years thereafter.) May also be worth looking at Beard v. Ketchum, 1852 CarswellOnt 226 (Can. Ont. Q.B.), which actually deal with a writ of AQ.

England

Need to clarify the date of creation issue. Seems likely that a Selden Society publication will be of help, or maybe an Abridgment.

British Hong Kong

Very little material available to me. No books found that mention AQ. There is one HK case that mentions AQ in passing, in quoting from a Code of Civil Procedure (Order 17, rule 23) that AQ is abolished. I'm not sure if it's a HK code or English code. Nam Hoi Shoes Factory v. Empire Trading Co. (H.K.) Ltd., [1960] H.K.L.R. 99, 102 (S.C.).

India

Cursory search done: no mention of AQ in a book on writs in India, no mention in a digest of Indian Supreme Court cases.

Ireland

Still not researched.

New Zealand

Nothing on Westlaw Classic. Have not checked library.

Scotland

Probably nothing more I can do, barring a newer Stair Society discovery about AQ. Everything after a certain point is just going to be about the modern equivalent, which should not be within the scope of this article.

Untied States

Need more info on state coverage; check state-by-state legal encyclopedias and histories, especially of the 13 colonies. Need more info on federal criminal procedure usage. Definitely need to beef up coverage on pre-FRCP federal civil usage.

Wales

Still not researched.

Again, just organizing my thoughts. —/Mendaliv/^2¢/_Δ's/ 11:56, 15 April 2013 (UTC)

Ref needed for other Commonwealth realm nations

I've found information indicating that the writ existed at least to some extent, though possibly not in practice, in Canada during the 19th century, and it makes sense that it would have existed in Australia and New Zealand, and possibly in other Commonwealth realm nations, current and former. But of course, a reference would be nice. Sadly, my access to international law sources are kind of sparse. —/Mendaliv/^2¢/_Δ's/ 16:01, 5 April 2013 (UTC)

Contradictory statements

The main history section states that the writ came into existence in 1336, but the Scots law section states that the Scots version came into existence during the reign of Robert the Bruce, who died in 1329. The reason this discrepancy exists may have to do with the source from which the Robert the Bruce claim comes from; the writ exists in the register of brieves, under what appears to be the Robert the Bruce section. I could have misread this source, though another possibility I've hit upon is that the writ actually existed prior to 1336, but was merely repurposed in that year. Still, that doesn't quite account for the argument that the Scots law use was the same as or descended from the English law use. —/Mendaliv/^2¢/_Δ's/ 16:15, 5 April 2013 (UTC)

So, Plucknett says the writ was first authorized by Parliament in 1336. The Stair Society text that says the writ, as referenced in the Ayr MS. (I have no idea what this is except it has to do with the reign of Robert the Bruce), was borrowed from English law, AND that the English writ was introduced in 1282 and cites Holdsworth. A review of the citations to Holdsworth, however, do not explicitly state that date, or at least so far as I can derive it... but I could be wrong. Even without the Holdsworth citation, the fact remains that the Ayr MS. would seem to predate 1336, and thus would suggest that the writ either existed earlier than that, or perhaps that it was an invention of Scots law. The latter seems extremely unlikely given there are no records of its use in Scots law, and the brieve itself seems to have been lost. —/Mendaliv/^2¢/_Δ's/ 23:00, 6 April 2013 (UTC)

Two early writs

Both found in the 1970 Selden Society publication Early Registers of Writs, which in turn attribute them to "A Bodleian Register" (Bodleian Library, MS Rawlinson C 292, folios 9a-104a). These are specifically on pp. 193 and 198 of the book, and "at" 366 and 385 in the original. I'm not providing the translation here since the translations are presumably copyrighted.

De catallis raptis per statutum Wynton'.

Rex dilectis et fidelibus suis A et B salutem. Cum assignauerimus vos ad statutum de communi consilio regni nostri pro conseruacione pacis nostre apud Wynton' dudum editum in comitatu Deuon' conseruandum, vobis mandamus quod, audita querela R de N de quibusdam bonis et catallis suis et nouem libris argenti secum apud N infra comitatum predictum inuentis et eidem R depredatis vt dicitur, eidem R inde fieri faciatis remedium congruum et festinum prout de irue et secundum formam satuti predicti fuerit faciendum. Teste.

Bodleian Library, MS Rawlinson C 292, folios 9a-104a, n. 366, reprinted in de Haas, Elsa and Hall, G. D. G. (1970), Early Registers of Writs, p. 193 London: Selden Society. (emphasis added)

Breue super statutum Wynton'.

Rex dilectis et fidelibus suis W et H salutem. Cum assignauerimus etc. ad statutum de communi consilio regni nostri pro conseruacione pacis nostre apud Wynton' dudum editum et quosdam alios articulos in litteris nostris patentibus vobis inde directis diligenter et inuiolabiliter obseruanda et exequenda prout in statuto predicto et litteris nostris predictis plenius continetur, et iam ex insinuacione W accepimus quod quidam malefactores etc. ipsum W de bonis et catallis ad valenciam tanti apud S in comitatu predicto inuenta depredati fuerunt, nos, tantam maliciam si perpetrata fuerit transire nolentes impunitam, vobis mandamus quod audita querela predicti W de roberia predicta inspectoque tenore statuti predicti et litterarum nostrarum predictarum ei inde congruum remedium et festinum fieri faciatis prout de iure et secundum formam statuti predicti et litterarum nostrarum predictarum fuerit faciendum. Teste.

Bodleian Library, MS Rawlinson C 292, folios 9a-104a, n. 385, reprinted in de Haas, Elsa and Hall, G. D. G. (1970), Early Registers of Writs, p. 198 London: Selden Society. (emphasis added)

These evidently have to do with the Statute of Winchester, and according to de Haas are writs of audita querela. I haven't read enough of de Haas yet to get a figure on the age of the writs, however. —/Mendaliv/^2¢/_Δ's/ 20:21, 7 April 2013 (UTC)

Ah, apparently there are several more in the same book, just that they weren't indexed in the same manner. I've found one issued to the Lord Warden of the Cinque Ports, then Robert de Kendall, who held that office from 1307-09-16 to 1325-12-15 (according to the text). Thus, writs of audita querela evidently issued much earlier than the 1336 date. My guess is that we should understand the discrepancy as meaning that the writ as we now know it (i.e., involving judgment debtors) came about in the 14th century, but that writs issuing under that name, or involving the phrase audita querela, issued even earlier. Neat. —/Mendaliv/^2¢/_Δ's/ 20:34, 7 April 2013 (UTC)

And yet another referencing Richard, Earl of Arundel, who was so styled in 1289 (according to WP) or 1291 (according to the text), and who died in early 1302. The writ itself involves disseisin. —/Mendaliv/^2¢/_Δ's/ 20:49, 7 April 2013 (UTC)

de Haas dates the register of writs found in Bodleian Library, MS Rawlinson C 292 to the period 1318-1320, and specifically states that it could not have been completed prior to Michaelmas 1320 because of a particular statute that ends the volume. Interesting. —/Mendaliv/^2¢/_Δ's/ 21:48, 7 April 2013 (UTC)