Scire facias

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In English law, a writ of scire facias (from the Latin meaning "to cause to be known") was a writ founded upon some judicial record directing the sheriff to make the record known (scire facias) to a specified party, and requiring that 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 record should not be annulled and vacated. In the twentyfirst century, there was some speculation as to whether the writ had an application in the law of the United States.

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[edit] Procedure

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In 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of scire facias for the Colony's interference with the royal prerogative in founding Harvard College and other matters.[2][3]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

[edit] U.S. significance

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] This is not a widely-held view, however.[citation needed]

Under the law of some states, 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. See Texas Civil Practice & Remedies Code Section 31.006.

[edit] References

  1. ^ a b c d [Anon.] (1911) "Scire facias", Encyclopaedia Britannica
  2. ^ a b Baker, J. H. (2002). An Introduction to English Legal History, 4th ed., London: Butterworths, p.145. ISBN 0-406-93053-8. 
  3. ^ Adams, J. T. (1921). The Founding of New England. Boston: Atlantic Monthly Press, 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, 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 116: 72. 

[edit] Bibliography

This article incorporates text from the Encyclopædia Britannica Eleventh Edition, a publication now in the public domain.