Scire facias
InEnglish law,awritofscire facias(Latin, meaning literally "make known" ) is awritfounded upon some judicialrecorddirecting thesheriffto make the record known to a specified party, and requiring thedefendanttoshow causewhy the party bringing the writ should not be able to cite that record in his own interest, or formerly why, in the case ofletters patentand grants, the patent or grant should not beannulledandvacated.Largely withdrawn by 1947, its use in the administrative court remains one of the two ways in which a Royal Charter can be involuntarily revoked, the other being primary legislation in Parliament.[1]In the United States, the writ has been abolished under federal law but may still be available in some state legal systems.
History
[edit]The writ ofscire faciaswas created in 1285 during the 13th year of the reign ofEdward Iby the English Parliament in theSecond Statute of Westminster.The writ ofquo warrantowas created during this same period.
Procedure
[edit]Proceedingsin scire faciaswere regarded as aform of action,and thedefendantcould plead his defense as in an action.[2]They were analogous toquo warrantoproceedings.[3]
In 1684, theroyal charterof theMassachusetts Bay Colonywas rescinded by a writ ofscire faciasfor the colony's interference with theroyal prerogativein foundingHarvard Collegeand other matters.[3][4]
By the beginning of the 20th century, the writ was of little practical importance. Its principal uses were to compel the appearance ofcorporations aggregateinrevenue suits,and to enforcejudgmentsagainstshareholdersin companies regulated by theCompanies Clauses Act 1845,or similarprivate acts,and againstgarnisheesin proceedings inforeign attachmentin theLord Mayor's Court.[2][5]It was not used inScottish law.[2]
Proceedings byscire faciasto repeal letters patent for inventions were abolished by thePatents, Designs and Trademarks Act 1883,and a petition to the court substituted.[2]
The writ in most situations was abolished on 1 January 1948 by theCrown Proceedings Act 1947.[6]
U.S. significance
[edit]The actual writ ofscire faciashas been suspended in the federal district courts by Rule 81(b) of theFederal Rules of Civil Procedure,but the rule still allows for granting relief formerly available throughscire faciasby prosecuting acivil action.Some American legal scholars, includingWilliam Rehnquist,Saikrishna Prakash,and Steven D. Smith, have suggested thatimpeachmentmay not be the sole method to remove afederal judgefrom office, pointing toscire faciasas an alternative.[7]
Under the law of many states, Arkansas, Georgia, New Hampshire, Tennessee, and Texas for example, an actionin scire faciasmay 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 also
[edit]References
[edit]- ^Privy Council, How can a Royal Charter be revoked?
- ^abcdOne or more of the preceding sentences incorporates text from a publication now in thepublic domain:Chisholm, Hugh,ed. (1911). "Scire Facias".Encyclopædia Britannica.Vol. 24 (11th ed.). Cambridge University Press. p. 407.
- ^abBaker, J. H.(2002).An Introduction to English Legal History(4th ed.). London: Butterworths. p. 145.ISBN0-406-93053-8.
- ^Adams, J. T.(1921). "Ch. 15 'Loss of the Massachusetts Charter'".The Founding of New England.Boston: Atlantic Monthly Press.
- ^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. 73–103.
foreign attachment brandon.
(Google Books) - ^Crown Proceedings Act 1947,s.23/ Sch.1(3)
- ^Saikrishna Prakash & Steven D. Smith (2006)."How to remove a Federal Judge".Yale Law Journal.116(1). The Yale Law Journal, Vol. 116, No. 1: 72–137.doi:10.2307/20455714.JSTOR20455714.
