Scire facias

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 twenty-first century, there is some speculation as to whether the writ has an application in the law of the United States.

History

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. 1 Statutes of England, p.109. Robert Burnell (?-1292) was Lord Chancellor. The Writ of "Quo Warranto" was created during this same period. The Writ of "Scire Facias" "is in nature a bill in Chancery." M. Bacon, Abridgement of the Law, Vol. 8, "Scire Facias", at 620 (rev.ed. 1852); W. Blackstone, Commentaries, Vol.III, at *260 ("When the Crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of "scire facias" in chancery").

Procedure

Proceedings "in scire facias" were regarded as a form of action, and the defendant could plead his defense as in an action. [Anon.] (1911) " [http://www.1911encyclopedia.org/Scire_Facias Scire facias] ", "Encyclopaedia Britannica"] They were analogous to "quo warranto" proceedings. cite book | author=Baker, J. H. | authorlink=John Baker (legal historian) | title=An Introduction to English Legal History | edition=4th ed. | pages="p."145 | location=London | publisher=Butterworths | id=ISBN 0-406-93053-8 | year=2002 ]

In 1684, the royal charter of the Massachusetts Bay Colony was rescinded by a writ of "scire facias" for the Colony's interference with the royal prerogative in founding Harvard College and other matters. [ cite book | title=The Founding of New England | authorlink=James Truslow Adams | author=Adams, J. T. | pages=Ch.15 "Loss of the Massachusetts Charter" | url=http://en.wikisource.org/wiki/The_Founding_of_New_England/XV | year=1921 | publisher=Atlantic Monthly Press | location=Boston ]

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. [ cite book | title=A Treatise upon the Customary Law of Foreign Attachment: And the Practice of the Mayor's Court of the City of London | url=http://books.google.co.uk/books?hl=en&id=c400AAAAIAAJ&dq=foreign+attachment+brandon&printsec=frontcover&source=web&ots=KTUU8iJ2cC&sig=t19XRCXk7f88kfdw0FZY4ZO4xvU | author=Brandon, W. | year=1861 | publisher=Butterworths | location=London | pages="pp"73-103 (Google Books)] It was not used in Scottish law.

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.

The writ was abolished on 1 January 1948 by the Crown Proceedings Act 1947. [ [http://www.opsi.gov.uk/acts/acts1947/pdf/ukpga_19470044_en.pdf Crown Proceedings Act 1947] ] , s.23/ Sch.1(3)]

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. [ cite journal | author=Saikrishna Prakash & Steven D. Smith | title=How to remove a Federal Judge | url=http://yalelawjournal.org/116/1/72_saikrishna_prakash_steven_d_smith.html | volume=116 | journal=Yale Law Journal | pages=72 | year=2006 ] This is not a widely-held view, however.Fact|date=March 2008

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.

References

Bibliography