Original Writ Or Original - Definition - Law Dictionary Home Dictionary Definition original-writ-or-original

Definition :

Original Writ or Original [breve originale, Lat.], was the beginning or foundation of a real action at Common Law. It is also applied to processes for some other purposes.

It was a mandatory letter issuing out of the Common Law or ordinary jurisdiction of the Court of Chancery (see now CHANCERY), under the Great Seal, and in the sovereign's name, addressed to the sheriff of the county where the injury was committed, containing a summary statement of the cause of complaint, andrequiring him to command the defendant to satisfy the claim, and, on his failure to comply, then to summon him to appear in one of the superior Courts of Common Law. In some cases it simply required the sheriff to enforce the appearance. Original writs differed from each other in their tenor, according to the nature of the plaintiff's complaint, and were conceived in fixed and certain forms. Many of these are of a remote antiquity; others are of later origin, and their history is as follows:-The ancient writs had provided for the most obvious kinds of wrong; but, in the progress of society, cases of injury arose new in their circumstances, so as not to be reached by any of the writs then known in practice; and it seems that either the clerks of the Chancery (who prepared the original writ) had no authority to devise new forms for such cases, or they were remiss in its exercise. Therefore, by the statute of West. 2, 13 Edw. 1, c. 24, it was provided, 'That as often as it shall happen in the Chancery that in one case a writ is found, and in a like case, falling under the same right, and requiring like remedy, no writ is to be found, the clerks of the Chancery shall agree in making a writ or adjourn the complaint till the next Parliament, and write the case in which they cannot agree, and refer them to the next Parliament,' etc., Steph. on Plead. App. n. 2. See CASE.

The following original writs were issued, not ex debito justiti', but ex mera gratia, and were some-times denominated discretionary writs: De ventre inspiciendo; supplicavit; certiorari; prohibition; writs of error in criminal cases: ad quod domnum; scire facias, to repeal letters-patent, etc. See 1 Mad. Eq. b. 8.

As to the mode of commencing actions in the Supreme Court, see ACTION and SUMMONS.