Definition
A writ of trial was an English procedural device directing that an action commenced in a superior court be transferred for trial to an inferior court or before the under-sheriff. It operated as a mechanism for routing litigation downward through the court hierarchy when the nature or value of the dispute did not warrant the resources of a superior court. The writ found its statutory basis in 3 & 4 Will. IV, c. 42 (the Civil Procedure Act 1833). It was ultimately rendered obsolete by the County Courts Act 1867, c. 142, s. 6, which gave defendants a more direct procedural route — an order, rather than a writ — to have an action tried in a county court.
The writ of trial belongs to the broader family of English prerogative and procedural writs used to manage the relationship between courts of different hierarchical standing. Unlike writs of certiorari (which removed cases upward) or writs of error (which challenged judgments), the writ of trial moved proceedings downward in the interest of efficiency and proportionality.
Common Confusion
The writ of trial should not be confused with the writ of certiorari or the writ of error. Certiorari removes a case from an inferior to a superior court for review; the writ of trial moves a case from a superior court down to an inferior tribunal for initial determination. Similarly, the writ of trial is not a post-judgment remedy — it operates before or at the trial stage, not after a decision has been rendered. Researchers unfamiliar with English procedural history sometimes conflate any downward transfer mechanism with removal, but removal properly describes upward movement in most Anglo-American jurisdictions.
Why It Matters in Research
The writ of trial is a term of purely historical significance. It has no surviving counterpart in modern English or American practice and was already obsolete by the late nineteenth century when the major historical dictionaries were compiled. Researchers will encounter it primarily in pre-1870 English procedural materials, pleading treatises, and older editions of English practice manuals.
Several research traps deserve attention:
First, because the writ was superseded rather than abolished by dramatic reform, sources from the 1860s and 1870s may discuss it in the present tense while describing a mechanism that was, in practice, being displaced. The County Courts Act 1867 did not formally extinguish the writ so much as make it redundant; sources from that transitional period may be ambiguous about whether the writ remained technically available.
Second, American legal materials will rarely reference this writ at all. The colonial and early American court systems did not adopt it, and American procedural development took a different path toward consolidated courts and statutory transfer mechanisms. A researcher finding a reference to "writ of trial" in an American source should treat it as either a citation to English authority or a loose usage requiring careful verification.
Third, the writ's connection to the under-sheriff — a now-archaic officer — places it in a specific institutional context that requires background knowledge of pre-Victorian English court structure to fully understand. Researchers working in this area should have access to materials on the English sheriff's court and the organization of common law courts prior to the Judicature Acts of 1873–1875.
Finally, note that the Law Mind corpus's procedural and writ-related materials concentrate most heavily on writs with surviving American analogs (habeas corpus, certiorari, mandamus). The writ of trial will appear primarily as a cross-reference or historical note rather than as a subject of sustained encyclopedia treatment.
Historical Dictionary Support
The three source dictionaries agree closely on substance, all tracing the writ to 3 & 4 Will. IV, c. 42 and identifying its supersession by the County Courts Act 1867. Bouvier's provides the most bibliographically useful entry, citing 3 Stephen's Commentaries 515 as supporting authority — a genuine and accessible source for researchers wanting primary context. Black's (both editions) adds a citation to Mozley & Whiteley's Law Dictionary, a reliable Victorian-era English law dictionary that would contain period-appropriate treatment of the term.
None of the historical dictionaries offer substantive analysis of the writ's practical operation, its frequency of use, or the circumstances under which litigants would have sought it. This is a gap researchers should note: the dictionary entries are essentially skeletal, confirming existence and statutory basis without illuminating practice. For richer procedural context, Stephen's Commentaries and Victorian-era practice manuals (such as those by Chitty or Tidd on pleading and practice) would be the appropriate next sources.
The historical dictionaries do not address any American analog, which is consistent with the writ's purely English provenance.
Jurisdictional Note
The writ of trial is a creature of English law exclusively. It has no recognized equivalent in American federal or state procedure. Researchers working in Scottish, Irish, or Commonwealth jurisdictions should verify independently whether analogous mechanisms existed under those legal systems, as the source dictionaries address only English law.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Coram Nobis and Other Extraordinary Writs (criminal_240) — for broader context on the writ family and extraordinary procedural remedies.
The Law Mind Constitutional Law Encyclopedia: Habeas Corpus — The Great Writ and Suspension Clause (constitutional_151) — for comparative context on the English writ tradition from which the writ of trial emerged.