Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

128 Legal History in the Making
goods, hoping that in order to regain his property the defendant would give
pledges for an appearance in the action. Arrest (available with a writ of
capias ad respondendum) operated straightforwardly: the sheriff would seize
the defendant and hold him until the date for his appearance or until he bailed
himself as security for that appearance. The final club held over the head of
the recalcitrant defendant was outlawry. Originally 'the last resort of criminal
law', 10 outlawry threatened the defendant with escheat of lands, corruption
of blood, and legalized murder at the hands of any subject. Outlawry had its
logic: the party who, having been thrice summoned, attached and sought for
arrest to answer a claim, still refused to appear, was declaring himself beyond
the dictates of even the most primitive system of peaceful adjudication. For
society to wash its hands of him (and in the process to withdraw the protection
of life and property) made sense. The law was punishing the outlaw for his
failure to submit to royal jurisdiction.
None of these scarifying threats worked effectively. Distress was available
only in an action seeking rent, and subjected the distraining landlord to
liability for failure to care for the seized goods. Attachment and arrest
required the cooperation of an often unwilling sheriff, 11 who, when faced
with a difficult-to-execute writ, could report his inability to find either the
goods or the person of the defendant - a return the plaintiff was unable to
challenge. Moreover, even when successful, attachment and arrest required
writs, and each writ involved fees to the officers who issued them. In the
case of writs of capias (arrest) and distringas (attachment), the official was
the filazer (or rather the filazer for the particular county in question). To
this official a fee was due for each writ issued. Thus an action that proceeded
through several attachments to an arrest would require multiple writs and
multiple fees. Filazers, who by the seventeenth century at least had purchased
their offices, jealously guarded the fees they produced. 12
Outlawry worked no better. Its failure emphasizes the inadequacy of
ordinary medieval process. Because distress and arrest often failed to secure
the defendant's appearance, parliament between 1285 and 1504 extended
outlawry to claims in account, debt, detinue, replevin and case. 13 These
extensions testified to the weakness of other means of compulsion, but they
also almost guaranteed that outlawry would fail as well. Precisely because the
process was so drastic, judges were reluctant to apply it to what amounted to
everyday disputes. Accordingly the law of outlawry became technical: a small
slip in the steps leading to a judgement of outlawry sufficed to have it set
10 T. Plucknett, A Concise History of the Common Law (1956), 385.
11 One can sympathize with medieval sheriffs. Liable civilly for loss of seized goods and for escape
of arrested prisoners, they can be forgiven a legendary lack of enthusiasm for performing either duty.
12 C.W. Brooks reports that by the middle of the seventeenth century, 'there was a flourishing
market in reversions for places as filazers . . .', Pettyfoggers and Vipers of the Commonwealth: The
'Lower Branch' of the Legal Profession in Early Modem England (1986), 230.
13 Westminster II c. 11 (1285); 25 Edw. Ill, stat. 5, c. 17 (1352); 19 Hen. VII c. 9 (1504).