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

Default and Modern Process 131
come to judgement without so much as a response to the complaint by the
defendant? 18
Even when medieval English law took a step toward default in personal
actions, it preserved this emphasis on the defendant's appearing to answer the
plea. The Statute of Marlborough provided that in personal actions once issue
was joined (that is, once the parties' exchange of pleading had formulated an
issue for a jury) a defendant could have only one essoin. 19 Having taken that
essoin, the defendant could have judgement entered against him if he failed
to appear 'at the day given to him by the essoin'. This provision takes a half
step toward modern default, according to which judgement can be entered
after any failure by the defendant to respond in accord with procedural
requirements. Marlborough's solution is more cautious, permitting default
only after 'anyone hath put himself on the inquest'. 20 Both the words and
the deed speak of a submission to royal jurisdiction generally and to a
particular form of process. Once the stage at which the defendant would
enter a responsive pleading had passed, medieval lawyers felt much more
confidence in acting as if they had power to dispose of the case without the
defendant. Until then, the defendant could be harassed, but judgement itself
lay beyond the court's power.
//. Why Default?
This regime of appearance as a precondition of judgement changed in 1725.
By 12 George I c. 29 Parliament made it possible to enter judgement against
a defendant who failed to appear. 21 In place of arrest the Act provided
18 I am indebted to David Seipp for suggesting this analogy.
19 52 Hen. Ill c. 13 (1267).
20 The Latin of the statute's phrase is, 'postquam aliquis posuerit se in inquisicionem aliquam'.
21 The Act provided that:
. . . [FJrom and after the twenty fourth day of June one thousand seven hundred and twenty six,
no person shall be held to special bail upon any process issuing out of any superior court, where the
cause of action shall not amount to the sum of ten pounds or upwards . . . and that in all [such] cases
. . . the plaintiff. . . shall not arrest or cause to be arrested, the body of the defendant. . . but shall
serve him, her or them personally, within the jurisdiction of the court, with a copy of the process;
and if such defendant . . . shall not appear at the return of the process or within four days after
such return, in such case it shall and may be lawful to and for the plaintiff . . . upon affidavit being
made, and filed in the proper court, of the personal service of such process as aforesaid (which said
affidavit shall be filed gratis) to enter a common appearance or file common bail for the defendant
or defendants, and to proceed thereon, as if such defendant . . . had entred [sic] his, her or their
appearance, or filed common bail; any law or usage to the contrary notwithstanding.
For actions seeking more than ten pounds the Act permitted the institution of civil arrest to continue,
but only if the plaintiff made a special affidavit of the amount in controversy, the sheriff being directed
to take bail only for the amounts specified in the affidavit. In cases in which the plaintiff had made no
such affidavit, no arrest was to take place, but the plaintiff could use the same combination of service
of process and default if the defendant failed to appear.