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

142 Legal History in the Making
joined the creditor class, there was much to be said for a process that did not
permit the defendant to ignore the plaintiffs complaint. Parliament in 1725
heeded these virtues, and common law has relied on default for the succeeding
three and a half centuries.
///. Light on Modern Process
If default judgements are a small sign of shifts in greater social and economic
spheres, they also mark a step toward a modern conception of process. Just
as it is important not to exaggerate the directness of the link between grand
socio-political movements and default, so one must avoid the temptation to
portray the 1725 statute as a grand turning point. It was not. Common law
process sailed on its leisurely course for another century and a half before
thorough change overtook it. But one can responsibly argue that default
judgements in personal actions were a small tremor that formed part of a larger
shift in the design of process. Moreover, though historians have demonstrated
that nothing ever marks the end of the medieval aspects of anything, default
judgements did refocus litigation in a way familiar to modern lawyers.
Default is not an inevitable idea. Five centuries of common law process
witness that it is possible to operate a judicial system - even a very durable
one - without universally available default to drive the adversaries. It is
therefore worth thinking about what the coming of default meant to common
law process. Default drives modern civil procedure. Once the plaintiff has
filed a complaint, default commands the steps of the minuet. A defendant
who fails to answer will find a default judgement entered in plaintiff's
favour. The force of default extends beyond compelling an answer: the
defendant's failure to comply with any order of the court is one of the
grounds for entering a default judgement. Together with the dismissal of
the complaint - the plaintiff's analogue to default - it locks the antagonists
together. The parties can break off the battle, but default assures that the
decision not to continue the fight will be mutual. It enables the plaintiff to
insist on its continuation even when the defendant is unwilling. Default also
subtly alters the adversarial process. Until default, the focus of the state's
efforts lay in compelling the defendant to submit to its jurisdiction. Medieval
process involved two struggles: one between the state and the defendant;
the second between plaintiff and defendant. Only when the state had won
the first could the second occur. Medieval process aimed at compelling the
defendant's submission, and adopted a civil version of peine forte et dure
to achieve it, piling the rocks of attachment and arrest on the defendant
until he submitted himself to the court's power. Only then could and did
the focus shift to the plaintiffs claim. This stance suggests a doubt about
the court's powers: the state expended its (and the plaintiffs) energies in
compelling the defendant to submit. If the defendant resisted, the state
punished him, but until it had won that contest would not move on to the