JUDGMENT BY DEFAULT
Frank Thomas Plucknett
The common law was reluctant to give judgment by default.
The principle of the petty assizes, however, made it necessary, and so we find that, as part of the very summary procedure of the assize of novel disseisin, the twelve recognitors were summoned at the same time as the defendant; if the defendant persistently defaulted, then the verdict of the assize would be taken even in his absence, and judgment given. In other real actions judgment could be given against a tenant who had exhausted his liberal allowance of defaults.
A tenant who lost by default was not for ever barred, but could regain his land if he succeeded in a writ “of a higher nature”; thus, if he had lost by default in an assize he could still recover if his title was sufficient in a writ of entry, or if he had lost by default in a writ of entry, he could resort to a writ of right. Even in a writ of right, a judgment by default will not bar a future writ of right except in certain circumstances.
In personal actions the situation was rather different. The subject matter of the dispute was not indestructible like land, and there was the additional factor of the rights of the Crown. Especially in trespass, there was the idea that people ought to be punished for their torts as well as making reparation, and where the Crown and a subject were in competition, the issue was inevitable.
Bracton indeed had argued that debts and damages ought to be levied from a defaulter’s personal property, but (as Maitland remarked) it took six hundred years for his view to prevail. There was a time when something of the sort could be done in actions of debt, but the experiment was abandoned and the common law clung to the principle that no judgment should be given in personal actions against an absent defendant. The Crown did, indeed, pursue him with rigorous process, but the resulting attachments and forfeitures only benefited the Crown and not the party.
Source: Theodore Frank Thomas Plucknett, A Concise History of the Common Law [1956]
