Definition
TESTATUM (Latin: "it is testified" or "it has been witnessed") carries two distinct legal meanings, one procedural and one transactional:
1. TESTATUM WRIT (procedure). A writ of execution or capias issued to the sheriff of a county different from the one in which the original writ was directed. When an initial writ of execution was returned by the first sheriff with a notation of non est inventus (defendant not found in the bailiwick) or nulla bona (no goods found), a second writ could issue to the sheriff of another county where the defendant was believed to be present or to have assets. This second writ recited the original writ and the sheriff's return, and stated that it is testified — testatum est — that the defendant lurks, wanders, or has property within the second county. The recital of the prior return is the defining feature of the instrument.
2. TESTATUM CLAUSE (conveyancing). A formal clause within a deed that introduces or enumerates the operative words of transfer, including the statement of consideration and the granting language. It functions as the transactional core of the deed, distinguishing recital from operative effect.
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Common Language
Wiktionary: "One of the clauses of an English deed, enumerating the operative words of transfer, statement of consideration, money, etc."
Webster's 1913: Not entered as a legal or common term.
Editorial note: TESTATUM has no meaningful life in ordinary English. Its Wiktionary definition captures only the conveyancing sense and omits the procedural writ entirely — the meaning most likely to appear in historical litigation records and the one most thoroughly treated by the historical law dictionaries. Researchers encountering the term in case files or court records should determine context before assuming the conveyancing definition applies.
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Recognized Forms
/SUBTYPES
TESTATUM WRIT: The procedural instrument described in definition 1 above. Sometimes called a testatum capias when issued in a personal action, or testatum fieri facias when issued to levy on goods in a different county. The writ type depends on the underlying action and the nature of the original execution.
TESTATUM CLAUSE: The transactional clause in a deed described in definition 2 above. Appears in formal conveyancing instruments and is structurally distinct from the recitals, the habendum, and the testimonium clause.
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Why It Matters in Research
The two meanings of TESTATUM rarely overlap in the corpus, but they do share enough surface similarity to mislead. A researcher working through equity pleadings, execution records, or sheriff's returns will encounter the writ sense almost exclusively. A researcher working through deed abstracts, title chains, or conveyancing manuals will encounter the clause sense.
For the writ sense: The testatum writ was a procedural workaround for a jurisdictional limitation — writs of execution were originally confined to the county in which the action was venued. The testatum mechanism allowed process to follow a defendant or their assets across county lines. This limitation and its cure were features of the older common law system and became increasingly formalized over time. Researchers reviewing pre-nineteenth-century execution records should understand that a testatum writ signals a prior failed return in another county, which is itself a potentially significant event in the litigation history.
The formula testatum est in the writ's recital is the linguistic marker. Burrill identifies this phrase as the source of the instrument's name. In historical manuscript writs, the phrase may be abbreviated or rendered in anglicized form, so variant spellings and contractions should be anticipated.
For the clause sense: The testatum clause in a deed is structurally significant because it marks the point at which the instrument shifts from background recitation to operative legal effect. Misreading the clause as mere narrative rather than operative language is a research error with real consequences for interpreting the scope of a grant.
Jurisdictional and temporal variation matters here. The testatum writ as a distinct procedural device was largely absorbed into reformed civil procedure systems during the nineteenth century. Researchers working in U.S. state records after roughly 1850–1870 may find the term used archaically or as a label for what had become a routine multi-county execution mechanism no longer requiring a formal return and re-issuance sequence.
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Historical Dictionary Support
The historical dictionaries are in close agreement on the writ sense and give the clause sense minimal treatment.
Black's Law Dictionary (both editions) defines TESTATUM exclusively through the writ sense, describing it as a second writ issued after a failed return from the original county, directed to the sheriff of a different county and reciting the prior writ and its return. The definition is procedurally precise and consistent across editions.
Rapalje & Lawrence identifies the TESTATUM WRIT explicitly and situates it in the same procedural context — the limitation on cross-county execution and the mechanism for working around it. Their entry adds the useful observation that in the older practice, a writ could not issue into a foreign county at all without first exhausting process in the home county.
Burrill's Law Dictionary provides the fullest treatment, tracing testatum est as the Latin phrase of art within the writ's reciting clause and noting that the term applies also to original writs out of Chancery. Burrill's citation to Spelman is a reminder that the device has medieval roots. The entry also extends the writ's reach to capias forms, not only execution writs.
What the historical dictionaries collectively underserve: the conveyancing sense of testatum as a deed clause. Only Wiktionary addresses this meaning directly, and none of the shelf sources develop it. Researchers relying solely on the law dictionaries will find adequate guidance for the writ but will need to consult conveyancing treatises for the deed clause.
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Jurisdictional Note
The testatum writ as a formal procedural mechanism belongs primarily to English common law and the American jurisdictions that inherited it. Its relevance in U.S. practice diminished significantly with procedural reforms of the nineteenth century. The conveyancing sense of the testatum clause is similarly rooted in English deed practice and appears in American instruments that followed English conveyancing forms.
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Encyclopedia Cross-Reference
Law Mind Encyclopedia — Writs of Execution
Law Mind Encyclopedia — Deeds and Conveyancing
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