Definition
A testatum writ is any writ that contains a testatum clause — a recital attesting that the facts or circumstances authorizing the writ's issuance have been made known to, or certified before, the issuing court or officer. The testatum clause typically begins with the Latin word "testatum" (meaning "it is witnessed" or "be it known"), which gives the writ its name.
Testatum writs were principally used in common law practice to extend the enforcement of judgments across county or jurisdictional lines. When a creditor obtained a judgment in one county but the defendant's property or person was located in another, a testatum writ allowed the judgment to be executed in the second county by attesting that the original writ had been issued and had gone unexecuted in the first. The issuing court certified this fact — the prior issuance and failure of execution — in the testatum clause, and the writ was then directed to the sheriff of the second county.
The most commonly encountered forms were:
1. Testatum capias — a testatum writ of capias (arrest of the person) directed to a second county after the original capias went unserved in the first.
2. Testatum fi. fa. (fieri facias) — a testatum writ of fieri facias, directing the sheriff of a second county to levy on the defendant's goods or lands to satisfy a judgment when no leviable property was found in the first county.
3. Testatum ca. sa. (capias ad satisfaciendum) — a testatum writ of capias ad satisfaciendum, authorizing arrest of a judgment debtor to compel satisfaction when the defendant could not be found in the original county.
Why It Matters in Research
Researchers encounter testatum writs primarily in pre-twentieth-century common law procedure, English equity and common law court records, and early American state court practice. Several research traps exist.
First, the term is almost entirely a historical artifact. Modern civil procedure — particularly post-adoption of the Federal Rules of Civil Procedure (1938) and equivalent state rules — replaced these inter-county writ mechanisms with registration and domestication of judgments, post-judgment discovery, and garnishment procedures. A researcher finding a testatum writ in nineteenth-century case records should not assume any modern procedural analog operates the same way.
Second, the specific writs embedded within the testatum form (capias, fi. fa., ca. sa.) each carry their own distinct procedural history and limitations. Understanding a testatum fi. fa. requires understanding fieri facias independently before the testatum function can be properly analyzed. Each embedded writ type appears under its own entry in historical dictionaries and court records, and researchers should cross-reference accordingly.
Third, in English practice, testatum writs were closely connected to the division of England into counties for purposes of sheriff jurisdiction. Early American practice adopted this framework, but as states modernized their civil procedure, the county-transfer mechanism was supplanted at different times in different jurisdictions. State court records from the mid-to-late nineteenth century may show a transition period during which both testatum writs and early statutory judgment-registration mechanisms coexisted.
Fourth, the testatum clause itself — the recital of prior issuance — is the formal and defining feature. In historical court records, a writ may be labeled simply as a capias or fi. fa. but still function as a testatum writ if the clause is present. Researchers examining original writs rather than docketed abstracts should look for the clause text, not just the writ label.
Historical Dictionary Support
Black's Law Dictionary (both the first and second editions) and Burrill's Law Dictionary are in complete agreement on this term, which is itself informative: testatum writ is a narrow, technical, and stable category with no meaningful internal controversy in the historical sources. All three dictionaries define it identically as a writ containing a testatum clause and enumerate the same three principal forms — testatum capias, testatum fi. fa., and testatum ca. sa.
What the historical dictionaries do not provide is any contextual explanation of why the testatum mechanism existed or how it operated procedurally in practice. They treat the term as a cross-reference device, directing researchers to the separate entry for "testatum" (the clause itself) without elaborating on the enforcement problem the writ solved. Researchers relying solely on these dictionary entries will understand the label without understanding the function. A fuller picture requires consulting treatises on common law pleading and practice — particularly those addressing execution of judgments — such as Tidd's Practice or early American civil procedure manuals.
Jurisdictional Note
Testatum writs were standard in English common law courts and were adopted in early American state practice. Their use declined unevenly across American jurisdictions as states reformed civil procedure in the late nineteenth and early twentieth centuries. Researchers should treat this as an English and early American common law term; it has no meaningful presence in modern federal or state civil procedure.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Coram Nobis and Other Extraordinary Writs (criminal_240) — for context on extraordinary writs and the writ system generally.