CAPIAS

CAPIAS, practice. This word, the signification of which is " that you take," is applicable to many heads of practice. Several writs and processes, commanding the sheriff to take the person of the defendant, are known by the name of capias. For example: there are writs of capias ad respondendum, writs of capias ad computandum, writs of capias ad satisfaciendum, &c., each especially adapted to the purposes indicated by the words used for its designation. See 3 Bl. Com. 281; 3 Bouv. Inst. n. 2794.

CAPIAS AD AUDIENDUM JUDICIUM, practice. A writ issued in a case of misdemeanor, after the defendant has appeared and found guilty, and is not present when called. This writ is to bring him to judgment. 4 BI. Com. 368.

CAPIAS AD COMPUTANDUM, practice. A writ issued in the action of account render, upon the judgment quod computet, when the defendant refuses to appear, in his proper person, before the auditors, and enter into his account. According to the ancient practice, the defendant, after arrest upon this process, might be delivered on main-prize, or in default of finding mainpernors, he was committed to the Fleet prison, where the auditors attended upon him to hear and receive his account. As the object of this process is to compel the defendant to render an account, it does not appear to be within the scope of acts abolishing imprisonment for debt. For precedents, see Thesaurus Brevium, 38, 39, 40; 3 Leon. 149; 1 Lutw. 47, 51 Co. Ent. 46, 47; Rast. Ent. 14, b, 15.

CAPIAS AD RESPONDENDUM, practice. A writ commanding the sheriff, or other proper officer, to "take the body of the defendant and to keep the same to answer, ad respondendum, the plaintiff in a plea," &c. The amount of bail demanded ought to, be indorsed on the writ.

2. A defendant arrested upon this writ must be committed to prison, unless he give a bail bond (q. v.) to the sheriff. In some states, (as, until lately, in Pennsylvania,) it is the practice, when the defendant is liable to this process, to indorse on the writ, No bail required in which case he need only give the sheriff, in writing, an authority to the prothonotary to enter his appearance to the action, to be discharged from the arrest. If the writ has been served, and the defendant have not given bail, but remains in custody, it is returned C. C., cepi corpus; if he have given bail, it is returned C. C. B. B., cepi corpus, bail bond; if the defendant's appearance have been accepted, the return is, " C. C. and defendant's appearance accepted." According to the course of the practice at common law, the writ bears teste, in the name of the chief justice, or presiding judge of the court, on some day in term time, when the judge is supposed to be present, not being Sunday, and is made returnable on a regular return day. 1 Penna. Pr. 36; 1 Arch. Pr. 67.

CAPIAS AD SATISFACIENDUM, practice. A writ of execution issued upon a judgment in a personal action, for the recovery of money, directed to the sheriff or coroner, commanding him to take the defendant, and him safely keep, so that he may have his body in court on the return day, to satisfy, ad satisfaciendum, the plaintiff. This writ is tested on a general teste day, and returnable on a regular return day.

2. It lies after judgment in most instances in which the defendant was subject to a capias ad respondendum before, and plaintiffs are subject to it, when judgment has been given against them for costs. Members of congress and of the legislature, (eundo, morando, et redezzndo,) going to, remaining at, and returning from the places of sitting of congress, or of the legislature, are not liable to this process, on account of their public capacity; nor are ambassadors, (q. v.) and other public ministers, and their ,servants. Act of Congress of April 30, 1790, s. 25 and 26, Story's Laws United States, 88; 1 Dunl. Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In Pennsylvania, women are not subject to this writ except in actions founded upon tort, or claims arising otherwise than ex contractu. 7 Reed's Laws of Pa. 150. In several of the United States, the use of this writ, as well as of the capias ad respondendum, has been prohibited in all actions instituted for the recovery of money due upon any contract, express or implied, or upon any judgment or decree, founded on any contract, or for the recovery of damages for the breach of any contract, with a few exceptions. See Arrest.

3. It is executed by arresting the body of the defendant, and keeping him in custody. Discharging him upon his giving security for the payment of the debt, or upon his promise to return into custody again before the return day, is an escape, although he do return; 13 Johns. R. 366 8 Johns. R. 98; and the sheriff is liable for the debt. In England, a payment to the sheriff or other officer having the ca. sa., is no payment to the plaintiff. Freem. 842 Lutw. 587; 2 Lev. 203; 1 Arch. Pr. 278. The law is different in Pennsylvania. 3 Serg. & Rawle, 467. The return made by the officer is either C. C. & C., cepi corpus et comittitur, if the defendant have been arrested and held in custody; or N. E. I., non est inventus, if the officer has not been able to find him. This writ is, in common language, called a ca. sa.

CAPIAS PRO FINE, practice, crim. law. The name of a writ which issues against a defendant who has been fined, and who does not discharge it according to the judgment. This writ commands the sheriff to arrest the defendant and commit him to prison, there to remain till he pay the fine, or be otherwise discharged according to law.

CAPIAS UTLAGATUM English practice. A capias utlagatum is general or special; the former against the person only, the latter against the person, lands and goods.

2. This writ issues upon the judgment of outlawry being returned by the sheriff upon the exigent, and it takes its name from the words of the mandatory part of the writ, which states the defendant being outlawed utlagatum, which word comes from the Saxon utlagh, Latinized utlagatus, and signifies bannitus, extra legem. Cowel.

3. The general writ of capias utlagatum commands the sheriff to take the defendant, so that he have him before the king on a general return day, wheresoever, &c., to do and receive what the court shall consider of him.

4. The special capias utlagatum, like the general writ, commands the sheriff to take the defendant. The defendant is discharged upon an attorney's undertaking, or upon giving bond to the sheriff, in the same manner as when the writ is general. But the special writ also commands the sheriff to inquire by a jury, of the defendant's goods and lands, to extend and appraise the same, and to take them in the king's hands and safely keep them, so that he may answer to the king for the value and issue's of the same. 2 Arch. Pr. 161. See Outlawry.

CAPIAS IN WITHERNAM, practice. A writ issued after a return of elongata or eloigned has been made to a writ of retorno habendo, commanding the sheriff to take so many of the distrainer's goods by way of reprisal, as will equal the goods mentioned in the retorno habendo. 2 Inst. 140; F. N. B. 68; and see form in 2 Sell. Pr. 169.