CAPIAS - 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, etc.,
each especially adapted to the purposes indicated
by the words used for its designation.
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.
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.
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,' etc. The amount of bail demanded ought to
be indorsed on the writ.
A defendant arrested upon this writ must be committed
to prison unless he give a bail bond 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.
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.
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 and other public
ministers and their servants. In Pennsylvania, women
are not subject to this writ except in actions founded
upon tort or claims arising otherwise than ex contractu.
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.
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; 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. 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. 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.
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,
etc., to do and receive what the court shall consider
of him.
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.
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.
