CAPIAS, in the law of England, is a writ or process, of which there are several kinds.
Capias ad rekpondendum, is a writ sued out before judgment, where an original• is taken out, &c. to take the defendant, who had neglected to appear in the previous process, and make him answer the plaintiff. If, there fore, the defendant, being summoned, makes default, or if the sheriff returns a nihil, or that the defendant bath nothing whereby he may be summoned, attached, or distrained, the capias usually issues, commanding the sheriff to take the body of the defendant, and keep him, so as he may present him in court on the day of the re turn. This writ, and all others subsequent to the origi nal,—not issuing out of chancery, but from the court into which the original was returnable, grounded on what has passed in that court, in consequence of the she riff's return, issuing under the private seal of that court, and not under the great seal of England ; and tested,— not in the king's name, but in that of the chief justice only, are called judicial, not original, writs. And these several writs must respectively bear date, the same clay on which the writ immediately preceding was returnable. But it is now the usual practice to sue out the canias, in the first instance, upon a supposed return of the sheriff; and, afterwards, a fictitious original is drawn up, and a proper return thereupon, in order to give the proceedings a colour of regularity.
If the sheriff of the county, in which the injury is supposed to be committed, and the action is laid, cannot find the defendant in his jurisdiction, he returns non est inventus ; upon which another writ issues, called a testa tum capias, directed to the sheriff of the county where the defendant is supposed to reside. But in this case. also, it is usual to make out a testatum capias at the first. On the supposition that not only an original, but a pre vious capiae had been granted, although in reality they never were. When a defendant absconds, however, and the plaintiff would proceed to an outlawry against him, an original writ must be sued out regularly, and after that a capias. And if the sheriff returns a non est inven tus upon the first capias, then there issues an alias, and after that a pluries writ ; and if a non est inventus be re turned upon all of these, then a writ of exigent may be sued out in order to outlawry.
Such is the first process in the Court of Common Pleas. In the King's Bench, also, they may, and fre quently do, proceed by original writ, with attachment and capias, particularly in actions of ejectment and tres pass. The writ, however, is returnable, not at West minster, where the Common Pleas are fixed by Magna Charta, but ubicunque fuerimus in ?nglia ; the King's Bench being removeable into any part of England, at the pleasure of the crown. Blackst. Comment. B. iii. eh. 19. Jacob's Law Dict.
capias ad satisfaciendum, is a writ of execution, after judgment, the intent of which is to imprison the body of the defendant, until he makes satisfaction to the plain tiff for the debt, costs, and damages, in a process. This writ, therefore, does not lie against privileged persons, peers, members of parliament, executors or adminis trators, nor against such other persons as could not be originally held to bail.
Capias utlagatum, is a writ which lies to arrest a per son wno appears publicly after outlawry, who may be committed until the outlawry be reversed.
Capias pro fine, is a writ which issues for taking the body of one who is fined to the king for some offence, and does not discharge the fine according to the judg ment. By the statute 5 and 6, W. & M. c. 12. capiatur dines are taken away in several eases.
Capias in withernanz, is a writ which lies for recover ing goods or cattle taken in distress, when the sheriff's inquest determines against the distreinor. If the distress be taken out of the county, or concealed, so that the sheriff cannot make deliverance in replevin, then there issues to him a capias in withernam, or in vetito namio, a term which signifies a reciprocal distress, to take as many goods or cattle of the distreinor, by way of re prisals.
Capias ad audiendum judiciunz, is a writ which issues against one who has been found guilty of a misdemeanor, to bring him in to receive his judgment ; and if he ab sconds, he may be prosecuted, even to outlawry. Blackst. Coinment. B. iv. ch. 29. (z)