CAPIAS, kap'e-as ((that you take), a writ or process in a civil action whereby the sheriff is ordered to arrest the body of the defendant. The writ so framed as to call for the arrest of the defendant before judgment, in order to compel him to answer a suit, is called a capias ad respondendum; if after the judgment, to compel him to satisfy the judgment, it is called a capias ad satisfaciendum, commonly abbrevi ated ca. sa. In case of injuries without force, the civil law, and originally the common law, did not authorize the arrest of the defendant before judgment, that is, the arrest to answer; and upon feudal principles, says Sir William Blackstone (3 Corn. 281), the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby the lord should be deprived of his services.* The first writ of capias ad respondendum was given by act of Parliament in 1267, 52 Hen. III, c. 23, § 1, which provided that (if bailiffs, which ought to make account to their lords, do withdraw themselves, and have no lands nor tenements whereby they may be restrained, they shall be attached by their bodies, so that the sheriff shall cause them to come to make their account.'" This act applied to a particular description of receivers, and supposed them not only to be debtors, but also to have in their own hands the evidence of the amount of the debt, the production of which was one object of the process. The statute of 13 Edw. I, c. 11, passed in 1285, 18 years after the former, extends this process to °all manner of receivers bound to yield account) and provides (if they be found in arrearages upon this account, their bodies shall be arrested, and, by the testimony of the auditors, shall be sent into the next jail, and be imprisoned in irons under safe custody, and remain in prison at their own cost until they have satisfied their master (the creditor) fully of their arrearages.p It would appear that the practice of arresting on mesne process, that is before judgment, to answer in civil suits, grew out of these statutes; for the subsequent stat utes of 25 Edw. III, c. 17 (1350), providing
that (such process shall be made in writ of debt, detinue of chattels and taking of beasts, by writ of capias, as is used in writ of account)); and of 21 Hen. VII. c. 9 (1503) ; evidently have reference to an arrest to answer. Formerly, a writ upon which a suit was commenced was either a capias, distress or summons; either the person of the defendant was seized, and (un less he was bailed) imprisoned until the trial, or his goods and lands were seized as a guar antee of his appearance to answer; and more often, in modern times, to obtain a lien to secure satisfaction of the judgment; or he was only summoned, that is, merely had notice that a suit had been commenced before such a court, by such a plaintiff, and was to be heard at such a time. The commencement of an action by summons is now the usual course of procedure; recent legislation, and especially the practical abolition of imprisonment for debt, having greatly restricted the use of writs of rapias of any kind. By the Debtors' Act, 1869 (32 and 33 Vict. c. 62), the writ of capias ad satisfacien dum is abolished, except in cases in which the defendant can pay, but will not. The same act provides that when a plaintiff has good cause of action against a defendant to the amount of i50 or upward, and the defendant is about to quit England, and the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, a judge may order the defendant to be arrested unless or until security be found. A supple mentary or second writ, issued when an ordi nary capias has been placed in the hands of the sheriff and has been returned with the endorse ment that the defendant could not be found, is called a testatum capias. See ARREST; AT TACH MENT ; EXECUTION.