CAP 
defendant's pciTon, in cafe of peaceable, though fraudu¬ 
lent, injuries, producing a great contempt of the law in 
indigent wrong-doers, a capias was alfo allowed to ar re ft 
the perlon in aiffions of account, though no breach of the 
peace be luggefted by flats. Marlb. 52 Henry III. c. 23. 
Weftm. 2. 13 Edw. I. c. 11. In actions of debt and de¬ 
tinue by flat. 23 Edw. III. c. 17. And in all actions on 
the cafe by flat. 19 Hen. VII. c, 9. 
Before this laft llatute, a practice had been introduced 
of cosnmencing the ftiir, by bringing an original writ of 
trefpafs quare claufum fregit, for breaking tire plaintiff’s 
clofe vi ct arm's ; which, by the old common law, fubjedted 
the defendant’s perfon to be arrelted by writ of capias ; 
and then afterwards, by connivance of the court, the plain¬ 
tiff might proceed to profecute for any other lefs forcible 
injury. This practice (through cuflom rather titan necef- 
fity, and for laving fome troubie and expence, in filing 
out a fpecial original adapted to the particular injury) (till 
continues in almoft all cafes, except in actions of debt; 
though now, by virtue of the above and other ftatutes, a 
capias might be had upon almoft everv Ipecies of complaint. 
It is now alfo ufual in pradttce to fue out the capias in 
the firft inftance, on a fuppofed return of the (lieriff, (that 
the defendant, being fnmmoned or attached, made default, 
or that he had no fubflance whereby to be attached ;) and 
afterwards a fictitious original is drawn up, if the party 
is called upon fo to do, witlj a proper return thereupon, 
in order to give the proceedings a colour of regularity. 
When this capias is delivered to the fheriff, lie, 1 y his tin- 
der-fheriff, grants a warrant to his bailiffs to execute it. 
If tiie fheriff of the county, in which the injury is fuppofed 
to be committed, and the adtion is laid, cannot find the 
defendant in lvis jurifdidtion, he returns non ejl inventus ; 
w hereupon another writ ilfues, called a Ujlalum capias, re¬ 
citing the former writ, and that it is teltified, teftatum rjl, 
that the defendant lurks or wanders in his bailiwick, w here- 
fore he is commanded to take him, as in the former capias. 
Here alfo when the adtion is brought in one county, and 
the defendant lives in another, it is ufual, for laving trou¬ 
ble, time, and expence, to make out a teftatum capias at 
the firft ; fuppofing not only an original, but alio a former 
capias, to have been granted. And this fiction being be¬ 
neficial to all parties, is readily acquiefced in, and is now 
become the fettled practice. But, w here the defendant 
abfeonds, and the plaintiff would proceed to an outlawry 
againft him, an original writ mult then be fried out regu¬ 
larly, and after that a capias. And, if the Iheriff cannot 
find the defendant upon the firft writ of capias, and returns 
a non eft inventus, there iffues out an alias writ, and after 
that a pluries, to the fame efTedt as the former. 
A capias is alfo in ule in criminal cafes. The proper 
procefs on an indidtment for any petty mifdemeanor, or on 
a penal ftatute, is a writ of venire facias, which is in the 
nature of a fummons to caufe the party to appear. And 
if, by the return to fuch venire, it appears that the party 
hath lands in the county, whereby lie may be diftrained, 
then a diftrefs infinite fliall be ilfued from time to time till 
he appears. But, if the flieriff returns that he hath no 
lands in his bailiwick, then, upon his non appearance, a 
writ of capias fhall ilfue, which commands the flierilf to 
take his body, and have him at the next afiifes ; and, if he 
cannot be taken upon the firft capias, an alias and a pluries 
111 a 11 ilfue. But, on indidhnents for treafon or felony, a 
capias is the firft procefs; and, for treafon or homicide, 
only one fhall be allowed to ilfue, or two in the cafe of 
other felonies, by ftatute 25 Edw. III. c, 14; though the 
ufage is to ilfue only one in any felony ; the provifions of 
this ftatute being in mod cafes found impradticable. 2 H. 
P. C. 195. And fo in the cafe of mifdemeanors, it is now 
the ufual practice of the court of King’s Bench, upon cer¬ 
tificate of an indidtment found, to award a writ of capias 
immediately, in order to bring in the defendant. But in 
this, as in civil cafes, if he abfeonds, and it is thought 
proper to purfue him to an outlawry, a greater exadtnefs 
is necelTary. 4 Comm. 31S. 
IAS, 763 
Capias ad fatisjacicndum, (fliortly termed a ca.fa, ) is a 
judicial writ which ilfues out on the record of a judgment, 
where there is a recovery in the courts at Wellminfter, of 
debt, damages, &c. And by this writ the IherifF is com¬ 
manded to take the body of the defendant in execution, 
and him fafely to keep, fo that he have his body in court 
at the return of the writ, to fatisfy the plaintiff his debt 
and damages, x Lill. Air. 249. And, it he does not then 
make fatisfadtion, he muft remain in cuftody till he does. 
When the body is taken upon a ca. la. and the writ is re¬ 
turned and filed, it is an abfolute and perfect execution of 
the higheft nature againft the defendant, and no other exe. 
cution can be afterwards had againft Ids lands or goods: 
except where a perfon dies in execution, then his lands 
and goods are liable to fatisfy the judgment, by ftatute 21 
Jac. I. c. 24. See Rol. Air. 904. Properly fpeaking, this 
writ cannot be fued out againft any but Inch as were liable 
to be taken upon the capias mentioned in the preceding 
article. 3 Rep. 12. Mo. 767. The intent of it is to impri- 
fon the body of the debtor, til! fatisfaflion be made for 
the debt, cofts, and damages : this writ therefore doth not 
lie againft any privileged perfctns, peers, or members of 
parliarhent; nor againft executors or adminiftrators, (ex¬ 
cept on a devaftavit returned by the Iheriff. 1 till. 230.) 
nor againft fuch other perfons as could not be originally 
held to bail. 
This writ may be fued out, (as may all other executory 
procefs,) for cofts, againft a plaintiff as well as a defendant, 
where judgment is had againft him. In cafe two perfons 
are bound jointly and feverally, and profecuted in two 
courts, w hereupon the plaintiff hath judgment, and exe¬ 
cution by ca. fa. againft one of them ; if he after have an 
elegjt againft the other, and his lands and goods are deli¬ 
vered upon it, then he that is in prifon fhall have audita 
querela. Hob. ii. 37. Where one taken on a ca. fa. efcapes 
from the fheriff, and no return is made of tire writ, nor 
any record of the award of the capias, the plaintiff may 
bring a feire fac. againft him, and cn that what execution 
he will. Roi. 904. And, if the defendant lefcue hi in fell, 
the plaintiff (hall have a new capias, the firft writ not being 
returned. Ibid. 901. If a defendant cannot be taken upon ■ 
a ca. fa. in the county where the action is laid, there may 
ilfue a teftatum ca. fa. into another county, as in the com¬ 
mon capias. 
Capias Ut/agatum, a writ that lies againft a perfon who is- 
outlawed in any adtion, by which the flieriff is command¬ 
ed to apprehend the body of the party outlawed, for not 
appearing upon the exigent, and keep him in fafe cuftody 
till the day of return, and then prefent him to the court, 
there to be dealt with for his contempt; who, in tlie Com¬ 
mon Pleas, was in former times to be., committed to the 
Fleet, there to remain till lie had fued out the king’s par¬ 
don, and appeared to the adtion. And, by a fpecial capias 
utlagatum, (againft the body, lands, and goods, in the 
lame writ,) the flieriff is commanded to feize all the de¬ 
fendant’s lands, goods, and chattels, for the contempt to 
the king; and the plaintiff (after an inquilition taken there¬ 
upon, and returned into the Exchequer) may have the 
lands extended, and a grant of the goods, &c. whereby to 
compel the defendant to appear; which when he doth, if 
he reverfe the outlawry, the fame lliall be reftored to him. 
0 /d. Nat. Br. 134. When a perfon is taken upon a capias 
utlagatum, the flieriff is to take an attorney’s engagement 
to appear for him, w here fpecial bail is not required ; and 
his bond, with fureties, to appear where it is required. Stat. 
4 & 3 Will, and Mary, c. 18. See Outlawry; 
Capias pro Fine. Anciently, when judgment was given 
in favour of the plaintiff, in any adtion in the king’s courts, 
it was confidered that the plaintiff be arrelted for his wil¬ 
ful delay of juftice, or capiatur be taken, till he paid a fine 
to the king, conlidering it as a public mifdemeanor cou¬ 
pled with the private injury. But now, in cafes of tref¬ 
pafs, ejectment, alfault, and falfe iniprifonment, it is pro¬ 
vided by flat. 5 & 6 Will, and Mary, c. 12, that no writ of 
capias fhall ilfue fgr the.fine, nor any fine be paid ; but the 
plaintiff. 
