Capias Defined

Capias is the signification of which is 'that you take,' is applicable to many heads of practice.5 min read


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.

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