CAPIAS, practice. 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, &c., each especially adapted
to the purposes indicated by the words used for its designation.
See 3 Bl. Com. 281; 3 Bouv. Inst. n. 2794.
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. 4 BI. Com. 368.
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. For precedents, see Thesaurus Brevium,
38, 39, 40; 3 Leon. 149; 1 Lutw. 47, 51 Co. Ent. 46, 47; Rast. Ent. 14, b,
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," &c. The amount of bail
demanded ought to, be indorsed on the writ.
2. A defendant arrested upon this writ must be committed to prison, unless he
give a bail bond (q. v.) 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. 1 Penna. Pr. 36; 1 Arch. Pr. 67.
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.
2. 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, (q. v.) and other public ministers, and their ,servants. Act of
Congress of April 30, 1790, s. 25 and 26, Story's Laws United States, 88; 1
Dunl. Pr. 95, 96; Com. Dig. Ambassador, B; 4 Dall. 321. In Pennsylvania, women
are not subject to this writ except in actions founded upon tort, or claims
arising otherwise than ex contractu. 7 Reed's Laws of Pa. 150. 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. See Arrest.
3. 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; 13 Johns. R. 366 8 Johns. R. 98; 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. Freem. 842 Lutw. 587; 2 Lev.
203; 1 Arch. Pr. 278. The law is different in Pennsylvania. 3 Serg. & Rawle,
467. 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.
2. 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. Cowel.
3. 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, &c., to do and receive what the court shall consider of
4. 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. 2 Arch. Pr. 161. See
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. 2 Inst. 140; F. N. B. 68; and
see form in 2 Sell. Pr. 169.
CAPIATUR, pro fine. The name of a writ which was issued to levy a fine
due to the king. Bac. Ab. Fines and Amercements, in prin. See Judgment of
CAPITA, or PER CAPITA. By heads. An expression of frequent occurrence
in laws regulating the distribution of the estates of persons dying intestate.
When all the persons entitled to shares in the distribution are of the same
degree of kindred to the deceased person, (e.g. when all are grandchildren,) and
claim directly from him in their own right and not through an intermediate
relation, they take per capita, that is, equal shares, or share and share alike.
But when they are of different degrees of kindred, (e. g. some tho children,
others the grandchildren or the great grandchildren of the, deceased,) those
more remote take er stirpem or per stirpes, that is, they take respectively the
shares their parents (or other relation standing in the same degree with them of
the surviving kindred entitled) who are in the nearest degree of kindred to the
intestate,) would have taken had they respectively survived the intestate.
Reeves' Law of Descent, Introd. xxvii.; also 1 Rop. on Leg. 126, 130. See Per
Capita; Per Stirpes; Stirpes;
CAPITAL, political economy, commerce. In political economy, it is that
portion of the produce of a country, which may be made directly available either
to support the human species or to the facilitating of production.
2. In commerce, as applied to individuals, it is those objects, whether
consisting of money or other property, which a merchant, trader, or other person
adventures in an undertaking, or which he contributes to the common stock of a
partnership. 2 Bouv. Inst. n. 1458.
3. It signifies money put out at interest.
4. The fund of a trading company or corporation is also called capital, but
in this sense the word stock is generally added to it; thus we say the capital
stock of the Bank of North America.
CAPITAL CRIME. One for the punishment of which death is inflicted,
which punishment is called capital punishment. Dane's Ab. Index, h. t.
2. The subject of capital punishment has occupied the attention of
enlightened men for a long time, particularly since the middle of the last
century; and none deserves to be more carefully investigated. The right of
punishing its members by society cannot be denied; but how far this right
extends, by the laws of nature or of God, has been much disputed by theoretical
writers, although it cannot be denied, that most nations, ancient and modern,
have deemed capital punishment to be within the scope of the legitimate powers
of government. Beccaria contends with zeal that the punishment of death ought
not to be inflicted in times of peace, nor at other times, except in cases where
the laws can be maintained in no other way. Bee. Chap. 28.
3. It is not within the plan of this work to examine the question, whether
the punishment is allowed by the natural law. The principal arguments for and
against it are here given.
4.- 1. The arguments used in favor of the abolition of capital punishment,
5. - 1st. That existence is a right which men hold from God, and which
society in body can, no more than a member of that society, deprive them of,
because society is governed by the immutable laws of humanity.
6. - 2d. That, even should the right be admitted, this is a restraint badly
selected, which does not attain its end, death being less dreaded than either
solitary confinement for life, or the performance of hard labor and disgrace for
7. - 3d. That the infliction of the punishment does not prevent crimes, any
more thau, other less severe but longer punishments.
8. - 4th. That as a public example, this punishment is only a barbarous show,
better calculated to accustom mankind to the contemplation of bloodshed, than to
9. - 5th. That the law by taking life, when it is unnecessary for the safety
of society, must act by some other motive this can be no other than revenge. To
the extent the law punishes an individual beyond what is requisite for the
preservation of society, and the restoration of the offender, is cruel and
barbarous. The law) to prevent a barbarous act, commits one of the same kind,;
it kills one of the members of society, to convince the others that killing is
10. - 6th. That by depriving a man of life, society is deprived of the
benefits which he is able to confer upon it; for, according to the vulgar
phrase, a man hanged is good for nothing.
11. - 7th. That experience has proved that offences which were formerly
punished with death, have not increased since the punishment has been changed to
a milder one.
12. - 2. The arguments which have been urged on the other side, are,
13. - 1st. That all that humanity commands to legislators is, that they
should inflict only necessary and useful punisliments; and that if they keep
within these bounds, the law may permit an extreme remedy, even the punishment
of death, when it is requisite for the safety of society.
14. - 2d. That, whatever be said to the contrary, this punishment is more
repulsive than any other, as life is esteemed above all things, and death is
considered as the greatest of evils, particularly when it is accompanied by
15. - 3d. That restrained, as this punishment ought to be, to the greatest
crimes, it can never lose its efficacy as an example, nor harden the multitude
by the frequency of executions.
16. - 4th. That unless this punishment be placed at the top of the scale of
punishment, criminals will always kill, when they can, while committing an
inferior crime, as the punishment will be increased only by a more protracted
imprisonment, where they still will hope for a pardon or an escape.
17th. - 5th. The essays which have been made by two countries at least;
Russia, under the reign of Elizabeth, and Tuscany, under the reign of Leopold,
where the punishment of death was abolished, have proved unsuccessful, as that
punishment has been restored in both.
18. Arguments on theological grounds have also been advanced on both sides.
See Candlish's Contributions towards the Exposition of the Book of Genesis, pp.
203-7. Vide Beccaria on Crimes and Punishments; Voltaire, h. t.; Livingston's
Report on a Plan of a Penal Code; Liv. Syst. Pen. Law, 22; Bentham on
Legislation, part 3, c. 9; Report to the N. Y. Legislature; 18 Am. Jur. 334.
CAPITATION. A poll tax; an imposition which is yearly laid on each
person according to his estate and ability.
2. The Constitution of the United States provides that "no capitation, or
other direct tax, shall be laid, unless in proportion to the census, or
enumeration, therein before directed to be taken." Art. 1, s. 9, n. 4. See 3
Dall. 171; 5 Wheat. 317.
CAPITE, descents. By the head. Distribution or succession per capita,
is said to take place when every one of the kindred in equal degree, and not
jure representationis, receive an equal part of an estate.
CAPITULARIES.The Capitularia or Capitularies, was a code of laws
promulgated by Childebert, Clotaire, Carloman, Pepin, Charlemague, and other
kings. It was so called from the small chapters or heads into which they were
divided. The edition by Baluze, published in 1677, is said to be the best.
CAPITULATION, war. The treaty which determines the conditions under
which a fortified place is abandoned to the commanding officer of the army which
2. On surrender by capitulation, all the property of the inhabitants
protected by the articles, is considered by the law of nations as neutral, and
not subject to capture on the high seas, by the belligerent or its ally. 2
CAPITULATION, civ.law. An agreement by which the prince and the
people, or those who have the right of. the people, regulate the manner in which
the government is to be administered. Wolff, 989.
CAPTAIN or SEA CAPTAIN, mar. law. The name given to the master or
commander of a vessel. He is known in this country very generally by the name of
master. (q. v.) He is also frequently denominated patron in foreign laws and
2. The captains in the navy of the United States, are officers appointed by
government. Those who are employed in the mercantile service, have not strictly
an official character. They are appointed or employed by the owners on the
vessels they command.
3. It is proposed to consider the duty of the latter. Towards the owner of
the vessel he is bound by his personal attention and care, to take all the
necessary precautions for her safety; to, proceed on the voyage in which such
vessel may be engaged, and to obey faithfully his instructions; and by all means
in his power to promote the interest of his owner. But he is not required to
violate good faith, nor employ fraud even with an enemy. 3 Cranch, 242.
4. Towards others, it is the policy of the law to hold him responsible for
all losses or damages that may happen to the goods committed to his charge;
whether they arise from negligence, ignorance, or wilful misconduct of himself
or his mariners, or any other person on board the ship. As soon, therefore, as
goods are put on board, they are in the master's charge, and he is bound to
deliver them again in the same state in which they were shipped, and he is
answerable for all losses or damages they may sustain, unless it proceed from au
inherent defect in the article, or from some accident or misfortune which could
not be prevented.
5. It may be laid down as a general rule, that the captain is responsible
when any loss occurs in consequence of his doing what he ought not to do, unless
he was forced by the act of God,. the enemies of the United States, or the
perils of the sea.1 Marsh. Ins. 241; Pard. n. 658.
6. The rights of the captain are, to choose his crew as he is responsible for
their acts, this seems but just, but a reasonable deference to the rights of the
owner require that he should be consulted, as he, as well as the captain, is
responsible for the acts of the crew. On board, the captain is invested with
almost arbitrary power overthe crew, being responsible for the abuse of his
authority. Ab. on Sbipp.162. He may repair the ship, and, if he is not in funds
to pay the expenses of such repairs, he may borrow money, when abroad, on the
credit of his owners or of the ship. Abb. on Sh. 127-8. In such cases, although
contracting within the ordinary scope of his owers and duties, he is generally
responsible as well as the owner. This is the established rule of the maritime
law, introduced in favor of commerce it has been recognized and adopted by the
commercial nations of, Europe, and is derived from the civil or Roman law.
Abbott, Ship. 90; Story, Ag. 11 6 to 123, 294; Paley, Ag. by Lloyd, 244; 1
Liverm. Ag. 70; Poth. Ob. n. 82; Ersk. Inst. 3, 3, 43; Dig. 4, 9, 1; Poth. Pand.
lib. 14, tit. 1; 3 Summ. R. 228. See Bell's Com. 505, 6th ed; Bouv. Inst. Index,
CAPTATION, French law. The act of one who succeeds in controlling the
will of another, so as to become master of it. It is generally taken in a bad
2. Captation takes place by those demonstrations of attachment and
friendship, by those assiduous attentions, by those services and officious
little presents which are usual among friends, and by all those means which
ordinarily render us agreeable to others. When those attentions are unattended
by deceit or fraud, they are perfectly fair, and the captation is lawful; but
if, under the mask of friendship, fraud is the object, and means are used to
deceive the person with whom you are connected, then the captation is
fraudulent, and the acts procured by the captator are void. See Influence.
CAPTATOR, French law. The name which is sometimes given, to him who by
flattery and artifice endeavors to surprise testators, and induce them to. give
legacies or devices, or to make him some other gift. Diet. de Jur.
CAPTION, practice. That part of a legal instrument, as a 'Commission,
indictment, &c., which shows where, when, and by what authority it was
taken, found or executed. As to the forms and requisites of captions, see 1
Murph. 281; 8 Yerg. 514; 4 Iredell, 113; 6 Miss,. 469; 1 Scam. 456; 5 How. Mis.
20; 6 Blackf. 299; 1 Hawks, 354; 1 Brev. 169.
2. In the English practice, when an in ferior court in obedience to the writ
of certiorari, returns an indictment into the K. B. , it is annexed to the
caption, then called a schedule, and the caption concludes with stating, that "
it is presented in manner and form as appears in a certain indictment thereto
annexed, " and the caption and indictment are returned on separate parch ments.
1 Saund. 309, n. 2. Vide Dane's Ab. Index, h. t.
3. Caption is another name for arrest.