CAPIAS AD RESPONDENDUM - The Law Mind Legal Dictionary

CAPIAS AD RESPONDENDUMAuthored

The Law Mind • 995 words

Definition

A writ commanding a sheriff or other officer to take the body of a named defendant and hold him to answer the plaintiff's claim before the court on a specified day. The phrase is Latin for "that you take to answer." In practice, the writ directed the arresting officer to secure the defendant's appearance at the commencement of a civil action at law. It is most commonly abbreviated ca. resp.

At common law, this was the standard mechanism for initiating an ordinary personal action against a defendant. Its practical effect varied by era and jurisdiction: in earlier common law practice, actual bodily arrest was the norm; later practice shifted toward requiring the defendant merely to appear and enter common bail, with physical arrest reserved for cases where the plaintiff swore by affidavit that the debt exceeded a specified threshold (in England, £10).

Common Confusion

CAPIAS AD RESPONDENDUM vs. OTHER CAPIAS WRITS: The word capias alone — Latin for "you take" — is the root of a family of writs, each distinguished by its purpose. The capias ad respondendum is a civil commencement writ. It should not be confused with the capias ad satisfaciendum (ca. sa.), which commands the sheriff to take the defendant's body to satisfy a judgment already obtained, nor with the capias ad computandum or capias pro fine, which serve different procedural ends. Historical sources sometimes abbreviate all of these simply as "capias," and researchers must check context to determine which writ is meant.

CAPIAS AD RESPONDENDUM vs. SUMMONS: In modern civil practice, the summons has almost entirely displaced the capias ad respondendum as the mechanism for initiating a civil action. The functional difference is significant: a summons notifies a defendant to appear; a capias commanded physical arrest. Conflating the two when reading historical pleading records will distort the researcher's understanding of how aggressively the law could coerce a defendant's appearance.

Why It Matters in Research

This term is a structural pattern case of historical evolution. It was once among the most practically significant writs in civil procedure and appears constantly in common law pleading records, treatise indexes, and early American court documents. Several research traps apply.

First, the writ's function changed substantially over time. In early common law, it operated as a genuine arrest mechanism. By the eighteenth and nineteenth centuries, English and American practice had softened it considerably: actual arrest was conditional on the plaintiff's affidavit as to the amount in controversy, and defendants often simply entered bail and were released. A researcher reading an 1820 American case involving a ca. resp. should not assume the defendant was physically jailed.

Second, the writ was largely abolished in American federal civil practice with the adoption of the Federal Rules of Civil Procedure in 1938, and most states followed with their own procedural reforms. References to ca. resp. in sources after the mid-twentieth century are almost always historical or academic. In modern criminal procedure contexts, a "capias" may still refer to an arrest warrant or body attachment, but this is a distinct usage.

Third, the abbreviation ca. resp. appears frequently in historical docket books, pleading registers, and case reporters without explanation. Researchers unfamiliar with the term may misread it as a citation or annotation rather than a writ designation.

Fourth, the writ connects directly to historical bail practice. Because the capias ad respondendum could compel physical custody pending the posting of bail, it was the procedural gateway to the entire pre-trial bail system in civil cases. Research on historical civil arrest, mesne process, or bail in civil matters will necessarily intersect with this writ.

Historical Dictionary Support

The four source dictionaries are in close agreement on the core definition: a writ commanding the officer to take the defendant's body to answer the plaintiff, used to commence an action at law. All cite or track Blackstone (3 Bl. Comm. 282) and Tidd's Practice (1 Tidd, Pr. 128) as the primary authorities, reflecting the settled nature of this writ in late common law commentary.

Burrill's entry is the most textually complete, preserving the Latin gloss ("You take — to answer") and noting the writ's form. Black's and Burrill's are nearly identical in phrasing, both describing it as a writ "by which actions at law are frequently commenced" — present tense language that reflects the writ's still-living status at the time of those editions.

Rapalje & Lawrence offer the most procedurally nuanced account, distinguishing between the pre-bail era (when defendants were actually arrested) and the later common law practice (when bail made actual arrest conditional on the plaintiff's affidavit). This distinction is important and is underplayed in Black's and Burrill's. Bouvier's adds a useful pointer to its own ARREST and BAIL entries for fuller context — a reminder that this writ cannot be understood in isolation from the civil arrest and bail system it anchored.

No source in the historical shelf addresses the writ's abolition in American practice, which is understandable given the publication dates of these dictionaries but represents a significant gap for modern researchers.

Jurisdictional Note

Abolition of the capias ad respondendum in civil practice occurred at different times across American jurisdictions. Federal courts effectively replaced it through the 1938 Federal Rules. State courts varied, with some retaining forms of civil body attachment — functionally descended from the ca. resp. — into the late twentieth century. A small number of states retain limited civil arrest mechanisms to this day. Researchers working with state court records must check the relevant jurisdiction's procedural history before assuming the writ was unavailable in a given period.

Encyclopedia Cross-Reference

See Law Mind Encyclopedia: Civil Procedure — Common Law Origins; Bail and Pretrial Release — Historical Development; Writs and Pleading Forms.

CAPIAS AD RESPONDENDUMmain

Black's Law Dictionary • 1891

practice. A judicial writ, (usually simply termed a "capias,") by which actions at law were frequently commenced; and which com- mands the sheriff to take the defendant, and him safely keep, so that he may have his body before the court on a certain day, to an- swer the plaintiff in the action. 3 Bl. Comm. 282; 1Tidd, Pr. 128. The name of this writ is commonly abbreviated to ca. resp.

CAPIAS AD RESPONDENDUMmain

Bouvier's Law Dictionary • 1928

In Practice. A writ commanding the officer to whom it is directed "to take the body of the defendant and keep the same to answer the plaintiff," etc. This is the writ of capias which is generally in- tended by the use of the word capias, and was for- merly a writ of great importance. For some ac- count of its use and value, see ARREST; BAIL. 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. If the writ has been served and the de- fendant does not give 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 de- fendant's appearance have been accepted, the return is, "C. C., and defendant's ap- pearance accepted." See 1 Archb. Pr. 67.

CAPIAS AD RESPONDENDUMmain

Rapalje & Lawrence • 1888

-That you take to answer. 1. At common law, a writ by which an ordinary action was commenced. The defendant was not actually arrested under it (except prior to the introduction of the practice of taking bail), but was merely required to appear and put in common bail, unless the plaintiff made affidavit that his debt exceeded £10, in which case he might be arrested and compelled to chief intention or end. This writ is divided put in special bail. (See ARREST; BAIL, into cape magnum and cape parvum, both of which take hold of things immovable. Cape magnum, or the grand cape, is a writ that lies before appearance, to summon the tenant to answer the default, and also over to the demandant. And in the Old Nat. Brev. it is defined to be, Where a man hath brought a precipe quod reddat of a thing touching plea of land, and the tenant makes default at the day to him given in the original writ, then this writ shall go for the king to take the land into his hands; and if the tenant come not at the day given him thereby, he loseth his land, &c. (See Reg. Jud. 1; Bract. lib. 3; tract 3 c. 1.) Cape parvum, or petty cape, is where the tenant is summoned in plea of land, and comes on the summons, and his appearance is recorded; if, at the day given him, he prays the view, and, having it granted, makes default, then shall issue this writ for the king.-Jacob. 1-3; DISTRINGAS; VENIRE FACIAS.) This use of the writ has been virtually abolished in England by Stat. 1 and 2 Vict. c. 110, and the right to arrest on mesne process has been so much restricted in the several States, by statute, that although the name of the writ is still retained in some of them, it issues only in bailable actions (q. v.) 22. In English practice, a writ which may be issued for the arrest of a person against whom an indictment for a misdemeanor has been found, in order that he may be arraigned. (4 Bl. Com. 318; Archb. Cr. Pl. 82.) In practice, however, ver, a justice's warrant is always used (see WARRANT) except where it is desired to make the defendant an outlaw (q. v)

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