Definition
A petit cape (also spelled petty cape) was a judicial writ in old English real property practice. It issued against a vouchee — a person called into court to warrant title to land — who had appeared in answer to a summons but subsequently failed to appear at a later stage of the proceedings. Upon that default, the writ directed the sheriff to take possession of the estate on behalf of the demandant. The petit cape was a procedural mechanism for advancing or concluding an action for the recovery of land when a party who had voluntarily submitted to the court's jurisdiction then abandoned the proceedings.
Common Confusion
Petit cape is easily confused with grand cape, the related writ that issued before the tenant appeared at all. The distinction turns on timing and the identity of the defaulting party: a grand cape issued against a tenant who had not yet appeared; a petit cape issued after appearance, against a vouchee who then defaulted. Bouvier and Burrill both direct researchers to the parent entry CAPE for the full family of writs, reflecting that the two forms were understood as variations on a single procedural instrument rather than independent writs.
Why It Matters in Research
Petit cape is an extinct writ with no modern procedural counterpart. It belongs exclusively to the old English real actions — the formal common-law actions for recovery of freehold land, including the writ of right, warranty of charter, and related forms — which were largely abolished in England by the Real Property Limitation Act 1833 and the Common Law Procedure Act 1852, and which never took firm root in American practice. Researchers encountering the term in historical records will find it in English case reports and practice manuals from the sixteenth through early nineteenth centuries, not in American sources.
The primary research trap is confusing the cape family of writs with the broader category of capias writs (body attachment writs) — the names sound similar, but the concepts are entirely distinct. Cape writs ran to land; capias writs ran to persons.
A second navigational point: Rapalje & Lawrence and Bouvier both redirect to the parent entry CAPE without providing an independent definition of petit cape. Burrill is the most informative of the shelf sources, supplying the essential distinction between petit and grand cape and directing researchers to Roscoe's Treatise on the Law of Real Actions (a standard English practice manual) for fuller procedural context. Researchers working in this area should treat Burrill as the starting point and follow its citation trail rather than relying on the cross-reference-only entries in Bouvier and Rapalje.
Because petit cape belonged to the real actions — a procedural system dismantled well before most American law reporters and digests were compiled — the term will rarely if ever appear in American legal sources. Its appearance in American legal dictionaries reflects the dictionaries' debt to English common law sources rather than any live American usage.
Historical Dictionary Support
The four shelf sources agree on the basic mechanics: petit cape was a writ issuing on default after appearance, directed to recovery of land. Black's and Burrill are substantively consistent, with Burrill adding the identification of the vouchee as the relevant defaulting party. Black's describes the defaulting party simply as "the tenant," which is technically accurate in that a vouchee occupies a tenant-like procedural position, but Burrill's specification is more precise for researchers trying to understand where in the vouching process the writ fit.
Bouvier and Rapalje add no independent content, functioning purely as cross-references. This is a case where the historical dictionaries' coverage is thin relative to the procedural complexity of the underlying practice — researchers who need to understand petit cape in context will find the dictionary entries inadequate and should turn directly to English treatises on real actions.
None of the shelf sources explain why petit cape fell into disuse or trace its abolition — an unsurprising omission given that the writ had been extinct in practice for generations by the time most of these dictionaries were compiled.