Form Of Capias

STATE OF --------

-------- County, ss.

The People of the State of--------to any Constable of said County -

Greeting :

You are hereby commanded to take the body of--------and bring him forthwith before me, unless special bail be entered; and if such bail be entered, you will then command him to appear before me at--------, on the-------- day of--------, at--------o'clock -M., to answer to the complaint of A. B. for failure to pay him a certain demand not exceeding -------- dollars; and hereof make due return as the law directs.

Given under my hand, this--------day of--------, 18-.


Before issuing a capias, the justice will take from the plaintiff, or his representative, a bond with approved surety, which is substantially in the following form:

Form Of Bond For Capias

A----- B-----, vs. C----- D-----.

Before--------, Justice of the Peace.

STATE OF -- -------- County, ss.

We hereby bind ourselves to pay all damages and costs, if any, which may be wrongfully occasioned by a capias in this case.

Dated this--------day of--------, 18-. ------------[seal.]


Ordinarily the capias is issued only as a last resort, and when it is evident that the claim can only be collected by arresting the defendant and depriving him of his liberty, unless he give satisfactory bail.

Being provided with a warrant for the apprehension of the debtor, the defendant is arrested, if found, and brought forthwith before the justice, unless some friend or other person will guarantee that the debtor will promptly appear at the hour and place appointed for trial. This guarantee, termed "giving bail," is in the following form, written on the back of the capias:

Form Of Special Bail

I, A. B., acknowledge myself special bail for the within named C. D.

Witness my hand, this--------day of--------, 18-.

A. B.

This indorsement must be signed by one or more responsible persons whom the constable is willing to take as security, the condition being that the defendant, if judgment is rendered against him, at the time of trial will pay the same, with costs, or surrender himself, according to the terms of the capias. And in case he fails to pay, or surrender, the persons who signed the bail are held for the payment of the claim.

Who Cannot Be Arrested

By constitutional right, the following persons are privileged from arrest: Members of congress, except for treason, felony, and breach of the peace, are not liable to arrest during their attendance upon the session of their respective houses, nor while going to or returning from the same. Electors are also privileged from arrest, except for treason, felony or breach of the peace, while in attendance upon elections, or while going to or returning from the same. In many States, also, the militia, except in the above cases, are exempt during their attendance at musters, or while going or returning. Attorneys and counselors at law, judges, clerks, sheriffs, and all other officers of the several courts are likewise free from arrest while attending court, and while going to and returning from the same, as are also witnesses and other persons necessarily attending any courts of record on business.

Suing The Garnishee

Another means left open for the collection of a claim in various States of the Union, is that of securing the debt by suing a third person who may be owing the defendant. In such case the plaintiff can proceed against this third person, who is called the garnishee, in the same manner as against the debtor, though a certain amount of the money owing is, in some States, exempt, and cannot be garnisheed.

Levying Upon Real Estate

When no personal property can be found with which to pay the debt, and the debtor is known to possess real estate in sufficient amount to pay the claim, then it is allowable, in certain States, for the justice to certify to the clerk of the circuit court, in the county where judgment was rendered, a transcript of the judgment, which shall be filed by the clerk; and thereupon the same will become a lien upon the real estate of the debtor, and execution may issue from that court, and proceedings be had for the sale of the land and payment of the debt and costs from the proceeds of the sale.

Appealing To Higher Courts

Where an action has been brought before a justice to secure a claim, a summons has been issued, the day has been set for a hearing, and judgment has been rendered by a justice or a jury, and the decision is that the debtor must pay the claim with costs, the debtor can then appeal to the next higher legal tribunal, being the circuit, district court, court of common pleas, or other courts, which are known by different names in different States.

Before the defendant can appeal, however, he is required to give a bond, which must be signed by one or more responsible persons, by which he guarantees, in a sum twice the amount of the claim, to pay the debt and all costs if he is beaten in the higher court.

The case is then entered upon the docket of the clerk of the higher court for trial, and if time permits will be tried at the next term of that court.

Upon trial in this court, if the defendant is beaten again, he can, by giving bond as before, in double the amount of the debt and costs then accrued, carry the case for trial up to the Supreme Court of the State, where the matter generally ends.

How Soon The Debt May Be Collected

Thus it will be seen where, in each trial, the defendant promptly defends his case and appeals to the higher courts when he finds himself beaten, he can escape the payment of the original debt for one, two or more years. As each appeal is attended with heavy costs, however, few men care to punish themselves so much for the sake of wreaking revenge upon anybody else. In most cases the debtor will pay the debt in the earlier part of the prosecution, unless he thinks he has good reason for not doing so.