“Vicontiel” Writs & Writs of Capias – Directed to the Sheriff

Definition of Vicontiel:

“adj. (17c.) 1. Of, relating to, or involving a viscount. 2. Of, relating to, or involving a sheriff. – Also termed visountiel. – Also termed vice-comital.[1]

Vicontiel Writ:

(18c.) Hist. A writ triable in the county court.  In the 13th-14th centuries, civil litigation could originate in the county court either by oral plaint or by a writ from the Chancery ordering the sheriff to do justice in a case.  The writ that began such a proceeding was called vicontiel because it was addressed to the sheriff.”

     George Crompton’s Practice Common-Placed: Rules and Cases of Practice in the Courts of King’s Bench and Common Pleas:

     “Vicontiel writs were of two sorts, the one founded on Torts, the other on Contracts. The vicontiel writs adapted for torts, were those of trespass, replegiari facias (aka “Writ of Replevin”), nuisance, & others of the like nature; & those of matters of contract were called writs of justice, which was a command to the sheriff to do justice between the parties….”[2]

See also Writ of Replevin aka replegiari facias.

Writ of ad quad damnum:

[Latin ‘to what damage’] Hist. A writ directing the sheriff to inquire of jurors under oath to what damage a grand (as of a fair, market, liberty, or other franchise) would be to various people if the king were to make the grant. The writ
was issuable from the court of chancery. — Also termed ad quad damnum.”

Writ of Capias:

[Latin ‘that you take’] (15c.) Any of various types of writs that require an officer to take a named defendant into custody.  A capias is often issued when a respondent fails to appear or when an obligor has failed to pay child support. Also termed capias; body execution.

Capias clause:

(1844) The language in a writ authorizing an officer to arrest a person charged with a crime or to summon a person to answer a civil suit.  Formerly, the standard wording of the clause for an arrest was “and for want thereof to take the body of said defendant (if he may be found in your precinct) and him safely keep so that you may have him before our Justices.” The language would be revised for a summons: “and to summon the defendant (if he may be found in your precinct) to appear before our Justices.

Types of Writs of Capias:

  • Capias ad audiendum judicium: “[Latin ‘that you take to hear the judgment’] (18c.) In a misdemeanor case, a writ issued to bring the defendant to hear the judgment to be imposed after having failed to appear.”
  • Capias ad computandum: “[Latin ‘that you take for computation’] (17c.) Hist. A writ issued when a debtor has failed to appear & make account after losing in an action of account render.”
    • Account Render: “A legal action to compel a defendant to account for & pay over money owed to the plaintiff but held by the defendant (often the plaintiff’s agent); ACCOUNTING FOR PROFITS. – Also termed account; action of account.
  • Capias ad faciendum: “(17c.) Hist. A writ used to enforce a creditor’s judgment against a debtor by authorizing the debtor’s arrest & imprisonment.”
    • Re: “Debtor’s Prisons”: Within the United States, people can be held in contempt of court & jailed after willful non-payment of child support, garnishments, confiscations, fines, or back taxes.[3]  Bearden v. Georgia, which held that a judge must first consider whether the defendant has the ability to pay but “willfully” refuses.[4]
  • Writ of Capias ad respondendum: [Latin “that you take to answer”] (17c) A writ commanding the sheriff to take the defendant into custody to ensure that the defendant will appear in court. -Abbr. ca. resp.; ca. re; ca. res; ca. ad re.

  • Writ of Capias ad satisfaciendum: [Latin “that you take to‘satisfy”] (16c) Hist. A postjudgment writ commanding the sheriff to imprison the defendant until the judgment is satisfied. -Abbr. ca. 5a.   

    Excerpt from Alexander M. Burrill’s Treatise on the Practice of the Supreme Court of the State of New York:

     “The capias ad satisfaciendum (termed for brevity the ca. 5a.,) is a judicial writ, issuing out of the court in which the judgment was recovered, directed to the sheriff of the county into which it is issued, commanding him to take (capias) the party named in it, if he may be found in his county, or bailiwick, so that he may have his body before the justices of the court, at the return day, to satisfy (ad satisfaciendum) the party issuing the
writ, of the amount of the judgment, &c.; concluding with the usual clause of attestation, or teste.“[5]

  • Capias extendifacias: [Latin “take for extending”] (18c) Hist. A writ of execution
    issued against one who is indebted to the Crown, commanding the sheriff to arrest the
    debtor.
  • Capias in withernam:[Law Latin “taking again”] (17c) A writ authorizing the sheriff
    to seize the goods or cattle of a wrongful dis« trainor. -Also termed writ of withernam.
    See WITHERNAM.
  • Capias pro fine: “[Latin ‘that you take for the fine’] (17c.) A writ for the arrest of a
    person who had not paid an imposed fine. Also termed capiatur projine. .
  • Capias utlagatum:[Latin “you take the outlaw”] (16c) A writ commanding the arrest of an outlawed person.”

References:

[1]: All definitions from: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: 1 George Crompton, Practice Common-Placed: Rules and Cases of Practice in the Courts of King’s Bench and Common Pleas vii-viii (3d ed. 1787)22

[3]: Writer, Editorial (5 April 2009). “The New Debtors’ Prisons”. The New York Times. United States.

[4]: Supreme Court Ruling Not Enough To Prevent Debtors Prisons” by Joseph Shapiro, May 21, 2014:
http://www.npr.org/2014/05/21/313118629/supreme-court-ruling-not-enough-to-prevent-debtors-prisons

[5]: 1 Alexander M. Burrill, Treatise on the Practice of the Supreme Court of the State of New York 307-08 (2d ed. 1846)

Learn the System