J. N., of

Form of statement of cause under the non-imprisonment acts.

maketh oath and saith, that C. D. is justly and truly indebted dollars, for goods sold and delivered by

to this deponent in the sum of

this deponent and one W. N., in his lifetime, now deceased, and whom this deponent hath survived, to the said C. D., and at his request.

J. N. of

By executor or administrator. executor of the last will and testament of A. B., deceased, maketh oath and saith, that C. D. is justly and truly indebted to this deponent, as executor as aforesaid, in the sum of dollars, for goods sold and delivered by the said A. B., in his lifetime, to the said C. D., and at his request, as appears by the books of the said A. B. and as this deponent verily believes.

J. N., of - executor of the last will and testament of E. F., deceased, who in his lifetime was executor of the last will and testament of A. B. deceased, maketh oath and saith, that C. D. is justly and truly indebted to this deponent as executor as aforesaid, in the sum of dollars, for goods sold and delivered by the said A. B., in his lifetime, to the said C. D., and at his request, as appears by the books of the said A. B. and as this deponent verily believes. J. N., of -> administrator of all and singular the goods and estate which were of A. B., deceased, at the time of his death, who died intestate, maketh oath and saith, that [&c., as in the form last but one.

Form of statement of one of the eight particulars mentioned in the non-imprisonment acts as causes for issuing a capias.1

After commencing and stating the cause of action as above, proceed as follows:

And this deponent further says, that he has reason to believe, and does verily believe, that the said C. D. is about to remove his property out of the jurisdiction of the said Court of Common Pleas, and without the bounds of the State of Ohio, with intent to defraud his creditors; and that the grounds of that belief are that [Here state the particular facts and circumstances, which must of course vary in each case. They should be such facts, circumstances, threats or declarations, as establish, prima facie, that the defendant is about to remove his property to defraud creditors.]

Or,

And this deponent further says, that he has been credibly informed, and verily believes, that the said C. D. is about to dispose of his personal property to one L. M., and thereby convert the same into money, for the purpose of placing it beyond the reach of his, the said C. D.'s, creditors; and, that the said C. D. has, in fact, threatened to do so.

(1) For these eight particulars see ante, p. 125,6. The forms here given are taken from Yeates' Pl. & Forms, 660, which were drafted by John C.

Spencer, Esq., and are used under a statute of the State of New York, similar in its provisions to that of Ohio. See note, ante, p. 127.

Or,

Form of statement of cause under the non-imprisonment acts.

And this deponent further says, that he verily believes that the said C. D. has [property, or say, if the fact be so, rights in action,] which he fraudulently conceals; for that [Here state what property, and the particular facts and circumstances, as thus: the said C. D., on or about the day of ——, A. D.

9

9

had in hs possession, used and claimed, as his own property, a certain horse; and which said horse was, as this deponent verily believes, the property of the said C. D. That whilst the said C. D. was, at the time aforesaid, in possession, and the owner of said horse, as above stated, one R. M. obtained a judgment, before H. H., a Justice of the Peace of said County, against the said C. D., and the said C. D. then told the said R. M., that he would hide and secrete said horse, so as to prevent the same from being levied upon by virtue of any execution that might be issued upon said judgment. And this deponent further says, that on or about the day of —————, A. D. ————————, the said R. M. caused a fieri facias to be issued upon said judgment, and the said execution was, on the same day, placed in the hands of a proper officer, to wit: L. C., Constable, who made dilligent search for said horse, under said execution, and before the return day thereof, and could not find the same. And this deponent further says, that on [&c.,] he proposed to said C. D., to take said horse at a reasonable price, and credit the price on the debt due this deponent, hereinbefore mentioned, to which the said C. D. answered, that he would neither sell said horse, nor let it be sold on any execution against him; and that R. M. might catch the horse when he found him. And this deponent further says, that on the day of making his affidavit, hereinafter mentioned, he made dilligent inquiry of the neighbors of the said C. D., and was credibly informed by them, and verily believes the fact so to be, that said horse has not been seen on the premises, or in the possession of said C. D., since the said C. D. threatened, as first above mentioned, to conceal and secrete the same: but that the said C. D. still continues to fraudulently conceal the same.]

Or,

And this deponent further says, that the debt and cause of action, above set forth against the said C. D., for which suit is about to be brought, was fraudulently contracted by the said C. D., by falsely representing to this deponent, that he was a merchant in good standing, and worth a large amount, and by his bringing letters of recommendation that were false, [&c., stating the particulars.]

Or,

And this deponent further says, that he has reason to believe, and does verily believe, that the said C. D. is about to [abscond and] remove his person out of the [State of Ohio, or say, County of aforesaid,] with intent thereby to defraud his, the said C. D.'s, creditors; and that the grounds of that belief are,

Form of statement of cause under Practice Act of 1831.

[Here state the particular facts and circumstances which show prima facie, that the defendant is about to remove, and the fraudulent intent.]

Or,

And this deponent further says, that the said C. D. is not a citizen, or resident, of the State of Ohio.

The above will suffice without giving forms under each particular.

2. Forms of affidavits to hold to bail, in cases not within the operation of the non-imprisonment acts. A few forms under this head will suffice, as the forms already given can be readily modified to meet cases not within the operation of the non-imprisonment acts.

The affidavit will be annexed to the praecipe."

FORM OF AFFIDAVIT IN AN ACTION AGAINST A SHERIFF.

The above named A. B. maketh oath, and says, that C. D., late sheriff of County, is justly and truly indebted to him in the sum of five hundred dollars, over and above all discounts and payments, for so much money collected and received for this deponent, by him the said C. D., as a public officer, to wit: as sheriff of said county of ; and further this deponent saith not. [Signed,]

A. B.

Sworn to and subscribed before me, this, &c.

AGAINST AN ATTORNEY FOR NEGLECT OF DUTY.

The Court of Common Pleas,

county, ss.

The above named A. B., maketh oath, and says, that the above named C. D. is an attorney and counsellor at law of the courts of record of this State, and was employed as such by this deponent, and the said C. D. undertook and promised, [Here state the employment, as thus: to conduct the defence of a certain suit, for and on behalf of this deponent, brought against this deponent by R. M., in the Court of Common Pleas of Franklin County, Ohio.] And this deponent further says, that said C. D. did neglect [Here state the negligence, as thus: the defence of said suit as such attorney,] and did not perform his said professional duty and promise in the premises; and the said C. D. is justly and truly indebted to this deponent in the sum of two hundred dollars and upwards, over and above all discounts and payments, for damages sustained by, and justly due to this deponent, for said neglect of said C. D., in said professional employment above mentioned.

Form of allowance by court or judge.

FOR BREACH OF PROMISE TO MARRY.

Commencement as ante p. 133.

For a breach of the promise of the said C, D., to marry this deponent, made to this deponent by the said C. D., and which promise the said C. D. hath refused to perform. And further this deponent saith not.

Commencement as ante, p. 133.

IN TROVER.

for certain goods and chattels, the property of this deponent, and to the immediate possession of which he was entitled, to wit: [Here dsecribe the property;] which were of the value of dollars, and which said goods and chattels, while this deponent was the owner of the same, and entitled to the immediate possession thereof, he the said C. D., wrongfully took and converted to his own And this deponent further says, that [Here state the particular circumstances upon which you expect to procure an order of the court, or judge, for the allowance of a capias. Sce for this purpose, various forms ante p. 140

use.

to 142.

SEC. VI.

ALLOWANCE OF A CAPIAS AD RESPONDENDUM BY A COURT OR JUDGE.

In all cases in which a capias ad respondendum can be issued under the nonimprisonment acts, the interposition of the court, or judge, is unnecessary; the clerk of the court being authorised to issue the writ, upon the affidavit required by the acts, being filed.1

The only cases in which it is necessary to procure an order from a court, if in session, or judge, if in vacation, for the issuing of a capias ad respondendum, is, in general, when the action is brought for a tort, not sounding in contract, and for which an action of trespass would not lie. The exceptions to this rule have already been stated.2

FORM OF JUDGES ORDER FOR SPECIAL BAIL IN VACATION.

Let a capias issue upon the above praecipe and affidavit; and the sheriff is hereby ordered to hold the defendant to bail in

To the Clerk of

dollars.

Common Pleas, or Supreme Court.4

T. W., Judge.

FORM OF ORDER OF COURT FOR SPECIAL BAIL.

On motion of A. B., by Mr. H., his Attorney, and upon affidavit and praecipe filed, the court order a capias ad respondendum to issue against C. D., at the suit of A. B., upon said praecipe and affidavit, and that the said C. D. be held to bail, by the sheriff, in

dollars.

(1) Stat. 647, §3.

(2) See ante, p. 127, 132.

(4) Wil. Pr. 12.

Issuing and form thereof.

The Practice Act of 1831, in force when the non-imprisonment acts were passed, provides, that in all actions in which the plaintiff is entitled to special bail, as of course, he may sue out a summons instead of a capias ad responden dum; and on the return of such summons, the court, on motion, may order the defendant to give special bail, in the same manner as if a capias ad respondendum had been the first process.4

SEC. VII. THE ISSUING AND FORM OF THE CAPIAS AD RESPONDENDUM.

Upon filing the praecipe and an affidavit, establishing one of the eight particulars under the non-imprisonment acts, the clerk of the court will issue a capias. The cases in which an order of the court, or judge, is necessary, before issuing a capias, have been already pointed out in the preceding section.

It is unnecessary to recite in the writ, the fact, that an affidavit has been filed, or the grounds which authorize the issuing of the capias. No such recital was required in actions of trover, slander, &c., under the English, New York or Ohio practice; although no capias could, or can now issue in such cases, without the order of the court, or a judge.

The cases in which a capias may be issued from one county, to the sheriff of another county, has already been stated.5

A capias issued in vacation, must be returnable to the next term of the court: if a term intervene between the date and return, the writ is irregular. It is usually made returnable either forthwith, or on the first day of the next term. The capias may be in the form following:

FORM OF A CAPIAS AD RESPONDENDUM.

[SEAL.] The State of Ohio,

county, ss.

To the sheriff of said county, GREETING: We command you, to take C. D., if he may be found in your bailiwick, and him safely keep, so that you have his body before our [Supreme Court, or Court of Common Pleas,] of the county aforesaid, at the court house in said county, on the first day of their next term, to answer unto A. B, in a plea of— [Here name the action stated in the praecipe, and also the amount of debt and damages, or damages only, according to the praecipe, as thus: Assumpsit, Damages five hundred dollars; or thus: Debt, for five hundred dollars; Damages, fifty dollars:] and have you then there this writ.

(4) Stat. 649, §12.

(5) Ante, p. 110; Stat. 652, $23; 650, §16. (6) 2 Wils. 117; 3 Wend. 303; 3 Blackf. 225; 4 Cowen 548; Salk. 700; 12 Wend. 218; Com. Dig. Pleader. The statute of this State does not provide for the time when a capias shall be made returnable.

with, must be returned the day before the court adjourns sine die, so as to give the defendant time to enter special bail during the term, &c. The question may be embarrassed with difficulties, which cannot be anticipated in the closet, but the practice has prevailed to some extent, of issuing, serving and returning a capias on the last day of

(7) Quere-Whether a capias, returnable forth- term.