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When to be returned, &c.

The difference between the names, however, must be a material one; for when there is an inaccuracy in the spelling, so that the name is still idem sonans, the rule does not apply.51

But an appearance by the defendant in the suit, either by his wrong name or by his right, without pleading in abatement, will render him liable to be taken on the execution, by the wrong name.5 52

If there be a well grounded question, as to the identity of the defendant, the plaintiff is bound, as in the levy of property, upon demand, to point him out, and to indemnify the officer against the consequences of a mistake.53

If there be several persons of precisely the same name in the county, and the officer be unable, by any means, to ascertain which is the defendant named in the writ, the safest return for him to make would be, that he did not know upon whom to serve it, for a return of "not found," would be false.54

SEC. IX. RETURN OF, AND FORMS OF RETURNS TO, A CAPIAS AD RESPON

DENDUM.

The capias must be returned at the time and place mentioned in it.55 The consequences of neglect in this respect, will be hereafter stated.56

The statute57 requires the officer to execute the capias by taking the body of the defendant or defendants, and in such case, to return on the writ, "I have taken the body," or "I have taken the bodies," as the case may be; and to indorse on the capias the name of the bail by him taken, and deliver a copy of the bail bond to the clerk of the court at or before the return day of the same writ.

When the capias is against two or more defendants, the officer must serve the capias on so many of the defendants as shall be found in his county, and must indorse on the writ the names of such defendants as have been served with the same, and also indorse the names of such as have not been served, and specify that they are not found in his county.58

The plaintiff may proceed against those who are served, in like manner, so far as regards their appearance, as if they were the only parties originally sued, except in this, that he must suggest in his declaration the above mentioned return of the officer;59 and he may, after judgment, proceed by scire facias to make the defendants, not served, parties to the judgment, as will be more particularly stated hereafter.60

(51) 2 Taunt. 401.

(52) 2 Stra. 1218; 1 B. & P.615.

(53) 2 Inst. 193. 453; Bac. Ab. Sheriff, N. 2; 2 Pick. 285; 5 Pick. 380.

(54) Dalt. Shff. 112, 113; eit. Howe's Prac. 151. (55) Stat. 649, §13.

(56) See XIII, Section of this Chapter.

(57) Stat. 650, §15.

(58) Stat. 651, §18.
(59) Stat. 658, §52.

(60) Stat. 658, §53.

Forms thereof.

FORMS OF RETURNS TO A CAPIAS AD RESPONDENDUM.

1. Not found.

The within named C. D. is not to be found in my county.

A. S., Sheriff of

county.

2. Defendant taken and bail given.

I have taken the body of the within named C. D. The names of his bail are A. R. and K. T.; and I herewith return a copy of the bail bond.23 Fees:

A. S., Sheriff of
By C. R., his Deputy.

county.

3. Defendant taken and in jail.

I have taken the body of the within named C. D., whose body remains in prison under my custody.

Fees:

A. S., Sheriff of

county.

4. Not found as to two; one taken and bail given.

I have taken the body of the within named C. D. The names of his bail are A. R. and K. T.; and I herewith return a copy of the bail bond. The within named E. F. and G. F., the other defendants, are not to be found in my county. Fees:

A. S., Sheriff of

county.

5. Defendant rescued.

On the day of

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at in my county, I took and arrested the within named C. D., according to the exigency of the within writ, and safely kept him in my custody until I. K., of

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and divers other persons, to me aforesaid, with force and arms,

assaulted and ill treated me, and then and there rescued the said C. D. out of my custody; and the said C. D., then and there, with force and arms, rescued himself, and escaped out of my custody; and afterwards the said C. D. is not to be found in my county.

Fees:

A. S., Sheriff of

county.

(23) The officer will indorse on the copy of the bail bond taken by me in the case therein menbail bond returned by him to the clerk, a certificate tioned." County.

A. S., Sheriff of

of its being a copy, thus: "A true copy of the

Forms thereof.

county, ss.

On the

6. Defendant rescued himself.

· day of ——, A. D. —, in said county, I took the body of C. D., in the within writ named, and the same kept until afterwards, to wit, on the day of ——, A. D. in said county, with force and arms, the said C. D. rescued himself out of my custody; and afterwards, and before the return of said writ, the said C. D. was not to be found in my county.24

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9

Fees:

A. S., Sheriff of

county.

7. Defendant discharged under Insolvent Debtor's Act.

-

-

On the day of --, A. D. I took the body of the within named C. D.; and thereupon, at his request, I took him before the Commissioner of Insolvents of — county, and the said C. D. then produced to me the certificate of said commissioner, of which the following is a copy: [Here copy the certificate of the commissioner.] Whereupon I discharged the said C. D. from custody. Fees: A. S., Sheriff of

county.

8. The defendant sick in prison.

I have taken the body of the within named C. D., who remains in prison, under my custody, so weak and infirm, that, without great peril and danger of his life, I cannot have his body before the court within named, at the day and place within contained, as within I am commanded.

Fees:

A. S., Sheriff of

-county.

On the

9. Defendant too sick to arrest.

day of

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I proceeded to the dwelling house of the within named C. D., where the said C. D. then was, for the purpose of arresting him; [and then there found the said C. D. insane, and in a desperate and raving state, so that he could not be taken or removed without danger to his life,] and the within named C. D. then was, and still remains, so sick, weak and infirm, that, without peril and danger of his life, I cannot have his body before the court within named, at the day and place within contained, as within I am commanded.25

Fees:

(21) 3 Eng. C. L. Rep. 179; Yelv. 51; 2 T. R. 156.

A. S., Sheriff of

county.

(25) The above return would be good if that part which is in brackets were omitted, ante, p. 147.

When Alias Pluries and Testatum Capias may issue- · Proclamation.

10. The defendant privileged from arrest.

and

The within named C. D., at the time of the delivery of this writ to me, from thence hitherto continually hath been, and still is, a member of the House of Representatives of the State of Ohio; and as such member, hath, during all that time, served in the said House of Representatives; and which said House of Representatives hath been in session during all that time. Therefore, I cannot have the body of the said C. D. before the court within named, at the day and place within contained, as within I am commanded.

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11. The defendant discharged upon Habeas Corpus.

I took the within named C. D., and safely kept him; until afterwards, to wit, on, [&c.,] by virtue of a certain writ of habeas corpus, to me directed, and to this writ annexed, I conveyed the said C. D. before the honorable J. J., therein named, who, upon examination into the cause of the capture and detention of the said C. D. upon the within writ, forthwith discharged the said C. D. from his said confinement, &c., as will appear by the order of the said judge in the premises hereunto annexed. Therefore, [&c., concluding as in the preceding form.]

SEC. X. ALIAS, PLURIES AND TESTATUM CAPIAS, AND PROCLAMATION.

When the sheriff shall return any writ of capias ad respondendum, not found, as to the defendant or defendants, the plaintiff may sue out an alias or pluries capias, until the defendant or defendants shall be arrested, or testatum capias, where he or they shall have removed into another county, subsequently to the commencement of the suit.25 If the defendant, at the time of suing out such process, have a residence in, or be an inhabitant of the county in which such process was sued out, the court will, on motion of the plaintiff, order a proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him. This proclamation must be published three successive days of the court, (if the court so long remain in session,) at the door of the court house of the county to which the last process was returned, and also three times in some newspaper published in the state; and if the defendant fail to appear, pursuant to such proclamation, the same proceedings may be had, and the same judgment given, as in other cases of default.26

The forms of journal entries, &c., when proclamation is made, have been already given.27

(25) Stat. 650, §16.

(26) Stat. 650, §17.

(27) See ante p. 117.

Forms thereof-Bail to the Sheriff.

An alias capias ad respondendum is in the common form hereinbefore given,28 except, that, instead of saying "We command you,” &c., say, "We command you, as heretofore we have commanded you," &c. A pluries capias is in the same form, except that, instead of the words, "We command you," say, "We command you, as often heretofore we have commanded you," &c.

FORM OF TESTATUM CAPIAS.

[SEAL.] The State of Ohio,

county, ss.

— day of, &c., to answer unto A. B. dollars; and our sheriff of Hamilton

To the Sheriff of Franklin county, GREETING: Whereas, we lately commanded our sheriff of Hamilton county to take C. D., if he might be found in his bailiwick, and him safely keep, so that he should have his body before our Court of Common Pleas of said Hamilton county, at the court house in said county, on the in a plea of [Assumpsit,] damages county hath thereon returned, that the said C. D. was not to be found in his bailiwick, upon which, on the part of the said A. B. before the said Court of Common Pleas of Hamilton county, it is sufficiently testified, that the said C. D., after the suing out of the said writ of capias, did remove into the county of Franklin aforesaid; therefore, we command you to take the said C. D., if he be found in your bailiwick, and him safely keep, so that you have his body before our said Court of Common Pleas of Hamilton county, at the court house in said county, on the first day of their next term, to answer unto the said A. B., in the same plea of [Assumpsit,] damages - dollars: and have you then. there this writ.

WITNESS, &c. [Conclude as in the original capias, ante p. 145, and indorse the same as directed, ante p. 145.]

SEC. XI. THE DISCHArge of the defendant oN BAIL, AND WITHOUT BAIL, AND HIS ESCAPE, RESCUE AND IMPRISONMENT.

After the defendant is arrested upon a capias, he is either discharged upon giving a bail bond to the sheriff; or, upon giving security to the plaintiff for his appearance; or, without any bail bond or security; or he escapes; or is rescued; or is lodged in the prison of the county, &c. These several subjects will now be considered.

1. Bail bond to the Sheriff. The defendant is entitled to be discharged from arrest, upon giving bail to the sheriff for his appearance. The statute does not prescribe the number, residence, or qualification of bail, except that the bail be sufficient.1

(28) See ante p. 144.

(1) Stat. 650, §15; 653, §27.

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