Crider v. Hammel

1 Tapp. Rep. 49

Opinion

President.

The words of the statute are, that “ in case where the plaintiff is entitled to special bail as a matter of course, the first process shall be a capias ad respondendum, and shall be executed as hereafter directed.” Neither in this part of the statute, nor in the subsequent direction, as to the manner of executing a capias, is anything said as to the time when it may be issued or made returnable; and except the provision that “ all writs and process shall be dated on the day on which the same may issue,” I do not find anything in the statute, at all relating to this case, I know of no reason why a capias should not be issuable at all times; but it is said that the statute provides that “ it shall be the duty of the sheriff, etc., to' return his writs of capias ad respondendum, af'' the time and place therein mentioned;” therefore a particular day must be mentioned,

a writ issued in vacation, and made returnable at tbe “ next term” of the court, has a time for its return “ mentioned therein,” and why has not a writ issued in term time, and returnable, as this is, “to the court of common pleas now sitting” ? All that the law seems to require, is a certain time for the return, and it 'appears that here is sufficient certainty; beside, I think the practice a convenient one. — Motion overruled.