Barnard v. Field — 1 U.S. 348

Majority

p. 365

Barnard v. Field.

Syllabus

Primilege of freeholders.

A capias cannot issue against a freeholder, even though the plaintiff directs the sheriff to accept his appearance.

Rule to show cause why the capias issued in this case should not be quashed, the defendant being a freeholder. As the plaintiff had delayed issuing process, until within three or four days of the term, he could not issue a summons (which must be, at least, ten days before the return), but he had directed the sheriff to accept the defendant’s appearance, by an in-dorsement on the capias.

Heatly, in showing cause against the rule,

observed, that the words of the act were, that a freeholder should not be arrested or detained ; that in the mode here adopted, there had been no detention; and that it was sanctioned by an uniform practice in similar cases.

Tod insisted, for the defendant,

that in no case, upon no terms, shall a capias issue against a freeholder, unless he is brought within the exceptions of the act.

The act of assembly expressly directs that pg.. the process to be issued against a freeholder, shall be a summons. [*349 Upon the writ which has issued in this ease, the defendant must be arrested, before his appearance can be accepted; and it might hereafter be doubted, under our act of assembly, whether in submitting, even upon those terms, to the capias, he has not forfeited his privilege to be sued by a summons.

The rule made absolute.^[1]

(b) (b) Notwithstanding the decision in this case, writs of capias are frequently issued against freeholders, with directions to the sheriff to accept the defendant’s appearance ; and the practice seems to be in some measure countenanced by the rules of the supreme court, and of the district court, which direct the mode of proceeding, when the writ ia indorsed “ no bail required.”