Barnard v. Field

by Supreme Court of the United States

BARNARD verʃus FIELD

R

ULE to fhew caufe why the Capias iffued in this cafe fhould not be quafhed, the Defendant being a freeholder. As the Plaintiff had delayed iffuing procefs until within three or four days of the term, he could not iffue a fummons, (which, muft be, at leaft, ten days before the return) but he had directed the Sheriff to accept the Defendant's appearance, by an indorfement on the Capias.

Heatly, in fhewing caufe againft the rule, obferved, that the words of the Act were, that a freeholder fhould not be arrefted or detained ; that it was fanctioned by an uniform practice in fimilar cafes.

Todd infifted, for the Defendant, that in no cafe, upon no terms, fhall a Capias iffue againft a freeholder, unlefs he is brought within the exception of the Act.

1788.

SHIPPEN,Preʃident. The Act of Affembly, exprefly directs that the procefs, to be iffued againft a freeholder, fhall be a Summons. Upon the writ which has iffued in this cafe, the Defendant muft be arrefted before his appearance can be accepted ; and it might hereafter be doubted, under our Act of Affembly, whether in fubmitting, even upon thofe terms, to the Capias, he has not forfeited his privilege to be fued by a Summons.

The rule made abfolute.