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Alexander's British statutes in force in Maryland. 2d ed., 1912
Volume 194, Page 235   View pdf image (33K)
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25 E. 3, STAT. 6, CAP. 17
Chattels, and taking of Beasts
bf Writ of Capias, and by Pro-
cess of Esigend by the Sheriff's
Return, as is used in a Writ of
Accompt.
, PROCESS OF CAPIAS. 335
des chateux & en prises des
avers par brief de Capias &
par proces dexigend par re-
tourn de viscount sicome est
usee en brief dacompt.

 
21 H. 6, f. 42. 30 Ed. 3, f. 9. 7 Ed. 4, f. 9. Fitz. Process, 72, 115, 121,
416. Regist. 81, &c. 2 Bulstr. 63. 1 Salk. 18. Rast. 149. 2 Leon. 85.
This Statute was in force so far as it gave the writ of capias in debt
and detinue, and the capias in withernam in replevin, but not as to out-
lawry. In the two former cases it is now abolished, see Code, Art. 75,
sec. 84.1 The Act of 1856, ch. 112, sec. 20, abolished the alias and pluries
writs of replevin and the capias in withernam.2 But this part of that Act
is itself repealed by the Code. Formerly when a withernam went and
the goods of the defendant could not be found, a capias ad respondenum
issued against him, on which he was arrested and confined until he found
security to deliver up the property and paid a fine for his contempt. This
of course is abolished also.
In Swann v. Shemwell, 2 H. & G. 283, the Court of Appeals said that
the capias in withernam was not a proceeding in the replevin, but as a
punishment on the taker or distrainor of the goods mentioned in the re-
plevin for his improper conduct in putting them out of the way, so that
the replevin cannot be proceeded in. If the defendant before the return
of the withernam appears to the writ of replevin, and offers to plead now
cepit, it will stay the withernam, as the defendant is not concluded by the
return of an elongavit, the only return the sheriff can make where the
goods cannot be found; the sheriff's being unable to find them not being,
of itself, such proof that they were eloigned by the defendant, (which
could not be unless he also took them,) as to subject him to the irreplevi-
able distress by withernam, except when he holds out and will not appear
to the writ of replevin to show that he did not take them, &c.
1 Code 1911, Art. 75, sec. 144 (as now amended).
2 Evans' Practice, 109 et seq.; Poe's Practice, secs. 426, 436.

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Alexander's British statutes in force in Maryland. 2d ed., 1912
Volume 194, Page 235   View pdf image (33K)
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