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Writs of arrest (capias ad respondendum or capias) were the usual means of commencing an action, by bringing a defendant into the jurisdiction of the Supreme Court. For a discussion of these writs, see J0028 Writs of Capias (Geneva) below. Writs of capias returned to the clerks' offices at Albany and Utica were filed with the writs of execution, which were issued after judgment. The Albany and Utica series of writs of arrest and execution are described on p. 33 ff.
Original writs were employed to initiate certain actions involving title to real property or in actions where the defendant was a corporation (i.e. a fictitious person which could not be physically arrested on a writ of capias). There were two general types of original writs in use: writs of summons and writs of attachment. In civil actions of debt, covenant, replevin, dower, etc., the original writ was a summons. In quasi-criminal actions of trespass, case, etc., the original writ was an attachment, which ordered the sheriff to seize the defendant's property. Use of the writ of attachment (except for contempt of court) was abolished in 1817.
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| J0168 |
Precipes and Original Writs (Albany or Utica), 1815-25. .8 cu. ft.
Original writs ordered a sheriff to summon or attach a defendant to appear in court. The writ contains a brief statement of the cause of action and a demand for payment of debt or damages. On the dorso of the writ is the sheriff's certificate that he has summoned or attached the defendant. Examples of both types of writ (summons and attachment) are found in this series. There are also a few precipes (plaintiffs instructions to a clerk to prepare an original writ). All the documents in this series concern promissory notes given by banks; the plaintiff is the creditor or an assignee. The following banks are represented: Manhattan Company, City Bank of New York, Ontario Bank, Bank of Chenango, and the Mechanics' Bank in the City of New York. The documents are unarranged, and it is uncertain whether they were originally filed in Albany or Utica.
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| J1026 |
Precipes and Writs of Summons (Geneva), 1831-42. .8 cu. ft.
This series consists of original writs ordering a sheriff to summon a defendant to appear in court. The plaintiff's demand is stated and the sheriff's certificate of service appears on the dorso. Also found are precipes for the writs of summons. Many of the actions involve promissory notes given by banking corporations, but there are also cases involving railroads, churches, schools, and manufacturing and insurance companies. The manner of proceeding in actions against corporations was specified in the Revised Statutes of 1829, Part III, Chap. 8, Title 4, Art. 1. The documents in this series are unarranged and unindexed.
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| J5013 |
Writs of Dower (Utica), 1824-29. .4 cu. ft.
A writ of dower ordered a sheriff to command the tenant of real estate to render unto the widow of its previous owner the dower right due to her (the income from one third of her husband's property) and to summon the tenant to appear before the court if he refuse to do so. On the dorso of the writ is the sheriffs certificate of service upon the tenant and of proclamation of the summons at the door of the church nearest to the disputed property. The names of the two summoners are stated. The writ is usually a writ of dower unde nil habet, "from which she has nothing," i.e., no part of her dower was delivered to her within the forty-day limit specified by law. The seldom-used writ of right of dower commanded a tenant to deliver the remainder of the dower, part having been delivered. Besides these writs, this series includes one example each of a writ of grand cape ordering a sheriff to seize the dower share that the tenant has refused to yield up; and of a report of commissioners in admeasurement of dower, which describes the premises to be delivered to the widow.
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| J0028 |
Writs of Capias ad Respondendum (Geneva), 1829-1847. 9.9 cu. ft.
The writ of capias ad respondendum (capias) ordered the sheriff to arrest a defendant in a civil case for appearance in court to answer the plaintiff's declaration. The writ states the name of the defendant; the court term when he was required to appear; the name of the plaintiff; the form of action (in non-bailable cases this was a fictitious trespass); and the names of the justice, clerk, and plaintiff's attorney. The writ does not contain a statement
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Writ of Capias ad Respondendum, 1840. This writ orders the Cayuga County sheriff to arrest the defendant, Francis D. Miner, for appearances before the Supreme Court of Judicature during its May 1840 term in New York City. (In fact, this "appearance" was a fiction, since the subsequent pleadings were exchanged between the parties and filed with the court clerk by mail.) The plaintiff, William H. Miner, brought an action of trespass for an alleged slander. The reverse of the writ indicates that the deputy sheriff arrested the defendant and that bail was set at $500. (Series J0028 Writs of Capias ad Respondendum Geneva.)
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of the plaintiff's clam. On the dorso of the writ is the sheriff's certificate of service (cepi corpus, "I seized the body") or nonservice (non est inventus, "he was not found"), and the amount of bail, if any. When bail was not required there is an endorsement by the defendant agreeing to appear in court. The writs are arranged chronologically by court term. Those dated prior to 1837 are bundled by county of residence of the defendants; those dated 1837 through 1847 are arranged roughly alphabetically by name of plaintiff's attorney. A few scattered writs of execution (fieri facias or capias ad satisfaciendum) are found in the early years of this series. See J0025 Writs of Execution (Geneva). Returns of writs of capias ad respondendum are entered in J0226 Registers of Returns of Writs (by County). See also J1167 Common Rule Books for Returns of Writs of Capias (Geneva).
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| J0030 |
Writs of Replevin (Geneva), 1838-47. .8 cu. ft.
A plaintiff obtained a writ of replevin to recover physical possession of movable goods that had been unlawfully taken by the defendant. The writ, addressed to the sheriff of the county where the goods lay, names the parties to the action, describes the goods, and commands the sheriff to deliver the goods to the plaintiff and to arrest the defendant for appearance in court. Subscribed or attached to the writ is the plaintiffs affidavit that the property described has not been seized for any tax or fine, or for execution of a judgment or an attachment. The manner of execution of the writ is stated by the sheriff on the dorso.
Accompanying the writ and affidavit is the bond of the plaintiff and two sureties made out to the sheriff, promising to pay the judgment if it be awarded to the defendant. A few files contain the inquisition of a jury as to the value of the goods in dispute. Upon return of the writ of replevin, the case proceeded in the same manner as any other civil action. The writs in this series are bundled by year but are unarranged beyond that. There is no index.
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