#### The People ex rel. Matthew N. Escott v. John Hoffman.

Filed at Springfield January 28, 1881.

1. Writ—construed as to date. In issuing a capias ad respondendum in 1880 the clerk used a printed blank in use prior to that year, in which the figures 187— were printed. When the clerk filled up the blank he drew his pen over the figure 7 and added the two figures 80, leaving, however, the figure 7 still legible: Held, that the writ was to be regarded as dated in 1880 and not in 18780, and, therefore, was not void.

2. Bail—statute construed. The words capias ad satisfaciendum, in section 5 of the chapter relating to judgments, decrees and executions, which provides that no execution shall issue against the body except in certain cases, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum, as provided by law, etc., are construed to mean capias ad respondendum, that being the evident intention of the legislature.

3. Construction oí statutes—disregarding the letter of the statute. Statutes must be interpreted according to the intent and meaning, and not always according to the letter. A thing within the intention is within the statute, though not within the letter; and a thing within the letter is not within the statute unless within the intention. It is sufficient to warrant a departure from the words of a statute, that to follow them would lead to an absurd consequence.

This was an application in this court, by Matthew N. Escott, for a discharge on writ of habeas corpus against John Hoffman, sheriff of Cook county.

Mr. Benjamin F. Swafford, for the petitioner. .

Messrs. Isham & Lincoln, for the respondent.

Mr. Justice Craig

delivered the opinion of the Court:

This was a petition for a writ of habeas corpus, brought by Matthew H. Escott, who was imprisoned by Jolpi Hoffman, sheriff of Cook county, by virtue of a writ of capias ad satisfaciendum issued out of the Superior Court of Cook *235comity. It is contended that the writ of capias ad respondendum, upon which the petitioner was in the first instance arrested, is void, for the reason that the Avrit Avas dated April 10th, “18780,” and, being void, all subsequent proceedings in the case must fall Avith the void Avrit. Upon an inspection of the original Avrit, on the’hearing, Ave do not regard the point well taken. The blank used by the clerk in issuing the Avrit Avas one Avhieh had been printed for use prior to 1880, and, therefore, the three figures “187” Avere printed therein, and Avhen the clerk filled up the blank he drew his pen over the figure “7” and added the two figures “ 80,” leaving, hoAvever, the figure 7 still visible; but it is so apparent that the figure 7 Avas erased by the clerk that we can not hold that the writ Avas dated April 10th, 18780, but, on the ocher hand, the writ shows'plain enough that it Avas dated April 10th, 1880.

The judgment upon which the capias issued in this case Avas rendered in an action of assumpsit, recovered under a declaration containing only the common counts. Ho affidavit was filed upon which to base a capias after the judgment was rendered, but the capias ad satisfaciendum, upon which the petitioner was held after the judgment was recovered, was issued under and by virtue of section 5, chapter 77, It. S. 1874, page 622. And it is contended by relator that the capias under Avhieh he Avas held was illegal, because he was not originally arrested under a capias ad satisfaciendum, as required by the section of the statute supra.

Section 5 of the statute is as follows: “Ho execution shall issue against the body of the defendant except when the judgment shall have been obtained for a tort committed by, such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum, as provided by law, or he shall refuse .to deliver up his estate for the benefit of his creditors.”

If this section of the statute is to receive a literal construction, then- the position of the relator is correct, but if, *236on the other hand, the statute is to be construed in such a wav as to give it an intelligent meaning, such as' will make common sense, then his position can not be maintained.

A capias ad satisfaciendum is defined to be a judicial writ of execution, which issues out on the record of a judgment. And by the writ the sheriff is commanded to take the body of the defendant in execution, and him safely to keep, so that he have his body in court at the return of the writ to satisfy the plaintiff his debt and damages. Jacob’s Law Dictionary, vol. 1, page 394. There is no such thing known to the law as a defendant being held to bail under a capias of this character; but, on the other hand, it may be regarded as the final process, which imprisons until the judgment is discharged. When the legislature, therefore, said that no execution shall issue against1 the body of the defendant * * * unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum, that body did not mean what it said, nor did it intend to say Avhat it did. But the legislature evidently intended to say, unless the defendant shall have been held to bail upon a Avrit of capias ad respondendum. A capias of this character is a Avrit commanding the sheriff to take the body of the defendant, if he may be found in his bailiwick or county, and him safely keep, so that he may have him in court on the day of the return to answer to the plaintiff of a plea of debt, trespass, etc., as the case may be. Jacob’s LaAV Dictionary, ato1. 1, page 392. This construction of the statute renders it consistent, harmonious and intelligent, but should it be construed literally as it reads,then no intelligent meaning can be gathered from it. In the construction of this statute Avould a court be justified in rejecting one word and inserting another? In Potter’s Dwarris on Statutes, which is regarded as good authority, page 144, it is said : Statutes must be interpreted according to the intent and meaning, and not ahvays according to the letter. A thing Avithin the intention is Avithin the statute, though not within the letter; and a thing Avithin the letter is not within the *237statute unless within the intention. In Walker v. The City of Springfield, 94 Ill. 364, it was held, that when it becomes necessary to reject one of two words in a statute and to substitute another, to give force to the meaning of the law, it should be that which best effectuates the legislative intention, and the courts should look to the object in view of the law makers. In County of Perry v. County of Jefferson, 94 Ill. 214, the letter of a statute was disregarded, and the intent followed and allowed to prevail, to obviate an absurd result, and it was there expressly held that it was sufficient authority to warrant a departure from the words of a statute, .when to follow them would lead to an absurd consequence. Under the authorities cited, and also upon principle, we are of opinion that in the construction of the section of the statute supra the words ad satisfaciendum should be rejected, and the words ad respondendum should be inserted in their stead.

The .relator will be remanded into the custody of the sheriff of Cook county.

Prisoner remanded.