1902 Encyclopedia > Arrest

Arrest




ARREST (from the French arrester, arrêter, to stop or stay) is the restraint of a man's person, for the purpose of compelling him to be obedient to the law, and is defined to be the execution of the command of some court of record or officer of justice.
Arrests are either in civil or in criminal cases.

I. In Civil Cases.—The arrest must be by virtue of a precept or order out of some court, and must be effected by corporal seizing or touching the defendant's body, or as directed by the writ, capias et attachias, take and catch hold of. And if the defendant make his escape it is a rescous, or rescue, and attachment may be had against him, and the bailiff may then justify the breaking open of the house in which he is, to carry him away.

Arrests on mesne process, before judgment obtained, are abolished by 32 and 33 Vict. c. 62, § 6 ; an exception, however, is made in cases in which the plaintiff proves, at any time before final judgment, by evidence on oath to the satisfaction of a judge of one of the superior courts, that he has a good cause of action to the amount of £50, that the defendant is about to quit the country, and that his absence will materially prejudice the plaintiff in prosecuting his action. In such cases an order for arrest may be obtained till security to the amount of the claim be found.

Until a recent period a judgment creditor might arrest his debtor under a writ of capias ad satisfaciendum, but since 32 and 33 Vict. c. 62 (the Debtor's Act, 1869), imprisonment for debt has been abolished in England, except in certain cases, and in these the period of detention must not exceed one year.

The following persons are privileged from arrest, viz., Ist, Members of the Royal Family and the ordinary servants of the king or queen regnant, chaplains, lords of the bedchamber, &c. This privilege does not extend to servants of a queen consort or dowager. 2d, Peers of the realm, peeresses by birth, creation, or marriage, Scotch and Irish peers and peeresses. 3d, Members of the House of Commons during the session of Parliament, and for a convenient time (forty days) before and after it. Members of Convocation appear to have the same privilege. 4th, Foreign ambassadors and their " domestics and domestic servants." Temporary privilege from arrest is enjoyed by barristers travelling on circuit, by parties, witnesses, or attorneys connected with a cause, and by clergymen whilst performing divine service.

The arrest of any privileged person is irregular ab initio, and the party may be discharged on motion. The only exception is as to indictable crimes, such as " treason, felony, and breach of the peace."

There are no longer any places where persons are privileged from arrest, such as the Mint, Savoy, Whitefriars, etc, on the ground of their being ancient palaces; but near the Palace of Holyrood, Edinburgh, a sanctuary still exists for the benefit of debtors, who resort there for such protection, and take lodgings within the precincts.

Except in cases of treason, felony, or breach of the peace, an arrest cannot be made on a Sunday, and if made it is void (29 Car. II. c. 7) ; but it may be made in the night as well as in the day.

II. In Criminal Cases.—All persons whatsoever are, without distinction, equally liable to this arrest, and any man may arrest without warrant or precept, and outer doors may be broken open for that purpose. The arrest may be made,—1st, by warrant; 2d, by an officer without warrant; 3d, by a private person without warrant; or, 4th, by a hue and cry.

1. Warrants are ordinarily granted by justices of the peace on information or complaint in writing and upon oath, and ,they must be indorsed when it is intended they should be executed in another county (see 11 and 12 Vict. c. 42). They are also granted in cases of treason or other offence affecting the Government by the Privy Council, or one of the secretaries of state, and also by the chief or other justice of the court of Queen's bench in cases of felony, misdemeanour, or indictment found, or criminal information granted in that court. Every warrant ought to spocify the offence charged, the authority under which the arrest is to be made, the person who is to execute it, and the person who is to be arrested.

2. The officers who may arrest without warrant are,—justices of the peace, for felony or breach of the peace committed in their presence ; the sheriff and the coroner in their county, for felony ; constables, for treason, felony, or breach of the peace committed in their view,—and within the metropolitan police district they have even larger powers ; and watchmen from sunset to sunrise.

3. A private person is bound to arrest for a felony committed in his presence, under penalty of fine and imprisonment.

4. The arrest by hue and cry is where officers and private per-sons are concerned, in pursuing felons, or such as have dangerously wounded others.

The remedy for a wrongful arrest is by an action for false imprisonment.

In Scotland the law of arrest in criminal procedure has a general constitutional analogy with that of England, though the practice differs with the varying character of the judicatories. Colloquially the word arrest is used in compulsory procedure for the recovery of debt; but the technical term applicable in that department is caption, and the law on the subject is generically different from that of England. There never was a practice in Scottish law corresponding with the English arrest in mesne pro-cess ; but by old custom a warrant for caption could be obtained where a creditor made oath that he had reason to believe his debtor meditated flight from the country, and the writ so issued is called a warrant against a person in meditatione fugce. Imprisonment of old followed on eccle-siastical cursing, and by fiction of law in later times it was not the creditor's remedy, but the punishment of a refrac-tory person denounced rebel for disobedience to the injunctions of the law requiring fulfilment of his obligation. The system was reformed and stripped of its cumbrous fictions by an Act of the year 1837. Although the proceedings against the person could only follow on completed process, yet, by a peculiarity of the Scottish law, documents executed with certain formalities, and by special-statute bills and promissory-notes, can be registered in the records of a court for execution against the person as if they were judgments of the court.







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