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. As to an arrest 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, since the 1st and 2d Vict., c. 110, no longer allowable, except under special circumstances and under the authority of a judge's order. Such order may be obtained on an affidavit to the satisfaction of the judge that the defendant is about to leave the country.
A judgment creditor may arrest his debtor under a writ of capias ad satisfaciendum, but since the 7th and 8th Vict., c. 96, the debt must exceed £20, exclusive of costs; and if the debtor does not make satisfaction he must remain in custody, until discharged under the acts for the relief of insolvent debtors.
The following persons are privileged from arrest: 1st, Peers of the realm; members of parliament, not only when the house is sitting, but for such a period before the first meeting and after the dissolution of a parliament as may enable them conveniently to come from and return to any part of the kingdom, and also for 40 days after every prorogation, and 40 days before the next appointed meeting. 2d, Peeres by birth; peers of Scotland; peeres by marriage; Irish peers; members of convocation actually attending thereon (8th Henry VI., c. 1). 3d, Bishops; ambassadors, or the domestic servant of an ambassador, really and bona fide acting in that capacity (7th Anne, c. 12); the Queen's servants, marshal, &c. 4th, Attorneys, witnesses subpoenaed, suitors, and all other persons, while necessarily attending the courts of justice, or going to or from the same (eundo, morando, et redeundo). 5th, Clergymen, performing divine service, and not merely staying in the church with a fraudulent design (50th Edward III., c. 5, and 1st Richard II., c. 16, as amended by 9th Geo. IV., c. 31).
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 or surety of the peace."
There are now no longer any places where persons are privileged from arrest, such as the Mint, Savoy, Whitefriars, &c., on the ground of their being ancient palaces. See statutes 8th and 9th Will. III., c. 27, § 15; 9th Geo. I.,
c. 28, § 1; 11th Geo. I., c. 22; as amended by 1st Geo. IV., c. 116.
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 (29th Car. II., c. 7); but it may be made in the night as well as in the day.