II. As to an arrest 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 11th and 12th 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.
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 persons are concerned in pursuing felons, and such as have dangerously wounded another.
The remedy for a wrongful arrest is by an action for false imprisonment. (R. M.—M.)
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 judicatures. 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 process; 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 fuga. Imprisonment of old followed on ecclesiastical cursing, and by fiction of law in later times it was not the creditor's remedy, but the punishment of a refractory 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. In 1835 imprisonment for debts not exceeding a hundred pounds Scots or £8, 6s. 8d. was abolished. (J. H. B.)