in English Law, (from the French word arreste, to stop or stay), is the restraint of a man's person, obliging him to be obedient to the law; and is defined to be the execution of the command of some court of record or office of justice. An arrest is the beginning of imprisonment; where a man is first taken, and restrained of his liberty, by power or colour of a lawful warrant.
Arrests are either in civil or criminal cases.
1. An arrest in a civil cause is defined to be the apprehending or restraining one's person by process in execution of the command of some court.
An arrest must be by corporal seizing or touching the defender's body; after which the bailiff may justify breaking open the house in which he is, to take him: otherwise he has no such power; but must watch his opportunity to arrest him. For every man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence. Which principle is carried so far in the civil law, that, for the most part, not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls. Peers of the realm, members of parliament, and corporations, are privileged from arrests; and of course from outlaws. And against them the process to enforce an appearance must be by summons and distresses infinite, instead of a capias. Also clerks, attorneys, and all other persons attending the courts of justice (for attorneys being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege), as being personally present in court. Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are for the time privileged from arrests, by statute 50 Edw. III. c. 5, and 1 Rich. II. c. 16.; as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses, and other persons, necessarily attending any courts of record upon business, are not to be arrested during their actual attendance, which includes the necessary coming and returning. Seamen in the king's service are privileged from arrests for debts under 20l. (1 Geo. II. c. 14. and 14 Geo. II. c. 38.) and soldiers or marines are not liable to arrests for a debt of less than 10l. (30 Geo. II. c. 6. 11.). And no arrest can be made in the king's presence, nor within the verge of his royal palace, nor in any place where the king's justices are actually sitting. The king hath moreover a special prerogative (which indeed is very seldom exerted), that he may by his writ of protection privilege a defendant from all personal, and many real suits, for one year at a time, and no longer; in respect of his being engaged in his service out of the realm. And the king also by the common law might take his creditor into his protection, so that no one might sue or arrest him till the king's debt was paid: but by the statute 23 Edw. III. c. 19. notwithstanding such protection, another creditor may proceed to judgment against him, with a stay of execution, till the king's debt be paid; unless such creditor will undertake for the king's debt, and then he shall have execution for both. And, lastly, By statute 29 Car. II. c. 7. no arrest can be made, nor process served, upon a Sunday, except for treason, felony, or breach of the peace.
2. An arrest in a criminal cause is the apprehending or restraining one's person, in order to be forthcoming to answer an alleged crime. To this arrest all persons whatsoever are, without distinction, equally liable; and doors may be broken open to arrest the offender: but no man is to be arrested, unless charged with such a crime as will at least justify holding him to bail when taken. There is this difference also between arrests in civil and criminal cases, that none shall be arrested for debt, trespass, or other cause of action, but by virtue of a precept or commandment out of some court; but for treason, felony, or breach of the peace, any man may arrest with or without warrant or precept. But the king cannot command any one by word of mouth to be arrested; for he must do it by writ, or order of his courts, according to law: nor may the king arrest any man for suspicion of treason, or felony, as his subjects may; because if he doth wrong, the party cannot have an action against him.
Arrests by private persons are in some cases commanded. Persons present at the committing of a felony Arrrests must use their endeavours to apprehend the offender, under penalty of fine and imprisonment; and they are also, with the utmost diligence to pursue and endeavour to take all those who shall be guilty thereof out of their view, upon a hue and cry levied against them. By the vagrant act 17 Geo. II. c. 5, every person may apprehend beggars and vagrants; and every private person is bound to affit an officer requiring him to apprehend a felon.
In some cases likewise arrests by private persons are rewarded by law. By the 4 and 5 William and Mary, c. 8, persons apprehending highwaymen, and prosecuting them to a conviction, are entitled to a reward of 40l.; and if they are killed in the attempt, their executors, &c., are entitled to the like reward. By the 6 and 7 William III. c. 17, persons apprehending counterfeiters and clippers of the coin, and prosecuting them to conviction are entitled to 40l.
By 5 Ann. c. 31, persons who shall take any one guilty of burglary, or the felonious breaking and entering any house in the daytime, and prosecute them to conviction, shall receive the sum of 40l. within one month after such conviction.
With regard to arrests by public officers, as watchmen, constables, &c., they are either made by their own authority, which differs but very little from the power of a private person; or they are made by a warrant from a justice of peace. See WARRANT.
ARREST of Judgment, in Law, the assigning just reason why judgment should not pass: as, Want of notice of the trial; a material defect in the pleading; when the record differs from the deed impleaded; when persons are misnamed; where more is given by the verdict than is laid in the declaration, &c. This may be done either in criminal or civil cases.