Arrest, the taking a person or thing by authority of the law and into its custody. I. In civil cases, arrest is the apprehension of a person by lawful authority for the purpose of compelling him to answer in a civil action. The present tone of the English law on the subject was probably first given by a statute of George I. (1726). That act, "to prevent frivolous and vexatious arrests," provided that no person should be held to special bail on any process issuing out of any of the superior courts, unless the cause of action were of the amount of £10, and on process of any inferior court unless it were of the amount of 40 shillings. These amounts were raised from time to time, and by 7 and 8 George IV., ch. 71, no person could be held to special bail, on process issuing out of any court, when the amount involved was less than £20. The 1 and 2 Victoria, ch. 100, abolished arrest on mesne process, but provided that if a plaintiff, who could before that act have had the defendant arrested, should show that he had a cause of action, or had sustained damages to the amount of £20, and that there was reasonable cause for believing that the defendant was about to quit England unless he were apprehended, a court might issue its warrant for the arrest of the defendant and hold him to bail in the amount of the debt or damage.
This act and several others were displaced by the present act, 32 and 33 Victoria, ch. 62, which provides again that no person shall be arrested on mesne process in any action, and contains a similar provision to that just quoted from the former act of Victoria, but requiring further that the plaintiff shall show, except in suits for penalties, that the threatened absence of the defendant from the country will materially prejudice him in the prosecution of his action. But the cause of action must now be of the amount of at least £50. - In some of the United States arrest in civil causes still remains, but in New York and in many others it is allowed only in such cases as the following, or in cases of similar character, namely: in actions not arising out of contract, when the defendant is not a resident of the state or is about to leave it; or in cases of a tortious nature, or for injuries to person and character, or for wrongfully converting property; or in actions for fines or penalties, or for the recovery of moneys or property received and fraudulently withheld by persons acting in a fiduciary capacity; or where the property sought is concealed or disposed of with the intent to deprive the plaintiff of the benefit of it; or when the defendant has been guilty of a fraud in incurring the obligation or in concealing or disposing of the property for the recovery of which the action is brought; or when the defendant has disposed of his property, or is about to do so, with the intent to defraud his creditors.
It will be seen that these provisions exclude arrest in common actions of contract and debt, and this is the spirit of the recent legislation on this head. - By the constitution of the United States, the members of congress are exempt from arrest in all cases, except treason, felony, or breach of the peace, during their attendance at the sessions of the respective houses, and in going to and returning from them to their homes. In New York (and probably there are similar exemptions in every state) a member of the legislature is privileged from arrest on civil process during his attendance at the session of the houses, except on process issued in any suit for forfeiture, misdemeanor, or breach of trust in any office or place of public trust held by him; and for 14 days previous to, and while going to or returning from such session; and also for 14 days after any adjournment, or while absent on leave of his house. Ambassadors and other public ministers and their servants, and consuls and vice consuls, are also exempt from all process issuing out of a state court.
Parties to suits, while attending at or going to or returning from courts or hearings before referees, or before arbitrators under a statute or rule of court, to attend the trial or hearing of their causes by these tribunals, and their witnesses subpoenaed and their attorneys and counsel, are also exempt. Attorneys and counsellors are generally exempt during the actual sittings of court, and while employed in any cause pending there. Married women are generally privileged from arrest on mesne process in all causes whatsoever, and no female can be arrested in New York for any cause except wilful injury. Soldiers and sailors in the service of the United States are exempt in any cause of debt or contract. And usually, by special statutes, voters on election day, members of the state militia, and certain public officers are also privileged. - A civil arrest may be made at any time except on Sundays and legal holidays, and at any place except in presence of a court. An officer may not break the outer door of defendant's house to arrest him in a civil case, though once in the house he may break inner doors to come at him; but after an arrest and escape, the officer may break open even an outer door to retake his prisoner.
An arrest of a person by a wrong name cannot be justified even though he was the person in-tended, unless he was commonly known by either name. The party arrested may ordinarily be released at once upon giving bail; but when the arrest is on final process, as for example when it is to enforce an execution against the person, the defendant, if he has no property, may usually be discharged by taking the benefit of such acts as are provided for the relief of poor debtors; for mere imprisonment for debt is for the most part abolished. 11. In criminal cases, an arrest may be made, under certain conditions, either by a public officer by virtue of his general authority as a conservator of the peace, or upon a warrant or other ex-press process or command, issued by a court or competent judicial officer; or it may be made by a private unofficial person upon an implied permission of the law. If any person, whether a public officer or a private person, sees an-other committing or attempting to commit a felony, it is not only his right but his legal duty to arrest him, even without a warrant. Indeed, if he does not at least try to arrest him, he is technically guilty of a misprision of the felony.