ARREST, in law, (trom the Fr. arretcr, to stop or stay,) signifies the restraining of a man's person, for di purpose of securing his obedience to the law.
Arrest is considered as the beginning of imprison ment ; and it may be made either for a civil debt, or upon a criminal accusation. In the former case, the arrest is made by the corporal seizing or touching the defend ant's body by the sheriff, or his officer, in consequence of a precept or commandment out of some court. After such seizure, the bailiff may justify breaking open the house, in which the debtor is, to take him ; otherwise he has not that power, but must watch his opportunity of arresting him : For the law regards every man's house as his castle of defence and asylum, in which he ought not to suffer any violence.* But if the bailiff should happen to find an outer door open, he may open the inner door, without being liable to an action of trespass.
Writs express arrest by two several words, capias and attachias, to take and catch hold of a man ; for it is necessary to constitute a lawful arrest, that the officer should actually lay hold of the person, besides saying that he arrests him. If a bailiff, however, touches a man, it is an arrest ; and if the person makes his escape, it is a rescous, and attachment may be had against him. If a bailiff lays hold of one by the hand held out at a window, this is such a taking of him as will justify his breaking open the house to carry him away. If a bailiff be kept off from making an arrest, he shall have an action of assault; and where the person arrested resists or assaults the bailiff, he may justify beating of him.
Peers of the realm, peers of Scotland, peeresses by birth, peeresses by marriage, not having afterwards in termarried with a commoner, members of parliament, and corporations, are privileged from arrests, and con sequently from outlast rics : against them, therefore, the process to enforce appearance must be by summons and distress infinite, instead of a capias. Clerks, attornies, and all other persons attending the courts of justice, are not liable to be arrested by the ordinary process of the court ; but must be sued by bill, (usually called a bill of privilege,) they being presumed to be personally present in court. Suitors, witnesses, and other persons necessarily attending any court of record upon business, are not to be arrested during their actual attendance, which includes the time of their coining and returning.
A bankrupt coming to surrender, or within 42 days after his surrender ; witnesses properly summoned be fore commissioners of bankrupt, or other commissioners under the great seal ; but not creditors coming to prove their debts ; heirs, executors, or administrators, except on their own personal contracts, or in cases of devasta vit, are exempted from arrests. Clergymen performing divine service, and not merely staying in the church with a fraudulent design, are, for the time, privileged from arrests, by stat. 50 Edw. III. c. 5. and 1 Ric. II.
c. 16; and likewise members of convocations actually intending thereon, by stat. 8 Henry VI. c. 1. Ambassa dors and their domestic servants are not liable to arrests. By stat. 31 Geo. II. c. 10, no seaman on board his ma jesty's ships can be arrested for any debt, unless the same be sworn to amount to at least 201.; but by the annual mutiny acts, a soldier may be arrested for a debt of half that value, but not to a less amount. In an action against husband and wife, the husband alone is liable to be arrested. No person may be arrested in the king's presence; nor within the bounds of his royal palace ; nor in any place where the king's justices are actually sitting. Besides, the king bath a special prerogative, (which, however, is very rarely exercised,) by virtue of which he may grant a writ of protection, to privilege a defendant from all personal, and many real suits, for one year at a time, and no longer ; in respect of such person being engaged in his service abroad. And, by the common law, the king might also take his creditor into his protection, so that no person might sue or ar rest him till the king's debts were paid. But by the stat. 25 Edw. III. st. 5. c. 19. another creditor, notwith standing such protection, may proceed to judgment, with a stay of execution till the king's debt be paid ; or he may undertake for the king's debt, and then he shall have execution for both. By the stat. 29 Car. II. c. 7. no arrest can be made, nor process served upon a Sun day, except for treason, felony, or breach of the peace.