Page:The American Cyclopædia (1879) Volume I.djvu/801

ARREST 7G5 it; or in cases of a tortious nature, or for injuries to person and character, or for wrong- fully converting property; or in actions for fines or penalties, or for the recovery of moneys or property received and fraudulently withheld by persons acting hi a fiduciary ca- pacity; or where the property sought is con- cealed 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 incur- ring the obligation or in concealing or dispos- ing 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 (a^d 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 pro- cess issued in any suit for forfeiture, misde- meanor, 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 return- ing 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 be- fore arbitrators under a statute or rule of court, to attend the trial or hearing of their causes by these tribunals, and their witnesses subpcenaed 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 pend- ing there. Married women are generally privi- leged from arrest on mesne process in all causes whatsoever, and no female can be ar- rested in New York for any cause except wil- ful 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 holi- days, 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 ar- rest 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 ordi- narily 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. II. 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. And if a private person make an arrest for a felony, without a warrant, in good faith and upon a reasonable suspicion that the person whom he arrested had committed the offence, he will not be liable either civilly or criminally though his suspicions turn out to have been unfounded, provided the felony was actually committed by some one. Even in respect to crimes of less degree than a felony, a private person may make an arrest, though there is not in such cases the same legal obli- gation as in the case of felonies. Thus, in case of an affray or breach of the peace, any person may on the spot, and without any warrant, detain any of the offenders. Neither a private person nor an officer can make an arrest with- out a warrant when the time of the commis- sion of the offence is fairly past. A constable is not justified in taking a person into custody without a warrant for a mere assault, unless he is present when the act is done. But con- stables, police officers, and the like officials may on reasonable suspicion arrest a person for a past felony, and they will be protected in such an act, unlike a private person in this respect, although no felony has been committed by anybody. Such officers may ordinarily make arrests without special authority, in order to prevent imminent breaches of the peace. An officer may call bystanders to help him in making an arrest, though he is acting without a warrant ; and a refusal to give such help is indictable at common law. An officer may also apprehend any one who interferes to prevent his making an arrest, and it is said that lit may even take into custody one who encour- ages another already arrested to resist. It seems to be the better opinion that an officer, especially one who is commonly known to be such, like a sheriff or constable acting in his