657 



ARREST. 



ARRESTMENT. 



663 



hue and cry raised ; but though this was once in ordinary practice, it 

 has now fallen into disuse. [HUE AND CBY.] Rale's ' Pleas of the 

 Crown,' vol. i. p. 575, vol. ii. pp. 72-120 ; Stephen's ' Summary of the 

 Criminal Law,' pp. 239-244. 



Arrest in civil cases is of two kinds : 1, that which takes place before 

 trial, and is called arrest on mesne process ; 2, that which takes place 

 after trial and judgment, and is called arrest on final process, or arrest 

 in execution. [PROCESS.] 



The primary object of arrest on mesne process is to secure the de- 

 fendant's appearance in court, so as to enable the plaintiff to 'proceed 

 with his action against him. This compulsory mode of proceeding, 

 being penal in its nature, was originally allowed by our law in such 

 injuries only as are accompanied by force : its use, however, was 

 gradually extended, partly by Acts of Parliament, partly by the 

 fictitious proceedings of the courts, to almost every species of com- 

 plaint ; but by later regulations it has nearly been confined to cases 

 of debt. 



When it was intended to proceed by arrest, the plaintiff, after 

 making an affidavit that the cause of action amounted to 20/., which 

 by stat. 7 & 8 Geo. IV. c. 71, was the lowest sum for which a party 

 could be held to bail, commenced his action by suing out a writ, called 

 a capita, directed to the sheriff, who, on it being delivered to him, 

 granted a warrant to his inferior officers or bailiffs to execute it on the 

 defendant. 



With regard to arrest on mesne process, the law was materially 

 altered by the statute 1 & 2 Viet. c. 110. Since that statute all per- 

 sonal actions must be commenced by writ of summons, and no de- 

 fendant can be arrested before a judgment has been obtained against 

 him, unless it be shown by the affidavit of the plaintiff, or of some 

 other person, to the satisfaction of a judge of one of the superior 

 courts, that such plaintiff has a cause of action against the defendant 

 to the amount of 20/. or upwards, or has sustained damage to that 

 amount, and that there is probable cause for believing that the defend- 

 ant is about to quit England unless he be forthwith apprehended. 

 The judge is then authorised to issue a writ of capias against such 

 defendant ; the proceedings upon such writ are the game as they were 

 under the writ of capias, which formerly was used as the commence- 

 ment of all personal actions which were commenced in the superior 

 courts of common law, when the object was to arrest a person or hold 

 him to bail. [CAPIAS.] 



This application to the judge may be made and the defendant 

 arrested at any time after the commencement of the action, and before 

 final judgment shall have been obtained therein. Upon making the 

 arrest, the officer is required forthwith to deliver to the defendant a 

 copy of the writ, and is not allowed to take him to gaol within twenty- 

 four hours, unless, upon request made, he refuses to go to any place of 

 safe custody. He is hi general taken to the house of the officer 

 (vulgarly called a ' spunging-house '), where (if not sooner lawfully dis- 

 charged) he may be confined until the expiration of the eight days 

 limited for the putting in of special bail. 



When arrested, the defendant is in custody of the sheriff: but by 

 stat. 43 Geo. III. c. 46, s. 2, he may obtain his discharge by depositing 

 with the sheriff or his officer the sum for which he was ordered to be 

 held to bail, together with 10/. to answer for the costs, or by giving bail 

 for his appearance to defend the action : this being what most com- 

 monly occurs, the process upon which an arrest is founded is called 

 la liable process. For further information on this subject, see BAIL. 



The Commissioners of the district Courts of Bankruptcy and the 

 Judges of the County Courts have now power, by the Absconding 

 Debtors' Arrest Act, 1851, to grant a warrant for the arrest of ab- 

 sconding debtors, and for their detention for seven days, until a writ 

 of capiat can be procured from one of the superior courts of law. By 

 this means debtors absconding from the seaports at a distance from 

 London may be arrested on the spot, and detained until they pay the 

 debt or give bail to the action, or deposit the money in the hands of 

 the sheriff. 



Arrest on final process, or arrest in execution, is one of the means 

 by which a party who has succeeded in an action may compel per- 

 formance of the judgment. 



Arrest in execution may in general be resorted to in any case where, 

 before trial, bailable process might issue; when execution has been 

 taken out against the property, and there is not enough to satisfy the 

 judgment, execution against the person may afterwards be resorted to; 

 but if the person has once been taken in execution, no process can in 

 his lifetime issue afterwards against the property. [EXECUTION.] 



The statute 7 & 8 Viet. c. 96 has, however, effected a very important 

 alteration in arrest on final process or in execution. The 57th section 

 enacts that no person shall be taken or charged in execution upon any 

 judgment obtained in any of Her Majesty's superior courts, or in any 

 county court, court of requests, or other inferior court, in any action 

 for the recovery of any debt wherein the sum recovered snail not 

 exceed the sum of 201. exclusive of the costs recovered by such 

 judgment. 



An arrest is made by seizing or touching the defendant's person. 

 The officer is not justified in breaking open the defendant's house in 

 order to arrest him ; but, whe.n once the arrest is made, he may break 

 into any house in pursuit of him. 



Certain personages were from the earliest times privileged from 



arrest or civil process, either entirely so, or temporarily. A list of 

 them is given in Blackstone's ' Comm.,' Mr. Kerr's edit., vol. iii. 

 p. 298, &c. 



In France, imprisonment seems to have existed from the earliest 

 ages as a means of execution to compel the payment of a debt, though 

 its application was originally restricted to cases where the property of 

 the debtor had been previously seized and found insufficient. In the 

 reign of Louis XIV. a principle was introduced, which at the present 

 day constitutes one of the characteristics of French jurisprudence ; 

 debts of a commercial nature being distinguished from debts pxirely 

 civil, and arrest being allowed as of course in the former, but, in the 

 latter, only in a few specified cases. 



An arrest, by the law of France, cannot take place without being 

 authorised by the sentence of a court. The cases in which this autho- 

 rity is exercised in matters not of a criminal nature may be classed 

 under four heads : 



I. In all cases of commercial debt to the amount of 200 francs (81. 

 sterling), arrest forms part of the sentence as a matter of course. The 

 object of imprisonment is to compel the debtor to give up any pro- 

 perty which he may be supposed to have concealed ; after a certain 

 length of confinement, it may be presumed that, if he has given 

 nothing up, it was becaxise he had nothing to give ; and thus the 

 reason for detaining him ceases to operate. The debtor is, therefore, 

 in all cases discharged from prison, after a certain length of time, 

 varying according to the amount of the debt. In commercial cases, 

 the length of imprisonment varies from one year to five. 



II. In actions of a purely civil nature, arrest takes place only in 

 those cases which are specified by the laws. The civil code (Arts. 2059, 

 2060) contains an enumeration of the cases in which it is pronounced 

 as a matter of course. They are chiefly such as imply either gross 

 fraud, or a breach of official duty. The length of imprisonment varies 

 from one year to ten. 



There are other cases in which the court have a discretionary power 

 to pronounce sentence of imprisonment if they think fit ; the length 

 of confinement varies in this instance from one year to five. In all 

 civil cases, 300 francs, or 12/. sterling, is the lowest sum for which a 

 person can be arrested. 



III. All public servants are liable to arrest in respect of any sum of 

 money to the amount of 800 francs, 12/. sterling, due, by virtue of 

 their office to the state, or any public establishment. The duration 

 of imprisonment varies from one year to ten. 



IV. With respect to foreigners not domiciled in France the law is 

 peculiarly severe. As their property is presumed to be in their own 

 country, the confinement of their persons is considered to be the only 

 means by which they can be compelled to satisfy their creditors ; they 

 are, therefore, liable to arrest for all debts, whether civil or commercial, 

 provided the sum amounts to 150 francs, or 61. sterling. And for this 

 sum a foreigner may be arrested, not only after final judgment, but as 

 soon as the cause of action has arisen. In the latter case, however, he 

 may obtain his discharge by finding sureties, or by proving that he is 

 possessed of sufficient property in France to pay the debt : when 

 arrested on final judgment, the duration of his imprisonment varies 

 from two years to ten. 



A debtor who has entered his 70th year cannot be arrested on final 

 process, except in the case etelllonat, the tteUianatut of the Roman law, 

 a fraud committed by a party in falsely representing property as being 

 his own or as being free from incumbrance. And with the same 

 exception, a debtor who is in prison is, on entering his 70th year, 

 entitled to be discharged. The debtor likewise obtains his discharge 

 in the following cases : 1. If the creditor give his consent thereto; or 

 2. If he neglect to advance the sum which the law requires him to pay 

 for the support of the debtor. This sum is now fixed at 25 francs, I/, 

 sterling per month, except hi Paris, where it is 30 francs ; 3. By pay- 

 ment of the debt, costs and expenses ; or, in cases not commercial, by 

 payment of one-third thereof, and finding sureties for the remainder ; 

 or 4. By being allowed the benefit of cession, answering to a discharge 

 under the Insolvent Act in English Law. [CESSIO BONOBUM.] 



(See Code Civile, Arts. 2059-2070 ; Code de Procedure Cirile, Arts. 780- 

 805 ; law of 17th of April, 1832 ; Fcelix, Commentaire mr la Contrainte 

 par Corpi.) 



ARREST OF JUDGMENT. After an action at law has been car- 

 ried through all the stages previous to the judgment, and the plaintiff 

 has up to this point been successful, the defendant may still move in 

 arrest of judgment : that is, he may pray the court to withhold or 

 arrest the judgment to which the plaintiff is apparently entitled, on 

 the ground that there is some error appearing on the face of the record, 

 which vitiates the proceedings. In consequence of such error, on 

 whatever part of the record it may arise, the court is bound to arrest 

 the judgment, but the error must be such as is apparent on the record, 

 and generally speaking, it must not be an error in a mere point of form. 

 This was formerly otherwise [AMENDMENT] ; but at the present day 

 judgment cannot be arrested for any merely formal objection. 



For further information on this matter, see Blackstone's Comm., Mr. 

 Kerr's ed.. vol. iii. ch. 24 ; Comyn's Z%., tit. " Pleader," 48. 



ARRESTMENT in the law of Scotland is a process by which a 

 creditor may attach money or moveable property which a third party 

 holds for behoof of his debtor. It bears a general resemblance to the 

 custom of foreign attachment in the Mayor's Court of the City of 



