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ARREST IN CIVIL CASES
(bouvier) | ARREST IN CIVIL CASES, practice. An arrest is the apprehension of a person
by virtue of a lawful authority, to answer the demand against him in a civil
action.
2. To constitute an arrest, no actual force or manual touching of the
body is requisite; it is sufficient if the party be within the power of the
officer, and submit to the arrest. 2 N. H. Rep. 318; 8 Dana, 190; 3 Herring.
416; 1 Baldw. 239; Harper, 453; 8 Greenl. 127; 1 Wend. 215 2 Blackf. 294.
Barewords, however, will not make an arrest, without laying the person or
otherwise confining him. 2 H. P. C. 129 1 Burn's Just. 148; 1 Salk. 79. It
is necessarily an assault, but not necessarily a battery. Cases Temp. Hardw.
300.
3. Arrests are made either on mesne or final process. An arrest on
mesne process is made in order that the defendant shall answer, after
judgment, to satisfy the claim of the plaintiff; on being arrested, the
defendant is entitled to be liberated on giving sufficient bail, which the
officer is bound to take. 2. When the arrest is on final process, as a ca.
sa., the defendant cannot generally be dis charged on bail; and his
discharge is considered as an escape. Vide, generally, Yelv. 29, a, note; 3
Bl. Com. 288, n.; 1 Sup. to Ves. Jr. 374; Wats. on Sher. 87; 11 East, 440;
18 E. C. L. R. 169, note.
4. In all governments there are persons who are privileged from arrest
in civil cases. In the United States this privilege continues generally
while the defendant remains invested with a particular character. Members of
congress and of the state legislatures are exempted while attending the
respective assemblies to which they belong parties and witnesses, while
lawfully attending court; electors, while attending a public election;
ambassadors and other foreign ministers; insolvent debtors, when they have
been lawfully discharged; married women, when sued upon their contracts, are
generally privileged; and executors and administrators, when sued in their
representative characters, generally enjoy the same privilege. The privilege
in favor of members of congress, or of the state legislatures, of electors,
and of parties and witnesses in a cause, extend to the time of going to,
remaining at, and returning from, the places to which they are thus legally
called.
5. The code of civil practice of Louisiana enacts as follows, namely:
Art. 210. The arrest is one of the means which the law gives the creditor
to secure the person of his debtor while the suit is pending, or to compel
him to give security for his appearance after judgment. Art. 211. Minors of
both sexes, whether emancipated or not, interdicted persons, and women,
married or single, cannot be arrested. Art. 212. Any creditor, whose debtor
is about to leave the state, even for a limited time, without leaving in it
sufficient property to satisfy the judgment which he expects to obtain in
the suit he intends to bring against him, may have the person of such debtor
arrested and confined until he shall give sufficient security that be shall
not depart from the state without the leave of the court. Art. 213. Such
arrest may be ordered in all demands brought for a debt, whether liquidated
or not, when the term of payment has expired, and even for damages for any
injury sustained by the plaintiff in either his person or property. Art.
214. Previous to obtaining an order of arrest against his debtor, to compel
him to give sufficient security that be shall not depart from the state, the
creditor must swear in the petition which he presents to that effect to any
competent judge, that the debt, or the damages which he claims, and the
amount of which he specifies, is really due to him, and that he verily
believes that, the defendant is about to remove from the state, without
leaving in it and lastly, that he does not take this oath with the
intention of vexing the defendant, but only in order to secure his demand.
Art. 215. The oath prescribed in the preceding article, shall be taken either
by the creditor himself, or in his absence, by his attorney in fact or his
agent, provided either the one or the other can swear to the debt from his
personal and direct knowledge of its being due, and not by what he may know
or have learned from the creditor he represent. Art. 216. The oath which the
creditor is required to take of the existence and nature of the debt of
which he claims payment, in the cases provided in the two preceding
articles, may be taken either before any judge or justice of the peace of
the place where the court is held, before which he sues, or before the judge
of any other place, provided the signature of such judge be proved or duly
authenticated. Vide Auter action pendant; Lis pendens: Privilege; Rights.
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