General Court:'-by Massachusetts Statutes, executors and administrators, except upon scire facias, in case of waste; sheriffs while actually in office, on mesne process or execution; and officers and soldiers in the militia, while engaged in military duty, on civil process, are all privileged from arrest. 4 By Stat. 1795. ch. 75. s. 1. it is provided, that when any person shall be arrested in trespass and ejectment, or other real action, the defendant's own bond and no other, shall be required for his appearance to answer the same. By Stat. 1830. ch. 131. s. 1. it is provided, that no person shall be arrested, held to bail, or imprisoned on mesne process or execution, for any debt, less than ten dollars, contracted subsequently to July 1, 1831. By the second section of the same statute, it is provided, that no female shall be arrested, held to bail, or imprisoned on mesne process or execution, for any debt, contracted subsequently to July 1, 1831,— except in cases, where any female shall be charged as trustee, for a sum exceeding ten dollars, in any judgment rendered by the Supreme Judicial Court, or Court of Common Pleas. Parties to a suit, — witnesses, witnesses,-jurors, -jurors, — counsel, and all persons connected with a cause, which calls for their attendance in court, and who attend bonâ fide, - are protected from arrest, eundo, morando, et redeundo.1 So also a party in attending arbitrations,2 and hearings in bankruptcy.3 It has been decided in Massachusetts, that a witness, to be privileged from arrest, must have been commanded to attend court, by process of law, and that if he come as a volunteer, without summons, he is not protected. A different rule, however, is established in England, protecting a volunteer, as well as one who has been legally summoned.5 Writ of protection. The persons thus privileged from arrest, in consequence of attending court, were formerly entitled, as a matter of course, to a writ of protection from that court upon request, the application being usually made to the clerk of the court, -who, in all cases, where it appeared from the docket, a subpœna, or the return of jurymen, that the party applying was entitled, was authorized to furnish such writ. But the practice having been abused in many cases, both by parties and witnesses, a new rule was made by the Supreme Judicial Court, ordering that "no writ of protection shall issue except by the order of court, or some one of the judges thereof, such order to be made upon the application of the person for whom such writ of protection is to be issued, or of some person by him duly authorized; and no order will be made 1 Meekins v. Smith, 1 H. Black. Rep. 636. Ex parte McNeil, 6 Mass. Rep. 245. 2 3 Spence v. Stuart, 3 East. Rep. 89. and cases cited in note 1. Arding v. Flower et al. 8 Term. Rep. 534. Sidgier v. Birch, 9 Vez. Jr. Rep. 69. * Ex parte McNeil, 6 Mass. Rep. 264. Meekins v. Smith, 1 H. Black. Rep. 636. Arding v. Flower et al. 8 Term. Rep. 534. : for granting such writ of protection until it shall be made to appear to the court or judge applied to, by affidavit, or other satisfactory evidence, that the application is made in good faith, and for the purpose of enabling such person to attend the court, as a party or witness in some cause pending, such cause to be specified if a party, that such suit has not been commenced by him collusively, or if a defendant, that such suit has not been commenced against him by his request or procurement collusively, and to enable him to obtain a writ of protection; or, if a witness, that he has been duly summoned by process to attend as a witness, and that he has not been so summoned by his own request or procurement, or collusively, to enable him to obtain the writ of protection applied for.'" This rule specifies only parties and witnesses; it would seem, therefore, that jurymen are still entitled to a writ of protection, to be issued as of course, by the clerk. Such writ however is not necessary, and is no further useful, than as it serves to give notice to the officer, of the defendant's privilege, of which he is not otherwise bound to take notice. For if the defendant be entitled to, though he do not actually have, a writ of protection, upon being arrested, the court will discharge him from the arrest on motion, and order the bail bond, if one have been given, to be cancelled.3 In the case last cited, it was holden, that if the person were not legally entitled to an exemption from arrest, the writ of protection would not avail him. But 'Reg. Gen. S.J. C. 49. Appendix A. 2 Wm. Black. Rep. 1194. 3 Case of McNeil, 3 Mass. Rep. 288. now, in cases of parties and witnesses, the writ being granted only upon a proper and full examination by the court, or a presiding judge thereof, there seems to be no reason why it should not be conclusive upon the officer, about making the arrest; and, to attempt an arrest in such case, would probably subject the officer to punishment for a contempt of court. This privilege from arrest, is a personal one, of which the party entitled may avail himself for his protection; but if he waive it, and submit to the arrest, he cannot afterwards object to the arrest as unlawful.' The ground upon which courts interfere, and order the person to be discharged from custody, is, that of contempt of court, by arresting persons giving their attendance upon it. This power of discharging, therefore, would seem to be confined to that court, at which the party arrested, is attending.2 SECT. III. HOW AN ARREST MAY BE MADE. 3 An arrest is made, by taking the person into actual custody. This is usually done, by putting the hand upon the individual, though this is not necessary, if the officer have the party in his power, or if the party have submitted himself to the officer. So that after such a submission, without an actual touch, an escape, or a rescous would be the same in their consequences, as if the officer had put his hand upon the party. And any touch, however slight, will be suffi 1 Brown v. Getchell et al. 11 Mass. Rep. 11. cient to constitute a valid arrest, through a door or window. -even though it be If the officer, making the arrest, have several processes against the party arrested, sidered as arrested on them all. the latter is con And if while the party is in custody, other writs against him be delivered to the officer, the party will be considered as arrested on them, though nothing further be done. It is not necessary, to constitute a valid arrest, that it should be made personally, by the officer, who has the precept. Having a right to employ assistants, in the execution of any process, and that, too, by parol, an arrest made by one of such assistants, provided the officer be near, and acting in the arrest, though not in sight, is equally valid, as if made by the officer himself.' SECT. IV. WHEN AN ARREST MAY BE MADE. On criminal process, a party may be arrested at any time, before the return day, and that, too, by night, as well as by day.2 Upon civil process, generally, an arrest may be made, on any day except Sunday. An arrest on that day is void :— and not only so, but if a party be detained from Sunday, until Monday, and then arrested, either at the suit of the party detaining him, or of any other, who was connected with or conusant of the deten 1 Blatch v. Archer, 1 Cowp. Rep. 63. Bull. N. P. 63. Commonwealth v. Field, 13 Mass. Rep. 321. 29 Co. 66. * Stat. 1791. ch. 58. s. 9. Vide Spence v. Stuart, 3 East. Rep. 88. Birch et al. v. Prodger et al. 4 Bos. and Pull. Rep. 134. |