State Ex Rel. Lawrence v. Buxton

*131 MeebimoN, J. (after stating the case). The plaintiff contends that the return, “ I return this writ not served,” of the order of arrest mentioned, was false, in that the defendant, as Sheriff, before the making thereof, had, in fact and contemplation of law, “ served ” — executed—the order according to the exigency thereof, through and by his deputy. The Court below, accepting the evidence produced by the plaintiff as true, was of opinion that the return was not false, and we concur in that opinion. The term “ arrest” has a technical meaning, applicable in legal proceedings. It implies that a person is thereby restrained of his liberty by some officer or agent of the law, armed with lawful process, authorizing and requiring the arrest to be made. It is intended to serve, and does serve, the end of bringing the person arrested personally within the custody and control of the law, for the purpose specified in, or contemplated by, the process through and by the officer or agent charged with its execution. The certain and most unequivocal method of making an arrest is by the actual seizure of the person to be arrested, but this is not essential; it is sufficient, if such person he within the control of the officer with power of actual seizure, if necessary. The officer need not touch the person of such party to make the arrest effectual, but he must have and intend to have control of the party’s person. This seems to be necessary to constitute a valid arrest. If the officer has process, and intends presently to execute it, and the person against whom it is directed recognizes it and submits to the control of the officer, this would be a sufficient arrest, because thus the officer would get the custody and control of the person of the party. But if there is no actual seizure of the person, the officer must intend to make the arrest and have present power to control the party arrested. Thus, if the officer go into a room and tell the person therein to be arrested, that he arrests him, and locks the door, this has been held to be an arrest. *132 If, however, the officer has present power, and inlends to make the arrest, and the party to be arrested submits to his arrest — consents to be subject to the officer — this is sufficient. Every touching of the party to be arrested, by the officer having process, is not necessarily an arrest. Thus, if the officer meet the party against whom he has process, aud they shake hands, nothing being said of the process, nor is it said that an arrest is intended, this would not constitute an arrest, because the officer and the party did not so intend. But if the officer and the party to be arrested meet, and the former notifies the latter that he has process requiring his arrest, and the officer directs the latter to meet him at a particular place and time, this would be a sufficient arrest, if the officer and the party so agreed and intended. This is so, because the officer intended to make the arrest, and the party consented to he in his custody and within his control. Jones v. Jones, 13 Ired., 448; Baldwin v. Murphy, 82 Ill., 485; Bissell v. Gold, 19 Am. Dec., 485, aud notes; Hawkins v. Commonwealth, 71 Am. Dec., 151, and notes; Murf. on Sheriffs, §§ 144, 147; Burrill’s Law Die., word “Arrest.” Now, it seems to us that in no reasonable view of all the evidence produced on the trial did it tend to prove an arrest made by the defendant’as contended by the appellant. The most that can be said is, that the deputy of the defendant, as Sheriff, and the party against whom the order of arrest was directed, talked of the order. The deputy did not seize or touch, or have, or attempt to have, within his control, in any way, the party named in the order of arrest. The deputy did not make, or declare his intention to make, an arrest, nor did the party to be arrested submit, or promise to submit, to the deputy’s control. As we have said above, it was not sufficient for the deputy to make known that he had process — he must have intended to execute it, and have done so by a seizure of the party subject to be arrested, or by having him in his control in some *133 way ; or such party must have submitted to the arrest and consented to be in his custody and control. The mere suggestion 'of the deputy that the party to be arrested “ had better come and go with him to Jackson and fix the matter there,” was not sufficient evidence of an arrest, especially as such party refused to go. Indeed, the evidence went to show that there was no arrest made, and that none was intended. The insufficient return was, therefore, true, and the defendant did not incur the penalty as alleged by the plaintiff. Judgment affirmed.