such person so arrested shall refuse to be carried to some safe and convenient dwelling-house of his own nomination or appointment," require that the sheriff's officer shall inform the party arrested of the privilege which this statute gives him, or whether the party arrested must of his own accord nominate a dwelling-house, and demand to be carried there. The former is the true construction, and that which can alone give effect to the intention of the act. It is important to consider the purpose for which the act was passed. The preamble recites, that "many persons suffer by the oppression of inferior officers, in the execution of process for debt, &c." and goes on to declare, that for remedy thereof it may be reasonable to "make further provision for the ease and relief of debtors." Then follow a number of clauses, and among them the clause now before the Court, all in restraint of the officer and in ease of the party arrested. No doubt then the object of the act was to relieve debtors, and the Court is bound to give it such a construction as will best effectuate its intent. The language of the act also is material. The sheriff's officer is only authorized to take a party arrested to gaol within twenty-four hours, in case he refuse to be carried to a convenient house. The statute does not say, unless he omit or neglect, the only word made use of is" refuse." Then what is the meaning of the word refuse? It is to rejectto deny-not to accept. But how can a party be said to reject that which is not tendered, or not to accept that which is never offered for acceptance? The very use of the term necessarily implies the doing or refusing an act which the party knows it is in his power to do or to refuse. And if it be said that ignorance of the law shall not excuse, and that every one is presumed to know the law, at all events the maxim cannot hold here, for in this particular statute it is presumed that parties will be ignorant of its provisions, and care has been taken to guard against the consequence of that ignorance; for in the third section it is provided, that every sheriff shall deliver a printed copy of

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ช RENTON.

this clause of the act to all sheriff's' officers and bailiffs, and shall make it a condition of the bond into which such persons enter, to shew a copy of the said clause to every party whom they may arrest. There is no pretence in this case for saying that the defendant did shew a copy of the clauses to the plaintiff. If he had done so, the case might have worn a different appearance. It is clear, therefore, that the act contemplates that the bailiff shall inform the party arrested of his privilege; and there is no hardship upon the bailiff in adopting this construction. It only imposes upon him the necessity of doing that which, by the condition of his bond, he is in effect already bound to do. Besides, this point has been already decided. In Dewhirst v. Pearson (a), a case not yet reported, but which was argued last term before the Court of Exchequer, the point now in discussion came under the consideration of that Court. The learned barons took time to consider their judgment, and in the result unanimously determined that it was the duty of the sheriff's officer to call upon the party arrested to nominate. The language of Mr. Baron Bayley was, "he must be asked before he can refuse." The judgment in that case is decisive of this. There is no point of distinction, and if that decision be law, the judgment of the Court here must be for the plaintiff.

F. Pollock and Dundas, contrà. One part of the case of Dewhirst v. Pearson (b) has not been read to the Court. Mr. Baron Vaughan says, "the other is a very grave question, (i. e. the same question that is now before the Court,) and I am by no means prepared to say that it was not the duty of the bailiff to put the question to the plaintiff whether he would nominate a place. I think the case should go down again for further inquiry, and the parties may put the matter upon the record if they think fit." This is the manner in which the case was disposed of. There is one point which does not appear to have been at (a) Since reported 1 Crompt. & Mees. 365. (b) Ibid. 374.

all mooted in the Court, namely, that the penalty is very heavy. If the act meant to impose the penalty in such a case as this, it ought to have been clearly stated, and not left to inference or argument. There are many provisions in the act extending over several pages, and then at the 12th section the penalty is imposed upon every bailiff offending against this act, in a very loose manner. The Court will not hastily decide upon imposing the penalty in such a case. With regard to the duty of shewing the clauses to the party, that need not be done until the party arrested is in the house and requires meat and drink. With regard to the other question, from the moment that the party had endeavoured to make his escape from the officer, and thus put him in peril of forfeiting his bond to the sheriff—perhaps for the whole amount of his debt, the officer was entitled to take him at once to a secure place of custody, which a private house would not in such a case be. The party has by his illegal attempt forfeited his right to the protection of the act, and may at once be taken to gaol. In Dewhirst v. Pearson, the party arrested conducted himself in a peaceable manner, and therefore was entitled to the whole benefit of the provision. In Evans v Atkins (a), which was an action upon the same section of the statute, Lord Kenyon says, "the first section of the act prohibits officers from carrying persons arrested to prison within twenty-four hours; and the reason why they shall not be carried to prison sooner is, that they may have an opportunity of procuring bail, or agreeing with the persons at whose suits they are arrested. This therefore can only apply to those persons who are bailable." Now a party who has conducted himself with violence and has attempted to escape from the officer, cannot be supposed to have any intention to set about obtaining bail, or agreeing with his creditor, and therefore is not a person contemplated by the act. In an anonymous case in 6 Modern (6), Lord Holt is reported

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to have said "that after arrest the bailiff ought to carry the party to the next gaol, if he do not desire to be carried to a place for to send for his friends;" from which it appears that Lord Holt considered that the party arrested should be the moving party, and not the party arresting.

DENMAN, C. J.-I think this rule ought to be discharged. It is clear upon the terms of the act of parliament that the bailiff, who is the only person near the party arrested, is bound to give him an opportunity of nominating a house to which he will go. If, without having done this, he has taken him to gaol within 24 hours, he has contravened the act. I have no hesitation whatever in coming to this determination upon the question. The learned judge who tried the cause thought at the trial that this was the correct interpretation of the act. In another case also, where it was differently ruled at nisi prius, the Court of Exchequer, upon the question being brought before them, overruled the decision of the learned judge in that case. There was, I think, also a clear contravention of the act, and a neglect of the duty of the bailiff, laid down in the third clause.

LITTLEDALE, J.-I apprehend that it has been the invariable practice to take a person arrested to a lock-up house or gaol in the first instance. The act however only authorizes the officer to take a party immediately to the gaol upon a certain condition, which is, that he shall not refuse to be carried to some safe and convenient dwelling-house of his own nomination or appointment. Therefore there must be a refusal-there must be something more than a mere neglect by the party to nominate a place himself. There must be a refusal either to nominate, or having nominated, then he must have refused to allow himself to be carried there. That condition must have been complied with before the officer was authorized to carry the party to gaoi. It is quite clear that a mere omission or neglect does not constitute a refusal.

PARKE, J.-When the objection was taken at the trial it appeared to me that a refusal was a condition precedent to the accruing of the power of the officer to take the person arrested to gaol within 24 hours from the arrest. It appears to me to be the true construction that a refusal must be where there has been a proposition made to the party to do the act. I do not think that there is any reasonable doubt upon the question.

PATTESON, J.-I am entirely of the same opinion. I found my opinion upon the first section of the act, and particularly upon the meaning of the word 'refuse.' I cannot conceive how a man can refuse to do an act which he has not been previously asked to do. Upon that short ground my decision in this case is founded. With regard to the third section, I think that it does not apply. It speaks only of particular circumstances. I repeat therefore, that I rest my opinion upon the short ground of the meaning of the word 'refuse.'

Rule discharged.

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The KING v. J. MANNERS SUTTON, Esq.

After a ver

dict for the de

an indictment

for the non-re

INDICTMENT, charging the non-repair of a bridge over the Trent, called Kelham Bridge, in the county of fendant upon Nottingham, which the defendant was bound to repair ratione tenuræ. Plea, not guilty. At the trial of this pair of a highindictment, at the Lincoln summer assizes, 1832, before way, the Court refused an apParke, J. certain rules of the Court, in the time of Charles 2, plication for a (to which it is not necessary more particularly to refer) the ground of new trial, on were offered on the part of the prosecution, in order to the improper rejection of shew that on an indictment relating to this bridge, judg- evidence, but ment had been given against the ancestors of the defendant, suspended the possessors of the property in respect of which the liability order that of the defendant to repair is alleged to arise. The learned another indictment might be preferred.