1838. MILLER v. ΚΝΟΧ. lors," which no doubt included all who by word or deed make themselves parties to the act done. But he who merely withholds his personal assistance to apprehend an offender, without any intent to co-operate with such offender, cannot with any justice be charged criminally with aiding, abetting, or favoring him, or being particeps of his offence. If, then, immemorial usage to punish by attachment in such case, is not to be inferred from the language of these antient statutes, I ask, where is any evidence of such antient usage to be found, which, according to the language of Wilmot, is to be considered and inforced as a part of the law of the land, as much as trial by jury? It is said, indeed, by Serjeant Keble, in the Year Book, 3 Hen. 7, fol. 1, and the passage is cited in Brooke's Abridgment, Fine pur Contempt, 37, and Trespass, 266, that every man is sworn to aid the sheriff on his besoignes, and if they do it not at the request of the sheriff, they shall make fine; as, if the sheriff require them to take felons, and they refuse, they shall make fine. But this is only the argument of counsel for the defendants in an indictment for a riot, which had been preferred against persons who had accompanied the sheriff's bailiffs with great numbers in arms to execute a replevin. Whether these persons, upon refusal, would have been liable to be fined without a previous conviction, is not said, much less is it alleged that they would have been liable to an attachment. The only object of the argument was, to shew that the defendants would have been punishable if they had not attended the sheriff upon his request. The court only decided that the sheriff may lawfully take the power of the county before as well as after complaint of resistance. For any act done to obstruct the execution of the king's writ, there is no doubt that an attachment may be issued by authority of the common law; but, on account of a mere refusal to assist the sheriff, I find no authority for such a proceeding. Not that the party refusing is dispunishable; for, upon the From such cases, it cannot be inferred that any immemorial usage exists to punish by attachment the refusal by a stranger to assist the sheriff in executing a writ in a private suit between party and party, much less a refusal to aid in the execution of a commission of rebellion, which is directed to the commissioners only. It may be here observed, that, before the statute of Westminster 2, the sheriff might lawfully return resistance as an excuse for not executing the king's writ, which he is now forbidden by that statute to do. And, if he make such return now, he shall be punished, because he ought to have taken the power of the county. But there is no statute which forbids commissioners of rebellion to make a return of resistance as an excuse. And I find, that, in Easter Term, 4 Elizabeth, in a case of Griffith v. Price, such a return was made: 1838. MILLER v. KNOX. 1838. MILLER บ. KNOX. "The commissioners of rebellion return that the defendant locks himself up in his house. Ordered that a commission of rebellion issue to the sheriff, commanding him to use the help of the county to apprehend the defendant, and bring him to court"-Hargrave's Manuscripts, No. 170, fol. 149. Commissioners of rebellion, therefore, not being subject to the same responsibilities of sheriffs, do not require the same power. It is remarkable that the serjeant-at-arms, the officer of the court, who is sent in case the commissioners fail to bring the party into court, is not invested with any such authority to call for assistance as that which is claimed for the commissioners. The reason of this omission may be, that the serjeant-at-arms is sent for the benefit of the defendant, to see, as Gilbert says, Forum Romanum, 77, whether the defendant really hides himself from justice, lest the commissioners, who are nominated by the plaintiff, should improperly have returned non est inventus for the purpose of enabling the plaintiff to obtain a sequestration of the defendant's lands and goods, when he might have been brought before the court. But we find, that, upon the appointment of sequestrators, in consequence of the failure of the serjeant-at-arms, no such extraordinary power is given to them; but, if resistance be offered to the sequestrators, a writ of assistance is then issued to the sheriff, by which, after reciting obstruction to the sequestrators, the sheriff is commanded to go and assist the sequestrators, and to put them into quiet and peaceable pos session. Such appears to be the practice both of the courts of Chancery and of the Exchequer: Russell v. Bodvil, 1 Chancery Rep. 187-12 Car. 2; 1 Fowler's Exchequer Practice, 181. It is not easy to understand upon what grounds the power of calling all persons to his aid, entrusted to the sheriff, a high and responsible officer of the law, could be transferred by a court of equity to private persons of its own appointment nominated by the party in the cause; and it is still more difficult to understand why the sequestrators appointed by the court to execute the last process, should be obliged to resort to the sheriff for protection and assistance, if the commissioners named by the plaintiff in the earlier process are intended to be intrusted with all the powers of the sheriff. Commissions of rebellion appear from Gilbert's Forum Romanum, pages 17 and 18, to have been anciently directed to the sheriff; and they may be so directed at the present time-Practical Register, 130; Com. Dig. Chancery, (D. 5.). Gilbert says that the commission of rebellion commanded all constables and bailiffs to assist the sheriff; and, speaking of the attachment, proclamation, and commission of rebellion-" these were all directed to public ministers and officers of justice, and plainly appeared to be the ancient prerogative process to compel appearance in the superior court of judicature." Such commissions, however, are now, and for a long time have been, usually directed to commissioners, of which there is an instance as early as Easter Term, 36 Henry 8, in Hargrave's Manuscripts, ubi supra. In a precedent in the reign of James the First, West's Symb. vol. ii. p. 185, in the edition of 1627, as well as in those contained in 1 Harrison's Chancery Practice, 289, and 1 Fowler's Practice of the Exchequer, 160, of more modern date, it will be found, that, when they are directed to commissioners, not only all mayors, constables, and liege subjects are commanded to assist the commissioners, as they were, according to Gilbert, formerly to assist the sheriff; but, in addition to the general words, mayors, constables, &c., used in the commission to the sheriff, the word "sheriffs" is introduced; so that, in whatever county the commissioners exercise their authority, the sheriff of that county is commanded to aid and assist them. From which there seems great reason to infer, that, although, for convenience, where a defendant .1838. MILLER v. KNOX. 1838. MILLER V. ΚΝΟΧ. absconds, the commissioners are empowered to arrest the defendant in any county in which he may be found, they ought, in case of resistance, requiring the aid of the posse comitatus, to resort to the sheriff of that county, the antient responsible officer of the crown, originally authorised to enforce the process. The effect of this course of proceeding is, to enable the same commissioners to avail themselves of the power and authority of the sheriff in every county in the kingdom, without conferring upon them such an extraordinary and unknown power as that of raising by their own authority, not merely the posse comitatûs, but the whole posse regni. The probability of this view is much strengthened, both by the right of the commissioners to make a return of resistance as an excuse for not executing their commission, and the practice of issuing subsequent commissions of rebellion, or writs of assistance to the sheriff after resistance made either to the commissioners of rebellion or to seques trators. The sheriff's are ministerial officers of the court, and so are all bailiffs of franchises. It is possible that sheriffs, and all other ministerial officers of the court of Exchequer, may be liable to attachment for refusing to obey the call of the commissioners; but it is not to be assumed, without the sanction of usage, that a court of equity, by introducing into a commission directed to private individuals, a description of the persons liable to be called upon by the sheriff, can thereby render all peace officers and all private subjects of the realm, who stand in no such relation to the court, liable to the proceeding by attachment, to which they would not be liable for disobedience to the sheriff. Ifa stranger be liable to an attachment, what is to be the consequence, and by what acts is his contempt to be purged? The contempt in question being a mere non-feasance of something required to be done at a time past, the party attached cannot purge his contempt by |