#### The State v. Matthew Mills & John Keese,

I-From Caswell.

Where a prisoner was committed to the custody of the Sheriff, until he entered into a recognizance to keep" the peace, and for his ap> pearance — it was held, Hail, Judge, clissentiente, and Rueeiit, Judge, dubitanie, that the Sheriff was not a judicial officer, autho» Tizad to take a recognizance. But the recognizance not being taken by the Sheriff as a judicial officer, but simply signed by the parties, and attested by him, without the addition of his office, it was held, Hale, Judge, dissentienie, not to be a recognizance, but a simple obligation.

At the Spring term, 1827, of Caswell Superior Court, upon the usual affidavit, it was “ ordered by the « Court, that the said John W. Grant be committed to “ the custody of the Sheriff of this county, until he en- “ ters into recognizance in the sum of j§ 2,000, and two *556 (l snreyes eac{, jn the sum of g 1,000, for his appearance « at the next term of this Court, then and there to an- “ swer, &c. and also to keep the peace towards,” &c.

Dec. 1830.

†|16 ensning term of tire Court, the Sheriff returned into Court, the following instrument :

“ John W. Grant acknowledges himself justly indebted to the Stale “ of Norlh-Carolina, in (lie sum of two thousand dollars, and Matthew “ Mitts and John Keese, his sureties, in the sum of two thousand dol- ** Jars, to be levied of their goods and chattels, lands and tenements. <c Nevertheless to be void, on condition that John W. Grant shall “ make his personal appearance, &c. shall also keep the peace, &c. rt Given under our hands and seals.” JOHN W- GRANT, L. S.

Teste, JOHN KEESE L. S.

George Williamson, MATTHEW MILLS, L. S.

Thomas L. Lea,

A scire facias issued on this recognizance against Mills & Keese, it having been suggested on the records of the Court, that George Williamson was Sheriff of Caswell county. The Defendants pleaded mil liel record, on which issue was taken by the State.

His Honor Judge Norwood rendered judgment for the Defendants, and Mr. Solicitor-General Scott, in behalf of the State, appealed to this Court.

The case was argued by the Mtorney- General for the State, and by Winston, for the Defendants.

Ruffin, Judge.

Upon the principal question in this case, whether a Sheriff can award process of the peace, and take security for it by way of recognizance, there seems to be great doubt. Most respectable writers, Sergeant Hawkins and Sir William Blackstone, express themselves in the affirmative; and yet, in other parts of their works, they lay down positions, from which the contrary is to be inferred.N It seems certain, that the Sheriff once possessed that authority $ for his torn was a Court of record of extensive criminal jurisdiction $ and it is incident to every judicial officer to take obligations of record. The power may also be imparted by *557statute to other magistrates, who are not judges. It is in its nature, however, judicial j since its execution eon-sists in making a record. This observation leads me now to remark, that the obligation in this case cannot be valid, unless the Sheriff, virtute officii, possesses the power. It cannot derive validity from any supposed authority conferred by the Court, which committed Grant to the Sheriff's custody; for judicial powers cannot be delegated.

The authority to bail in England on indictments was taken from the Sheriff by the statute 1 Edw. 4, c. 2, which, with several others, speaks of the extortions and oppressions practised by them, and transferred the jurisdiction of the offences, and by construction, that of ■bailing to the Justices. From that time, taking recognizances by Sheriffs seems to have fallen into disuse, at least i whence a strong argument is drawn, that the authority was annulled. In this State, I never knew an instance before the present; nor, upon enquiry, have. I been able to hear of one among the oldest of the profession. Oar act of 1797 fRev. c. 474, s. 4) gives authority to the Sheriff and his deputy, to “ take bail in the-nature of a recognizance,” upon a capias issued on indictment found. Before that time, all persons arrested were carried before Justices of the Peace to be bailed. The statute is a strong legislative declaration, that such power was not possessed before, and in its terms is confined to indictments found. Indeed, I am not aware, that Sheriffs in this State have any original judicial powers. Nor can they exercise any but upon wi^ts, under which they preside at inquests, as in dower, ad quod damnúm, and the like. Hawkins says, that this power exists still. f\P. C. look 2, c. 8, s. 4). In Burghough v. Rosseter (2 H. Bl. 418) it was held, that he could not hail by obligation upon an indictment. Eyre, G. J. who, thought he could, admits that he cannot take a recogni*558zance. (M. 434). Yet Sergeant Williams thinks, he can bail in this last way ; (Posterne v. Hanson, 2 Saund. 59) while Mr. Chitty, aftev remarking, that it has been sup-pOSC(] p0 may (;a[ie a recognizance, but not a bond, says that lie cannot, in any way, take on himself to let a prisoner at liberty on bail (1 Crim. Law 98). Between authorities at once so respectable and conflicting, the Court will not assume to determine, unless it become absolutely necessary in the cause,’ and then, not without farther investigation. I confess, for myself, that I am not satisfied either way, but I incline against tiie authority. My impression is founded on the non user in England for several centuries, and its total non user here ; the act of 1797 ¿ the great danger of allowing the person having the custody of prisoners to judge of their offences, and determine the propriety of imprisoning them, and the sum in which they shall give bail — a power, of the abuse of which magna charla, and sundry other English statutes afford abundant evidence ; and not the least, on the provisions of the habeas corpus act, which plainly supposes the cause of commitment to be set down in a warrant in writing, to be returned with the prisoner and on our. act of 1715 c. 1) which enacts, that no person shall be committed to prison for any criminal matter, until examination had before some magistrate, who shall admit the party to bail, if bailable, and shall record the examination — a function to which the Sheriff is altogether incompetent. Still I will not say, that the Sheriff cannot take security of the peace by recognizance ; for this case may be decided without. It is however, &l least, so doubtful, as to render it safest that he Should not exercise the power.

It is the opinion of the Court, that this instrument is not a refcognizance, but only an obligation in pais; because it only purports to be such. A recognizance is an obligation acknowledged of record, before a Court, or some judicial officer, by whom it is drawn out and cer*559tified. It is not executed by the parties, but acknowledged by them (1 Ch. Cr. Law 72). The official character of the person before whom it is acknowledged must appear —as that it was done in Court, or before A. B. a Justice of the Peace, or Sheriff (3 Burn's Jus. 188). The reason is, that it may appear to be a record. It is not sufficient therefore, that the person is an officer competent to act, but ho must state himself to be acting officially. Here, although the instrument begins with an acknowledgment of a debt by the parties in the third person, in the usual form of a recognizance, it does not say before whom it is acknowledged, and it concludes in the common form of bonds — “ given under our hands and seals,” and it is signed and sealed as a deed. It is then attested by George Williamson and Thomas L. Lea, as individuals ■ — the former being, as stated in the case, the Sheriff What is to distinguish this instrument from oilier acts in pais ? If this he a recognizance, then every obligation attested by a Sheriff may he equally a record. Ills official character must bo expressed in the act itself. The present bears every mark of not being one. This is not like the ca.sc of Siler v. Ward, where the act in itself purported to be one, which, in a private capacity, the person could not do, and could do in his judicial character. It was referred to the capacity, in which alono it could be done. Precisely the reverse is the case here.; and consequently, the contrary inference is to be. drawn.

Henderson, Chief-Justice, concurred.

Hall, Judge,

dissmtiente. — It is stated in Fiteherbertfs Matura Brevium, 79, that a Sheriff is by the common law a conservator of the peace, and hath the keeping and custody of the County for the time he is Sheriff; that he hath power by recognizance to bind men to keep the peace, and that every thing which they do by virtue of their commission ought ts be taken as matter of record.— *560 (Haw. c. 3 s. 4. Bac. Ab. Justices of the Peace A, Sheriff L. Th. Co. Litt. 82 note B. 1 Bl. Com. 343. J To these authorities tiiat of Sir Edward Coke may be added in Cro. Ca. 26. When he was made Sheriff, he took exception to the oath proposed to be administered to him, because part of the oath was, that he should cause the statute of Winton, and the statutes against rogues and vagabonds io be put in execution ; when in fact the statute of Winton was altered, and the statutes against rogues and vagabonds were appointed to be executed by Justices of the Peace, not by the Sheriff. Jt Avas answered by the Lord Keeper and Judges, that altho’ authority had been given to Justices of the Peace to. put those statutes in execution, yet it doth not take away the Sheriff’s right, who is ill public conservator of the peace.

Notwithstanding by the statutes of 4 Ed. 3 c. 2 and 1 Ed. 4 c. 2. and other statutes, the Sheriff’s jurisdiction in criminal cases is in a great measure taken away from him, and transferred to Justices of the Peace, yet he is still a sworn peace officer, and conservator of the peace, the proper officer to serve process, and may take security of persons whom he is ordered to bail.

It is stated in Jf atura Brevimn (ubi supra) that the writ de securitate pads originally issued from Chancery, and was directed to the Justices or the Sheriff, commanding him to take security of the offender to keep the peace towards linn, at whose instance it was issued. It is also laid down in the same book, that if a man be condemned in trespass before Justices of the Peace, and be arrested, and put into prison in the custody of the Sheriff, he may su. a writ out of Chancery to the Sheriff, that he take baii <>f him and set him at liberty. (Ibid. 250.) So the writ of mainprize was a writ directed to the Sheriff, commanding him to take security for a person’s appearance, if bailable, altho’ such a person might have been com mtt-d by Justices of the Peace. (2 Hale, 142, 2 Haw. c. 15, s. 29, 30. Bac. Ab. Bail in crim. cases, A.J *561Where is tiie difference in taking bail in those cases, and the present case under an order of tiie Superior Court, made, for that purpose ; a Court of the highest Criminal jurisdiction known to tiie laws of the Slate?

It has been frequently ordered by ihc Superior Courts, when persons could not give bail, in a bailable case, during the sitting of the Court, that a recognizance should be entered into in a certain sum before a Justice or Justices of the County, and that the sufficiency of the bail should be judged of by them. And in such case, tiie •Justices of the County Court might not have jurisdiction of the offence, in such case the recognizance is taken altogether by virtue of tiie order of t lie Superior Court. Tiie Justices do not act in such cases ex officio; but they are con-sen ators of file peace. They hold an office, w hich qualifies (hem to comply with the mandate. If it shall he said that tiie Attorney General commonly gives his assent to sucit orders, my answer is, that if the Justices have not the power in lmv to comply ui h such order, his assent would not give it. Polentas deiegata non delegari potest.. (1 Bac. Ab. bail in crim. cases, B.) Chitty (1 Crim. Law. 97, 8,) says that since tiie Sheriff’s jurisdiction in criminal cases has been transferred to tiie Justices of tiie Peace, lie has not in modern times exercised file power of bail-ings that it is supposed he may take a recognisance.. But he adds, that it appears from authorities, that he cannot in any way take on himself to sot a prisoner at liberty on bail, whom he once obtains in his custody. It is not necessary to examine that question here, because the Sheriff has not taken upon himself to set tiie prisoner at large. He took the recognizance in consequence of ih« order of the Superior Court. In addition, it appears from the following authorities tiiat the Sheriff may take a recognizance: Pasterne v. Hanson. 2 Saund. 59, b. Bengough v. Rossiter., 4 Term 505. S. C. 2 H. Bl. 418. The case there was, that a capias issued upon an indictment for a *562misdemeanor from the quarter sessions, and the Sheriff took a bond for the Defendants appearance. It was held that he had no power to take a bond ,• but it was admit-j-c(] jn the case> as reported in Term Reports, that he might take a recognizance.

■ Judge Haywood also says in his Justice (p. 244) that Sheriffs are vested with such power, hut advises that, the exercise of it should he left to the Justices of the Peace.

By an act passed in the year 1797, (Rev. c. 474,) when a capias issues upon an indictment, (if the offence is bailable,) the Sheriff is directed to take a recognizance for the Defendant’s appearance. Can it be doubted that a Court could issue a capias against a person to appear at the next Court, to give security to keep the peace in case of a complaint, made and properly supported by the oath of the party ? If so, would not the Sheriff, particularly if so directed by the Court, he at liberty to take a recognizance for the person’s appearance? If this would be right, it is the present case. The party was in the Sheriff’s custody. He held him for his appearance at the next Court, to give security to keep the peace. The only difference is, that the Court fixed the sum in which he should be bound, and did not leave it to the discretion of the Sheriff. I cannot but think, that this case, alfho’ there was no indictment against the Defendant, comes within the equity of the act.

But it is said, that the recognizance in this case is not in form such a recognizance, as th'e Sheriff should take provided he had the power to take it. The recognizance, as far as it relates to the Defendants, appears to be good. It is true, the Sheriff does not state, that it was attested by him, as Sheriff. He merely signs his name to it $ but it was known to the Court, that lie was Sheriff, and it must he taken, that he returned it to Court in that character. He had no authority to take it and return it in his private character; and it must be taken, that *563he returned it in that character, in which the law required him to act.

With respect to the circumstance, that the recognizance was also attested by Thomas L. Lea, I can only remark that if it would be good without his attestation, it is not had on that account. Utile per inutilia non vitiatnr.

Upon the two questions raised, in this case, first, whether the Sheriff had the power to take a recognizance, and second, whether it has been taken in due. form, I ain free to confess, that I do not feel a perfect conviction, that my opinion is correct; and the less so as my brethren differ in opinion from me. But the inclination of my mind is, that the State is entitled to judgment.

Per Curiam. — Let the judgment of the Court below be affirmed.