13 N.C. 555 | N.C. | 1830
Lead Opinion
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
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
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
Dissenting Opinion
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.—
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
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
■ 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
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.
Lead Opinion
FROM CASWELL. At the ensuing term of the Court the sheriff returned into Court the following instrument:
"John W. Grant acknowledges himself justly indebted to the State of North Carolina in the sum of two thousand dollars, and Matthew Mills and John Keese, his sureties, in the sum of two thousand dollars, to be levied of their goods and chattels, lands and tenements. Nevertheless to be void, on condition that John W. Grant shall make his personal appearance, etc., shall also keep the peace, etc. Given under our hands and seals.
"JOHN.W. GRANT, . S.
"JOHN KEESE. L. S.
"Teste — GEORGE WILLIAMSON, "MATTHEW MILLS L. S.
"THOMAS L. LEA."
A scire facias issued on this recognizance against Mills and Keese, it having been suggested on the records of the Court that George Williamson was sheriff of Caswell County. The defendants pleaded nul tiel record, on which issue was taken by the State.
NORWOOD, J., rendered judgment for the defendants, and Mr. Solicitor-General Scott, in behalf of the State, appealed to this Court. 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. It seems certain *362 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 statute to other magistrates, who are not judges. It (557) is in its nature, however, judicial, since its execution consists 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 of 1 Edw. IV, ch. 2, which, with several others, speaks of the extortions and oppressions practiced by them, and transferred the jurisdiction of the offenses, and by construction that of bailing, to the justices. From that time taking recognizances by sheriffs seems to have fallen into disuse, at least; 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. Our act of 1797 (Rev., ch. 474, sec. 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 writs, under which they preside at inquests, as in dower, ad quod damnum, and the like. Hawkins, 2 P. C., says that this power exists still, book 2, ch. 8, sec. 4. In Burghough v.Rosseter, 2 H. Bl., 418, it was held that he could not bail by obligation upon an indictment. Eyre, C. J., who thought he could, admits that he cannot take a recognizance. (Ib., 434.) Yet, Sergeant Williams thinks he can bail in this (558) last way (Posterne v. Hanson, 2 Saund., 59); while Mr. Chitty, after remarking that it has been supposed he may take a recognizance, but not a bond, says that he 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 the 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 *363 offenses, and determine the propriety of imprisoning them; and the sum in which they shall give bail; a power of the abuse of which magna charta, 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 (Rev., ch. 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, at 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 recognizance, 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 certified. It is not executed by parties, but acknowledged by (559) 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 Burns, 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 he 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 other acts in pais? If this be a recognizance, then every obligation attested by a sheriff may be equally a record. His official character must be expressed in the act itself. The present bears every mark of not being one. This is not like Siler v.Ward,
HENDERSON, C. J., concurred. *364