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.