#### THE STATE *vs.*HENRY HILL AND OTHERS.

June 1843

A sheriff has no right to take a recognizance to keep the peace from any person, arrested by him for a broach of the peace, or committed to his custody by a court for want of sureties for keeping the peace.

A sheriff or other officer, when he arrests, as he has a right to do, for a breach of the peace, or to prevent a breach of the peace, can only carry the^offender before ajudge or justice of the peace, who may commit or bail him, as if ho had been arrested on a warrant.

Regularly if a person be committed by a court for want of sureties to keep the peace, and he afterwards become able to give them, he should be taken by *habeas corpus*before a j udge, for the purpose of entering into recognizance. But in our practice the court generally, by consent of the prosecuting officer, entrusts the power of taking the recognizance to a justice of the peace.

The case of the *Stale*v *Mills,*2 Dev. 555, cited and approved.

Appeal from the Superior Court of Law of Craven county, at Spring Term, 1843, his Honor Judge Bailey presiding.

The case was a scire *facias*upon a recognizance, and the following facts appeared in evidence. The defendant, Henry Hill, had been committed to the common jail of Craven county upon a charge of assaulting and beating his wife, in consequence of his inability to give security for his góod behavior and appearance at May Term, 1841, of Craven County Court. At that term, the sheriff brought the body of the said Hill into court, and it was *“*ordered by the court that the said Henry Hill enter into recognizance in the sum of $1000, with sureties in the sum of $1000, for his keeping the peace towards all the citizens, and particularly towards his wife Calhrine for 12 months, and for'his appearance before the court at the next May Term, 1842,” and the said *399Henry Hill, in default of such surety, was committed to the custody of the sheriff. And afterwards, to-wit, at August Term, 1841, of the said court, John B. Dawson, Sheriff of Graven county, returned into court the following recognizance, to-wit;

“ State of North Carolina, *)*

Craven County. *\*

Be it remembered, that on the 26th of May, 1841, personally were present before me, John B. Dawson, sheriff of the county aforesaid, Henry Hill, Abner Hartley and James Roach,who acknowledged themselves held and firmly bound to the State of North Carolina in the following sums, to-wit, the said Henry Hill in the sum of one thousand dollars, and the said Abner Hartley and James Roach, in the sum of five hundred dollars each, to be levied out of their respective goods and chattels, lands and tenements.

The condition of the above recognizance is such, that if the above bounden Henry Hill shall keep the peace towards all good citizens of North Carolina, and particularly towards Catharine Hill, and shall make his personal appearance before the court to be held for this county on the second Monday of May, 1842, and shall not depart the court without leave had and obtained, then the above recognizance to be void ; otherwise to remain in full force and virtue.

JOHN B. DAWSON, Sheriff, (Seal.)”

A breach of the said recognizance was suggested in this, that the defendant Henry Hill had, within the twelve months for which the said recognizance was given, been guilty of an assault and battery on one Henry Hill, and failed to appear at court according to the recognizance. Thereupon a *scire facias*was ordered to issue upon the recognizance ,' and, upon the return of the *scire facias,*the said defendants, Hartly and Roach, (the defendant Hill having left the State,) pleaded *umil tiel*record,” upon which issue was taken by the State. It was admitted by the defendants, that there had been a breach of the recognizance, as suggested in the *scire facias,*but they contended that there was no *400such record — that the County Court could not confer any power on the sheriff to take a recognizance, and that the sheriff could not, *virtute officii*or otherwise, take such a re-1 *M*cognizance.

The court thereupon rendered judgment for the defendants, from which the State by its Solicitor appealed to the Supreme Court.

*Attorney General*for the State.

*J II. Sryanj-ox*the defendants.

Ruffin, C. J.

The single question in the case is, whether, when a person is committed to the custody of the sheriff by a court, for want of sureties for keeping the peace, that officer can in vacation take security by recognizance acknowledged before him. Upon this question I was led to express the inclination of my mind in the negative, in the case of the *State*v Mills, 2 Dev. 555, when I mentioned some of the reasons which influenced my opinion. Those reasons have lost none of their force by further enquiry and reflection ; and mv brethren direct me to say that they concur in them and the conclusion. We cannot learn that the sheriff ever took recognizances or let'persons to bail in this State before the act of 1797; nor, since that act, but in the case of one in custody under a capias on indictment found. There are many reasons why he should not, and why the power, which is a judicial function, should be exercised by judicial officers alone. It is true, the sheriff is a conservator of the peace, but that does not authorize him to require security for the peace nor to take the recognizance, for a constable is likewise a conservator of the peace, and no one supposes that officer can take the acknowledgment of a recognizance. Both the sheriff and constable have authority to arrest for a breach of the peace, or to prevent a breach of the peace; but neither can commit the offender, or do more than carry him for examination before a judge or justice of the *401peace, who may commit or bail, as if the arrest had on a warrant. Regularly, if a person be committed by a court for want of sureties to keep the peace, and he becomes able to give them, he should be taken before a judge on *ha-beas corpus,*who would take the recognizance and discharge him. But as that may be often attended with delays and much expense, a practice has grown up, for the ease of the citizens, to obtain an order of the court, by the consent of the prosecuting officer, that the recognizance may be entered into, in a sum specified, before one or more justices of the peace. But in acting under that authority, those officers assume not a power, as far as respects the taking of the recognizance, which they did not possess *virtute*officii.— What they have no right to do is, to let at large a person committed by a court of record; and it is for the purpose of preventing a discharge by them from being an escape} th at the previous order of the court, authorizing such discharge, is necessary. But this has no application to the case of a sheriff, who has not the power, under any circumstances, to take a recognizance, unless in the particular case authorized by the act of 1797. In our opinion, therefore, the judgment must be affirmed.

Per Curiam. Judgment affirmed.