
    The State vs. Horn.
    CRIMINAL law. Who may let to hail — Sheriff when and when not — Recognizance when void. Except in the special cases pointed out by law, the sheriff has no power to let to bail persons committed for criminal offences. By the act of 1831, c 4, he may not let to bail one who has been committed because the examining magistrate did not know whether the offence was bailable or not; and a recognizance reciting that cause of its being taken by the sheriff is
    On the 26th of December, 1836, William P. Horn was arrested on a charge of unlawful and malicious stabbing, and brought before Mr. Justice Samuel Farris, of Giles, for examination. The justice being of opinion that Horn was guilty of the charge, and not knowing whether the offence was bailable or not, therefore, committed him to the jail of the county to await his trial. Application was made to the sheriff to take bail, and he, believing it to be his duty, took from the prisoner, with James Horn as surety, a joint and several bond or recognizance, in the penalty of one thousand dollars, conditioned — ‘‘that whereas the said William R. Horn, on the 26th day of December, 1836, was arrested on a charge of unlawful and malicious stabbing, at the instance of one Campbell Graves, the prosecutor, and brought before one Samuel Farris, a justice of the peace for said county, for an examination: and whereas, the said Samuel Farris, justice as aforesaid, did proceed to examine said William R. Horn on said charge, and being of opinion that he was guilty of the same, and not knowing whether the said offence was bailable or not, did commit the said William R. Horn to the jail of the aforesaid county, to await his trial for said offence, and application having been made to James S. Webb, the sheriff of said county, to receive bail for the appearance of the said William R. Horn, to answer for said offence, and he believing it to be his duty to receive said bail. Now, therefore, if the said William R. Horn, make his personal appearance, at the next term of the circuit court for the aforesaid county of Giles, to be held at the court house, in the town of Pulaski, on the third Monday of February next, on the first Thursday thereof, then an'd there to answer the State of Tennesee, upon said charge of unlawful and malicious stabbing, and not depart from said court without leave of the same, then the above obligation shall he void, otherwise to remain in full force.” This recognizance was signed and sealed by William R. Horn and James Horn, and acknowledged before Thomas C. Webb, sheriff, on the 30th of December, 1836.
    January 18.
    William R. Horn made default, and on the 2d of March, ] 837, a forfeiture was taken and entered of record, and a scire facias awarded. This was returned as to James Horn, “not to be found” on the 24th of June. An alias was issued which was returned on the 21st of October, that James Horn was not to be found, and bad removed to Missouri.
    At October Term, 1837, James Horn's appearance was entered by A. Wright, his attorney, and he filed a demurrer to the scire facias. Among the reasons assigned for the demurrer was the following — “It appears from the face of said scire facias, that the sheriff had no power to take said recognizance. The defendant was not committed to jail for want of security by the magistrate, but because he did not know whether said supposed offence was bailable^ or not. Now by the common law the sheriff had no power to take a recognizance, and by statute he only has such power, where the, accused is committed to jail for want of bail.”
    On argument of the demurrer, at February Term, 1838, before his Honor Judge Dillahunty, he sustained it; and the Solicitor General appealed in error.
    The Attoeney General contended, that the recognizance in this case was well justified by the act of 1831, c 4. For though the enacting clause confined the sheriffs power of bailing to the case when the defendant is committed for the want of security, yet as the proviso is, that bail is not to be taken when the examining magistrate has determined the offence not bailable, it followed, that when the defendant is committed for any other reason than the unbailableness of the offence, the sheriff may take the security. Otherwise the party may lie in jail indefinitely, since the magistrate might never resolve his doubts, or remove his ignorance whether the offence was bailable or not. The justice had not, he said, reserved the question for consideration, and committed the accused till he could'be satisfied of his power, but had committed him to await his trial in the circuit court. He had not determined that the offence was not bailable, which was the only case in which the act of 1831 seemed to contemplate that the sheriff should not take bail. Dealing with this ■statute as with others, and interpreting its ambiguities by the ■context, it could scarcely be doubted that the case, though not expressly provided for, might without violence be brought within its purview.
    January 23.
    Wright, for the defendant in error,
    insisted, that at common law the sheriff had no power to take bail in a criminal case. 1 Ch. Cr. Law, 96, 97. This power is given in a few specified cases by statute; the jurisdiction is a special and limited one, and his authority to act must be tested by all the rules applicable to such proceedings. Now the scire fa-sias should show before whom it was taken, and that he had power to take it. Bridge vs. Ford, 4 Mass. 641, 642; The People vs. Powers, 4 Johns. Rep. 292; Jones vs. Reed, 1 Johns. Oa. 20; Wells vs- Newkirk, Id. 228; Shivers vs. Wilson, 5 H. & J. 130; Commonwealth vs. Downey, 9 Mass. 520; The State vs. Smith, 2 Greenl. 62. The recognizance must stand or fall by itself; it should be a complete record, embodying every fact necessary for a recovery. 9 Mass. 520.
    But here it shows upon its face the want of authority in the sheriff to take it. The defendant was not committed to jail for want of security by the magistrate, but because he did not know whether the offence was bailable or not. Now by the act of 1831, he only had such power where the accused is committed to jail for want of bail. Rose vs. Dean, 7 Mass. 280. This is a case omitted. It is not provided for, though it is of the same nature as the case which is embraced by the act.
   Turley, J.

delivered the opinion of the court.

A sheriff, in this state, has no power to take bail for the appearance of prisoners committed for offences, except such as is given by statute.

The act of 1831 makes provision, that the sheriff of the county may receive bail, where the accused has been committed for want of security; but it does not authorise him to do so in any other case; and out of abundant caution, prohibits bail, being taken where the examining magistrate shall have determined the offence not bailable.

In the present case the bond of recognizance taken by the sheriff, makes a different case from that, which is provided for by' the statute. It recites, that the offender had been committed, because the justice did not know whether the of-fence was bailable or not. Now the statute gives no power to the sheriff to adjudge the question, he is a mere ministerial officer, and can only act where the committing magistrate has held the offence to be bailable, and committed for want of bail.

The sheriff then had no power to take the bond of recognizance in this case, — it is void, and the court below therefore committed no error in refusing to pronounce a judgment thereon.

Let the judgment be affirmed.  