name, and any of the immediate relatives of said criminal, to attend and be present at such execution; and also such officers of the prison, deputies and constables as said Sheriff or under sheriff shall deem expedient to have present; but no other persons than those herein mentioned shall be present at such execution; nor shall any person under age be allowed to witness the same.-2 R. S., 2d ed., 548, § 27.

The Sheriff or under sheriff and judges attending such execution, shall prepare and sign, officially, a certificate setting forth the time and place thereof, and that such criminal was then and there executed in conformity to the sentence of the court and the provisions of this act; and shall procure to said certificate the signature of the other public officers and persons, not relatives of the criminal, who witnessed such execution. And the Sheriff or under sheriff shall cause such certificate to be filed in the office of the clerk of said county, and a copy thereof to be published in the state paper, and in the newspaper if any, printed in said county. -2 Ibid, 548, § 27.

The preceding provisions were drawn with a view to avoid the consequences frequently attending the parade of public executions. While on the one hand, the security of our fellow citizens requires that the punishment of death should never be inflicted in secret, on the other, it is believed by many, that the manner in which it is usually conducted, defeats the grand end in view—a solemn monitory example. A medium between the two has been aimed at.-Revisers' notes, 3 R. S., 816.

CHAPTER II.

Under Sheriff and Deputy.

It is a general and wise rule, that a judge cannot constitute a deputy, or delegate his authority to another. For he cannot transfer his own mental qualifications, requisite for the interpretation of laws, to such substitute. But in ministerial offices, of the kind where little more than fidelity and attention are necessary to the due discharge of them, the reasoning and the rule do not equally prevail. If we consider the supreme executive magistrate himself, we see all the affairs of government carried on by his authority, and in regal governments, in his name; but comparatively few of them by his personal agency and intervention. In like manner those, who are invested with any kind of ministerial power directly derived from the government, may, in general, perform such functions by properly commissioned deputies. (3 Wend. R., 150.) It is for this reason that the Sheriff had always the power of appointing an Under Sheriff; at least there is mention made of him so early as in the third year of Edward the First.-St. Westm. 1,3 Ed. I., c. 15.

And it is impossible the High Sheriff can himself personally execute every branch and duty belonging to his office, and as the law, from the necessity of the thing, and in furtherance of justice, allows him to make a Deputy, hence it is necessary that such Deputy should in all things in which the Sheriff's personal presence is not required, have the same power as the Sheriff himself;

and as by the nomination of him, the sheriff implicitly confers on him a power of doing all such offices as he himself could execute, and may be transferred by the law, it has likewise been held, (1 Salk. 95; Ld. Raym. 658.) that the deputy's authority is by law so equal with that of the principal that any condition, covenant, or other bargain to restrain it, is void. (Ibid.) The sheriff, therefore, might also constitute as many other deputics as he thought fit, each possessing all the powers of a sheriff as a ministerial officer. (1 Salk., 96.) But as to the under sheriff, as such, the sheriff could never appoint more than one. And where a writ of inquiry was executed before two under sheriffs, appointed by deputation under the hand and seal of the high sheriff, the inquisition so taken was set aside.-2 Wils. R., 378.

By the Revised Statutes it is made imperative upon the sheriff to appoint an under sheriff.

The sheriff of each county in this state shall, as soon as may be after he takes upon himself the execution of his office, appoint some proper person under sheriff of the same county, to hold during the pleasure of such sheriff; and as often as a vacancy shall occur in the office of such under sheriff, or he may become incapable of executing the same, another shall in like manner be appointed in his place.-1 R. S., 2d ed., 372, § 82.

Whenever a vacancy shall occur in the office of sheriff of any county, the under sheriff of such county shall in all things execute the office of sheriff of the county, until a sheriff shall be elected or appointed, and duly qualified; and any default or misfeasance in office of such under sheriff in the meantime, as well as before, shall be deemed to be a breach of the condition of the bond given by the sheriff who appointed him, and also a breach of the condition of the bond executed by such under sheriff to the sheriff by whom he was appointed.—Ibid, 372, § 83.

Every sheriff may appoint such and so many deputies as he may think proper; and persons may also be deputed by any sheriff or under sheriff by an instrument in writing to do particular acts.-1 R. S., 2d ed., 372, § 84.

Every appointment of an under sheriff, or of a deputy sheriff,

shall be by writing, under the hand and seal of the sheriff, and shall be filed and recorded in the office of the clerk of the county; and every such under sheriff or deputy sheriff shall, before he enters on the execution of the duties of his office, take the oath of office prescribed by the constitution. But this section shall not extend to any person who may be deputed by any sheriff or under sheriff to do a particular act only.—Ibid, 372, § 85.

It will here be perceived that the under sheriff and deputy are on an equality as to their powers, excepting that the former has the capacity of acting in the case of a vacancy in the office of sheriff, and of making deputations to special deputies for the performance of particular acts. And this power of deputing was given to the under sheriff in conformity to a decision of the supreme court, (5 Johnson's Rep., 137; Revisers' notes, 3 Revised Statutes, 494) where the right of an under sheriff to depute a person to serve a capias was called in question. For, exclusive of the statute, an under sheriff, by common law, might depute a person to serve a writ or do a particular act. The general maxim, that delegata potestas non potest delegari, or that deputed power cannot be delegated, is correct when duly applied; for to make a deputy by a deputy, in the sense of the maxim, implies an assignment of the whole power, which a deputy cannot make. A deputy has general powers, which he cannot transfer; but he may constitute a servant or bailiff, to do a particular act. This distinction was taken and laid down by Lord Holt, who gave the opinion of the court of king's bench in the case of Parker v. Kett, (1 Ld. Raym., 658; 12 Mod., 467; 1 Salk., 95.) In that case the steward of the manor of Reswick made his deputy steward, who appointed under his hand and seal, B, a third person, to be his deputy, to take a particular surrender, who took it, and one question which arose in ejectment, was, whether the surrender taken by the deputy was good. The court held it good, and said that B was not a deputy, in the proper sense of the term, since he had power only to do a particular act; whereas a deputy, from the nature of his deputation, has power to do all acts. They said it was every day's practice for under sheriffs to make bailiffs to do particular acts, and that they made them by virtue of their

general deputation; for the moment a sheriff made an under sheriff, he, of necessary consequence, gave him power to make bailiffs. The case of Leak vs. Howell, (Cro. Elizabeth, 533) and the authorities there cited contain the same general doctrine. The inference from this reasoning is, that the under sheriff being vested with all the general powers of the sheriff, may authorize, in the name of the sheriff, any person to execute a particular official act, and for the purpose of executing such act, the special deputy has all necessary power, but that he can go no further; for inasmuch as his office is only a delegated personal trust, arising merely from his appointment, which power and appointment may be taken from him at any time the sheriff shall think proper to remove him, it would be inconsistent to permit him to delegate power which he at any time might be deprived of, and which power, if so given, would be independent of the authority by which he was created. But by confining the exercise of authority to particular acts, the mischief is avoided. The The special deputy, therefore, is a mere servant of the sheriff, whose power expires with the execution of the act for which he was created, and he need not take any oath of office. (2 R. S., 2d ed., 372, §85.) And the mere fact of a deputy sheriff being directed by the under sheriff of the county, who had the principal charge of the business of the sheriff, to levy upon specific property, on an execution being placed in his hands, does not constitute him the servant or special agent of the sheriff for that particular service; he will be deemed to act in his official character, and not as a mere servant or agent, and if the sheriff is subjected to damages in consequence of his acts in respect to such execution, he and his sureties are liable to indemnify the sheriff notwithstanding such instructions. (15 Wend. Rep., 274.) To exonerate a deputy from responsibility under such circumstances, the directions must be so definite and specific as to debar him from the exercise of all discretion in the matter.

The duties of a sheriff were, in the origin of his appointment, and in England, in some measure, still continue, two fold, to wit, judicial and ministerial. A judicial act required of the sheriff, cannot be executed by deputy, and these are the only kinds of acts